R. v. D.A.V., 2018 BCPC 322

Citation: R. v. D.A.V. 2018 BCPC 322 Date: 20181123 File No: 8555-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.A.V. RULING ON APPLICATION OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. SHAW Counsel for the Crown: F. Zaltz Counsel for the Defendant: N. Martland Place of Hearing: Kelowna , B.C. Date of Hearing: October 10, 2018 Date of Judgment: November 23, 2018

[1] On June 17, 2017, D.A.V., a youth, was sentenced to Intensive Rehabilitative Custody and Supervision (IRCS) as follows: 564days Secure Custody to be followed by 282 Days of Supervision in the Community. [2] A statutory court review of the custodial part of the sentence must be scheduled after a year of the custodial sentence has beenserved.

An application for a review was filed on June 7, 2018, and was scheduled for hearing on October 10, 2018. [3] In addition, the Provincial Director of Youth Justice (Director) filed an application pursuant to Section 92(1) of the YouthCriminal Justice Act (YCJA) to transfer D.A.V. to a provincial correctional facility for adults, also scheduled to be heard on October 10,2018. D.A.V. opposes the transfer to an adult facility. [4] D.A.V. was born [omitted for publication], and he turned 19 years old on [omitted for publication].

D.A.V.’s guardian, until heturned 19, was the Ministry of Children and Family Development (MCFD), pursuant to a Continuing Custody order that was granted inMarch of 2013. [5] In addition to the IRCS sentence of June 17, 2017, D.A.V. has been sentenced by a Vancouver Youth Court on July 23, 2018,to 200 further days in custody.

D.A.V. has also received an adult criminal court sentence on June 13, 2018, of a suspended sentence with12 months of probation. [6] D.A.V. is currently at the Burnaby Youth Custody Services (BYCS). [7] Both applications were before the court on October 10, 2018, and the s. 92(1) application proceeded first. After the evidencewas presented and submissions on the s. 92(1) application were made, the court reserved her decision.

Counsel submitted the mandatoryreview that was concurrently scheduled for hearing ought to be adjourned until the court renders her decision as the decision will impactthe review. [8] The application for a review was adjourned until after the decision on the s. 92(1) application was given. Section 92 (1) of the YCJA [9] Counsel for the Director submitted that the application under s. 92(1) applies to both of the youth sentences that are outstandingand being served. That submission was supported by Defence.

I agree. [10] Section 92(1) of the YCJA is set out as follows: “Transfer to Adult Facility 92(1) When a young person is committed to custody under paragraph 42(2)(n), (o), (

q) or (r), the youth justice court may, onapplication of the provincial director made at any time after the young person attains the age of eighteen years, after giving the youngperson, the provincial director and representatives of the provincial correctional system an opportunity to be heard, authorize theprovincial director to direct that the young person, subject to subsection (3), serve the remainder of the youth sentence in a provincialcorrectional facility for adults, if the court considers it to be in the best interests of the young person or in the public interest.” [11] As noted by D.A.V.’s birthdate, he is now 19 years old, as of [omitted for publication].

Section 89 of the YCJA provides thatwhen D.A.V. turns 20 years of age, and if he is still on a youth sentence, he has no choice but to be transferred to an adult facility.

Section 89 states: “89

(1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (

q) or (r), the young person shall, despite

section 85, be committed to a provincial correctional facility for adults to serve theyouth sentence.” [12] Counsel submitted that the earliest date, based on the current sentences, D.A.V. would be released is July 10, 2019. He will notturn 20 years of age until after his scheduled release. Case Law [13] Counsel for the Director and counsel for D.A.V. agreed that there is very little jurisprudence dealing with s. 92(1) of the YCJA. [14] The court was provided with four cases: B.P. (Re), [2017] N.S.J. No. 372, 2017 NSPC 47; J.C. (Re), [2017] N.S.J. No. 121, 2017 NSPC 14; R. v.

R.J.M., 2010 BCPC 65 , 2010 BCPC 0065; R. v. S.D.F., 2007 ABPC 103. [15] Two of the cases, B.P. and J.C., were decided by the Honourable Judge Derrick of the Provincial Court of Nova Scotia. [16] In B.P., the Director brought an application under s. 92 to transfer B.P. to an adult facility. The court dismissed the applicationand the youth remained in the youth correction centre. [17] As of 2015, B.P. was serving a seven year ICRS for second degree murder. He was to serve four years in custody and three

years of conditional supervision in the community. The application was heard in 2017, about two years into B.P.’s custodial sentence. B.P. was 18 years old at the time of the application. [ 18 ] The court in B.P. found the Director failed to show, on a balance of probabilities, B.P.’s transfer to an adult correctional facility to serve the remainder of his sentence was in the best interests of the youth or in the public interest. Rehabilitation was found to be a critical factor in determining the public’s interest.

The court held that B.P.’s best chance for rehabilitation would be in the youth system and not the adult correctional system. [ 19 ] On considering the factor of rehabilitation, the court was clear on two things: firstly, the court determining the youth’s best chances of rehabilitation must consider the facts as they apply to the youth at the time the Director’s application is brought. The court ought not speculate on what might have worked or what might work if matters were different. Secondly, the determination of the rehabilitative factor will be “fact specific” to the case that is before the court.

No two young offenders are exactly alike and their rehabilitation is unique to the youth. [ 20 ] J.C. (Re) is a decision that was released in 2017, shortly before B.P . An application was brought by the Director under s. 92 of the YCJA to transfer J.C. to an adult corrections facility following a sentence. [ 21 ] Judge Derrick ordered J.C., a youth who was sentenced to a 27 month Custody and Supervision Order, to be transferred to an adult correctional facility from the youth facility. [ 22 ] J.C. was originally sentenced to his youth sentence on April 14, 2016. In May 2016, J.C. turned 18 years old.

In September of 2016, J.C. and several other residents at the youth facility were charged with serious offences, including participation in a riot, assault of youth workers, and property damage. [ 23 ] As the offences occurred after his 18 th birthday, the charges were brought in adult court.

J.C. was denied bail and remanded to an adult correctional facility. [ 24 ] The other two cases provided by counsel, R.J.M. and S.D.F ., are decisions on applications under s . 30(4) of the YCJA , which is for a transfer of the youth to an adult facility at the stage of a bail hearing or remand. [ 25 ] The court in B.P. sets out the statutory test for considering a transfer under s. 92 of the YCJA in paragraphs 15 and 16 of the decision as follows: “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 .” [ 26 ] It follows, then, that two issues must be decided. On a balance of probabilities: 1. Is a transfer to an adult correctional facility in the best interests of D.A.V., or 2. Is a transfer to an adult correctional facility in the public interest? [ 27 ] As the test is disjunctive in s. 92(1), the court cannot enter into a balancing of the youth’s best interest with the best interests of the public.

The Crown must prove that the transfer to an adult facility is either in the best interests of the youth, or in the public’s interest. [ 28 ] The evidence for the hearing was by affidavit: Emily Lindh, Supervisor and Case Manager at Burnaby Youth Custody Services – 2 affidavits and 1 report; Jason Heath, Deputy Warden of the Okanagan Correctional Centre (adult facility) – an affidavit; Sukhdeep Sani, Vancouver Island Regional Correctional Centre (adult facility) – affidavit; and a letter from Charlene Lewis, Youth Probation Officer, Kelowna Youth Probation. D.A.V. did not provide any sworn evidence.

A binder of relevant documentation was filed. Background [ 29 ] D.A.V.’s background is a relevant factor to consider. D.A.V. has lived most of his life in Kelowna, BC and he advises the youth worker that he intends on returning to Kelowna once he has served the in-custody portion of his sentence. [ 30 ] He has been exposed during his reported chaotic childhood to significant criminal activity through his father who had gang affiliation and who was eventually killed in 2016 through a shooting.

His paternal grandmother, with whom he was close, also died in 2016 from a drug overdose. [ 31 ] D.A.V.’s paternal great grandmother has an Indigenous background. D.A.V. does not qualify for status First Nations.

He does maintain contact with his mother by telephone and he has some occasional telephone contact with his two siblings. [ 32 ] The Supervisor of BYCS states that D.A.V. has been recently diagnosed with conduct disorder, disruptive mood dysregulation disorder, post-traumatic stress disorder, cannabis use disorder, stimulant use disorder, and attention deficit hyperactivity disorder. [ 33 ] D.A.V. has a significant troubling court history as a youth. He has been admitted to British Columbia youth custody facilities a

reported nine times since his first remand on October 29, 2012, when he was just under 14 years of age. D.A.V. has over 30 convictions on his youth record including an assault of a youth staff member, at least 2 assaults of other youth inmates, uttering threats, possessing a weapon for a dangerous purpose, 4 counts of arson including 1 to an inhabited property and to a youth facility while in custody, disguising his face with intent to commit a criminal offence, and wilfully resisting or obstructing a police officer.

He now has at least 1 adult conviction as well. [ 34 ] Since he was sentenced on June 7, 2017, to an IRCS, D.A.V. has been serving most of his in-custody portion of his sentence in a youth correctional facility located in Burnaby, BC.

D.A.V. has spent in-custody time in other youth facilities and in 2016 he was transferred from the youth facility in Prince George to the youth facility in Burnaby due to repeated episodes of violence and aggression towards the youth staff, which culminated in an incident requiring RCMP intervention. [ 35 ] D.A.V. continues to be involved in numerous incidents at the Burnaby youth centre, including violence and threats to both the other youth and to the correction staff. D.A.V. is described as regularly being forceful and physically and verbally intimidating to the staff and the other youth.

He has a lengthy history of violence, intimidation, aggression, assault, anti-social behaviour, and verbal abuse towards staff and other youth. He also has a history of causing security incidents and property damage at more than one youth facility. He has an ongoing history of inciting other youth to act out and even sometimes to act violently. [ 36 ] D.A.V.’s risk level is seen to be so concerning that he is subject to two staff members personally supervising him at all times, which is not the norm for the BYCS facility. [ 37 ] D.A.V. is 6 feet 1 inch tall and weighs over 200 pounds.

He regularly works out in the gym and he is fit and strong. He is taller and larger than most of the other youth housed at any of the youth correctional facilities. [ 38 ] The Supervisor of Youth Staff at the BYCS states D.A.V. continues to be a high safety risk to other youth and the staff in the facility. She states D.A.V.’s subtle threatening and victimization of smaller, less sophisticated youth is a paramount concern of BYCS Staff. D.A.V. remains unpredictable and he quickly moves from agitation to physical aggression and violence.

D.A.V. is not influenced by the usual management approaches of BYCS to regulate behaviour. He has a tendency to put others’ lives and health at risk and disrupt the smooth operation of the facility with no regard for his own safety or the safety of others. [ 39 ] The BYCS Supervisor states that the youth facility does not have any effective way of managing the significant and ongoing risks posed to other youth by D.A.V.

The youth staff have limited resources to deal with D.A.V.’s patterns of incidents of escalating violence. [ 40 ] A challenge for the youth facility is overseeing the psychological and physical differences between youth who are at different developmental stages. D.A.V.’s behaviour impedes and disrupts the facility staffs’ work of carrying out their mandate and the actions of D.A.V. negatively impacts the other youth residents’ safety and rehabilitation. [ 41 ] Staff at BYCS are trained in de-escalation and non-violent crisis intervention. Restraint of youth is minimized.

Staff are also trained in the use of force to bring a situation under control. There are restrictions and parameters on the availability and use of force at a youth facility, including BYCS. There is no tactical or emergency response team at the youth centre and restraint devices are limited to hand and leg restraints. D.A.V. is difficult to control when he is angry and defiant. [ 42 ] When an emergency occurs which the staff cannot manage, the police are called, which sometimes takes time for the response.

D.A.V. has been the subject of emergency calls to the police to attend an incident he is involved in where the youth staff have not been able to manage with the restrictions they must operate under. [ 43 ] To manage the safety concerns with D.A.V., he is placed under very strict controls which result in a significant reduction in D.A.V.’s ability to move outside of his unit. This creates a restricted ability for D.A.V. to access programs. [ 44 ] The Supervisor of BYCS states that an adult facility has greater resources to manage violent behaviours including access to tactical and emergency response teams.

She opines that D.A.V. would have less restrictive movement in the adult facility and likely more access to programming, as the staff at the adult facility are better able to manage a threat to security. [ 45 ] D.A.V. was transferred to VIRCC for his adult sentence and while at that adult facility, he was assessed and his pattern of behaviour was found to not be acceptable to place him on a standard living unit routine. He was then housed in the Complex Needs Program unit for a 30 day assessment.

The Complex Needs Program is a structured environment designed to help the inmate work towards developing skills and positive behaviours that will result in their return to a standard living unit routine. An adult corrections facility has their own internal regime for sanctions on offenders who become violent or breach behavioural/conduct rules. Planning and Programs for D.A.V. [ 46 ] While at the youth facility, when D.A.V. was 17 years of age, an Integrated Case Management Meeting was held on August 24, 2017, where D.A.V. agreed to complete psycho-vocational assessments.

There is only a partial report as D.A.V. declined to fully participate. [ 47 ] D.A.V. agreed during the meeting to work with a contracted tutor. The tutoring occurred between September to December 2017, after which time D.A.V. declined any further tutoring assistance. It should be noted that D.A.V. did, by January 2018, complete coursework necessary to receive his “adult grad” status from high school. In the email report from one of the teachers, it was noted that D.A.V. would sometimes be cooperative and somewhat productive and sometimes he was totally unproductive.

During the time he was productive, D.A.V. was described as bright and doing good work. The teacher noted that D.A.V. could only attend school when there were only one or two other youth present. The teacher noted that other youth indicated they were afraid of D.A.V. and that on occasion, D.A.V. became disruptive. [ 48 ] At the 2017 Integrated Case Management Meeting, D.A.V. also agreed to regularly meet one-on-one with a support worker.

Again he complied from December 2017, to the beginning of January 2018, and then refused to have any further meetings. [ 49 ] From the time that D.A.V. first went into custody in 2016, including all of the facilities he was housed in, there have been a total of over 90 incidents involving D.A.V., including multiple assaults on other youth and staff. Pattern of Behaviour in 2018 [ 50 ] D.A.V.’s behaviour in 2018 continues to be troublesome on a regular basis.

Some of the incidents are now set out. [ 51 ] On January 1, 2018, D.A.V. became extremely verbally abusive and hostile towards the nurse dispensing medications. Eight staff attended due to the hostile and unpredictable nature of D.A.V.’s behaviour. He engaged in aggressive swearing, yelling, and posturing with clenched fists, getting into staff’s personal space, intimidating them, and shouting that he runs the centre not the staff. He grabbed a piece of a Christmas tree and held it in a threatening manner.

He initially refused to go to his room or follow any directions, and after a 30 minute standoff, he finally complied. Staff located contraband (a lighter) in his room during the incident. He has on several occasions threatened to set fire to the facility and he has four convictions for arson. [ 52 ] On January 14, 2018, an emergency in another area of the facility occurred, and the protocol is that the youth inmates are returned to their rooms and locked in to free up the staff who are needed to attend to the emergency.

D.A.V. refused for over one hour and 40 minutes to return to his room, in direct defiance to staff direction. [ 53 ] On January 16, 2018, D.A.V. did not comply with directions from staff and became verbally abusive and his behaviour escalated to where other staff were called. He eventually went to his room when additional staff arrived. [ 54 ] On January 30, 2018, D.A.V. assaulted a 16 year old youth at the youth facility. A number of staff were also injured in the incident and required time off work because of their injuries.

As a consequence of the incident, adult charges were laid and D.A.V. was removed from the youth facility by the RCMP and taken to the North Fraser Pre-trial Centre and then the Fraser Regional Correctional Centre for adults. He remained there until February 6, 2018, when he was reclassified and transferred to the Vancouver Island Regional Correctional Centre (VIRCC) for adults. [ 55 ] While at North Fraser Pre-trial Centre, on February 1, 2018, D.A.V. instigated an assault on another inmate. The Deputy Warden describes that D.A.V. refused to stand down and stop when he was told to by corrections staff.

D.A.V. plead guilty to the assault and he was given 15 days in segregation. [ 56 ] On April 22, 2018, while at VIRCC, D.A.V., without any permission, entered a cell that was not assigned to him. D.A.V. entered into a fight with the inmate in the cell and because of injuries, the other inmate was taken to hospital. This incident resulted in 15 days of segregation. [ 57 ] On June 3, 2018, D.A.V. assaulted his cellmate by throwing multiple punches towards his head and striking him several times while he was sleeping.

The Deputy Warden describes the incident as premeditated as D.A.V. was seen stretching and physically “preparing” himself for the attack. D.A.V. made attempts to try and block the camera. For this incident, D.A.V. received 27 days of segregation due to the severity of the attack. However, prior to serving his entire period of segregation, he was returned to the youth centre on June 13, 2018, as the adult sentence he was serving was concluded. [ 58 ] D.A.V. was returned to BYCS and his pattern of intimidating and defiant behaviour resumed.

Initially he was assigned to separate confinement on the basis that he was likely to endanger another person. This was reassessed and modified as required. Since his return from VIRCC, up to September 14, 2018, the youth centre has reported numerous incidents of violence or significant defiance. [ 59 ] The most serious incidents noted are as follows. [ 60 ] On July 2, 2018, D.A.V. began causing a commotion to be let out of his room. D.A.V. was told he would be let out when the second staff member returned from his break. D.A.V. began kicking and banging on his door, yelling and verbally abusing staff.

He incited the youth in the next room to engage in the same behaviour. D.A.V.’s behaviour resulted in two hours of separate confinement. [ 61 ] On July 14, 2018, D.A.V. approached a staff member in an intimidating manner and was verbally abusive. He challenged the corrections officer to a fight. Additional staff arrived and D.A.V. was locked up in his room. [ 62 ] On July 16, 2018, D.A.V. and the other youth resident in his unit demanded a change to what staff were there. This escalated to D.A.V. taking an aggressive fighting stance towards the correctional officer.

D.A.V. was placed in his room for two hours. [ 63 ] On July 25, 2018, on a search of his room by staff, a five-inch flat metal ring was found under his bed along with 13 video game CDs hidden in his pillow. All of these items were contraband to be in his room.

The concern is the items are potential dangerous weapons: for example, the plastic of the CDs can be broken and used as a weapon. [ 64 ] On July 26, 2018, D.A.V.’s room was searched and a weapon was discovered described as two razor blades housed in a plastic tube. [ 65 ] On August 12, 2018, D.A.V. was posturing to staff, punching metal pieces of equipment and verbally challenging the corrections staff. The challenging behaviour continued while he was escorted to his living area. Once in the living area he refused to go to his room.

He was finally secured in his room, and he responded by screaming and punching the wall and throwing the chair. D.A.V. was put on the sanction of no staff contact for several days. [ 66 ] On August 25, 2018, two other youths got into a fight, and D.A.V. was told to leave the area. He refused and he incited the altercation by yelling at one of the combatants to bite the other youth. D.A.V. had to be physically removed from the area.

[ 67 ] On August 27, 2018, D.A.V. was verbally abusive towards staff while he was locked in his room for an earlier incident. He began swearing and banging his door. [ 68 ] On September 11, 2018, D.A.V. and another 18 year-old resident in his unit started asking hypothetical questions about the consequences if a resident were to make sexual advances towards female staff. The two inmates said they were 18 and were no longer considered minors.

D.A.V. and the other youth complied with a staff direction to stop the conversation. [ 69 ] While D.A.V. was at the adult facility, it was reported that he was seen as generally more respectful and compliant with the adult corrections staff than when he is in the youth facility.

It is noted that no incidents or concerns were brought up with D.A.V. being a victim of violence, intimidation or any victimization in the adult facility, but as noted above, D.A.V. instigated violence on other adult inmates. [ 70 ] D.A.V.’s behaviour for engaging in and initiating physical altercations occurs both in the youth facility as well as the adult facility. [ 71 ] In B.P. and J.C. , the court sets out and confirms that a foundational principle of the YCJA is the separate and different approach to young persons due to their developing minds and personalities.

The assumption is that the young person is not an adult and does not have the maturity of an adult, and is still in a maturational process that hopefully would be more amenable to rehabilitation, which is a core objective of the YCJA . [ 72 ] The court in B.P. also points out that the power to transfer a person who falls under the YCJA to an adult facility is “highly exceptional” and should only be exercised with considerable restraint. [paras. 253 and 254] [ 73 ] But the court in B.P. goes on to say the following at para 255: “Notwithstanding the fact that, “Facilities for youth in conflict with the law are expected to deal with and manage angry, troubled, violence-prone young persons and rehabilitate them” (J.C. (Re), para 106 ), there are exceptional cases that justify transfer where the evidence establishes it is in the public interest…” [ 74 ] Judge Derrick found that the J.C. case was exceptional and the evidence justified J.C.’s transfer from the youth correctional facility to the adult correctional system. [ 75 ] Turning to the issues, the Crown must prove on a balance of probabilities that either the transfer of D.A.V. to an adult correctional facility is in the best interests of D.A.V., or in the public interest.

Best Interests of D.A.V. [ 76 ] D.A.V. opposes his transfer to an adult facility and therefore does not believe it is in his best interests to be transferred from the youth facility. [ 77 ] D.A.V.’s counsel agreed that any funding made available to D.A.V. through the IRCS process would be available to D.A.V. whether he is in an adult facility or in a youth facility. [ 78 ] The Youth Probation Officer opined that overall, there would be no impact to D.A.V. regarding available services and training if D.A.V. was moved from the youth facility to an adult facility.

D.A.V.’s ICRS disposition funding and programming through MCFD would remain available in either facility. [ 79 ] When the IRCS plan was initially made, the goals for D.A.V. included completing his high school education, completing a vocational assessment, and working on life skills to prepare D.A.V. for life when he is released. [ 80 ] The Supervisor for BYCS states that the primary program that is offered during the daytime at that facility is for the youth to obtain their high school diploma or equivalency. D.A.V. graduated from high school, through an adult grad, as of January 2018.

The teachers report that D.A.V. did relatively well when he put his mind to it. The education programming that would be relevant to D.A.V. would now be preparing him for employment. [ 81 ] The Supervisor of BYCS states that D.A.V. has completed, through the school-based services at the facility, the WHMIS, Foodsafe certificates, as well as completing the Worksafe BC and the St. John’s Emergency First Aid course.

At the adult corrections facility he completed the Ladder and Back Safety sessions, receiving a certificate. [ 82 ] Since January of 2018, during the time in the youth facility, D.A.V., having finished his adult grad requirement, no longer attends school during the day.

He spends most of his time on the living unit, playing board games, watching television, going to the fitness room and gym, and playing video games in the multipurpose room. [ 83 ] The BYCS Supervisor stated if D.A.V. was in an adult facility, he could have a job, which is not available at the youth facilities. [ 84 ] Both PGYCS and BYCS offer a Drug and Alcohol Program which D.A.V. had some participation. D.A.V.’s indication to the counsellor was that he was basically uninterested in attending treatment.

It is not clear if D.A.V. is still accessing a Drug and Alcohol program at BYCS since his return to that facility. The counsellor did note that as of the report, D.A.V. would not really engage in the session. [ 85 ] Drug and Alcohol counselling is available in the adult corrections facility. [ 86 ] D.A.V. had Youth Forensic Psychiatric Services made available to him in the youth facility since 2016 when he came into custody. He seems to have attended somewhat regularly for a period of time up to late 2017.

The psychiatrist thought his attendance was initiated by a third party, but he did attend for a while and then appears to have stopped.

[ 87 ] While at the adult correctional facility, although counselling was available to him, D.A.V. refused to engage in counselling. The psychiatrist opined that unfortunately, D.A.V. remains at a high risk for acting-out behaviours. [ 88 ] The BCYS Supervisor expressed concern that D.A.V. needs to take steps to prepare for a vocation.

D.A.V. has advised he wants to be a Registered Nurse, and he also indicated he would like to be trained as a personal trainer and in nutrition. [ 89 ] The Deputy Warden at the Okanagan Correctional Centre stated that in the adult correctional facilities, the BC Corrections Branch offers trades training as well as vocational and work programs to the inmates.

Each provincial correctional facility has its own work program and department to organize training and courses for new skills to assist the inmates in finding employment once they are released from custody. [ 90 ] Skills training such as a program entitled Essential Skills for Success (“ESS”), is also offered by the adult correctional facilities.

This includes training in money management, housing needs, healthy relationships, employability skills and substance-abuse education. [ 91 ] The Youth Probation Officer provided information from the Warden at VIRCC that should D.A.V. return to their facility, they can offer some advanced level construction training and food-industry related training through the John Howard Society. The VIRCC Mental Health Liaison Officer indicates that she has spoken to D.A.V. about the possibility of training to become a personal trainer and H2S training, and perhaps a nutrition course.

Access to the training would be directly dependent on D.A.V.’s behaviour. [ 92 ] One concern that has been pointed out is that if D.A.V. is to be transferred to an adult facility, there is no guarantee which facility he will be placed in. D.A.V. would have to go through a classification process, and given D.A.V.’s father’s involvement with organized crime, there is some concern with placing him in the general population where known gang members are incarcerated.

The Corrections Branch is alive to this concern, and in the spring of 2018 when D.A.V. was sent to an adult facility to serve his previous adult sentence, these concerns were addressed by identifying an adult facility and the type of housing, such as protective custody, that would afford D.A.V. security. [ 93 ] On considering the evidence, as well as the submissions of Crown and the Defence, and taking into consideration D.A.V.’s opposition to his transfer to an adult facility, I find that overall it would be in D.A.V.’s best interests to be transferred to an adult facility. [ 94 ] D.A.V. has now reached a point in his sentence where he is no longer making any rehabilitative progress in the youth facility.

He needs to move on to post high school training and receive assistance to prepare him for independence in the community. [ 95 ] I based this decision on an assessment of what programs can be offered to D.A.V. in each of youth corrections and adult corrections. As D.A.V. has completed his requirements for his Grade 12 graduation, part of his rehabilitation needs to be focused on D.A.V. getting as many skills and training as he can to become employable, as well as address his personal mental health challenges such as controlling his frustration and anger.

The adult correctional facility has the resources available if D.A.V. chooses to access them. [ 96 ] D.A.V. is currently spending most of his day with no set goals or direction and he would have an opportunity to have a job at the adult facility. [ 97 ] The IRCS funding is available to D.A.V. in the adult facility and the Deputy Warden states that programming and training specific to D.A.V. can be arranged and provided.

The adult facility offers more adult-oriented resources for training, such as construction courses and if D.A.V. continues to have an interest, he can receive training as a personal trainer and possibly adjunct courses. [ 98 ] Although the corrections system cannot guarantee where they will place D.A.V., it is clear corrections are alive to the challenges posed by having D.A.V. in a facility, and they are prepared to address that. [ 99 ] Having determined that transfer to an adult facility would be in D.A.V.’s best interests, I will now turn to the interests of the public.

Interests of the Public [ 100 ] The “interests of the public” is not defined in s . 92(1). The Crown argues, and I agree, that the same disjunctive test is found in s . 30(4), notwithstanding that

section deals with a transfer of a youth to an adult facility at the pre-trial stage. Some of the principals established by the cases dealing with s . 30(4) applications are applicable to s . 92 cases. [ 101 ] In the case of R. v. S.P ., 2014 YCJN 1, which deals with an application under s . 30(4), a factor that was considered by that court in determining the best interest of the public was described as “the safety and rehabilitation of the greater population of the residents of the Youth Facility”.

In S.P. , the court ordered the transfer of the youth based on public interest. [ 102 ] As stated in B.P. and J.C. , the interests of other youth must be considered, and this will specifically apply to the other youth that are in custody at the same facility as D.A.V. [ 103 ] The Defence argued, and I fully agree, that mere administrative convenience is not an appropriate basis for transferring a youth to an adult facility. [ 104 ] However, a young person’s personal problems cannot be used to disregard the needs and safety of the other residents and staff of the youth facility.

In paragraph 18 of the B.P. case, the court refers to a case dealing with a s . 30(4) application and states: “ 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 )”

[ 105 ] The court at the initial imposition of an IRCS disposition to D.A.V., June 7, 2017, was satisfied that such a sentence was appropriate to provide D.A.V. the best opportunity to be rehabilitated, and was in the public’s interest for the protection of the public, with the goal of D.A.V.’s rehabilitation and reduction of recidivism. [ 106 ] As noted in my comments with respect to D.A.V.’s rehabilitation, I have determined that it is in D.A.V.’s best interests to move on to provide him with adult-oriented training and provide him with the opportunity to set life skills goals. [ 107 ] D.A.V. has had a pattern of unrelenting defiance and occasions of significant violent behaviours in the youth correctional environment.

His behaviour has been a significant disruption to the staff and other residents, as well as a considerable safety risk. D.A.V.’s behaviour has put the youth facility in the position where he must have at least two youth corrections staff with him at all times when he is not locked in his room. [ 108 ] I find the interference, disruption and violent behaviour occasioned by D.A.V. significantly prejudices the opportunity and environment for the rehabilitation and safety of other youth. He has caused injury to other residents.

He is a negative role model for other youth. [ 109 ] The youth corrections staff are limited in how they can respond and D.A.V. has caused injuries on more than one occasion to staff. I find that D.A.V.’s aggression and anger can no longer be safely managed at a youth correctional centre. [ 110 ] Although his experience in the adult correctional facility is not without difficulties, the available resources in the adult correctional facility will offer D.A.V. the opportunity to progress with his rehabilitation.

It will be up to D.A.V. to take advantage of those opportunities. [ 111 ] I find it is in the interests of the public that D.A.V. be transferred to an adult correctional facility to serve the remainder of his youth sentence. [ 112 ] The application of the Director will be granted. ____________________ The Honourable M. Shaw Provincial Court Judge