The top territorial court judge has accused the Justice department of 'total indifference' to the mentally ill people in its care at the Yukon jail.

In an 18-page decision released yesterday afternoon, chief Judge Heino Lilles notes the Yukon Supreme Court pointed out the 'impropriety of using the Whitehorse Correctional Centre as a hospital' four years ago in another case involving a mentally-ill man accused of criminal offences.

In his written decision, Lilles explained his reasons for ruling last Friday that 30-year-old Steven Rathburn was not criminally responsible for an assault on his girlfriend, as the accused was in the grips of a sudden, severe psychotic episode.

After he was arrested in early March, Rathburn consented to being held for a further 30 days at WCC for a psychiatric assessment.

Under the Criminal Code of Canada, such assessments are conducted in facilities designated as hospitals by the Health Minister. WCC is one of the Yukon buildings officially designated as a hospital.

The psychiatric assessment for which Rathburn had consented to his remand found that his mental condition deteriorated while he was in 'the hole' or Segregation Cell 1. Lilles has since ordered the man be cared for at Whitehorse General Hospital.

Lilles said he had 'no hesitation' in finding Rathburn's detention in the segregation area a violation of the Charter of Rights and Freedoms, specifically the right against cruel and unusual treatment or punishment.

Both Lilles and Justice Ron Veale, who made similar comments in his 2000 ruling, say WCC simply can't be called a hospital.

'It appears nothing has been done since that time to remedy the situation,' Lilles wrote, referring to the 2000 Supreme Court case. 'The kindest explanation for this inaction would be that the Justice Department officials were asleep on their watch and did not read the ... decision. Unlikely. Another explanation would be that they were aware of it, and with total indifference to the court and Parliament and the plight of the mentally ill and handicapped, chose to do nothing about it.'

Outlining the various international treaties Canada has signed, Lilles noted that such agreements don't have force of law unless they have been incorporated into Canada's own laws.

On the other hand, he said, they can be used to measure domestic legislation against, and, wrote Lilles, Rathburn's treatment by the Yukon correctional authorities by placing him in the hole for an extended period of time while on consent remand 'represents a gross violation of international norms.'

Noting rules for care of offenders with mental disorders, Lilles said, 'Psychiatric or acutely ill prisoners should be placed in specialized institutions under medical management.

'Standards of care should not be lowered because those needing medical treatment are prisoners.'

Lilles took the unusual step of having court registry staff phone local media outlets to inform them the written reasons were available.

Justice Minister Elaine Taylor declined to comment today about the comments regarding her department. A cabinet spokesman said the decision is being reviewed, but that the minister does not comment on specific cases or cases that could still be before the courts.

However, Taylor did speak about this case with the Star on Monday.

'This individual urgently requires inpatient psychiatric care,' Dr. Todd Tomita, a B.C. psychiatrist, wrote in his report. 'I would be concerned that if he remains in WCC custody in a segregation room, he may become a serious suicide risk. He is too sick to be in a jail general population.'

While in WCC's segregation cell, Rathburn showed signs of believing he was living in a video game, and reported seeing something coming up through the drain to try and get him during the night. He also spoke to the few objects in his spartan, two-by-three-metre, dimly-lit cell.

'He requires aggressive treatment with medication and the ability for him to receive it in a correctional environment may be limited,' Tomita wrote.

Rathburn's lawyer, the Crown prosecutor and Tomita had all urged Lilles to make the disposition for the mentally-ill man, rather than the territory's mental health review board, so that Rathburn wouldn't simply be referred to a 'hospital.'

The worry was that Rathburn would simply be returned to WCC, a designated hospital.

'This segregation area is referred to as 'the hole' or 'the digger' and is normally used to punish inmates for misbehaviour or for breaching prison rules,' Lilles wrote. 'It is also used for short periods of time, perhaps a matter of hours, to calm down an inmate who is having an emotional episode.

'On the other hand, the staff keeps the area as neat and clean as they can,' noted Lilles. 'They make the best of a bad situation. And while the staff are trained as correctional officers and are trained to deal with safety issues they are not well-equipped to deal with inmates in Mr. Rathburn's condition. Staff members feel frustrated. The use of the segregation area for mentally ill persons adversely affects their morale and that of other inmates.'

Lilles noted that when he visited the jail Friday afternoon, staff made comments such as, 'He shouldn't be in a box like this', 'It turns my stomach', 'It's ridiculous' and 'It's not a proper place to put someone who is mentally ill.'

The judge quoted extensively from the four-year-old Supreme Court case, in which Justice Veale said, 'It is an understatement to say this facility is less than appropriate to serve as a hospital for persons who are found not criminally responsible by reason of mental disorder. Calling a prison a hospital does not change the nature of the facility from a penal environment to a therapeutic environment.'

In that prior case, the Yukon Review Board also stated: 'It has been made abundantly clear to the board that the Whitehorse Correctional Centre, in its capacity as a hospital', does not provide any appropriate therapeutic treatment services worthy of the designation of a hospital.'

Lilles said while counsel hadn't asked him to strike down WCC's designation as a hospital, he didn't hesitate in Rathburn's case to find that 'the hole' isn't a hospital under the Criminal Code.

He noted there are 'ad hoc' agreements to send mentally-ill accused Outside for assessments, but noted that no formal agreements exist and that such arrangements are difficult to make on short notice.

'Financial considerations and other administrative concerns are not valid excuses for depriving Mr. Rathburn of his liberty.'