WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under Part VII of the Child, Youth and Family Services Act, 2017 , (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:
87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order,
( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.
(8) Prohibition re 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) Prohibition re identifying person charged .— 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.
142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(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.
Ontario Court of Justice
Date: 2021-01-25
Court File No.: Toronto C53194/11
In the Matter of: The Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1
And in the Matter of: A SECURE TREATMENT APPLICATION dated January 05, 2021 filed by the Children’s Aid Society of Toronto regarding: SA (born October…, 2007)
Between: Children’s Aid Society of Toronto, Applicant
— And —
M.O. (Mother) and M.M. (Father), Respondents
Before: Justice Robert J. Spence
Heard on: January 11, 18 and 21, 2021
Oral Decision made on: January 21, 2021
Written Reasons Released on: January 25, 2021
Counsel:
Ms. Chithika Withanage, counsel for the applicant society
Ms. Paula McGirr, counsel for the respondent mother
Ms. Ysamin McGann, counsel for the respondent father
Mr. Herb Stover, counsel for the Office of the Children’s Lawyer, legal representative of the child SA
R. J. SPENCE J.:
1: Introduction
[1] The Children’s Aid Society of Toronto (society) applies for an order pursuant to section 164 of the Child, Youth and Family Services Act (Act or CYFSA ) to admit the child, SA (child or SA) to the secure treatment program at Kinark Child and Family Services, Syl Apps Youth Centre (Syl Apps) for a period of 180 days.
[2] The mother supports the society’s application. SA, who is 13 years old opposed the application. The application was also opposed by the father.
[3] Prior to the start of the hearing on the substantive issues, the court heard a preliminary motion from the society, requesting that SA not be permitted to attend the hearing, despite her request to do so. Subsection 161(8) of the Act creates a presumption that children who are the subject of a secure treatment hearing are entitled to attend such hearings. However, following submissions, the court concluded that despite this presumption, SA’s attendance at the hearing would more likely than not cause SA to suffer emotional harm. As a result, the court made an order refusing the child’s request to attend.
[4] The application was heard virtually on January 11, 18 and 21, 2021. At the hearing the court heard evidence orally from a number of witnesses, including:
(1) Dr. Muhammod Bakht, psychiatrist at the Brampton Civic Hospital,
(2) Mr. DR, Principal at […] Public School,
(3) Ms. Shaindy David, the family’s former Family Service Worker at the society, and
(4) Mr. Marc MacDonald, Placement Supervisor at the society.
[5] All parties were given the opportunity to cross-examine the evidence of the witnesses.
[6] In addition to the oral evidence presented at the hearing, the court received a Brief of Business Records which consisted of Nurse Notes from the William Osler Health System at the Brampton Civic Hospital. The Nurse Notes detailed incidents and observations pertaining to the child during her stay at the Hospital for the following periods:
November 14, 2020 to November 19, 2020
November 20, 2020 to November 24, 2020
November 26, 2020 to December 3, 2020
December 11, 2020 to January 2, 2021
[7] The evidence contained in these Notes was admitted on the consent of all parties.
[8] The court also received a Brief of Practitioner’s Reports, consisting of four Mental Health Consultation Reports of Dr. M. Bakht, prepared on November 16, 2020, November 24, 2020, November 30, 2020 and December 9, 2020. The Brief also contained Dr. Bakht’s Summary of Qualifications and Experience.
[9] The evidence contained in these Consultation Reports was admitted on the consent of all parties, subject to the parties’ rights to cross-examine Dr. Bakht.
[10] Following closing submissions of the parties on January 21, 2021, the court delivered a brief oral decision granting the society’s application, committing the child to the secure treatment program at Kinark Child and Family Services, Syl Apps Youth Centre, for a period of 180 days, commencing January 21, 2021.
[11] The court advised all parties that written reasons for the court’s decision would follow shortly. The following is the court’s reasons.
2: Legislative Framework for Secure Treatment Hearings
[12] Part VII of the CYFSA deals with Extraordinary Measures. Extraordinary Measures includes applications for orders for a child’s commitment to secure treatment. Subsection 161(1) of the Act confers jurisdiction on the court to conduct secure treatment hearings. Subsection 164(1) of the Act permits the court to make a secure treatment order provided that certain criteria are satisfied. Subsection 164(1) provides:
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) ,
(ii) the child’s detention or custody 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 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.
[13] Subsection 165(1) of the Act addresses the period of commitment in the event the court makes a secure treatment order:
Period of commitment
165 (1) The court shall specify in an order under subsection 164 (1) the period not exceeding 180 days for which the child shall be committed to the secure treatment program.
[14] In the event the court makes a secure treatment order, subsection 166(1) of the Act requires the court to give:
Reasons, plans, etc.
166 (1) Where the court makes an order under subsection 164 (1) or 167 (5) , the court shall give,
(a) reasons for its decision;
(b) a statement of the plan, if any, for the child’s care on release from the secure treatment program; and
(c) a statement of the less restrictive alternatives considered by the court, and the reasons for rejecting them.
3: The Issues
[15] The opening words of subsection 164(1) – “the court may order” - reveal that the court has a discretion to make a secure treatment order. The court cannot exercise its discretion to make an order for secure treatment, unless all six criteria set out in subsection 164(1) of the Act have been satisfied. However, even if those criteria are met, the court may decide not to order secure treatment. Accordingly, there are three issues which I must decide:
a) first, has the society met its burden of proof that all six of the criteria set out in paragraphs 164(1)(a) to (f) have been satisfied;
b) second, if all six criteria are satisfied, should the court exercise its discretion to make a secure treatment order; and
c) third, if the court makes a secure treatment order what is the appropriate period of commitment.
4: The Six Criteria
4.1: Criteria #1 – The child has a mental disorder
[16] Section 157 is the opening section under Part VII of the Act. It contains the important definitions for Part VII. One of these is the definition of a “mental disorder”, which provides:
“mental disorder” means a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgments.
[17] The question, therefore, is whether on a balance of probabilities, there is sufficient evidence to support the society’s assertion that SA suffers from a mental disorder, as defined in section 157.
[18] In arriving at the conclusion that SA does suffer from a mental disorder, the court relies on the evidence of Dr. Bakht.
[19] Dr. Bakht is a psychiatrist licenced in Ontario. He obtained his medical degree from the University of Dhaka, Bangladesh in 1973. He completed his residency in psychiatry at the University of Toronto in 1994. The Royal College issued his specialty in psychiatry effective November 20, 1997. He has a Diploma in Child Psychiatry and is a full member of the Canadian Academy of Child and Adolescent Psychiatry. He has practised as a child psychiatrist for at least 26 years and currently has privileges at the William Osler Health Centre, Etobicoke General Site and the William Osler Health Centre, Brampton Civic Hospital (Brampton Hospital). He regularly participates in children’s mental health related national and international conferences. He has recently published two books in child and adolescent psychiatry.
[20] As a consulting psychiatrist at the Brampton Hospital, Dr. Bakht performs psychiatric consultations and assessments. His process for consultations and assessments includes:
- Ascertaining and understanding the source of the referral – in this case, the society;
- Ascertaining details about the child, including her name, age, the identity of the parents, the society worker and identifying those persons who will attend any consultation or assessment meeting;
- Hearing about the nature of the chief complaint, including the length of time the problem has been ongoing, obtaining a medical history, psychiatric history, details of who the child has previously seen, ascertaining whether the child has engaged in any self-harming behaviours, the extent of that self-harm, and any psychiatric admissions in the past;
- Ascertaining whether the child has been taking any medications, determining the existence of any medical allergies; and
- Observations of the child in order to determine physical or other affects such as mood, anger or sadness.
[21] Dr. Bakht was the primary treating psychiatrist for SA’s admission to the Brampton Hospital on November 14, 2020. Dr. Bakht consulted with SA on November 16, 2020. In his report, and in his oral evidence, Dr. Bakht noted that this admission followed a number of previous hospital admissions due to self-harming behaviour.
[22] Based on his observations and discussions with SA, Dr. Bakht noted the following:
SA maintained eye contact, related poorly. . . . speech was in low tone . . . . affect was restricted . . . . cognitively, her attention span and concentration were really poor, memory was poor, judgment and insight about her situation were poor as well.
[23] As part of his assessment, Dr. Bakht noted:
She had many admissions in the past due to self-harm behaviour. She thinks about killing herself and uniting with her brother who passed away in a house fire.
Her symptoms are consistent with unresolved grief, with post-traumatic stress disorder, learning disorder and ADHD. [1]
[24] Dr. Bakht stated that SA was discharged from the Hospital on November 19 th as she had stabilized, her mood was improved, and it appeared she was safe to return to her foster home.
[25] However, one day following that discharge, SA was readmitted to the Brampton Hospital on November 20, 2020. She had run away from her foster home and the foster family brought her involuntarily to the Hospital.
[26] Once again, Dr. Bakht was the consulting psychiatrist. Dr. Bakht stated that his diagnosis remained the same as his prior diagnosis on November 16, 2020. Additionally, he concluded that SA was “grossly incapacitated to make reasoned decisions”.
[27] The Hospital staff had made a number of attempts to de-escalate her behaviour, including placing SA in restraints. Dr. Bakht stated that his main treatment plan during this admission was to attempt to calm SA’s behaviour by using various methods, including providing her with music, television and additional medications. [2]
[28] Upon SA’s discharge on November 24 th , SA denied that she had any suicidal ideation.
[29] SA was again readmitted to the Hospital on November 25, 2020, where she remained until December 4, 2020.
[30] SA was readmitted to the Hospital on December 5, 2020, where she remained until December 9, 2020. During this stay, Dr. Bakht again consulted with and observed SA. He found her to be grossly incapacitated to make reasoned decisions. He stated that SA’s behaviour was mostly unpredictable. Dr. Bakht stated that SA appears to calm somewhat when her father visits with her, but when her father leaves, she becomes upset or angry and her behaviour escalates to the point where she often must be physically restrained. Unfortunately, her medications did not seem to improve her behaviour.
[31] Dr. Bakht testified that SA was discharged on December 9, 2020 because she was calm.
[32] SA was readmitted to the Hospital on December 10, 2020. She has remained at the Brampton Hospital since that date.
[33] Counsel for the child argued there was not sufficient evidence that SA suffers from a “substantial disorder”; nor was there sufficient evidence that her disorder “grossly impairs” her judgment.
[34] I disagree.
[35] Based upon his observations and assessment of SA, Dr. Bakht testified that SA suffers from a “substantial disorder of emotional processes” and an “inability to make reasoned judgments”. No evidence was led to the contrary.
[36] Dr. Bakht’s diagnosed SA with little or no ability to control her behaviour, so that she is not able to respond safely and appropriately to stressful or potentially dangerous situations.
[37] Given Dr. Bakht’s extensive experience in child psychiatry and his opportunities to spend time with SA and observe her, the court accepts Dr. Bakht’s conclusions.
[38] On the evidence presented, the court is satisfied that SA suffers from a mental disorder as defined in section 157 of the CYFSA.
[39] I begin by addressing the meaning of the words “serious bodily harm”. These words have real significance. In the case of Re J.A. (An Infant) , [](https://www.canlii.org/en/on/oncj/doc/1989/1989canlii3135/1989canlii3135.html) , Judge Nasmith stated at paragraph 42 [my emphasis]:
[42] I think that what is required under section 113 [now paragraph 164(1)(b) of the Act] is conduct that is not trifling; I also believe that it is conduct that is something more than minor assaults or nuisances. What is required is also more than an assault that causes bodily harm. The word “serious” has to have some significance.
[40] The behaviour which Nasmith, J. had to consider is described at paragraphs 35 and 36 of his decision:
[35] The disruption on 15 April 1989 at bedtime centred around a crayon that was lodged under the dishwasher and J.A.’s. possession at some point of a lead pipe. Attempts to restrain him led to his 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. Another worker reported a bite on the knee and that he tried to light something in a bottle. Apparently no medical attention was sought by anyone.
[36] On 4 May 1989, J.A. was being escorted to court in connection with an assault charge arising out of one of these disruptions and, on the way to court, he taunted the witness Ms. Olson by waving a piece of wire, threatening to light a book of matches and punching her in the arm. Ms. Olson reported the following: “I think I felt threatened”.
[41] Nasmith, J. concluded that these incidents did not meet the threshold of serious bodily harm.
[42] It is important to recognize that a secure treatment order is an extraordinary remedy which results in the confinement of an individual for the period of time ordered by the court. This lockup of an individual is something which can only be justified if the actual or attempted bodily harm is sufficiently serious in nature.
[43] I turn to the evidence in support of this criteria. In doing so, I note that the application for secure treatment was issued on January 5, 2021. The 45-day period referred to in this criteria would then begin on November 23, 2020. [3]
[44] I will extract from the contents of the Nurse Notes, which I referred to at the outset of these reasons:
(1) November 23 – SA repeated to bang her head in an aggressive manner then she ran out of her room . . . she continued to bang her head and hitting her fists again [sic] the wall. Multiple staff attempts and intervention – speaking with SA did not assuage her. She continued to scream on top of her voice “leave me alone” F…k you” to anyone who attempt to intervene . . . she continued to hurt herself – band [sic] her head and hit her fists . . . behaviour was increasingly restless, agitated and violent towards herself. Extra staff and security were called. SA was placed on 4-point restraints (both wrists and both ankles).
(2) November 24 – Patient was unable to settle at bedtime, irritable and anxious. Patient superficially cut her wrist with her name tag.
(3) November 26 – Patient was observed with pillow case around her neck . . . writer took it away. Shortly later she had a mask around her neck again while smiling and laughing and attempting to run along the hallway and banging her head on the walls.
(4) November 28 – Patient stated to this writer “I want to kill myself”. Then patient started running in the hall holding the aluminum Vaseline foil package scratching her wrists. Patient continues scratching to the point to self harm. Staff requested her to stop but patient the more she started scratching harm [sic] . . . [security called] patient was placed in 4 points restraints at 2035 hours.
(5) November 29 – SA stating she is going to poke her eye out with a pencil. Patient brought pencil to eye then removed it laughing and stating “I’m not going to poke my eye” . . . then began pacing in the hallway stating she is going to poke eye with pencil.
(6) November 30 – patient had made a big hole in the wall in her room and aggressively kicking at the wall . . . would not respond to any staff redirection . . . placed in 4 points restraints . . . constant observation maintained . . . attempting to kick and punch staff and security. [Later the same evening] placed in 5 point restraints after coming out of room attempting to hit group home worker with window shade.
(7) December 2 – patient tying face mask around neck. . . . patient running in hallway, then went to washroom. Mask found in bathroom garbage with strings off. . . . worker attempted to get string from patient, patient refused. Patient then went into room and took insulation from hole in wall in room, then proceeded to self-harm left wrist. . . . Patient attempted to hit staff. Code white called. [4] Security and staff placed patient in 4-point restraint. [Later same day while in her room] patient started scratching right wrist on edge of door. Patient went into empty room and took out dry wall and began to self-harm. Security able to get dry wall from patient. Patient then stated “I will break the wall and window, patient then proceeded to room and began banging on window and wall vigorously, put into 4-point restraint.
(8) December 11 – patient started to punch and kick at the walls while pacing in the hallway. Security was called. Patient continued to hit the wall and bang her legs on the wall in the hallway and in front of the nursing station. . . . would not respond to any verbal de-escalation and continued to hurt self . . . placed in 4-point restraints at 1150hr. . . . became more agitated moving her whole body vigorously while being placed in restraints. . . . started hitting her head on the mattress on bed and was then placed in shoulder restraints at 1152h.
(9) December 12, December 15 and December 16 – similar incidents of banging her head and her hands on walls, kicking and screaming and repeated requirements for 4 or 5-point restraints
(10) December 16 – escalating behaviour, de-escalation did not work, patient stating “restrain me, I want to be restrained”. Oral medication offered, patient responded “I don’t want any tablets, give me injection”. [Later the same day] patient started escalating, picked rocks from damaged walls, made scratches on both arms . . . attempted to scratch her neck, security called, code white, first placed in 4-point restraints, attempting to bang her head on bed, placed in 6-point restraints.
(11) December 17 – kicking hole in wall, necessitating 6-point restraints.
(12) December 18 – further aggressive behaviour, used her heel to kick a hole in the wall in the hallway, placed in 5-point restraint.
(13) December 19 – using her hand and head to bang on the wall, staff called, continued to bang the wall with her hand and head and started touching the metal hanger in the washroom and threatened to hit her head on the metal hanger. Security called, placed in 4-point restraint, later 5-point restraint
(14) January 2 – patient holding paper towel to left forearm where she had superficially scratched old scabs off her arm with her nails, refusing to go to room laughing and yelling “I want to cut myself”, security called, two security had to restrain patient, patient kicked right hand of nurse into bedrail, CYC sprained shoulder holding patient down waiting for assist and writer strained right forearm. [later the same day] security and staff observed patient taking metal part off of bottom of bed and using it to self-harm, patient attempted to hide it but later gave it to the writer, continued to threaten self-harm, placed in 5-point restraints, later patient showed writer a plastic object from the bedframe that she had hidden on her and handed it to the writer.
[45] In his own observations of SA, Dr. Bakht testified that he had witnessed on one or more occasions the wall-kicking that is repeatedly referred to in the Nurse Notes. He also saw bruising on SA. And when Dr. Bakht questioned her, SA stated that she had self-inflicted this bruising.
[46] Dr. Bakht testified that based on what he saw and what had been reported to him, his primary concern was for SA’s safety. SA had told Dr. Bakht that she wanted to die and to join her deceased brother. Dr. Bakht was asked whether he took this seriously. He replied: “I think it was serious, the way she talked about it”.
[47] Counsel for the child argued that there was no – or insufficient – evidence that SA suffered serious bodily harm, or that she engaged in attempts to cause serious bodily harm to herself.
[48] The determination of whether actual serious bodily harm has occurred can be as easy as examining a particular incident, on a particular date and time and assessing what happened.
[49] However, criteria #2 does not require the court to find that SA actually caused serious bodily harm to herself or to another person. Rather, it is sufficient to find that she attempted to cause such harm. Accordingly, for the purpose of this decision I do not have to decide whether the various scratches on SA’s wrists, her arms, or the bruising which Dr. Bakht himself observed meet the threshold of serious bodily harm. Nor do I have to decide whether the injuries inflicted on the staff [5] were sufficiently grave to constitute serious bodily harm.
[50] The assessment whether there has been an attempt to cause serious bodily harm, may can be somewhat more nuanced than the determination of actual bodily harm. In the case of McMaster Children’s Hospital v. L.R-U. , [2019 ONCJ 496](/on/oncj/2019/496) , Justice Victoria Starr had the following to say at paragraph 86 [my emphasis]:
[86] Turning to the question of intent to cause serious bodily harm. Evidence of specific intent is not the standard to apply in every case. There may be some cases (and this is one of them) where evidence of general intent will be sufficient. To put it more plainly, in some cases it will be necessary to demonstrate that the child intended the precise harm or result; in others, evidence that the child intended the act that caused the harm or result, will be enough .
[51] Justice Starr’s comments are applicable to the facts of this case. The many actions described above were taken by SA intentionally. There is no suggestion from the evidence that any of these actions – banging, kicking, scratching, verbal threats, etc. - were taken by accident. In other words, SA intended the acts that constitute the attempts.
[52] SA’s acts, her repeated behaviour of banging her head, using implements to actually harm herself, or threaten to harm herself must be considered in the context of her mental disorder, a mental disorder which grossly impairs her ability to make reasoned judgments. Those acts must be considered in the context of her repeated assertions that she wanted to die so that she could join her deceased brother, assertions which Dr. Bakht took seriously.
[53] I find on the evidence that SA’s repeated actual self-harm, her repeated attempts of self-harm, her repeated threats [6] to self-harm, combined with all her uncontrolled behaviour, when all taken together constitute attempts to inflict serious bodily harm on herself.
[54] In order to address this criteria, I will first examine the Nurse Notes, second the evidence of Mr. DR and third, the evidence of Ms. David. I turn first to the evidence from the Nurse Notes.
[55] I extract the following from the Nurse Notes on dates preceding November 23, 2020:
(1) November 14 – Patient sat in the corner of her room and starts banging her head. Patient then started scratching and suffocating self with the necklaces and mask string . . . very combative while going in the restraints for safety
(2) November 15 – staff noticed a bent spoon to self harm on the camera. Staff went in the room . . . patient took the sweater and started wrapping around her neck to strangulate self. Staff took the spoon and sweater from her. Then staff noticed patient picking and scratching her left wrist with her nails. Then covered herself under the blanket and scratching her thighs and wouldn’t stop despite several supportive interactions. Patient then started banging her head on the wall and security was called . . . placed in 5-point restraints.
(3) November 17 – patient put shirt around her neck, refused to remove the shirt, became agitated while trying to hit and punch at security and staff, punching the bedroom window and wall . . . after consuming her lunch, patient took her cutlery from her lunch tray (butterknife) and gesturing she was cutting her wrists.
(4) November 18 – Patient agitated, using profanity towards writer, threatening staff, attempting to use bedframe to self-harm, bedframe was removed along with her bedsheet to maintain safety, patient given her mattress to sleep on, continued to remain agitated, punching and kicking walls
[56] I turn next to the evidence of Mr. DR who is the principal of […] Public School where SA attended as a student.
[57] SA began attending […Public School] in grade 3. She was assessed as a student with a mild intellectual disability. She was placed in a classroom with a smaller class size and received support either on a one-to-one basis, or in small groups.
[58] In January 2020, Mr. DR testified that SA brought a bottle of Tylenol to the school. She told a teacher that she had taken several Tylenol and that her stomach hurt. The teacher called 911, paramedics arrived, and the staff attempted to calm SA and to get her into the ambulance. Mr. DR was told about the Tylenol by the teacher. He personally witnessed the arrival of the ambulance and he witnessed SA refusing to get into the ambulance. [7]
[59] Mr. DR testified that a couple of weeks later, a staff member at the school brought SA into his office with a full bottle of prescription medication which was in SA’s possession. When Mr. DR asked SA to hand the bottle to him, she initially refused, but later relented. Mr. DR telephoned SA’s father to let him know this was a safety concern, particularly given Mr. DR’s understanding about what had happened earlier regarding the Tylenol.
[60] In February or March 2020, Mr. DR was called upstairs to the second floor where he saw SA running in the hallway, out of control. She was running and swearing while attempting to avoid being contained by two teachers. One teacher was at one end of the hallway and another teacher or staff member was at the other end of the hallway. SA was running between the two stairwells at either end of the hallway, attempting to avoid the staff. SA attempted to run past Mr. DR and, in doing so, she moved toward the top of the stairwell, which has bannisters with a railing. She headed directly toward the railing at the edge of the stairs. The drop from there to the concrete floor below is about 12 feet. Mr. DR testified it appeared to him that that SA acted in a manner which suggested she was threatening to throw herself off the edge of the railing to the concrete floor below. [8]
[61] In March 2020, SA sent a video to the school which Mr. DR observed. It showed SA holding a knife up to her neck in an apparent gesture of wanting to kill or harm herself. The knife blade was about 4 inches long. Mr. DR instructed the teacher to follow up with the society.
[62] In September 2020, while SA was supposed to be isolating at home, Mr. DR saw her outside the school. Mr. DR telephoned SA’s father and he then went outside toward SA. By then, the police had arrived and they were attempting to corral SA, who was resisting. When they eventually did get hold of her and opened her backpack, Mr. DR saw a knife with a blade of about 12 inches, and two bottles of prescription medications.
[63] Over the course of the school year, Mr. DR witnessed bruises on her wrists. He had also seen SA tie elastic or hair bands around her wrists, to the point where he witnessed bleeding or broken skin.
[64] I turn next to the evidence of Shaindy David. Ms. David has a Master of Social Work degree. She has worked solely for the society since 2016. She began working with SA’s family in November 2019. Over the course of several months, she spent considerable time with SA, her father and SA’s siblings. She developed what appears to have been a deep understanding of SA’s family and SA herself.
[65] Ms. David characterized SA’s needs as “very complex” and referred to her numerous diagnoses, including mild intellectual development and post traumatic stress disorder.
[66] During the course of her involvement with SA, Ms. David testified that SA often expressed the desire to commit suicide so that she could be with her brother. She also texted Ms. David on a number of occasions expressing the same desire.
[67] Following the school’s closure after the onset of the pandemic in March 2020, SA would text Ms. David several times a day. If Ms. David didn’t answer those texts within an hour, SA would send more serious messages to Ms. David, about wanting to die. Ms. David characterized these messages as “scary”.
[68] These messages began in earnest around March and April 2020. In May 2020, SA told Ms. David “I’m going to kill myself with a knife” or “jump out of a window”. SA added, “it’s for real this time”.
[69] Around September 2020, Ms. David said that SA seemed to be “upping the ante”. She went from one hospitalization to the next, admitted, discharged, admitted and discharged, over and over again.
[70] On one occasion when SA brought a knife to school, Ms. David spoke to her about this and SA told Ms. David, “if you make me go home, I’ll kill myself for real”.
[71] On another occasion, SA told Ms. David that she had a hammer in her cupboard and that she was going to use it to kill her father. This prompted Ms. David to discuss with the father the importance of ensuring that everything was locked up at home.
[72] In around the same time period, SA told the crisis nurse in Ms. David’s presence that she had a band wrapped from her wrist to her elbow. SA rolled up her sleeve and said that she wanted it there because it hurt. Ms. David testified that the band had been wrapped so tightly that her arm almost appeared to be a different size.
[73] Events and incidents had escalated to the point that around October or November 2020, the society decided that SA could not be adequately protected by remaining at home with her father. The society decided that it had no option but to bring SA into care. When Ms. David discussed this with the father, he responded that if the society wanted to remove SA from his home, it would have to do so by going to court. [9]
[74] Ms. David spoke to the father about the whether he would accept 24/7 supervision for SA in the father’s home, but the father declined the offer because he wanted his privacy.
[75] At one point the father said he would consider residential treatment for SA, but he then changed his mind.
[76] In November 2020, the society initially placed SA in a foster home with a strong clinical background and a 2 to 1 ratio. But Ms. David testified this was like “putting a bandaid” on the problem because in her view, SA required residential treatment.
[77] Ms. David testified that the society explored a number of different options and resources for SA. She took SA to the Shoniker Clinic, but the Clinic was only able to offer sporadic appointments. Ms. David said she pleaded with Shoniker to give SA more sessions, but Shoniker refused, saying that it couldn’t help someone like SA who was in “active crisis”.
[78] The society approached Youthdale, East Metro Youth Services and Griffin Centre Mental Health Services. All of these refused or said they could not help SA in her particular circumstances.
[79] Ms. David testified that she was looking for anything to help SA. She explored every possible resource, “digging into the bottom of the [resource] barrel”.
[80] It was apparent to the court that Ms. David was very attached to, and cared deeply for SA and her wellbeing. It was equally apparent to the court that Ms. David, in her role as the Family Services Worker, exhausted every possibility that she could think of in order to find treatment options for SA.
[81] Having regard to all of the foregoing, the court concludes that criteria #3 is satisfied.
4.4: Criteria #4 and #5 – the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themselves or another person and the treatment program necessary for SA is available at Syl Apps.
[82] I am combining these two criteria because of the overlap in the evidence presented at the hearing.
[83] I return first to the case of Re J.A., supra, and the comments of Judge Nasmith at paragraph 51:
[51] This would seem to me to be a fairly difficult test to meet in the best of circumstances but, at the very least, it would require a well developed professional opinion based on familiarity with the programme being offered. Also, in my opinion, this test goes beyond merely arguing that, while J.A. was locked up, he would be less likely to cause serious bodily harm to someone.
[84] Dr. Bakht has familiarity with the treatment programs at Syl Apps. In fact he spent between 6 and 12 months at Syl Apps in the 1990’s.
[85] Dr. Bakht testified that SA requires a residential treatment setting for a number of reasons. First, she has been in and out of hospital numerous times in the past few months. Nothing can be accomplished in hospital settings, particularly hospital settings of short durations.
[86] The society cannot provide safety for her in foster homes and it is not safe for SA to go home to her father. If she were in a secure placement, she could develop consistency which comes from a single placement, with a single therapist (or a single team of therapists), on a long-term basis. Once she understands that she cannot simply get up and walk out after a few days, Dr. Bakht believes that SA would eventually come around to her therapeutic setting and allow herself to be open to learning some coping skills.
[87] Dr. Bakht testified that she desperately needs grief counseling to deal with the losses in her life, including the loss of her brother and the loss of her mother with whom she no longer lives. [10] She needs to learn some academic skills to compensate for her intellectual deficiencies.
[88] All of this will require a stable, long-term placement. It is Dr. Bakht’s view that in SA’s current circumstances, she will require a considerable amount of time to develop a rapport with her therapist. It is his view that she needs a “minimum of six months, possibly up to a year” to develop this rapport and to make gains from the therapy which will be offered to her.
[89] Dr. Bakht was firm in his view that SA cannot be released into the community or returned to her foster home or to a parent. His view is based on his knowledge of SA’s history over the past few years. She ran away from the foster home, she discharged herself from the hospital, she kept putting herself into dangerous situations. Dr. Bakht said that without appropriate treatment she might kill herself.
[90] Dr. Bakht’s view of the appropriateness of Syl Apps is based on his long and extensive career specializing in child psychiatry and his understanding of SA’s needs, as well as his understanding of treatment opportunities available at Syl Apps.
[91] This is buttressed by the Consent to Treatment, dated December 31, 2020, and signed by Dr. Janelle Hawes who is the administrator of the secure treatment program at Syl Apps.
[92] Dr. Hawe’s letter, addressed to Terry Carter of the society, states in part:
We believe the Secure Treatment Program would be effective to prevent SA from causing or attempting to cause serious bodily harm to themselves [sic] or another person, and treatment appropriate for their [sic] mental disorder is available as per section 164(d) and (e) of the Child, Youth and Family Services Act.
Admission to the Secure Treatment Program is only one facet of the healing process for SA. We believe that the continued participation and support of yourself and all current stakeholders is an integral part of SA’s treatment throughout their [sic] stay.
4.5: Criteria #6 – no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances
[93] The court heard from Marc MacDonald who is the placement supervisor at the society.
[94] Mr. MacDonald’s team is responsible for overseeing placements for children who are brought into the society’s care. The society has contracts with about 45-50 operators across the Province. These are operators which are licenced by the Ministry and which have a roster of approved foster homes.
[95] In assessing the suitability of any placement for a child, Mr. MacDonald’s team considers a range of circumstances including any special needs for the child, the child’s ethnicity, cultural background, educational requirements, and anything else which the team considers relevant in matching the child with a potential placement.
[96] Mr. MacDonald first became aware of SA around November 5, 2020. He created a profile for her including her mental health needs and a place where she could be kept safe. He looked for a foster home which could also address SA’s ADHD deficits.
[97] The society eventually placed SA with Bayfield Treatment Homes; but shortly afterwards, following SA’s admission to Hospital, it became apparent to Bayfield and to the society that SA’s needs were too extensive for Bayfield’s available resources.
[98] Mr. MacDonald’s team then contacted approximately 20 different operators, but none of those operators had the capability of addressing SA’s needs. [11]
[99] Mr. MacDonald testified that there are no resources within the society’s system which can address SA’s particular needs.
[100] Recall the testimony of Ms. David who also stated that she exhausted every possible resource that was known to her. Despite contacting Shoniker, East Metro Youth Services, Youthdale and Griffen Centre, there were no resources either available or willing to take on SA with her special needs.
[101] Mother’s counsel pointed out that SA has a close relationship with her father. She asked Dr. Bakht on cross-examination whether SA could live at home, with the parent she is attached to, and attend a day treatment program. Dr. Bakht stated this would not work for SA. He testified that day treatment programs are for high-functioning patients who are willing to cooperate, where there is no aggression and no running away. None of these attributes would describe SA at this point in her life.
[102] Subsection 158(1) of the Act contemplates circumstances where secure treatment may be necessary, stating:
158 (1) The Minister may (a) establish, operate and maintain; or (b) approve, programs for the treatment of children with mental disorders, in which continuous restrictions are imposed on the liberty of the children.
[103] The fact that SA was brought into care and this court made a temporary in-care order on November 10, 2020, when considered together with Ms. David’s evidence, leads to the conclusion that SA cannot be safely and adequately cared for in her own home.
[104] The fact that SA has been in and out of hospital numerous times since November 2020 reveals to the court that simply being held for a few days at a time in hospital is not an appropriate treatment place for SA.
[105] Mr. MacDonald and his team, as well as Ms. David, considered every known resource and made every possible attempt to find something less restrictive for SA; but despite these efforts, the society was unable to identify any such resource.
[106] All of this persuades the court that there is no less restrictive method of providing treatment appropriate for SA’s needs.
5: Exercise of the Court’s Discretion
[107] Having found that the six criteria are met, the court must consider whether to exercise the discretion afforded under subsection 164(1) to order secure treatment.
[108] Placing a child in a lockup for an extended period of time is serious business. This is a highly intrusive procedure which engages children’s section 7 rights under the Charter of Rights and Freedoms.
[109] I cite the following from Justice Starr’s decision in McMaster Children’s Hospital , supra at paragraphs 15 and 16 :
[15] It is important to understand at least some of what a young person may experience if committed to a secure treatment facility and thus, some of the consequences for the child, beyond the general loss of liberty. When a young person is committed to a secure treatment institution, the child is placed in a locked facility. Depending on the practices of the particular facility, this can be a place where:
a) they can be placed in de-escalation rooms (secure isolation) and which may be locked for periods of up to an aggregate of 8 hours per day;
b) their rooms may be locked at night;
c) they can be placed in restraints, which the Act defines as: a device, material or equipment that reduces the ability of a person to move freely, and includes handcuffs, flex cuffs, leg irons, restraining belts, belly chains and linking chains. In the case of Syl Apps, the evidence before this court is that they use Velcro cuffs and chemical restraints (where a drug is administered to the young person to reduce their ability to move freely); and
d) they receive constant monitoring and a significant loss of privacy. For example, see Ontario Shores Centre for Mental Health Sciences v. C.S. , 2016 ONCJ 894 , where a child was initially monitored constantly, 24 hours per day for two months by two staff members. Initially he was also placed in his own unit without other children.
See: CYFSA , ss. 174(8), 174(2), 7, 2; and, [Ontario Shores Centre for Mental Health Sciences v. C.S. , 2016 ONCJ 894 at para 22] .
[16] Obviously commitment to a secure treatment program also means that the young person is separated from their family. The significance of this cannot be overstated. Indeed, the Supreme Court of Canada has acknowledged, separation from parents and family, even for short periods has profound impacts on a child’s psychological integrity. See: [New Brunswick (Minister of Health and Community Services) v JG](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii653/1999canlii653.html) , [1999] 3 SCR 46 at paras. 60, and 76 ; and, [Winnipeg Child and Family Services v KLW , 2000 SCC 48 at paras 72 , 76, 87, 108, and 131].
[110] In her decision, Justice Starr sets out a number of key guiding principles to assist courts in dealing with secure treatment applications, at paragraph 26:
[26] Taking all of the foregoing into account along with the guiding principles this court summarized at paragraph 20 of its decision in Ontario Shores Centre for Mental Health Sciences v. C.S. , supra, the following emerge as the key guiding principles with respect to how the court is to safeguard against the arbitrary loss of a young person’s liberty in the context of secure treatment applications, be they applications of first instance or applications to extend the committal:
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;
An order committing a child to secure treatment is to be considered as a remedy of last resort;
The applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child’s wishes;
To fulfill its onus the applicant must:
a. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five [sic] criteria has been met;
b. direct evidence from the psychiatrist whose opinion evidence resulted in the child’s admission;
The court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.
The evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.
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 committing, or extending the committal, where it is satisfied that all of the criteria in subsection 164(1) (secure treatment applications) and ss. 167(1) (extension applications) have been met.
The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.
[111] I adopt entirely Justice Starr’s reasoning and reach the same conclusion with respect to her guiding principles.
[112] While the court recognizes the highly intrusive nature of a secure treatment order, the court also recognizes the paramount purpose of the Act which is to promote the best interests, protection and well-being of children. [12]
[113] The court is cognizant that SA is currently locked up at the Brampton Hospital. Dr. Bakht will not discharge her unless there is a discharge plan. There is no discharge plan available for this young person, apart from Syl Apps.
[114] In her current lockup, SA is simply being held. She is not being treated for her mental disorder. She is confined, restrained at times, and she has no opportunity to enjoy the outdoors.
[115] At Syl Apps she will have certain freedoms that are not currently available to her. [13] Most importantly, SA will have an opportunity to access the kind of therapy she requires to set her on the path toward some measure of healing and beginning to cope with life.
[116] The evidence persuades the court that the exercise of the court’s discretion to order secure treatment is the only way to provide some hope for this child that there is a light at the end of the tunnel for her.
6: Period of Commitment
[117] As I noted at the outset, the society sought a period of commitment of 180 days. The court made that order.
[118] I recognize that time moves far more slowly for young persons than it does for an adult. Six months for an adult may seem like six years for some young persons. And because of this, a period of commitment for 180 days may seem like an eternity for SA.
[119] I also recognize that for 180 days, SA may feel like a prisoner. That said, her sense of confinement while at Syl Apps may feel no different to her than what she has been experiencing for the past few months, being in and out of hospital, secured in her hospital room, being repeatedly tied to her bed in 4-point, 5-point and even 6-point restraints.
[120] Regardless, 180 days is a long time. But Dr. Bakht was very firm in his opinion that SA needs to understand that when she arrives at Syl Apps, she will not have the option of leaving the next day, or a few days later, as she repeatedly did when she was admitted to the Brampton Hospital. Dr. Bakht believes SA will quickly understand that this will be her home for an extended period of time. He testified that once SA understands this, she will likely lower her defences and slowly give herself up to the various resources offered to her at Syl Apps. She will then be able to develop a rapport with her therapist and engage in meaningful counselling.
[121] He was clear that this initial period at Syl Apps will be an adjustment for SA but it is a necessary adjustment if she is to move toward meaningful therapy. As the court noted earlier, Dr. Bakht stated that SA needs to be at Syl Apps for a minimum of six months, possibly as long as a year.
[122] Dr. Bakht’s view of the length of time SA needs to be at Syl Apps was not seriously challenged on cross-examination. Mother’s counsel did ask Dr. Bakht whether it might impact negatively on SA for her to be absent from her father for such a long period of time. Dr. Bakht responded that it could, possibly. However, he said that it would be more negative for her to not be in a secure placement where she is safe and secure.
[123] On all the evidence and balancing all the considerations set out in these reasons, I arrive at the conclusion that a 180-day committal period is justified and reasonable. It is the appropriate duration in the current circumstances.
7: Conclusion and Final Order
[124] For all the foregoing reasons, the court concludes on a balance of probabilities that the six criteria set out in the Act have been satisfied.
[125] The court is satisfied that the society has met the burden of establishing that it has explored all reasonably viable and known alternatives to secure treatment, including:
- Placement in an appropriate foster home operated by Bayfield Treatment Homes, as well as other operators licenced by the Ministry
- Youthdale
- Shoniker Clinic
- Griffen Centre Mental Health Services
- East Metro Youth Services
[126] While neither the child’s lawyer nor the father’s lawyer argued that remaining in the Brampton Hospital is a viable less restrictive option, I will briefly address that option.
[127] Remaining at the Hospital is not a viable option for a number of reasons. First, SA is, for all intents and purposes locked up while she is in the Hospital. That is no less restrictive than a secure setting at Syl Apps.
[128] At the Hospital, SA is merely being warehoused. The Hospital is not able to offer her any real treatment, apart from her existing medications. At Syl Apps, she will be afforded meaningful opportunities to receive therapy and counselling and to socialize with other residents.
[129] Third, at the Hospital, SA has no opportunity to go outdoors. At Syl Apps, the patients can go outdoors to a courtyard.
[130] Fourth, SA’s ability to remain in the Hospital is subject to the requirement that she be repeatedly committed as an involuntary patient. That may not be possible.
[131] The clear and convincing evidence is that there are no existing less restrictive treatment options which are appropriate for this young person.
[132] Mr. MacDonald testified that prior to SA’s discharge from Syl Apps, the society will connect with Syl Apps to gain an understanding of its post-discharge recommendations for SA. In turn, this will assist the society to develop an individualized treatment plan to meet SA’s ongoing needs.
[133] For all the reasons set out in this decision I make the following order:
There will be a final order to go in accordance with the draft order submitted by the society, which was signed by me on January 21, 2021 and forwarded to the secure treatment program at Syl Apps on the same day, for a period of 180 days, commencing January 21, 2021.
[134] Finally, I wish to thank all four counsel who treated the witnesses with the highest degree of civility and respect in difficult circumstances.
Released: January 25, 2021
Justice Robert J. Spence
(Signed electronically)
[1] Attention deficit hyperactivity disorder
[2] In addition to the number of existing, previously prescribed medications
[3] The society in closing submissions stated that the 45-day period immediately preceding the application on January 5, 2021 began on November 23, 2020. This date was accepted by the other parties. However, my arithmetical calculation differs, revealing that the date is November 21, 2020. Nevertheless, because nothing materially turns on this difference in dates, I will begin with incidents starting on November 23, 2020 as that is the date that the parties agreed to.
[4] Dr. Bakht testified that “code white” denotes a psychiatric emergency for out-of-control behaviour, the need for security and for restraint.
[5] See the extract from the January 2 nd Nurse Notes, above.
[6] As reflected in both her actions as well as by her words
[7] The evidence of the Tylenol pills and the teacher’s call to 911 are hearsay and not admissible for the truth. However, this forms part of the narrative leading to the direct evidence of the principal who witnessed the arrival of the ambulance and the attempts to coax SA into the ambulance.
[8] SA was eventually contained by one of the teachers.
[9] The matter came before me on November 10, 2020 at which time I made a temporary order placing SA in the society’s care.
[10] At some point following the death of SA’s brother in 2015, the parents ended their relationship and SA remained living with her father.
[11] He did not contact the other 20-30 operators for reasons which were obvious at the time to his team – for example, operators that were already at capacity.
[12] Subsection 1(1) of the CYFSA
[13] Except the freedom to leave prior to the end of her committal term
