WARNING

The court hearing this matter directs that the following notice should be attached to the file:

The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, and has expressly prohibited the disclosure of any information about the identity of the children and parties in this case. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:

135.—(2) Exception.— The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

(3) Disclosure of information.— Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.

Punishment for contempt is set out in subrules 31(5) and 31(6) of the Family Law Rules, O. Reg. 114/99, which state as follows:

(5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person,

(a)

be imprisoned for any period and on any conditions that are just;

(b)

pay a fine in any amount that is appropriate;

(c)

pay an amount to a party as a penalty;

(d)

do anything else that the court decides is appropriate;

(e)

not do what the court forbids;

(f)

pay costs in an amount decided by the court; and

(g)

obey any other order.

(6) Writ of temporary seizure.— The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property.

Milton Registry No. 532/11

DATE: 2012·I·10

CITATION: Paul v. R.S., 2012 ONCJ 6

ONTARIO COURT OF JUSTICE

BETWEEN:

CATHY PAUL (on behalf of Syl Apps Youth Centre),

Applicant

— AND —

R.S., a young person,

Respondent

Before Justice Sheilagh M. O’Connell

Heard on 30 November 2011; and 5 December 2011

Written Reasons released on 10 January 2012

Michele M. Warner ................................................................................................ for the applicant

John K. Phillips ..................................................... counsel for the Office of the Children’s Lawyer,

legal representative for the respondent youth

JUSTICE S.M. O’CONNELL:—

1: INTRODUCTION

[1] The applicant, Ms. Paul, on behalf of Syl Apps Youth Centre, has brought an application for an extension of R.S.’s commitment in a secure treatment facility. The application was brought under Part VI (Extraordinary Measures) of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (“the Act”).

[2] Ms. Paul is the administrator of Syl Apps Youth Centre (“Syl Apps”), a secure treatment facility. The respondent, R.S., is a young person. Ms. Paul and the child’s mother consented to an extension of R.S.’s commitment in Syl Apps. R.S. opposes her continued commitment in Syl Apps.

[3] After hearing the evidence and the submissions of the parties, I granted the application for an extension on the day of the hearing, with reasons to follow. These are the reasons for the order that I made.

2: THE EVIDENCE

[4] Mr. Michael Hickey and Dr. Tatjana Muhamedagic gave evidence on behalf of Syl Apps. The Secure Treatment Extension Report, dated October 18, 2011, prepared by Mr. Hickey and Dr. Muhamedagic, was admitted as evidence in these proceedings, on the consent of the parties. Mr. Hickey is R.S.’s individual therapist and case manager at Syl Apps. He is responsible for connecting all of the individuals, including medical, professional and family members, involved in R.S.’s care. Dr. Muhamedagic is R.S.’s treating psychiatrist at Syl Apps.

[5] R.S. testified on her own behalf.

[6] R.S. is seventeen years old. On May 18, 2011, she was admitted to Syl Apps because of a history of self-harming behaviour, suicidal ideation and attempted suicide. R.S.’s suicidal behaviour includes cutting herself, tying clothing around her neck, and solvent abuse. When first admitted to Syl Apps, R.S. reported that she thinks about ways to commit suicide on a regular basis. According to Secure Treatment Extension Report dated October 18, 2011, R.S. continues to struggle with self-harming behaviour, suicidal ideation and attempting suicide.

[7] R.S. has been involved in sixteen “critical incidents” since her admission to Syl Apps. All of these incidents are related to self-harm and attempting suicide. The most recent incidents took place on September 28, 2011, October 18, 2011, and October 31, 2011. On September 28, 2011, R.S. was found ripping her clothing and tying cloth around her neck with the intent of committing suicide. On October 18, 2011, R.S. made a noose out of her shirt and tied it around her neck with the intent of committing suicide. Staff intervened and a knife had to be used to cut the noose from around her neck. On October 30, 2011, R.S. attempted to cut herself by breaking a plastic cup and using the broken pieces to cut her wrist until staff intervened. Although the cuts to her wrist caused bleeding and scratches, no stitches were required.

[8] Mr. Hickey testified that more recently, R.S. has started to consistently restrict her food intake and then purge her food. This pattern started approximately six weeks ago. The staff is concerned that this is a new expression of self-harming behaviour. Although R.S.’s pattern of restricting food and purging has not yet caused her serious bodily harm, the Syl Apps staff is concerned that there is a risk of serious bodily harm if this behaviour continues. Mr. Hickey testified that R.S. is not committed to stopping this behaviour right now.

[9] Both Mr. Hickey and Dr. Muhamedagic also testified that over the past six months, R.S. has made significant gains. She no longer requires “2 to 1” arms-length supervision. She is now residing in a unit with nine other residents and is attending school on a consistent basis. She has learned good coping skills and she is able to identify and label her feelings. She has learned to recognize when she is unsafe and she has learned to ask for help. R.S. continues to require “1 to 1” arms-length supervision and, when she is in her room for quiet time and overnight, staff check on her every five minutes. Mr. Hickey testified that, if R.S. did not have this level of supervision, she would attempt suicide and potentially commit suicide. Both Mr. Hickey and Dr. Muhamedagic testified that it is crucial that Syl Apps continue to work with R.S. to further reduce the level of supervision that she requires before she is discharged back into the community. R.S. does have community access while at Syl Apps, although this access is fully supervised. R.S. recently performed in a Pow Wow in Toronto, where she was accompanied by two staff members. Mr. Hickey testified that this was an extremely positive experience for R.S. and that her attitude was great.

[10] Mr. Hickey testified that R.S. has also made good decisions about her discharge plan once she is released from Syl Apps. She recognises that it would be better to return to Thunder Bay where there are more mental health resources, including her former therapist, psychiatrist and community case worker, rather than to Fort Hope, where some of her family resides. However, Mr. Hickey testified that it was his opinion that there is currently no less restrictive method of providing appropriate treatment for R.S. because Syl Apps is the only program that offers a secure, intense and cohesive treatment from a multi-disciplinary team, in one unit, 24 hours each day. R.S. currently receives treatment from a team that includes a psychiatrist, a psychologist, a social worker and an art therapist.

[11] Mr. Hickey testified that Syl Apps is the only program that offers intensive Dialectical Behavioural Therapy (“DBT”) on a daily basis because all of the staff members are trained in this therapy. DBT is a form of evidence-based treatment that combines cognitive behavioural therapy for emotional regulation and “mindfulness” techniques, according to Mr. Hickey. He testified that although R.S. has made significant gains through this therapy, Syl Apps is the only program at this time that can provide R.S. the support and coaching that she needs to manage her self-harming behaviour and her urge to commit suicide.

[12] Under cross-examination, both Mr. Hickey and Dr. Muhamedagic acknowledged that R.S.’s former therapist in Thunder Bay was trained in DBT therapy and that R.S. can access the services and treatment of her former psychiatrist, her DBT therapist, her former community case worker and her probation officer in Thunder Bay, should she return there, with all of whom she has good and long-term relationships. Dr. Muhamedagic also acknowledged that a psychiatrist in Thunder Bay could also provide the same treatment for R.S. as she does. Further, if discharged now, R.S. would be transferred to the J.J. Kelso Secure Custody Centre for young offenders in Thunder Bay at least until January 12, 2012, as she is still subject to an order under the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended. Thereafter, she would be under the supervision of her probation officer for a further period of 12 months. Mr. Hickey acknowledged that R.S. has a long-term and very supportive relationship with her probation officer, as well as with her psychiatrist in Thunder Bay, who was the original applicant for the secure treatment order in May of 2011.

[13] However, notwithstanding the treatment available in Thunder Bay, both Mr. Hickey and Dr. Muhamedagic testified that no other treatment provider can provide the level of supervision, intensity and co-ordination of treatment that Syl Apps can provide for R.S. and that is necessary for her at this time. Mr. Hickey sees R.S. every day and she receives individual therapy, art therapy, DBT therapy, psychiatric treatment on a weekly basis, in addition to the “1 to 1” supervision.

[14] Both Mr. Hickey and Dr. Muhamedagic also acknowledged under cross-examination that R.S. really misses her family and community. Dr. Muhamedagic testified that the geographic distance between Syl Apps and R.S.’s family is a major issue and that it would be beneficial to R.S. to have more contact with her family.

[15] Dr. Muhamedagic also testified that R.S is currently prescribed medication for her depression, post-traumatic stress (including symptoms of intense flashbacks and nightmares), and insomnia. She testified that R.S. had difficulty accepting the medication in the past and at one point, she stopped taking her anti-depressant medication. However, R.S. has now come to understand that she needs the medication and, as far as Dr. Muhamedagic is aware, R.S. has complied with taking her medication.

[16] R.S. testified on her own behalf. She is 17 years old and comes from Fort Hope, Ontario. She is a member of the Ojibwa First Nations. She has a large family. Her father and stepmother live in Fort Hope and her mother and stepfather live in Thunder Bay. She is very close to her family and she misses them, as well as her community.

[17] R.S. testified that, since coming to Syl Apps, she has learned a lot. She has learned to validate herself and talk about her feelings. She testified that she has learned how to use DBT therapy to manage her feelings and improve her life and coping skills. She gave an example of how she used the skills that she learned after a recent telephone call with her sister, which was upsetting to her. She testified that DBT therapy is something that everyone uses (or should use) in life and that it helps you to label and manage your feelings.

[18] She explained how she feels safer now and that she is now comfortable in asking for help when she feels unsafe. She testified that she could not do that before. She stated that sometimes she still feels unsafe and she asks the Syl Apps staff for help. She testified that she would return to her former psychiatrist, community caseworker and therapist in Thunder Bay once discharged from Syl Apps and also seek help and support from her probation officer and the staff at Kelso.

[19] When asked why she should no longer remain at Syl Apps, R.S. testified that she wants to be close to her family and that she “just wants to go home”.

3: THE LAW

[20] The committal or extension of committal of a young person to a secure treatment program is an extraordinary measure under Part IV of the Act.

[21] Section 120 of the Act provides as follows:

120. Extension of period of commitment.—(1) Where a child is the subject of an order made under subsection 117(1) (commitment) or subsection (5),

(a)

a person referred to in subsection 114(1), with the administrator’s written consent; or

(b)

the administrator, with a parent’s written consent or, where the child is in a society’s lawful custody, the society’s consent,

may, before the expiry of the period of commitment, apply for an order extending the child’s commitment to the secure treatment program.

(2) Idem.— Where a person is kept in the secure treatment program under subsection 118 (4) after attaining the age of eighteen years,

(a)

the person, with the written consent of the administrator;

(b)

the person’s parent, with the written consent of the person and the administrator;

(c)

a physician, with the written consent of the administrator and the person; or

(d)

the administrator, with the written consent of the person,

may, before the expiry of the period of commitment, apply for one further order extending the person’s commitment to the secure treatment program.

(3) Child may be kept in program while application pending.— Where an application is made under subsection (1) or (2), the child may be kept in the secure treatment program until the application is disposed of.

[22] The criteria for extending a young person’s commitment to a secure treatment facility is set out under subsection 120(5) of the Act as follows:

(5) Criteria for extension.— The court may make an order extending a child’s commitment to a secure treatment program only where the court is satisfied that,

(a)

the child has a mental disorder;

(b)

the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person;

(c)

no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances;

(d)

the child is receiving the treatment proposed at the time of the original order under subsection 117(1), or other appropriate treatment; and

(e)

there is an appropriate plan for the child’s care on release from the secure treatment program.

[23] When making an order under subsection (5) above, the court must specify in the order a period not exceeding 180 days for which the child shall be committed to the secure treatment program: subsection 120(6) of the Act.

4: POSITION OF THE PARTIES

[24] R.S., through her lawyer, Mr. Phillips, concedes that Syl Apps has met criteria (a), (d), and (e) of the test set out in the legislation. Specifically, she concedes that she does suffer from major depression and post-traumatic stress disorder and therefore has a mental disorder. Further, R.S. concedes that she is receiving the treatment proposed when the original order for her committal was made in May of 2011 and that there is an appropriate plan of care upon her release from Syl Apps.

[25] R.S submits that Syl Apps has not established the following, and therefore, she should be released immediately:

(a)

that its secure program would be effective in preventing R.S. from causing or attempting to cause serious bodily harm to herself; and

(b)

that there is no less restrictive method of providing treatment appropriate for R.S.’s mental disorder is appropriate in the circumstances.

[26] Mr. Phillips submits on R.S.’s behalf that, although there is no question that Syl Apps has the ability to provide appropriate treatment, the first issue is whether R.S. continues to cause or attempt to cause serious bodily harm to herself. He submits that R.S. has made steady progress over the past six months and that the last two critical incidents, which occurred approximately four to six weeks before this application was commenced, did not amount to serious bodily harm. He submits that R.S.’s attempt to cut herself with the plastic cup did not amount to serious bodily harm, nor is her attempt to restrict her food intake and purge, a behaviour that he submits is not uncommon for teenage girls. Therefore the reason for R.S.’s original admission to Syl Apps no longer exists.

[27] Mr. Phillips further submits that the second key issue in this case is that there are other less restrictive methods of providing treatment for R.S.’s mental disorder that are appropriate. He submits that the pre-existing treatment and resources for R.S. in Thunder Bay provide a less intrusive method of treatment that will continue to keep R.S safe. He submits that R.S. can now recognise when she is unsafe and that she has learned to ask for help when she needs it. The custodial setting of the J.J. Kelso Centre, where she would reside until January 12, 2012, will provide a secure transitional setting and after that, R.S could potentially reside with one of her parents, or be released into open custody and continue to receive treatment and support from her pre-existing psychiatrist, community caseworker, therapist and probation officer in Thunder Bay, with all of whom she has good relationships.

[28] Ms Warner, on behalf of Syl Apps submits that the recent and severe incidents of self-harm committed by R.S. amply support an extension of the secure treatment order. Ms Warner submits that, although the most recent incident on October 31, 2011 did not amount to serious bodily harm, this was because R.S. was at Syl Apps, where staff was able to intervene quickly, given the level of supervision. She submits that the outcome could have been very different if R.S. was elsewhere.

[29] Ms Warner further submits that, if R.S were discharged now from Syl Apps, she would not receive the intensity of services and treatment in one cohesive unit out of one facility, 24 hours each day, seven days a week. She submits that all of the professionals involved in Thunder Bay are people who work in the community and, although the J.J. Kelso Centre is a secure facility, it does not offer the same intense degree of clinical support and supervision of Syl Apps. In fact, she submits that the J.J. Kelso Centre was not able to manage R.S.’s expression of self-harm, as her treating psychiatrist at J.J. Kelso was the applicant in the original secure treatment application in May of 2011.

[30] Although Ms Warner concedes that R.S has done very well in developing a skill set that will help her reintegrate into the community, much further work needs to be done and no less restrictive method of providing treatment for R.S.’s mental disorder is available and appropriate in the circumstances.

5: ANALYSIS

[31] As the legislation states, the committal of a young person in a secure treatment facility is an extraordinary measure. The liberty of the young person is at stake. The onus is on Syl Apps to demonstrate why R.S. should continue to be committed to its secure program against her wishes. Syl Apps must demonstrate that all five criteria under section 120(5) have been met to justify an extension of R.S.’s committal.

[32] As conceded by R.S. through her counsel, Syl Apps has met three of the five criteria for an extension of her committal. After listening carefully to the expert evidence of Dr. Muhamedagic, who specialises in child and adolescent psychiatry, I am satisfied that R.S. has a mental disorder, that she is receiving the treatment appropriate for her mental disorder at the time the original order was made and that there is an appropriate plan for R.S.’s care when she is ready to be released from the program.

[33] The issue for me to determine is whether Syl Apps continues to be effective in preventing R.S. from causing or attempting to cause serious bodily harm to herself and to be the least restrictive method of treatment appropriate for R.S.’s mental disorder in the circumstances.

[34] In The Queen v. C.D.; The Queen v. C.D.K., 2005 SCC 78, [2005] 3 S.C.R. 668, 343 N.R. 1, 376 A.R. 258, 54 Alta. L.R. (4th) 67, 360 W.A.C. 258, [2006] 5 W.W.R. 195, 261 D.L.R. (4th) 257, 203 C.C.C. (3d) 449, 34 C.R. (6th) 323, [2005] S.C.J. No. 79, 2005 CarswellAlta 1869, the Supreme Court of Canada defined serious bodily harm as “hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of the person”; (paragraph [20]).

[35] It is clear from observing and listening to R.S. during her testimony that she is a very impressive young woman. There is no question that she has made significant gains over her past six months at Syl Apps and, in my view, she will continue to do so.

[36] However, the three most recent incidents described in the evidence, all occurring between four to six weeks before this application, and the last occurring less than two weeks before this application, were attempts by R.S. to cause serious bodily harm to herself. The fact that Syl Apps staff was able to intervene on October 18, 2011 and remove the noose that R.S. placed around her neck, and the fact that R.S. was not able to cut her wrist deeply on October 31, 2011 with a plastic cup before staff intervened, does not mean that these were not attempts to cause serious bodily harm. The only reason, in my view, that R.S. was not successful in these attempts is that she was in a secure treatment program that was effective in preventing further serious bodily harm to herself.

[37] Further, I respectfully do not agree with counsel for R.S. that the evidence of consistent restricting and purging of food by R.S. over the past number of weeks is something that is common in teenage girls. I agree with the evidence of Mr. Hickey that this could be a further expression of self-harming behaviour that, if continued, could amount to serious bodily harm.

[38] The evidence establishes that R.S. has made steady progress over the past six months and that she has worked hard to learn effective coping and life skills. She has demonstrated some ability to recognise when she feels unsafe and needs help. However, given her most recent attempts at self-harming behaviour, which I find to be serious, there is no less restrictive method of providing treatment for R.S.’s mental disorder other than Syl Apps. No other service provider can provide the intense “1:1” level of supervision and “wrap-around” treatment that R.S continues to need at this time, despite the significant gains that she has made. There is no evidence that this intense degree of clinical support and supervision is available elsewhere.

[39] I recognise that this decision was difficult for R.S. She misses her family and her community. She is homesick. It is hoped that Syl Apps will be able to facilitate more contact between R.S. and her family, as recognised by Dr. Muhamedagic, although the geographic distance between R.S. and her family and community is no doubt a significant challenge.

6: CONCLUSION

[40] For the reasons set out above, I find that all of the criteria under subsection 120(5) for an extension of the secure treatment order have been met and that the application to extend R.S.’s committal to the secure treatment program at Syl Apps shall be granted for a further 180 days, commencing the date of the application. However, the court shall review the extension granted on February 29, 2012 at 10:00 a.m. to monitor any progress that has been made.

Released: 10 January 2012

Signed: “Justice Sheilagh M. O’Connell”