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.
YOUTH CRIMINAL JUSTICE ACT, 2002, c.1
THESE PROCEEDINGS ARE SUBJECT TO s. 110, 111, 118, 129 AND 138 OF THE ACT WHICH PROVIDE:
110.(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.
111.(1) Subject to this section, no person shall publish the name of a child or a 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.
118(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act.
129 No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act.
138. (1) Every person who contravenes subsection 110(1) (identity of offence not to be published), 111(1) (identity of victim or witness not to be published)…
(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.
Court Information
Ontario Court of Justice
Date: 2020-06-10
Court File No.: City of Stratford FO-20-577
Between:
Dr. G. Edmonds Applicant
— AND —
T.S. Respondent
Before: Justice K.S. Neill
Heard on: June 2 and 5, 2020 by videoconference
Reasons for Judgment released on: June 10, 2020
Counsel
Dr. G. Edmonds — on her own behalf
Bayly Guslits — counsel for the respondent T.S.
James Frost — counsel for the Office of the Children's Lawyer, legal representative for the youth T.D.S.
Reasons for Judgment
NEILL J.:
Introduction
[1] The applicant, Dr. Edmonds, is the family physician for the youth, T.D.S., born […], 2003, and who has just turned 17 years old. Dr. Edmonds is applying to have T.D.S. committed to the secure treatment program at Syl Apps for a period of 180 days.
[2] T.D.S.'s father, T.S., and the administrator of Syl Apps consent to the order. T.D.S. initially did not consent so an oral hearing took place on June 2 and June 5, 2020 by video conference.
[3] In accordance with s. 161(8) of the Child, Youth and Family Services Act, ("the Act") T.D.S. is entitled to be present for the hearing, subject to certain exceptions. Although the court, his father, and his counsel encouraged T.D.S. to participate, and attempted to at least have T.D.S. available by phone during the first day of the hearing, he did not attend by phone or video conference. T.D.S. was represented by counsel, James Frost, who confirmed that he initially had clear instructions from T.D.S. to oppose the order being sought. Mr. Frost indicated that T.D.S. understood that he had a right to participate in these proceedings, but he did not express a desire to be present and understood that the hearing would proceed in his absence.
[4] However, on June 5, 2020, the second day of the hearing, T.D.S. was present by video with his father. In early June 2020 T.D.S. had the opportunity to speak with Dr. Janelle Hawes, the Clinical Director at Syl Apps Youth Centre, about their programs and what treatment they could offer T.D.S. for his specific diagnoses. After consulting with Mr. Frost, T.D.S. confirmed on the record that he consented to the order committing him to the secure treatment program at Syl Apps for a period of 180 days. Although I did not receive T.D.S.'s written consent, I was satisfied that he had the capacity to understand and appreciate the nature and consequences of giving his consent and was doing so voluntarily after obtaining independent legal advice from Mr. Frost. T.D.S. was prepared to be taken to Syl Apps that day.
[5] On June 5, 2020, I heard further evidence from the father, T.S., to satisfy myself that all of the criteria in s. 164 of the Act were met. Although some of the evidence contained hearsay, this evidence was not objected to by any party. On June 5, 2020, I made an order committing T.D.S. to the secure treatment program at Syl Apps for a period of 180 days.
[6] No plan for T.D.S.'s care on release from Syl Apps was available on June 5, 2020. Therefore, I made an order that Syl Apps shall within 90 days of June 5, 2020, file such plan with the court in accordance with s. 166(2) of the Act. As required pursuant to s. 166(1) of the Act, I indicated my reasons for the decision would follow.
The Evidence
[7] Oral evidence is required on an Application for Secure Treatment, unless the child consents to the making of the order without an oral hearing, which T.D.S. did not initially consent to in this case. [s. 162(1)]
[8] During the hearing, the following persons testified by video conference:
Dr. Gillian Edmonds, the applicant, and T.D.S.'s family physician since 2009. She receives all of the notes and reports pertaining to T.D.S.'s care from other doctors, psychiatrists and institutions. She has had some direct interactions with T.D.S. Until recently, she last saw T.D.S. in her office on December 13, 2018, and then saw him several times from February to April, 2020 at the hospital.
Dr. Joy Abramson, a psychiatrist at the London Health Science Centre ("LHSC"), who had dealt with T.D.S. during admissions to LHSC since 2016 and more recently from June 4 to June 26, 2019 and April 6 to 8, 2020.
Dr. Timothy Beal, a psychiatrist with the Child and Parent Resource Institute ("CPRI") in London, where T.D.S. attended for residential treatment starting on April 16, 2019 and being formally discharged from that program on June 26, 2019.
Mr. T.S., the father of T.D.S.
[9] Numerous documents including hospital records and psychiatric reports were also filed in evidence.
Background
[10] T.D.S. is the adopted son of the respondent, T.S., and his wife, C.S. T.D.S. suffered several significant traumatic brain injuries as an infant and was apprehended from his biological family and placed in the care of the Society.
[11] When T.D.S. was 21 months old he was placed in the care of his adoptive parents. His adoptive parents understood that T.D.S. would have significant needs throughout his life, but it was always their intent to adopt him. The adoption was not finalized until T.D.S. was approximately 6 years old to enable the parents to obtain the maximum services that they could for T.D.S. while in Society care.
[12] T.D.S.'s parents have been strong advocates for services for T.D.S. throughout his life. Dr. Edmonds has been T.D.S.'s family physician since he was approximately 6 years of age and confirmed that T.D.S.'s parents have been "tireless advocates for T.D.S.".
[13] T.D.S. received services from the Pediatric Acquired Brain Injury Community Outreach Program, "PABICOP", since he was an infant which provided T.D.S. with a team of supports including psychiatrists and educational planning.
[14] In the fall of 2016, when T.D.S. was 13 years old, he was having difficulties dealing with his emotions and started to be violent in the home. He has threatened his family with a knife and other objects. T.D.S. became involved with a play therapist to assist him to deal with his emotions. The family has had to lock up all items that could be used as weapons by T.D.S., such as knives, bats, golf clubs, etc. to help to manage their environment at home and keep everyone safe. The parents also had respite care for T.D.S. to assist them.
[15] In July 2018, T.D.S. rescued a teenage girl who had a seizure, fell into a lake and later died. The trauma of this event triggered a lot of emotions in T.D.S. that he had difficulty dealing with. T.D.S. had recurring nightmares and difficulty sleeping. In a psychiatric assessment report, Dr. Beal indicated that T.D.S. had developed some Post-Traumatic Stress Disorder symptoms in the wake of this event, but by February 2019, these symptoms largely were resolved.
[16] In August 2018, T.D.S. was violent, and was involuntarily admitted to hospital on August 3, 2018 on a Form 1, which expired within 3 days and he remained in hospital on a voluntary basis and was discharged on August 7, 2018.
[17] In September 2018, T.D.S. had a violent outburst while at a respite home for the weekend and was throwing objects. He was taken by police to the LHSC. After his release, he was taken into the care of the Society and placed at several group homes including Craigwood Youth Facility from September 2018 to April 2019. During this time, T.D.S. engaged in running behaviours and criminal activity.
[18] From April 16 to May 22, 2019, T.D.S. was admitted to the residential treatment program at CPRI in London. This residential program has 10 beds for teenage boys who are admitted to the program on a voluntary basis only. Residents work with a team of social workers and psychiatrists and can stay for up to 3 months. T.D.S.'s psychiatrist, Dr. Beal, testified that during T.D.S.'s stay at CPRI:
There were at least 25 occurrence reports made due to T.D.S.'s dangerous behaviours or incidents that placed his safety at risk.
T.D.S. would ignore staff direction went missing from CPRI on 24 occasions. On these occasions, T.D.S. engaged in substance abuse and police were called on 10 occasions to locate him.
On several occasions, T.D.S. made threats to kill himself. At times, these were casual comments but at other times there was a concern that T.D.S. would act on his suicidal statements.
On May 15, 2019 T.D.S. and a peer left CPRI, stole bikes, smoked marijuana and spent the night at a stranger's house.
On May 17, 2019 there was an incident where T.D.S. became fixated with a female resident. He smashed her window in an attempt to get into her residence, but did not get in. Police were called and spoke with T.D.S. The next day on May 18, 2019, T.D.S. stated that he was going to kill himself, and left the grounds of CPRI and walked to the edge of the river. The police were able to bring T.D.S. to the hospital to be assessed before being returned to CPRI.
On May 21, 2020, T.D.S. threatened to kill another resident, and was kicking walls and hitting the window. Staff intervened.
On May 22, 2019, T.D.S. again stated that he wanted to kill himself. During a room search, contraband was found in T.D.S.'s room, including a utility knife and cigarettes. He started to leave CPRI and picked up a rock threatening to throw it at staff. He also pulled out a knife and waived it at staff. The staff called 911 and continued to follow him. Once T.D.S. saw the police cars he dropped the knife. T.D.S. was arrested with a condition that he not attend on the property at CPRI.
While at CPRI, due to the fact that T.D.S. left the unit almost daily, he did not take his medications on a regular basis. He also was using substances such as drugs and alcohol, so it was difficult to monitor T.D.S.'s mental health.
[19] After T.S.D.'s arrest on May 22, 2019 he was placed in the King Street Detention on suicide watch. He continued to express suicidal thoughts and on one occasion attempted to tie a bed sheet around his neck. T.D.S. also expressed that he wanted to be sent to a secure detention centre so that he could be killed by murderers. Upon his release on June 4, 2019, T.D.S. was placed in Society care on a Temporary Care Agreement and taken to LHSC due to his impulsive and violent behaviours.
[20] T.D.S. stayed at LHSC from June 4 to June 26, 2019. He was initially placed at LHSC on a Form 1 for 72 hours and then a Form 3 until on or about June 20, 2019. T.D.S. remained at LHSC on a voluntary basis thereafter. While at LHSC, he had some explosive episodes and suicidal ideations and was placed on both chemical and physical restraints due to his behaviours.
[21] Dr. Abramson was his psychiatrist while at LHSC. T.D.S. started taking the medication Vyvanse while at LHSC which Dr. Abramson indicated had a significant positive affect on him as he was able to focus and his behavior improved.
[22] While at LHSC, his parents advocated for T.D.S. to be admitted to two programs at Parkwood Institute in London: the Acquired Brain Injury Adult Program and the Adolescent Unit. T.D.S. was rejected from the Acquired Brain Injury Adult program as they could not meet his needs without a locked unit. Due to the fact that another patient made allegations against T.D.S., he was also denied entry into the Adolescent Unit.
[23] Upon T.D.S.'s discharge from LHSC, he had been rejected by the Parkwood Institute, CPRI could not offer inpatient care, and the Children's Aid Society would not offer a placement for T.D.S. Therefore, T.D.S. was released to his parents' care although his parents expressed concerns about their ability to supervise him.
[24] After T.D.S.'s return home on June 26, 2019, he continued to be involved in criminal behavior, and was charged and placed in detention. In August 2019, T.D.S. spent two weeks at detention at Syl Apps.
[25] T.D.S.'s parents also looked into the option of the Adult Acquired Brain Injury Program at Hamilton Health Sciences Centre. An intake meeting was scheduled for September 2019 but T.D.S. would not attend this meeting.
[26] From September 2019 to January 2020, T.D.S. resided in numerous placements with his girlfriend's parents and with his birth mother, but all of these placements were temporary. As he had nowhere else to go, T.D.S. returned home to reside with his parents from January to April 2020.
[27] Dr. Edmonds testified, and hospital records were filed regarding the events that occurred with T.D.S. from February to April 2020, indicating the following:
February 4, 2020: T.D.S. punched a hole the wall and sustained a hand injury. He attended at the hospital that night and had an x-ray on his hand a few days later. He returned to the hospital on February 8, 2020 and it was determined that as a result of an older fracture he had soft tissue damage.
March 31, 2020: T.D.S. went to a bridge stating that he wanted to jump off and kill himself. T.D.S. did not jump and called 911 himself. When police arrived at the bridge, T.D.S. ran away and police eventually apprehended him and brought him to the hospital where he was seen by Dr. Arif Qureshi. T.D.S. denied suicidal or homicidal ideations. He admitted to smoking weed earlier on in the day that may have been laced with something else. The police stated that they had been involved with T.D.S. weekly and that T.D.S. had thrown eggs at a police cruiser earlier in the week. Dr. Qureshi found T.D.S. to be "cheerful, forthcoming, and well-dressed/groomed". T.D.S.'s discharged diagnosis was "suicide threat".
April 1, 2020: T.D.S. attended at the hospital on his own reporting an intent to kill himself by jumping off a bridge or taking more fentanyl. T.D.S. was seen by Dr. Katherine Miller. He reported to Dr. Miller that he snorted something that began with "F". He left the hospital after 40 minutes without a medical assessment, and so was placed on a Form 1. T.D.S. was located and brought back to the hospital by police. T.D.S. indicated he left as he was having a panic attack and denied taking any drugs that night. He acknowledged that he felt suicidal but has now calmed down and wanted to go home and sleep. T.D.S. asked if LHSC would take him back but because there was no imminent threat for T.D.S. Dr. Edmonds did not refer him to LHSC. The discharge diagnosis was suicidal ideation, ODD and conduct disorder. The Form 1 was discontinued and T.D.S. was discharged to his parents' care.
April 3, 2020: T.D.S. attended again at the hospital as he was feeling suicidal. He had no specific plan to kill himself but thought about jumping off a bridge. He was requesting to go back on medication or attend at LHSC. Dr. Edmonds saw T.D.S. in hospital and discussed the option of secure treatment at Syl Apps with the parents. Discharge diagnosis was suicidal thoughts.
April 5, 2020: T.D.S. arrived at the hospital by ambulance. T.D.S. had multiple superficial wounds on his forearm that did not require stiches. T.D.S. had cut himself with a piece of glass. T.D.S. was seen by Dr. Edmonds and he expressed that he still felt suicidal. T.D.S. articulated that he did not feel safe going home that night as he may kill himself. At that point, Dr. Edmonds placed T.D.S. on a Form 1 as she was of the opinion due to the multiple visits to the hospital over the past week and threats of self-harm, that he was suffering from a mental health disorder that would result in serious bodily harm to himself. T.D.S. was then transferred to LHSC in London.
[28] Dr. Abramson saw T.D.S. when he was admitted to LHSC, and hospital records were filed regarding his stay at LHSC from April 6 to 8, 2020. T.D.S. was admitted to LHSC as he expressed that he may harm himself if he went home. Once at LHSC his suicidal thoughts resolved quickly. Dr. Abramson testified that T.D.S. was not at a high acute risk for him to remain at LHSC, and they could not provide any more care for T.D.S. On April 7, 2020 T.D.S. was discharged from LHSC and he left the hospital on April 8, 2020 and returned his parents' care.
[29] After a violent episode at his parents' home on April 9, 2020, described below, T.D.S. went to reside at a motel in Stratford supported by Shelter Link. He had to leave the motel on May 29, 2020 and was homeless until on or about June 3, 2020 when he returned to his parents' care.
[30] T.D.S. has been on a waitlist for the secure treatment program at Syl Apps for several months. He was finally accepted into the program by a letter dated May 8, 2020 from Dr. Janelle Hawes, the Clinical Director of Syl Apps. Dr. Hawes indicates that a bed in their program was only be available for T.D.S. until June 11, 2020.
The Legal Framework
[31] Applications to commit a youth to secure treatment are governed under Part VII of the Child, Youth and Family Services Act. Secure treatment is one of the "extraordinary measures" that a court can order for a child. Secure treatment is highly intrusive and there are significant liberty interests at stake for the child in these proceedings. Therefore, strict adherence to the statutory provisions of the Act are essential. Long term secure treatment orders can only be made as an absolute last resort.
[32] Timing of events is very important when dealing with secure treatment applications. Although the Application for Secure Treatment was dated May 12, 2020, it was not filed with the court until May 21, 2020. Rule 8(1) of the Family Law Rules indicates that to start a case, a person shall file an application, including an Application for Secure Treatment.
[33] The matter was initially dealt with in court on May 22, 2020, and within the 10 days of making the Application as required under s. 161(2). The case was adjourned several times to deal with preliminary issues, and the eventual hearing took place on June 2 and June 5, 2020 by video conference.
[34] The test that the applicant must meet for an order committing a child to secure treatment is outlined in s. 164(1) of the Act. The applicant bears the onus to provide clear, logical and convincing evidence established on a balance of probabilities, that each of the six criteria set out in s. 164(1) of the Act have been met. These criteria are outlined as follows:
Commitment to Secure Treatment: Criteria
164 (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 45 days immediately preceding,
(i) the application under subsection 161 (1),
caused or attempted to cause serious bodily harm to themself or another person;
(c) the child has,
(i) within the 12 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 themself 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 themself 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.
[36] As T.D.S. is 17 years of age and has not consented to the application, only a physician can bring the Application for Secure Treatment. [s. 161(1)]. In this case, the application was formally brought by T.D.S.'s family physician, Dr. Edmonds. There is an additional requirement that must be met where the applicant is a physician. Under s. 164(3), the court must be satisfied that the applicant believes the criteria set out in s. 164(1) are met. Dr. Edmonds confirmed in her testimony that in her opinion all of the required statutory criteria where met.
[37] Even if all of the criteria pursuant to s. 164(1) are met, an order for a secure treatment program is still discretionary, and the court can still refuse to make a secure treatment order if it is not in the best interests of the child.
[38] Finally, in any application under the Act, the court is also guided by the paramount purpose of the Act in s. 1(1) to promote the best interests, protection and well-being of children.
Criteria A: The child has a mental disorder
[39] Section 157 defines a "mental disorder" as follows: "a substantial disorder of emotional processes, thought or cognition which grossly impairs a person's capacity to make reasoned judgment".
[40] Dr. Abramson was the last psychiatrist to see T.D.S. When he was discharged from LHSC on April 7, 2020, Dr. Abramson diagnosed T.D.S. with the following:
Oppositional Defiant Disorder, being a pattern of being oppositional and impairs the youth's functioning.
Intermittent Explosive Disorder, related to the severe traumatic brain injury that T.D.S. sustained as a youth, so at times he can have a consistent emotional state but then he will have "big blow outs".
Likely Attention Deficit Hyperactivity Disorder ("ADHD"), which Dr. Abramson explains is secondary to his traumatic brain injury.
Borderline Intellectual Functioning that does not meet the criteria for an intellectual disability, but his IQ is in the borderline range, likely due to this brain injury.
[41] Dr. Abramson confirmed that T.D.S's diagnosis met the definition under s.157 of the Act of a mental disorder, mostly due to his brain injury and his developmental trauma. T.D.S. is described as very impulsive and hyperactive. He has explosive behaviours, becomes angry very quickly and does not consider the consequences of his actions such that he cannot make reasoned judgments. Dr. Beal testified that T.D.S. has "sticky thinking": meaning that he gets an idea stuck in his head and then impulsively pursues the idea, which often puts him in dangerous situations.
[42] Although it has been found in some cases that impulsiveness and bad judgment do not equate to gross impairment of a person's capacity to make reasoned judgments, such that it would not qualify as a mental disorder under the Act, I find that with T.S.D.'s judgment can be grossly impaired as a result of his mental health issues. Both Dr. Abramson and Dr. Beal indicated that T.D.S. is at high risk for behaviours such as self-harm or harming someone else. He may not intentionally want to die or hurt someone, but he will act out and not think about the consequences, which is a result of his diagnoses, particularly his brain injury.
Criteria B: The child has, as a result of the mental health disorder, caused or attempted to cause serious bodily harm to herself or another person within 45 days immediately preceding the Application
[43] As the Application was commenced on May 21, 2020, this incident must have occurred within 45 days prior to that date, being on or after April 7, 2020. The caselaw has clarified the following principles:
The 45 days referenced in this section is a strict time limit and must not be deviated from. In Weechi-It-Te-Win Child and Family Services v. F(DK) as the child's serious behaviour and harm fell outside of the 45 days, the application for secure treatment was dismissed.
There must be a nexus between the mental disorder and the threat of self-harm/harm to another person. The serious bodily harm a child causes, or attempts to cause, must stem from a mental disorder, and not be a case of self-defence.
The purpose of secure treatment is to create a program for treatment of children with mental disorders. Therefore, placing a child in a secure treatment program for behaviour that is not tied to a mental disorder would obscure the purpose of secure treatment and be an inappropriate imposition on a child's liberty rights.
There is a high threshold of harm required to meet the test under this subsection. The evidence must support not only that bodily harm has been caused or attempted, but serious bodily harm. To be "serious" the harm must not be "trifling or superficial" and something more than minor assaults or nuisances.
Harm that is extremely worrisome does not necessarily constitute serious bodily harm.
[44] The Applicant relies upon the incident of April 9, 2020 to satisfy this criteria.
[45] On April 9, 2020, T.D.S. had a violent episode that resulted in police removing him from the family home. T.D.S. had stolen his sister's credit card and then started throwing 9" x 9" blocks of wood at the back patio door where his father was standing. T.S.D. also picked up a golf club and came towards the house, threatening to smash the patio door and hit his father with it. T.D.S. stopped and left when his father called 911. Following this incident, T.D.S. was placed through Shelter Link in Stratford at the Traveller's Motel.
[46] I find that this type of impulsive and explosive behaviour by T.D.S. is a direct result of his mental health disorder and could have caused serious bodily harm to his father.
Criteria C: The child has, within the 12 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 themself or another person, or in committing the act or attempt referred to in clause (b), caused or attempted to cause a person's death
[47] With respect to this third criteria, the qualifying behaviour or act is broadened beyond an attempt to cause or causing serious bodily harm. It includes a substantial threat to cause serious bodily harm to themself or another person, evidenced by words or conduct of the child. However, this act must have taken place within 12 months prior to the application being commenced. It also must not be the same act that is relied upon under Criteria B unless the child caused or attempted to cause another person's death, which is not the situation in this case.
[48] Particulars of the incidents of aggression are required; not just a blanket statement that numerous incidents have occurred without providing specifics of the incidents.
[49] Specific intent to cause serious harm for each incident is not required. It is enough, looking at a collection of behaviours, if the child knew or ought to have known that by continuing to engage in these behaviours the cumulative effect would be that he would have caused serious harm to himself or others.
[50] Since May 22, 2019 and not including the incident on April 9, 2020, there have been numerous specific incidents as described above where T.D.S. has attempted to cause, or made a substantial threat to cause serious bodily harm to himself or others, being on May 22, 2019 at CPRI, while incarcerated at King Street Detention Centre in May/June, 2019; and on March 31, April 1, April 3 and April 5, 2020.
[51] With respect to the incident on March 31, 2020 where T.D.S. went to a bridge with the intention of jumping off and killing himself, Dr. Edmonds expressed serious concerns regarding this incident as T.D.S. actually went to the bridge, which is evidence of a more active intent rather than a passive plan. In Centre for Addiction and Mental Health v. C.S. Justice Starr found that the act of a child going to a bridge in an attempt to commit suicide, but not ultimately following through does not mean that the child did not attempt to cause serious bodily harm to herself, particularly given the previous pattern of suicide attempts and the totality of the circumstances.
[52] Therefore, this third criteria has been met.
Criteria D: The secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person
Criteria E: Treatment appropriate for the child's mental disorder is available at the place of secure treatment to which the application relates
[53] The fourth and fifth criteria are interrelated.
[54] To meet these criteria, a medical professional with knowledge of the secure treatment program must provide a professional opinion to establish that the specific treatment proposed for the child would be effective. This part of the test goes beyond merely arguing that while the child, T.D.S. is locked up, he would be less likely to cause serious bodily harm to himself or to someone.
[55] If T.D.S. 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.
[56] Although no one from Syl Apps was called to provide direct evidence of their programs, evidence was presented by all three doctors and from the father, T.S. regarding these two criteria.
[57] Dr. Edmonds believes that a secure environment is ideal for T.D.S.'s safety. Dr. Edmonds was aware that Syl Apps has Dialectical Behaviour Therapy ("DBT"), which could benefit T.D.S. Dr. Beal also indicated that T.D.S. requires a secure environment to ensure his safety and his participation in assessment and treatment. In Dr. Beal's experience, when T.D.S. is in a structured and supervised environment where he cannot run away to engage in disruptive behaviour, he tends to function well and not engage in many antisocial activities. He believed that the team approach offered at Syl Apps would be beneficial for T.D.S. Dr. Beal believed that the program at CPRI could have assisted T.D.S. if he was able to remain there for the full 3 months but could not offer the secure environment that Syl Apps can. Dr. Abramson also agreed that T.D.S. functioned better in a structured environment.
[58] In McMaster Children's Hospital v. L.R. Justice Starr noted that, starting at paragraph 106 to 111:
Syl Apps is a secure setting which specializes in managing and treating children with complex mental disorders and high risk behaviours. Syl Apps provides evidence based assessment and treatment for the children who are committed to the program. All of the children who are committed to secure treatment there are housed on one unit… It offers long term residential treatment and uses an inter-professional model of care consisting of psychiatry, psychology, social work, art therapy, recreation therapy, clinical case coordination and nursing.
The program at Syl Apps provides constant 24/7 supervision and a secure environment. The unit is staffed by child and youth workers at a ratio of one staff for every two children. … At night the child's room is locked from 11 p.m. to 7 a.m…
At Syl Apps the use of restraints is available. This can include physical restraints such as the application of Velcro cuffs or restraining techniques employed by staff trained in their application and use.
[59] As previously indicated, days before the hearing resumed on June 5, 2020, T.S.D. and his father had a conversation with Dr. Hawes of Syl Apps. Dr. Hawes confirmed that their secure treatment program is a lot like CPRI, but with more security and an enhanced program with neuropsychological treatment. They offer play therapy, pet therapy and recreational therapy, including DBT and CBT. Dr. Hawes indicated that they could adjust their therapy techniques to meet T.D.S.'s specific needs. Syl Apps also offers a tailored day pass program so that T.D.S can test his new skills in the community with the security of being able to return to the secure treatment program.
[60] Therefore, I find that at Syl Apps T.D.S. will receive the treatment that he needs and that it will be effective in treating his specific mental health issues.
Criteria F: No less restrictive method of providing treatment appropriate for the child's mental disorder is appropriate in the circumstances
[61] As stated by Justice Starr in McMaster Children's Hospital v. L.R., at paragraph 134, there are at least three key guiding principles regarding Criteria F:
(a) All other treatment options outside of secure treatment have been considered and none of them have been or would be appropriate in the circumstances.
(b) The evidence must address the specific efforts that were made to exhaust all options available to support the child outside of a secure setting.
(c) Evidence that the child could benefit from secure treatment or that it is in the child's best interest to attend secure treatment is not sufficient.
[62] The test is not whether another placement is available but rather whether another less restrictive method of providing treatment is appropriate. The extraordinary measure of admitting a child to a locked secure treatment facility is not be viewed as a placement option.
[63] However, while the applicant has the onus of showing that she has exhausted all options, this does not mean she must explore every idea. The applicant must explore all reasonably viable and known alternatives to secure treatment. The challenging party must either through cross examination of the witnesses or by leading evidence to support the assertion, establish on a prima facie basis that:
There exists another method of providing treatment appropriate for the child's mental health disorder and which is appropriate in the circumstances. This would include demonstrating on a prima facie basis that the alternative is available, can be immediately implemented or implemented in short order and will be effective in preventing the child from causing or attempting to cause serious bodily harm to himself, and will provide treatment appropriate for his mental disorder; and
The applicant has failed to properly explore this alternative.
[64] Since T.D.S. was an infant, he has been involved in services to attempt to assist him, including the Pediatric Acquired Brain Injury Community Outreach Program; play therapy; the Community Services Coordination Network ("CSCN"); the Children's Aid Society and placements at group homes such as Craigwood; numerous hospital admissions both voluntary and involuntary including at the acute psychiatric care facility at London Health Science Centre; and a residential program at CPRI. Admission to other programs such as the Parkwood Institute in London and the Adult Acquired Brain Injury Program at Hamilton Health Sciences Centre were attempted and failed.
[65] Dr. Abramson confirmed that LHSC would only keep youth in acute crisis for a short period of time. Dr. Edmonds believes that T.D.S. requires more long-term intensive treatment that Syl Apps can offer, and T.D.S. should not be bounced back and forth from detention to short term mental health facilities. Dr. Beal could not confirm if T.D.S. would be permitted to be accepted back into the residential treatment at CPRI, which may not be appropriate for him as was not a secure environment.
[66] T.D.S.'s father, T.S., testified that experts could not assist their son, and told them to take T.D.S. home and wished them "good luck". T.D.S.'s parents have been "screaming" for anyone to help T.D.S. His father stated that the day that he got the letter from Dr. Hawes from Syl Apps accepting T.D.S. into the secure treatment program he cried, but he knew that this was the best and only choice for T.D.S.
[67] There was no other treatment option was presented for T.D.S. other than secure treatment.
Conclusion on Commitment
[68] All three doctors attested to the fact that T.D.S. is a "lovely child", a "sweet" and "likeable kid". His father indicated that T.D.S. is a "great kid" and that "people love T.D.S.". T.D.S. should be given the opportunity to get the treatment he requires to reach the potential that others see in him, and there are no less restrictive methods of providing such treatment. As he has consented to the order for secure treatment, and given the above-noted evidence, I am satisfied that the test pursuant to s. 164 of the Act has been met to make the order for secure treatment.
Period of Commitment
[69] Period of commitment:
[70] The maximum period for which a court may commit a youth for secure treatment is 180 days, as provided for in subsection 165 (1), but the court has the discretion to order a lesser period of time.
[71] Dr. Edmonds applied for the maximum period of commitment of 6 months. She believes that due to T.D.S.'s brain injury, any shorter period would not be beneficial for him, and that T.D.S. required the maximum time to ensure solid changes could be made. As T.D.S. agreed to the maximum period of 180 days, I am satisfied that this is appropriate in all of the circumstances.
Released: June 10, 2020
Signed: Justice K.S. Neill