Hey there, time traveller!
This article was published 9/11/2013 (960 days ago), so information in it may no longer be current.
I have a dream about what I would do if I were to ever win the lottery or otherwise have the good fortune to sign my own paycheques, as it were.
I would travel the province and country for at least two full years to examine the youth justice system as only considerable time and complete, undivided focus, could allow.
I spoke last week to a great group of University of Winnipeg students who are studying the justice system, the court process and criminal law procedure in depth.
They're looking closely at issues including disclosure, wrongful convictions and other serious systemic problems that can happen and, why.
It was only in the dying minutes of my time with them that I remembered the most important thing I wanted to tell them.
That being: When it comes to youth justice and all that entails in the true meaning of the word "justice," I believe we're failing and we either need to do better or find new tools and ways of doing things. I'm just being honest.
We're not failing in the sense that there aren't great people, from correctional officers and social workers to lawyers and judges, grinding it out every day, doing the best with the resources they have to work with. There are, and they don't get nearly enough attention or accolades for their work.
I mean we're failing systemically. In terms of the Youth Criminal Justice Act's stated intent to promote a just and safe society and long-term protection of the public by focusing on rehabilitation, and not punishment, as a first principle for young offenders, who have diminished moral culpability because of their ages.
More importantly, we're failing in how the youth criminal and child-welfare systems intersect and don't appear to share each other's objectives.
Well, they may in principle. But in practice, as I've continually seen over the years, it's a very different reality entirely.
I'll give you just one small example of this.
I call it the 'how kids fall into a black hole' scenario. Followers of my blog over the years are familiar with my coverage of this issue, how youth jails become 'warehouses' for child-welfare and mental health concerns
This sad drama appears in various permutations, but almost always involves a bewildering and (I say) shameful lack of communication and co-ordination between Child and Family Services and the criminal youth justice system.
Interestingly, it's seldom that you can just point a blaming finger over this issue - and that's not my intent here, really. But it never seems to change.
Here's this week's example. One where it takes a little time to tease out all the complexities at play. Apologies.
It also bears mentioning that as a member of the public, one doesn't often get the full, fleshed-out picture in youth court.
Due to CFS privacy and YCJA access provisions, there's no opportunity to access reports and other documentation which could provide greater detail as to what's really happening. So you're left sometimes with what you're left with in terms of what the various actors put on the record.
But the lack of access to documents doesn't mean that the issues aren't valid, that they're somehow just misunderstandings borne out of a lack of public disclosure.
The problems are real.
In the spring of 2013, the parents of a criminally-involved 14-year-old ('DD' we'll call him here) sign a voluntary placement agreement with CFS for six months. His folks have seven other kids at home and DD's acting out causes them to ask CFS for help. CFS - Southeast CFS to be exact - steps in to take him.
He's the only one not living in care (save for an older sister who also came into care due to a pregnancy). He has suspected FASD and ARND, cognitive issues which make him more apt to act impulsively.
In his own words: "I do before I think."
In May, he's handed a year of probation for a break-and-enter, failure to appear in court and failing to comply with a bail order. The sentence, given that it's his first-ever, is a year of probation. In June, he's arrested again for breaching probation and given a few hours of community-service work.
In September, he pleads to more probation breaches and gets more community-service hours.
What's important to note: The probation breaches are all because he leaves the various emergency hotel shelters CFS is routinely placing him in, often returning home because he's upset at the fact all his siblings remain there and he's not.
Since he came into care, he's been shunted between eight hotel placements.
It's not all CFS's fault for this, however. Court hears more "stable" foster placements can't be had for him until he gets his behaviour in check. Yes, he's 14, but some of the responsibility has to fall on his shoulders.
But arrested again in early October, DD plummets into the black hole.
It happens like this: The Crown, rightfully, won't consent to bail him out unless CFS comes up with a better residence plan than hotel rooms for him to live in.
And it's pretty clear to the defence it would be a hard sell to a judge to release him if there's nothing new in DD's bail plan to satisfy the court it just won't all end up with him collared again and returned to the Manitoba Youth Centre.
But at the very same time, the skimpy nature of DD's criminal past and the current charges he's facing makes him ineligible for custody at all if he were to just plead guilty and deal with his charges. In essence, we're criminalizing a child, largely because of systemic factors beyond his control. I see that as a big problem.
And CFS, you ask? They're hard to track down.
Now, over the years, I've heard more than a few defence lawyers complain that they can't get CFS down to court to answer questions about one of their youth clients.
Despite their complaints, I can count on one hand the number of times I've actually seen a judge subpoena a social worker — no small thing — to attend and talk about what the heck is going on with a young person.
It happened this week in DD's case. On Tuesday, the case comes up in the afternoon, and Judge Catherine Carlson is told his defence lawyer was asked by another judge to call DD's social worker and get her to come to court and answer questions about the hotel "emergency" placement plan for him. The CFS worker, in the past, had been in court to support him.
The lawyer is candid, says she called and the worker replied, "she's not available today — she's not available any day this week and the earliest she could attend is Tuesday (the 12th). And so, she's not available to the court."
As well, there is no non-hotel plan available at this time, the lawyer says she was told.
The worker was asked if there was a day she could "squeeze into her schedule" but the lawyer was still awaiting a call back to see if that was possible.
Is there anyone else from the agency that could come? Carlson asks. This isn't likely. Before her, Carlson has an in-depth forensic psychology report outlining the concerns with DD and CFS's continued use of a hotel-placement plan for the future.
The Crown relays its position again. It would consent to DD's bail if there was a "proper plan" in place, but, "we're doing (DD) a failure because we keep returning him into the same poor circumstances," the prosecutor says. The hotel placements are "not adequate."
He says the court has the option of mandating CFS to attend.
"I think that what's troubling to me is the worker did come down and express concerns, which is why the forensic (report) got ordered. But then she didn't participate in the forensic and... it seems... that just at this point there's more questions than answers... I guess we're stuck."
"Somebody's got to come down and answer what's going on here."
Judge Carlson agrees: "To say that she's unavailable till Tuesday is concerning knowing that there's a young man in custody and needs a better plan."
So, a subpoena ordering the worker into court for Thursday is drawn up.
That day, the worker duly appears, and hears now from Judge Carena Roller.
"There is, for whatever reason, a lack of plan... he's remaining in custody when he's not eligible for custody. That's a problem for me," Roller says.
The forensic report hints at the fact an undiagnosed medical or psychological issue is at play in DD's situation, an issue preventing him from complying with his court orders and therefore prompting his return to custody.
"The irony is we don't know that because there was no response from the agency, no background provided to the assessor," Roller says.
Ah, the worker says, that's not entirely true. She was in touch with the doctor who assessed DD. There was another report done. The other one wasn't prepared for court purposes and looked at his needs in the community. The worker insists that second report was sent to the doctor who did the forensic evaluation.
Regardless, DD's impulse control is "severely impaired," the worker says. It's possible medication may help calm him — but doctors won't prescribe it until they've had up to three weeks to observe his behaviour. That's been a problem because DD goes AWOL, she says.
As for where he'll live upon release, the worker says as follows: "Placement is determined on the day of release based on what beds are available in the system. I can tell you what's available today, but I couldn't tell you what would be available on a different day."
What's available today, Roller asks.
"An emergency shelter."
Is that 24-hour supervision?
"No. The shelter we're talking about is a 16-bed emergency shelter where he would be expected to attend the day program (school)... we haven't been able to register (DD) in school because he tends to be AWOL before we can stabilize a program," the worker says.
Why aren't we talking about a locked setting then?
"For that to happen, we need a social history and approval for that level of funding," says the worker. "We haven't had that yet. Now, with these reports, we're more able to support that application. And that is definitely a plan underway."
When asked, the worker couldn't say what date DD's six-month voluntary placement with CFS expires. "Probably" in the next couple of months, she says.
Roller is curious (as we maybe all should be about a child in care): Why doesn't CFS already have a social history on DD?
The worker's answer is evasive. "In order to apply for locked facility... we have to be able to support it by behaviours," she says.
The hearing is then stood down for a few minutes. A behind-the-scenes discussion results in DD pleading guilty to a handful of breaches and being sentenced to a few extra hours of community service work.
In his sentencing submissions, the Crown sounds unconvinced anything will change. Some of DD's issues are systemic, he says. Candidly, some are also his as an individual, he says.
"Best we can hope is he goes on his way and starts to listen to his probation officer."
DD's defence lawyer tells Roller the youth is confused and upset at the fact he's not allowed to be at home with his family and that's why he flees from his hotel placements.
"He thinks that if he acts out and leaves these shelters they'll give in and let him go home - that's not the case," she says.
By now, he's spent three weeks of his life in custody. The lawyer questions how it appears the CFS position on finding a proper placement is somewhat incumbent on him, based on what the social worker has said. It shouldn't be "all on him" to prove his way out of the emergency hotel shelter situation, the lawyer says.
"It's turning out to be... a vicious, vicious cycle."
In addressing DD, Roller seemed to agree.
"I know that you haven't had a stable placement since you came into agency care," she told him. "And I'm convinced that the people who are working with you aren't talking to each other like we need them to do. We need you to have a team in place to work together and I hope that's what's going to happen going forward. Because we need your behaviour to improve," she said.
She also reminded him of his CFS worker's implicit promise to the court to get moving on finding a more palatable solution for him, to find him at least a place, "where you can unpack."
"And she's going to do all of that right away because we don't want you bouncing around," said Roller.
If you're still with me by now, you'll have perhaps noted some of the questions DD's case — but one of many hundreds of youth court cases in Manitoba — raises.
At the top of my mind are:
- How can a child be taken into agency care and the agency doesn't have a "social history" on him months into his stay? What exactly is a "social history?" It was clear his parents called in CFS, so why don't they have such information at hand?
- How can a social worker be subpoenaed into court and not have exact answers (like the date of expiry of DD's placement agreement) at hand about the case she's there to talk about?
- Is a hotel room for a potentially mentally challenged and certainly confused teen boy really the best we can do for him? It personally strikes me as disingenuous to say it's somewhat incumbent on DD, given the circumstances as presented, to "earn" his way out of the emergency shelter system. If it's the case that it is, then isn't that a problem? It strikes me DD was stopped into care by way of a voluntary agreement with no case planning as to what to do with him once he was there.
- What prevented the two systems from "talking" to each other in this case and perhaps finding a better — or at least more expedient — outcome here? Resources? Stubbornness?
We can say "justice" has been served in the sense that a sentence was meted out, but I think we all know it wasn't here. I fully expect to see DD back on the court docket in the coming months.
There's many, many more questions, obviously. Finding answers without taking a long and focused look will be impossible.
The "vicious, vicious cycle" will continue until there's pressure enough to end it.