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«Ombudsman and Child and Youth Advocate June 2008 Ashley Smith: A Report of the New Brunswick Ombudsman and Child and Youth Advocate on the services ...»

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The Ashley Smith Report

Ombudsman and Child and Youth Advocate

June 2008

Ashley Smith:

A Report of the New Brunswick Ombudsman

and Child and Youth Advocate

on the services provided to a youth

involved in the youth criminal justice system

Published by:

Office of the Ombudsman & Child and Youth Advocate

Province of New Brunswick

P.O. Box 6000

Fredericton, New Brunswick

E3B 5H1


June 2008

Printed in New Brunswick Ashley Smith: A Report of the New Brunswick Ombudsman and Child and Youth Advocate on the services provided to a youth involved in the youth criminal justice system My Life My life I no longer love I’d rather be set free above Get it over with while the time is right Late some rainy night Turn black as the sky and as cold as the sea Say goodbye to Ashley Miss me but don’t be sad I’m not sad I’m happy and glad I’m free, where I want to be No more caged up Ashley Wishing I were free Free like a bird.

Ashley Smith, 18 years old October 1, 2006 New Brunswick Youth Centre Investigative Team Ombudsman & Child and Youth Advocate Bernard Richard Lead Investigator and Legal Officer François Levert Senior Investigator and Social Worker Francine Cantin Legal Counsel Christian Whalen Investigators and Researchers Kathryn Jardine Luke MacAulay Ben Reentovich Reviewers Steve Gilliland Julian Walker Cover photo: segregation (Therapeutic Quiet) unit cell, New Brunswick Youth Centre.

1. Executive Summary The Ombudsman and Child and Youth Advocate is publishing a report further to his investigation into the services provided to Ashley Smith, a youth involved in the youth criminal justice system. As a result of this involvement, Ms. Smith was incarcerated for over three years in two provincial correctional facilities, the New Brunswick Youth Centre and the Saint John Regional Correctional Centre. The investigation was launched on the Ombudsman and Child and Youth Advocate’s own motion in October 2007, shortly after Ms. Smith’s death atthe Grand Valley Institution for Women, a federal correctional facility located in Kitchener, Ontario, which occurred on October 19, 2007.

The report includes historical facts excerpted from document archives and video footage provided by five governmental departments as well as relevant information provided by departmental authorities, experts and other stakeholders. It includes a review of the services provided by the Department of Public Safety, the Department of Social Development, the Department of Health, the Department of Education and the Department of Justice. The report outlines 25 recommendations to government. The Ombudsman and Child and Youth Advocate is committed to reviewing and measuring the progress made with regards to these recommendations by the aforementioned departments and to release publicly a progress report in a year’s time.

The first focus of our analysis reiterates the importance of tailoring the educational system to the needs of youths suffering from mental illness or severe behavioural disorders. In addition to the recommendations to government included in a preceding report presented to the Legislature earlier this year, Connecting the Dots: A report on the condition of youth-at-risk and youth with very complex needs in New Brunswick, the Ombudsman and Child and Youth Advocate stresses the need to have representatives of the Department of Education actively involved in the case planning and continuing services to youths involved in the youth criminal justice system, given that every child and youth in this province has a right to an education.

The second broad theme relates to the availability of mental health services to children and youths who are sentenced to serve custodial time. The fundamental premise is that youths suffering from mental illness or struggling with a severe behavioural disorder should not be sent to a correctional facility. Additionally, a more structured and effective system of clinical services must be implemented within the existing provincial youth correctional facility to ensure adequate and sufficient intervention for youths who require early or continuing clinical intervention by trained professionals. These improvements underline the pressing need to increase residential capacity, recruiting, training and retaining of staff as well as establishing specialized residential facilities to offer an effective alternative to jail for youths involved with or facing the prospect of being subjected to the youth criminal justice system.

Included in this second broad theme is a review of the existing facilities and services that are provided to incarcerated youths. While the operational philosophy in the provincial youth jail is geared towards empowering youths to live fruitful lives and reintegrate successfully their respective community, whether it is tailored to meet the needs of youths suffering from mental illness or severe behavioural disorder is questionable. The existing on-site resources are insufficient to offer appropriate treatment.

Recommendations are therefore made to have, under the leadership of a clinician, a mental health treatment team constituted at the New Brunswick Youth Centre and that the necessary network be established to ensure continuity in service provision beyond incarceration. These recommendations involve the Department of Public Safety as well as the Department of Health (Mental Health Services), the Department of Social Development and the Department of Education.

The third set of recommendations addresses the use of segregation at the New Brunswick Youth Centre. The use of segregation, for whatever purpose provided by policy or legislation, must be made in accordance with more stringent legislative provisions and policies that will avoid the deteriorating impact this form of prolonged solitary confinement may have on a young person’s mental health. Amongst others, it is recommended that placements in the segregation unit be closely monitored by trained clinical staff and that the duration be limited in time and occurrences. Furthermore, senior departmental staff are to be consulted in cases involving prolonged or indefinite segregation placements and stringent guidelines should be implemented to ensure that youths confined to the segregation unit be provided with timely psychological or psychiatric intervention.

The fourth set of recommendations deals with legal implications, namely the legal representation provided to youths faced with the prospect of being involved or those who are already involved in the youth criminal justice system. This section of the report also emphasizes the importance of educating key members of the legal community with respect to keeping youths who require specialized services out of prison. This can be achieved by exploring alternative sentencing options and treatment methods. It is recommended that a collaborative multi-departmental effort be established to provide members of the legal community with educational programs and information sessions on the implications and best practices when servicing youths with mental illness and severe behavioural disorders.

The report also examines the benefits of providing youths with specialized and continuing legal assistance and representation. There is a pressing need to establish a specialized unit that would work with the involved stakeholders by taking full advantage of the provisions of the Youth Criminal Justice Act in order to find creative ways of having the existing structures better serve youths. Furthermore, given that institutional conduct can lead to additional charges, it is recommended that this specialized legal assistance be provided throughout the course of a youth’s pre-trial proceedings and during his or her custodial sentence.

The fifth theme addressed in the report involves the establishment of a more stringent policy regarding the use of section 92 of the Youth Criminal Justice Act. This provision of the federal act provides that the Provincial Director of a youth correctional facility may apply to have an 18-year old youth transferred to a provincial adult facility. It is recommended that additional criteria be established by the Department of Public Safety before this discretion is exercised by the director and that no application under section 92 proceed before receiving the Minister of Public Safety’s approval. Furthermore, any youth subject to a section 92 application should be offered legal assistance from the time the application is contemplated by the director. From an administrative perspective, increased accountability and fairness would be provided by adding a provincial review panel which would have the mandate of reviewing the director’s application and recommending alternative measures to attain the objectives of the provision, that is, the interest of the youth or the public interest.

Additional recommendations are made with regards to youths incarcerated in adult facilities. Measures should first be taken to ensure that youths (under the age of 19) be separated from the adult population. Moreover, immediate steps need to be taken to restrict the use of force on minors in provincially run adult correctional facilities. It is specifically recommended that the use of the electronic control device (taser) against a minor in secure custody be halted immediately.

Throughout the report and as a logical succession to most of the recommendations made earlier, emphasis is placed on the need for community-based services to participate actively in the reintegration of the youths remanded and sentenced to the provincial youth closed custody facility. This involvement, particularly where the Department of Social Development, the Department of Health and the Department of Education are concerned, must be continuous and consistent.

The report closes with a section meant to raise awareness on proposed reforms to the Youth Criminal Justice Act by the Federal government. Bill C-25 proposes significant changes that may result in an increase in pre-trial detention of youths as well as a rise in the number of young persons being sentenced to a closed custody facility for the purposes of deterring and denunciating them. It is argued in the report that once a full review of the Youth Criminal Justice Act has been completed (hopefully followed by a public consultation process), it will undoubtedly reveal that the act offers a number of alternative measures and sentencing options that would better serve our youths and, ultimately, our respective communities and our society as a whole.

2. Overview

On October 19, 2007, Ashley Smith, a young woman, 19 years old, from Moncton, New Brunswick, died while serving a prison sentence in a federal secure custody facility, Grand Valley Institution for Women, located near Kitchener-Waterloo, Ontario. Prior to her nine institutional transfers within the federal and provincial correctional systems 1, Ashley Smith was incarcerated from 2003 to 2006 in two provincial correctional facilities in New Brunswick: the New Brunswick Youth Centre (NBYC) in Miramichi and the Saint John Regional Correctional Centre (SJRCC).

The particular circumstances of Ashley’s experiences within the provincial and federal correctional systems may have easily gone unnoticed had it not been for her tragic death.

In fact, it quickly became obvious that her personal experience in the correctional system is like that of other young men and women involved in the youth criminal justice system, experiencing a personal struggle with mental illness and severe behaviour disorders.

Her plight along with that of her parents in attempting to obtain the best possible services and treatment for their daughter was unfortunately not an unfamiliar one for my Office.

It is a circumstance shared by other parents in this province. The unanswered question remains for them as it does for me and many other New Brunswickers: why are youths suffering from mental illness and severe behavioural disorders being sent to jail? How are their needs addressed in that setting? What must be done to change this situation and its tragic outcomes?

I was initially informed of Ashley’s situation by her legal counsel and her mother following Ashley’s transfer to the Nova Institution for Women, a federal penitentiary.

Since Ashley was at that time in the federal system her family and counsel were directed to the Federal Correctional Officer, the Ombudsman appointed to look into complaints in federal penitentiaries. Due to the similarities between Ashley’s case and the investigation I was leading into services to complex needs youths and youth-at-risk, I informed Ashley’s parents that I hoped to address some of the systemic issues raised by her treatment while at the NBYC and at the SJRCC, in an upcoming report, later published as Connecting the Dots.

Unfortunately, before this report was finalised, Ashley died. Immediately following news of her death, I was asked to comment publicly on this tragic story. I confirmed at that time my intention of investigating here in New Brunswick the background to this tragic event focusing on Ashley’s treatment at the NBYC and her transfer to the federal prison system at so young an age.

In the course of her eleven and half months in federal custody, Ashley was transferred nine times between the following facilities: Nova Institution for Women (Truro, Nova Scotia), Prairies Regional Psychiatric Centre (Saskatoon, Saskatchewan), Joliette Institution for Women (Joliette, Quebec), L’Institut Philippe Pinel (Montreal, Quebec), Grand Valley Institution for Women (Kitchener, Ontario) and Central Nova Scotia Correctional Facility (Nova Scotia provincial facility).

A local investigation in my mind was all the more pressing since my involvement to date with the youth correctional system in New Brunswick led me to conclude that unless things changed quickly, other youths in the Province of New Brunswick could live through similar experiences to those of Ashley. I am convinced that we can and must avoid such risks. I maintain that stories such as Ashley’s can be prevented provided that provincial authorities assume their responsibilities in answering the muffled or silent cry for help of youths who commit punishable acts but who are not, themselves, forcibly punishable.

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