Darryl Steven Sheepway was in the Supreme Court of the Yukon this week to argue litigation over his placement in the Secure Living Unit (SLU) during most of his time at the Whitehorse Correctional Centre (WCC).

Sheepway appeared by video from the Kent Institution in Agassiz, B.C., before Chief Justice Ron Veale for a two-day hearing on Wednesday and Thursday.

Sheepway is serving a life sentence for second-degree murder in the death of Christopher Brisson in Whitehorse. He is ineligible for parole for 13 years.

Vincent Larochelle, Sheepway’s lawyer, stated his client is looking for the court to declare that WCC’s alleged use of segregation, separate confinement and the SLU is unconstitutional.

He clarified that the case is not centering on Sheepway’s treatment but rather how the SLU is used.

“It’s not about Mr. Sheepway,” Larochelle said.

He argued that the Yukon government is taking the position that if a unit is not officially called segregation, it is not considered as such as per regulations.

“There is a lot of confusion on what is segregation,” Larochelle.

He said the court would need to look at the reasonableness of the decision to place Sheepway in the SLU. Larochelle gave Veale his three desired rulings.

The first is a declaration that being housed in the SLU is segregation.

The second is the declaration that a lawfully authorized SLU placement should be overseen by external and independent parties to ensure a fair review process and that the housing is not indefinite.

The last one was a declaration that the current SLU policies and regulations have run afoul.

Veale pointed out that Sheepway was placed in the SLU due to his being a former corrections officer. Larochelle agreed that that was the reasoning but stated there was no law to support the decision.

Sheepway was given a chance to testify about his living conditions. He said he spent between 17 and 18 months in the SLU, from August 2016 to May 2018.

He said he was placed immediately in segregation when he was first brought to WCC. He alleges he was there for approximately two weeks, and placed in the SLU afterward.

Sheepway said the difference between the two areas are the SLU units have televisions and there is a common area. Segregation, he said, has neither.

He alleges he was not given reasons for his SLU placement until he filed this petition in April 2017. This is when he learned his former employment was used to justify the placement, but claims he was provided no further details.

Sheepway said he filed complaints but was never given any opportunities to speak on the matter.

He alleges to have suffered during his time in the SLU. He said it is hard to explain, but he was living in a fantasy world in his head. He added he had a hard time socializing and speaking to family members when they visited.

“It’s hard to express it all,” he said.

Sheepway said he is disillusioned with himself and reality.

Eric Hendriks, the WCC manager of Corrections Services Policy Designation, testified next. He said the inmates doors are unlocked from 7:30 a.m. to 10 p.m. on weekends. This changes to 10 a.m. to 10 p.m. on weekends.

Inmates are fed at approximately 7:45 a.m.

Staff deem which inmates are compatible and placed in groups and allowed to spend unlock time together. The groups share unlock time, which is divided up between however many groups exist at the time in question.

He explained that the reason for keeping Sheepway in the SLU never changed throughout his time at the facility. He added the placement was reviewed at the daily management meetings, where Sheepway’s condition and potential security risk would be discussed.

Sheepway was never at any of these meetings, but Hendriks said he could file complaints and make requests for a review.

Hendriks confirmed that staff considered placing Sheepway in general population but did not because of his previous employment at the jail. He said Sheepway had knowledge of the facility.

The next day, Larochelle and Karen Wenckebach, the lawyer representing the government, made their submissions.

Larochelle said policies have been put in place that do not comply with the Canadian Charter of Rights and Freedoms. He said courts are supposed to monitor this. He argued that the court needs to give lawmakers a nudge on what to do about the SLU.

He added he wants the SLU to be thought of as separate confinement or segregation.

“We are dealing with separate confinement when we talk about the SLU,” Larochelle said.

He said it is not about how much time Sheepway spent outside of his cell. He explained that Sheepway may have been able to leave his cell during unlock time, but there was no one to interact with. He added that being alone in bigger room is still being alone.

“It doesn’t change the fact that you’re alone,” Larochelle said.

He called the record for review abysmal. He said there should be a new more robust review process. He said this might not make the process more efficient but it would make it more fair.

“That is the requirement for procedural fairness,” Larochelle said.

Wenckebach argued that Sheepway was provided the opportunity to socialize with other inmates, but chose not to. He was offered programming, to meet with WCC’s chaplain and to meet with First Nations elders, but refused, she said.

“He chose not to take it,” Wenckebach said.

She said Larochelle would have to prove that the SLU is the same as segregation or separate confinement. She said these are different.

She argued that the definition of segregation is defined as an inmate being in solitude for 22 hours. If the conditions fall under 22 hours, the inmate in question is not in segregation.

Wenckebach argued that Sheepway’s placement in the SLU does not meet this definition.

She added that Sheepway provided little information on what happened when he was in separate confinement for two weeks.

Wenckebach took issue with Larochelle calling the records abysmal. She said he never requested the SLU review forms, so they were not provided.

“We weren’t asked for the documentation, so we didn’t provide it,” Wenckebach said.

Since Sheepway was never in separate confinement outside of his first two weeks, she argued, the petition was misguided.

She felt there was no evidence to make the rulings sought in the petition. She argued that in the alternative, Veale say there is enough evidence, and that the procedures were appropriate.

Larochelle was given a chance to respond. He said there is evidence, even from Hendriks, that Sheepway was locked in his cell for up to 22 hours at times.

He added that Sheepway may have had the opportunity to socialize with other inmates, but this may not have been “meaningful human contact.”

Veale reserved his decision to a later date.