R. v. B.P., 2017 NSPC 47

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA B.P. (Re), 2017 NSPC 47 Date: September 12, 2017 Docket: 2775823 Registry: Halifax IN THE MATTER OF AN APPLICATION by the Provincial Director to transfer B.P. to a provincial correctional facility for adults pursuant to section 92(1) of the Youth Criminal Justice Act RESTRICTION ON PUBLICATION:

section 110 YCJA DECISION Judge: The Honourable Judge Anne S. Derrick Heard: May 1, 2, 3, and 18, August 8, 9, 10, 11, 14 and 15, 2017 Decision: September 12, 2017 Charges:

section 235 , Criminal Code Counsel: Peter Craig, Q.C., for the Crown Peter McVey, Q.C., for the Provincial Director Claire McNeil and Nathaniel Ng-Cornish, senior law student, for N.B.P. By the Court: Introduction [ 1 ] Two years ago, I sentenced N.B.P. to a seven-year Intensive Rehabilitative Custody and Supervision (IRCS) sentence for the second-degree murder of Daniel Pellerin. ( R. v. B.P., 2015 NSPC 38 ) The sentence is structured under the Youth Criminal Justice Act ( YCJA ) as four years in custody and, subject to section 104(1) - which can mean a continuation in custody - a placement under conditional supervision in the community in accordance with conditions provided for in

section 105 of the YCJA . [ 2 ] Mr. B.P.’s IRCS sentence was jointly recommended by Crown and Defence. The option of an IRCS sentence, provided for under section 42(2)(

r) of the Youth Criminal Justice Act (“ YCJA ”), was only possible because it had the support of the Provincial Director, a legislated requirement. [ 3 ] Mr. B.P. served his IRCS sentence at the Nova Scotia Youth Facility (“Waterville”) until September 4, 2016 when, following his participation in a violent incident in which youth workers were injured, he was transferred to the temporary housing unit for youth (“THU”) at the Northeast Nova Scotia Correctional Facility (“Northeast”), an adult correctional facility. He has been at Northeast ever since. [ 4 ] The Provincial Director does not want Mr.

B.P. going back to Waterville. He says it is not in the public interest for Mr. B.P. to return there to serve his IRCS sentence. He has brought a “transfer” application pursuant to section 92(1) of the YCJA submitting that Mr. B.P.’s high risk for violence can be more safely managed in one of the province’s adult correctional facilities. [ 5 ] An adult correctional facility is a provincial jail where offenders aged 18 and older serve sentences of less than two years. Custodial sentences of two years or more are served at federal penitentiaries. A federal penitentiary placement is not a consideration in Mr.

B.P.’s case as he has less than two years left in the custodial portion of his IRCS sentence. [ 6 ] Mr. B.P. opposes the Provincial Director’s application. He wants to go back to Waterville and continue his IRCS sentence there.

The Organization of these Reasons [ 7 ] These reasons are lengthy and it will be helpful if I provide a roadmap to them. I am going to provide a brief overview of the statutory test for a section 92(1) transfer application although I will be discussing it in more detail later. After I give a brief history of the twists and turns in these proceedings, I will be identifying the witnesses called by the Crown. It is the procedure in section 92(1) applications for the Crown to call the evidence and the Provincial Director to make final submissions. That is what happened here. [ 8 ] Mr.

Craig led a considerable amount of evidence, both from the witness box and in documentary form. I will be spending some time discussing what it revealed about Mr. B.P.’s time at Waterville and the administration of his IRCS sentence there. This will include the violent attack on staff that Mr. B.P. participated in on September 4, 2016. This is followed by a

section on Mr. B.P.’s placement at the Northeast Nova Scotia Correctional Facility and its impact on his IRCS sentence. I will then be discussing the current status of the IRCS’ Joint Treatment Plan and the psychiatric services aspect of Mr. B.P.’s IRCS sentence. And finally I will be returning to public interest test under section 92(1). [ 9 ] As I have mentioned, section 92(1) of the YCJA permits a young person’s transfer to an adult correctional centre if the Provincial Director establishes it is in the public interest test to do so. In examining this public interest standard, I will be discussing Mr.

B.P.’s IRCS sentence, the Provincial Director’s position on the public interest, cases dealt with under section 30(4) of the YCJA , and the issue of Mr. B.P.’s rehabilitation and the public interest. [ 10 ] The evidence called by the Crown on this application contextualizes this application. I will be reviewing it in some detail. Jurisdiction [ 11 ] Before going further, I want to briefly address the issue of my continued jurisdiction over this application. On July 14, 2017, I was appointed to the Nova Scotia Court of Appeal. At that time, I was seized with this case and two ongoing criminal trials.

Section 669.3 of the Criminal Code provided me with the jurisdiction to complete those trials, stating: “Where…a provincial court judge is conducting a trial and the…provincial court judge is appointed to another court, he or she continues to have jurisdiction in respect of the trial until its completion.” [ 12 ]

Section 140 of the Youth Criminal Justice Act enables the application of

section 669.3 of the Criminal Code to youth matters. It provides that: “Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons.” [ 13 ] The question raised by my appointment in this case was whether the section 92(1) application qualified as “a trial”. As soon as it was possible for me to do so, which was July 18, I raised with Mr. Craig, Mr. McVey and Ms. McNeil the question of whether, pursuant to

section 669.3 of the Criminal Code and

section 140 of the YCJA , I had jurisdiction to continue hearing this application, which included a motion for disclosure brought by Mr. B.P. [ 14 ] I want to thank all counsel for endeavouring at very short notice to address this unanticipated issue. I am particularly grateful to Mr. McVey who produced a very carefully-reasoned written submission in support of my having jurisdiction. Mr. McVey’s submissions satisfied me that the word “trial” enjoys a broad and contextualized meaning. It has no single meaning in the Criminal Code and its common-law

definitions have an ambit that captures this transfer application. I concluded, without reservation, that I retained the jurisdiction to continue to hear this application, an application that falls easily within the term “trial” under

section 669.3 of the Criminal Code . The Statutory Test for Transfer Under section 92(1) of the YCJA [ 15 ] Section 92(1) of the YCJA permits the transfer of a young person to a provincial correctional facility to serve the remainder of his or her sentence if the youth justice court considers a transfer "to be in the best interests of the young person or in the public interest." The burden of establishing that a transfer should be ordered lies on the Provincial Director on a balance of probabilities standard. [ 16 ] The test under section 92(1) is disjunctive.

The disjunctive test - “best interests of the young person or in the public interest” - is also found in section 30(4) of the YCJA which deals with the power of the Youth Justice Court to direct a young person who is detained in a youth facility pending trial to be detained in a provincial correctional facility for adults. There is some utility in examining the section 30(4) cases because reported section 92(1) cases are elusive. None were located by the parties to this application.

The only reported section 92(1) decision in Nova Scotia is my own from March 2017 – J.C. (Re), 2017 NSPC 14 . [ 17 ] The section 30(4) cases have decided the public interest issue on the basis of safeguarding the interests of other youth. ( Ontario (Ministry of Children and Youth Services) v. K.K., 2011 ONCJ 592 , para. 35 ) In R. v. S.P. , 2014 YCJN 1, the public interest, described as “the safety and rehabilitation of the greater population of residents at the Youth Facility” prevailed.

The Court’s finding that the transfer would have a neutral impact on S.P. appeared to be more of an observation than a factor. ( para. 30 ) [ 18 ] In S.D.F. (Re) , 2007 ABPC 103 , another pre-trial detention “transfer” case, the Court found that the young person’s “personal issues cannot override the need to consider the interests and safety” of staff and residents at the youth facility ( para. 72 ) and ordered the transfer “in the public interest.” ( para. 75 ) [ 19 ] A transfer application under section 92(1) does not involve a balancing of the public interest and the best interests of the young person.

A section 92(1) transfer can be ordered on either basis. I addressed this point in my decision on the disclosure application brought by Mr. B.P. in July 2017. (B.P.(N.) (Re), 2017 NSPC 41 ) In those reasons I said: [21] As in section 30(4) cases, the issue I will have to resolve in this section 92(1) application is whether it is in the public interest to transfer N.B.P. to a correctional facility for adults. N.B.P.’s opposition to the Provincial Director’s application indicates he regards a return to Waterville as the option that is in his best interests. But that view does not decide this application.

And section 92(1) does not direct me to decide the Provincial Director’s application on the basis of balancing the public interest and N.B.P.’s best interests. I am

directed by the YCJA to decide whether the transfer should occur because it is in the public interest. [ 20 ] I went on to hold that Mr. B.P.’s rehabilitation is a factor to be considered in assessing the public interest. I will discuss this further when I return to the issue of the public interest later in these reasons. A Brief History of the Current Proceedings [ 21 ] It is useful at this juncture to explain the history of these proceedings. Soon after being removed from Waterville, Mr. B.P. indicated he wanted to abandon the IRCS sentence and be voluntarily transferred to a federal penitentiary.

He ultimately initiated applications under section 92(1) of the YCJA (the transfer application) and section 94(1) (a sentence review) to accomplish this. In late December hearing dates were set for January 2017. The matter did not proceed due to Mr. B.P.’s then lawyer going on an emergency medical leave. New dates in early February turned out to be overly optimistic and mid-February dates were thwarted by winter blizzards that shut down the courthouse. Then, on February 15, Mr. B.P. withdrew his applications.

He had decided he wanted to return to Waterville and continue the IRCS sentence. [ 22 ] The Provincial Director had by mid-February joined Mr. B.P.’s transfer application. Mr. B.P.’s abandonment of the application left the Provincial Director as the sole applicant for an order to have Mr. B.P. serve his sentence in an adult correctional facility. Mr. B.P. asked that the application be adjourned while he pursued a habeas corpus application in Supreme Court challenging his continued confinement at Northeast. That application was dismissed but very soon thereafter Mr.

B.P.’s lawyer was appointed to the Provincial Court. This led to further delays in the transfer application which had not yet commenced to hear evidence. [ 23 ] Ms. McNeil saved these proceedings from being further delayed by taking over as Mr. B.P.’s lawyer at short notice. Dates for the hearing of evidence beginning on May 1 had been set in early April. Ms. McNeil sought an adjournment of the application in order to better prepare. I denied the request solely because I saw the urgent need to have the transfer application proceed as outweighing any other considerations. Mr.

B.P. was still housed at Northeast and was not receiving the intensive therapeutic treatment and intervention that had been identified as essential by the

section 34 psychological assessment prepared for his sentencing. [ 24 ] The four dates scheduled in May proved to be insufficient for completing the evidence. Additional dates had to be set for August as nothing earlier was feasible given everyone’s other obligations. [ 25 ] While this transfer application was getting airborne Mr. B.P. has been dealing with the legal fallout from his involvement in the September 4, 2016, assaults on staff.

He pleaded guilty in the Kentville Youth Justice Court to assaulting four Waterville youth workers and expects to be sentenced in October. ( Exhibit 30, Admissions ) [ 26 ] On March 16, 2017, Mr. B.P. assaulted a correctional worker at Northeast. Mr. B.P., who turned 18 in December 2016, was charged as an adult for the assault. I do not know the status of that charge. Mr. Craig and Ms. McNeil are not involved in either the Waterville or the Northeast assault cases. Witnesses called by the Crown [ 27 ] Mr. Craig called seven witnesses on the transfer application.

Two of them, James Nickerson and Ralph Hayden, work at Waterville. John Landry is Deputy Superintendent at Northeast. The four additional witnesses work for the IWK – Roz MacKinnon, the Manager of Youth Forensic Services at the IWK; Dr. Simeon Hanson, a forensic psychologist; Dr. Jose Mejia, a forensic psychiatrist with a sub-speciality in child and adolescent psychiatry; and Heidi Rodgers, the forensic complex case manager. [ 28 ] The Waterville and the IWK witnesses have all had experience with youth serving IRCS sentences. None of them has ever encountered a case as complex as Mr. B.P.’s.

James Nickerson noted that although he has been involved with six IRCS sentences, Mr. B.P. is one of the youngest, if not the youngest, young person he has dealt with on an IRCS sentence. He testified that Mr. B.P. was “probably the most high-risk youth we’ve ever dealt with” at Waterville. He says they knew that before September 4, from the

section 34 psychological assessment. ( Exhibit 30 ) [ 29 ] The experience of Ralph Hayden, the Deputy Superintendent of Programs at Waterville, with IRCS sentences is considerable. Mr. Hayden has been involved in 90 percent of the IRCS sentences imposed in Nova Scotia since 2005/2006 or perhaps earlier. He had a supervisory responsibility for the administration of Mr. B.P.’s IRCS sentence and is familiar with Mr. B.P. from his involvement in monthly IRCS sentence case conferences. He testified that Mr. B.P.’s was probably the most complex IRCS case he has dealt with.

He observed that IRCS sentences are “always challenging” but Mr. B.P.’s was “especially so.” [ 30 ] Mr. B.P.’s IRCS sentence was Dr. Hanson’s inaugural one. He described it as the “most intensive IRCS supervision the IWK has ever done” under the “most intensive joint Treatment Plan” ever created with Corrections. [ 31 ] Heidi Rodgers, who has the most experience with IRCS sentences of anyone on the IWK Treatment Team, acknowledged that she has never been involved in an IRCS sentence where the young person has been charged with two separate assaults on staff.

Documentation Entered into Evidence [ 32 ] Reports entered as evidence were contributed to or authored by Waterville staff and IWK Treatment Team members, notably Heidi Rodgers. [ 33 ] Reports were prepared for the period from Mr.

B.P.’s first sentence review in December 2015 to the end of August 2016: a Waterville Progress Report for Court (IRCS) dated December 11, 2015 ( Exhibit 30 ); a report prepared by Heidi Rodgers dated December 22, 2015 ( Exhibit 30 ); a 13-page Waterville Progress Report dated June 10, 2016 ( Exhibit 1 ); a 7-page Waterville Progress Report dated June 10, 2016 ( Exhibit 8 ); and a report by Heidi Rodgers dated July 13, 2016 ( Exhibit 22 ). Also in evidence is an email chain dated August 18, 2016. ( Exhibit 26 ).

[ 34 ] Documentation prepared during the year Mr. B.P. has spent at Northeast was also entered as evidence: an email dated October 19, 2016, from Dr. Hanson ( Exhibit 14 ); an email dated October 21, 2016, from Deputy Superintendent Landry ( Exhibit 19 ); an email chain dated November 2, 2016, ( Exhibit 23 ); an email dated February 23, 2017, from Dr.

Hanson ( Exhibit 13 ); a Progress Report dated March 31, 2017 ( Exhibit 15 ); a report by Heidi Rodgers dated March 31, 2017 ( Exhibit 27 ); a letter to the Court dated June 21, 2017, from Heidi Rodgers ( Exhibit 28 ); and a report by Heidi Rodgers dated July 14, 2017 ( Exhibit 29 ). Education, Programming, and Working with the Treatment Team – The First Sentence Review [ 35 ] James Nickerson has worked at Waterville since it opened in the late 1980’s. He is familiar with Mr.

B.P. through his roles as a programme worker and also in his capacity as Acting Deputy Superintendent on two occasions when Ralph Hayden was off work. [ 36 ] Mr. Nickerson was involved in the preparation of the Joint Corrections Plan - also known as the Joint Treatment Plan - for Mr. B.P.’s sentencing in June 2015. ( Exhibit 7 ) Ms. Rodgers testified that the Plan was to be used to guide “the interventions with [Mr. B.P.] during the course of his sentence.” She noted the Plan would have been reviewed with Mr. B.P. prior to sentencing and he would have agreed to everything in it. [ 37 ] Mr.

Nickerson testified that at times Mr. B.P. was motivated while at Waterville and at times he was not. At times his behaviour was good and at other times “not so good.” Mr. Nickerson did not seem to regard this as remarkable: he observed that youth on long IRCS sentences can find it difficult to stay focused and committed during a demanding sentence. Ms. Rodgers made the same comment in her evidence, that it is not uncommon for youth on IRCS sentences to say they don’t want to continue.

She testified that she doesn’t think she has worked with any IRCS youth who hasn’t had that reaction. [ 38 ] The earliest reports relating to Mr. B.P.’s IRCS sentence are from December 2015, prepared for his first sentence review. They indicated that Mr. B.P. was doing well in the classroom, in programming, and at his job. For example, it was noted that Mr. B.P. “takes pride in doing his [school] work to the best of his ability, even if it takes longer to complete…His attitude around education is positive. He respects the rules of the classroom and values learning.

He has a goal to achieve his high school diploma. Behaviourally, [Mr. B.P.] sometimes requires direction to get started but has recently become more of a role model to other students. Overall, [Mr. B.P.] poses no issues in the classroom and teachers are happy with his efforts and results.” It was also noted that Mr. B.P. “has a great work ethic for his age and takes pride in being meticulous with his efforts.” ( Exhibit 30, Progress Report for Court (IRCS) dated December 11, 2015, page 3 ) [ 39 ] The Report from December 11, 2015, described Mr.

B.P. as actively engaged in his programming and meeting with the members of his Treatment Team. He took

part in many recreational programs and was doing “an exceptional job with his clean-up duties on the unit. No direct supervision is required because he thoroughly completes all assigned tasks.” ( Exhibit 30, Progress Report for Court (IRCS) dated December 11, 2015, page 3 ) [ 40 ] The December 11, 2015, Waterville report ended with these illuminating comments: [Mr. B.P.] struggles with the criminal belief around “ratting” and the mistrust of authority figures. [Mr. B.P.] often perceives his living environment as having threats or people who disrespect him.

It is important for him to continue developing supportive relationships both within the facility and in his community. He will need to focus on managing his frustrations through effort and strategies provided by NSYF [Waterville] staff and the IWK Treatment Team rather than focus on his desire to resolve conflict and anger with aggression that has been learned over the course of his life…The Cottage 2 NSYF staff will continue to challenge [Mr. B.P.] to re-evaluate his pro- criminal values during daily interactions.

The Joint Treatment Plan formulated by IWK and Justice is in the Phase II: Intensive Treatment and there is expectations that [Mr. B.P.] will struggle with being challenged over the next couple of years…( Exhibit 30, Progress Report for Court (IRCS) dated December 11, 2015, page 8 ) [ 41 ] Ms. Rodgers’ first report dated December 22, 2015, indicated that her role was “to ensure that therapeutic services are appropriately identified and coordinated to meet [Mr. B.P.’s] clinical needs.” She described Mr.

B.P. as “an engaging young person who has demonstrated a commitment to working with his Treatment Team as part of his IRCS sentence.” She said he “demonstrates a willingness to participate in treatment, education, and programming in an effort to make prosocial adjustments to his life.” ( Exhibit 30, Progress Report dated December 22, 2015, page 5 ) Ms. Rodgers testified that in this period, “things were going relatively well.” Mr. B.P. was engaged in the Treatment Plan and meeting with the service providers. [ 42 ] Service providers included two therapists – Dr.

Hanson and a clinical social worker because of the complex nature of Mr. B.P.’s issues, Ms. Rodgers and Mr. B.P.’s mentor, Troy Allen. Ms. Rodgers described Mr. Allen’s role as supporting the Treatment Team’s targeting of Mr. B.P.’s “procriminal and antisocial values, attitudes and beliefs.” She reported Mr. Allen’s description of Mr. B.P. as “honest, engaging and forthcoming.” ( Exhibit 30, Progress Report dated December 22, 2015, page 6 ) [ 43 ] Mr.

B.P. was also participating in weekly substance abuse work on his unit and meeting with an IWK social worker, Erika Wilson, for weekly sessions addressing substance abuse. Mr. B.P. attended these sessions from October 2015 to early December and was described as “fully engaged.” Ms. Rodgers noted that Mr.

B.P., citing the level of intervention provided by various members of the Treatment Team and his participation in the substance abuse group work on his unit, asked to delay individual substance abuse work until he began to have reintegration leaves from Waterville. ( Exhibit 30, Progress Report dated December 22, 2015, page 7 ) [ 44 ] Ms. Rodgers concluded her December 22, 2015, report by noting the complexity of Mr. B.P.’s treatment needs and indicating that the team expected progress to be “gradual.” ( Exhibit 30, Progress Report dated December 22, 2015, page 7 ) [ 45 ] Dr.

Hanson recalls his therapeutic involvement with Mr. B.P. beginning in December 2016/January 2017. He used a structured, evidence-based cognitive approach. He testified there was some indication from Mr. B.P. that he wanted a different life, one not characterized by violence and criminality. In Dr. Hanson’s opinion, Mr. B.P.’s institutional behaviour signaled something different. Dr. Hanson noted that Mr. B.P. presented with very entrenched criminalized values and testified that Mr. B.P. recognized he was “very good at getting respect through the use of violence, threats and intimidation”.

He saw him transferring to Waterville the bullying, violent and manipulative behaviours he utilized in the community. It was Dr. Hanson’s evidence that Mr. B.P. was “building a reputation at

Waterville, climbing up the ranks to be the kingpin.” [ 46 ] Dr. Hanson acknowledged that Mr. B.P. engages “particularly well with therapy.” He attended every session and was “fairly honest about his feelings and his attitudes toward violence.” It was Dr. Hanson’s view that up to February 2016, Mr. B.P. was making progress in therapy. He says that Mr. B.P. made “a significant therapeutic step” by grasping the link between his violent thoughts and his behaviours. But progress, Dr. Hanson notes, is making a change in behaviour. Despite Mr.

B.P.’s greater understanding of the linkage between his violent thoughts and his behaviours, he continued to “actively embrace violence as a way to resolve problems” as evidenced by the Level III discipline sanctions he received. [ 47 ] Dr. Hanson would use CCTV footage of violent incidents perpetrated by Mr. B.P. in therapy with him. He says it was productive to use “visuals” with Mr. B.P. because he has a learning disability. [ 48 ] In the spring of 2016 therapy with Mr. B.P. was still a process of building rapport and trust and exploring the thoughts, values and attitudes that were driving his behaviours.

Education, Programming, and Working with the Treatment Team – The Second Sentence Review [ 49 ] Reports from Waterville and Ms. Rodgers were prepared for the next sentence review held on July 13, 2016. There were three reports: a 13-page Progress Report prepared by Waterville and dated June 10, 2016 ( Exhibit 1 ); a 7-page Progress Report for Court (IRCS) dated June 10, 2016 ( Exhibit 8 ); and Ms. Rodgers’ report dated July 7, 2016. ( Exhibit 22 ) [ 50 ] Mr. Nickerson described the June 10, 2016, report ( Exhibit 8 ) as quite current at the time and fairly positive.

The fact that Erika Wilson, the addictions counsellor, took another position and was not replaced, which ended Mr. B.P.’s involvement in that service, was outside of his control. [ 51 ] It was Mr. Nickerson’s evidence that Mr. B.P. formed great relationships with the majority of the staff in Cottage 2A where he was living. There were some staff he was combative with and didn’t like as much. He had some relationships with 2B staff but those were limited as he was housed in 2A. [ 52 ] The June 10, 2016, Progress Report noted that Mr.

B.P. remained very involved in the recreation programming at Waterville and music therapy. ( Exhibit 8, page 3 ) He was actively engaged in Restorative Practices on his unit and as indicated by the June 10, 2016, Report, used restorative practices to reflect on his behaviour. He took a leadership role, making a valuable contribution to the restorative practices circles and wanting to participate in and achieve group goals. ( Exhibit 8, pages 3 – 4; Exhibit 1, page 6) [ 53 ] By the time of the July 2016 sentence review, Mr. B.P.’s commitment to his education was falling off.

Attendance and motivation had become issues. He indicated at a case conference that he wanted to work “as his own pace” and stated that he had no intention of completing his high school requirements once leaving Waterville if he had not obtained his diploma by then. The authors of the Waterville Progress Report, Mr. B.P.’s youth worker, David McDowell, his Unit Supervisor, Paul Getson, and Ralph Hayden, Deputy Superintendent of Programs, expressed surprise at Mr. B.P’s position, noting: “This change of thought appears puzzling because up until this point in time, [Mr.

B.P.] achieved impressive grades in his courses and was very focused on his education plan.” ( Exhibit 1, page 4 ) [ 54 ] Mr. Nickerson testified that Mr. B.P. had become overwhelmed by the demands of the IRCS sentence which led to him wanting to work “at his own pace.” This is noted in the 13-page Waterville Progress Report of June 10, 2016. The Report observed that in April 2016 Mr. B.P. was “overwhelmed by his educational course load and the excessive meetings with the IRCS Treatment Team.” It was indicated that “After things were scaled back with restructuring, [Mr.

B.P.] was more at ease and back to being himself.” ( Exhibit 1, page 11 ) [ 55 ] Up to the July 2016 sentence review, Mr. B.P. had continued to perform very well in a wide range of maintenance and janitorial duties. He was described as completing all assignments “in a thorough manner regardless of who is supervising him.” Mr. Nickerson testified that Mr. B.P. had a great relationship with the maintenance supervisor.

He had “a great work ethic for his age.” Staff described him as “respectful, very focused and always wanting to finish what he has started.” He was credited with also doing “an exceptional job with his own unit clean-up duties and seldom requires direct supervision, clearly understanding staff expectations.” ( Exhibit 1, page 4 ) [ 56 ] Mr. Nickerson testified that Mr. B.P. took pride in the state of his room and when that slipped in the summer of 2016, staff knew things were not going well for him. Also that summer, as Mr. Nickerson put it, “things started to drift” for Mr.

B.P., even in relation to his employment responsibilities. [ 57 ] As far as programming is concerned, Mr. Nickerson testified there are two components – earning a certificate and putting what has been learned into practice. The putting-into-practice is the harder part. Mr. B.P. would articulate the principles he had learned but then he would also relapse. Mr. Nickerson agreed this is common in IRCS’ cases. [ 58 ] Mr. Nickerson agreed that in June 2016 Mr. B.P. was engaged in his sentence, “very much so.” But Mr. Nickerson indicated that it was up and down: Mr.

B.P would show improvement and then his progress would “turn on a dime and you wouldn’t know what was going to happen.” The Challenges of a Long, Demanding Sentence – Mr. B.P. Loses Traction [ 59 ] Mr. Nickerson testified that around May 2016, he and Mr. B.P. had a conversation because Mr. B.P. seemed to be “struggling” with the IRCS sentence. Mr. Nickerson told Mr. B.P. to let them know if he no longer wanted to be under an IRCS sentence. Dr. Hanson testified that when Mr. B.P. was wanting the number of therapy sessions reduced, he knew “there were problems then.” [ 60 ] In mid-June 2016, Dr.

Hanson contacted Mr. Nickerson by email to indicate concerns about Mr. B.P. becoming rigid and entrenched and his escalating risk. Waterville staff had noticed this as well. These concerns precipitated meetings of Corrections and the IWK. At the three meetings, which Mr. Nickerson attended, there were discussions about what changes had been observed and what the

participants thought should happen. [ 61 ] In her report for the July 13, 2016, sentence review, Ms. Rodgers was indicating a decline in Mr. B.P.’s motivation “as it relates to his joint treatment plan…” She described this as “evidenced by a decline in participation in education as well as resistance to challenging and modifying criminally entrenched thoughts, attitudes and values.” Gains by Mr. B.P. were seen by the Treatment Team as “modest” and Ms. Rodgers noted that the focus remained on “whether [Mr.

B.P.] demonstrates behavioural changes that are reflective of a change in thinking which are guided by prosocial rather than antisocial choices.” ( Exhibit 22, page 4 ) She testified that in the summer of 2016 Mr. B.P. was showing some reluctance about working toward the goals that had been identified by the Team although she says it is not unusual for high-risk youth to have motivation issues around being pro-social rather than pro-criminal. [ 62 ] Ms. Rodgers’ July report includes observations from Dr. Hanson that Mr.

B.P. was “engaging positively in the therapeutic process and being open and honest with respect to many aspects of his life.” Dr. Hanson is reported as noting that Mr. B.P. “continues to struggle in therapy with identifying alternatives to violence and…remains highly entrenched in procriminal values, attitudes and beliefs…” Mr. B.P. was described as “coming to terms with the length of his sentence” and “is considering whether he is committed to a future without crime.” ( Exhibit 22, page 5 ) [ 63 ] Ms. Rodgers concluded her report with the following comments: [Mr.

B.P.] presents as a high risk youth for reoffending. The complexity of historical and dynamic risk factors continues to pose challenges with respect to amenability to treatment and prognosis. The Treatment Team utilizes evidence based models for intervention which provide the most promising results for reducing recidivism and risk for violence. In addition to treatment interventions, members of [Mr.

B.P.’s] Justice team continue to provide a high degree of monitoring, supervision, and programming in an effort to reduce risk for general and violent reoffending while in custody and in consideration for release to the community. Despite recent questions with respect to his motivations, [Mr. B.P.] has indicated a continued commitment to the IRCS sentence and the joint treatment plan. ( Exhibit 22, page 7 ) [ 64 ] Ms. Rodgers proposed a return to Court for a six-month review of Mr. B.P.’s progress under his IRCS sentence. She said: “The team will request a

section 19 court conference should concerns of a more urgent nature arise as they relate to [Mr. B.P.’s] IRCS sentence and expectations outlined in the joint treatment plan.” ( Exhibit 22, page 7 ) Ms. Rodgers testified that she thought a further sentence review in six months could prove to be too far out and a

section 19 conference might expedite returning to court sooner. Mr. B.P.’s Institutional Behaviour and Security Risk in the First Year [ 65 ] Mr. B.P. received a number of Level III’s, the highest discipline infraction, throughout his time at Waterville although he went as many as four months with no incidents. Exhibit 6, a report dated December 14, 2016, lists at pages 8 to 15 all of Mr. B.P.’s behavioural incidents, including those that occurred prior to the imposition of the IRCS sentence. [ 66 ] On February 23, 2016, an Institutional Security Assessment Youth (“ISAY”) was prepared for Mr.

B.P. ( Exhibit 10 ) Every young person entering Waterville has an ISAY done. In January/February 2016 it was a new tool. A scoring of 9 or more is indicated to be “high.” Mr. B.P. was given a “Security Risk Classification” of “High” with a score of 14. [ 67 ] Mr.

B.P. earned a “high” classification based on the seriousness of his current offence (second degree murder), the number of his prior convictions, his young age – 14 – when he received his first custodial sentence, the number of his past custodial committals (more than 2), his institutional behaviour “in the past 3 years”, and his breach history “in the past 3 years.” [ 68 ] On July 10, 2015, Mr. B.P. assaulted a fellow resident at Waterville because he had robbed Mr. B.P.’s friend in the community. Mr. B.P. explained the assault by saying he had “needed to deal with this issue on his friend’s behalf.” (Mr.

B.P. was charged criminally for this assault and in October 2015 sentenced to a Custody and Supervision Order of 21 days.) [ 69 ] Exhibit 6 contains the following notation about this assault: “[Mr. B.P.] took full responsibility for his action but continually showed a pattern of resorting to violence as a way to deal with conflict…[He] indicated that he wanted to change his aggressive and violent outbursts but this would require a lot of strategies and support to move forward with the process…” ( Exhibit 6, page 9 ) [ 70 ] On August 25, 2015, Mr.

B.P. assaulted a peer whom he considered to be a friend “by striking him in the head several times.” He had been irritated by what he perceived was disrespectful conduct by the friend. It was a misperception; the friend had just been joking around. Exhibit 6 notes that upon returning to his unit (presumably after serving his disciplinary sanction), [Mr. B.P.] “did an excellent job expressing his thoughts in response to the Five

(5) Questions during a Restorative Practices Reintegration Circle. He and his peer seem to be able to put this incident behind them and could be observed interacting in a positive manner.” ( Exhibit 6, page 10 ) [ 71 ] Exhibit 6 remarks further: This youth continues to lack patience by getting easily agitated over little things and failing to learn from past mistakes. Even though this young man expresses the desire to be positive, this is a slow process, as he continued to allow his anger to get the best of him. ( page 10 ) [ 72 ] Dr. Hanson testified that an incident in November 2015 was an example of Mr.

B.P.’s inclination to import into Waterville the values that operate in an adult jail. Mr. B.P. received a Level III disciplinary sanction on November 14, 2015, for fighting with a peer over a seating arrangement in the dining room. Exhibit 6 describes the incident, stating: “[Mr. B.P.] felt that he must take care of the group dynamics with aggression and violence by striking the peer in the head rather than considering other options.” ( page 11 ) [ 73 ] It appears the animosity that drove Mr. B.P.’s violence toward the other youth dissipated. Exhibit 6 indicates: …[Mr.

B.P.] put aside his differences with this same peer and claimed he admired some of the qualities in this individual because he was actually a reflection of himself (standing up for his beliefs)…[He] continued to associate cooperatively with this peer and was even noted on November 19, 2015 giving this peer advice about how to care for his injured hand after returning from surgery…( page 11 )

[ 74 ] On February 17, 2016, there was an incident at Waterville that may have sown the seeds for the violence toward staff on September 4. Mr. Nickerson and Dr. Hanson have suggested there may be a link between the incidents. Mr. B.P. is described in Exhibit 6 as having become “agitated when a peer was being restrained by IIG [Institution Intervention Group] staff. He overheard his friend claim that he was having difficulty breathing and perceived this as him being in danger. When he was reassured that his peer would be fine, he did settle down.

Even though he still was a bit on edge concerning the incident, he was advised to focus on his actions and not be concerned about his peers…” ( Exhibit 6, page 13 ) [ 75 ] Mr. B.P.’s friend who was subject to restraint on February 17, 2016, was J.C. J.C. figured prominently in the violent September attack on youth workers and was the subject of a successful section 92(1) transfer application by the Provincial Director. ( J.C.(Re), 2017 NSPC 14 ) [ 76 ] Mr. Nickerson testified that Mr.

B.P. was “very angry with staff” after the incident involving J.C., requiring staff to spend days helping him “process that incident.” [ 77 ] Mr. B.P. received a Level III sanction on March 10, 2016, for assaulting another resident. It had been four months since his last Level III. He witnessed a 17-year old attempting to have phone contact with a 14-year old girl and expressed his disapproval. The peer’s reaction, a perceived threat, infuriated Mr. B.P. who struck him in the head with his fists. Mr.

B.P. was cooperative when IIG staff responded but expressed frustration with himself when he realized he had lost many of his privileges including, temporarily, his maintenance job. He told staff he was disappointed with himself for allowing the other youth “to push his buttons.” He explained that it bothered him when older boys took advantage of his 14-year old sister. Exhibit 6 indicates that Mr.

B.P. “chose to put aside his differences with this peer” but was wary as he suspected the youth might seek revenge. ( Exhibit 6, page 13 ) [ 78 ] There were two Level III disciplinary sanctions over the summer of 2016 – in June and August. On June 19, 2016, the disciplinary infraction was for fighting. Mr. B.P. instigated a fight with another resident during an outdoor recreation program. His target fought back. The opinion is expressed in Exhibit 6 that the target of Mr.

B.P.’s assault had been openly labelled a “rat” which “may have been a contributor to the confrontation.” The report of the incident continues: …After going through the restorative practices process, both these young men put side their differences and were witnessed by this writer interacting in a friendly manner, sitting at the same table and having a meal together. It appears that everything has been resolved but yet another example of [Mr B.P.] struggling with the concepts of disrespect and recognizing people’s differences. ( page 14 ) [ 79 ] Exhibit 6 notes there were warning signs in the late summer of 2016.

On August 15, Mr. B.P. was given an Level III sanction for being under the influence of hashish and having a “shank.” At the Institutional Review Board hearing Mr. B.P. revealed the shank had been intended for use on a youth but the “need” for the weapon had passed. Mr. B.P. ominously said in response to questioning about any other intended purpose for the weapon that “it would be used on a youth or whoever else comes his way.” Members of the Institutional Review Board viewed this as a potential intention to use the shank on both youth and staff. ( Exhibit 6, page 15 ) [ 80 ] In the last days of August, Mr.

B.P. was moody. He told staff he was angry that they were pushing him to complete his education. He was witnessed whispering with another youth on the upper level of his unit. This was reported as “a bit concerning.” The Response to Mr. B.P.’s Regression Over the Summer of 2016 [ 81 ] Meetings of the IWK Team and Waterville were held to discuss Mr. B.P. on July 5, 11 and August 31. Their purpose was “to review Mr. B.P.’s file and collaborate on next steps in an attempt to address what appeared to be a regression into rigid, pro-criminal thinking resulting in an increase in [Mr.

B.P.’s] risk level.” ( Exhibit 6, page 8 ) [ 82 ] Ms. Rodgers testified that the meetings included looking at what Mr. B.P.’s education program would look like when the school year resumed in September. There was consideration being given to making some adjustments to that and other components of the Joint Treatment Plan, refining it in consultation with Mr. B.P. by identifying what components were necessary and what components could be expanded or omitted. Dr.

Hanson says the Team was trying to “reboot” the IRCS sentence and was also “gathering evidence” to take back to court for input on where to go with it. [ 83 ] It was Dr. Hanson’s evidence that in the spring and summer of 2016, the Treatment Team was “struggling”. Mr. B.P. had disengaged from certain aspects of the Plan, for example, in relation to his education and seeking to reduce the number of therapy sessions. He was pulling back from the IRCS sentence “stating in therapy that he wanted a pro-criminal lifestyle” and “knew he was good at violence and crime.” [ 84 ] Dr. Hanson testified that Mr.

B.P. was saying he would kill again, that he enjoyed it and had no remorse. He told Dr. Hanson he had been sent by God to “clean up the streets.” [ 85 ] Dr. Hanson indicated the Team knew the effectiveness of the IRCS sentence was “a long shot.” He says they knew if it “broke down…he was capable of killing again.” [ 86 ] A draft Memorandum of Understanding was created by the Treatment Team identifying what areas were to be addressed and how. On two occasions Mr. Nickerson took it to discuss with Mr. B.P. Mr. Nickerson’s role was to review the MOU with Mr.

B.P. to see what things he could commit to or not commit to. [ 87 ] This process was still a work-in-progress by September 4, 2016. [ 88 ] At the August 31 meeting, there was discussion about Ms. Rodgers and Mr. Nickerson meeting with Wayne Horner in Policy and Planning at the provincial Department of Justice. Mr. Horner is the liaison with Ottawa in relation to IRCS funding for things that are outside the norm. Mr. Nickerson testified that had there been a meeting with Mr. Horner he and Ms. Rodgers would have asked if there was funding for additional staff, should that be needed.

The meeting to discuss additional funding had not taken place by September 4, 2016.

[ 89 ] One event that is not mentioned in any of the reports about Mr. B.P. is that in the summer of 2016 his grandfather, a significant support in his life, died. There is no discussion anywhere about how that was addressed or what effect that may have had on Mr. B.P.’s ability to cope. Asked about this in cross-examination, Dr. Hanson testified that he wouldn’t say the Team was processing this loss as it was not part of their treatment “remit” for Mr. B.P. Mr. B.P.’s Transfer from Cottage 2A to Cottage 2B in Late August 2016 [ 90 ] On August 31, 2016, Mr.

B.P. was transferred with the other residents of his unit, Cottage 2A, to Cottage 2B. The decision to combine the units was an operational decision made because of staffing shortages at that time. Their merging meant a total of five youth were now housed in 2B. [ 91 ] One of the incumbent 2B residents was J.C. who had been transferred there from 2A after the confrontation with staff on February 17. Like Mr. B.P., J.C. was considered high-risk. He viewed staff who had been involved on February 17 with “extreme hostility” and he and those staff did not want to have any continued association. [ 92 ] Mr.

Nickerson described the amalgamating of the two cottages as a temporary measure. He wanted the arrangement to be for the shortest time possible, viewing it as not ideal and not the best option for programming. He testified that staff and residents both preferred the status quo in terms of cottage assignment. He said combining youth can always increase risk and ideally, he would “always want to keep the units separate.” [ 93 ] Although Mr.

Nickerson does not recall anyone from the IWK making a specific comment at the August 31 meeting about the combining of 2A and 2B, he says that when they walked away from the meeting “we talked about it being for as little time as possible.” The September 4, 2016 Attack on Staff at Waterville [ 94 ] On September 4, 2016, Mr. B.P. participated with other Cottage 2B youths in perpetrating a violent assault on Waterville youth workers. It was the precipitating event for what has happened to him since then. It was also Mr. B.P.’s first assault against staff. Mr.

Nickerson described it as the most serious violent incident in the history of Waterville. [ 95 ] The best evidence about the assault on staff is found in the institutional CCTV footage ( Exhibits 2 and 4 ) and video from a hand- held camera ( Exhibit 5 ). Only the video from the hand-held camera has audio. [ 96 ] The admission of the three videos was contested. I admitted them into evidence on the basis that they are relevant to the issue of Mr. B.P.’s risk to staff and residents at Waterville.

It was the Provincial Director’s submission that the videos support the inference that the assault on the youth workers was premeditated, coordinated, unprovoked and vicious. [ 97 ] I have read the disciplinary report about the incident ( Exhibit 9 ). It does not add anything to my analysis of the events as depicted by the video footage. I was readily able to identify Mr. B.P. and J.C. on the video footage. The injuries I will describe come from Mr. Nickerson’s testimony. He also identified the youth workers involved and the two other youths seen in the videos. [ 98 ] I heard evidence about the incident from Dr.

Mejia who was asked by the then Superintendent at Waterville to view the videos and, having done so, formed an opinion about the nature of the attack on staff. Dr. Mejia testified that in his opinion the assault on staff was “very, very purposeful.” He described the attack as “very well executed” and “very well choreographed.” He based this on viewing the youths as knowing “where to go, what to do.” He said it was “very well structured, not a disorganized riot.” As I will be explaining, I do not entirely agree with Dr.

Mejia’s views. [ 99 ] The videos - the “upper level” CCTV footage ( Exhibit 4 ), the “lower level” CCTV footage ( Exhibit 2 ) and the hand-held video ( Exhibit 5 ) - show different perspectives on the incident. The CCTV “upper level” footage shows three Cottage 2B residents – J.C., Mr. B.P. and a third youth, J.W. - emerging at the same time from their rooms. ( Exhibit 4, 19:32:18 ) As Mr. Nickerson explained, they had to have achieved this by coordinating the opening of the locks. [ 100 ] The three young men mill about on the upper level and take turns trying to kick in the door of another resident, D.E.

After about a minute the door opens and D.E. comes out. ( Exhibit 4, 19:33:19 ) J.C. walks down and then up the few steps that separate the upper level from the lower level where the staff have been working and are now standing watching the youths. (And presumably directing them to go back to their rooms. Exhibit 9, the disciplinary report of the incident, indicates that Mr. B.P. “refused to return to his cell and began to threaten staff…”) [ 101 ] After J.C. goes back up to the upper level, Mr. B.P., J.W. and D.E. walk down the stairs with J.C. following them.

They all head straight for the work station and then the hallway out of the living unit. Mr. B.P. can be seen deliberately targeting youth worker Laura Newcombe with a straight-arm punch to the face. ( Exhibit 2, 19:33:37 ; Exhibit 4 ) He then heads off-screen. [ 102 ] A brawl breaks out in the hallway and spills back into the living unit. Mr. B.P. comes back into view and can be seen kicking the head of a youth worker, Anthony Thompson, who is grappling on the ground with one of the other youths. He then rounds on another worker, Fred Cumby, who seeks to intervene and appears to throw him into a table.

After this he dances around in a boxer’s stance while two workers attempt to contain him. ( Exhibit 2, 19:33:53 to 19:34:59 ) [ 103 ] At 19:35:00, J.C. reappears on the CCTV “lower level” footage and tears off his shirt. He is the first of the youths to pick up a chair. He throws it down on a youth worker. ( Exhibit 2, 19:35:20 ) Mr. B.P. grabs the chair and holds it by his side. ( Exhibit 2, 19:35:27 ) Four male youth workers are arranged in a semi-circle around J.C. and Mr. B.P. [ 104 ] The hand-held video captures the amplified state of J.C.’s agitation.

He is screaming at the youth workers and advancing on them. He is extremely worked up, angry and emotional. It is not possible to hear what he is saying but the youth workers call out his name, trying to re-focus him and calm him down. J.C. picks up a table and then a chair, throwing them at the workers. ( Exhibit 2, 19:36:06 ) Mr. B.P. watches this until a worker, Paul Roberts, charges J.C. at which point, Mr. B.P. attacks with the chair he has been holding. It is

clear he is going to the defence of J.C. All of this is captured in the first minute and a half of the hand-held video footage. ( Exhibit 5 ) [ 105 ] J.C.’s behaviour, captured by the CCTV and hand-held camera footage, shows him lashing out at the youth workers. It is reasonable to infer, given his emotionally-charged state, that he was acting out a grievance although I was unable to make out what he was yelling at the workers. [ 106 ] Mr. B.P. was J.C.’s right-hand man in the turbulent, violent minutes before the melee was subdued by the youth workers.

His loyalty for J.C. is evidenced in his actions and one very clear statement he can be heard yelling once he restrained on the floor: “[J.C.], I love you bro.” ( Exhibit 5, 5:59 seconds ) [ 107 ] Five minutes after leaving his room, Mr. B.P. had been wrestled to the floor by youth workers and the police were on their way. [ 108 ] The confrontation with staff does appear to have emerged from a plan. The simultaneous activation of their doors by J.C., Mr. B.P. and J.W. indicates this. Dr. Hanson testified there was trouble in the air the week before. He says Mr.

B.P. was asking other youth, “Are we in?” He says it is not a coincidence that the female youth worker Mr. B.P. attacked, that is, Ms. Newcombe, was the worker he felt had disrespected him on a previous occasion. [ 109 ] But I disagree with Dr. Mejia’s characterization of the attack on staff as “very well-choreographed” and “very well structured.” The confrontation may have been planned but the altercation itself was chaotic. And although Mr. B.P. made a targeted assault on Ms. Newcombe, his assaults on the three male youth workers were in the nature of violent interventions.

They were reactive and plainly propelled by Mr. B.P.’s alignment with J.C. and his grieva nces. [ 110 ] Dr. Mejia concluded from his viewing of the CCTV footage that Mr. B.P. was the leader of the attack on staff. I disagree. I did not see evidence that Mr. B.P. occupied this role. It was clear to me that J.C. was the instigator and kept the temperature of the situation boiling. [ 111 ] And while this does not change the fact that on September 4, 2016, Mr. B.P. participated in a violent assault on staff, injuring them, I find Mr. B.P.’s use of violence was consistent with Dr. Hanson’s

section 34 psychological assessment that Mr. B.P. had been “raised in an environment that normalised violence as a first means of dealing with difficult situations…He has entrenched pro-criminal beliefs, values and attitudes that promote and perpetuate violence and criminality…( Exhibit 30,

section 34 assessment, page 44 ) [ 112 ] Comments in the

section 34 assessment by the probation officer who worked with Mr. B.P. from 2012 resonated with me when I watched the video footage of the September 4 incident. She described Mr. B.P. as “very loyal” to his “buddies” and noted that “he’s been in a protective mode.” ( Exhibit 30,

section 34 assessment, page 29 ) It is also useful to recall what a school teacher said about Mr. B.P. in 2012, that he was “susceptible to the negative influence of peers with an over-developed sense of loyalty to those around him whom he considered friends.” ( Exhibit 30,

section 34 assessment, page 22 ) Mr. B.P. described himself in the

section 34 assessment as “not the guy that backs down from things.” ( Exhibit 30,

section 34 assessment, page 29 ) [ 113 ] During these proceedings in August, Mr. B.P. admitted in a signed “Admissions and Agreement of the Parties” document ( Exhibit 30 ) that he has pleaded guilty to three counts under

section 270.01(1) (

a) of the Criminal Code of assault causing bodily harm to three youth workers identified as “peace officers” in the charges, and one count under

section 270.01(1)(

b) of assault of a youth worker, identified as a “peace officer”, using a weapon, that being a chair. The injuries inflicted on the workers were serious: Ms. Newcombe’s nose was broken and she suffered a concussion. Mr. Thompson required surgery to his mouth using bone from his hip to re-anchor teeth. Mr. Cumby sustained facial injuries and a concussion. [ 114 ] Mr. B.P. is scheduled to be sentenced on October 19, 2017. I know that the Crown in the Kentville Youth Justice Court was seeking to have Mr. B.P. sentenced as an adult. I was not told whether that application is proceeding. [ 115 ] Mr.

Hayden confirmed on cross-examination that of the four youths involved in the September 4 incident, one was never removed from Waterville, one was brought back to Waterville, and the only eighteen-year-old, that being J.C., remained at the adult correctional facility to which he had been transferred after the incident. As we know, Mr. B.P. was transferred to the Northeast Nova Scotia Correctional Facility. The Transitional Holding Unit at Northeast [ 116 ] Deputy Superintendent Landry is deputy superintendent of operations at Northeast.

He has held this position since February 2017. [ 117 ] Since September 5, 2016, Mr. B.P. has been housed in the Transitional Holding Unit (“THU”) at Northeast. The THU is a designated youth facility. The rest of Northeast is adult male prisoners. [ 118 ] Mr. Landry testified that the transitional unit is called “transitional” because the people it houses are “in transition.” (In the Designations of Correctional Facilities Regulations under the provincial Correctional Services Act , S.N.S. 2005, c.37, the unit is designated “for temporarily housing youth offenders.”) Mr.

Landry testified that the THU is intended only for short-term stays by youth from Waterville who, for example, may be attending court in the area. He said that prior to Mr. B.P., three days was likely the longest stay by a youth in the unit. [ 119 ] Mr. Landry testified on cross-examination that it was Northeast’s intention to house Mr. B.P. “temporarily.” [ 120 ] Mr. B.P. is the only person in the THU which can house a total of four youth. He has a 6.5 foot x 14 foot cell and a 14 foot x 25 foot common area.

He has access to a tv, shower, Wii games, cards and books, “everything a regular living unit might have, only smaller.” [ 121 ] None of the correctional staff at Northeast have training to work with youth. Mr. Landry testified that there may be a few officers at the facility who previously worked in youth facilities.

[ 122 ] Northeast has no programming designed for youth. Neither Mr. Landry nor any staff he knows of have any experience dealing with a youth serving an IRCS sentence. [ 123 ] Mr. Landry confirmed that Mr. B.P. is separated from other adults and has had no contact with the other prisoners. He agreed that Mr. B.P. has been in conditions of social isolation throughout his stay at Northeast. Formal Risk Assessments of Mr. B.P. at Northeast [ 124 ] Two risk assessments were done for Mr. B.P. at Northeast. The first was done on September 5, 2016, when Mr.

B.P. was admitted, by Derek Fulton, Northeast’s Orientation and Assessment Officer. ( Exhibit 18 ) [ 125 ] Mr. Fulton classified Mr. B.P.’s risk as a “10”, the top end of medium with a note that the assault at Waterville bumped him to a “high”. Mr. Landry testified that this would have been Mr. Fulton’s call to make, that because of the serious assault at Waterville he decided to bump him from the high end of medium to a high. [ 126 ] This security classification requires that two correctional officers accompany Mr.

B.P. when he is moving in the institution. [ 127 ] A subsequent risk assessment, a YLS/CMI Report (Youth Level of Service/Case Management Inventory), was done on December 7, 2016. ( Exhibit 16 ) Mr. Landry said he believed it was a Waterville form and would have been completed by the case management team at Northeast. There is no question that the information recorded on the form came from Waterville reports on Mr. B.P. [ 128 ] The YLS/CMI Report listed Mr. B.P.’s risk level as both “high” and “very high.” His “state of change” was indicated to be: “Precontemplation – unaware, resistant.” The Conditions of Mr.

B.P.’s Confinement at Northeast [ 129 ] When Deputy Superintendent Landry testified on May 3, 2017, he was seeing Mr. B.P. twice a week, on Mondays and Fridays when he did inspections to ensure everyone is safe and the facility is running properly. It was his assumption that Mr. B.P. had contact with correctional officers every day when they go to check on him. Mr. Landry described Mr. B.P. as good-natured, “happy and content” and said that Mr. B.P. “seems to enjoy being in our facility.” He had not been expressing to Mr.

Landry a desire to go back to Waterville since saying in February 2017 he wanted to return. [ 130 ] Once Mr. B.P.’s time at Northeast started to stretch out, Mr. Landry expressed concerns to the Superintendent of Northeast, Paul Young, about him being housed in the THU. Mr. Landry identified Mr. B.P.’s confinement as amounting to segregation with Mr. B.P. having no interaction “with other peers.” [ 131 ] Mr. Landry’s memo to Mr.

Young was dated October 21, 2016, and in it he made the following comments: …With the current scrutiny on Segregation (state of mind not location), I will submit this young person has been in Segregation for his entire stay at our facility. The Facility has been directed to hold this young person (only one area designated for youths) during his time on sanctions for his actions, however that time has passed some time ago. We have been told every couple of days that this young person will be considered for transfer and we are temporarily holding him.

This young person is not getting treated as the other young persons are that were involved in this incident. We have a responsibility to treat this young person as all the others in custody and not hold him in an area considered Segregation…( Exhibit 19 ) [ 132 ] Mr. Landry testified it is likely the Options for Anger program was provided to Mr. B.P. after his memo to Mr. Young. Mr. Landry also tried to get Mr. B.P. Wii, cards, more games. He is not involved with Mr. B.P.’s IRCS sentence other than arranging visits. There have been no funding requests that he is aware of.

He thinks he would be aware of any such requests had they been made. [ 133 ] Mr. Landry remains concerned about Mr. B.P.’s isolation. He testified that Mr. B.P. has not had contact with peers and prisoners “unless he is yelling through a wall.” [ 134 ] Mr. Landry testified that he is aware that social isolation has mental health implications. He has read articles about this but has no training in the issue. [ 135 ] Mr. Landry confirmed he had heard that an adult offender serving an intermittent sentence had been communicating with Mr.

B.P. “through the walls” and encouraging him to be uncooperative with and mistrustful of staff. It was felt that the offender was being a bad influence on Mr. B.P. [ 136 ] Ms. Rodgers testified to her observations of Mr. B.P. at Northeast. She agreed with the description of him having been placed in “quite significant” social isolation. She noted that at Northeast Mr. B.P. had monthly no-contact visits with his father, and otherwise, visits only from the Treatment Team. She had never seen anything like the conditions Mr. B.P. is in. [ 137 ] Ms. Rodgers and other members of the Treatment Team visiting Mr.

B.P. noted a host of symptoms that indicate Mr. B.P. was having problems. He was experiencing difficulties with sleeping, a loss of appetite, sensitivity to light and sound, mood fluctuations – sometimes agitated, sometimes depressed, increased hostility, and an increase in paranoia and anxiety. Uncharacteristically, Mr. B.P. would at times appear particularly unkempt. [ 138 ] On occasion Mr. B.P. would take a while to adjust to visits from Team members. Ms. Rodgers noted that he would have to acclimatize to speaking with them, was not making eye contact and displayed “frigidity” and hostility.

He would vacillate, wanting to meet and then wanting to go back to his cell. Ms. Rodgers said that usually Mr. B.P. would “come around.” [ 139 ] Ms. Rodgers testified that she and other members of the Treatment Team noticed a significant change in Mr. B.P.’s presentation from before his transfer to Northeast. She characterized the change as “concerning.” What Mr. B.P. said would depend on his mood. He

would express anxiousness and uncertainty and feelings of hopelessness and helplessness. Ms. Rodgers says that at times Mr. B.P. was “fatigued” by his sentence and wanted to move on. At other times he was looking for a way out of his situation at Northeast. [ 140 ] It was Ms. Rodgers’ evidence that typically Mr. B.P. found his conditions at Northeast difficult. At other times, he would “shrug it off.” She testified that her last few visits with Mr. B.P. at Northeast caused her to be “increasingly concerned” about his physical and clinical presentation. Mr. B.P.’s Behaviour at Northeast [ 141 ] Mr.

Landry testified that Mr. B.P. had for the most part been well-behaved although there were instances of quick emotional outbursts if he felt disrespected. He noted that while Mr. B.P. was respectful, polite, cooperative and cordial in the Options to Anger program, facilitating staff still had some concerns about his ability to manage his anger. Mr. Landry agreed that Mr. B.P. needed more programming but more programming was not available. [ 142 ] On May 17, Mr. B.P. received a Level III for possession of contraband.

It is noted that he was cooperative during the search, admitted the substance was hashish but would not provide any information about how he obtained it. ( Exhibit 30, Report of Vanessa Ellis, Case Management Officer, Northeast Nova Scotia Correctional Facility ) The March 16, 2017 Assault [ 143 ] Mr. Landry viewed the CCTV footage of Mr. B.P.’s March 16, 2017, assault on a correctional officer. He testified that Mr. B.P. was in the large airing court, considered a privilege. There were two correctional officers in the indoor recreational area, one of whom was Dan Legere. Mr.

B.P. returned inside from the airing court, put his jacket down, took four steps and threw a right hand to Mr. Legere’s face and then delivered 3 to 4 additional punches. Just before that he and the officers had been relaxed with each other and joking and laughing. [ 144 ] Mr. Landry believes the incident was motivated by an interaction three weeks earlier between Mr. Legere and Mr. B.P. Mr. Legere had told Mr. B.P. to turn down his television in the THU and called in other officers when he refused. He filed a report expressing concerns that Mr. B.P. was becoming “too comfortable” in the THU. Mr.

Landry is aware of that characterization and does not agree with it. [ 145 ] I admitted the video footage of the incident as relevant evidence. The scene is viewed from two camera angles. They depict what was described by Mr. Landry in his evidence. Mr. B.P. strolled in from the airing court, was careful to close the door, put his jacket down and after taking a few steps in the direction of the two correctional workers, suddenly lunged at one of them, letting fly with a flurry of punches. He was quickly overpowered and subdued. In very short order more correctional officers rushed into the room and Mr.

B.P. was placed in restraints and walked out. [ 146 ] It does appear that Mr. B.P. deliberated on the assault and targeted the officer. [ 147 ] Mr. B.P. lost privileges after the March 16 incident. He temporarily but indefinitely lost the privilege of using the large airing court. He was confined to his cell for a total of 10 days. He was given 7 days and then 3 additional days were requested from head office and permitted. He also lost phone, visit and canteen privileges. The Delivery of Services to Mr. B.P. at Northeast Before March 16 , 2017 [ 148 ] When Mr.

B.P. was transferred to Northeast in September 2016 he was in the 15 th month of his IRCS sentence. The Joint Treatment Plan had contemplated 1-3 months in Phase I, the Stabilization Phase. Phase II, the Intensive Treatment Phase was scheduled for 2.5 – 3 years. ( Exhibit 7, page 6 ) The details of the intensive treatment take up five pages of the Plan. [ 149 ] Ralph Hayden confirmed that between October 2016 and February 2017 Waterville did not look at any other housing options for Mr. B.P. other than Northeast. The focus was on trying to continue his services while he was in the THU there. [ 150 ] Mr.

Hayden is aware that Mr. B.P. has been placed by himself with no other young people and no contact with other prisoners. Mr. Hayden acknowledged he was living in these conditions when he said he wanted to go to an adult facility. [ 151 ] Once Mr. B.P. was transferred to Northeast, Mr. Hayden kept his finger on the pulse of the IRCS sentence and passed on information and requests to Northeast concerning it. He had the power to make recommendations but no authority at Northeast to implement any services. He viewed Mr. B.P. as still requiring services.

He said that Corrections felt responsible for the IRCS plan “we had participated in creating.” He did not provide a copy of the Joint Corrections Plan to officials at Northeast. It was hoped the IWK clinicians could provide the necessary services. [ 152 ] Mr. Landry testified that when Mr. B.P. arrived at Northeast he was “very interested” in continuing with his IRCS sentence. Members of the clinical team went to Northeast to meet with Mr. B.P. in the THU. This included Troy Allen, Heidi Rodgers, Sarah Rafuse, Mr. B.P.’s clinical social worker, and Dr. Hanson. Mr.

Hayden relied on the IWK to report back to the Corrections side on how things were going. Wayne Horner approved funding for the team to travel to see Mr. B.P. [ 153 ] Ms. Rodgers testified that once Mr. B.P. was transferred to Northeast, the treatment goals changed. There were adjustments to the treatment targets and goals for all the treatment service providers. The Team focused more on supportive services for Mr. B.P. rather than his forensic needs. [ 154 ] Dr. Hanson’s focus with Mr. B.P. at Northeast was less on intensive treatment.

The emphasis was no longer on risk and risk reduction as it had been at Waterville. Dr. Hanson says he began functioning as a clinical therapist “trying to ensure the transition to [Northeast] was as smooth as possible.” He noted that Mr. B.P. “likes routine and structure” and that the transition from Waterville to Northeast was “a difficult time.”

[ 155 ] Around April 21, 2017, Roz MacKinnon prepared Exhibit 20, the

summary of services being provided to Mr. B.P. Referred to Exhibit 20 on cross-examination, Ms. MacKinnon agreed that Dr. Hanson’s services went from 2 – 3 times per week at Waterville to every 2 weeks at Northeast, Sarah Rafuse from twice per week to once every two weeks and Troy Allen from weekly visits to once every two weeks. [ 156 ] Ms. Rodgers testified that she was concerned about Mr. B.P.’s placement at Northeast and the Treatment Team’s ability to administer the IRCS sentence. She testified the Team found it hard to follow the Joint Treatment Plan after Mr. B.P. was transferred.

The Plan had become “dated” because it was developed with Mr. B.P.’s placement at Waterville in mind and he is no longer there. [ 157 ] In Ms. Rodgers’ March 31, 2017, Report for the Court she was explicit about the impact of the changes to service delivery to Mr. B.P.: “…given [Mr.

B.P.’s] placement change and limitations in the provision of treatment services, the team’s current treatment efforts are likely insufficient in effectively meeting the treatment needs identified in the joint treatment plan and are, rather, more supportive in nature.” ( Exhibit 15, page 3 ) Her July 14, 2017, Report to the Court was explicit about what the substantial reduction in, and refocusing of, clinical services meant for Mr. B.P.’s IRCS sentence: “As a result, [Mr. B.P.] has not been receiving the level of treatment that was recommended in the

section 34 assessment and joint treatment plan.” ( Exhibit 29, page 5 ) [ 158 ] The transfer of Mr. B.P. to Northeast for the past twelve months has meant that he has not been receiving the intensive therapeutic intervention that Dr. Hanson’s

section 34 assessment identified as essential and that was an embedded feature of Mr. B.P.’s IRCS sentence. The Delivery of Services to Mr. B.P. at Northeast After March 16, 2017 [ 159 ] After the March 16 assault, contact visits by the Treatment Team with Mr. B.P. in the THU were discontinued. The evidence appears to establish that ultimately it was Northeast’s decision to have the Treatment Team’s visits conducted through glass using a telephone. Mr.

Landry testified that Northeast had concerns about the safety of the Treatment Team and that the Superintendent, Paul Young, had said face-to-face meetings with Mr. B.P. were “not advisable.” And although Mr. Landry said the determination about how the Team should conduct their visits was left up to them, I find that Northeast had the final say. [ 160 ] In late March or early April 2017, Ms. MacKinnon and Mr. Hayden visited Northeast and provided Mr. B.P. with a copy of the Progress Report for the Court dated March 31, 2017. ( Exhibit 15 ) Mr.

Hayden testified that the purpose of the meeting was to indicate to Mr. B.P. they wanted the IRCS services to continue but due to safety concerns, changes would have to be implemented to their delivery. They felt it was best to leave the issues of what those changes should be up to Northeast. [ 161 ] The March 31 Progress Report authored by Mr. Hayden states that a new plan to continue clinical services “will need to be implemented to allow appropriate security measures to be put in place to reduce risks, while providing ongoing services.” ( Exhibit 15 ) [ 162 ] Mr.

Hayden acknowledged on cross-examination that at first the Treatment Team’s contact with Mr. B.P. was going to be suspended and then there was a negotiation undertaken for them to see Mr. B.P. in accordance with the security protocols of Northeast. Roz MacKinnon testified that, “We problem-solved with the institution about how to continue therapeutic support” as the therapeutic support was important for Mr. B.P. and his rehabilitation. Ms. MacKinnon said: “It’s the role of Correctional Services to keep staff and visitors safe and on that we defer.” [ 163 ] Mr.

Hayden testified that the glass partition/telephone arrangement for meetings with Mr. B.P. was not viewed by the IWK as the ideal set-up for delivering services. It was Ms. Rodgers’ evidence that from a therapeutic perspective it is helpful to meet face-to-face. Mr. B.P.’s Engagement with his Treatment Plan at Northeast [ 164 ] Vanessa Ellis, a Case Management Officer at Northeast, noted that Mr. B.P. had been “originally receptive” to his case plan at Northeast “and was following it without concern.” In December 2016, he completed an Options to Anger program one on one with Northeast program officers.

He also did a creative journaling program with the facility social worker and a program officer. However, since June 2017, Mr. B.P. “has been pulling back from staff and his case plan.” He refused offers to take the adult Substance Abuse Management program or First Aid program or the community library program. “The only thing he was open to was the possibility of a guitar program and puzzles to keep him busy.” He advised he just wanted to “chill” for a bit. Ms. Ellis noted that Mr.

B.P. was “polite and respectful in his interactions with staff, however he was not too interested in partaking in any new interventions in his case plan.” ( Exhibit 30, Vanessa Ellis, Case Management Officer, Northeast Nova Scotia Correctional Facility ) [ 165 ] Mr. B.P.’s lack of interest has included his education. He did a negligible amount of the school work forwarded from Waterville and turned down the offer of the GED test preparation book.

He has advised that he isn’t interested in completing any school work “at the moment.” ( Exhibit 30, Andrea MacGregor, Teacher, Northeast Nova Scotia Correctional Facility ) [ 166 ] Mr. B.P.’s entrenched attitudes and values were noted to have been very much in evidence during the Options to Anger program. It was reported that he still has “major issues with being disrespected, or feeling he’s disrespected, that he states will most likely turn violent, and he has no plans of changing that about himself.

His reputation is important to him, one that shows he doesn’t take “shit” from anyone…” Program officers noted that Mr. B.P. was polite and respectful with them and with the facility social worker whom he had been meeting on a weekly basis for casual conversations and to discuss his daily activities and moods. ( Exhibit 30, K. Gould and A. Ouellette, Program Officers, Northeast Nova Scotia Correctional Facility ) [ 167 ] A Report from Northeast notes that on June 6, 2017, Mr.

B.P. submitted a request to cancel all contact with the IWK Treatment Team as he “did not feel that it was a good idea for his court proceedings.” ( Exhibit 30, Vanessa Ellis, Case Management Officer, Northeast Nova Scotia Correctional Facility ) The IWK acted in accordance with Mr. B.P.’s instructions and contacted Northeast to cancel the scheduled June appointments. ( Exhibit 28, letter dated June 21, 2017 from Heidi Rodgers to the Court ) The Current Status of the Joint Treatment Plan

[ 168 ] Mr. B.P. contacted Heidi Rodgers on June 30, 2017, requesting a meeting “to discuss his treatment plan moving forward.” She met with him on July 13 and reports that they, …discussed the status of his involvement with the Treatment Team and ongoing challenges related to administering an IRCS sentence as outlined in the original

section 34 assessment and joint treatment plan. [Mr. B.P.] requested that visits with treatment providers be placed on hold until all court matters are dealt with. Mr. B.P. agreed to revisit the treatment plan once sentencing and placement were resolved. ( Exhibit 29, Heidi Rodgers’ July 14, 2017 Report to the Court, page 6 ) [ 169 ] In any event, it was Ms. MacKinnon’s evidence that the Joint Treatment Plan is no longer relevant given where Mr.

B.P. is now housed, the resources the IWK has available, and the intervening events. “We are not able to provide the services as we could in the youth facility.” [ 170 ] Most importantly, Ms. MacKinnon says, there needs to be a new risk assessment. She noted that the violent incidents are “very significant.” [ 171 ] Ms.

MacKinnon testified that usually a risk reassessment is done at one year on an intensive sentence to see if the Treatment Team is “hitting the treatment targets – are there things that need to be changed or tweaked?” The circumstances in this case “make it even more urgent…because we need a new treatment plan if we are going to continue.” There is “no viable treatment plan without getting a risk reassessment done.” She said there also may need to be new people added to the team. [ 172 ] A new risk review would involve re-doing some of the risk tools, gathering collateral information to put into the mix, and looking at the recommendations which might need to be changed and/or augmented, possibly with new recommendations. [ 173 ] Ms.

Rodgers testified it was “fair to say” that, in order to maintain objectivity, the Team wanted someone to do the assessment who had not had dealings with the young person. This approach would have been taken in any case involving a youth on an IRCS sentence. [ 174 ] Ms. Rodgers had discussed the preparation of a new risk assessment with Mr. B.P. in the summer of 2016 and initially made the request to the internal team. Dr. Hanson testified that he supported a new risk assessment being done.

He was of the view that it “probably would have been very imprudent” for him to have done the new assessment. [ 175 ] Subsequent to September 4, Ms. Rodgers made the request for the risk assessment to be done externally. She testified that her request for funding for the assessment went to Wayne Horner at the provincial level for forwarding to the Federal Government. The funding was approved by the Federal Government but placed on hold. Ms. Rodgers says no one knew the status of Mr. B.P.’s case, where he was going to be housed, and whether he would be continuing the IRCS sentence or not. [ 176 ] Ms.

Rodgers’ July 14, 2017, Report to the Court indicated that the Treatment Team recommended an updated risk assessment, …to assist the team and [Mr. B.P.] in better understanding his level of risk and treatment needs as well as further exploring his motivation and desire to continue with an intensive treatment sentence…this assessment would be most useful when [Mr. B.P.’s] institutional placement is resolved as [Mr.

B.P.’s] needs and motivation, as well as the Treatment Team’s ability to provide service will, in part, be dependent on the circumstances of his placement. ( Exhibit 29, page 7 ) The Psychiatric Services Aspect of Mr. B.P.’s IRCS Sentence [ 177 ] A central feature of an IRCS sentence is the young person’s mental health needs, identified in Mr. B.P.’s case by Dr. Hanson in the

section 34 psychological assessment. A young person is only eligible for an IRCS sentence if they are diagnosed with “a mental illness or disorder, a psychological disorder or an emotional disturbance.” ( section 42(7)(b), YCJA ) Dr. Hanson diagnosed Mr. B.P. with Conduct Disorder, childhood-onset type of a severe nature, Post-Traumatic Stress Disorder and Borderline Intellectual Functioning. [ 178 ] Psychiatric services to be provided to Mr. B.P. under his IRCS sentence was to be the responsibility of Dr. Mejia, the only forensic psychiatrist at the IWK. Unlike Dr. Han

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