Edmonton

'Physical and psychological abuse': charter challenge scrutinizes segregation of Edmonton young offenders

A constitutional challenge is arguing that the extended time an Edmonton young offender spent in segregation caused him to reoffend.

'I begin to hear and see things and wonder what is reality anymore,' teen wrote to justice minister in 2015

A charter challenge heard in court his week argues ongoing solitary confinement of a teenager at the Edmonton Young Offender Centre amounts to "physical and psychological abuse." (CBC)

When Brandon tried to strangle himself with a sock it wasn't a suicide attempt.

It was an attempt, yet again he says, to get transferred from solitary confinement at the Edmonton Young Offender Centre (EYOC) to the mental health unit.

In both units, youth are locked up alone, 23 hours a day. But in the mental health unit, at least, Brandon could talk to other kids underneath the door.

The teen says he got more than he bargained for during his stay last December, which stretched into 28 days.

He shared that story in Edmonton provincial court this week, where Judge Geoffrey Ho will have to decide whether extended time in solitary confinement violated Brandon's protection from cruel and unusual punishment under the Charter of Rights and Freedoms.

Brandon has been in and out of incarceration since he was 12. The last time he spent a significant amount of time out of segregation was prior to August 2015, he testified.

A pseudonym is being used because Brandon, now 18, was a youth at the time.

Crown prosecutor Aleisha Bartier is seeking a reprimand for Brandon after he was found guilty of assaulting another inmate with a cafeteria tray.

Defence lawyer Karen McGowan is arguing for a stay of proceedings. Her charter application states Brandon was subjected to  "physical and psychological abuse" through his placement in "ongoing solitary confinement."

He was denied access to education and physical recreation, and was subjected to social isolation, the document says.

That "caused severe psychological and behavioural problems" and caused him to "act out and commit the offence for which he has been found guilty."

Killed time pacing, flooding toilets

Brandon's ankle chains clanged Tuesday afternoon as he limped to the witness stand on an infected foot.

He described losing track of time spending "months and months" alone in a cell with only a book, mattress, blanket, a toilet and a window. He wore a "baby doll," a special outfit used for prisoners on suicide watch to prevent them from injuring themselves.

He shared one of several smiles with McGowan as she pointed out that a baby doll looks like "an oven mitt with the arms cut out."

To kill time in segregation, Brandon said he paced and asked to make "professional calls." He flooded toilets and banged on doors. "I'd get depressed and sad," he recalled.

Brandon committed his first crime long before police could lay charges, court heard. He burned down a McDonald's when he was nine years old.

That same year his older sister introduced him to drugs. He was sent to live in a group home. 

By the time he was 15, a report indicated Brandon had racked up 56 charges.

Brandon successfully requested a transfer to the Edmonton Remand Centre just two days after his 18th birthday last July.

Youth asks justice minister to end segregation 

A year earlier, Brandon filed a complaint with the Alberta Human Rights Commission about his lengthy stays in solitary confinement without schooling.

He also wrote to Justice Minister Kathleen Ganley in December 2015 "in the hopes that the practice of isolation I have experienced will end for me and others in the centre."

"My cell measures 14 by 8 [feet] in the isolation unit," he wrote. "When confined I just want to give up. I begin to feel that the walls are closing in on me. I begin to hear and see things and wonder what is reality anymore."
Brandon described how he feels in segregation in a letter to Alberta Justice Minister Kathleen Ganley in 2015. (Julien Lecacheur/CBC)

Ganley declined a request for comment while Brandon's case is before the courts. So did Alberta child and youth advocate Del Graff.

During cross-examination, Brandon said he did not keep a diary recording how much time he spent in isolation and conceded he was guessing.

He admitted assaulting staff and youth and agreed he posed a danger to both.

"You knew if you behaved better your situation would get better?" he was asked.

"Yes."

Last June, the federal Liberal government placed a 15-day cap on time spent in solitary confinement for prisoners in federal facilities.

A report in August, co-authored by Correctional Investigator Ivan Zinger and Ontario youth advocate Irwin Elman, urges the federal government to stop the segregation of younger inmates between the ages of 18 and 21.

"There is a general consensus within the literature that extended periods of segregation can have harmful effects on inmates of any age, including younger offenders who often lack the coping skills, resilience or experience to help them deal with the negative effects of social isolation," Zinger and Elman wrote.

'We don't learn well alone'

On Tuesday, Brandon sat in the prisoner's box listening to his lawyer and neuropsychologist Jacqueline Pei discuss his brain.

His focus alternated between the exchange and the ground, stifling the odd yawn and rubbing at his face, framed by a peach-fuzz goatee.

Pei described Brandon as "pleasant and compliant." She said cognitive testing indicated deficits in areas that impact behavior were "more pronounced from previous reports," emphasizing the importance of social interaction and activity.

"We don't learn well alone," said Pei, an associate professor at the University of Alberta who has expertise in the assessment of interventions for young offenders.

He has not been offered the opportunity to learn the skills that would afford him to respond any differently than he has.- Jacqueline Pei, neuropsychologist

Pei described a stage of brain development that causes adolescents to seek reward without assessing the consequences. Without exposure to positive influences such as sports or music, she suggested Brandon would seek approval through his criminal identity.

When released from segregation, said Pei, young offenders are likely to seek control in the only way they know, through aggression or violence.

Under questioning from McGowan, Pei said if a parent locked their child in a room with conditions similar to segregation, it would amount to neglect or abuse of the child.

McGowan asked how EYOC had affected Brandon's brain development.

"He has not been offered the opportunity to learn the skills that would afford him to respond any differently than he has," said Pei.

In cross-examination, Bartier suggested Pei had not considered Brandon's use of drugs. Pei agreed it could influence the outcome of the cognitive tests.

Repeatedly pepper sprayed

Brandon also testified about being pepper sprayed at least five or six times, beginning in July 2016, after a guard got beat up "with soap and a sock."

He said one incident came about after he covered his window, banged on the door and flooded the toilet. The guards first sprayed underneath the door and then entered his cell and sprayed again, he said.

Critics cited his case in 2016 to publicly denounce the use of pepper spray on young offenders.

A CBC News report last week revealed the use of pepper spray has escalated in young offender centres in Calgary and Edmonton since a policy change last year permitted it to be administered by trained on-site staff.

Brandon's case will be back in court in April to hear testimony from EYOC director Sean Rainault before Ho hands down his decision.

As Tuesday's hearing wrapped up, McGowan made a special request of her client, who was finishing his sentence, and would be released from custody that night.

"Please don't get arrested," McGowan half-joked, prompting a smile from Brandon.

"I won't."


andrea.huncar@cbc.ca
@andreahuncar

About the Author

Andrea Huncar

Reporter

Andrea Huncar reports on human rights, immigrant and Indigenous communities, youth at-risk and the justice system. Contact her in confidence at andrea.huncar@cbc.ca