The Department of Justice intends to have a judge review the Yukon Human Rights Commission’s decision to investigate human rights complaints from inmates at the Whitehorse jail, according to a document obtained by the Star.

The letter, provided to the paper by a third party, states the department will be seeking judicial review of jurisdiction – that’s whether the commission has the authority to investigate human rights complaints at the Whitehorse Correctional Centre (WCC).

Justice spokeswoman Caitlin Kerwin declined to comment on the matter, citing “privileged and confidential discussions between legal counsel.” The department has not yet filed its application for judicial review in court.

This is the latest development in a tug of war between the two parties over three complaints filed by or on behalf of inmates at WCC. They allege discrimination and lack of accommodation “to the point of undue hardship,” according to the commission.

One was filed last spring by the father of Michael Nehass, an inmate who has been in custody awaiting trial for three years. He alleges his son has spent most of that time in solitary confinement and that it’s causing his mental health to deteriorate.

Last fall, the Department of Justice’s stance on jurisdiction was revealed to the Star in correspondence between the two parties.

The department stated that the commission doesn’t have authority to investigate human rights complaints at the jail because there are other avenues to address inmates’ concerns.

Those processes, the department argued, include the Investigations and Standards Office (ISO), an independent body created under the Corrections Act to review inmate discipline and investigate inmates’ general complaints; the territory’s ombudsman; the criminal justice process; or launching a civil lawsuit.

According to the department, the existence of these options means the commission has no authority to investigate human rights complaints at WCC under the Yukon Human Rights Act.

In a letter dated Sept. 4, 2014, the commission condemned this position, saying it is “without precedent” and “not supported in law.”

Nothing in the Corrections Act indicates that the ISO is the appropriate body for inmates’ allegations of human rights abuses, and the ombudsman’s office has deferred to the commission in the past on such complaints, commission lawyer Colleen Harrington said in the letter, sent to the Star by a third party.

“Inmates across Canada have access to the applicable human rights legislation in their jurisdictions...” she wrote. “(Y)ou provide no case law to support this view that human rights law in Yukon should be so drastically diminished as compared to everywhere else in Canada.”

Harrington said that the commission would proceed with the complaints, opting to refer them to Yukon Human Rights Panel of Adjudicators, an independent board that holds public hearings to investigate complaints when asked to do so by the commission.

That process was underway – the panel of adjudicators had sent the commission and the Department of Justice a notice of disclosure, a timeline that they must comply with when submitting documents to each other.

The next step would be a hearing, where each side would present its case.

The commission submitted its documents to the department on time. The department did not do the same. Its deadline was Jan. 26. The commission still has not received those documents.

Instead, the Department of Justice sent two emails to the commission and the panel of adjudicators earlier this month. On Jan. 13, it requested an adjournment of the panel’s hearing, and then, on Jan. 16, offered dates for its application for judicial review to be heard in court.

The application has not yet been filed in court, so the commission hasn’t been served with these documents.

“We haven’t received anything,” said the commission’s director, Jessica Lott Thompson.

She said judicial review is always a possibility with any matter.

“It’s always something that we’re aware of because it exists within the courts system as a potential outcome.”

Once an application for judicial review is filed, the next step is typically a case management conference before a Yukon Supreme Court judge.

The Department of Justice came under fire in the Yukon legislature last year for its use of “separate confinement” at WCC.

The jail has both a segregation unit, used for discipline, and a secure living unit, for inmates with medical issues, who pose safety risks or who seek voluntary separate confinement.

Michael Nehass’ case has been the most high-profile in the territory in recent years when it comes to solitary confinement and alleged human rights violations.

The inmate appeared naked before a judge a year ago via video camera from WCC. He was shackled and held to the floor by three guards in riot gear.

Last December, that judge apologized for not having Nehass removed from the courtroom sooner.

Facing territorial and Supreme Court charges, Nehass has been vocal at his court appearances about the alleged inhumane treatment he’s receiving at the jail.

In court Thursday to confirm the date for his May trial, he said he’s had “irreversible physical damage” done to his body and has faced “cruel and unusual punishment” at WCC (see more below).

It’s not known how long he’s been in solitary confinement.