Ruling highlights lack of NWT corrections accommodation policy

A human rights adjudicator has ordered the NWT’s corrections service to develop an accommodation policy and train employees in human rights, including the duty to accommodate.

Adjudicator Sheldon Toner made the orders in a recent ruling on a human rights complaint lodged by a former inmate at the North Slave Correctional Complex, or NSCC, against the NWT Department of Justice.

Toner found the department had discriminated against the man, who was not named, on the basis of disability and social condition by failing to adequately offer access to education opportunities and substance abuse programming at the Yellowknife jail.

Toner said the department’s ad hoc approach “highlighted systemic gaps in the GNWT’s management of human rights accommodations in the correctional context.”

“The respondent’s trial-and-error approach to seeking accommodations for the complainant was insufficient to address the complex needs presented by the complainant,” he wrote.

“This is not a situation where the respondent had good policies but erred in the implementation. The respondent did not have an accommodation policy, and staff misunderstood and misapplied fundamental principles of concepts in accommodation.”

Toner also found a kitchen worker at the jail had made a harassing remark to the man on the basis of disability and social condition.

He awarded the man a total of $15,000 in compensation for injury to dignity, feelings and respect.

Literacy requirements for core programming

According to Toner’s decision, the man was incarcerated at NSCC and the Fort Smith Correctional Complex between June 2019 and August 2021. During that time, the man was on remand awaiting trial and was released when the charges against him were stayed.

When he was first incarcerated, the man told his case manager he wanted to access education and attend a substance abuse program. The manager responded he could not do those things due to his disability.

The man then explained his disability to the instructor at the jail, who gave him flash cards and offered 15 minutes of one-on-one time ahead of class per day. Toner found that was a reasonable starting point and the teacher had developed that plan in good faith.

The instructor conducted an academic assessment of the man in October 2019. He found the man’s reading level was between non-existent to a pre-kindergarten level and he could do basic math but was unable to solve basic word problems. A minimum Grade 6 reading level is required for core programs at NSCC.

Toner found the department did not prove why those core program requirements matter. He said the department acknowledged there are other inmates at the jail with similar literacy levels and sentenced inmates are expected to take core programming

“In reality, the complainant’s literacy was not an insurmountable barrier to participation in programs,” he wrote.

Assessment 20 months after recommendation

In his academic assessment, the instructor recommended that before attempting to provide the man programming, he should be assessed by a psychologist.

A psychologist’s assessment of the man was completed in June 2021, around 20 months later.

The psychologist diagnosed him with a mild intellectual disorder, Attention Deficit Hyperactivity Disorder, and borderline personality traits. The psychologist also questioned whether the man may have Fetal Alcohol Spectrum Disorder. The report further described the man’s social-emotional and behavioural issues as interfering with his ability to access supports.

The psychologist made 13 recommendations including a multi-disciplinary team approach, clear and immediate responses to problematic behaviour, and medication to help regulate the man’s mood.

Toner found the department had failed to obtain a timely psychological assessment to support the accommodation process.

He said findings and recommendations in that report would have helped with accommodation and proactively addressing the man’s behavioural issues. Yet he said the department did not appear to have ever considered the report in the context of education or programming.

Fort Smith

Between December 2019 and May 2020, the man was moved to the jail in Fort Smith.

The man said he was able to learn more with the instructor at that jail, which is a much smaller facility than NSCC, as she helped him step by step and spent 45 minutes with him each morning. The instructor said she knew the man before he was incarcerated and she was able to work well with him by providing structure, working at his level, and using positive encouragement and reinforcement.

When the man was returned to NSCC, Toner found staff at the Yellowknife jail took significant steps to build on his success in Fort Smith. The instructor and others at NSCC modified a Foundations for Success program for the man to explore life skills, time management, finances and other subjects.

The man’s participation in the program ended in July 2020 with him expressing frustration, claiming discrimination and storming out of the room.

While the corrections service discussed setting up videoconferencing for the man to continue working with the Fort Smith instructor and getting him an iPad to use as a reading tool, neither of those things happened.

Toner said while those were creative ideas that may have helped the man, decision-making around those accommodations was “managed arbitrarily.” He said the corrections service had raised expectations but failed to deliver on those ideas and gave inadequate reasons for not implementing them.

Following repeated requests, the man began an individualized substance use management program in November 2020. The case manager supervisor said the modified program had nothing to do with the man’s disability but was due to concern that he would be disruptive in a class setting.

The program was eventually discontinued after the case manager supervisor said the man had been disruptive and made negative and hurtful statements to staff.

Toner said the 14-month delay in allowing the man to start substance abuse programming was extraordinary and not reasonable. He said the man was given “unique prerequisites” before he could start the program, including attending the Foundations for Success program.

Harassing comment

On June 2, 2020, the man was working in the kitchen – putting chicken legs on a tray – when the worker who was showing him how to do it asked him if he was “f-cking retarded.”

The man became upset and, when the kitchen worker tried to apologize, he told her that “sorry doesn’t cut it.”

The man testified that the comment made him feel useless, like a dog or piece of meat.

He complained to the warden, who told him the worker had been dealt with. The man said he was not satisfied with that response and should have been better informed about how the incident was handled.

During testimony, the warden acknowledged the comment was unprofessional, said the kitchen worker was remorseful, and the issue had been addressed through a disciplinary process.

Toner found the worker knew or ought to have known the comment would be unwelcome as derogatory and disrespectful, and found the comment was vexatious and related to the man’s disability.