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7. YOUTH JUSTICE: SECURE AND OPEN CUSTODY/DETENTION

Introduction

The Ministry of Children and Youth Services’ 2013-2018 Strategic Plan indicates that the ministry is accountable for the provision of youth justice services, including: “a continuum of diversion, community and custodial programs for youth who are, or are at risk of being, in conflict with the law to: improve outcomes; reduce re-offending; prevent youth crime; hold youth accountable; and contribute to community safety.” The provision of services to youth in conflict with the law is governed by the Youth Criminal Justice Act (YCJA) and the Child and Family Services Act (CFSA).

The Youth Criminal Justice Act, federal criminal justice legislation that applies to youth aged 12 to 17 at the time of offence, was proclaimed in 2003. The legislation embeds the recognition of the greater dependency and reduced maturity levels of young people. Principles of sentencing include deterrence (added as a principle in 2012); rehabilitation; denunciation (added as a principle in 2012); proportionality; incapacitation (use of custody as a last resort) and restoration.

As indicated in documents provided to the Panel by MCYS, the Ministry provides the following, as required by the YCJA: prevention and diversion; alternatives to custody and community-based interventions; the provision of rehabilitative programs for youth who are under supervision and care; services and supports targeted to specific populations and reintegration programs for youth being released from custodial sentences into the community. Given the legislative direction that the use of custodial sentences be reserved for serious repeat offences, serious violent offences and failure to comply with non-custodial sentences, the Youth Criminal Justice Act has had a profound impact on youth justice services in Ontario and indeed, across Canada.

Issues

System Capacity

With the implementation of the Youth Criminal Justice Act (YCJA), there is a decreasing reliance on incarceration for youth on the part of the courts, and the Ministry has developed a broad and extensive range of community-based alternatives to open and secure custody and detention. The Ministry reports that there were over 400 community based programs across the system in 2014. According to Ministry statistics provided to the Panel, custody admissions declined by 72% between 2003 and 2014 and detention admissions declined by 33% in the same period (MCYS, nd). Secure custody/detention beds have been reduced from 1,113 province-wide in 2003 to 544 in 2014. Of these 544 available beds, less than 300 youth were in secure custody/detention per day in 2014 (MCYS, nd). Open custody/ detention beds have been reduced from 1,022 in 2003 to 395 in 2014 and to 332 in 2016. Average counts over the month of September 2014 ranged from 95-116, and in September 2015 from 117-136 (MCYS, nd). The proportion of youth receiving a community sentence following a finding of guilt has increased eighteen percent and over 8,000 youth were diverted from formal court proceedings in 2013-2014. In 2013-14, 28,981 youth were served in the community. Ontario’s youth crime rate has decreased by 46% between 2003 and 2014 (MCYS, nd).

At the Panel’s request, Youth Justice Services conducted a snapshot of counts in every open and secure custody and detention facility across the province between November 8-10, 2015. Secure custody counts over those three days ranged from a high of 52 to a low of 2, with directly operated facilities operating at approximately 50% capacity over this period and serving a mix of custody and detention (with the exception of RMYC which serves predominantly detention), and transfer-payment facilities operating at a range of 18%-92% capacity over this period with most facilities serving those with detention (MCYS, nd). There appears to be some regional disparity in utilization rates across secure custody facilities. There is also a disparity with gender dedicated facilities for female youth experiencing more consistent underutilization. During the three-day period snapshot, facilities in the East operated at an average 40% capacity, in Central Ontario at an average of 47% capacity, in the North at an average 49% capacity, and in the West at an average of 57% capacity (MCYS, nd).

Open custody counts at transfer payment facilities over the November 8-10, 2015 window showed a similar pattern of utilization. Utilization at most facilities during this time was 25%-50%, with a low of 8% and a high of 87.5% (MCYS, nd). Regionally, the highest utilization was in Toronto (56%), followed by the Central and Eastern regions (35% and 32% respectively), and the lowest utilization was in the Northern and Western regions (28% and 27% respectively) (MCYS, nd).

All operators of open and secure custody facilities we spoke with acknowledged the low and declining counts and excess capacity across the system. A number of the facilities that we visited had only one or two young persons in custody with a full staff complement. One operator advised us that one of their open custody residences had been empty for a period of five weeks at one point.

Some operators expressed that they fully expected that their facilities would be closing. Others indicated that they would like to have the opportunity to re-purpose their custodial resources to provide residential services to a broader group of at risk youth. According to documents received from the Ministry, two open custody facilities are currently listed as being re-profiled from open custody to reintegration facilities on a pilot program basis (MCYS, nd). Interest was expressed in the two reintegration housing pilots and the potential to convert open custody residences to reintegration housing where there is a demonstrated need. Transitional housing for young people being discharged from open and secure custody was also mentioned as a possible initiative. Other potential groups include youth on probation at risk of homelessness and youth requiring a residence to be candidates for bail consideration (MCYS, nd).

We explored with stakeholders the potential for open custody residences with low counts to be used to house child welfare and other non-youth justice engaged youth, together with youth serving open custody sentences. The prevailing feedback was that this would not be appropriate. Although the Provincial Advocate for Children and Youth, and other stakeholders, commented that often these young people do cross over between the youth justice, child welfare and children and youth mental health systems, they felt it was inappropriate to send a young person who has not committed a crime to a custodial setting. It could be perceived as punishment and be stigmatizing. The exception to this perspective was expressed by some Aboriginal partners in the North, who indicated that, in the absence of other solutions, they would be receptive to co-locating their youth in order to keep them closer to home.

Several people we spoke with indicated that the excess capacity is “the elephant in the room” and there have not been any systemic opportunities to bring operators together to discuss strategies and solutions. Services are reported to be delivered differently by each region and province-wide meetings to discuss options to re-purpose, rationalize capacity, break down barriers to the use of community resources and other strategies for more effective use of resources to meet the needs of young people, would be welcome.

Two Distinct Service Delivery Systems

Historically, the provision of youth justice services in Ontario was split between two provincial government ministries: the Ministry of Correctional Services for youth aged 16 and 17 at the time of their offence and the Ministry of Community and Social Services for youth aged 12 to 15 at the time of their offence (MCYS, nd). Secure custody and detention for the older youth were provided through directly operated correctional facilities while these services for the younger youth were contracted out to transfer payment agencies (MCYS, nd).

With the proclamation of the Youth Criminal Justice Act in 2003 and the creation of a new Ministry of Children and Youth Services, a decision was made to integrate the two service delivery systems and transfer responsibility to the new ministry. At the current time, there are six directly operated secure custody/detention facilities and 14 secure transfer payment operated facilities in Ontario (MCYS, nd). With few exceptions, the Ministry continues to operate the two legacy systems in secure custody and detention as two quite distinct service delivery systems: directly operated and transfer payment operated services (MCYS, nd).

During our consultations, the Panel consistently heard feedback from managers working in secure custody/detention that the directly operated (DO) and transfer payment (TP) operated systems are very siloed. There is some movement of young people across these systems and professional development opportunities provided by the Ministry are accessed by transfer payment staff. Nevertheless, opportunities are ad hoc rather than systemic and the management of the systems is not integrated.

There is no mechanism to bring the full resources of the two systems together to ensure that meeting the needs of young people is optimized. The Panel was advised that there are not consistent standards for the hiring, training and compensation of staff working in the two systems. There is no mechanism to ensure consistency of practice across the two systems. We were advised that there is no systemic mechanism for sharing best practices or having strategic conversations about challenges in the system. It was reported that, while there used to be occasional meetings of the TP and DO sectors, this was discontinued.

The Panel asked whether there would be any barriers to fully utilizing all secure custody/detention facilities on a systemic basis to ensure the best placement of a young person in accordance with his or her needs. We were advised that there is a perception, which is not borne out in reality, that the DO facilities take the highest risk youth while the TP facilities take easier-to-manage, lower risk youth. The position was advanced that, in reality, both are equipped and capable of supporting the full range of youth and have had experience in doing so. A review of offender profiles across facilities, provided by the Ministry, provides support for this position.

Relationship Custody

Youth Justice Services reports that they are committed to the use of a relationship custody approach, directed at fostering respectful, caring relationships between staff and young people and enabling staff to provide effective, evidenced based interventions to benefit youth. Documents provided to the Panel indicate that strategic priorities include enhanced staff training on the use of a relationship custody approach for staff working in directly operated youth centres. It is evident that efforts have been made to implement relationship custody in both directly operated and transfer payment operated facilities.

Through the Panel’s direct observations as well as through reports from the Provincial Advocate for Children and Youth, the degree to which this has been effective appears to be inconsistent (PACY, nd; PACY, 2012). Some secure custody centres appear to struggle with mitigating the total control context of custodial cultures and processes and experience challenges in optimizing relationship custody. Other facilities appear to be more able to institute relationship-based care. There is some indication that the size of the facility contributes to a youth-centred, therapeutic focus and the ability to establish positive relationships with young people, with smaller facilities often more able to accomplish these objectives.

The Panel visited several open and secure custody/detention facilities. Managers, program staff, front line staff and young people were interviewed in each case. In some cases, the views of managers, program staff and front line staff varied in their assessment of the degree to which they were able to implement relationship custody in their facility. While all identified the effective use of relationship custody as desirable, we heard that there are implementation challenges in some cases.

The challenges in fully implementing and optimizing relationship custody were reported to include:

It was suggested that the opportunity to document, develop standards for relationship custody, and share best practices across TP and DO sectors, would be of assistance.

Young people that we spoke with indicated that their experiences varied. They indicated that they always knew whether a staff member genuinely cared about them. Some staff made a particular effort to express an interest in the youth, to build trust and respect, listen to them and to establish a relationship. As indicated in the report It Depends Who’s Working released by the Provincial Advocate for Children and Youth, young people reported that their experience in custody varied according to which staff were working. The staff in some facilities were described by young people as being more caring overall and the youth experience at that facility was more positive as a result.

Roy McMurtry Youth Centre

The largest secure custody/detention centre, the Roy McMurtry Youth Centre (RMYC), is a purpose-built facility that opened in 2009 to house both male and female youth in the Greater Toronto Area (GTA) with a total capacity for 192 youth in separate and apart smaller cottage style units. Each unit has the capacity to house 12 youth (MCYS, nd). In mid-2013, the female youth were transferred to Syl Apps Youth Centre. In 2014, despite a capacity for 96 males, the average resident count was 64. At the time of the snapshot of counts taken between November 8-10, 2015 the count was 52 (MCYS, nd). In spite of the lower count, the centre continues to house a much higher number of youth than any of the other secure custody/detention facilities in the province.

According to statistics for male youth in 2013-14 provided by RMYC, the vast majority of youth are in secure detention (397 of 421 admissions) versus custody (21 of 421) (MCYS, nd). The average length of stay is very short on average (detention: 32 days; custody: 71.3 days), for an average length of stay of 37.8 days. Categories by offence types were: Serious Violent Offences (264); Weapons (63) and Administration of Justice, which includes failure to comply with non-custodial sentences (103) (MCYS, nd).

The Panel met with senior leadership at the Ministry and with managers, program staff, front line staff and youth at RMYC. We also heard from youth that we met with at other facilities about their experience at RMYC and other stakeholders who expressed their perspectives on the largest youth centre in Ontario.

We heard that, in spite of the vision that RMYC would be a state-of-the-art, modern, dedicated youth centre serving GTA youth, offering a therapeutic, youth-centred environment and the best evidence-based rehabilitative programming, challenges have been experienced from the outset. The RMYC was staffed at the time of opening through a combination of staff with experience working in the adult correctional system and new hires, who often did not have experience working in a secure custody/detention youth justice context. The Panel heard that challenges were experienced in some cases, with staff from the adult correctional system who had difficulty adjusting to a youth­centred, rehabilitative model. Some of the new, inexperienced staff struggled to confidently manage the peer-on­peer violence and the gang-related issues.

The size of RMYC and the composition of the resident population have proven to be challenging. Although data was not made available to the Panel, the RMYC management team and senior management at MCYS reported that there are a significant number of gang-affiliated youth at the centre, many of whom must be kept separate from opposing gangs to ensure their safety. Many youth are reported to come from high needs/high risk or priority communities with significant systemic challenges including poverty and lower levels of education and employment. A significant number of youth are reported to have had significant prior involvement with the youth justice system and score highly on criminogenic risk factors.

In 2013, the Provincial Advocate for Children and Youth released a report entitled It Depends Who’s Working based on reviews conducted at RMYC from 2009 to 2011. The report’s key finding is that staff make or break the youth experience and that this underpins every aspect of life at the facility. He indicates in his report that staff qualities such as warmth, empathy, genuineness, respect and flexibility have been shown in the literature to reduce recidivism so the ability to establish relationships with young people on this basis is important.

Many positive relationships were reported by youth with one or more front line staff at Roy McMurtry Youth Centre but there was reported to be a wide variation in how staff treat youth. The Provincial Advocate for Children and Youth indicated that there was an emphasis on the use of restraints and containment rather than de-escalation and problem solving and that relationship custody was used in a varied and unpredictable way. He also highlighted concerns about safety as a result of incidents of peer-on-peer violence; allegations of excessive use of force by staff on the part of 20% of youth who reported being physically restrained; limited access to family; and wait lists for programs (PACY, 2013).

Young people we met with in other locations, who had been at RMYC, generally reported that their experience was less positive there than at other facilities. Some indicated that they felt unsafe due to the peer-on-peer violence and that the heightened focus on security and control as a result of these issues as well as the sheer numbers of youth, led to a very rules based environment with higher use of restraints and secure isolation than at other youth centres.

Dedicated efforts have been made by the Ministry and the Centre’s senior management team and staff over the past few years since the centre opened in 2009, to address the challenges, including increasing staffing, enhancing staff training, reducing the count, providing further family visiting flexibility and expanding program offerings (MCYS, nd).

There is an extensive on-site school program offered by the Peel District School Board, including a skilled trades program. While many youth are disengaged from community schools and have records of suspension and expulsion, the Panel was advised of some good examples of educational successes. Keeping gang members separated while at school was reported to be challenging. In addition to the school program, RMYC provides individual and group programs to address education, rehabilitation and reintegration goals as well as criminogenic risk factors (MCYS, nd).

In March 2014, the EPIC Centre was opened to provide dedicated learning space for life skills, cognitive behavioural programs, employment and financial literacy, substance abuse and anger management programs. Statistics provided for the EPIC Centre indicate that enrolment numbers are low compared to counts. Given the high numbers of detention youth and their short stay at RMYC, the delivery of programming is challenging. Nevertheless, the Panel was pleased to see this expansion in programming and noted that since opening, a total of 586 programs, and 676 services and activities have been completed (MCYS, nd).

Secure Isolation

The use of secure isolation for a number of secure custody/detention centres, remains challenging. Under the CFSA, secure isolation of a young person is permitted when the behavior of the youth presents imminent risk of serious harm to another person/property and when no method less restrictive is practicable to manage his/her behavior. It is not permitted to be used for punishment. Youth under the age of 16 cannot be kept in secure isolation for more than 8 hours in any one day or 24 hours in a week, and youth 16 years of age or over can’t be held over 72 hours unless approved by a Provincial Director. Anytime a youth is kept for more than one hour, there are protocols for reviewing the youth in isolation at prescribed intervals. While in secure isolation, youth retain all of the rights they have under the CFSA.

The Office of the Provincial Advocate for Children and Youth of Ontario published a systemic review of secure isolation in Ontario youth justice facilities in 2015, following an Auditor General’s report that spoke to the use of secure isolation. The review found that while there is a general trend across the province of declining use of secure isolation (particularly among directly operated facilities following the Auditor General 2012 report), a pattern of high use continues to be observed in some facilities, and more so in directly operated facilities than in transfer payment facilities (PACY, nd). The Advocate could find no patterns of resident profile, size of facility, or other indicators that would explain the variance in application of secure isolation (PACY, nd).

The review also noted that the conditions for confinement for the use of secure isolation were being inconsistently applied across facilities, with some young people being held longer than the maximum periods, and that the conditions of confinement did not reflect the basic rights of young people (PACY, nd). Specifically, the Advocate cited feedback of youth who had experienced isolation that spoke to concerns about basic needs being met while in isolation – such as access to fresh air, hygienic practices and supplies (showers and toileting), adequate food – and the lack of mental stimulation (PACY, nd). A further examination of the conditions of confinement particularly when the time period is longer, was recommended. The review indicated that the implications of secure isolation can be severe, potentially causing serious mental health issues including anxiety, depression, anger, increased risk of self-harm and suicide, and may be especially harmful to people with mental health disorders. An increasing body of literature showing that secure isolation can change brain activity and result in symptoms within seven days was cited to underscore this point (PACY, nd). Further, a review of international literature by the Advocate revealed consensus that secure isolation not be used at all with adolescents because of the potential implications for mental health and safety.

Our consultations echoed many of the concerns of the Ministry, the Advocate and international experts. Stories about the significant variation in secure isolation practice across secure custody facilities in frequency, duration and conditions were consistent with the data in the Advocate’s review. The facilities we visited that make minimal use of secure isolation were clear that establishing rapport and effective relationships with youth; a rehabilitative, youth­centred culture; working to de-escalate youth who are acting out; and engaging with youth, make a significant difference in the need to use secure isolation. Once in secure isolation, actively engaging with youth to move them out of secure isolation at the earliest opportunity and back to their units, reduces the duration of time in secure isolation. We found that conditions also vary amongst facilities, with some taking steps to ensure they are not punitive but just safely contain youth until they have calmed down and then they are removed at the earliest opportunity. Young people themselves confirmed that their experience has been consistent with this review, with some facilities using secure isolation much more readily than others. Analysis of the 2014 secure isolation placement data shows that 23% of the secure isolation placements lasted for 24 hours or more.

Reintegration Supports

MCYS documents related to the provision of youth justice services provided to the Panel support their commitment to the provision of reintegration programs and supports for youth being released from custodial sentences into the community. This is mandated by the Youth Criminal Justice Act and is critical to any gains made while in custody being sustained when the young person is reintegrated into the community (MCYS, nd).

The Ministry is piloting two reintegration centres for this purpose. The Panel visited one of these residences. It opened in March 2015 and is described as a supportive reintegration residence that provides transitional housing and programs for up to 5 male youth between the ages of 16 to 20 referred by their probation officers on a voluntary basis. The program serves young men who are at risk of involvement with the justice system or are involved with the justice system and are experiencing homelessness or living in unsafe or unsustainable housing. Individualized plans are developed with each youth to meet their particular needs and residents must attend school, work, training or day treatment programs. They are connected to community resources in mental health, addictions and other areas as needed.

The Ministry also initiated assignment of probation officers for all youth in detention as part of the Youth Action Plan in 2012. The probation officer works with the facility staff and the youth, on a voluntary basis, to develop a release plan and identify community supports.

Some secure and open custody facilities employ reintegration workers whose responsibilities include helping young people to successfully reintegrate and be connected to their families/caregivers and communities. This, however, is not a consistent practice across facilities. The Panel observed and heard that reintegration supports were often absent or inadequate to meet the needs of youth through an effective community reintegration process.

The Panel consistently heard that there is a need for more reintegration support for young people leaving custodial settings. While some facilities had reintegration workers, others did not. Even when there was a reintegration worker position, we almost always heard that the resources were stretched and not adequate to provide the necessary transition supports to bridge custody and community. It was particularly noted that there is often a gap in family involvement and that additional resources are needed to engage families and provide them with the necessary skills and access to programs to support the return of the young person back home.

Implications for Recommendations

System Capacity

Despite previous efforts by the Ministry to match the capacity for custodial beds to demand, as the numbers of young people receiving open and secure custody dispositions has declined dramatically since the Youth Criminal Justice Act was proclaimed, there remains very low occupancy in many secure custody/detention and open custody/detention facilities, with regional variations noted previously in this chapter. Until such time as the DO and TP operated secure custody/detention systems are integrated, it will be difficult to optimize the use of excess capacity therein but this should be undertaken to best meet the needs of young people and to maximize efficient use of resources.

Optimizing the use of open custody beds in particular to meet the needs of young people has proven challenging. The principles of providing care in proximity to home; maintaining gender-dedicated residential care; proximity to courts given the number of detention youth and concerns about the propriety of housing young people who are not serving open custody dispositions in open custody residences, are difficult to reconcile.

The need to re-imagine how open custody residences can support the range of needs of youth justice-engaged youth is evident. Reintegration support for young people being discharged from open and secure custody in the form of structured and stable supportive housing with programming and community reintegration support (particularly for youth transitioning out of secure custody) could assist in their successful transition. In addition, supportive housing for youth on probation, and youth requiring a residence to be candidates for bail consideration, could be considered. Low occupancy open custody residences could be converted to general youth residences for the full spectrum of youth in conflict, or at risk of being in conflict, with the law. This would require a review of Ministry policy and an openness to removing barriers to such a practice.

There may also be opportunities to convert low occupancy open custody residences to child welfare group homes or children and youth mental health beds if there is a demonstrated shortage of such beds. As the Ministry has not undertaken a bed mapping exercise across sectors, this is not known.

In some cases, the best course of action may be to close open custody residences and reinvest the resources elsewhere in residential services for young people. While there are options for the conversion of low occupancy open custody residences, this should not be undertaken if there is not a clear, demonstrable demand. Wherever possible, youth in conflict with the law should be supported in the community.

Two Distinct Service Delivery Systems

With few exceptions, the Ministry continues to operate the two legacy systems in secure custody and detention as two quite distinct service delivery systems: directly operated and transfer payment operated services, without seeming to maximize quality of care, best practices and efficiencies across the system.

An integration of the two systems into one harmonized system could bring the full resources of both systems together to enhance opportunities to meet the needs of young people in secure detention and custody. Best practices identified in both DO and TP could be scaled up across the system and consistency of standards and practice could be achieved. Opportunities to optimize the implementation and practice of relationship custody could be realized. A common pre-service training curriculum could be developed and delivery could be harmonized in collaboration with both systems.

Relationship Custody

The degree to which relationship custody has been effectively implemented is uneven across secure custody/ detention facilities. A number of barriers have been identified to realizing the full potential of a youth-centred culture that is underpinned by respectful, caring and flexible relationships between staff and young people.

These barriers need to be addressed and best practices in relationship custody should be shared across all operators in an integrated system of secure custody/detention.

RMYC

The Ministry and the RMYC senior management team have clearly made many efforts to mitigate the challenges inherent in the RMYC environment. Such measures have included reducing the count, adding more staff, providing additional staff training, introducing more programming, and reviewing and amending policies and practices to address various issues raised.

While they are to be commended for these efforts, and progress has been made, challenges remain. It is difficult to fully mitigate the impact of the size of the facility and the concentration of youth with gang-affiliations in one centre. In turn, these conditions create a heightened focus on safety, security and control to the detriment of the full realization of the potential of relationship custody.

Secure Isolation

The use of secure isolation varies significantly across secure custody/detention facilities in terms of both frequency and duration as well as conditions while in secure isolation. This is of significant concern to the Panel and we are reassured that the Ministry shares these concerns and is working to address the issues raised by the Provincial Advocate for Children and Youth. It is clear that sustained efforts will be required by the Ministry to address inconsistencies in practice in youth justice services, mitigate the impacts on youth of secure isolation, develop alternatives to the use of secure isolation, share best practices and ensure that practices are consistent with the Ministry’s policy directives and legislation.

Reintegration Supports

The importance of reintegration supports, including housing where applicable, are recognized by the Ministry for the success of young people in conflict with the law. While there are some resources in place in this respect, they are not consistently available and generally described as insufficient during our consultations. There is a need to ensure that strong reintegration supports are in place for young people transitioning from custodial settings, particularly from secure custody. This will optimize and sustain gains made from participation in evidence-based and evidence-informed programs while in custody and will support the young person in reintegrating into his/her community. Reintegration and after care programs are also essential to reduce recidivism.