New Brunswick

Few details about death of man in custody of N.B. jail, more than two years later

More than two years have passed since Derek James Whalen died in custody of the New Brunswick correctional system, but the province hasn’t provided any details about how, or why, he died.

Province will hold an inquest into Derek James Whalen's death in October

The province has said little about how Derek James Whalen died in custody of the Southeast Regional Correctional Centre, pictured here, in 2020. (CBC)

More than two years have passed since Derek James Whalen died in custody of the New Brunswick correctional system, but the province has provided few details about what happened to him.

Whalen, 37, hadn't been convicted of a crime when he passed away in custody at the Southeast Regional Correctional Centre in May 2020.

The Department of Justice and Public Safety has said Whalen was in jail on remand, awaiting a court appearance, when he died "following an incident." It hasn't provided any details about the nature of the "incident."

The press release issued one day after Whalen's death said he was transported to the Moncton Hospital on May 3, 2020, and was pronounced dead at the hospital. It doesn't explain how or why he came to need medical attention.

The RCMP's Major Crime Unit investigated Whalen's death, and ruled out criminality in September, 2020.

"The investigation learned the individual was combative, and had been restrained before his death," RCMP spokesperson Cpl. Hans Ouellette told CBC News last year.

"A review found that policy was followed and the force used was not unreasonable. The investigation was concluded."

When contacted this week, the RCMP didn't provide any further details about what happened to Whalen, including what kind of force was used.

The province plans to hold an inquest into Whalen's death in Saint John from Oct. 17 to 21, the Department of Justice and Public Safety announced on Wednesday morning.

"Presiding coroner Michael Johnston and a jury will hear evidence from witnesses to determine the facts surrounding this death," a news release says.

"The jury will have the opportunity to make recommendations aimed at preventing deaths under similar circumstances in the future."

Derek James Whalen's obituary says he loved working out, drawing, barbering and most of all, spending time with family. (Fergusons Funeral Home)

There's no reason to wait more than two years to hold an inquest into Whalen's death, according to Michael Boudreau, a professor of criminology and criminal justice at St. Thomas University.

"The longer we wait, the more difficult it becomes for those conducting the inquest," Boudreau said.

Since provincial inmates are incarcerated for less than two years, potential witnesses may now be harder to find, he said.

"Even those witnesses who were there who can speak to the event, if there were any witnesses, after two years, their memories become faded. They may not be able to remember the key details of what transpired."

Unanswered questions

Adelina Iftene, an assistant professor of law at Dalhousie University, said the province has questions to answer when force is used on someone held in custody.

That includes what kind of force was used, why it was used, what other measures were used to try to de-escalate the person, and what kind of training staff at the jail have received, Iftene said.

"Even if he was indeed combative, that's just not saying anything, because people are not just randomly combative," Iftene said.

"There is a reason why they are combative. And unfortunately, a lot of times that's rooted in having their very, very high needs not addressed and them living in very serious distress."

Adelina Iftene, an assistant professor of law at Dalhousie University, says the province has questions to answer when force is used on someone in its custody. (Submitted by Adelina Iftene)

She said the public also needs to know what kind of injuries Whalen had and how quickly he received medical care.

CBC News asked the Department of Justice and Public Safety for records related to Whalen's death earlier this year, via access to information.

The department declined to provide any records, saying the information contains "third-party personal information" and disclosing the records "could be harmful to an individual or to public safety," could provide advice to a public body, could harm a law enforcement matter or "be injurious to existing and/or anticipated legal proceedings."

It's not clear what law enforcement matter releasing the records could harm. The RCMP told CBC the investigation into Whalen's death "has been concluded."

In an obituary, Whalen's family remembered the Moncton man as someone who enjoyed working out at the gym and barbering for himself and his friends. 

"He had recently rekindled his love for drawing, but time spent with his friends and family were most important to him," the obituary says.

'Not a transparent system'

Four other people have died in custody of provincial jails so far this year.

Skyler Sappier, 28, was a member of the Neqotkuk First Nation, formerly known as Tobique First Nation. (Submitted by Joanne Barlow)

In January, Skyler Sappier, a 28-year-old member of Neqotkuk First Nation, died of COVID-19 while serving a sentence at the Saint John Regional Correctional Centre, his family told CBC earlier this year.

A few days later, on Feb. 6, Wesley Robert Geneau, 40, died in custody of the Madawaska Regional Correctional Centre, where the province says he had been found unresponsive.

Twenty-four-year-old Jarrett Lorne Lunn died in custody of the Madawaska Correctional Centre in April, one week after being "found unresponsive" at the jail. He was being held in custody on remand while awaiting a court appearance.

In May, 39-year-old Jason Barnaby-Gloade died in custody of the Dalhousie Regional Correctional Centre after being found "unresponsive in a cell." Barnaby-Gloade was also being held on remand, waiting for his court date.

The province has a policy of holding inquests for "all sudden and unexpected deaths in custody," and will hold separate inquests into all four deaths. Officials haven't released a cause of death for any of the four men who died.

Four deaths in one year should trigger a "huge alarm" for the provincial correctional system, Iftene said, and should prompt questions about what's going on inside jails.

While the federal correctional system has oversight in the form of the Office of the Correctional Investigator, provinces typically don't provide consistent information about confinement, health care and use of force inside their jails, she said.

"We simply have no idea," Iftene said.

"It's not a transparent system, which makes it very difficult to understand what's going on. But I think these tragedies, having four deaths in one year, I think it's a really crucial moment in time to say, OK, well, we don't have any information about what's going on, but we do know that a number of things are going terribly wrong."

ABOUT THE AUTHOR

Karissa Donkin is a journalist in CBC's Atlantic investigative unit. Do you have a story you want us to investigate? Send your tips to NBInvestigates@CBC.ca.

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