WARNING
The court hearing this matter directs that the following notice 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 and has expressly prohibited the disclosure of any information about the identity of the child. 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.
Subrules 31(5) and 31(6) of the Family Law Rules state as follows:
31.— (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.
Court Information
Ontario Court of Justice
Date: 2016-12-15
Court File No.: Halton 197/16
Between:
Ontario Shores Centre for Mental Health Sciences, Dr. Tatjana Muhamedagic Applicant
— AND —
C.S. and J.S. Respondent Parents
Before: Justice Victoria Starr
Heard on: November 18, 2016
Reasons for Judgment released on: December 15, 2016
Counsel
Naveen Hassan — counsel for Ontario Shores Centre for Mental Health Sciences
C.S. and J.S. — on their own behalf
Kevin Frost — counsel for the Office of the Children's Lawyer, legal representative for the child
Decision
VICTORIA STARR J.:
OVERVIEW
[1] On May 6, 2016 I ordered, with M's consent, that he be committed for 180 days to the secure treatment program at Syl Apps Youth Centre ("Syl Apps" or "SAYC").
[2] The applicant, Dr. Tatjana Muhamedagic, (child and adolescent psychiatrist) on behalf of Ontario Shores Centre for Mental Health Sciences ("Ontario Shores") has brought an application for a three month extension of now 18 year old M's committal to the secure treatment program at Syl Apps. M's parents (the respondents) as well as the administrator of Syl Apps, consent to the extension.
[3] M does not consent to any extension of his committal to the secure treatment program at Syl Apps. He asks this court to dismiss the application so that he can be released immediately.
[4] An order extending M's committal can only be made if the applicant satisfies this court that each and every one of these five criteria are met:
(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) of the Child and Family Services Act, R.S.O. 1990, c. C-11 ("the Act"), or other appropriate treatment; and
(e) There is an appropriate plan for the child's care on release from the secure treatment program. [1]
[5] If the court decides that all five criteria have been met and that an order extending M's committal to the secure treatment program should be made, it must decide the length of the extension and then specify the length of the committal term in its order. Although the applicant seeks an extension of three months, pursuant to subsection 120(6), the decision is one left to the court's discretion so long as it does not exceed an additional 180 days.
[6] M concedes that he has a mental disorder and that he is receiving the treatment proposed at the time of the original order under subsection 117(1) of the Act. The applicant has thus met its onus to prove that the first and the fourth criteria are met. The other three criteria are not conceded by M – (b), (c) and (e). The issues I must decide are thus, whether each of those remaining three criteria are established.
Uncontested Facts
[7] M suffers from a mental disorder. He presents with Bipolar Affective Disorder, antisocial personality traits, a learning disability, and Myoclonus Dystonia. Recently he was diagnosed with a developmental delay.
[8] M was transferred to the secure treatment program at SAYC from Ontario Shores due to his instability in previous placements, including hospital settings, where he exhibited behaviours related to chronic suicidal ideation and aggression. Additionally, M presents with interpersonal difficulties, difficulty with moods, and low impulse control.
[9] Since his arrival at Syl Apps, M has participated in many kinds of therapeutic interventions. He regularly participates in Dialectical Behaviour Therapy (DBT), the primary treatment modality offered at that facility. DBT provides M with weekly individual sessions, weekly skills group, and 24 hour skills coaching. In addition, M has received treatment from a multi-disciplinary team that includes practitioners of psychiatry, psychology, and social work. In addition, he has received behavioural management and skills training from child and youth workers.
[10] M meets with psychiatry and nursing staff weekly for ongoing psychiatric assessment and medication monitoring. He continues to meet with his clinical staff for assessment and monitoring of all medication changes in relation to his psychiatric stability and any side effects related to mood, impulsivity, appetite, and sleep patterns.
[11] Following an incident of problematic behaviour, staff coach M on completing Behaviour Chain Analyses (BCA). This helps him to identify precipitating factors for his behaviour. It helps him identify different skills he could use in moments of distress so that he can learn to manage his difficult emotions in an effective way.
[12] Prior to October 22, 2016, the discharge plans for M included his return home to live with his parents. This was to occur either before or upon expiry of the 180 day committal order of May 6, 2016. Although efforts were underway to secure wraparound support services for M, there were many balls still up in the air and few of these would actually be in place had he been discharged prior to or on the expiry of the 180 committal term.
[13] On October 22, 2016, M, who was at home visiting his family for the weekend, unexpectedly moved directly towards his mother in an attempt to strike her in the face. His father prevented him from hitting his mother by restraining him. The police were called. After a brief hospital admission, M was returned to Syl Apps.
[14] After this incident, M's parents were unwilling to have him return home to live with them. A new discharge plan had to be developed. It now includes finding a new residential placement and for work to begin for M's transition to his new placement.
Evidence Reviewed
[15] Even though he turned 18 on November 11, 2016, M has remained in the Syl Apps secure treatment program. That is because its extension application was made before his birthday and before the end of his 180 day committal term. M must remain in Syl Apps until this application is decided and thereafter, only if the court decides to grant the committal extension. [2] If the court dismisses the application, M will be immediately released into the community.
[16] The hearing of this extension application took place on November 18, 2016. Two witnesses gave oral evidence, Samantha Di Bartolo, a social worker employed by Syl Apps and M's case manager there, and case worker, Christopher Bourke of LOFT Community Services. Two reports were admitted as evidence on consent: the secure treatment report dated October 27, 2016, written by Samantha Di Bartolo and reviewed by Dr. Janelle Hawes, forensic psychologist and lead manager of forensic services at Syl Apps, and the psychology consultation report of Dr. Daniel Zdzieborski, dated October 28, 2016. These reports are attached to the affidavit of Samantha Di Bartolo, sworn November 1, 2016.
[17] A third report, that of psychiatrist, Dr. Tatjana Muhamedagic, dated October 25, 2016, was attached to Samantha Di Bartolo's affidavit. No reference was made to it at the hearing. Although Dr. Muhamedagic was present at the hearing, she did not give evidence. I am uncertain about whether counsel intended this report to form part of the evidence, but they made no such request. I have placed no weight on her report.
Legal Framework
[18] The court's power to extend the committal of a young person to a secure treatment program comes under the title of "EXTRAORDINARY MEASURES" in a special portion of the Act – Part IV. This placement has been interpreted in a number of cases as a clear signal within the legislation that the committal of a young person to a secure treatment facility is a highly intrusive procedure where the liberty of the young person is at stake. [3]
[19] The enumeration of specific criteria coupled with the conjunctive nature of the criteria in subsection 120(5), together serve as legislative safeguards against the arbitrary loss of a young person's liberty. So too do the general principles that have emerged from the small body of jurisprudence available in this area of law. [4]
[20] Nowhere is this more apparent than in Justice Peter Nasmith's decision and reasoning in the case of Re A. (J.). In that case Nesmith J. comments extensively on the application of the criteria, heavy evidentiary onus, and the obligation of the court. These are the key guiding principles that emerge from that early case with respect to how the court is to safeguard against the arbitrary loss of a young person's liberty:
The loss of a young person's liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;
The applicant bears the onus to demonstrate why the young person should continue to be committed to a secure program against his wishes;
To fulfill its onus the applicant must adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met;
The court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;
The court may only make an order extending the committal where it is satisfied that all five criteria in subsection 120(5) have been met.
[21] It is within this legislative context and with these guiding principles in my mind that I have considered the evidence and decided the issue of whether the applicant has met its onus.
Criteria #2 (clause 120(5)(b): Would the secure treatment program be effective to prevent M from causing or attempting to cause serious bodily harm to himself or another person?
The Evidence
[22] When M arrived at Syl Apps in May 2016, he was placed in his own unit with 2:1 constant visual monitoring by staff at all times. By June 2016, M began re-integrating back to a unit with other youth. By July, M's level of monitoring was reduced to 1:1 and M was provided access to more items. By August 2016, M's level of monitoring progressed to five minute checks until asleep, and by late August 2016, M was placed on regular level of monitoring (15 minutes checks at all times) and was given regular access to all items. This is the lowest level of risk category in SAYC.
[23] For some time now, M has been frequently allowed to leave Syl Apps on various community and family passes.
[24] M has been involved in approximately 45 critical incidents of aggression towards others since his admission to SAYC. With the exception of an incident that occurred on October 22, 2016, none of these incidents occurred after August 11, 2016.
[25] On Saturday, October 22, 2016, M was out in the community spending the weekend with his family. M had been picked up by his family the previous day. Over the course of Friday evening and the next day, October 22, 2016, M "chain smoked" cigarettes, drank alcohol, played video games and music that condone violence, and, did not get proper sleep. His parents were unable to set appropriate limits and boundaries.
[26] M was difficult to manage throughout the day on October 22, 2016. He was distractible, "all over the place", and quite rude, particularly to his mother. For example, he called her a "bitch" many times, and told her to take off her clothes. He continually asked about alcohol. In response, M's parents allowed him to have beer. Although it is unclear how many beers M actually drank or cigarettes he smoked, M reported to Dr. Zdzieborski that he smoked 2.5 packs of cigarettes (approximately 60 cigarettes) over the course of the day and a half. He added that he drank 3 beers and 1 glass of wine within about an hour on the Saturday afternoon. As a result, he was inebriated. M also drank at least one energy drink that day. His parents had been instructed not to allow M to consume such drinks because they had negatively impacted his functioning.
[27] At approximately 9:00 p.m. on October 22, 2016, M and his parents were inside their trailer when M went outside for a minute. Upon his return, M moved directly toward his mother in an effort to strike her in the face. At that point Mr. S. contained him and the police were called. As set out above, M was ultimately transported back to SAYC.
[28] Despite the October 22, 2016 incident, M has remained on a regular level of monitoring (15 minute checks at all times), at Syl Apps. He remains integrated with other youth on the unit, continues to have regular access to all items, and continues to go out into the community on community passes and to visit his family. He continues to spend quite a bit of time in the community particularly with his family. Despite the incident, M has remained at the lowest level of risk category in SAYC.
[29] Samantha Di Bartolo admitted during her cross-examination that there have been no further incidents of aggression towards others since October 22, 2016. She further admitted there is no longer any risk that M will cause or attempt to cause serious bodily harm to himself.
The Parties' Positions
[30] The applicant's position is that the October 22nd incident demonstrates that M can still be triggered into causing or attempting to cause serious bodily harm to others and that this can happen immediately or over a few days. As a secure treatment facility, Syl Apps offers two key things that have proven to be effective and will remain effective in preventing M from harming others and himself. First, it offers a highly structured and staff supported restrictive setting. Should M become unsafe, SAYC staff are trained to physically intervene to prevent M from harming himself and others. Second, Syl Apps offers a team of specialized mental health professionals and staff who know M, his triggers, and how to keep him stable. They can quickly stabilize him if he shows signs of dysregulation. They have proven that they are able to teach M the skills he needs to gain greater control over his reactions to his triggers.
[31] M's counsel submits that the court cannot decide that the secure treatment program would be effective in preventing M from causing or attempting to cause serious bodily harm to others, without first finding that there is a real risk that M will do so; and thus that there is a genuine need to protect him and others from that risk.
[32] M's position is that there is no need for such an extreme measure as there is no risk that he will cause or attempt to cause this type of harm to either himself or another person. As there is no risk of serious bodily harm to prevent, he argues the applicant has not established that the second criteria have been met and the application must be dismissed.
Analysis
[33] I agree with M's counsel that the first step in the analysis is the consideration of whether there is a real risk that he will cause or attempt to cause serious bodily harm to himself or others, and thus a real need for such an extreme preventative measure. I agree. If there was no requirement to assess the degree of potential harm, there would be no reason for Parliament to have qualified the type of harm the secure treatment program must be designed to prevent. Further, if an assessment of the level of potential risk and degree of harm is not an implicit part of this particular analysis, it is hard to imagine how an applicant proposing that the term of a youth's committal to a program such as Syl Apps could ever fail to be effective.
[34] More importantly, failing to conduct such an analysis would be contrary to the underlying objective of both this part of the Act and the underlying objective of this particular criteria. By way of illustration, as I have noted, the five criteria, both collectively and singularly, serve as legislative safeguards against the arbitrary loss of a young person's liberty. The key purpose of this part of the Act is to prevent the young person with a mental disorder that will likely result in him causing serious bodily harm to himself or another person, from causing or attempting to cause such harm. The reference to "serious bodily harm" in this particular clause tells us that both the degree or risk and they type of harm are relevant considerations in the assessment and that to justify the young person's loss of liberty, both the risk and likely harm must be substantial.
[35] The requirement that the court make a finding that the secure treatment program would be effective in preventing the youth from causing or attempting to cause such harm, is likewise a signal that the youth cannot be committed to just any program. If he is to be committed to a secure treatment program the program must be equipped with the type of services required to prevent him from causing or attempting to cause serious bodily harm to himself or others. If it is not, then the underlying purpose of preventing serious bodily harm is unattainable. Then the youth's committal to that particular program and consequent loss of liberty, unjustified.
[36] To fulfill the underlying objectives and to give meaning to the inclusion of the phrase "serious bodily harm" in this cause, the court is required, in my view, to ask three questions as part of its analysis under clause 120(5)(b) of the Act:
a. Is it still likely that this youth will cause or attempt to cause serious bodily harm to himself or another person? If not, then there is no justification for continuing the youth's loss of liberty, and he or she must be released.
b. If so, what preventative measures will be on offer during the period of the extended committal to manage the risk?; and,
c. Will the available preventative measures be effective in preventing this youth from causing serious bodily harm to himself or to others? If not, then continued committal at the proposed secure treatment program, is not justified and the application must be dismissed.
[37] I find that it is not likely that M will cause or attempt to cause serious bodily harm to himself. Although he is at greater risk than others, it remains unlikely that he will cause or attempt to cause serious bodily harm to anyone else. I make these findings for these reasons: First, the evidence is that M no longer poses a threat to his own safety. There is also no evidence before me of any incident where M has harmed himself. Although he presented with chronic suicidal ideation at the time of his admission, there is no evidence of any continued suicidal ideation. The absence of risk to himself was confirmed by Samantha Di Bartolo during her cross-examination.
[38] Second, there is no evidence that M caused or attempted to cause serious bodily harm to another person. Although there may have been 44 incidents of aggression between May 6, 2016 and August 11, 2016, I have been provided with no details of those incidents. In the absence of more detailed evidence, and given the heavy evidentiary onus on the applicant (given the extraordinary nature of this remedy), any inference to be drawn in relation to those incidents must inure to the benefit of M. In this case the inferences I draw are that none of these incidents caused serious bodily harm to another or involved any attempt on M's part to cause that kind of harm to another person.
[39] Third, the legal question arising out of M's behaviours on October 22, 2016 (lunging unexpectedly at his mother in an attempt to strike her in the face) is whether those actions constitute an attempt on his part to cause "serious bodily harm" to her as contemplated in clause 120(5)(b). I am not satisfied that, on the evidence before me, that M's conduct on October 22, 2016, comes within the legal definition of an attempt to "cause serious bodily harm". Rather, I find that his behaviour comes squarely within the category of threats of minor assaults and nuisances that do not cause serious bodily harm. I turn next to how I arrived at this conclusion.
[40] Nasmith J. grappled with this legal issue in his decision in Re A. (J.), supra. In that case the youth's actions included on one occasion, such things as swearing, hitting a male staff member, kicking another staff member in the shins, and on another occasion, pulling the hair of a worker and knocking over some hot water, scratching another worker's hand, and kicking a worker in the stomach area. During that same occurrence, another worker reported a bite on the knee and that the youth had tried to light something in a bottle. On yet another occasion, the youth taunted a witness in his criminal matter by waving a piece of wire, threatening to light a book of matches, and punching her in the arm. On a further occasion, another worker had her arm twisted by the youth.
[41] Although Justice Nasmith's interpretation of what is meant by the phrase relates to its use under section 113 of the Act, that section is still within the extraordinary measures part of the Act. It is logical to conclude that if the same phrase is used in clause 120(5)(b), then it must have the same meaning and underlying purpose. At paragraph 42 of his decision Justice Nesmith concludes that what is required under section 113 is conduct that is not trifling; and conduct that is something more than minor assaults or nuisances. What is required, he says, is also more than an assault that causes bodily harm. The word "serious" has to have some significance.
[42] At paragraph 39, Justice Nesmith comments on the behaviours of the youth that I have just described and states:
39 In my opinion, they are a rather classic example of the type of behaviour that can be contrasted with what is to be considered as causing or attempting to cause serious bodily harm. In no incident was medical treatment needed or sought.
[43] In M's case, his actions do not bear much resemblance to the youth's conduct in the case decided by Nesmith J. In M's case, we have one incident and during that incident the inebriated youth suddenly moved directly towards his mother in an effort to strike her in the face. There is no further detail about the attempt, such as whether his hand was fisted, open palmed, or about the force with which he attempted to strike his mother. All I am told from that point on is that his father had to restrain him, the police were called and after a brief admission of M to hospital, M was discharged and taken back to Syl Apps.
[44] It is likely that M will commit minor assaults on others given the nature of his mental disorder. The likelihood of such assaults, based on the evidence before me, is at its highest when he drinks alcohol, has poor sleep patterns, drinks energy drinks, plays music or video games that condone violence, or becomes overly excited or agitated. In other words, when insufficient limits are placed on him, and when he is not in a structured environment.
[45] There are, unfortunately, many people in our society who, like M, suffer from mental disorders of a nature or quality that likely will lead to minor assaults and nuisances to other persons. The Mental Health Act does not authorize their detention or committal against their wishes, even though their being free may occasionally result in injury to others. [5] In my view, if there is no authority to deprive these adults or children of their liberty under the Mental Health Act, on this basis without the person's consent, the standard cannot be lower for these same youth under clause 120(5)(b), which falls within Part IV of the CFSA – a special portion of the Act entitled "EXTRAORDINARY MEASURES".
[46] As I have already pointed out, the determination of whether the second of the five criteria has been met turns on whether the first and third of the three key questions are both answered in the affirmative. The answer, I find to the first question – is there a real risk that the youth will cause or attempt to cause serious bodily harm to himself or another person? – is no. As such, there is no need to answer the remaining two questions. The applicant can no longer meet its onus to persuade me that this criteria has been met.
Conclusion
[47] As I have found that the second criteria has not been met, it is also now not necessary to decide whether the two other contested criteria are established. To fulfill its onus under subsection 120(5) of the Act, the applicant must adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met. The applicant's failure to persuade me that the second criteria has been met means that each and every criteria cannot be established. The application must therefore be dismissed.
ORDER
[48] For the reasons set out above, I make the following order:
The application to extend M's committal to the secure treatment program at Syl Apps for a further three months, is dismissed;
The December 16, 2016, court date is vacated;
The Judicial Secretary is requested to fax a copy of this order to both counsel and to mail a copy to the respondent parents.
Released: December 15, 2016
Signed: "Justice Victoria Starr"
Footnotes
[1] See subsection 120(5) of the Child and Family Services Act, R.S.O. 1990, c. C-11;
[2] See subsections 120(2) and 120(3) of the Child and Family Services Act, supra;
[3] See Nasmith Prov. J.'s decision in Re A.(J.); and, O'Connell J.'s decision in Syl Apps Youth Centre v. S. (R.), 2012 ONCJ 6; and J.W. Quinn J.'s decision in Children's Aid Society of Niagara Region v. P. (H.), 2003 CarswellOnt 3688, at paragraphs 44 and 45.
[4] In addition to the cases identified at footnote 1, this jurisprudence also includes the following cases reviewed by this Court: Children's Aid Society of Waterloo (Regional Municipality) v. R. (K.), 2009 CarswellOnt 8809 (Ontario Court of Justice); Children's Aid Society of Sudbury & Manitoulin (Districts) v. C. (C.), 1999 CarswellOnt 4865 (Ontario Court of Justice); Syl Apps Youth Centre v. S. (R.), 2012 ONCJ 6 (Ontario Court of Justice); Children's Aid Society of Algoma v. M. (K.A.L.), 2010 CarswellOnt 5886 (Ontario Court of Justice); and, D. (B.) v. Children's Aid Society of Halton (Region), 2007 SCC 38 (Supreme Court of Canada).
[5] See the court's comments with respect to the lack of authority to detain people with mental disorders on these grounds under the Mental Health Act in the decision in the case of Dayday v. MacEwan, 62 O.R. (2d) 1989, at paragraph 600.