ᒪᒃᑯᑦᑐᑦ ᐃᖅᑲᖅᑐᖅᑕᐅᕕᖓ ᓄᓇᕘᒥ

Inulrammiit Maligaliurvikmi Apiqhuidjutingit Nunavunmi

YOUTH JUSTICE COURT OF NUNAVUT

Tribunal de la jeunesse de Nunavut

Citation: R. v. SP, 2014 YJCN 01

Date: 20141224

Docket: 07-12Y-92; 07-12I-94; 08-14Y-66; 08-14-281

Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: S.P. ________________________________________________________________________

Before: The Honourable Madam Justice Cooper

Counsel (Crown): A. Dion

Counsel (Accused): S. Charlesworth

Location Heard: Iqaluit, Nunavut

Date Heard: December 4 & 10, 2014

Matters: Application to transfer offender to an adult facility pursuant

to Youth Criminal Justice Act, SC 2002, c 1, s 30(4)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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DISCLAIMER PAGE

Anonymized Judgment:

This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties.

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I. BACKGROUND [1] SP is an 18 year old who has been detained at the

Isumaqsunngittukkuvik Youth Centre (hereinafter referred to as the Youth Centre) since December 3, 2012, following his arrest for murder. His trial on the murder charge is scheduled for March, 2015. He also has other pending charges unrelated to the murder charge.

II. APPLICATIONS [2] SP is currently on a remand warrant that permits him to be housed at

the Baffin Correctional Centre [BCC] during the day. The reasons for this will become clear in the course of this decision.

[3] The Youth Centre has brought an application pursuant to section 30

of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], to have SP transferred to an adult facility on a full time basis.

[4] Counsel on behalf of SP have brought a motion to have the remand

warrant amended so that SP can no longer be housed at BCC during the day. They are seeking to have him detained full time at the Youth Centre.

III. THE LAW

[5] The first issue dealt with was the nature of the hearing and the

procedure that would be followed. Counsel both submitted that the role of the Crown was to put the record of the youth before the Court, not to advocate a position (see: R v SDF, 2007 ABPC 103, 415 AR 367 [S.D.F.]).

[6] The Court and the participants were in a somewhat difficult position. The Territorial Director of Corrections was represented by the Case Program Manager of the Youth Centre. Counsel for SP filed an affidavit of the psychologist from BCC, who appeared in court to be cross-examined on his affidavit. The Case Program Manager is not legally trained and he also works closely with the psychologist. Crown counsel offered to undertake the cross-examination and I thank him for his assistance in this regard. It is not clear to me why the Territorial Director did not have counsel from the Department of Justice to assist on the application.

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[7] Section 30 of the YCJA states:

(1) Subject to subsection (7), a young person who is arrested and

detained prior to being sentenced, or who is detained in accordance

with a warrant issued under subsection 59(6) (compelling appearance

for review of sentence), shall be detained in any place of temporary

detention that may be designated by the lieutenant governor in

council of the province or his or her delegate or in a place within a

class of places so designated.

…

(4) When a young person is detained under subsection (1), the youth

justice court may, on application of the provincial director made at any

time after the young person attains the age of eighteen years, after

giving the young person an opportunity to be heard, authorize the

provincial director to direct, despite subsection (3), that the young

person be temporarily detained in a provincial correctional facility for

adults, if the court considers it to be in the best interests of the young

person or in the public interest.

[8] The power to direct a young person be detained in an adult facility is

to be viewed as highly exceptional and is to be used sparingly (R v K(K), 2011 ONCJ 592, 98 WCB (2d) 563 [K.(K.)]).

[9] Clearly, s. 30 of the YCJA requires the court to balance the interests

of the youth in question and the broader public interest. [10] In K. (K.), there was agreement that a transfer to an adult facility

would be detrimental to the mental health of the youth in question and, therefore, not in his best interests. Nonetheless the court directed a transfer, stating that the youth's continued aggression towards others could no longer be addressed in the youth facility.

[11] In S.D.F., the court considered the interests of both the residents of

the youth facility and the staff in determining that a transfer to an adult facility was in the public interest.

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IV. ANALYSIS [12] I was provided with a large volume of material from the Youth Centre

regarding SP, including progress reports, behavioural reports, and a psychiatric report.

[13] SP's history with the court is as follows:

Charge Date Charges Sentence March 8, 2011 convicted of break & enter 6 months’

probation

Nov. 23, 2012 -break & enter -theft over $5,000 -mischief

pending

Dec. 1, 2012 -first degree murder -break & enter to dwelling -breach of undertaking

trial set March, 2014

Feb. 11, 2014 -assault on Aug. 25, 2013 -utter threats on Aug. 25, 2013 -assault PO on Nov. 26, 2013 -assault PO on Nov. 30, 2013 -assault PO on Dec. 26, 2013 -utter threats on Dec. 26, 2013

pending

June 5, 2014 convicted of assault, offence date of May 20, 2014

1 day jail, 12 months’ probation

June 10, 2014 breach of court order on June 1, 2014 (the date of the court order which was allegedly breached appears to be in error. Based on the materials and submissions the court order allegedly breached was the probation order issued on June 5, 2014)

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[14] A review of the materials from the Youth Centre portrays a deeply troubled and angry young man. The records are replete with incidents of disrespect, aggression, bullying, and threatening. They are also replete with incidents of self-harm and self-loathing. Since SP's remand in December of 2012, there have been over 75 incidents of one type or another.

[15] The records also indicate that SP has not made any progress during his time at the Youth Centre. Behavioural modification programs have been unsuccessful. Programing has been offered, but refused. In fact, not only has SP refused programming, he has been so disruptive in the course of doing so that programs and classes for other residents have had to be shut down on occasion.

[16] In the spring of 2014, the Youth Centre found itself in the difficult situation of housing both SP and a young person who was to be a witness for the prosecution in the murder charge against SP. In May of 2014, SP plead guilty to an assault on that young person and was sentenced to one day in jail and 12 months’ probation.

[17] A term of the probation order was that he have no contact with the victim of the assault. It is alleged that within weeks of being placed on that probation order he breached it by yelling at the victim of the assault “F____you, you're afraid of me, I'm going to get you”. He was charged with breaching the probation order and that charge is pending before the courts. The victim of the assault is no longer at the Youth Centre.

[18] In July of 2014, SP came before the Court on an application by the Youth Centre to have him detained at an adult facility. It was submitted that this would allow the Youth Centre to ensure that the non-contact term of the probation order was complied with and to allow SP greater privileges. At that time, SP was being kept in 23 hour lock up, both to ensure there was no contact with the victim of the assault and also because of general behavioural issues.

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[19] An agreement was worked out between the Youth Centre and BCC whereby SP would spend his days, from 9 a.m. to 9 p.m., at BCC and his nights at the Youth Centre. Counsel agreed to the arrangement and the Remand Warrant was amended to facilitate the arrangement. It was understood that SP's time at BCC would be spent in a mental health unit called the Katak Unit. According to the psychologist at BCC, as SP became more comfortable at BCC his behaviour escalated and he began to bully other, vulnerable, inmates in the Katak Unit. This resulted in SP being placed in behavioural segregation, some of which had to be served at the Youth Centre due to space issues at BCC.

[20] Other residents in the Youth Centre have reported being pressured by SP to smuggle contraband into the facility, purportedly because SP wanted to take the contraband with him to BCC.

[21] Counsel for SP argues that since the victim of the May 20, 2014 assault is no longer at the Youth Centre there is no longer any need to keep SP out of the Youth Centre. Counsel highlighted the lower staff to inmate ratio at the Youth Centre as opposed to BCC and submitted that this allows for more attention to be paid to the particular needs and issues of SP.

[22] On behalf of the Youth Centre, it is submitted that behavioural issues with SP were present both before and after the time the victim of the assault was at the facility. The facility has some very young residents (14-15 years old) and female residents who are particularly vulnerable. It is submitted that because the building itself is quite small, even when SP is in segregation he can be heard and this is often upsetting for the other residents. SP is moved only in the presence of two staff members. Because the staff numbers are low, this requires programing for other residents to be shut down if SP must be moved. The focus of the Youth Centre is on programing. It houses remand, open, and closed custody offenders and does not have the capacity to separate them according to security needs. Also, the staff are not trained to deal with violent residents in the same way that staff at BCC are.

[23] While at the Youth Centre, SP is spending most of his time in segregation. It is acknowledged that over the long term this is sure to negatively impact on his mental health. Indeed, this was the concern that led to the arrangement currently in place whereby he would be housed at BCC during the day.

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[24] I appreciate the position of Counsel on behalf of SP that there may be other remedies available to SP if he is in segregation or solitary for an extended period. However, the infrastructure, staffing, and programming limitations of the Youth Centre cannot be ignored and must be considered in relation to what is available at BCC.

[25] The psychologist from BCC filed an affidavit and gave viva voce evidence. He indicated that the Katak Unit was made available to SP because of concerns of his deteriorating mental health, likely due to extended periods of isolation. Unfortunately, due to his behaviour in the Katak Unit, SP has sometimes been put in segregation while there as well. The psychologist testified that extended periods of isolation will have a negative effect on SP's mental health. He also testified that if other residents at the Youth Centre are exposed long term to his bullying and aggressive behaviour then this will have a negative impact on their mental health.

[26] During the hearing there was discussion about the situation at BCC and the Youth Centre. On the day of the hearing there had been an incident at BCC which resulted in the institution being locked down and several inmates being held at Royal Canadian Mounted Police cells. It was expected that several inmates would be transferred south and the lockdown was for an indeterminate period of time. The Katak Unit had been shut down. In contrast, the Youth Centre had few residents at that time.

[27] The matter was adjourned so that the possibility of transferring SP to a youth facility out of jurisdiction could be canvassed. When the hearing resumed I was advised that such arrangements could not be made. By that time the situations at both the Youth Centre and BCC had changed. The Youth Centre had new residents, BCC was no longer in lockdown, and the Katak Unit was open. All of this is to say, the decision on such a transfer cannot be based on the situation as it exists on any given day as the situation is ever changing.

[28] If there was anything positive to be said about SP's circumstances, it was that while at the Katak Unit he does attend programming, including school. This is in contrast to his non-attendance at programming while at the Youth Centre. While there have been incidents at the Katak Unit, it seems that there has been a general progression to improved behaviour.

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[29] Concerns were expressed for the other inmates of the Katak Unit, as they tend to be vulnerable. However, based on the evidence before me it seems that BCC has greater options available for the movement and placement of inmates than does the Youth Centre.

[30] I am satisfied that the public interest, that being the safety and rehabilitation of the greater population of residents at the Youth Facility, supports the application by the Territorial Director to have SP transferred to an adult facility. I am also satisfied that such a transfer will have either no impact or a positive impact on the interests of SP.

V. CONCLUSION

[31] The application brought on behalf of SP to have him detained full time

at the Youth Centre is dismissed.

[32] The application by the Territorial Director to have SP transferred to an adult facility is granted.

[33] Given the time of year I grant the Territorial Director discretion to implement such a transfer at a time he or his delegate deems appropriate.

Dated at the City of Iqaluit this 24th day of December, 2014 ___________________ Justice S. Cooper Nunavut Court of Justice