Family of man who died in custody of provincial jail alleges excessive force used on him before his death

The parents of a man who died in the custody of a New Brunswickjail in 2020 are suing the province, alleging excessive force was used on him before his death.

Derek James Whalen was being held in remand at the Southeast Regional Correctional Centre in Shediac, where he was waiting for a court appearance, when he died on May 3, 2020.

The 37-year-old man's family alleges he was assaulted by correctional officers, who "used excessive force, violently restraining, and striking [Whalen] repeatedly in an attempt to coerce him to admitting that he had illegal drugs on his person," according to a statement of claim filed earlier this year.

The claim was filed on behalf of Whalen's estate, as well as his parents, William Whalen and Karen Whalen.

"[Derek Whalen] began screaming and yelling, advising the correctional officers that he was struggling to breathe," the statement of claim says.

"The corrections officers at the Southeast Regional Correctional Centre refused to call for aid or administer CPR or other medical attention when [Whalen] stopped breathing."

Whalen was pronounced dead at the Moncton Hospital at 10:15 p.m. on May 3, 2020, about five hours after court records allege Whalen was first assaulted. The records do not describe his cause of death.

The statement of claim alleges the province was negligent by failing to provide safe facilities and adequate supervision and monitoring of Whalen, by failing to provide use-of-force training for correctional officers and by failing to offer or administer medical attention to Whalen.

It also alleges the province "employed corrections officers at the Southeast Regional Correctional Centre who were dangerous, violent, and posed a risk to the health and safety of the accused persons held at the Southeast Regional Correctional Centre."

Province denied allegations

None of the allegations have been tested in court, and the province denied the allegations including that Whalen was assaulted by correctional staff and that he wasn't given medical attention in a statement of defence filed earlier this year.

The statement saysWhalen arrived at the Southeast Regional Correctional Centre on May 3, 2020, and quarantined alone in a cell for five days because ofCOVID-19 policies in place at the time.

It sayshe was alone in a cell on the day of his death when he told an attending sergeanthe'd ingested an unknown substance "believed to be methamphetamines."

Whalen asked to call his lawyer, but the cordless phone used for those calls wasn't charged, and Whalen was moved into a different room to make the call, the statement of defence says.

But after being moved into that room, the province alleges Whalen refused to provide the lawyer's phone number, and he "began to act strangely, including the initiation of verbal abuse directed towards the attending correctional officers."

It alleges Whalen used a table to break windows and other objects, was spitting saliva and blood on correctional officers, and that multiple correctional officers "were required to control Derek Whalen and subdue him."

The statement of defence says Whalen was then moved to a segregation cell. While there, the province alleges,Whalen "continued to exhibit violent and agitated behaviour," but a sergeant directed correctional officers to "loosen and/or remove the applicable restraints" on him.

The province alleges Whalen stopped moving after his wrist restraints were loosened "and the attending correctional officers determined aid was required."

Whalen was reckless, province says

The statement says correctional officers followed medical policies, including administering CPR and calling an ambulance after determining aid was required.

It says staff monitored and alleviated any complaints Whalen had about his breathing "by turning him onto his side and/or having medical staff present."

The province alleges Whalen's death was caused "solely by his own actions and negligence, including the reckless ingestion of illegal drugs."

'An unknown substance that appeared to be methamphetamines" wasfound in Whalen's third location, the segregation cell, "after they had fallen out of Derek Whalen's waistband," the statement says.

A spokesperson for the Department of Justice and Public Safety told CBC News the province doesn't have anything to add beyond the statement of defence.

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

The RCMP's major crime unit investigated Whalen's deathand 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 last year.

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

Coroner's inquest to be held this year

A coroner's inquest into Whalen's death will be held from Oct. 17 to 21. The process tries to establish how a person died but doesn't make a finding of legal responsibility.

Whalen's family declined an interview request through their lawyer, Brian Murphy.

"It's very difficult for them," Murphy said.

"They relive the loss. They just feel it's something they need to do to shine a spotlight on what happened and to get some justice."

The province has said little publicly about what happened to Whalen, and news releases about his death haven't described what led to Whalen's need for medical attention or how he died.

CBC 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."

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

Murphy said Whalen was a loving son who was close to his parents. In his obituary, his family remembered him as someone who enjoyed working out at the gym, drawing, barbering for himself and his friends, and spending time with friends and family.