R. v. K.(K.), 2011 ONCJ 592

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. K.(K.) , 2011 ONCJ 592 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN, as represented by the Ministry of Children and Youth Services — AND — K. K., a young person Before Justice David P. Cole Heard on September 8, October 4, 13 and November 9, 2011 Reasons for Judgment released on November 17, 2011 J. Gallagher ...................................................... for the Ministry of Children and Youth Services E. Jamshidi ............................................................................. counsel for the Respondent K. K. COLE J.: ISSUE:

[1] This is an application brought by the Provincial Director pursuant to s. 30(4) of the Youth Criminal Justice Act (YCJA)for an order directing that the young person be temporarily detained in a provincial correctional centre for adults pending resolution ofvarious prosecutions currently outstanding against him. The Respondent vigorously resists this application, arguing (

a) that his “bestinterests” militate in favour of maintaining him in a youth facility, and (

b) that the “public interest” should be construed in light of theemphasis on “effective rehabilitation and reintegration” referred to throughout the YCJA, particularly in the

Preamble and theDeclaration of Principle.

THE STATUTORY FRAMEWORK: [2] Section 30(1) of the YCJA provides as follows: “…a young person who is arrested and detained prior to being sentenced…shall be detained in any place of temporary detention thatmay 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 sodesignated.” [3] Section 30(3) of the YCJA provides (in part): “A young person referred to in subsection (1) shall be held separate and apart from any adult who is detained or held in custody…”. [4] Section 30(4) of the YCJA provides: “When a young person is detained under subsection (1), the youth justice court may, on application of the provincial director made atany time after the young person attains the age of eighteen years, after giving the young person an opportunity to be heard, authorize theprovincial director to direct, despite subsection (3), that the young person be temporarily detained in a provincial correctional facility foradults, if the court considers it to be in the best interests of the young person or in the public interest.” MY JURISDICTION TO RULE ON THIS APPLICATION: [5] K.K. has attained the age of 18 years.

In fact, he is now 20.6 years of age (DOB: July 5, 1991). [6] Counsel have informed me that K.K. is presently detained in custody on the strength of three remand warrants. Thefirst, which has caused him to be continually in remand custody since April 17, 2009, involves numerous firearms and related charges.K.K. was a youth at the time these allegations arose. Nevertheless, as contemplated under s.64(2) of the YCJA, Crown counsel sooninitiated an application for an order that he be liable to have an adult sentence imposed were he to be found guilty of some of theseoffences.

Counsel advise that, following a trial before a Superior Court Justice sitting without a jury, K.K. has now been found guilty byMcMahon S.C.J. of charges of threatening bodily harm, using a firearm in the commission of an indictable offence, pointing a firearm,assault police, assault with intent to resist arrest, criminal negligence causing bodily harm, assault causing bodily harm, careless use of afirearm, possession of a prohibited firearm with ammunition, and unauthorized possession of a firearm.

Though, quite properly, I was notprovided with very much information about the facts underlying these findings of guilt, I was told by counsel that McMahon S.C.J. is inthe process of hearing evidence and submissions as to whether an adult sentence should be imposed, and that he may give judgment inthis matter as early as December 6, 201l. [7] I raised with counsel whether it might be appropriate to defer ruling on this application until after December 6, ascounsel are agreed that if McMahon S.C.J. imposes an adult sentence K.K. will be ordered transferred to an adult correctional facility toserve sentence, at which point a ruling on this application would be moot.

Not surprisingly, Ms Jamshidi was in favour of maintainingthe status quo, but Ms Gallagher advised that it is her information from Crown counsel appearing at the sentencing hearing that adecision may not be forthcoming until sometime into the New Year, so she pressed me to make a ruling. [8] When counsel first told me about the proceedings before McMahon S.C.J., I questioned whether this application shouldhave been brought before him, given the desirability of having a single “youth justice court” deal with most youth matters, as expressedby the Ontario Court of Appeal in S.L. v. N.B. (ON CA), [2005] O.J.

No.1411. Counsel advised that any question ofmy jurisdiction raised by that decision was addressed by the fact that the young person has a second set of charges pending before theyouth court. [9] Those 10 youth court charges, which involve allegations of sexual assault and related charges, were laid on October 13,2010, and are said to have arisen out of incidents occurring in 2007, at which time K.K. was still under 18.

Those charges are the subjectof a continuing preliminary inquiry scheduled to resume before Barnes Y.C.J. on November 18, 2011. [10] In addition, K.K. faces adult charges of assault police officer, carry a concealed weapon and possession of cannabis,which are set for trial on December 14, 2011. [11] With these factors in mind, I am satisfied that I have jurisdiction to rule on this application. I am also satisfied that, giventhat there is no firm date when McMahon S.C.J.’s sentencing decision will be rendered, and given the references in s. 30 to “temporarydetention”, it is not appropriate to delay this further.

FACTS RELEVANT TO THIS APPLICATION: [12] Given the presumption that a young person detained in remand custody is normally to be housed “separate and apart”from adults, it is obvious that Parliament considers that the power to order that a young person be detained pending trial or sentence in anadult correctional facility is to be regarded as highly exceptional, and should be sparingly exercised. (Indeed, counsel were only able tofind one reported decision that has examined the principles to be applied – Re S.D.F. [2007] A.J.

No. 397 (P.C.)). [13] Against this backdrop Respondent counsel’s main strategy has been to attempt to focus the court’s attention on theprogress the young person has been making throughout much of his period of pre-sentence detention. She argues, quite convincingly,

that ordering his transfer to adult remand custody will likely be deleterious in both the short and medium term, in that the young person’s current high level of motivation to complete his high school credits may well decrease as he will be much less likely to have access to schooling on any sustained basis while in adult remand custody, given the deplorable lack of programs normally available to adults being held in remand facilities in this province.

She further argues that to order that the young person now be transferred to adult custody prior to sentence being imposed will thus interfere with his ultimate rehabilitation, which she reminds me is one of the core animating principles of the YCJA . [ 14 ] I will return to this argument later in these reasons. I mention it at this stage of clarifying the issues to be determined in this application because Mr.

O’Brien, the main witness for the Applicant [1] , deposed in his affidavit and in his testimony that he accepts that ordering K.K. transferred to adult remand custody will very likely interfere with both his rehabilitative prospects, and thus, to use the language of s. 30(4) , transfer will not be “in the best interests of the young person”. In his affidavit (supplemented in his testimony) he fairly summarized “the positive behaviour reports related to KK. I note that the majority of the positive reports come from KK’s teachers.

He is reported to be a polite and cooperative student who is keenly interested in completing his secondary school credits”. Mr.

O’Brien further supplemented this by referring to various of these reports, outlining such positive factors as K.K. “acting as a role model to other students”, being “cooperative, determined and respectful”, having “a great work ethic”, de-escalating tense situations between other students and staff, and revealing “extreme self control and maturity” by not responding to a racist comment that may have been directed at him by another resident. [ 15 ] No doubt in anticipation of evidence to be called on behalf of the Respondent, Mr.

O’Brien also conceded that he is well aware that institutional staff are by no means unanimous in joining his view that K.K. should be transferred to adult remand custody. He said in his testimony that he had considered various written materials submitted to him by Respondent’s counsel, including a recent report from an institutional psychologist who has dealt extensively with K.K. While not dismissing these reports, Mr. O’Brien took into account the fact that he “expects social workers and [psychological staff] to be advocates for their kids”.

Similarly, though he was aware from both written reports and conversation with some “youth service officers” (Y.S.O.s - those who deal most directly with residents on a daily basis) that “they have good rapport with K.K. and that he is respectful and polite to them”. Indeed, Mr. O’Brien knows K.K. personally and has virtually always found him to be respectful and polite in their dealings over the past several years.

He agreed that there have been times – particularly recently – where K.K. has stayed out of trouble, has done well in most of his interactions with staff and peers, and that he has benefitted and continues to benefit from education and counselling programs. Nevertheless, despite these various written and oral reports, Mr.

O’Brien was firmly of the view that the safety of other residents of both the youth facility in which K.K. is presently housed and those in other youth facilities in the province in which K.K. has been previously housed require that he now be transferred to adult remand custody. [ 16 ] Because both the Applicant and the Respondent concur that it would be in K.K.’s best interests that he continue to be housed in youth custody, I see no further need to detail much about his educational progress and his evolving social maturation. [ 17 ] Furthermore, while I have been provided with copies of an updated Pre-Sentence Report and a s. 76(4) Report prepared for the assistance of McMahon S.C.J. in his role as a sentencing judge, I see little need for me to spend much time reviewing those materials.

While I have read them carefully, I instruct myself that I must keep in mind that my function is not to consider what length of sentence or place for service of sentence would be appropriate to impose on K.K.; rather, I am being asked to apply my best judgment to where he should be “temporarily detained” until he is sentenced by McMahon S.C.J. [ 18 ] With this in mind, I should also indicate that I intend to dismiss from my consideration any references to K.K.’s sad and tragic background.

While of course I have much sympathy for the numerous stresses and disadvantages – both physical and psychological - he has suffered throughout life, these are matters to be considered by McMahon S.C.J. in imposing an individualized sentence on this offender.

Though unfortunately they go some considerable way to explaining why K.K. sometimes acts out as he does, frankly they are not very relevant to my function in determining what the statute requires me to balance, which in my judgment comes down to what comprises the “public interest”. [ 19 ] Similarly, though the s.76(4) Report has properly considered many of the same materials I have reviewed, the writer’s focus is quite different from mine; thus, I intend to ignore his conclusion that “[K.K.] will be better served in an adult setting”.

I reiterate that this is a matter for McMahon S.C.J. to consider, not me. [ 20 ] With this in mind, I now turn to describing and evaluating the major materials and evidence filed in support of the “public interest” aspect of this application. [ 21 ] Amidst the hundreds of pages of Behaviour Reports, Occurrence Reports and Serious Occurrence Reports filed either as appendices to Mr. O’Brien’s affidavit or as supplementary filings introduced on consent, it seems to me that three factors are of most relevance.

The first is that since entering youth remand custody in April 2009, K.K. has been transferred 10 times between various youth facilities in various parts of the province. In the view of senior correctional staff these transfers appear to have been necessitated by K.K.’s repeated actions of threatening other residents, demanding that they carry contraband and assault staff, counselling residents to become involved in fights, throwing a basketball at a teacher, and (on one occasion) suggestions of sexual assault by him on another resident. Mr.

O’Brien deposed that he viewed a videotape of an April 13, 2011 incident where he concluded that K.K. “had directed a resident to become involved in a 3:1 peer assault”; combined with two other Serious Occurrences from the same time period, K.K. was ordered transferred from the RMYC facility to the DD facility, where he remained for some months until he was transferred back to the RMYC facility, again (apparently) because of his continuing disruptive behaviour at that youth facility. [ 22 ] Ms Jamshidi vigorously cross-examined Mr. O’Brien and other senior staff who testified in support of the application.

She made well the point that several of the allegations which resulted in decisions to transfer him from one youth facility to another would certainly not withstand the scrutiny of a criminal standard of proof beyond a reasonable doubt. She brought out that some 22 of the written reports used to justify/rationalize transfers were incomplete and sometimes internally inconsistent. I entirely agree with her that to

the extent that Mr. O’Brien relied on these reports his opinion is weakened. Nevertheless, having considered this matter fully, I am prepared to find that this pattern of needing to transfer K.K. from one institution to another to keep him and others out of trouble is strongly suggestive - though by no means determinative - of the need for him to be placed in a more structured environment. Furthermore, I agree with McLellan Prov. Ct. J. when he said in S.D.F. that: “ The [ s.30(4) ] hearing is not a trial to determine guilt or innocence.

The strict rules of evidence which govern a trial do not apply at a hearing such as this one” (para. 65).

I am thus of the view that I may consider these reports in my overall balancing of the evidence in this case, despite the fact that many of their contents clearly do not measure up to a criminal standard of proof. [2] [ 23 ] The second (and even more important) factor which I find to be significant in determining this application is that senior staff have deemed it necessary during K.K.’s current placement at RMYC to have him escorted by two custodial staff at most times of day (0700-2200) when he is not in his cell.

Mr O’Brien deposes that this is expressly designed “to mitigate the negative influence he has on other residents and to address safety concerns”. While Ms Jamshidi attempted as best she could to attack the bases for this decision by casting doubt on the factual underpinnings for the conclusion that K.K. is a negative influence, she was forced to concede that such a deployment of staff is quite exceptional. Mr.

O’Brien said that of the 77 young males in the institution on September 8, 2011 only two others were deemed to be so in need of special consideration that they were assigned “2 to 1 supervision”. (I was not told how old they were, nor whether they are on remand or serving sentence, nor whether they were subject to such supervision because they themselves were particularly vulnerable or because they, like K.K., were considered by senior institutional staff to be likely to prey on weaker residents). [ 24 ] Closely related to this is that fact that, uniquely, a decision has been made to maintain K.K. permanently in the Intake and Assessment Unit since his return to RMYC in June 2011 (his fifth transfer to that facility since he entered custody in April 2009).

It was explained in evidence that this is very unusual because this unit is typically reserved for fresh admissions to the facility, where residents usually remain only for 14 days, before they are transferred to other units in the facility. During his four previous admissions to RMYC since April 2009 K.K. was not detained in the Intake Unit (beyond the initial 14 days), but it is the view of Mr. O’Brien – and on this point he spoke with the concurrence of other senior staff – that “K.K.’s behaviour has necessitated [that] he remain there on an ongoing basis.

This limits his contact with other residents as all programming is offered within the unit and he does not have to travel outside of the unit”. It was also explained that since newly admitted residents are usually transferred out of the Intake and Assessment Unit within 14 days of arrival, this is deliberately designed to limit K.K.’s ability to interact with others and to influence them negatively. [ 25 ] At the time Mr.

O’Brien’s affidavit was sworn in preparation for this Application (August 24, 2011), it listed some six Serious Occurrence Reports involving possession of contraband – usually cannabis - since K.K. was returned to RMYC in June 2011. Unfortunately, even as this Application was being heard, other Occurrences involving K.K. continued to take place. Ms Jamshidi was effectively able to discount one of these by pointing out that allegations that K.K. had improperly passed a note to another student in the school amounted to nothing more than routine class work.

However, despite her best efforts, she was quite unable to counter the interception of a September 29, 2011 note from K.K. to another youth apparently directing him to bring contraband (probably cannabis) into the facility, if necessary to engineer a fight so that he would be placed in the same side of the Intake Unit as K.K., so that he might pass the contraband to K.K. when they would be united. A copy of the intercepted note was attached to the Y.S.O.’s Occurrence Report (Exhibit 11).

Once again, in my view the repetitive nature of these activities contributes to the administration’s position that K.K. should be moved to a higher level of security than is possible in a youth facility. [ 26 ] I wish to pause in this narrative to deal with one point continually reiterated by Ms Jamshidi, namely her submission that the record discloses that senior RMYC staff have decided that “they want to be rid of K.K.” and that “they are taking advantage of any incidents [that may have arisen] to provide evidence to justify their position”.

In support of this counsel had a number of witnesses testify that certain institutional records about K.K. have mysteriously disappeared (temporarily or permanently), and that others which might be favourable to him were ordered changed by senior staff. Having now heard more detailed evidence on these issues, while the disappearance of some of the institutional materials is somewhat troubling, I cannot find any support for the hyperbolic proposition Ms Jamshidi seeks to advance.

At base, I find her submission on this point to be entirely hypothetical, and I have no difficulty dismissing it as completely unfounded. Far from reflecting that “K.K. is an annoyance whom senior staff wish to be rid of”, in my judgment the record and the evidence given by senior staff amply demonstrate that the decision to launch such a – thankfully very rare – motion was arrived at after much careful deliberation and after full and fair consideration of all of the circumstances, including the contrary views of many staff (some of whom testified for the Respondent in this proceeding).

In essence, I can find absolutely no evidence to support Respondent counsel’s submission that “all looks yellow to the jaundiced eye” (my words not hers). [ 27 ] Mr. O’Brien and other senior staff who testified all expressed that they believe that K.K. is extensively and continually involved in bullying other youth to become involved in various illegal and illicit institutional or “street” activities. They referred to this as “soldiering” – forcing others to commit acts under threat that K.K. or other youth acting as his agents would assault them.

This was said to be particularly difficult when it involved very young persons (some new admissions to RMYC are physically very small 13 year-olds) or youth detainees who are developmentally and/or cognitively challenged. Ms Jamshidi attacked much of this “evidence” as consisting either of unsubstantiated rumours or, in one case, of a charge which was dismissed following a trial in youth court. I agree with her characterization of some of these allegations.

However, from a common sense perspective, it seems absurd that a 20 year-old has to be detained in the same unit as 13 year-olds because his own behaviour is reasonably considered by senior officials to disqualify him from being placed elsewhere in the RMYC facility. [ 28 ] Related to this, it is obvious that if K.K. were only facing charges laid against him as an adult, he would be detained in an adult remand facility regardless of his personal difficulties and educational aspirations.

In other words, it is only because of the somewhat accidental fact that two of his sets of charges are “youth” charges - at least for the present – that K.K. prima facie qualifies for placement in a youth facility pending determination of (some of) his charges. I emphasize this in part because on the last day of submissions Ms Jamshidi filed a statement (Exhibit 15) from the same institutional psychologist previously referred to, in which the psychologist opines that K.K. “continues to be on a suicide watch” and that he needs “continuing psychotherapeutic treatment”.

Since this statement was filed with Ms Gallagher’s consent, I have no difficulty accepting it as an accurate assessment of K.K.’s current mental health status. However, Ms Gallagher quite properly reminded me that – unfortunately – adult correctional facilities are well used to dealing with emotionally disturbed remand prisoners, and that the Ministry of Children and Youth Services is entirely prepared to immediately brief adult correctional officials about K.K.’s fragile emotional state should this motion be allowed.

[ 29 ] Ms Jamshidi also posited that if I rule in favour of the Ministry in this case, the Provincial Director may become encouraged to invoke the s. 30(4) procedure more frequently – a “floodgates” argument. Once again, I view this as an entirely hypothetical and unjustified argument. On the record before me – particularly given the age anomaly described in the previous paragraph – this seems to be quite an extraordinary case.

While it is true, as Mr O’Brien testified, that 27 of the 77 males at RMYC on September 8, 2011 were over the age of 18 [3] , he was not asked how many of them were detained at that facility solely on remand. Thus, even assuming that those numbers remain relatively constant over time, I have no evidence how many of those might fit the s. 30(4) criteria i.e. that they are purely remand prisoners.

This, combined with the fact that I was told this is only the second time in Ontario that such an application has been launched (and that the previous application was apparently abandoned), leads me to the conclusion that the spectre of the floodgates being opened should the Ministry view this decision as a favourable precedent is not a reasonable concern. And if this should happen, I have little doubt that, looking at the rather unique factual basis of this case, youth court judges will soon staunch any attempt to open the floodgates.

In sum, I can see no basis for any reasoned argument on this point. [ 30 ] Having disposed of these initial arguments, and given the Ministry’s entirely candid and reasonable concession that “the best interests of the young person” will not likely be well served by ordering that he “be temporarily detained in a provincial correctional facility for adults”, I now turn to what I consider to be the nub of this case, namely what comprises “the public interest”.

THE “PUBLIC INTEREST”: [ 31 ] Given that S.D.F. is the only reported case to have considered this subsection, it will be useful to begin by looking at the rather limited way the court viewed the public interest in that case. As I read the judgment, rather than making any comment about how the public interest might be construed in such a way as to continue placement in a youth facility that might best promote the young person’s rehabilitation, McLellan Prov. Ct.

J. restricted himself to commenting (at several points in the judgment) that the public interest includes the safety and security of other residents of the youth facility in which the Respondent in that case was awaiting trial. [ 32 ] Respondent’s counsel first sought to distinguish S.D.F. on its facts. Her main argument on this point was that the Respondent in that case was completely unco-operative with youth custody officials, refusing to access rehabilitative services and programs, and declining to take recommended medication to control his mood swings. She contrasts this with Mr.

O’Brien and other witnesses’ testimony that K.K. generally manifests considerable willingness to co-operate with at least those institutional routines he agrees with, most particularly schooling. I agree that this is the principal difference between the two cases. [ 33 ] Ms Jamshidi further asked me to distinguish S.D.F. on the basis that McLellan Prov. Ct. J. seems to have declined to link the “public interest” mentioned in s. 30(4) with the broader rehabilitative principles underpinning the YCJA .

She suggests that it would be an error in principle for me to follow S.D.F. to the extent of considering that the “public interest” is only related to the interests of other youth (and staff) at the various youth detention facilities in which K.K. has or might in future be housed. Ms Gallagher responds by pointing out that those residents at the RMYC are part of the “public”, and that they have a definite and legitimate “public interest” in being able to spend their custodial time without being directly or indirectly bullied by K.K.

Ms Jamshidi further responds to this argument by saying that the public interest is surely broader than that. [ 34 ] Counsel helpfully went through the various provisions of the YCJA to identify other sections where the phrases “public interest”, “interests of the public” and “interests of society” are used. In addition to s. 30, they have found some 14 subsections where one or more of these apparently interchangeable terms are used. Because they appear in different contexts (varying from publication bans to sentencing to access to youth records) there appears to have been little judicial

interpretation of any of these sections that is of assistance to me in the particular circumstances I am asked to deal with in this application. [4] (I should add that I asked the judicial articling student to look up the Parliamentary and Senate debates and committee reports to see if there was any discussion of this section; she reports that there was no specific commentary as to Parliamentary intention). [ 35 ] While I have considered and agree with Ms Jamshidi’s general point that there is no statutory bar to interpreting s. 30 against the backdrop of the “rehabilitative and reintegrative” provisions contained in the

Preamble and the Declaration of Principle, I keep in mind that what I am being asked to do here is to make what Parliament has expressly referred to as a “temporary” order pending Justice McMahon’s sentencing decision, a period which could be as brief as three weeks from now, and which, in any event, would not likely be more than a couple of months.

I am of course mindful that, as both parties accept, K.K.’s placement in adult custody may well be deleterious to his mental health status and to his motivation, but, unfortunately, his continued aggression towards others can no longer be adequately addressed in youth custody. DISPOSITION: [ 36 ] The application is allowed. The Provincial Director is authorized to direct that the young person be temporarily detained in a provincial correctional facility for adults.

I would recommend and request that before the transfer actually takes place youth correctional officials prepare and properly brief adult correctional officials about K.K.’s mental health status, particularly having regard to Exhibit 15 filed in this proceeding. Released: November 17, 2011 Signed: “Justice D.P. Cole”