METRO VANCOUVER – Accused killer Jamie Bacon has been held in “deplorable” conditions at the Surrey pretrial jail in violation of his constitutional rights, a B.C. Supreme Court judge ruled Wednesday.
Justice Mark McEwan slammed the conduct of pretrial warden Debbie Hawboldt, who he said has acted as an agent of the police in keeping Bacon in isolation and restricting his phone calls and visits after his April 2009 arrest in the Surrey Six murder case.
“These impositions collectively amount to cruel and unusual treatment,” McEwan said.
He said Hawboldt mishandled Bacon’s mail, improperly used her powers “to assist the police in a criminal investigation,” improperly placed him in separate confinement “and repeatedly failed to properly consider her legal duties.”
McEwan ordered Bacon’s calls and visits to be restored immediately. He further said that if there are legitimate grounds to house Bacon separately for his own security, he should be placed with other inmates with whom he could safely associate for his mental health.
The B.C. Corrections Branch has been struggling with the logistics of housing an unprecedented number of warring gangsters, including Bacon and his Red Scorpion associates and their rivals from the United Nations gang.
Bacon and three others are charged in the 2007 gangland slaughter of six men in a Surrey apartment building. Their next court appearance is June 17 in New Westminster.
Eight UN gangsters are also in jail awaiting trial for conspiring to kill the Bacons and other Red Scorpions.
McEwan noted “the incarceration of members of rival crime groups in correctional centres presents unprecedented logistical challenges for the staff.”
He pointed to an affidavit of deputy warden Steve Phillips about a $25,000 bounty on Bacon’s head.
And he referred to another internal pretrial memo that said the Red Scorpions and UN “are very violent gangs.”
“They have been trying to kill each other off for more than a year and over 80 killings are associated with their brand of violence. Having all of them in this building at once is going to be a major security concern,” the memo said.
McEwan also noted that Surrey pretrial is 190 per cent over capacity.
But that is no justification for violating rights guaranteed to Bacon under the government’s own regulations, McEwan said in the 103-page ruling.
“It should go without saying that resource issues can never justify a sub-constitutional level of treatment,” McEwan said.
And he said Corrections breached Bacon’s Charter rights on several fronts “by creating circumstances and maintaining the petitioner in circumstances that manifestly threaten the security of his person (which includes both a physical and a psychological dimension) by the unlawful deprivation of his rights for an unlawful purpose.”
Asked for a response to the decision, government spokesman Brett Lowther noted that Legal Services and the Criminal Justice Branch had just received the judgment Wednesday. “It is a lengthy ruling, and they will be taking some time to review it before deciding next legal steps.”
McEwan ordered the government to pay Bacon’s costs for his legal challenge, which began last fall.
Bacon’s lawyer, Kimberly Eldred, argued in proceedings that Bacon was being held against international standards and the rules governing inmates in B.C.
McEwan agreed and said the pretrial staff acted “as agents for the police.”
“There are disturbing indications of systemic arrangements that promote or abet the merger of the roles of police and of corrections,” McEwan noted.
He pointed to a series of memos, e-mails and letters between the Integrated Homicide Investigation Team and Surrey pretrial officials, who appeared to be taking instructions from the police.
A letter from IHIT head Supt. John Robin to the jail last fall laid out reasons why Bacon should be housed alone.
“If James Bacon were to be introduced into the general population, it would open unrestricted conduits for him to send and receive information through other inmates. As a result, limiting outsiders’ contact with James Bacon through phone and visitation restrictions would be ineffective because Bacon could send and receive messages through other inmates whose phone and visitation privileges are free,” Robin said.
“This is particularly a concern with James Bacon’s anticipated efforts to intimidate or dissuade witnesses or to broadcast to other members of the Red Scorpions some of the intelligence he has derived from the disclosure.”
McEwan said it’s clear “the decision to place the petitioner in separate confinement was police-driven.”
“It is very clear that the priority was to protect the police case, and that the respondent simply accepted the police estimate of what the petitioner “˜might’ do, as the test for how he would be treated. The administration acted unquestioningly and with no specific grounds other than “˜the police say so,’” he said.
McEwan also said there are measures Bacon’s jailers could have taken to make up for his segregation, but they didn’t.
“Rather, he was treated as a prisoner who was being perpetually punished: the only practical effect of the distinction between “˜separate confinement’ and “˜segregation’ was that by applying the semantic fiction of “˜separate confinement’ for “˜protective’ purposes the deprivations could go on indefinitely,” he said.
“As bad as this was, the petitioner’s initial placement in “˜seg’ was immediately exacerbated by the imposition of further isolating deprivations.”
For months, Bacon was placed in total isolation, a condition condemned around the world as inhumane.
“He is locked down 23 hours per day and kept in the conditions Professor [Craig] Haney described as “˜horrendous.’ These conditions would be deplorable in any civilized society, and are certainly unworthy of ours.
“They reflect a distressing level of neglect. On top of this, the petitioner is only allowed out at random times. He is denied almost all human contact. His treatment by the administration and the guards is highly arbitrary and further accentuates his powerlessness,” McEwan said.
But McEwan stopped short of ordering B.C. Corrections to place Bacon in the general population or move him to another institution as he had requested.
Instead, McEwan said the jail must follow proper procedures for determining whether to house Bacon with everyone else or a more select group of inmates.
“Careful consideration must be given to whether or not it is possible to create settings that include contact with other inmates who do not pose the concerns that justify separation from other parts of the prison population,” McEwan said.
“The petitioner must have the same amount of time out as a general population inmate. He must not be subject to unreasonable and petty deprivations that reflect the notion that where one is placed dictates how one is treated.”
McEwan noted that other high-risk gang members in Bacon’s gang and the UN were being given privileges that Bacon had been denied.
One e-mail between B.C. Corrections officials from August 2009 said three UN gang members had initially been held in segregation.
“Based on their performance and our observations the security protocols have changed over time. At this point they are not in separate confinement,” the e-mail said.
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read the full decision here: Bacon decision
Excerpts from a November 2009 affidavit Jamie Bacon filed:
85. On November 9, 2009, after I came back from court, a female Corrections Supervisor came into my cell and told me that I was being moved to Echo 2. She told me that it would be better there and that I would be able to keep everything I had. After consulting with counsel, I packed up the contents of my cell to move to the new unit. When the door to Echo 2 opened, a video camera was shoved in my face and Corrections Supervisor Smith started reading the Unit Briefing to me in a very authoritative tone. While he was reading, other guards were going through my effects. While I had been in Medical Isolation, I had been able to retain bedding that I liked and obtain some extra sheets and blankets. They took all of my old bedding and gave me new bedding – 2 sheets, 2 blankets, a pillow, and a pillowcase. The guards also took some of the clothing that I had been given in my size. I felt like I had been tricked and ambushed.
86. What upset me most were the rules that they read to me. They told me that this was a zero tolerance unit. The rules would be enforced and any infractions would be prosecuted. They told me that this was a no-speaking range. They said that I am prohibited from communicating directly or indirectly with any other prisoners on the unit and would be charged if I did. I can only use the cell call button in the case of a "severe medical emergency". There are no-go zones painted on the floor around the door to each cell. They told me that I would be charged if I went into one of these zones. I attach as Exhibit "K" at 144 to this my Affidavit a copy of the Unit Briefing – Living Unit.
87. There are twelve cells divided on two tiers. My cell is freshly painted and cleaner than the one I left in Medical Isolation. The glass in the window is not frosted so I can see outside. It has a porcelain toilet. It is double-bunked. There is a sign on the back of the door that tells me the rules of the cell. The window in the door of the cell is blocked off so that I cannot see out into the unit. The cell is smaller than the cell I left in Medical Isolation. The worse thing about this cell is that it does not have a shower. Over the past few months, the time that I shower is the only thing in my life that I can control and the only time that I feel like I am not in jail. The television is on top of the storage unit approximately 6 feet off the ground. It is positioned so that I cannot see the TV from the bed and the TV cannot be moved. There is no camera in the cell, but there is a microphone unit right outside my door. The unit is very cold. I have trouble sleeping at night without my extra bedding.
88. I have been told that I will be alone on my time out and that I must not talk to anyone. Once each prisoner has had an hour out, we are supposed to get extra time. For each of the two days that I have been there, however, I have only had one hour out. The common room is larger than Medical Isolation and has three round tables in it. I can bring out the chair from my cell if I want to sit at one. The best part is that the unit has a refrigerator/freezer, microwave, coffeemaker, sink and toaster. There is an L-shaped yard that is larger and cleaner than the one in the Segregation Unit. It is more open to the sky but it is still empty concrete and not large enough to run around. There is a shower room and a laundry. The telephones are immediately adjacent to the guard’s desk. Because it is so quiet on the unit, the guards can hear my telephone calls to counsel.
89. On November 10, 2009, when I was at court, the guards searched my cell. They took my pen, saying that pens are not allowed on a segregation unit. I had to show them my special request form to get my pen back.
90. On balance, my new cell is worse than the cell that I had in Medical Isolation, but the amenities when I am allowed my hour out are better. I am particularly concerned, however, about the lack of privacy for telephone calls to counsel and the heightened degree of isolation.
91. I feel completely cut off in my cell. The Segregation Unit always seemed to be noisy. This unit is dead silent. There are 2-5 guards on the unit but I never hear them talking to one another. When I have my hour out, they do not talk to me. It is very awkward. I believe that there are four other prisoners on this unit, because I have seen file folders and dinner carts, but I have not seen or heard the prisoners. The Segregation Unit seems relaxed by comparison. The rules are much more "in your face" here. It is higher security. It is much more isolated.
Jamie Bacon described in his affidavits how police attempted to get him to cooperate in the Surrey Six case: "I could rock B.C."
38. On Saturday, April 4, 2009, I was ordered detained in custody. The warrant of committal included an order that I have no contact with my co-defendants Cody Haevischer, Matthew Johnston or Dennis Karbovanec.
39. Surrey Pretrial is right next door to the Surrey RCMP detachment. The two buildings are connected by an underground tunnel. Rather than lodging me at Surrey Pretrial once there was a warrant for my committal, the police took me to the same building where again I was interrogated by Messrs. Adams and Henderson from approximately 10:00 a.m. to midnight. Again the police brought me back to the Surrey RCMP detachment where I spent the night in police custody.
40. On Sunday, April 5, 2009, the police again took me to the same building where I was interrogated from approximately 10:00 a.m. to 8:00 p.m.
41. Throughout the weekend, when the interrogation broke for meals, the police would move me to what I understood to be Mr. Henderson’s office to eat. On Sunday, during the meal break, Mr. Henderson told me that remand centres are terrible. He said that even a dog needs room to run around and should not be kept in a cage. He told me that he could help me. He would get me out of the remand centre and ensure that I had a good placement at a federal institution if I cooperated with the police.
…
44. The police did not restrict their interrogation to the offences for which I had been charged. They also brought up other individuals and offences about which they told me that they believed I had knowledge. The police told me that they had taken away all my power. The only way I could get back at these people would be to give evidence against them. They repeatedly told me that they thought that I could "rock B.C." if I told them everything that I knew. I maintained my right to silence through three days of interrogation.
45. When interrogation was completed in the early hours of Monday morning, the police returned me to the Surrey RCMP detachment where I spent the night in police custody.
Jamie Bacon spoke to Dr. David Lawson, a staff psychologist, in June 2009:
209. I met with Dr. Lawson on June 18, 2009 in the discipline hearing room. He told me that the interview was not recorded but that he was taking notes for his own memory and for use in further interviews. He said that he would only show them to someone else if ordered to by a court and that anything I say is confidential, so long as I do not confess to a crime or say that I am about to commit one.
210. He said that he heard that I was having problems with anxiety. He asked me when it occurs. I told him that it was in the night and the morning. He asked what happens when the anxiety comes on. I told him that I cannot sit still, my heart races, I feel like I have to control my breathing to keep my throat from closing. I become very irritable and rage consumes me. I could not have a conversation with someone when I am in one of these states. It ends when my heart rate slows down. Then I feel fatigued for a couple of hours.
211. He asked me if I was worried about my safety. I told him that I had no worries whatsoever for my safety in prison.
212. He asked if I knew what triggered my anxiety. I told him the anxiety became a problem in January 2009 when the police began their campaign against me in earnest. I explained what I had gone through and how difficult it was to be cut off from the world because the police had made me the target of all this public fear. When I was placed in the Segregation Unit and denied visits and telephone calls, I realized how much power the police had. At this point in the conversation, I became quite upset. I told him how hard it is for me to be restricted in my visits and telephone calls. I expressed the feelings of frustration and powerlessness that the police control causes me. I told Dr. Lawson that I was not in solitary confinement because of gang issues because there were Red Scorpions and U.N. Gang members in this facility on separate living units. I said that I thought that the police were calling the shots in an effort to break me.
213. Dr. Lawson said that he did not believe that the police had anything to do with my conditions of confinement. He said that Steve Phillips was a good man and that the corrections staff at Surrey Pretrial would be offended by the very suggestion that they would allow the police to dictate how a prisoner was treated. He said that he had never heard of such a thing since the facility opened.
214. I became quite angry. I said that I felt that he did not care about my anxiety and was just wasting my time.
215. He told me that anxiety is triggered when the "fight or flight" instinct is engaged but the person is powerless and can neither fight nor flee. He said that I was obviously a fighter but, because I was powerless to fight, I was suffering anxiety.
216. He did say that he would look into the allegations that I had levelled and see what he could do about lessening the restrictions on my visits and telephone calls. . . .
217. On June 25, 2009, I met with Dr. Lawson again in the discipline hearing room. He said that our meeting would be brief. He said that he could tell that I was not happy when our last meeting ended. He told me that I was right. He said that he had spoken with Deputy Warden Phillips who confirmed that he had no control and that the police were "running the show". Dr. Lawson said that he had never seen something like this happen before and that was why he did not believe me when we met previously. He said that he wanted to tell me what he found out so that I would not start thinking that I was crazy. He said that he thought the police were controlling my conditions of confinement to protect at ongoing investigation. He said that the RCMP had poured all of its resources into this investigation and they were not going to let anything compromise it. He said that Deputy Warden Phillips told him that the police said that it would be another 8-10 months before I could have visits and telephone contact and that I would never be moved off the Segregation Unit. He encouraged me in my efforts to obtain an independent psychological evaluation. He said that I will have to take it to court because, otherwise, nothing will change for me until the police say that it does. . . .
218. I am advised by my counsel that she met with Dr. Lawson on July 14, 2009 and he essentially confirmed the details of our meetings as set out above.
219. On June 29, 2009, Ms. Eldred wrote to Deputy Warden Phillips requesting copies of the notes that Dr. Lawson took during our meetings. . . .
220. I am advised by my counsel that difficulties arose in the process of obtaining Dr. Lawson’s notes. On July 20, 2009, Ms. Eldred wrote to Dr. Lawson, appealing to him for his understanding and assistance in obtaining disclosure of his records of our meeting in accordance with section 6.12 of the College of Psychologists of British Columbia Code of Conduct. . . .
221. I am further advised by my counsel that Dr. Lawson telephoned her on July 21, 2009 and advised her that he had destroyed the notes that he had taken during our meetings after he made his entries into my Client Profile, i.e. my electronic health care records.
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