WARNING

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

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2015-06-08

Court File No.: Brampton 20034-15

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

M.A., Respondent/mother

W.R. Respondent/father

Before: Justice Philip J. Clay

Heard on: June 2, 2015

Reasons for Judgment released on: June 8, 2015

Counsel

Mr. D. Sider — counsel for the applicant (CAS-Peel) with the instructing worker Ms. D. Plummer

Mr. E.R. Schink — counsel for the respondent parents who were present

Mr. Jo. Frost and Ms. S. Khemani — counsel for the child K.R. who was present with nurse and youth worker from Brampton Civic Hospital

Ms. S. Hind — counsel for the Arabic Interpreter for M.A.

CLAY J.:

SECURE TREATMENT APPLICATION

BACKGROUND

[1] This was a Secure Treatment Application brought by the Society in which it sought an order committing the child K.R. born […], 2003 to the secure treatment program at Syl Apps Youth Centre.

[2] In order to be in a position to bring this secure treatment application the Society brought a protection application. They obtained a temporary care order on April 22, 2015. This application was then brought on April 30, 2015 and ultimately adjourned for hearing today.

[3] The Society filed affidavit evidence in the Continuing Record. I accepted the submission by Mr. Frost that the medical reports that were attached to the affidavit of the Society worker Ms. Plummer could not be filed as business records as they contained opinion evidence of psychiatrists that were not available for cross-examination. The Society called four witnesses: Dr. Soliman, the child psychiatrist responsible for K.R.'s care at Brampton Civic hospital, Dr. Hawes the lead forensic manager at the Syl Apps Youth Centre, Ms. McClean a child and youth worker at the hospital, and Ms. Thompson a psychiatric nurse.

[4] The children's lawyer and the parents did not file any evidence or call any witnesses.

THE LAW

[5] This application was brought pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (CFSA). The relevant provisions of the legislation are set out as follows:

Commitment to secure treatment: criteria

117. (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that:

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, within the forty-five days immediately preceding:

(i) the application under subsection 114 (1),

(ii) the child's detention or custody under the Young Offenders Act (Canada), under the Youth Criminal Justice Act (Canada) or under the Provincial Offences Act, or

(iii) the child's admission to a psychiatric facility under the Mental Health Act as an involuntary patient,

caused or attempted to cause serious bodily harm to himself, herself or another person;

(c) the child has:

(i) within the twelve months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to himself, herself or another person, or

(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person's death;

(d) 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;

(e) treatment appropriate for the child's mental disorder is available at the place of secure treatment to which the application relates; and

(f) no less restrictive method of providing treatment appropriate for the child's mental disorder is appropriate in the circumstances. R.S.O. 1990, c. C.11, s. 117 (1); 2006, c. 19, Sched. D, s. 2 (35).

Where child under twelve

(2) Where the child is less than twelve years old, the court shall not make an order under subsection (1) unless the Minister consents to the child's commitment. R.S.O. 1990, c. C.11, s. 117 (2).

Period of commitment

118.(1) The court shall specify in an order under subsection 117 (1) the period not exceeding 180 days for which the child shall be committed to the secure treatment program.

Where society is applicant

(2) Where a child is committed to a secure treatment program on a society's application and the period specified in the court's order is greater than sixty days, the child shall be released on a day sixty days after the child's admission to the secure treatment program unless before that day:

(a) the child's parent consents to the child's commitment for a longer period; or

(b) the child is made a Crown or society ward under Part III (Child Protection),

but in no case shall the child be committed to the secure treatment program for longer than the period specified under subsection (1). R.S.O. 1990, c. C.11, s. 118 (1, 2).

ANALYSIS

Mental disorder s. 117 (1) a)

[6] All parties conceded that the 11 year old child was suffering from a mental disorder. Dr. Soliman's evidence was that the child had a dual diagnosis of Oppositional Defiant Disorder (ODD) and Child Onset-Conduct Disorder (CD). He said that his patient met the criteria for these disorders as set out in the DSM V. Briefly stated he said that ODD meant that K.R. would not follow instructions and would not take no for an answer.

[7] The doctor said that a CD diagnosis required aggressive behaviour causing bodily harm while using a weapon. If this type of behaviour occurs before the age of ten a patient meets the child onset criteria. There was evidence that K.R. had stabbed his older brother in the leg when K.R. was just 8.

Mental disorder causing bodily harm s. 117 (1) b)

[8] There was no dispute as to the evidence that the child had caused serious bodily harm within the 45 days prior to his hospitalization. On November 10, 2014 K.R. had returned from a family outing, taken a steak knife, gone upstairs to the bedroom of his 18 year old brother and stabbed his brother in the chest. The brother sustained a collapsed lung and was rushed to hospital. The police took K.R. to hospital where he was admitted to a psychiatric unit. He remained there until the time of this hearing. The police report of the incident was filed. The parents who were home at the time of the stabbing did not dispute what had occurred.

Other incidents of threats or actual serious bodily s. 117(1) (c)

[9] The Society filed evidence that addressed a number of aggressive incidents that had required that K.R. be restrained while in hospital. The evidence of Dr. Soliman, Ms. McClean and Ms. Thompson was to the effect that K.R.'s behaviour was completely unpredictable and that he could go from being pleasant and compliant one minute to being very aggressive the next. Ms. Thompson a psychiatric nurse with 25 years of experience stated that K.R. tried to bite, kick, spit, punch and was also verbally aggressive on many occasions.

[10] The Society relied upon two incidents that Mr. Sider said met the criteria set out in subsection 1 c). The first occurred on March 2 and the second on March 29, 2015.

[11] Ms. McClean said that she worked with K.R. daily and while she had heard reports from other staff of his physical aggression she had not seen it personally between his admission on November 10 and an incident on March 2. She felt she had developed a rapport with K.R.

[12] On Mar. 2, 2015 there was a code white which meant there was an aggressive or violent patient on the ward. There was a lot of security staff on the ward. When another code white was called some 20 minutes later she was talking with her manager. Out of the corner of her eye she saw K.R. coming towards her with both fists clenched. The next thing she knew her glasses fell to the ground and she fell on the manager. That manager then whisked her into the nursing station where she quickly realized that had been hit on the head by K.R. She said there was a big bump on her right temple and felt really shook up. She went to the ER and was told there to put ice on the swelling and she was given information on concussions. She found the incident traumatizing. She suffered from headaches and missed two days of work. She said that on a scale of 1 to 10 the pain she suffered from the blow was an 8.

[13] Dr. Soliman witnessed this incident. He saw K.R. approach with clenched fists, jump in the air and strike Ms. McClean. The incident was completely unprovoked. K.R. had not expressed any regret or remorse for his actions.

[14] The second incident relied upon was March 29. Ms. Thompson observed it. She had been working on the ward from the date that K.R. was admitted and she was able to give evidence of how quickly he could become enraged. She said that despite his slight stature K.R. was capable of really hurting people when he became angry as he had nearly broken her nose with his knee during one restraint. In fact she said that in her 25 years of experience as a psychiatric nurse some of the most difficult restraints she had ever seen on aggressive and completely out of control patient were ones involving K.R.

[15] Ms. Thompson was in the nursing station during a family visit in K.R.'s room. There are cameras above each of the doors in the 4 room unit and she was observing a screen split into quarters. She clearly saw on the camera K.R. punching and kicking his mother who flinched in pain. She then put the view of his room on the full screen. The father was on the bed as K.R. attacked his mother but he did not intervene. Security was called and the assault was stopped.

[16] It is only necessary for me to find that one incident of serious bodily harm, or the threat of same, occurred in addition to the precipitating occurrence in which the older brother was stabbed. I find that both the March 2 and 29 assaults would meet the criteria. They were completely unprovoked and due to the nature of the assaults with closed fists to the head and kicking to the body serious bodily harm could have resulted.

Effectiveness of secure treatment program s. 117 (1) (d)

[17] Dr. Hawes provided a letter dated April 23, 2015 which was attached to Ms. Plummer's affidavit. She said that her team felt that the secure treatment program at Syl Apps would be effective to prevent K.R. from causing or attempting to cause serious bodily harm to himself, herself or another person.

[18] Dr. Hawes said that Syl Apps specializes in treating young people with serious mental disorders and behavioural problems. While the approach would have to be somewhat different for an 11 year old child than for a 16 year old young offender there was no other facility that could meet K.R.'s needs and Syl Apps now had the Ministry funding to tailor a program for K.R.

Appropriate treatment available s. 117 (1) (e)

[19] Dr. Hawes' evidence was that there was a bed available at Syl Apps and that the child could be transported there immediately upon a court order being made. She filed a treatment plan. It included the creation of a separate unit in which to house K.R. as an 11 year old patient. He would have 2 staff attending him and providing treatment during daytime hours and one staff person dedicated to him overnight. There would be an initial thirty day assessment period. He would receive an individualized treatment program specific to this youth's unique needs. K.R.'s family would be involved in the family therapy. The Halton school board on site will provide an elementary school program.

[20] The plan also involved community services in the Peel region too in order to provide for a timely transfer back to the community. Peel CAS would be the lead service. It was noted that if Peel CAS did not obtain an order for Society wardship within 60 days of K.R.'s admission the child would be discharged to their care under the temporary care order pursuant to the provisions of s. 118 (2).

No less restrictive method of providing treatment appropriate 117 (1) (e)

[21] The Society held a community case conference on January 8, 2015 to explore possible placements for K.R. There were representatives from a number of treatment and care providers. The goal was to plan for K.R.'s safe discharge from hospital as he had already been at Brampton Civic hospital for 2 months. Following the meeting the Society undertook an exhaustive search of the possible options. They spoke to the following agencies; CARS Toronto, Youthdale, residential and crisis bed, Hinks-Dellcrest, George Hull, Kinark Services which operates the program at Syl Apps, Vanier, Peel Children's Centre, CPRI London, CAMH, Robert Smart and Ontario Shores. It is not necessary to set out why each program did not consider K.R. to be suitable for their program. Many of them stated that the best option would be Syl Apps.

[22] I am satisfied that there is not a less restrictive program that could provide safe and effective treatment for K.R.

Minister's consent s. 117 (2)

[23] The consent of the Minister was received on April 21, 2015. By that time K.R. had been on the psychiatric unit of an acute care hospital for over 6 months. Dr. Soliman stated that the initial assessment at the hospital took about three weeks. At that time the doctor's opinion was that K.R.'s CD required specialized treatment before the child could go home. K.R. has received no treatment.

[24] Dr. Soliman said that the hospital could not treat K.R. In their psychiatric ward patients are in a locked unit for acute psychotic disorders. The psychiatrists and nurses there are not equipped to provide long term therapy for this type of disorder. The doctor said that he was in charge of the patient's overall care and he saw him daily. He was also assessed by two other psychiatrists. K.R. was constantly observed and assessed but he was not treated. The doctor conceded that it was not fair to the patient or his family that he stayed in the hospital any longer than the time period necessary for the initial assessment to be done. He said that the hospital was very motivated to have some other treatment setting take K.R.

[25] Dr. Soliman said that Syl Apps was identified early on a possible place for treatment. Dr. Hawes confirmed that the parents did sign a consent for the file to be sent to Syl Apps in November 2014. She also said that after visiting Syl Apps the parents did not want to send their son there. However, it is clear from the evidence that even if the parents had consented to treatment at Syl Apps back in November or December of 2014 that the child would not have been sent there. This was because he was too young for the facility to accept him. They had to wait not only for the Minister's delegate to sign the consent form but for the Ministry to approve the funding proposal for the separate unit, the staff and the program.

[26] While there was evidence that the parents withdrew any consent to a placement at Syl Apps in December 2014 due to their concerns about K.R. being housed in an institution with 16 and 17 year old young offenders, their consent was really meaningless until the Minister signed the consent on April 21, 2015. The only delay in treatment that the parents are arguably responsible for is the period from April 21 until the time of this hearing.

[27] It is true that a secure treatment order could not have been obtained without evidence of a second incident involving serious bodily harm. Although there was other evidence of physical aggression the earliest incident that the Society relied upon, and I accepted as meeting the criteria, occurred on March 2, 2015.

[28] The CFSA contemplates the secure treatment of children under 12. The legislation quite properly sets out specific criteria to ensure that this very restrictive plan is reserved for only the clearest of cases where there is no other option. The evidence was that there may have only have been one other child under 12 that had ever been in secure treatment at Syl Apps. There are only three secure treatment facilities in the entire province. These cases are, and should be, unique. Nevertheless, the legislation contemplated a need for secure treatment of children under 12. In this case well before February 18, 2015 (the day of the last treatment case conference) it was clear that Syl Apps was the only option. More than two months went by before the Minister was in a position to authorize the transfer of K.R. to a place where he might begin to be treated for his serious mental disorders. This 11 year old child has not been off the locked ward of an acute care hospital since November 10, 2014. This is not acceptable.

[29] Dr. Hawes said the length of time required for treatment was a minimum of 180 days and that is the maximum amount of time for which a secure treatment order can be made although a renewal of same can be sought. She said that most children with K.R.'s level of aggression requires stays of up to a year.

ORDER

[30] The child K.R. born […], 2003 shall be committed to the secure treatment program at Syl Apps Youth Kinark Child and Family Services for a period of 180 days.

Released: June 8, 2015

Justice P.J. Clay