The bill of rights for young offenders. What has happened since 1986?

The following is the speech I gave at the Second International Conference on the Rights of children in trouble with the law that was held in Brussels on October 24, 2006

In September, 1980 when I attended the Sixth Congress on the Prevention of Crime and the Treatment of Offenders held in Caracas and presented my paper on the need for a bill of rights for young offenders, the United States delegation agreed with my proposal and the next day they brought forth a resolution asking the delegates to instruct the United Nations Secretariat to conduct world-wide meetings for the following five years to draft up such a standard. In 1985, the propose bill of rights, called the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) was discussed at length at the Seventh Congress held in Milan and accepted and finally approved and passed by the U.N. General Assembly in January 1986.

The Rules were to have an effect on millions upon millions of children around the world, children in need of protection from abuse in our justice and correctional systems. To the children in trouble with the law in many of the signatories to the convention, the Rules were a godsend.

Alas, some signatories have since 1986, ignored some of the various rights that were to be afforded to these unfortunate children. It is the purpose of this paper to give descriptions of some of the abuses that was heaped upon some of these young offenders who were supposed to be protected under the auspices of these Rules.

In 1980, my main complaint that prompted me to suggest the creation of a bill of rights for young offenders was about problems related to government correctional facilities housing young offenders. A quarter of a century later, there are still problems in young offender correctional facilities and this is still my main complaint. Section 13.5 of the Rules states that “while in custody, juveniles shall receive care, protection and all necessary individual assistance----social, educational, vocational, psychological, medical and physical----that they may require in view of their age, sex and personality.”

What follows are some of the horror stories that have come to light of what has occurred inside some of these young offenders facilities for boys and girls in one particular continent alone.

Established by both law and policy, the institutions were supposed to rehabilitate and treat children charged with misdeeds ranging from refusing to attend school to homicide.

A 48-page report made public in 2003 by investigators in one country painted a bleak picture of the privately run institutions as debilitating dumping grounds for troubled children. Woefully underfinanced, understaffed and ill-equipped, the institutions and their poorly trained workers doled out a volatile mix of physical and verbal abuse and in some institutions, mandatory Bible study, but at the same time, they withheld basic medical care and a decent education — all in violation of the Covenant that country signed with the United Nations.

Investigators who descended on the institutions four times in 2003 found ample evidence to declare that children as young as 10 were being mistreated.
Here are some examples of the mistreatment those children were subjected to.
Boys and girls were routinely hogtied and placed in dark cells, shackled to poles or locked in restraint chairs for hours for minor infractions such as talking in the cafeteria or not saying "Yes” or “No, sir."

Girls were made to run while carrying tires and boys while carrying logs, sometimes to the point of vomiting and they were often forced to eat their own vomit.
Boys and girls were also choked, slapped, beaten and attacked with pepper spray as a form of punishment.

Girls at a training school for girls who misbehaved or were on suicide watch were stripped naked and left in a windowless, stifling cinder-block cell, with nothing but the concrete floor to sleep on and a hole in the floor for a toilet, for several days and sometimes even a week at a time. One girl had been locked in a bare cell while naked for 114 straight days.

The ‘Standard Minimum Rules for the Administration of Juvenile Justice’ clearly states that young offenders who are in correctional facilities should be properly medically cared for and yet there are some young offender facilities where this edict was not being adhered to.

The acting head nurse at the aforementioned training school ignored children's injuries and illnesses, refused to help girls fainting from heat and she even blocked children from having access to the visiting doctor. The nurse at another boy’s training school was seen immunizing two children for Hepatitis B with the same needle. Dental care was nonexistent, and the dental clinic at that training school was a mess of mouse droppings, dead roaches and long-expired medicines.

A 16-year-old boy in one of the young offender training camps should have been in a hospital instead of doing construction work and then being forced to do pushups. The boy collapsed with a severe lung infection at the camp for delinquents.

After doing construction in the morning, he was assigned to leaf cleanup. When he balked, staffers ordered him to do calisthenics. When he refused again, they put him in an isolation barracks. When he fought back, they placed him in a ''control position.'' When he defecated on himself, they carried him to a shower. When he would not get dressed, they put clothes on him and helped him do more calisthenics. At one point, the staff helped the boy do push-ups by grabbing his belt and pulling him up and down. Shortly after that, the boy died.

At the time of his death, the boy’s lungs were filled with pus - the byproduct of pneumonia, bronchitis and strep and staph infections. He had been sick with empyema, an accumulation of pus in the lining between his left lung and chest cavity, which had been reducing the elasticity in his left lung for weeks. Finally, after that hellish day at the institution, his heart stopped beating for lack of oxygen. That privately run young offender’s facility was closed down.

When the court sent a fifteen-year-old boy to another young offender’s facility in March 2003 after a string of burglaries, he hoped to get treatment for his bipolar disorder, which relatives say arose from sexual abuse he suffered at age 3. But in letters to his father, the boy was soon begging to be transferred to a state mental hospital.

Despite the fact that he was to be given psychiatric treatment, he had only been visited by a therapist for two minutes. He had been given his punishment but denied what he needed most----psychiatric treatment.

Though mentally ill and retarded children belong elsewhere, 66 to 85 percent of the training schools' students were found to have mental disorders and 9 percent were suicidal. Yet psychiatrists spent an average of just one day a month on campus, mainly performing court evaluations and not treating patients. Individual staff members handled as many as 30 children each, allowing for little of the personal attention as required by law. New students at some institutions were kept out of classes for three to five weeks, violating compulsory attendance laws. They were routinely pulled from class for work details, and those in isolation got sporadic instruction or none at all.

In the year 2001, there was an investigation into the death of a 14-year-old boy at a desert boot camp for troubled youth. He was dehydrated delirious and forced to eat mud by his counselor. Other campers told of abusive treatment they said they had suffered at the hands of staff members who were not much older than the children they were supervising. Children at the camp were punched, kicked, handcuffed and forced to swallow mud regularly. The younger campers were often made to ingest dirt that turned to mud after staff members poured water into their mouths. They said they were allowed to wear only black sweat pants and sweatshirts in temperatures that regularly exceeded 37 degrees Celsius and were physically abused for asking for food, water or medical attention. That privately run camp was shut down also.

The 14-year-old boy was one of many children to die in a series of incidents in recent years at so-called wilderness therapy camps for young people in which rugged conditions and tough discipline are used to break antisocial and, in many cases, criminal habits. Many of the camps were not regulated by government authorities but were run by private organizations.

At one such camp, on one occasion, all the campers were told to lie on their backs alongside one another after which the teenage staff members wearing boots, ran across their chests. Complaints, the boys said, were answered with physical punishment. They would make the boys stand up at attention, and if they moved they'd punch the boys in their stomachs. In one instance, the campers were made to place rocks along a trail and if the boys didn't do it right, the teenage staff members would stomp on the boy’s arms. In one instance, a boy’s arm was broken as a result of being stomped on. The boys said they were frightened of the man in charge of the camp. It was alleged that he once held a knife to the throat of an older boy who wanted to quit the program.

In one training school, the girls were repeatedly pepper-sprayed while running up and down a hill 125 times. If a girl stopped to catch her breath, the staff member nearest her would pepper spray her in her face.

In many of these privately run young offender facilities, there was no real supervision and as such, the young inmates were often brutalized by stronger inmates.

The stupidity and brutality, is not entirely in the domain of privately run juvenile correctional facilities. In one government institution in a large Canadian city, a sixteen-year-old boy was constantly teased by other inmates and made to eat his own vomit off the floor. He had had enough and after he was locked in his cell, he wrapped a bed sheet around his neck and hanged himself with the other end of the bed sheet tied to a metal bar at the top of his bunk

It was here that the real stupidity of the staff ran amok. The guard, who walked by and saw him hanging, wasn’t able to cut the dying boy down because he had been forbidden to carry a knife when doing his rounds.

He reached for his radio and finding it missing, he left the youth hanging by his neck and walked to a control station at the end of the range to summon help. He not only walked to the control centre to avoid panic but stopped on the way back to put three youths who were in an open area back into their cells — a process that involved unlocking and then relocking the cells. When he finally got back to the victim’s cell, the boy was near death.

The prison nurse who after being informed that the boy was hanging by his neck, neglected to bring any resuscitation equipment with her and had to return to the health station for it, and another officer who arrived at the cell could not cut the youth down because he too did not have with him the C-shaped knife used for such emergencies.

This mentally ill youth, who was awaiting trial on charges of stealing cheques from relatives, managed to end his life on Oct. 1, 2002 while under a suicide watch-----he died hours later after he was rushed to a hospital.

The stupidity of the staff occurred that night despite the fact that at least five other inmates in that correctional facility had earlier attempted to hang themselves using sheets.

The 130-bed detention centre for 16- and 17-year-old youths awaiting trial had previously been condemned by that province’s child advocate as being chaotic and unsafe. It too was finally closed down.

Experts say there is little mystery about how the facilities for young offenders reached such a state. Public concern for treating juvenile offenders had waned, as had the attention of child-advocacy groups, to battles considered already won. Legislators had repeatedly cut financing for the young offender facilities saying the need for more funding wasn’t there.

Some countries are filling their juvenile halls and training schools with children guilty of lesser offenses — either to justify the costs of new detention centers, or because no other option exists. Many of the poorest countries have no group homes or short-term treatment centers for young offenders. They end up using training schools as a catch basin for all the child and youth problems in their countries.
Experts on juvenile justice say that what was happening in those training schools was by no means rare. There are many young offender facilities that all had their horror stories.

If the treatment of young offenders in the United States and Canada; two countries that love freedom and their children, is so shabby in some of their young offender correctional facilities, imagine if you will what happens to imprisoned young offenders in third world countries where those countries don’t have the money to build suitable facilities and train staff on how to treat their young charges.
Nevertheless there are ways we can improve the lot of these most unfortunate children.

First, get rid of the privately operated young offender facilities or alternatively, have more state control over them. It seems that this is where most of the abuse lies.

Second, each facility should have a committee of concerned citizens called “visitors” inspecting the facilities. A Young Offender Facility Visitor Program should be set up for each young offender facility so that well meaning and respected persons, such as judges, criminologists, social workers, psychologists, retired nurses, retired correctional officials and perhaps even sports or entertainment personalities can visit these correctional facilities regularly and talk with young offenders on a one-to-one basis who wish to express their concerns about their wellbeing to the Young Offender Facility ‘visitor’ who is interviewing them. This would be especially helpful for those
incarcerated young offenders who don’t have visits from family members,
relatives or friends of the family.

Hong Kong has such a program. It works for them. In certain parts of India, they have a Prison Visiting System which acts as a potential tool for prison reforms. It works for them also. If these visitor programs can work in these countries, it should work elsewhere.

Canada used to have grand juries inspecting prisons but that concept ended years ago. Now imprisoned citizens can write their provincial ombudsman if they have a complaint. That works for adults but it is highly unlikely that young children will avail themselves of that opportunity to express their grievances. This is why this writer believes that a Prison Visiting Program is a more appropriate way of resolving the problem of child abuse in young offender facilities.

Recently, Amnesty International aired a complaint on television in which they described the abuses heaped upon young children in Nicaragua who were kept in custody for months in police cells.

The question that comes to the fore is; who is responsible for these crimes against these young offenders?

The answer, to some degree can be found, ironically enough, from the words of one of the most horrible human beings that ever inhabited this world. His statement however that he made at his trial is so applicable in situations like what took place in the institutions I have just written about. His name was Rudolf Hoess, the SS commandant at Auschwitz. He said in part;

“This so-called ill treatment and torture in detention centres, stories of which were spread everywhere among the people and later by the prisoners who were freed, were not, as some assumed, inflicted methodically but were excesses committed by individual prison guards, their deputies and men who laid violent hands on the detainees.” unquote

Hosse wasn’t hanged because of the individual violence committed on the prisoners by his underlings but because he supervised the extermination of his prisoners. But his reference to his guards and others committing brutal assaults on his prisoners is so apt when considering what has been done to the young offenders in the institutions that I have written about. The senior staff in those institutions were indifferent to the plight of the young offenders just as Hosse was indifferent to the plight of his prisoners.

It is my belief that the United Nations Standard Minimum Rules on the Administration of Juvenile Justice should be amended by including references to privately run young offender correctional facilities and police cells.
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Dr. Dahn Batchelor is a Canadian criminologist and practices criminal law as an court advocate and has addressed United Nations Congresses in Geneva (1975) Caracas (1980) Milan (1985) Cairo (1995) Vienna (2000) and Bangkok, (2005) He was a supervisor in a young offender’s correctional facility in Canada in the mid 1950s. His email address is dahnbatchelor@rogers.com

Crooks mortgaged homes without home owners knowing

The Rabi-Shafiei family in Toronto were totally unaware that criminals, using their names and using falsified identification documents, had retained Mercy Dadepo, a lawyer in North York to sell their condo to an accomplice who took as his own, the name Ion Rosu, which is the name of a real person living in Thunder Bay, Ontario. In late 2004, the fraudsters struck, taking out a mortgage on the property and disappeared with the money. The Toronto Dominion Bank says that it stopped trying to collect on the mortgage as soon as the fraud was discovered, however, the Rabi-Shafiei family is still technically on the hook not only for the $247,000 mortgage, but an additional $34,146.69 for accumulated interest up to July 21, 2006, $434.60 for insurance taken out by the bank, $74.90 for "occupancy checks" and $275 for a "document review."

The fraud took place in the following manner: two of the crooks passing themselves off as Mr. and Mrs. Rabi-Shafiei (using falsified documents such as driver’s licences made out to each of the names of the real owners of the condo) went to the North York lawyer telling the lawyer that they wanted to sell their condo to Ion Rosu (who then presented a driver’s license and social insurance card in the name of Ion Rosu to the lawyer as identification) The lawyer contacted a mortgage broker who arranged for the mortgage to be taken out from the Toronto Dominion Bank. The money was then given to the phony sellers of the said property and they and the phony purchaser disappeared with the money. To date, no one really knows who they are or where they are.

The two victims of this fraud were the real owners of the condo and the bank. Both the owners and the bank became aware at the same time of the fraud when after receiving a letter from the bank about the arrears monthly payment due to the bank, the owners told the bank they had no idea why the bank thought they should pay any money to the bank since they didn’t take out the mortgage in the first place. Notwithstanding the fact that the bank has acknowledged that the owners of the condo are victims of a fraud, the bank still claims that the owners are still liable for the debt incurred by the crooks. Somehow, the logic of that reasoning escapes me. It is not unlike saying that if someone steals your driver’s licence and shows it to a police officer when he is about to give the thief a ticket for speeding; the real owner of the stolen driver’s licence has to pay the fine.

Now one is forced to ask why the bank is being so pigheaded. It’s their insurance company that is forcing them to do this since it is the insurance company (First Canadian Title) that would end up paying out all that money to the bank. The insurance company wants the real owners of the condo to get the taxpayers to pay the bank, thereby letting the insurance company off the hook. The taxpayers may ultimately cough up the funds if the couple can persuade the province's Ontario Land Titles Assurance Fund to compensate them for their undeserved mortgage liability but to apply for assistance from the Fund will cost the Rabi-Shafieis thousands of dollars in lawyer’s fees to bring this about.

What should the lawyer, the mortgage broker and the bank have done to prevent this scenario from occurring?

The lawyer presumed that the three persons in her office were legitimate sellers and purchaser of the property respectively because they showed the lawyer their driver’s licences. Most people nowadays realize that a driver’s licence is not really satisfactory evidence that the person who submits it is in fact the real person depicted on the licence. There are so many phony driver’s licences floating around, it is of real concern to the authorities. The newspaper, the Globe and Mail in Toronto on December 7, 2005 quoted the provincial Auditor-General from his annual report that the system for licensing drivers and vehicles in Ontario has been so sloppily managed that fake driver's licences have been created, thousands of blank stickers and permits have gone missing and customer credit-card information has been misused. Over the past four years, more than 56,000 licence plates, vehicle stickers and permits had been reported either missing or stolen and could have been used for fraudulent purposes. The report documents numerous instances of fraud by the private-sector operators that provide licensing services under government contract. Charges have been laid and a ministry analysis concluded that it is easy for staff to manipulate the current system to produce false documents.

So what is really disturbing in the mortgage fraud I am writing about is the fact that the photo of the faces on each of the driver’s licences could not have been the real faces of the persons whose names were on the licences.

If a licenced driver in Ontario claims that his driver’s licence has been stolen, in order for him or her to get a replacement from the licencing issuing office, that person would have to bring in three forms of ID such as a passport (which would show a photo of the person whom the passport is registered to) or a birth certificate (in which there is no photo on the document) a Ontario Health Card (which has the photo of the bearer on it) and another document showing his or her signature. It would be almost impossible for a scam artist to superimpose the photo of a victim on the phony driver’s licence without it being detected since the photos and the driver’s licence are plasticized. It would be almost impossible for the scam artist to get a birth certificate of the victim if he or she didn’t know the names of the victim’s parents. As soon as the scam artist went to the issuing office to get a new driver’s licence, the scam would be discovered at once even if he or she brought in some other document with his or her photo on it. The issuing person would look at the photo submitted and then compare it with the last known photo of the victim that would show up on the screen.

Considering how difficult it is for an identity thief to acquire a victim’s replacement driver’s licence, I have to conclude that what the lawyer really saw when the driver’s licences were submitted to her was the faces of the thieves. The thieves probably used one the stolen blank driver’s licences. A scam artist with the right equipment can create a driver’s licence in any name and put his or her own face on the licence.

What then should the lawyer have done next to satisfy herself that two of the people sitting in front of her are the legitimate owners of the condo? More importantly, did she have to do anything more? After all, they came to her so that she could find them a mortgage broker. She could later say that it was up to the mortgage broker or the bank to do the necessary checks. She would probably be right.

The mortgage broker would act on the request of the lawyer so in one sense, the broker is an agent of the lawyer even though the broker is acting on behalf of the lawyer’s clients. The mortgage broker could assume (and probably quite correctly) that if the lawyer is satisfied that the so-called owner and purchaser of the property are whom they say they are, it is not up to the broker to delve into the background of the these scam artists.

This leaves the bank. Unquestionably, the bank is the entity that has the most to lose if the transaction is a scam. It is the bank that should really delve into the background of the so-called owners and purchaser, especially when the amount of money that they are going to fork over is over $282 thousand dollars.

Let’s presume that the bank has looked over the Registry documents to make sure that there isn’t an encumbrance on the property, such as another mortgage or a lien. The condo was paid in full so that looked good to the bank. The records also showed that there was no lien on the property and it really belonged to Mr. and Mrs. Rabi-Shafiei.

What the bank failed to do was to ascertain as to whether or not the purchaser of the property really was whom he claimed he was. The bank could do a credit check with Trans Union on the Internet but it would require written permission from the person to whom the report relates. That would be easy. The scam artist would simply give the bank his written authority. However, Trans Union would want more info before giving out that info just to anyone, including anyone in a bank. If the person who was the legitimate Ion Rosu had made enquiries in the past with Trans Union, they would know his secret password. The scam artist would not. However, if the real Ion Rosu had never made an enquiry as to his credit status with Trans Union, a password would not be registered with that credit bureau. A new one however could be created right there in the bank by the phony Ron Rosu. If the real Ron Rosu had a good credit rating, then the major hurdle facing the scam artist would have been surpassed.

The bank however should have looked further into the history of Ron Rosu. They should have thought it strange that the credit bureau would show him as living in Thunder Bay, which is 927 kilometres northwest of Toronto and not at the address given in Toronto. A simple phone call to his home or his place of work in Thunder Bay would have established in the mind of the loans officer that the real Ron Rosu is not sitting in front of him or her at the time the call was being made. Further, another phone call to the home of the Rabi-Shafieis; day or night would have warned the bank that something was not right.

I don’t know what steps the bank did or didn’t do to establish the authenticity of the application for the mortgage written by the so-called purchaser of the condo in Toronto but it is suffice to say that it failed to establish the legitimacy of the man making the application. Two simple phone calls would have been suffice to avoid the problem that followed.

Now the question that comes to the fore is; why does the insurance company insist that the Rabi-Shafieis have to apply to the province's Ontario Land Titles Assurance Fund to compensate them for their mortgage liability when in fact, they didn’t apply for the mortgage or receive the money and in fact, it is the bank that made a stupid blunder in giving the money to a thief?

I will quote from an American textbook on law called West’s Business Law. It says in part on page 28:

“It cannot be denied that in the pursuit of self interest, people sometimes behave unethically in the business context, just as they do in their private lives. Some businesspersons knowingly engage in unethical behavior because they think that they can get away with it.” unquote.

In Canada, there was a case heard by the Supreme Court of Canada involving a defendant called Pilot Insurance. This insurance company decided that they would not pay any money to a family for the loss of their home by fire because they insisted that the fire was brought about by arson committed by a family member. They even went as far as talking the fire marshal into changing his mind and saying that the source of the fire was not electrical but the result of arson. The case end up in court and the jury was so incensed by the bad faith of the insurance company that not only did they find in favour of the family but they tacked on a million dollars as punitive damages against the insurance company. The insurance company appealed and had it reduced to a hundred thousand dollars so the family appeared to the Supreme Court of Canada. That court said that the million-dollar award in punitive damages was appropriate by saying in part:

“The respondent insurer's conduct towards the appellant was exceptionally reprehensible. It forced her to put at risk her only remaining asset (the $345,000 insurance claim) plus $320,000 in costs that she did not have. The denial of the claim was designed to force her to make an unfair settlement for less than she was entitled to. The conduct was planned and deliberate and continued for over two years, while the financial situation of the appellant grew increasingly desperate. The jury evidently believed that the respondent knew from the outset that its arson defence was contrived and unsustainable. Insurance contracts are sold by the insurance industry and purchased by members of the public for peace of mind. The more devastating the loss, the more the insured may be at the financial mercy of the insurer, and the more difficult it may be to challenge a wrongful refusal to pay the claim.” unquote.

In my opinion, the actions of the bank’s insurance company whose interest is protecting its own money by refusing to accept the premise that the bank has to accept its own loss in the fraud committed against it by the scam artists, is reprehensible.

The bank to its credit isn’t at this present time, taking steps to seize the home of the Rabi-Shafiei family but unfortunately, the credit rating of that family has dropped considerably since technically, the bank can still act against them if they so choose. I doubt however that the bank would succeed in court, as there is no privity of contract between it and the Rabi-Shafieis.

What the bank should do is accept their loss and claim against their insurance company. But it appears that the bank won’t go that route and that is why the words ‘bad faith’ is so appropriate in a situation like this one.