Incarcerated teenage girls are regularly shackled with handcuffs and leg restraints even when they are in prison for minor offences.  Legally, the use of restraints is not as easily justified as some might think. The following laws and policies apply to shackling of youth:

INTERNATIONAL TREATIES & DECLARATIONS:

Article 34, UN Rules for the Protection of Juveniles Deprived of their Liberty provides for the use of mechanical restraints in "exceptional cases" alone, citing prevention of self-injury, injury to others or serious destruction of property as justification.

Article 37, UN Convention on the Rights of the Child
provides that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment and she or he must be treated in a manner that takes into account the needs of persons of her or his age.

Article 26.4, UN Standard Minimum Rules for the Administration of Juvenile Justice
provides that young women in prison deserve special attention to their personal needs and problems and that their fair treatment shall be ensured.

CANADIAN FEDERAL LAWS

Preamble, Youth Criminal Justice Act
WHEREAS Canada is a party to the United Nations Convention on the Rights of the Child and recognizes that young persons have rights and freedoms, including those stated in the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights, and have special guarantees of their rights and freedoms;

AND WHEREAS Canadian society should have a youth criminal justice system that commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons;

S. 3 (1) (c) Youth Criminal Justice Act
within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should:
(iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements

S. 83 (1) Youth Criminal Justice Act
The purpose of the youth custody and supervision system is to contribute to the protection of society by:
(a) carrying out sentences imposed by courts through the safe, fair and humane      custody and supervision of young persons

S. 83 (2) Youth Criminal Justice Act
In addition to the principles set out in section 3, the following principles are to be used in achieving that purpose:
(a) that the least restrictive measures consistent with the protection of the public, of personnel working with young persons and of young persons be used;

S. 12, Canadian Charter of Rights and Freedoms
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

S.7, Canadian Charter of Rights and Freedoms
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

THE USE OF MECHANICAL AND PHYSICAL RESTRAINTS AGAINST YOUTH IN BRITISH COLUMBIA

The B.C. Ministry of Children and Family Development Manual of Operations for Youth Custody Programs provides for the use of mechanical restraints as a last resort to be used for emergency purposes and during transportation of youths. However, the manual also specifically permits shackling of youth at risk for self-harm (who are mostly girls), and during the Sweat Lodge Program (mostly First Nations youth).

The use of restraints in youth secure custody centers in BC has been reviewed more than once by the BC Ombudsman, whose recommendations note deficiencies in facilities and staff training, particularly in "passive restraint" techniques.

Specific Justifications for use of restraint:

Preventing self-harm: Girls in prison are particularly prone to self-injurious behaviour. Self-harm is a response to violence, depression, frustration and confinement. The use of handcuffs and leg restraints as a response to self-harm is extremely damaging to young women who have typically experienced repeated and severe violence.

Preventing harm to others: Youth prison guards often use this broad justification to mechanically or physically restrain girls. This overuse is contrary to the rehabilitative intentions of youth custody and the YCJA (s.83(2) (a) principle of least restrictive measures (see above).

The Sweat Lodge: The Sweat Lodge Program is a First Nations ceremony carried out on the grounds at Burnaby Youth Secure Custody Center (BYSCC). The BYSCC operations manual specifically justifies the use of mechanical restraints (shackles) during the sweat lodge program. This policy is not legally justifiable and furthermore is clearly discriminatory (racist) in that it is a continuation of colonial criminalization of First Nations spiritual and cultural practices.

In Transit: In B.C. Deputy Sheriffs are responsible for the transportation of prisoners. United Nations and domestic legislation permits the use of restraints in transport due to a heightened risk of escape. It is not clear however, what criteria the Sheriffs use in determining the use of restraints, and what, if any, consideration is given to distance and length of travel. Given that there are only 3 youth secure custody centres in B.C., young women, even those who are in custody for minor and "breach" offences (i.e., breach of probation) spend hours in transit wearing hand cuffs and leg restraints.

In Court: The presiding judge has the ultimate authority to determine whether or not a prisoner will enter the courtroom in mechanical restraints, though judges generally defer to the sheriffs' judgment. United Nations and domestic common-law authority prevent an accused from entering a jury proceeding in restraints. Shackles are to be removed in court unless there is a serious threat of violence or escape. However, this applies to jury trials, and there are no juries in youth court. In the North Vancouver Provincial Court young women are regularly brought into court in shackles.

Witnesses in court: If a young female prisoner is a victim/witness, she may be brought into a courtroom in shackles or, more often the case, held in the court cells in shackles while she waits to testify. The Canadian Criminal Code, s.486 (1.1) provides for the protection of child witnesses in rape and sexual abuse cases. These provisions allow for children to testify behind screens or outside the courtroom in order to spare the young victim from the trauma of facing the accused in court. Incarcerated girls surely deserve protections under s.486 CCC, rather than to be shackled in a lock up prior to testifying against abusers.

WHAT CAN BE DONE?
Girls in custody should contact an advocate or a lawyer if they believe that they have been unjustly restrained by Sheriffs or Corrections Officers.

Girls may follow internal complaint procedures and/or request a meeting with the Director of the Youth Custody Center. It is helpful to ask for a meeting and/or make a complaint in writing. Make sure to keep these documents and request a written response to the complaint. Girls may ask to have an advocate present in the meeting.

While Peace Officers are empowered under the Canadian Criminal Code to use force, they can be criminally charged for using excessive force. A young woman may make a report to the police if a corrections officer used excessive force (assaulted) her.

The excessive or inappropriate use of handcuffs constitutes a civil assault. Legal claims against prison guards have been launched for breach of trust, negligence, and violations of prisoners' constitutional rights. Excessive use of restraints may violate Section 12 (cruel and unusual punishment) and Section 15 (equality provisions) of the Canadian Charter of Rights and Freedoms.

For more information about the rights of young women in conflict with the law, or if you believe you have been unfairly/excessively restrained, please call Justice for Girls

Prepared by Justice for Girls & Sara Jeremko