CITATION: A.R.P. v. Children’s Aid Society of London and Middlesex, 2024 ONSC 4023
DIVISIONAL COURT FILE NO.: 020/24
DATE: 2024/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Matheson and Davies JJ.
This is a case under the Child Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting, Youth and Families Act, 2017. S.O. 2017, c. 14) and is subject to subsections 87(8) and 142(3) of the Act, which deal with the consequences of failure to comply, read as follows:
87(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.
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.
BETWEEN:
Children’s Lawyer for Ontario, on behalf of the child, A.R.P.
Appellant
– and –
Children’s Aid Society of London and Middlesex.
Respondent
Ian Ross, Christine Doucet and Marnelle Dragila, for the Appellant
Catherine Dyck, for the Respondent
HEARD at Toronto by videoconference: July 11, 2024
H. Sachs J.
REASONS FOR JUDGMENT
Overview
[1] On April 12, 2024, Henderson J. ordered that the child, A.R.P., be committed to the Roberts Smart secure treatment program in Ottawa for 180 days, which is the maximum time permitted under the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “Act”).
[2] Commitment to a secure treatment program is a very serious matter as it deprives a child of their liberty. It is a remedy of last resort.
[3] Subsection 164(1) of the Act sets out six criteria that must be satisfied on a balance of probabilities before such an order can be made.
[4] Under Criterion 1, the court must be satisfied that the child has a mental disorder. It was conceded that this criterion was satisfied. Among other things, the child suffers from Fetal Alcohol Spectrum Disorder (“FASD”), which has resulted in cognitive deficiencies, impulsivity, and an inability to self-regulate.
[5] Under Criterion 2 (the 45-day Criterion), it must be established that “the child has, as a result of the mental disorder, within 45 days immediately preceding the application… caused or attempted to cause serious bodily harm to themselves or another person.” The trial judge found that there were three incidents that satisfied this criterion (only one is required): (i) the child threatened to jump off a bridge; (ii) the child ingested a white substance that she identified as methamphetamine without any evidence of resulting harm; and (iii) the child was assessed for “suicidal ideation” and released. The Office of the Children’s Lawyer (the “Appellant” or the “OCL”) asserts that the trial judge erred in law in finding that this criterion was satisfied. It also argues that the trial judge erred in law in taking judicial notice of certain facts concerning the bridge that the child threatened to jump off. The CAS concedes the trial judge erred in taking judicial notice but argues that it did not affect the result.
[6] Under Criterion 3, the Children’s Aid Society of London and Middlesex ( the “Society” or the “CAS”) has to satisfy the court that the child has, within the preceding 12 months, but on another occasion not referred in Criterion 3, “caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person.” The OCL conceded that this criterion had been satisfied at trial and is not appealing the trial judge’s findings with respect to this criterion.
[7] Under Criterion 4, the CAS is required to satisfy the court that 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”.
[8] Under Criterion 5, the CAS must also establish that the “treatment appropriate for the child’s mental disorder is available at the place of secure treatment”.
[9] Under Criterion 6, it must be proven that “no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.”
[10] The OCL argues that the trial judge erred in law and improperly found that Criteria 4, 5, and 6 were satisfied.
[11] Finally, the OCL alleges that the trial judge erred in law in committing the child for 180 days in the absence of evidence supporting this length of stay and by failing to provide reasons for this aspect of his decision.
[12] The CAS sought to admit evidence on the appeal concerning events that have transpired since the order in question. This evidence spoke to the child’s progress in treatment and the lack of an alternative placement for the child were the appeal to be allowed. On this basis, the CAS requests that if this court were to set aside the trial judge’s order, we delay the effect of our decision for two weeks.
[13] For the reasons that follow, I would not admit the fresh evidence.
[14] The CAS concedes that if the trial judge erred with respect to any one of the criteria, the order under appeal must be set aside. For the reasons that follow, I find that the trial judge erred when he found that Criterion 2 (the 45-day Criterion) had been satisfied. There is, therefore, no need to address the other issues raised by the OCL. The order must be set aside. Since we were provided with no legal authority to delay the effect of our order, I decline to do so.
Factual Background
[15] The child was born on [...], 2008. She is a member of the Walpole Island First Nations and has connections with the Oneida Nation of the Thames. The CAS has been her legal guardian since shortly after her birth.
[16] The child was in long term foster care with her siblings until June of 2021. As found by the trial judge, the placement broke down “due to the child’s escalating behaviours which included suicidal ideation, aggression defiance and running.”
[17] Since the breakdown of her foster placement, the child has been in a series of group homes. At the time of trial, she was residing in a group home in London where she had been since September of 2023. The placement was not a long-term placement.
[18] The CAS commenced its application for secure treatment on March 28, 2024, and the trial judge made his order one day before the child’s 16th birthday. The child has been at the secure treatment centre since April 12, 2024.
The Trial Judge’s Decision
Criterion 1
[19] The trial judge found that the child had been diagnosed by Dr. Sumiya (a psychiatrist at the London Health Sciences Centre who treated the child during a two-week admission at that hospital in November 2023) with the following conditions: Oppositional Defiance Disorder; Post-Traumatic Stress Disorder; Attention Deficit Hyperactivity Disorder; FASD and Polysubstance Abuse Disorder. Another psychiatrist, Dr. Abramson, saw the child in February of 2024 and diagnosed her with a primary diagnosis of FASD, with secondary diagnoses of intellectual disability and borderline personality disorder.
[20] Dr. Abramson testified that FASD is incurable and that the symptoms include “impulsivity, cognition deficiency and inability to self-regulate.” This results in poor decision-making and “high risk behaviours”. According to Dr. Abramson, children with FASD “live in the moment”, which makes treatment very challenging. A child may consent to treatment in the morning and change their mind later in the day.
[21] As noted, the OCL did not contest that the child suffers from a mental disorder.
Criterion 2
[22] After noting that the criterion must be strictly complied with and that the harm at issue must be serious, the trial judge found that this criterion had been satisfied on the basis of the following three incidents.
In March of 2024, a worker from the child’s group home received a text from the child that she was “in psychosis and hearing voices” and that she intended to jump from the Ivey Park Bridge. When the worker located the child, she was at the downtown library. The worker and the staff who had accompanied her got the child into the car. According to the worker, the child appeared to be under the influence of drugs. Before the child could be secured in the car, she ran from the car and into the street where she was almost hit by another car. The staff then lost sight of her. The child was missing for several hours but returned to the group home later that night.
A couple of days after the first incident, the child was observed snorting a white substance up her nose in her room at the group home. The child was told that she had to let staff know if she was using drugs in case she overdosed. The child responded, “you can’t OD on meth.” A search of the room revealed a bag of substance that the witness suspected could be crack cocaine. The police were called, and the bag was confiscated.
On February 18, 2024, the child was involuntarily admitted to hospital for suicidal ideation. When the psychiatrist, Dr Abramson, spoke to the child, she was pleasant and cooperative, denied being suicidal, and wanted to be discharged back to the group home. The child was discharged the same day.
[23] With respect to the first incident, the trial judge found that fleeing into traffic did not demonstrate an intent to cause serious bodily harm. However, he found that threatening to jump from the Ivey Park Bridge did demonstrate such an intent. In order to make this finding he took judicial notice of the fact “that the Thames River runs though London, that many bridges cross the river, that one of those bridges is Ivey Park Bridge near the Forks, and that jumping off it would cause serious harm if not certain death.”
[24] With respect to the second incident, the trial judge found that the child admitted that she was snorting “meth”, which is short for methamphetamine. The trial judge found that the fact that the child did not believe she could overdose on methamphetamine did not mean that she did not intend to cause herself serious bodily harm when she ingested the drug. It is well known that the drug is dangerous. He also found that, given the child’s drug history, it was dangerous to this child. Given these two findings, the trial judge found that it was sufficient that the child intended to take the drug. The trial judge also found that indirectly the child’s drug use placed her in danger of serious bodily harm. In December of 2023, she had been assaulted by a drug dealer to whom she owed money. She sustained a fractured jaw and a small brain bleed that required hospitalization. The trial judge also relied on testimony that the child has not been leaving the group home in recent weeks because she owed a drug dealer money.
[25] With respect to the involuntary admission in February 2024 (the third incident), the trial judge focused on the fact that the child expressed the desire to die. According to the trial judge “[t]he fact that she was released the same day does not detract from the seriousness of the event.”
Criterion 3
[26] The trial judge noted that this criterion “requires the Society to demonstrate that the child, within the 12 months prior to the application, caused, attempted to cause, or by words or conduct made a substantial threat to cause serious bodily harm to themselves or another person, or caused or attempted to cause a person’s death. This occasion must be different than the one relied upon for the 45-day criteria.” The trial judge found that the following two events met Criterion 3:
In November of 2023, the child was admitted to hospital after overdosing on Tylenol. She was in hospital for two weeks. The first week, she was on a medical floor to stabilize the damage to her liver; the second week, she was in a psychiatric intensive unit.
On January 6, 2024, the child was angry that the workers at the group home decided to withhold her access to Wi-Fi after an incident when she threatened to harm herself and appeared to be under the influence of drugs. She went into the bathroom with a lighter and lit the shower curtain, causing extensive damage to the tub, floor, and ceiling. Fortunately, the staff smelled smoke and removed the child from the bathroom. When they searched her, they discovered she had a pocketknife.
[27] At trial the OCL conceded that the overdose incident satisfied Criterion 3.
Criteria 4, 5, and 6
[28] Under these criteria, the trial judge had to be satisfied that the secure treatment plan would be effective, that appropriate treatment was available, and that no less restrictive treatment method was appropriate.
[29] With respect to Criteria 4 and 5, the Society relied on Dr. Abramson’s evidence. She testified that an ideal treatment plan for someone with the child’s diagnoses would include: optimizing appropriate medication; access to a psychiatrist, basic safety from harm; basic needs (like food and shelter) being met; refraining from the use of non-prescription drugs; and establishing a healthy adult/child relationship with a doctor or therapist. The supervisor from the proposed secure treatment centre testified to the following: the child, if admitted would have access to an in-house psychiatrist, supported by other clinicians and therapists; the facility is a secure one with locks on every door and close supervision; food, shelter and schooling is provided; there would be no access to drugs and no ability to set fires; and there is a focus on establishing healthy adult/child relationships in order to ensure that the child invests in her treatment plan.
[30] The trial judge found that, while this evidence could have been “more robust”, it satisfied the criteria for the following reasons:
(a) The child has a number of complex mental health problems, many of which arise from her FASD. FASD is incurable. Any treatment involves treating the symptoms. In this case, the child’s symptoms are serious, including suicidal ideation and two suicide attempts. The child hears voices. She has to be reminded to eat and is lax on her personal hygiene. She is easily influenced, her social skills are less developed than her peers, she is impulsive, and has difficulty regulating herself. The social worker, with whom she had a good relationship for ten years, assessed the child as being “at a level of very high-risk of dangerous behaviour.”
(b) The child was not being treated for her complex needs. She was not seeing a psychiatrist or a therapist. She was prescribed two types of medication, but there was no evidence as to what this medication was for.
(c) The child had been residing in what her counsel described as a “high supervision facility.” The level of supervision had not stopped her from engaging in high-risk behaviour. In addition to the behaviour that has already been highlighted in these reasons, the trial judge adverted to the evidence that the child went AWOL from the home an average of five times per month for days on end returning under the influence of drugs. She had also incurred criminal charges for uttering threats and damage to property.
(d) The trial judge accepted that the Society had pursued less restrictive alternative options, for which the child either did not qualify or she refused to go. The trial judge accepted the worker’s evidence about the child’s lack of follow through. As he stated: “[t]he child does not function in the morning and her anxiety kicks in when going to appointments. The worker has had a hard time getting the child to the dentist even with a mouthful of cavities.”
(e) On this basis, the trial judge concluded that “there is no plan of treatment currently in place that addresses the child’s needs, and no prospect in the immediate future of a less intrusive treatment plan.” The only plan to consider was the one proposed by the Society.
(f) The trial judge found that, at this stage, it was unrealistic to expect a fully detailed plan for treatment for the child. Upon admission, the child would be assessed within 30 days and a full treatment plan would be developed, after discussion with the child. At this stage, the court only had to be satisfied that the facility was aware of the child’s needs arising from her mental disorder and had the capacity to address those needs. The trial judge was satisfied that this standard had been met. In particular, he noted that the facility had experience with FASD and would bring in addiction counsellors.
(g) The trial judge found that pursuant to s. 1(1) of the Act, it was still necessary to consider the child’s best interests. Since the Society’s plan was the only one that would address the child’s needs, he found it to be in her best interests.
[31] These reasons also encompassed Criterion 6, which the trial judge found had been satisfied. The trial judge concluded his reasons with the following remarks:
[66] In closing, it has to be recognized that the long-term prospects for this child are grim. There was evidence that there is no cure for FASD and there is a strong likelihood that, regardless of any success in the program, the child will revert to her old ways upon release.
[67] In the end, no one knows what the future may bring. Dr. Abramson did offer a glimmer of hope that the child’s brain would continue to grow and develop, hopefully to a point where there is a moderation of the worst behaviours.
Issues Raised
[32] The first issue raised on this appeal is whether the fresh evidence should be admitted.
[33] The second issue advanced by the OCL concerned Criterion 2 (the 45-day criterion). The OCL submitted that the trial judge erred in law in his analysis of this criterion by treating the two incidents that involved an expression of a desire to commit suicide as attempts when they were only threats (threats are sufficient for Criterion 3, but not for Criterion 2) and by finding that drug ingestion incident qualified in the absence of any evidence of serious bodily harm or the risk of serious bodily harm.
[34] The third issue raised concerned the trial judge’s use of judicial notice. It is conceded that the trial judge erred in taking judicial notice without giving the parties an opportunity to address the findings he was proposing to make. What is not conceded is whether the judge’s actions in taking judicial notice would have affected the result. Given the basis on which this appeal is being allowed, there is no need to address this issue in any detail.
[35] The fourth issue is whether the trial judge erred by finding that the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm and that treatment appropriate for the child’s mental disorder is available at the program (Criteria 4 and 5). The OCL submitted that in this case the evidence fell far short of what prior jurisprudence had established was required to satisfy these criteria. In making this submission, the OCL emphasized that these criteria could not be satisfied without a formal assessment of the child or her needs, which did not exist. The CAS responded by pointing out that there was no statutory requirement for a formal assessment and that any prior jurisprudence was from the Ontario Court of Justice and not binding on the trial judge. According to the CAS, the OCL’s submission was essentially an attack on the trial judge’s factual findings, which was reviewable on a standard of palpable and overriding error, a standard that the OCL failed to meet.
[36] The fifth issue raised is whether the trial judge erred by finding that there was no less restrictive method appropriate for treating the child’s mental disorder (Criterion 6). Again, the OCL submitted that the trial judge made his finding that this criterion was satisfied on the basis of evidence that fell short of the standards set in prior jurisprudence. In particular, there was no evidence as to the specific efforts that were made to exhaust other options, including an option that the child had expressed an interest in. Again, the CAS argued that the OCL’s submission was nothing more than an attack on the judge’s factual findings. Further, given the evidence about the child’s inability to follow through on any treatment options that was were offered to her, there was less need for evidence about the specific efforts made to exhaust other options.
[37] The sixth issue raised relates to the length of committal specified in the order under appeal. According to the OCL, the trial judge imposed the maximum term without reasons and without evidence to justify this period. The CAS countered, arguing that the trial judge did give reasons for choosing the maximum period and that there was evidence to support his conclusion on this issue. Again, according to the CAS, the OCL failed to demonstrate a palpable and overriding error.
[38] As already foreshadowed, these reasons will deal with the fresh evidence application and Criterion 2. Given my conclusion that the trial judge erred in finding that the CAS had satisfied Criterion 2, there is no need to deal with the other issues that the OCL raised in this appeal.
Analysis
Preliminary Comments
[39] This case poses a serious dilemma for the court. On the one hand, the child at the centre of this case has a mental disorder that causes her to hallucinate and hear voices, and to engage in a number of high-risk behaviours, including suicide attempts (one of which resulted in a two-week hospitalization), lighting a fire, and drug use. As the trial judge found, without treatment, it is likely this child could end up either dead or seriously injured.
[40] On the other hand, the only treatment plan that seems to be available is one that involves placing the child in a secure facility. These are locked facilities where children have constant monitoring, lose any right to privacy, can be subject to chemical and physical restraints, can be locked in de-escalation rooms for up to 8 hours per day, and the routine locking of rooms is not prohibited. As the trial judge recognized, the liberty interests at stake are significant as is the internationally recognized harm of detaining children in a restrictive facility. Therefore, secure treatment orders can only be made if the statutory criteria are all strictly met, and only as a last resort.
[41] Balancing the competing concerns in the context of the life of a seriously at-risk child is not easy.
The Fresh Evidence
[42] The CAS brough a motion for fresh evidence that speaks to the child’s current circumstances and well-being after three months in secure treatment and that provides information about the availability of alternative placements for the child, should the secure treatment order be overturned.
[43] According to the CAS, the fresh evidence meets the test for the admission of fresh evidence as it is credible, relevant, and could not have been adduced at trial, even with the exercise of due diligence.
[44] In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada dealt with the admission of fresh evidence in the context of a family law appeal concerning the best interests of children. In that case, the evidence at issue concerned facts that had arisen after trial. The Court confirmed, at para. 3, that whether the evidence arose before or after trial, the applicable test is the test in Palmer v. The Queen, [1980] 1 S.C.R. 759. As summarized by the Court at para. 29, the Palmer test requires establishing whether:
(i) the evidence, could not, by the exercise of due diligence, have been obtained for the trial;
(ii) the evidence is relevant in that bears upon a decisive or potentially decisive issue;
(iii) the evidence is credible in the sense that it is reasonably capable of belief; and
(iv) the evidence is such that, if believed, it could reasonably have affected the result at trial.
[45] The fundamental issue in this case is whether the trial judge erred when he found that, at the time he made the order, the statutory criteria for the making of that order had been met.
[46] The evidence as to the child’s progress in the secure treatment centre does speak to the programming available at the treatment facility and the extent to which it has been effective for the child. These are considerations that are relevant to Criteria 4 and 5. However, the statute requires the Society to satisfy the criteria before the order is made, not after. If, as the OCL maintains, the threshold for meeting those criteria was not met before the trial judge made the order, it would undermine the need for strict compliance with the terms of the statute to allow the Society to put forward a weak case at trial secure in the knowledge that they can then call the evidence later if the matter is appealed. It also undermines the need for finality inherent in any court proceeding.
[47] The evidence as to the lack of current placement alternatives is irrelevant to the issues on this appeal. If placement alternatives were relevant to the issues under appeal, it is the alternatives that were explored prior to the making of the order in question. Again, the relevant criterion is aimed at ensuring that a secure treatment option is not imposed on a child before the court is satisfied that all appropriate and less restrictive options have been explored. To the extent that the Society is seeking to introduce this evidence to ensure we delay the effect of any order setting aside the order of the trial judge, the Society provided us with no authority to take such action. If the order was made without the statutory criteria being satisfied, the child is, in effect, being unlawfully detained. It would be constitutionally impermissible to continue such a detention.
[48] For these reasons, the motion to introduce fresh evidence is denied.
Did the trial judge err in finding that Criterion 2 (the 4- day Criterion) was satisfied?
Legislative Context for Secure Treatment
[49] The Act’s preamble, which is used to explain its purpose, sets out the following key principles that are relevant to the consideration of a secure treatment order:
(a) “The Government of Ontario acknowledges that children are individuals with rights to be respected and voices to be heard.”
(b) “The Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017 is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child (UNCRC).”
[50] Article 37(b) of the UNCRC (Can T.S. 1992, No. 3) requires States Parties (including Canada as a signatory) to ensure that “no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention, or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.” The rights of a child under Article 37(b) of the UNCRC apply to children placed in institutions for the treatment purposes, including mental health and drug treatment: UN Committee on the Rights of the Child (2013), General Comment No. 10 (2007) Children’s rights to juvenile justice, p.5.
[51] These requirements exist because it is universally recognized that being detained in restrictive environments is harmful to children. As noted by the UN Committee on the Right of the Child, “[t]he use of deprivation of liberty has very negative consequences for the child’s harmonious development and seriously hampers his/her reintegration into society.”
[52] The secure treatment provisions are contained in Part VII of the Act under a section headed “Extraordinary Measures.” Section 164(1) of the Act provides that “[t]he court may order that a child be committed to a secure treatment program only where the court is satisfied that” the six criteria set out in the Act are met. [Emphasis added.]
[53] In this case, the child is First Nations. While not the focus of this case, it is worth highlighting that the preamble to the Act also contains acknowledgments from the Government of Ontario with respect to First Nations, Inuit, and Metis children. These acknowledgments end with the articulation of a commitment from the Government “to working with First Nations, Inuit and Metis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions.”
Criterion 2
[54] The wording of Criterion 2 is as follows:
164(1)(b) the child has, as a result of a 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.
[55] Since the application was commenced on March 28, 2024, the 45-day period commenced on February 13, 2024.
[56] The trial judge accepted that the onus was on the CAS to satisfy this criterion on the basis of “clear, logical and convincing evidence”, that it had to do so on a balance of probabilities, that the criterion had to be strictly complied with, and that the harm at issue had to be serious, “not trifling or superficial.”
[57] In this analysis I will be contrasting the wording in Criterion 2 with the wording in Criterion 3, the relevant portion of which reads:
164(1)(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…
[58] Criterion 3 may be satisfied by evidence of a threat to cause serious bodily harm. The same is not true of Criterion 2.
The Incidents Relied Upon by the Trial Judge
[59] The CAS led evidence of four incidents that they argued satisfied Criterion 2. The trial judge accepted that three of these incidents satisfied the criterion. It is accepted that the CAS only needed to lead evidence of one incident to satisfy Criterion 2.
The Bridge Incident
[60] The trial judge’s findings with respect to the bridge incident are summarized at para. 22 of these reasons. For ease of reference, that summary is reproduced again:
In March of 2024, a worker from the child’s group home received a text from the child that she was “in psychosis and hearing voices” and that she intended to jump from the Ivey Park Bridge. When the worker located the child she was at the downtown library. The worker and the staff who had accompanied her got the child into the car. According to the worker, the child appeared to be under the influence of drugs. Before the child could be secured in the car, she ran from the car and into the street where she was almost hit by another car. The staff then lost sight of her. The child was missing for several hours but returned to the group home later that night.
[61] At trial, the Society argued that both the running into traffic and the text about jumping off the bridge were incidents that met Criterion 2. As already noted, the trial judge found that the child did not have the requisite intention to cause herself serious bodily harm when she ran into traffic.
[62] The trial judge’s analysis with respect to the bridge incident appears at paras. 33 and 34 of his reasons:
[33] With respect to the bridge incident, the child’s counsel argued that without more information about what bridge ( the group home worker did not know where it was) or how high the bridge was, the Court cannot assess the child’s intent to cause serious bodily harm. However, the evidence does disclose, that, for months the child frequently complained about being in psychosis, having hallucinations and hearing voices. The child finds this condition very disturbing. There was evidence that she texted the group home worker that she was hearing voices and that she intended to jump from the Ivey Park Bridge. There is also evidence that is admitted, details of which follow below, that the child had attempted suicide in November of 2023 when she took an overdose of Tylenol. As noted already, she was involuntarily admitted in February 2024 for suicidal ideation. On the basis of this evidence, I find that child intended at least to attempt serious bodily harm to herself.
[34] As to the details of the bridge, I would find that it is a notorious fact that the Thames River runs through London, that many bridges cross the river, that one of those bridges is the Ivey Park Bridge near the Forks, and that jumping off it would cause serious bodily harm if not certain death.
[63] In paragraph 33, the trial judge focuses on the issue of intent and specifically whether, without knowing more information about the bridge, he could infer that the child had an intent to cause serious bodily harm. In that paragraph, he found that given the child’s current mental state, which disturbed her, the text to her worker and her previous history he was satisfied that “the child intended at least to attempt serious bodily harm to herself.” In paragraph 34, the trial judge went on to take judicial notice as to the details of the bridge so as to find that jumping off the bridge in question would cause serious bodily harm.
[64] The error in the trial judge’s analysis is that in order to find that she attempted to cause serious bodily harm the child must have taken some action in furtherance of her intent. In oral submissions, the OCL referred to the dictionary definition of “intent” in the Merriam Webster Dictionary, which defines “intent” as “intention or purpose” or “resolved or determined to do something.” Attempt, on the other hand, is defined as “the act or an instance of trying to do or accomplish something.” The CAS acknowledged, in oral submissions, that to constitute an “attempt” under Criterion 2, there had to be the requisite intent and there had to be evidence that the child acted in furtherance of that intent. In this case, there was no evidence that the child had taken any action in furtherance of her text message. There was no evidence as to where she was when she sent the text message to her worker or what she did between the time she sent the text and when she was located at a downtown library. In the absence of such evidence, it was an error of law for the trial judge to find that the bridge incident constituted an “attempt to cause serious bodily harm”. At most, it was a “threat”, which is defined in the same dictionary as “an expression of intention to inflict evil, injury or damage.” As already noted, “threats” are not sufficient to satisfy Criterion 2.
[65] Given this finding, there is no need to make any further comment regarding the judicial notice question. The analysis does not change even if the facts as found by the trial judge with respect to the bridge are accepted. It is also admitted that the trial judge should not have taken judicial notice of these facts without giving the parties an opportunity to make submissions.
The Drug Incident
[66] The facts as found by the trial judge with respect to the drug incident are also summarized at paragraph 22 of these reasons, the relevant portion of which reads:
A couple of days after the first incident, the child was observed snorting a white substance up her nose in her room at the group home. The child was told that she had to let staff know if she was using drugs in case she overdosed. The child responded, “you can’t OD on meth.” A search of the room revealed a bag of substance that the witness suspected could be crack cocaine, The police were called and the bag was confiscated.
[67] With respect to this incident, the trial judge began his analysis by distinguishing a case in which another judge had found that drug use is not serious bodily harm. The trial judge did so on the basis that in the other case the drugs used were not identified.
[68] The trial judge then made a finding that in this case he could identify the drug used on the basis of the child’s admission that it was “meth”. He then went on to find that “generally, such drugs are dangerous and, by experience, dangerous specifically to this child.” He made the finding about “meth”, in general, on the basis that it is “well known” and about this child, in particular, on the basis of her past history with drugs, the fact that she overdosed on Tylenol in November of 2023, as well as Dr. Sumiya’s evidence that when the child was hospitalized on that occasion, she was suffering from a substance induced psychosis. He also found that the child’s drug use had indirectly placed her in danger of serious bodily harm as evidenced by the injuries she suffered at the hands of a drug dealer she had failed to pay; a drug dealer who was still threatening her and who lived in the neighbourhood of the group home.
[69] Given this evidence, the trial judge found that this was not a case where it was necessary to find that the child had actually intended to cause herself serious bodily harm. It was sufficient to find that she intended to take the drug in question. In coming to this conclusion, he relied on the decision in McMaster v. L.R.U., 2019 ONCJ 496, where Starr J. stated:
[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.
[70] In McMaster, Starr J. was dealing with a child who had a number of mental disorders, including anorexia nervosa. One of the incidents relied upon to support Criterion 2 was an incident where the child was admitted to hospital due to medical instability as a result of low heart rate and significant changes in orthostatic heart rate. She had also burst a small blood vessel. At para. 93, it was noted the injuries were caused by her “repeated acts of restricting her food and fluid intake in the days and months leading up to her admission to hospital”. At trial, her counsel submitted that the trial judge could not find the necessary intent to commit serious bodily harm since the child’s intention was not to harm herself, but to lose weight.
[71] Starr J. accepted that the child’s specific intention was to lose weight but found that because of the evidence as to how her mental disorders impacted on her desire to live and her ability to exercise good judgment, looking at her specific intention was of little assistance. At para. 88, Starr J. noted that to determine her intention, it was necessary to
[L]ook at the collection and pattern of her behaviour, whether she knew or ought to have known that by continuing to engage in the behaviours the cumulative effect would be that she would cause herself serious bodily harm or bring about her death, whether she was aware that the chances these circumstances would materialize was very high, and, whether despite such awareness and knowledge, she chose to continue to engage in the self-harming behaviours.
[72] On the basis of the evidence before her, Starr J. concluded that this threshold had been met. In particular, the child had been repeatedly hospitalized for the same behaviour that in each instance resulted in serious bodily harm.
[73] In the case at bar, unlike in McMaster, there is no evidence that the specific behaviour at issue resulted in any harm whatsoever. There is no evidence as to what, if any consequence, the child suffered after ingesting the drug in question. There is also no evidence as to the risks posed by methamphetamine, the quantity required to actualize those risks, or the quantity ingested by the child. Finally, there was no evidence about the child’s previous exposure to methamphetamine that would make it appropriate to infer anything about her knowledge of the harm it could cause her.
[74] In the absence of any “clear, logical and convincing evidence” of serious bodily harm or the risk of serious bodily harm, it was an error in law for the trial judge to find that the drug incident satisfied Criterion 2.
The Suicidal Ideation Incident
[75] The trial judge’s reasons in relation to this incident are:
[40] The final incident occurred February 18, 2024, within the 45-day period when the child was involuntarily admitted to hospital because of suicidal ideation. She has said she wanted to die. Dr. Abramson discharged the child later that day once she had stabilized. The fact that she was released the same day does not detract from the seriousness of the event. As Dr. Abramson stated, the function of the hospital is containment. Once the child stabilized, she was discharged.
[76] It was not an error for the trial judge to conclude that the event was serious. However, in the absence of any evidence as to any action taken by the child on that occasion (or any occasion during the 45 days preceding the application) in furtherance of her desire to die, it was an error for the trial judge to conclude that this incident qualified as an “attempt to cause serious bodily harm.” Like the first incident, this incident amounts to no more than an intent or threat.
Conclusion
[77] For these reasons, I find that the trial judge erred in finding that the Society had met its onus to satisfy Criterion 2. In view of this conclusion, his order committing A.R.S. must be set aside and it is so ordered. This is not a case where anyone is seeking costs.
Sachs J
I agree _______________________________
Matheson J
I agree _______________________________
Davies J
Released: July 18, 2024
CITATION: A.R.P. v. Children’s Aid Society of London and Middlesex, 2024 ONSC 4023
DIVISIONAL COURT FILE NO.: 020/24
DATE: 2024/07/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Matheson and Davies JJ.
BETWEEN:
Children’s Lawyer for Ontario, on behalf of the child, A.R.P.
Appellant
– and –
Children’s Aid Society of London and Middlesex.
Respondent
REASONS FOR JUDGMENT
Sachs J.
Released: July 18, 2024