Provincial Director v. K.C. Date:, 2015 BCPC 311

Citation: Provincial Director v. K.C. Date: 20151103 2015 BCPC 0311 File Nos: 23325-1; 23325-2-C; 23350-1; 23426-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF An Application by the Provincial Director to transfer the young person, K.C., to an adult provincial correctional facility pursuant to s. 30(3) of the Youth Criminal Justice Act BETWEEN: PROVINCIAL DIRECTOR APPLICANT AND: K.C. DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE R. HARRIS

Counsel for the Crown : P. Sebellin Counsel for the Provincial Director : N. Carnegie Counsel for K.C. : L. Farmer Place of Hearing: Vancouver , B.C. Date of Hearing: September 16, 2015 Date of Judgment: November 3, 2015 INTRODUCTION [ 1 ] The Provincial Director applies pursuant to s. 30 (3) of the Youth Criminal Justice Act , for an order permitting the transfer of K.C., (the Youth) from Burnaby Youth Custody Services (“BYCS”), to Surrey Pre-Trial Centre (“SPTC”), an adult remand facility. [ 2 ] A hearing was held during which the Director filed affidavits and produced the affiants for cross-examination.

No evidence was presented by or on behalf of the Youth. ISSUE [ 3 ] The only issue is does the evidence satisfy the court that it is in the best interests of the Youth to be held on remand in an adult facility. EVIDENCE [ 4 ] Exhibit 1 is the Youth’s history of criminal convictions.

The two main categories of offences contained therein are; non- compliance with court orders, and violence related matters. [ 5 ] With respect to the latter category of offences, the Youth has convictions for; uttering threats, robbery, assault, possession of a dangerous weapon, and the assault of a peace officer. [ 6 ] The Youth is currently in custody at BYCS. He is on remand for a number of charges and he is also serving a custodial sentence.

The Youth has been on remand since October 7, 2014, on allegations of 2 nd degree murder, attempted murder, pointing a firearm, carrying a concealed weapon, possession of a restricted firearm, possession of a firearm without a registration certificate, and possession of a prohibited device. [ 7 ] As indicated the Youth is also serving a sentence. In this regard, and while on remand for the offences listed earlier, the Youth assaulted two correctional officers.

He was convicted for these assaults and on September 24, 2015, the Youth was sentenced to 60 days secure custody. [ 8 ] One of the affidavits filed was an affidavit by Ray Stellingwerff, a probation officer at BYCS. The other affidavit was by Matt Lang, Warden of SPTC. [ 9 ] Mr.

Stellingwerff’s affidavit outlines that, the Youth will be 18 in a matter of weeks and that he is a physically strong and imposing person, who is approximately 6 feet tall, 190 pounds with a background in boxing. [ 10 ] The affidavit also discloses the Youth has been at BYCS on five separate occasions: August 2012 for under a month, September 2012, for two months, November 2012, for just less than nine months, November 2013, for approximately eight months and now since October 7, 2014. [ 11 ] Mr. Stellingwerff stated the Youth was challenging with a tendency to act out aggressively and violently.

In his affidavit, Mr. Stellingwerff attested that the Youth has been involved in a high number of incidents including assaults on peers and staff. Mr. Stellingwerff summarized the more serious events as follows: August 28, 2012, the Youth assaulted another inmate and when staff attempted to intervene, the Youth resisted efforts to stop the fight. October 26, 2012, the Youth threatened staff and he aggressively charged at a staff member. December 14, 2012, the Youth attempted to choke another youth. February 14, 2013, the Youth, along with others, assaulted a youth inmate.

The Youth resisted efforts to break up the fight. As a result of this incident the Youth was convicted of assault. March 16, 2014, the Youth lunged at a staff member. The person was forced to barricade themselves in an office. The Youth tried to

kick in the door to the office. Eventually he was subdued resulting in injury to three staff members and necessitating the institution going into “lock down”. April 23, 2013, the Youth was asked to clean up his room. He, with others, began verbally abusing and threatening a supervisor. The Youth then tried to attack the supervisor. The Youth then resisted efforts to restrain him. January 24, 2014, the Youth refused to participate in class and he was returned to his room. He became verbally aggressive making several threatening comments. He was taken to a separate confinement area.

January 31, 2014, while watching a film with a pastor, a volunteer, and other youth inmates, the Youth became disruptive. Upon being told to leave he became abusive, he pushed a chair into staff, he smashed a lamp on the ground and he threw pieces of the lamp at the pastor and the volunteer. February 26, 2014, the Youth encouraged other youth inmates to defy staff. The Youth started kicking the staff door and he threw a football at the television. March 31, 2014, the Youth became agitated. He made threatening comments to staff and he was acting aggressively.

Staff noted in their report that, [the Youth], “has attained the type of status here where kids in other units are using their friendship with him to intimidate weaker peers.” October 31, 2014, the Youth refused to leave a classroom when asked to do so. The Youth started swearing at the teacher and he threw a file folder and water bottle at the teacher. November 4, 2014, a staff member was attacked when he opened the door to the Youth’s room. The staff member was punched several times. Other staff that intervened were also attacked with closed fist blows. It took five staff members to restrain the Youth.

Two staff members were injured and required medical attention. The Youth was charged and convicted for assaulting the staff members. BYSC’s Response and Events Post November 4, 2014 [ 12 ] In response to the staff assault, BYSC developed a safety and behaviour management plan. The plan was intended to address the Youth’s needs while at the same time ensuring the safety of staff and other inmates. [ 13 ] The safety and behaviour management plan is described in paragraphs 50 - 51 of Mr. Stellingwerff’s affidavit as follows: 50 K.C.’s Behaviour Plan required, among other conditions, that (

i) K.C. reside in a specific room on his living unit, with the other rooms locked, (ii) no direct staff contact (prior to staff entering his living unit, K.C. has to enter his room and lock it and any contact with staff must take place through a trap door on the unit), (iii)minimum furniture present in the living unit, with no television on the wall, (iv) K.C. not being able to participate in off-unit programs, (

v) all school work is to be brought to him, with no tutoring available, and (iv)K.C having access to the courtyard to play basketball if his behavior is stable. Under K.C.’s Behavior Plan, he was prevented K.C. from interacting with other youth. The condition prohibiting contact with staff was imposed to prevent K.C. inflicting any further injuries on staff members. 51 As part of K.C.’s Behaviour Plan, school services personnel offered to assist him with assignments and reading materials on a 1:1 basis at K.C.’s request.

School staff also agreed they would visit him weekly to see if he’d be willing to work with them by communicating through a trap door. Mental health services personnel also offered to assist K. C., though he initially declined the invitation [ 14 ] In December 31, 2014, the Ombudsperson wrote to the Executive Director of Youth Justice and Forensic services expressing concern that the Youth’s situation amounted to separated confinement. The Youth’s custodial circumstances were reviewed and it was determined by the Director that the Behaviour Plan constituted separate confinement of the Youth.

As such, the Executive Director implemented a daily review process with steps being taken to reintegrate the Youth into communal living. [ 15 ] On February 12, 2015, the Youth’s room was significantly damaged. Electric faceplates and portions of the window frame were removed. Staff felt this was an effort by the Youth to escape via the window. [ 16 ] On March 9, 2015, staff began to reintegrate the Youth with his peers and allow staff contact provided there was a ratio of 2:1.

The Youth started living with other youth who were placed in his living unit and on March 17, 2015, the Youth’s separate confinement was terminated. [ 17 ] In May 2015, staff received information that the Youth was planning to escape and that he was conscripting other youths to assist him. In response, the Youth was placed in separate confinement on a living unit with no peers and a staff ratio of 2:1. [ 18 ] Currently, the Youth is not permitted outside except occasionally to an internal courtyard. He does do some lawn chores, and on a weekly basis he has phone access to counsellors.

He receives school materials and his school work has improved. As per his service plan the Youth can attend the gym, the fitness room, the library and the multi-purpose room. [ 19 ] Concerns have been expressed by the mental health personnel who interact with the Youth about the long term effects that isolation may have on him. The Youth has weekly contact with a teacher and weekly contact with a counsellor. [ 20 ] In paragraphs 72 -74 of Mr. Stellingwerff’s affidavit, he outlines the Youth’s history of assaultive behaviour, intimidation and aggressiveness.

He expresses that the behaviour and the escape concerns makes it impractical to provide the Youth with programs that

would benefit him. As a result, the Youth misses interacting with his peers, he cannot attend the Boy’s Council, the pastor’s program, the classroom, nor can he participate in physical activities. [ 21 ] An affidavit from Mr. Matt Lang, Warden at SPTC was filed and he was cross-examined. Mr. Lang’s evidence was that SPTC has five separate areas for housing inmates; general population, protective custody, enhanced supervision placement (ESP) and separate confinement. [ 22 ] ESP is for inmates who are identified as risk for victimization or who have patterns of assaultive or non-compliant behaviour.

The purpose of the unit is to separate inmates from the general population. Despite this, there is peer to peer contact between the inmates within the unit. Case plans are developed with a view to reintegrating the ESP inmates into general population.

Programs are available to inmates in ESP but access to these programs is based on conduct. [ 23 ] Inmates are placed in separate confinement when there are reasonable grounds to believe that an inmate is likely a danger to himself or others, or, that he is likely to jeopardize the management, operation or security of the facility. [ 24 ] Inmates who are separately confined are housed on a living unit or in a segregation unit.

An inmate who is separately confined on a living unit will have contact with other inmates within the same living unit, they also have access to more amenities than those on a segregation unit, and they are permitted a minimum of a one hour exercise period every 24 hours. Further, an inmate separately confined on a living unit will, depending on their needs, have access to cognitive programs, education programs and exercise programs. Additionally, those inmates who are confined to cells can still have access to some programs.

All inmates have access to chaplaincy services, community workers, and mental health liaison officers. All inmates who are separately confined are regularly reviewed to monitor their mental health and to access if there is a continuing need for separation. [ 25 ] With respect to the Youth, Mr. Lang advises if he was placed in SPTC he would be classified and then likely placed in an enhanced supervision unit or in separate confinement where he would be accessed to determine his ability to interact with staff and peers.

If the Youth is placed on a living unit, efforts would be made to find age-appropriate inmates. [ 26 ] In submissions on behalf of the Youth, counsel informed the court that the Youth does not recall some of the events described by Mr. Stellingwerff and in some cases denies they occurred. As an example, the Youth denies having thrown pieces of a lamp on January 31, 2014. Unfortunately, the information presented by counsel is of limited assistance as it was not offered in evidence format.

POSITION OF THE PARTIES [ 27 ] Counsel for the Director argues the evidence shows integrating the Youth with his peers poses a direct and indirect safety risk to the other youth. In support, counsel points to the assaults on other youths, as well as, the impact that the Youth’s behavior has had on the orderly operations of BYCS.

Simply stated, security is placed at risk and programming is shut down when the Youth acts out. [ 28 ] The Director argues in order to protect others, and to ensure the orderly operation of BYCS, the only option available is to place the Youth on a behavioural plan in separate confinement on a living unit, and that, such an arrangement is not in the best interests of the Youth.

Specifically, the Youth needs to interact with peers, and he needs to have a full range of programming. [ 29 ] With respect to the evidence before the court, counsel for the Youth points out that it is all hearsay and at times double hearsay. As such, he argues, this court should be cautious and give the evidence little weight. He also argues the evidence shows the Youth’s behaviour has improved and there is a chance that he will be reintegrated with other youth.

Whereas and in contrast, he argues if the Youth is moved to SPTC there is a strong chance that the Youth will be placed in a segregation unit which would not be in the interests of the Youth ANALYSIS [ 30 ] The relevant portions of s. 30 of the Youth Criminal Justice Act reads: Designated place of temporary detention 30.

(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.

(3) A young person referred to in subsection (1) shall be held separate and apart from any adult who is detained or held in custody unless a youth justice court judge or a justice is satisfied that, having regard to the best interests of the young person, (

a) the young person cannot, having regard to his or her own safety or the safety of others, be detained in a place of detention for young persons; or (

b) no place of detention for young persons is available within a reasonable distance. [ 31 ] A review of the

section and the related authorities confirms the transfer of a young person to an adult facility only occurs in exceptional circumstances. Further, the Director has the burden of establishing on balance of probabilities that, because of concerns regarding the safety of the young person or the safety of others, that a young person cannot be kept in a youth detention facility and that

the overall focus is the best interests of the young person See: The Queen and X, the accused, [2014] J.Q. No. 13671 Quebec Court (Young Person Division). [ 32 ] Based on the above, there can be circumstances where despite a young person’s own safety or the safety of others being at risk, it still may not be in the youth’s best interests that he be detained in a facility with adults.

DECISION [ 33 ] The evidence satisfies the Court that the Youth’s violent and aggressive behaviour was continuous and escalating throughout his time at BYCS and that his pattern of behaviour appears to have persisted despite corrective measures.

Such measures included, restraints, isolation, speaking with him, having him charged with assault and ultimately with him being sentenced for the offences of assault. [ 34 ] It would appear that the only way BYCS can safely manage the Youth and therefore reduce the safety concerns is to place him in separate confinement on a living unit where he would have limited access to teachers, counsellors, and the youth pastor. Further, he would be denied access to programs or contact with his peers which causes concern regarding the effect that such isolation would have on his mental health.

In contrast, if the Youth is moved to SPTC and even if he were placed in separate confinement he would still have access to programs and others. [ 35 ] In conclusion, I am satisfied that the access to programs and support services makes the transfer of the Youth, who I find is a risk to the safety of others, to be in his best interests. Accordingly, the Director’s application is granted. The Honourable Judge R. Harris Provincial Court of British Columbia