WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
CITATION: J.J. v. Centre for Addiction and Mental Health, 2009 ONCA 680
DATE: 20090924
DOCKET: C50201
COURT OF APPEAL FOR ONTARIO
Goudge, Cronk and MacFarland JJ.A.
BETWEEN:
The Person in Charge of the Centre for Addiction and Mental Health
Appellant
and
J.J.
Respondent
and
Her Majesty the Queen
Respondent
James P. Thomson, for the appellant
J.J., respondent appearing in person
Anita Szigeti, amicus curiae
Brad Greenshields, for the respondent Crown
Suzan E. Fraser, for the intervenor Provincial Advocate for Children and Youth
Patrick Hawkins, for the Kinark Child and Family Services
Heard: September 9, 2009
On appeal from the disposition of the Ontario Review Board dated March 3, 2009.
By the court:
[1] J.J. was born on October 21, 1990. He had a difficult and deprived childhood. By the age of 15 he was exhibiting signs of major mental illness and has been diagnosed to suffer from schizophrenia.
[2] Shortly after his seventeenth birthday, he robbed a drugstore with a gun, during which he was shot six times by the police. As a result, he has required significant hospital treatment.
[3] In January 2009, a few months after his eighteenth birthday, he was found NCR and remanded to the Dovercourt Youth Home pending a hearing before the Ontario Review Board.
[4] At that hearing, the parties, all of whom had counsel, were J.J., the Crown and the Centre for Addiction and Mental Health (“CAMH”). Counsel agreed that J.J. posed a significant threat to the safety of the public and that a custodial disposition was necessary. Counsel jointly submitted that the appropriate disposition for J.J. was at Syl Apps Centre, a youth mental health facility where J.J. could receive an individualized assessment taking into account his young age and special long-term needs, and a longer-term plan could be devised.
[5] Nonetheless the Board ordered that J.J. be detained at CAMH in Toronto in medium security.
[6] CAMH appeals from this disposition, supported by amicus curiae on behalf of J.J., and the intervenor, the Provincial Advocate for Children and Youth. The Crown opposes the appeal.
[7] The appellant’s primary position is that the Board’s disposition is unreasonable and therefore cannot stand.
[8] In assessing the reasonableness of the Board’s disposition, s.672.78(1)(a) of the Criminal Code requires this court to ask itself whether the Board’s risk assessment and disposition were unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination. See: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 33.
[9] The Board’s risk assessment here was that J.J. continued to pose a significant threat to the public and that his detention was therefore required. There was clear evidence to support this conclusion and indeed at the hearing all parties proposed such a finding, although amicus now suggests that his detention is not required. We see no basis to set aside the Board’s risk assessment.
[10] However the Board’s disposition is a different matter. The placement alternatives considered were Syl Apps Centre in Oakville and CAMH in Toronto.
[11] The Board preferred CAMH for two reasons. First, it said the J.J. should stay close to the Toronto hospitals which had provided medical treatment to him for the complications arising from his gunshot wounds because he may require further treatment of the same kind in the future. However, there was no evidence that the same level of medical expertise would not be available to him in Oakville if he were placed at Syl Apps. Indeed, it would be surprising if such evidence could be found.
[12] Second, the Board found that J.J.’s mother and siblings, his only support network, would have innumerable logistical problems visiting him or communicating with him if he were at Syl Apps, because they live in Toronto. Here, as well, there was simply no evidence to support the conclusion that J.J.’s support network could not be as effective if he were placed in Oakville rather than Toronto.
[13] In short, both factual bases offered by the Board for preferring CAMH to Syl Apps are without evidentiary foundation. Its reasons for choosing CAMH over Syl Apps cannot bear even a somewhat probing analysis.
[14] Finally, the Board’s decision to place J.J. in medium security at CAMH is unreasonable. There was no evidence that the risk he presented required this level of security. On the contrary, the evidence was that if placed at CAMH, minimum security would be sufficient. Moreover, the Board offered no reasons whatsoever for ordering his detention in medium security, contrary to the requirement that it give reasons. See: R. v. Brunczlik (2002), 2002 CanLII 45044 (ON CA), 61 O.R. (3d) 321 (C.A.).
[15] We therefore conclude that the board’s disposition is unreasonable and must be set aside.
[16] Given this conclusion, we need not deal with the Provincial Advocate’s submission that the Board’s disposition is unlawful because the provisions of the Youth Criminal Justice Act and the Criminal Code require that J.J. be placed at Syl Apps because of his age, since it is the only facility designated for the custody treatment or assessment of young persons.
[17] Nor would we give effect to this argument when determining the appropriate remedy. It was not raised at first instance, something that could and should be done first at a subsequent hearing before the Board, if it is to be pursued.
[18] In our view, the appropriate remedy must be determined in light of the fact that it has been some five months since the Board’s disposition and much may have changed with J.J. The best course is to remit J.J.’s case to the Board for a new hearing, but on an expedited basis. J.J.’s present condition and circumstances can then be properly considered.
[19] The appeal is therefore allowed and the matter remitted to the Board to be dealt with according to these reasons.
RELEASED: September 24, 2009 (“S.T.G.”)
“S.T. Goudge J.A.”
“E.A. Cronk J.A.”
“J. MacFarland J.A.