R. v. G., J.P.

R. v. G., J.P. Collection Decisions of the Court of Appeal Date 2000-03-30 Docket numbers C33413 Judges Abella, Rosalie Silberman; Rosenberg, Marc; MacPherson, James C. Subject Criminal Decision Content DATE: 20000330 DOCKET: C33413 COURT OF APPEAL FOR ONTARIO ABELLA, ROSENBERG and MacPHERSON JJ.A. BETWEEN: ) ) Jeffrey Langevin HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Brian Whitehead ) for the respondent J. P. G., ) A Young Person ) ) Appellant ) ) Heard: January 20, 2000 ) On appeal from the decision of Soubliere J. dismissing an application for a Writ of Habeas Corpus. ABELLA J.A.: [1] On October 12, 1999, the appellant J. P. G. was found guilty of assault and breach of probation by a Youth Court Judge. He was ordered to serve 4 months in open custody. [2] On November 16, 1999, as a result of his behaviour at the open custody facility, he was transferred by the Provincial Director to a secure custody facility at the Ottawa-Carleton Detention Centre pursuant to the Young Offenders Act (Y.O.A.), R.S.C. 1985, c.Y-1. Under the Y.O.A., the Provincial Director is entitled to direct that a transfer be made from open to secure custody for 15 days. [3] In this case, the 15 day period was renewed twice. The appellant remained in the secure custody facility continuously during these renewals. [4] The appellant brought an application for a writ of habeas corpus on December 20, 1999, seeking an order releasing him from secure custody and directing his return to an open custody facility in accordance with his original disposition. [5] The application was dismissed on December 22, 1999. This is an appeal from that dismissal. [6] The issue in this appeal is whether the Provincial Director has the authority to renew a 15 day transfer from an open to a secure custody facility, or whether she is required to return the young person to an open facility, as judicially ordered, at the end of 15 days. Although the appellant was returned to an open custody facility prior to the hearing of this appeal, the parties did not argue mootness. Both parties requested that the appeal proceed to clarify the interpretation to be given to the relevant section of the Young Offenders Act. [7] The Provincial Director’s jurisdiction to make the initial transfer derives from s.24.2(9) of the Young Offenders Act, which states: 24.2(9) Where a young person is placed in open custody pursuant to subsection 24.1(2), the provincial director may transfer the young person from a place or facility of open custody to a place or facility of secure custody for a period not exceeding fifteen days if (a) the young person escapes or attempts to escape lawful custody; or (b) the transfer is, in the opinion of the provincial director, necessary for the safety of the young person or the safety of others in the place or facility of open custody. [8] There is no dispute in this appeal about whether the appellant’s conduct in the open custody facility justified the original transfer on November 16, 1999, pursuant to s.24.2(9)(b). [9] The disposition scheme of the legislation is bifurcated. It gives each province the right to decide whether its Provincial Director or a youth court judge will be responsible for specifying the appropriate level of custody after a judge has made a determination that a term of custody is appropriate. [10] The provision of the Y.O.A. giving the youth court jurisdiction to decide the level of custody is s. 24.1(2): 24.1(2) Subject to subsection (3), where the youth court commits a young person to custody under paragraph 20(1)(k) or (k.1) or makes an order under subsection 26.1(1) or paragraph 26.6(2)(b), it shall specify in the order whether the custody is to be open custody or secure custody. [11] The right of a province to assign responsibility to the Provincial Director for determining the level of custody is found in s. 24.1(3), which states: 24.1(3) In a province in which the Lieutenant Governor in Council has designated the provincial director to determine the level of custody, the provincial director shall, where a young person is committed to custody under paragraph 20(1)(k) or (k.1) or an order is made under subsection 26.1(1) or paragraph 26.6(2)(b), specify whether the young person shall be placed in open custody or secure custody. [12] Ontario has not chosen to designate the Provincial Director under s. 24.1(3). As a result, the decision whether to place a young person in open or secure custody rests with a youth court judge. [13] The submission of the Provincial Director was that s. 24.2(9) authorizes not only an initial 15 day transfer, but also any subsequent 15 day extensions, even if this results in a continuous period of secure custody. To interpret the section as requiring an automatic return to open custody after 15 days imposes an arbitrarily narrow interpretation on the section. The potential result of such an analysis, according to the Provincial Director, would be the perfunctory return of the young person to open custody at the end of every 15 day period to satisfy the technical requirements of the section. This imposes a gratuitously burdensome requirement, since no meaningful transfer back to open custody would be made. [14] The appellant argues, persuasively in my view, that this gives the Provincial Director de facto authority to override the prior judicial determination that the young person be committed to open rather than secure custody. [15] Ontario has chosen to leave the determination of custodial levels with youth court judges. The legislation should therefore be interpreted in a way that respects this choice. This is done by interpreting s. 24.2(9) in a way that acknowledges the primacy of the judicial determination over any administrative decision. [16] The interpretation urged by the Provincial Director leads to the possible circumvention of a youth court’s determination that the level of custody be open custody. This implicit revocation may be accomplished by administrative fiat through the continuous renewal of 15 day transfers to secure custody. [17] The articulated basis for the renewals in this case was the Provincial Director’s assessment that open custody was inappropriate for the appellant. There is no question that this determination was made in good faith. But the issue is not the bona fides of the administrative decision, it is whether there is any jurisdiction to make it at all beyond the initial 15 days. [18] This does not mean that there cannot be more than one 15 day transfer to a secure facility during a court-ordered committal to open custody. It means, rather, that at the end of 15 days, the young person is entitled to be returned to the level of custody specified by the youth court judge. If, after the young person is so returned, the Provincial Director has new reasons to invoke s. 24.2(9), it is open to him or her to direct a transfer for another 15 day period. But it must be a fresh consideration based on these new grounds, not a continuing or general anxiety over the propriety of the judicial order for open custody. [19] The Provincial Director is not, however, required to ignore the young person’s experience in secure custody. That experience may, in fact, provide important background information for the director. But the decision to make another transfer must be made based on matters that occur in open custody after the young person has been returned there. If the conduct while in secure custody is sufficiently serious to warrant the laying of new charges, a possibility contemplated both by the Act and the Criminal Code, the young person may then be held at an appropriate level of security pending the trial on the new charges (see s. 7 of the Act). This is a more direct way to maintain the integrity of the process, while at the same time offering the advantage of returning the young person to the supervision of the courts. [20] Administrative convenience cannot deprive a young person of a legislated right to serve a custodial term at a level of custody judicially determined. The Provincial Director has been given limited statutory authority under s. 24.2(9) to interfere with that level, but only for 15 days at a time and only if there are new grounds each time. This means that the young person must be physically transferred back from secure to open custody after 15 days, and given a meaningful opportunity to continue to serve his open custodial sentence. [21] Any other interpretation of s. 24.2(9) results in the potential for administrative subversion of a judicial determination of rights. [22] The appellant has served his disposition. He was, however, entitled to an order granting the writ of habeas corpus as a result of renewals made by the Provincial Director without jurisdiction. The appeal is therefore allowed. Released: March 30, 2000 “RSA” “R.S. Abella J.A.” “I agree M. Rosenberg J.A.” MACPHERSON J.A. (dissenting): [23] I have had the benefit of reading the reasons prepared by my colleague, Abella J.A. With respect, I disagree with the conclusion she has reached. Accordingly, I will set out my reasons in brief fashion. A. ISSUE [24] I agree with Abella J.A.’s description of the factual events giving rise to this appeal. The disposition of the appeal turns on the interpretation of s.24.2(9) of the Young Offenders Act (“YOA”), R.S.C. 1985, c. Y-1 (“YOA”), which provides: 24.2(9) Where a young person is placed in open custody pursuant to subsection 24.1(2), the provincial director may transfer the young person from a place or facility of open custody to a place or facility of secure custody for a period not exceeding fifteen days if (a) the young person escapes or attempts to escape lawful custody; or (b) the transfer is, in the opinion of the provincial director, necessary for the safety of the young person or the safety of others in the place or facility of open custody. [25] In my view, this appeal raises three issues concerning the interpretation of s.24.2(9): (1) After the provincial director has made an initial transfer order pursuant to s. 24.2(9), does she have jurisdiction to make a subsequent order which would have the effect of continuing the secure custody of the young person beyond the initial 15-day period? (2) If the answer to (1) is ‘Yes’, must the young person be returned to open custody before a subsequent transfer order is made? (3) If the answer to (1) is ‘Yes’, must there be “new grounds” of misbehaviour under paragraphs (a) or (b) of s. 24.2(9) before the provincial director can make a subsequent transfer order? [26] Abella J.A. would answer ‘Yes’ to all three questions. I agree with her with respect to the first question, but disagree on questions two and three. B. ANALYSIS (1) Duration of transfer order [27] Abella J.A. concludes that there can be “more than one 15 day transfer to a secure facility during a court-ordered committal to open custody.” Soublière J., in the judgment under appeal, reached the same conclusion. He said: I have difficulty accepting that the legislator intended that the subsection be resorted to only once, and that after resorting to a transfer on one occasion, the power of the Director would be spent. This does not make sense, particularly as the underlying causes for the transfer in the first place will survive the period of time specified in the order of transfer, in many instances but not necessarily. [28] I agree with Abella J.A.’s and Soublière J.’s analyses and conclusions on this point. There is nothing in the language of s. 24.2(9) to suggest that, once the provincial director has ordered a transfer from open custody to secure custody, her authority is exhausted. On the plain meaning of s. 24.2(9), the provincial director may order a transfer whenever the specified criteria are met. There is nothing limiting the provincial director’s authority to ordering one transfer. Indeed, such an interpretation would be inconsistent with the purpose of the transfer provision which seeks to respond to escape situations and to protect the safety of the young person and other persons in the place of custody. Unfortunately, with respect to some young persons, escape attempts and endangerment of their safety or the safety of others in the open custody facility may arise more than once. In my view, s. 24.2(9) can, and should, be interpreted to permit the provincial director to deal with these additional problems by ordering, where necessary, subsequent 15- day transfers to secure custody. (2) Return to open custody – a condition precedent to a subsequent transfer order? [29] In her reasons, Abella J.A. concludes that the young person must be returned to open custody after the expiration of the 15- day period covered by the initial transfer order made by the provincial director. With respect, I disagree. [30] In my view, there is nothing in s.24.2 (9) of the YOA about the location of the young person in the context of a subsequent transfer order. If a subsequent transfer order is permissible under s. 24.2(9), then the factors governing the making of the order should be those set out explicitly in the provision – the ‘escape’ and ‘safety’ factors. These factors can be considered by the provincial director irrespective of the physical location of the young person. [31] Indeed, in some circumstances, physically transporting the young person back to open custody before making a subsequent order placing him in secure custody for another 15-day period might be inconsistent with escape prevention and safety preservation considerations. Sadly, there are some young persons whose behaviour will constantly pose escape and safety risks. Once it is conceded that s. 24.2(9) empowers the provincial director to respond to these risks by ordering additional 15-day periods in secure custody, I do not see why the prelude to such an order should be a compulsory return of the young person to open custody, where the escape and safety risks will be particularly acute. [32] In short, I agree with the Crown’s submission that it would be “unduly technical and potentially dangerous” to interpret s. 24.2(9) as requiring in all cases the return of the young person to open custody as a condition precedent to consideration by the provincial director of a subsequent transfer order. The crucial and governing considerations are the review process leading up to the provincial director’s decision, and whether her decision can be justified under the criteria in s. 24.2(9). The physical location of the young person when the decision is made is irrelevant. In some circumstances (for example, seriously violent conduct by the young person either in open custody or, after transfer, in secure custody), it will be entirely appropriate for the provincial director to make a subsequent 15-day order while the young person is still in secure custody. In such cases, the physical return of the young person to open custody is a risk which is neither mandated by s. 24.2(9) nor required in logic or in policy. (3) Subsequent transfer order – are “new grounds” required? [33] In her reasons, Abella J.A. imposes a second condition on the provincial director’s jurisdiction to make a subsequent transfer order. In addition to requiring that the young person be physically returned to an open custody facility at the expiration of the initial 15-day period, Abella J.A. would require that there be “new grounds” or “new reasons” after his return before the provincial director could make a subsequent order. Again, with respect, I disagree. [34] A subsequent transfer order, like an initial transfer order, is governed by the criteria in paragraphs (a) and (b) of s. 24.2(9) of the YOA. In some situations, the young person’s conduct while in secure custody could give rise to legitimate escape or safety concerns. In such situations, it does not make sense - indeed it could very well be dangerous - to return the young person to open custody and keep watch until he repeats the conduct. [35] In his reasons in the judgment under appeal, Soublière J. addressed this issue as follows: The grounds must be fresh. This requires the Director to consider the events that have transpired since the offender is in secure custody in deciding whether to order a further transfer or extension. Such consideration, however, necessarily will take in all the events which preceded and which led to the transfer in the first instance. [36] In my view, this is a useful analysis. By “fresh grounds”, Soublière J. means that the provincial director must engage in a fresh analysis of the situation before making a subsequent transfer order. In other words, as the clock runs down on the initial 15-day period, the provincial director cannot simply make a subsequent 15-day order on the basis of her initial analysis. [37] However, the provincial director need not wait until the expiration of the original 15-day period and the return of the young person to open custody and some new misconduct by the young person before making a subsequent order. Rather, as Soublière J. suggests, the provincial director can consider the young person’s situation before the initial 15-day period expires. Moreover, the consideration should be global, taking into account the young person’s conduct in both open and secure custody facilities. [38] In my view, Soublière J.’s analysis on this point is persuasive. Unfortunately, there will be some young persons whose conduct in open custody before a transfer order, or in secure custody after a transfer order, is so problematic that it simply does not make sense to return them to open custody a mere 15 days after they were transferred to secure custody. For example, imagine a young person who violently assaults a social worker or another young person in either an open or a secure facility. Should that young person be automatically returned to open custody after the expiration of the initial 15-day period irrespective of the risk he poses to himself or others? Surely the provincial director should be permitted to protect the young person and others in a proactive fashion by making a subsequent transfer order. And surely the provincial director need not wait for the young person to commit a second violent assault back in open custody before stepping in with the subsequent transfer order. [39] I make a final comment on this third issue. In my view, it is no answer to the conundrum of the particularly dangerous young person to lay new charges against him based on his misconduct while in custody as a means of getting him back before a youth court judge for a review of his custodial status. Such a response on the part of youth corrections administrators would be tangential and, potentially, oppressive. I agree with Soublière J.’s observation on this point: To lay new charges against the offender based on events occurring after sentence is not necessary, even if new charges are justified. Indeed, this could be oppressive and counter- productive. [40] Unfortunately, if the young person’s initial misconduct in open custody or his later conduct in secure custody are meaningless in the context of the provincial director’s assessment of a potential subsequent 15-day secure custody order, the result in some cases may be the laying of criminal charges against a young person as a back-door mechanism for responding to a genuine safety concern. In my view, an interpretation of s. 24.2(9) that opens the door to this scenario is not suggested by the actual wording of the provision. Nor is it desirable. B. APPLICATION [41] The young person J-P. G. was transferred from open custody at the Salvation Army Chaudière House Youth Resource Centre to secure custody at the Ottawa-Carleton Detention Centre on November 16, 1999. One of the staff who worked with him at Chaudière House described his behaviour in open custody as “dismal”. The transfer took place because of staff concerns about the impact of J-P. G.’s behaviour on his own safety and the safety of staff and other residents at the open custody facility. [42] In the secure custody facility to which he was transferred, J-P. G.’s misbehaviour continued. He assaulted a corrections worker and caused damage to the facility. One occurrence report records: Resident G. had ripped the porcelain sink off the wall, broke a glass window and had barricaded himself in the laundry area. G. had threatened to use the broken articles on himself or staff if they attempted to enter the area. A special unit of five guards with shields and batons was called in to control J-P. G. on that occasion. [43] Not surprisingly, on November 30, 1999, the provincial director made an order extending J-P. G.’s secure custody for a further 15 days. His misbehaviour continued. On December 3, 1999, he flooded part of the young offender unit of the secure custody facility. On December 10, he smeared blood on his cell walls and himself, threatened to throw a cup containing blood at staff, verbally abused staff, attempted to sharpen a toothbrush with a stated intention of using it as a weapon, and attempted to hang his bed sheet as a noose. On December 11 and 12, he continued to verbally abuse and threaten staff and refused to leave the shower area. [44] In light of this conduct, the provincial director was forced to consider whether to make yet another 15-day extension order. In a conference call involving workers at both the open and secure custody facilities where J-P. G. had been resident as well as youth corrections administrators, Thomas Allgoewer, the director of Chaudière House, the open custody facility, expressed his concerns: “[open custody] staff can’t adequately protect themselves, except by trying to find hiding places until police arrive – no secure isolation. J-P’s language is beyond vulgarity – almost torture.” [45] On December 15, 1999, the provincial director made another 15-day extension order. This order provoked a habeas corpus application which resulted in Soublière J.’s decision affirming the jurisdiction of the provincial director to make subsequent transfer orders, and upholding the actual orders made by the provincial director. [46] This brief chronology of J-P. G.’s passage from open to secure custody and his behaviour in the various custodial facilities suggests several conclusions. [47] First, s. 24.2(9) should be interpreted to permit subsequent transfer orders. There are some young persons – J-P. G. is one – who, for their own safety and, especially, the safety of others, must be kept in secure custody for more than 15 days. [48] Second, a requirement that the young person be returned to open custody before a subsequent transfer order is even considered should not be read into s. 24.2(9). Some young persons – J-P. G. is one – are so dangerous that it courts unacceptable risk to residents and staff in an open custody facility to always return them to that facility after a mere 15- day period in a secure custody facility. [49] Third, s. 24.2(9) should not be interpreted as requiring “new” misbehaviour “after” the expiration of the initial 15-day period as a condition precedent for a subsequent transfer order. Some young persons - J-P. G. is one - engage in such violent and dangerous conduct during their initial period of open custody, or while in secure custody, that an extension of the transfer order is justified without waiting for them to explode again. DISPOSITION [50] For the above reasons, I would dismiss the appeal. “J.C. MacPherson J.A.”