COURT OF APPEAL FOR ONTARIO
DATE: 20000330
DOCKET: C33413
ABELLA, ROSENBERG and MacPHERSON JJ.A.
B E T W E E N : )
) 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.” Soubliˆre 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 Soubliˆre 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, Soubliˆre 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”,
Soubliˆre 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 Soubliˆre 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, Soubliˆre 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 Soubliˆre
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 Chaudiˆre 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
Chaudiˆre 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 Chaudiˆre 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 Soubliˆre 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.”