Teen boy held ‘in error’ in adult jail

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This article was published 09/08/2017 (3145 days ago), so information in it may no longer be current.

A 16-year-old boy spent more than seven months in an adult jail in Manitoba after he was mistakenly charged as an adult because of confusion about his age.

The teen, who can’t be identified, was arrested in January and booked into Milner Ridge Correctional Centre, a minimum-to-maximum security facility for adult males, while awaiting trial on armed robbery charges.

The error came to light in youth court Friday when defence lawyer Jody Ostapiw asked for the 16-year-old’s adult criminal charges to be dropped in favour of going ahead with the proper youth charges. He pleaded guilty Aug. 4 to youth charges, including for firing a pellet gun at a 23-year-old man. The man needed surgery to remove the pellet from his right hand.

The teen, who was 15 when he and three other youth broke into a Kennedy Street apartment suite on July 25, 2016, moved with his family to Guelph, Ont., before he was identified as a suspect. Video surveillance led police investigators to arrest three others — a 13-year-old boy, a 14-year-old boy and a 17-year-old girl — before an arrest warrant was issued for the teen in Guelph.

When he was brought back to Winnipeg in January to await trial, he was incarcerated at Milner Ridge, where he remained until his court appearance before provincial court Judge Heather Pullan at the Manitoba Youth Centre.

“I’m sure there’s an extremely complicated story about how this came to occur. I have to say, in all my years, this is a new one,” Pullan said after Ostapiw explained her teen client had been held “in error” at Milner Ridge since January.

“I’ve heard of these issues in the past; sometimes there’s a borderline between when a youth is 17 and 18, and sometimes there’s documentation from other countries. If that’s applicable here, that causes some confusion, but this is a big difference,” Pullan added.

The Youth Criminal Justice Act, which governs criminal charges for those under 18, states youth must be kept separate from Canada’s adult criminal justice system. It’s meant to follow principles emphasized in the United Nations Convention on the Rights of the Child, which says “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so.”

As a result, separate youth jails exist for people between the ages of 12 to 18 who are charged under the Youth Criminal Justice Act.

A youth can legally serve time in an adult jail or prison if their crime is deemed worthy of a harsher, adult sentence, but a judge has to order the youth be transferred to an adult facility after sentencing.

Ostapiw declined to comment on the case because it is still before the court. Her client is scheduled to be sentenced in September. In court, when the judge asked why the issue took so long to get straightened out, Ostapiw said the teen was initially represented by a different lawyer.

When Ostapiw took on the case, she had to wait for the teen’s family in Ontario to provide paperwork from Eritrea that ultimately satisfied Crown prosecutors that he was underage.

A court hearing to determine the boy’s age had been set for Aug. 16 — eight months after his arrest.

“In the meantime, as I put my materials together, I was able to get the information from the family,” Ostapiw told court.

When adult charges were laid, “no one was aware at that time” of the teen’s age, a justice official told the Free Press.

A representative from Manitoba Justice was not available for comment.

Courts are sometimes called upon to determine the age of an accused in cases where proof of age is disputed or doesn’t exist, particularly if the accused’s true birth date makes the difference between dealing with youth charges versus charges under the adult criminal justice system — which often come with steeper penalties upon conviction. Those kinds of cases often involve refugees or newcomers who arrived in Canada without proper documentation.

In 2013, Manitoba provincial court Judge Robert Heinrichs ruled the court couldn’t proceed with adult charges against a teen who was born in Sudan and grew up in a Uganda refugee camp because he was likely under 18 when the charges were laid — despite the birth date he was assigned upon arrival in Canada.

That teen spent “a number of days” in custody at the Winnipeg Remand Centre before the court made a determination on his age, Judge Heinrichs’ decision said.

“It’s not unknown to the justice system in Manitoba with respect to important records like birth certificates not being available,” said defence lawyer Scott Newman, spokesman for the Criminal Defence Lawyers Association of Manitoba.

While he couldn’t comment on this particular case, Newman said it is unusual for a youth to be held in adult custody for several months awaiting trial.

“It’s certainly not a common occurrence,” he said.

The youth criminal justice system currently doesn’t fall within the mandate of Manitoba’s Office of the Children’s Advocate, but the office does frequently work with children who find themselves involved in the justice system, deputy children’s advocate Ainsley Krone told the Free Press via email. She couldn’t speak specifically about this case — nor could the Manitoba Ombudsman’s office, which investigates complaints about provincial institutions. But Krone said “we would consider it unusual.”

“It is important — wherever possible — to keep youth and adults separate and to ensure that youth involved with the justice system have access to the kinds of services and supports that can assist them in turning their lives around. Youth and adults are not treated the same when dealing with the justice systems — the youth system has as a key tenet, a focus on rehabilitation,” Krone wrote in the statement.

“In addition, the Youth Criminal Justice Act recognizes the amplified vulnerability of youth, their right to special protections and rights, the importance of acknowledging responsibility, faster resolutions, as well as the vital role of parents and family in how a youth can be supported to lead a more positive life going forward.”

katie.may@freepress.mb.ca Twitter: @thatkatiemay