R. v. B.P., 2017 NSPC 41

IN THE YOUTH JUSTICE COURT OF NOVA SCOTIA R. v. B.P. (N.) (Re) , 2017 NSPC 41 Date: August 11, 2017 Docket: 2775823 Registry: Halifax IN THE MATTER OF AN APPLICATION by the Provincial Director to transfer N.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 ON DISCLOSURE APPLICATION Judge: The Honourable Judge Anne S. Derrick Heard: July 18 and 21, 2017 Decision: August 11, 2017 Charges: sections 235 and 88(1) , 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 ] N.B.P. was sentenced on June 24, 2015 to an Intensive Rehabilitative Custody and Supervision (“IRCS”) sentence for second degree murder.

Until September 5, 2016, N.B.P was serving his sentence at the Nova Scotia Youth Facility in Waterville (“Waterville”). Since then he has been housed at the transitional unit for youth in the Nova Northeast Correctional Facility, (“Nova Northeast”), an institution for adult offenders. [ 2 ] N.B.P.’s transfer to Nova Northeast followed a violent incident at Waterville on September 4, 2016, in which staff were injured. [ 3 ] The Provincial Director has been pursuing a section 92(1) Youth Criminal Justice Act (“ YCJA ”) “transfer” application against N.B.P.

The Provincial Director wants N.B.P. “transferred” to an adult facility to serve the remainder of his youth sentence. The Provincial Director says that N.B.P.’s sentence can no longer be safely administered at Waterville. The September 4, 2016, incident was a decisive factor in the Provincial Director’s decision to seek N.B.P.’s transfer. N.B.P. is opposed to the application. [ 4 ] Evidence on the “transfer” application was heard in May 2017 with additional dates scheduled for August. On July 11, 2017, N.B.P. filed an application seeking additional disclosure from the Provincial Director.

The Provincial Director opposed the application on the basis that the information being sought is irrelevant or confidential. [ 5 ] Ms. McNeil and Mr. McVey filed written submissions on the disclosure application and I thank them for doing so. The disclosure application was made at a time when the Court’s docket was already fully subscribed but time was found in everyone’s busy calendars for oral argument. I believe the issues were canvassed thoroughly despite the time pressures.

The Application for Disclosure [ 6 ] N.B.P. is seeking disclosure of the following documents: 1) The agreement between the federal and provincial governments regarding N.B.P.’s IRCS’ sentence; 2) All invoices of services provided pursuant to that IRCS’ sentence order;

3) Documentation with respect to the provision of services by the IWK Health Centre and Department of Justice relating to mental health services for youth under IRCS sentence orders; 4) An unredacted version of Dr. Jose Meija’s letter to Waterville Superintendent Angelo Visentin on September 6, 2016; and 5) Documents generated for, by or on behalf of corrections staff concerning the September 4, 2016, incident including reports of David McDowell, Youth Worker. [ 7 ] In the Notice of Application, Ms.

McNeil indicates “The documents are relevant to both a determination of [N.B.P.’s] best interests and the public interest under section 92(1) of the YCJA.” Submissions on N.B.P.’s Behalf on the Relevance of the Disclosure Being Sought [ 8 ] In her Notice of Application, Ms.

McNeil elaborates further the basis for the first three items in her disclosure request: In support of their application for transfer to an adult facility, it is anticipated that the Provincial Director will argue that the IRCS sentence order in a youth facility has been tried and failed, and that maintaining [N.B.P.] in the youth facility in Waterville poses a risk to the safety of correctional staff and other inmates.

In order to properly respond to and assess the evidence with respect to this argument, the details concerning the past implementation of the IRCS sentence order in the youth facility are relevant. [ 9 ] Ms. McNeil argues that being able to drill down into the details of the available services and expenditures for N.B.P.’s IRCS sentence will enable her to assess what resources were being utilized by Waterville prior to the September 4, 2016, incident to manage N.B.P.’s risk and rehabilitation.

She says: “…Without knowing how resources were allocated, we cannot say whether they could be allocated differently to serve the interests of both [N.B.P.] and the public.” [ 10 ] Item four in Ms. McNeil’s disclosure list relates to a redacted letter dated September 6, 2016, from a psychiatrist at the IWK, Dr. Meija, to Angelo Visentin, then the Superintendent of Waterville. The letter, which Ms. McNeil has already received, contains Dr. Meija’ apportionment of blame for the September 4 incident, focusing on N.B.P. and another high risk/high needs youth with which N.B.P. was housed. Dr.

Meija’s opinion about the other youth is redacted. Ms. McNeil argues that she needs an unredacted copy of the letter in order to properly assess Dr. Meija’s opinion. [ 11 ] And finally, Ms. McNeil submits that internal reports about the September 4 incident may reveal an assessment of how staffing levels influenced decisions, made just prior to the incident, to house N.B.P. and other high risk/high needs youth together. Ms. McNeil wants to examine what conclusions were reached about the risk-management measures that were in place when the September 4 incident occurred. [ 12 ] It is Ms.

McNeil’s submission that the issue of N.B.P.’s rehabilitation is central to the section 92(1) application whether the focus is on the “public interest” or the “best interests of the young person”. She says she cannot effectively articulate N.B.P.’s case for serving his IRCS sentence in the youth system without the disclosure she is seeking. The Position of the Provincial Director [ 13 ] Mr. McVey has strongly opposed the disclosure requests. He says that the first three items are irrelevant.

He submits that the issue is not what could have been done at Waterville in administering N.B.P.’s IRCS sentence; the issue is what is to be done now, in light of the evidence from Waterville witnesses that N.B.P. is too high-risk to safely manage in the youth facility. [ 14 ] As for Dr. Meija’s redacted letter, Mr. McVey submits that the redacted portions of the letter relate to a young person, previously in custody at Waterville, who is not a party to these proceedings and has received no notice that psychiatric opinion evidence about him is the subject of a disclosure application. Mr.

McVey, citing section 118(1) of the YCJA , notes that the Provincial Director is under a statutory obligation not to disclose such information. He points to

section 119 of the YCJA which governs access to a record such as that sought by Ms. McNeil and indicates that the only possible basis for her access is under section 119(1)(s)(ii) of the YCJA . Section 119(1) (s)(ii) provides for access to a person with “a valid interest in the record…if the judge is satisfied that access to the record is desirable in the interest of the proper administration of justice.” [ 15 ] Mr. McVey makes a similar point in relation to the request for internal documents about the September 4 incident, saying that they contain the names of several other young persons.

He indicates that the only “report” of David McDowell about the September 4 incident is the Report dated December 14, 2016, which has already been entered as an Exhibit. The Scope of a section 92(1) “Transfer” Hearing [ 16 ] It is Mr. McVey’s submission that Ms.

McNeil is trying to transform the transfer hearing into an inquiry well beyond its legislated scope. [ 17 ] 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." [ 18 ] Mr.

McVey references my decision in J.C.(Re) , 2017 NSPC 14 dealing with a section 92(1) “transfer” application and notes my description of what a court is required to assess in such applications: 98 It may be that J.C. would have succeeded better at Waterville had there been the kind of culturally relevant programming and resources that Ms. MacLean's testimony suggested should be available to incarcerated African Nova Scotian youth. But trying to assess what could have worked is far beyond the scope of what is involved in a section 92(1) "transfer" application.

I am required by the YCJA to assess, on the basis of the evidence before me, whether the transfer of J.C. into the adult correctional system for the remainder of his youth sentence is in his best interests or the public interest.

[ 19 ] 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. The public interest in safeguarding other youth has been held to trump the best interests of the young person. ( Ontario (Ministry of Children and Youth Services) v. K.K., 2011 ONCJ 592 , para. 35 ) And, in R. v.

S.P. , 2014 YCJN 1, another section 30(4) case, 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 ) [ 20 ] In F. (S.D.) Re , 2007 ABPC 103 , another 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 ) The Public Interest Test [ 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. [ 22 ] I find I have to decide the section 92(1) application on the basis of the evidence of N.B.P.’s current circumstances and choices and not on what his circumstances and choices might have been if different or more programming had been available or different administrative decisions had been made. This is not an inquiry into what services should have been made available or what resources should have been deployed.

I am unable to see how knowing more about the extent of the services and resources delivered to N.B.P. prior to September 4, 2016, and even any deficiencies in them, will assist me decide if it is now in the public interest to transfer N.B.P. [ 23 ] I will add however that N.B.P.’s rehabilitation is a matter of public interest. The nexus between effective rehabilitation and the public interest was observed by Hood, J. in R. v.

T.P.D. , 2009 NSSC 332 at para. 218 where she said: “…If he [T.P.D.] is not rehabilitated, his reintegration into society will not be successful and that, in turn, puts the safety of the public at risk.” In N.B.P.’s case I said the following at sentencing: 35 I am satisfied that the joint recommendation for an IRCS sentence is the only appropriate sentence for BP under the YCJA . It is a sentence that represents a meaningful consequence that will hold him accountable and serve to promote his rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

No other youth sentence could possibly offer any hope of effectively confronting BP's complex issues and addressing and reducing his risk…( R. v. B.P., 2015 NSPC 38 ) [ 24 ] While I do not find it will assist me in deciding this application to have the information being sought by Ms. McNeil - the federal and provincial agreement regarding N.B.P.’s IRCS sentence, the invoices, and the documentation with respect to mental health services for youth serving IRCS sentences – I am expecting that the IWK witnesses who have yet to testify, such as Dr.

Simeon Hanson and Heidi Rodgers, will be giving evidence about the services N.B.P. needs and what, if any, additional resources are required to implement his IRCS sentence. [ 25 ] The cases confirm there are considerable resources available for IRCS sentences, to a maximum of $100,000 per year – see for example , R. v. J.S., 2016 BCPC 449 , para. 47 ; R. v. T.R.D., 2011 BCSC 1515 , para. 36 ; R. v. T.P.D. , 2009 NSSC 332 , para. 198 - and I am independently aware of this fact. I have already received various reports about N.B.P.’s IRCS sentence.

I expect the IWK witnesses will speak about the services that had been provided to him and what is needed as his sentence proceeds. The Requirement of Relevance [ 26 ] It is my view that what Ms. McNeil is seeking – the federal and provincial agreement regarding N.B.P.’s IRCS sentence, the invoices, and the documentation with respect to mental health services for youth serving IRCS sentences – would be highly relevant if this was a public inquiry into the administration of this IRCS sentence and the decisions that were being made around how to manage N.B.P.’s risk and address his needs and rehabilitation.

But this is not a public inquiry. [ 27 ] Ms. McNeil has argued that the information she is seeking offers “probative value” as it “could reveal how [N.B.P.’s] IRCS sentence was implemented at the Waterville facility prior to September 4, 2016.” I see a real danger this application will be derailed if it veers off into an examination of whether something more or different should have been provided to N.B.P. to support his rehabilitation at Waterville.

What will be helpful for me is an understanding of what N.B.P.’s rehabilitation under his IRCS sentence is expected to look like if he were to return to Waterville or, if, in the alternative, the Provincial Director’s application is successful and he is transferred to an adult correctional centre. But what Ms. McNeil is seeking as disclosure will not be relevant to these forward-looking questions. [ 28 ] Dr. Meija’s letter apparently has to do with the September 4, 2016, incident. Ms.

McNeil has correctly identified the incident as pivotal to the Provincial Director’s decision to bring this application – it seems very probable that N.B.P. would not be facing it if that incident had not occurred or he had not participated in it. Ms. McNeil said in her oral submissions that she wants to be in a position to assess whether the incident was an isolated incident that would not be repeated. I do not see how the unredacted version of Dr. Meija’s opinion would assist in addressing this question. [ 29 ] I will add that I have some difficulty understanding the relevance of Dr. Meija’s opinion at all.

I can make an assessment of the incident from the evidence I have heard from Mr. Nickerson and the CCTV footage. I recall it was Jim Nickerson’s testimony that the relationship between Dr. Meija and N.B.P. had broken down by the summer of 2016 and that N.B.P. had made threats against him. I assume Mr. Craig, who is calling the evidence on this application, will be explaining why Dr. Meija’s opinion evidence is believed to be relevant but I may conclude that others have provided or will provide more relevant evidence about N.B.P. and the September 4 incident.

[ 30 ] And, with respect to the internal reports concerning the September 4 incident, Mr. McVey indicated his belief that Ms. McNeil already had the documents she is seeking and the only report prepared was by David McDowell and already in evidence. This appears to deal with that particular disclosure request. Conclusion [ 31 ] I am not satisfied that Ms. McNeil’s disclosure requests are relevant to or required for N.B.P.’s response to this application or the proper adjudication of it. The application for disclosure is dismissed. Derrick, P.C.J.