JUDGE FLAYS JAIL WARDEN FOR TREATMENT OF BACON

'Deplorable' Conditions Violate Accused Killer's Rights, He
Says

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.