2018 QCCQ 8260, 2018 QCCQ 8260

Protection de la jeunesse — 187666 2018 QCCQ 8260 JN 0300 COURT OF QUÉBEC YOUTH DIVISION CANADA PROVINCE OF QUÉBEC DISTRICT OF [...] No: 525-41-026771-139 DATE: October 4 th , 2018 ______________________________________________________________________ PRESIDING JUDGE: THE HONOURABLE JACQUES A.

NADEAU, J.C.Q. ______________________________________________________________________ IN THE MATTER OF: X Child (born on [...], 2007) ______________________________________________________________________ THE DIRECTOR OF YOUTH PROTECTION A, Director and B, Mother and C, Father and COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE , Commission ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR A DECLARATION OF A VIOLATION OF THE CHILD’S RIGHTS (Section 91 in fine of the Youth Protection Act ) ______________________________________________________________________

WARNING: The Youth Protection Act prohibits the publication or broadcasting of any information that may lead to the identification of a child or of his or her parents. Any person who contravenes this provision commits an offence and is liable to a fine (Sections 11.2, 11.2.1 and 135 of the Y.P.A. ). 1. THE CONTEXT [ 1 ] The Court must rule on an Application for a declaration that the child’s rights have been violated filed by the child’s attorney on January 26 th , 2018 pursuant to

Section 91 in fine of the Youth Protection Act . [ 2 ] Both the Commission des droits de la personne et de la jeunesse (hereafter, the « Commission ») and the Attorney General for Québec were duly served with this Application but only the Commission was represented during the hearing. [ 3 ] The Court has been seized of the situation of this child since 2012 and the undersigned has rendered no less than six judgments since November 2013 as a result of reviewing or extending protective measures for X.

As background information, it is useful to summarize the evolution of X’s situation leading up to the events which resulted in this Application being filed. 2. THE EVOLUTION OF THE CHILD’S SITUATION [ 4 ] As they were all admitted by the Director of Youth Protection (hereafter, « the Director »), the Court refers to paragraphs 1 to 30 of the Application : 1. The Applicant is the attorney of the child and acting in(sic) her behalf; 2.

Youth Court is presently seized with a Motion for Extension filed by a person duly authorized by the Director of Youth Protection B, (hereafter the Director), pursuant to subsection 95 (2) of the Youth Protection Act , to extend the orders rendered on February 17 th , 2016; 3. After hearing the testimony of the social worker at the hearing held on October 12, 2017 Justice Jacques A. Nadeau, after consulting with the parties, ordered the child’s attorney to present a motion to declare that the child’s rights have been wronged; 4.

On that said date, Me Maud Jasmin was replacing the undersigned; HISTORY OF THE FILE 5. On March 12 th , 2012, the Honorouble Béatrice Clément J.C.Q. rendered, in the present case, in the district A a decision under

section 38 of the Youth Protection Act to the effect that the child be entrusted to the care of her mother with a social follow-up as well as other specific measures more fully elaborated in the Court’s file, the whole until March 12 th , 2013; 6. On November 25 th , 2013, the Honourable Jacques A. Nadeau J.C.Q. rendered, in the present case, in the district B a decision under

section 95 of the Youth Protection Act to the effect that the child be entrusted to a rehabilitation centre for a period of one year, with a prohibition of contact with her mother, that the frequency and modality of contacts between her and her father be determined by the Director, along with supporting measures, including aid counsel and assistance. The said order expired on November 25 th 2014; 7.

During said hearing, Justice Nadeau arrived at the conclusion that the security and development of the child, X, was in danger for the reasons set out in subsections 38 b) 1 ° I and ii (neglect of basic physical needs and neglect of health care), 38 c) (psychological ill-treatment), 38 d) 1° (sexual abuse), 38 e) 10 (physical abuse by the mother and

D) according to the Youth Protection Act ; 8. On November 24”, 2014, the Court was again seized with a Motion for Extension filed by a person duly mandated by the Director, pursuant to Subsection 95 (2) of the Youth Protection Act , to extend the orders rendered on November 25, 2013; 9. At that time, X was residing in a rehabilitation center, [group home A] where she had made significant gains, while receiving services from specialized caregivers; 10. Pursuant to the recommendations made by the Court in a previous hearing, X received services by Lyall therapeutic day program at the Douglas Hospital and weekly individual counselling with a psychologist;

11. During these sessions the child continued to express her fears regarding her mother and step-father, Mr. D; 12. Also at that time, X continued to demonstrate signs of trauma, avoiding sleep and becoming hyper-vigilant and disruptive in the evening or at bedtimes; 13. In the course of this hearing, the Court was informed that the mother was detained at Tanguay detention facility where she was facing five (5) separate charges in the Criminal Division of the Court of Quebec, related to the physical abuse inflicted upon X; 14.

The mother was sentenced to eighteen (18) months of incarceration for the assaults against X, with three (3) years of probation and interdiction of contact with her child for the same period of time; 15. At that point in time, even if X’s placement had reached the maximum period of placement under the provisions of the Youth Protection Act , the Court was not in a position to render a permanent order of placement due to the instability of the child’s situation; 16.

On January 20th, 2015 Justice Nadeau granted the Motion for extension presented by the Director, and declared that the security and development of the child was still in danger pursuant to the Youth Protection Act , and ordered that X be placed in a residential treatment program for a maximum period of six (6) months, with immediate integration to a foster family as soon as possible the whole for a period of one year; 17. On July 17, 2015, Youth Court was seized of an emergency hearing to extend reception center placement and the revision hearing was set before Justice Nadeau on August 25, 2015; 18.

Considering that the child was doing remarkably well in her new foster home with the support of her father, on August 25, 2015 Justice Nadeau ordered the placement of the child in a foster family as well as other specific measures more fully elaborated in the Court’s file the whole for a period of one year; 19. X was integrated on a full time basis in the foster home she had been introduced to in the Spring of 2015; 20. In mid-November 2015, the foster family traveled to Barbados for a wedding and they brought X with them; 21.

Incidents of behavioural issues involving X occurred during this trip and continued to escalate upon the foster family’s return; 22. Despite the involvement of two (2) educators, that where providing services to the foster family and some respite, the foster family was overwhelmed with the situation and requested the removal of the child from their home; 23. Unfortunately, on January 15th 2016 the Court was once again seized of a Motion for Revision filed by the Director pursuant to Subsections (sic) 95(1) of the Youth Protection Act , to revise the orders rendered on August 25, 2015; 24.

On February 17, 2016 X was placed yet again in a residential treatment program along with orders of aid, counsel and assistance and other measures more fully elaborated in the Court’s file which were in effect until February 17, 2017; 25. It is important to underline the fact that [Social Worker 1], social worker, was assigned to this child’s file on or around March 5th, 2013 until mid-September 2016; 26. [Social Worker 1] was able to create a significant bond with the child and could be considered as a stable and important person to X; 27.

Considering X’s trust issues, Ms. [Social Worker 1] was able to provide X with a form of continuity in her intervention and gain her trust through her years of involvement; 28. The dossier was temporarily assigned to Ms. [Social Worker 2] on November 1, 2016 until Ms. [Social Worker 1]’s return; 29. February 27 th , 2017, at the father’s request, Justice Nadeau granted a postponement allowing for the father to be represented; 30. On October 12th, 2017, the Honourable Justice Nadeau rendered interim measures entrusting X to the care of Mrs.

E, along with an order for aid, counsel and assistance and other measures more fully elaborated in the Court’s file which were in effect until February 7, 2018; (our emphasis) [ 5 ] As the Court itself pointed out at the outset in its written judgment of February 27 th , 2014 the case of this child is a most troubling one in that she exhibits extreme behaviours that are difficult to control, putting both herself and others at risk. [ 6 ] The following excerpt of this judgment relating to the grounds of endangerment of X’s security and development speaks volumes as to what this child went through when she was 5 to 6 years of age: [183] 3.2.1 Physical neglect and neglect of medical care [184] The reports filed in the court record, refer to X being malnourished, wearing inadequate clothing and having hygiene issues. [185] X was repeatedly observed with bruising, scratches and rashes on her body which the mother has been unable to explain or has not sought the appropriate medical attention for. [186] 3.2.2 Psychological ill-treatment

[187] The verbal and physical violence of both the mother and D to which X was exposed to in the family home, as well as her isolation in the floor compartment of the family vehicle during the trip to Toronto over the 2012 Christmas holidays constitute psychological ill-treatment pursuant to the Youth Protection Act . [188] 3.2.3 Sexual abuse [189] The evidence establishes that up to the time of her placement, X was living in a chaotic environment with both her mother and D consuming drugs heavily and having drug dealers in the family home. [190] The testimony of [Social Worker 3], the drawings filed under Exhibit D-29, as well as Y and X's involvement in the Marry Me game are evidence that X was subject to gestures of a sexual nature by either her mother and Mr.

D which she may have observed or another person.

As the Director's attorney pointed out, the identity of X's abuser does not have to be confirmed to retain this ground of endangerment. [191] Not only did X tell Mrs. [Social Worker 3] that somebody touched her private parts, but Mrs. [Social Worker 4] testified as to the disturbing sexualized behaviours which X exhibited in the [group home B] , which are further evidence of X being subjected to such abuse. [192] 3.2.4 Physical abuse [193] Not only was X smacked by her mother (to use the mother's own expression), but the evidence shows that she was hit with a closed fist by D. [194] Moreover, the bruises and cigarette burns on X as well as her confinement in the floor compartment of the family vehicle referred to previously also constitute physical abuse pursuant to the Youth Protection Act . [195] 4.

THE RECOMMENDED MEASURES [196] X has been described as a severely traumatized child by most of the interveners who testified at the hearing. [197] The process of stabilizing the child will require not months but years. [198] She must receive all of the required medical, educational and therapeutic services resulting from her situation , including those set out in the recommendations of the psychiatric assessment completed by Dr. Helen Cvejic dated May 7, 2013, which was filed as Exhibit D-17. [199] In the circumstances, based on the evidence, the Court prohibits any contacts between X and her mother as well as D.

The eventual resumption of contacts of X with her mother will be conditional on the latter's proving to the Director that her situation has evolved sufficiently and that such contacts would be in X's interest. (our emphasis) [ 7 ] In its written judgment of March 10 th , 2015, the Court refers to X’s verbalizations during her placement that she is afraid of her mother and that the latter could come and get her to harm her. [ 8 ] A number of months later, in its written judgment of November 9 th , 2015, the Court notes that after a few very difficult years for X, she is showing marked signs of improvement but still requires specialized services to address and structure her behaviour, trauma and emotional delays. [ 9 ] Unfortunately, the child’s foster home placement subsequently unravels during a trip to Barbados in the fall of 2015 as does a second foster home placement attempt in the spring of 2018. [ 10 ] In addition to these two foster settings, X has been placed in the following environments since the Court removed her from the care of her parents: ➢ January 10 th , 2013: entrustment of X to a confidential foster family ➢ February 19 th , 2013: placement of X in a rehabilitation centre confidential with respect to the parents – [group home B] ➢ October 2013 : transfer of X to the [group home A] Unit due to the higher level of structure required by the child ➢ July 31 st , 2015 : integration of X to a new foster home ➢ January 15 th , 2016: placement of X in a rehabilitation centre ([group home C]) ➢ July 25 th , 2016: transfer of X to the [group home A] Unit due to higher level of structure required by the child ➢ October 12 th , 2017: entrustment of X to Mrs.

E ➢ May 1 st , 2018 : entrustment of X to a rehabilitation centre ([rehabilitation centre A]) [ 11 ] The Court also finds it useful to summarize the assessments which have been made of X’s situation over the course of time.

3. THE ASSESSMENTS OF THE CHILD [ 12 ] The social worker assigned to the situation of X from January 2013 to the fall of 2017 was Ms. [Social Worker 1].

She describes herself as an important person for X at various times over the years as she represents the child’s connection to her mother. [ 13 ] She describes three faces or sides to X, namely that of a regular kid, the manic side when she is in crisis (when she smiles) and finally, when she exhibits her worst behaviours, she has dark eyes and looks mean. [ 14 ] Mrs. [Social Worker 1] identifies the bathroom and bedtimes as triggers for the child. [ 15 ] The Psychiatric Evaluation of May 10 th , 2013 completed by Doctor Helen Cvejic and filed as Exhibit D-17 at the time of the fall 2013 Court hearings contains the following

Summary and Diagnosis:

SUMMARY Six year old girl with history of severe physical and possible sexual abuse. She presents with attention concentration and oppositional behavior. She could be severely impulsive. She is severely traumatized by life experiences. She draws figures at a primitive level. She has shown good ability to recuperate and develop skills in group home. DIAGNOSIS Axis I Separation anxiety disorder

(309.21) Rule out attention deficit hyperactivity disorder, hyperactive impulsive type

(314.01) Rule out post-traumatic stress disorder Axis II Nil Axis III To be followed by her pediatrician, Dr. Munz Axis IV Severe early childhood, abuse and trauma Axis V GAF 50, serious symptoms (at page 2 and 3 – our emphasis) [ 16 ] In addition, the Confidential Trauma Assessment Report conducted by psychologist Wendy Lewis in the summer of 2013 when X was six and a half years old was filed as Exhibit D-28 at the time of the Court hearing of the first Motion for Revision . [ 17 ] The following excerpt is from the Clinical Observations and

Summary at the end of this Report : X’s history is one of pre-verbal, chronic and complex trauma. These traumas include poor attachment, exposure to physical and possible sexual abuse, a chaotic home environment and neglect. There have been disruptions in X’s emotional development so that her emotional maturity is stuck at 18 months-3 years of age. X exhibits behaviour disturbances related to difficulty with affect regulation and autonomic hyperarousal in response to anxiety of perceived threat.

X exhibits poor impulse control and poor self-regulation and acts out aggressively towards others, destroys property and runs away from caregivers putting herself at risk. Some of these behaviours may be in response to perceived threat at the most basic level. Psychological hyperarousal interferes with her capacity to concentrate, reflect and learn from her experiences. Poor affect regulation may displays as symptoms of Attention Deficit Hyperactivity Disorder. X presents with symptomatology consistent with a preverbal trauma profile.

The effects of preverbal trauma are displayed through her sleep disturbances, nightmares, anxiety when alone, during transitions and in unpredictable situations. Urination and defecation in extremely anxiety-provoking situations demonstrate high arousal (fear) and self-protective behaviours (aggression). X uses dissociation and «tunesout» at times, she may be feeling overwhelmed and needs to distance herself form the situation that has triggered her.X strives to get the attention lacking in her attachment relationships.

X exhibits sexual behaviours more consistent with a preschool child, including curiosity-based sexual interest, looking, touching, self-stimulation and exhibitionism.

She may also be exhibiting sexual re-enactment behaviours related to prior sexual victimization and trauma. (at pages 15 and 16 – our emphasis) [ 18 ] The Court also deems it relevant to refer to the Environmental Interventions recommended in this Report : Environmental Interventions 1) Providing consistent assignment of educators daily may help decrease her anxiety, increase predictability of her environment and support attachment process. 2) Safety needs must provide foundation for any other interventions. Helping X to learn self-soothing strategies.

3) Identification of early arousal stages by staff in order to be able to interrupt the escalation of hyperarousal. Engage rather that isolate. 4) Avoid physical restraint (if #1 above is accomplished then this is more possible). 5) Enabling X to change activities or experiences would be more helpful than to ask why she is behaving in a certain way.

The goal is to give the brain a different outcome. 6) Regularly established one-on-one time for X with an adult helps to build on her attachment needs. 7) Sight supervision in a highly structured environment where appropriate behaviour can be modelled inappropriate behaviours redirected and interventions can be immediate. (at pages 16 and 17 – our emphasis) [ 19 ] As the Director of Youth Protection, Ms. [Social Worker 5], mentioned in her testimony, the goal with a child like X is to unlearn and re-educate her with healthier attachment models and the development of a better and healthier sense of sexual development with the use clinical tools such as the RABBIT program. [ 20 ] X also began art therapy sessions on a weekly basis with art therapist Amanda Power who had the benefit of reading the child’s file including the Trauma Assessment Report . [ 21 ] Art therapy is a forum which allows X to explore art materials and combine her creative as well as verbal expression.

Ms. Power acts as a witness and guide to bring insight and meaning into the child’s activities. [ 22 ] Trust is established through routines and rituals during the sessions. At the beginning of her therapy X did not have much capacity to identify and understand her emotions, nor could she self-regulate by exhibiting coping skills to manage her feelings. [ 23 ] Ms.

Power has met with X on over sixty occasions since November 2016 and confirms that the child has shown measurable progress over the course of this period. [ 24 ] At a later stage in this judgment, the Court will address the issue of how X’s art therapy was impacted, if at all, as a result of the incidents giving rise to this Application . [ 25 ] With the benefit of this portrait of the overall evolution of X, the Court now turns to the three incidents on which the present Application is founded. 4.

THE THREE INCIDENTS AT THE [GROUP HOME A] UNIT [ 26 ] The Court essentially retains the following elements from the documentary and testimonial evidenced adduced by the parties during the hearing of the Application . 4.1 The [group home A] Unit on the [Campus A] [ 27 ] The Coordinator of Residential Services for the Director, Ms. [Social Worker 6], explains that the children placed at [group home A] are between 10 and 14 years of age and are usually subject to 6 to12 month court orders requiring a high level of structure.

They can exhibit highly aggressive and sexualized behaviours as well as psychiatric disorders. [ 28 ] Ms. [Social Worker 6] is involved in access and is aware of individual cases through the case management meetings which are held every month. She is in regular contact with the children as her office is located on the [Campus A]. [ 29 ] [Group home A] is a second line supervision unit which has the highest staffing contingent. Children need to be in sight at all times and the staff need to know where they are at all times.

Both the bathrooms and the bedrooms are locked at all times when the children are not there. Bathroom doors are sometimes left open by error.

The children have to ask staff when they want to go to the bathroom. [ 30 ] She met X for the first time in February 2013 when she was placed at [group home B] and describes her as highly problematic, aggressive with other children and staff, running into other children’s rooms and having issues at bedtime. [ 31 ] In 2016, X had to be restrained 3 to 4 times a day and was wearing out the staff on the unit. [ 32 ] At the time of the three incidents described below, the intervention model was based on a behaviour modification approach. 4.2 The incident of November 18 th , 2016 [ 33 ] The Signalement Report dated December 15 th , 2016 relating to this incident was filed as Exhibit LD-1. [ 34 ] The following excerpts from this Report are relevant: On December 14th, 2016, X and a ten and a half year old male resident of the unit were interviewed by a Youth Protection delegate as they had admitted to having engaged once in sexual activities at [group home A].

The children said that the boy went to X’s (sic) bedroom one evening, and he told her he would come back once the staff went to the bathroom. The boy returned to the room later and the children closed the door. He instructed X to lay on the bed, to keep quiet and not to tell staff. The youngsters admitted to exposing their genitals and touching one another , and they were separated to be interviewed separately.

During her interview, X said that the boy laid on top of her with his penis exposed. Her pyjama parts were pulled down but she said she could not remember whether she had her underwear on and if her genitals were exposed. She indicated that they had sex twice that evening. Asked to explain what she meant, X said that the boy put his penis on her buttocks and that he wanted to insert crayons in her vagina, but she said “no”. As for the boy, he said that they were both naked and he admitted that they had sex, and explained he inserted his penis inside X’s vagina while they were in bed.

The boy said it took several attempts because X kept wiggling away. (…) Collateral information: [Social Worker 7] - Manager at [group home A] The allegations were discussed with Ms. [Social Worker 7] on December 15th. The manager said the incident occurred on November 18th, 2016 (although the staff were not aware at the time). Another female resident was suicidal that evening and the regular staff accompanied her to the hospital. There were two recall staffs on the floors, but two more staffs were called in because the children were very agitated.

One staff heard a noise coming from the nine year old girl’s bedroom and went to investigate, and Z was found hiding under the bed behind a huge stuffed animal. Both children denied that something happened. Ms. [Social Worker 7] said that they have been monitoring Z very closely since he disclosed on December 14th. Decision: X engaged in sexual activities with a ten year old. She needs to be closely monitored by the unit’s staff but there is no need for a new DYP intervention. The signalement is therefore not retained for evaluation under the

Article 38F of the Youth Protection Act . (at pages 1 and 2 – our emphasis) [ 35 ] The Court also refers to the following excerpts from the Chronological Notes filed as Exhibit LD-E-2: 2016-12-08 Discussion clinique [SOCIAL WORKER 1] [group home A] [Social Worker 8] attends team meeting for an update and to discuss X’s situation following return from sick leave. Recently, X has regressed somewhat (rude, load (sic), whiney, defiant around routine and running around.) She has begun seeing Amanda Powers (Art and Play therapist around a month ago and X enjoys these sessions.

Discuss the incident that occurred with another male client in X’s room. Staff are unaware as to how long they were alone unsupervised in X’s room but the male client is known for sexualized behaviours and X was found in the bed with client hiding under bed. Since [Social Worker 8] was not involved in the discussion with X, [Social Worker 2] will meet X and other client and his [Social Worker 8] next week (Dec. 14) rather than the delegate. Team is in agreement. Discuss school.

They require signature for documents (psychiatric, psychological, psychoeducational etc…) in order to look at X’s acadmeic (sic) coding once again. 2016-12-16 Entrevue autre milieu [Social Worker 2] X & other resident This worker meets with X and Z (male client at [group home A]) in the presence [Social Worker 9] ([group home A] staff). We begin by meeting both children together. X explains that she and Z exposed their private parts to one another. Z confirms this. We ask Z to step out in order to meet with the children individually.

X explains that Z came to her room stating that he would come back once the staff went to the bathroom. He later came back and instructed her to lay on the bed, to be quiet and not to tell staff. She says that Z layed on top of her with his genital exposed. Her pyjama pants were pulled down but could not recall if she had underwear on or whether her genitals were exposed. She referred to a «first time»; stating that Z layed on top of her more than once (within the context of the same event).

She says that both touched each other’s private parts, that Z put his penis on her bum (not inside) and that AZ wanted to put crayons inside her vagina but she said no. [Social Worker 9] and I then meet with Z. He says that they touched each other’s genitals and that he layed on top of X and both he and X were naked. He inserted his penis in her vagina but this took many attempts as she kept wiggling away.

According to Z, nothing else happened. (pages 2 and 3 – our emphasis) [ 36 ] At the time, X was 9 years old whereas the other youth involved, Z, was ten years old. [ 37 ] An email of December 16 th , 2016 sent to the other youth’s social worker by the Manager at [group home A] was also filed as Exhibit LD-5. [ 38 ] This email refers to both the safety and therapeutic clinical measures put in place to deal with Z’s sexualized behaviours.

It confirms that all staff members are alerted to be hypervigilant in supervision and awareness as a result of Z admitting to and acting on opportunities to go into other youth’s rooms. Given that he was found in X’s room and seemed to be the initiator, he was to be put on an arm’s length program for the following 3 weeks. [ 39 ] Although she recognizes it was not appropriate, Ms. [Social Worker 6] describes this incident as sexualized play, whereas the Director of Youth Protection, Ms. [Social Worker 5], qualifies it as problematic sexual development.

The latter adds that this incident was unacceptable and that Z getting into X’s room should have been prevented. [ 40 ] Ms. [Social Worker 6] confirms that X and Z had become fast friends when they had been placed together from March 2014 to July 2015. They reconnected at [group home A] in July 2016 until November 2017. She describes them as having a sibling love-hate relationship. They are two severely abused children with complex, multiple and prolonged trauma.

[ 41 ] As a result, Ms. [Social Worker 6] points out the need to reinforce procedures and to remain hyper vigilant given the fact that there were a lot of recall staff on the unit at that time (two on the night of this incident). She refers to the period of September 2016 to January 2017 as a problematic one at [group home A]. [ 42 ] X’s social worker at the time of this incident, Ms. [Social Worker 1], was on leave at the time and had no input. Upon her return, she was appraised of the situation and reports that X verbalized a lot of confusion in this regard as she could not manage boundary issues approximately.

The child told Ms. [Social Worker 1] that she did not want to have sex with Z nor did she want him to touch her. [ 43 ] In the Chronological Notes filed as Exhibit LD-E-2, at page 5, Ms. [Social Worker 1] refers to X’s inappropriate disruptive behaviours on the unit in her entries of January 26 th and February 5 th , 2017. [ 44 ] Moreover, in her entries of January 26 th (page 5) and February 17 th (page 7), Ms. [Social Worker 1] indicates that for the first time, X was verbalizing negative things about [group home A] and not wanting to be there and to go home. [ 45 ] There was a discussion about moving X but it was decided not to do so given that she was doing well at [School A]. [ 46 ] Given Z’s recurring sexualized behaviours, other resources were considered for him but no place was available for him. [ 47 ] X’s art therapist, Ms.

Power, was not made aware of this incident and only found out about it in January 2017 when she came across some notes in the PIGE system. [ 48 ] This did not change X’s treatment plan as the child did not speak to Ms.

Power about it and the latter did not bring it up during their art therapy sessions. 4.3 The incident of May 30 th , 2017 [ 49 ] The Evaluation Report dated July 17 th , 2017 relating to this incident was filed as Exhibit LD-2. [ 50 ] The Court refers to the following excerpts from this Report : When describing the event concerned in the current signalement, X explained that a 10 year old boy was in the bathroom but she didn’t know and nor did the staff, he was supposed to be in his room. The light was closed when she went into the bathroom and saw feet and legs. X and the 10 year old boy were in PJs.

The 10 year told boy then began asking weird questions (X did not feel comfortable explaining what he said. They were questions about sexual things). X stated that she did not feel comfortable about the questions. She asked if this caseworker knew what happened This caseworker stated that she wanted to understand what happened so she could help her feel safe. X confirmed that the 10 year old boy touched her vagina and that he put his penis on her vagina and went inside. X did not touch the 10 year old boy. When he touched her she said stop and get away.

The staff at the time was in the unit but they did not know the 10 year old boy was in the washroom. X indicated that the staff was in the hail. The 10 year old boy took his pants and underwear off and he took off X’s pants and underwear. The incident occurred at 8:20 and transpired over 10 minutes. (…) CONCLUSION: This Evaluation concludes that X was sexually abused by another 10 year old resident at [group home A] Unit. Although the disclosures from each child are somewhat contradictory as to whether they planned to meet, X and the boy are clear that she told him to stop, but he did not.

He proceeded to remove their clothing, touched her vaginal area, and tried to insert his penis in her vagina. He was also coercive in promising her an MP3 player and fidget spinner to keep quiet. Given X’s history of trauma and victimization, she and the other similarly traumatized residents seem to seek out opportunities to be alone, and interact inappropriately in spite of the many safety and supervision plans put in place by staff and the residential unit.

Outside of the incident in question, X has talked about two other situations of being alone with boys from the unit, and another resident has disclosed an incident of touching X on the school bus. Furthermore X does not feel safe, and is rather accepting of her victimization, stating that it is her “role” with the boys in the unit as she is the youngest girl. Given the fact that X has been victimized again, she does not feel safe, and measures put in place by the residential unit have not kept her safe or secure, X’s security and development remain compromised under Art. Dl of the Youth Protection Act .

DECISION: In light of the above, the DYP considers the facts founded and believes the security and development of X compromised under

Article 38D1 of the Youth Protection Act . (our emphasis – at pages 2, 6 and 7) [ 51 ] The following excerpts from the Chronological Notes are also of interest: 2017-05-31 Téléphone [SOCIAL WORKER 1] [Social Worker 10] Manager of [group home A] [Social Worker 11] for [Social Worker 12] advising that yesterday, X met another client (male) in the washrooms and engaged in sex. X was able to tell staff that his penis was soft. Father was called. Karen Bentley, nurse was contacted and arranged a meeting at Centre Marie Vincent with Dr. Baltzer.

Doctor did not see the need for a physical examination due to the ages of both children. Ms. [Social Worker 7] advises that the incident has been signaled. Reportedly, the client in question promised X a Fidget and an MP3 player if she met him. She went but changed her mind and asked him to stop and he didn’t.

2017-06-01 Téléphone [SOCIAL WORKER 1] [group home A] Educator [Social Worker 11] advising that inthe (sic) evening X was removed 4 times to isolation room/NEST. He (sic) was hyper, defiant, difficult to settle, ripping her shirt, issues at bedtime as well. (…) 2017-06-06 Discussion Clinique [SOCIAL WORKER 1] [Social Worker 13], Ressources [Social Worker 12] speaks with [Social Worker 13] (sic) about Children needing homes. She wants an update on X. [Social Worker 12] presents a profile. She asks worker to come to present this update to the table of children needing homes.

Agree however, advise that thi sworker (sic)will be going to [School A] to have a discussion with E who had expressed interest in offering respite to X last year yet the agency advised it could not be done. This worker proceeded to get Ms. E authorized as a volunteer for X.

She has spent every Saturday since with her, bringing her to ballet. [Social Worker 12] is afraid if X remains any longer at [group home A], with two incidents that occurred with other clients of a sexual nature, coupled with her declining 2017-06-06 Autre [SOCIAL WORKER 1] Debriefing-[group home A] [Social Worker 12] attends a major debriefing meeting at [Campus A] for X and the staff working with two other clients that X has engaged in sexual activity with. This worker made a complaint to the commisioner (sic). [Social Worker 7] is advised that thi sworker (sic) will be meeting the father after this meeting.

She offers a sheet with safety plan and changes that will be made to ensure his daughters safety. E/O worker [Social Worker 14] asks this worker to discuss withthe (sic) father if he will be willing to meet with her about the signalment (sic), his concerns etc… (Exhibit LD-E-2, pages 22 and 23 – our emphasis) [ 52 ] This second incident warranted a Major Incident Review Meeting which was held on June 6 th , 2017, the minutes of which were filed as Exhibit LD-6. [ 53 ] The following

summary of the facts as well as points discussed and reviewed during this meeting are of particular interest: Educator 2 knocked on his bathroom door and A walked out wearing his robe, fully dressed looking scared and confused. It was discovered he was in the same bathroom at the same time as X. Both children were taken to the nest by Educator 2 and the campus support worker for individual processing. At first he stated he fell asleep in the tub and didn’t know X was there. A few minutes later, he admitted to preplanning with X to meet in the washroom.

A admitted to putting his penis in her vagina and that at one point she asked him to stop but he did not want to. He promised her an MP3 player, which he said he was not really planning to give to her. He also disclosed to Campus Support worker that before Christmas, Z snuck into his room to have anal sex with him. When asked how he felt about this evening’s event, he stated he was sad because he would lose his privileges at home. A was brought to the Nest and processed. (…) At 8:30 p.m. Educator 2 was opening the bedroom doors for bedtime story and discovered that X was not in her room.

Educator 2 called out for her and she said she was in the washroom. She was asked to come out which she did, and went straight to her room. Educator 2 discovered that A was also in the same washroom as X. He looked scared and confused. X and A were taken to the nest area and processed individually by both Educator 2 and campus support worker. X disclosed that she and A preplanned to meet in the bathroom. She stated he put his penis in her vagina, and that his penis was not hard. She also disclosed that he bribed her with a Fidget Spinner and MP3.

X was brought to the Nest and processed. (…) POINTS DISCUSSED AND REVIEWED ❖ A later admitted to worker that he had similar incident with Z around Christmas where he has sex with Z on the unit. When asked, Z denied that anything occurred between him and A. (…) ❖ A and X share the same bathroom. (…) ❖ [Social Worker 6] explains that a majority of the youth (including the three youth involved in this incident) in the [group home A] unit are victims of sexual abuse and very often their reactive behaviours surface sexually.

The staff at [group home A] understand that they need to provide a safe, secure and structured setting for these youth, however, the reality of group leaving (sic) is that sometimes it does happen and our goal is to examine ways to incorporate different structures to prevent future incidents from happening. ❖ [Social Worker 15] stresses the importance that safety measures and procedures be visibly posted for all staff to see . (at pages 2 and 3 – our emphasis) [ 54 ] This second incident involved X, ten years of age, and another youth by the name of A, also 10 years old at the time. [ 55 ] Ms. [Social Worker 6] states that the agency’s response to this incident was to conduct a thorough review of the program at [group home A].

There were a lot of recall and transient staff at the time, only 33% of the staff having regular status.

[ 56 ] With respect to this incident which she qualified as an abuse because of the coercion applied on X, the Director of Youth Protection, Ms. [Social Worker 5], asserts that she was appalled, angry and sad after being advised of what transpired and that it should never have happened. [ 57 ] In addition to the Major Incident Review Meeting , she requested a review of X’s file and attempted to understand what happened in the system. [ 58 ] What became evident was that there was a lapse of time during which no supervision was present.

The unit was struggling with a lot of recall staff who did not have a full grasp of the children’s needs and had difficulties in following the safety plan rigorously. [ 59 ] The readaptation team realized that a clinical programming change needed to be made given the needs of the children. [ 60 ] Indeed, the evolution of the complexity of the children integrated to the [group home A] Unit results in the importance of this programming being reflective of their respective history and trauma impact. [ 61 ] According to X’s social worker, Ms. [Social Worker 1], X did not agree with this experience and had a strong reaction to it, as evidenced by her Chronological Notes of June 1 st . [ 62 ] Ms. [Social Worker 1] herself filed a complaint to the Commissioner to examine the supervision at [group home A].

She explains that she was frustrated after the second incident and that given that the father would not file a complaint at that time, as an advocate for her clients, she felt that this was in X’s best interest to obtain the services she requires. [ 63 ] The social worker also observed the following on July 7 th , 2017 after entering the [group home A] Unit: 2017-07-07 Entrevue CR-RI [SOCIAL WORKER 1] X Upon entering the unit, it is observed that X is in the unit with only 2 other children (both clients that she was involved in sexual acts with.

Will speak to manager (…) 2017-07-07 Discussion clinique [SOCIAL WORKER 1] [Social Worker 16] Also advise that X was at [group home A] today with her two abusers. The only children in the unit. Inappropraite (sic). (Exhibit LD-E-2, pages 26 and 27 – our emphasis) [ 64 ] Ms. [Social Worker 1] informed one of the staff members present that the projected bike ride for all 3 children together sent the wrong message to them and was very confusing for her. [ 65 ] The social worker testifies that after the second incident involving A, X asked her if she was going to keep looking for a foster home for her.

X added that maybe Ms. E (

E) would take her. Ms. [Social Worker 1] specifies that sadly enough, X sees herself as an object that somebody has to take. [ 66 ] X’s art therapist, Ms.

Power, was made aware of this incident in early July and no change was made to the child’s treatment and therapy, although consideration was given to X benefiting from cognitive behavioral therapy. [ 67 ] The following excerpts from the Chronological Notes filed as Exhibit LD-E-2 are also relevant: 2017-07-31 Consultation professionnelle [SOCIAL WORKER 1] [group home A] Team meeting (…) Amanda Power expresses concerns with regards to the changes that are coming in staff. Provides an update on X’s progress in therapy. X is proud of her own progress. She has done well on self-regulation work that they have done.

The emotional piece is the next step. At the beginning of therapy, X required alot (sic) of structure. She has evolved and now can manage more free time. She is more able to tell you why she made certain choices. Therapy is a mix of art and play therapy. Following the incidents that took place with X and other clients, Ms. Powers noticed a change in X immediately. She appeared numb and was seeking out closer proximity with Ms. Powers. She was not aware of these incidents until after thus might have responded different to X. (…) (Exhibit LD-E-2, page 30 - our emphasis) [ 68 ] Ms.

Power confirms that X’s ability to communicate in the context of art therapy has evolved positively over the course of time. 4.4 The incident of August 14 th , 2017 [ 69 ] The Evaluation Report dated September 13 th , 2017 relating to this incident was filed as Exhibit LD-3. [ 70 ] The Court refers to the following excerpts from this Report :

X stated that on the day in question, she was playing hide and seek with Boy2 (11), girl (13) and the 11 year old boy. X was walking around trying to hide and went next to a big tree that had fallen down. She then had to come back to the quad area. Girl (13), the 11 year old boy and Boy2 (11) were hiding in the bushes near [Centre A]. X was then asked by the 11 year old boy if she wanted to have sex. She was asked 1 time and there was no touching of a sexual nature. The 11 year old boy touched X’s leg to make her fall down, He then let go and went to the door.

X saw [Social Worker 17] (intervention agent) and ran to him. The event occurred after dinner and there was 3 staff at [group home A] and 4 children. Ms. [Social Worker 18] ([group home A] unit educator) had gone to the nest and the other two staff were outside (X could not recall their names). X explained that she was reactive and was sent to the nest where she was able to explain what occurred and that she did not feel comfortable.

X explained that she is not allowed to play alone with the 11 year old boy and the staff makes sure of that. (…) Ms. [Social Worker 19]- [Centre B] Staff (…) Ms. [Social Worker 19] indicated that she heard from other staff in passing about the children in the unit’s behaviours but was not told formally. On August 14, 2017, she was not given any specific instructions regarding the children at [group home A] and was told to keep an eye on them.

Ms. [Social Worker 19] believes that the [Centre B] staff should be given more information and be spoken to more as they are not necessarily used to the children in the unit. Ms. [Social Worker 19] stated that in the past when children were put on “arms length” she has respected it and will be more careful knowing the children’s behaviours. [Social Worker 20]- Recall staff Ms. [Social Worker 20] indicated that she took the children out and sat on a picnic table by the gazebo in the quad. The children were playing hide and seek. Ms. [Social Worker 20] left early and switched off with [Social Worker 21].

Ms. [Social Worker 20] indicated that she has not been at the unit since June 20th and knows that issues have arisen at the unit but was not notified to not leave the children in question alone. Given it is level 2 supervision she knows not to leave the children alone and they must be supervised but she did not receive any type of special instruction. [Social Worker 22]- [Centre A] staff Ms. [Social Worker 22] stated that she was sitting in the office at [Centre A] on the computer typing and noticed the children playing through the corner of her eye.

The 11 year old boy was between the ramp and the wall and X was on the railing. As Ms. [Social Worker 22] was walking to go towards the window, she saw The 11 year old boy grab X by the crotch. She looked around and saw [Social Worker 23] (unit staff) coming and the children ran away. When [Social Worker 23] came in Ms. [Social Worker 22] asked if he saw what happened; but he could not as his back was to the children.

Ms. [Social Worker 22] stated that the children should not be playing where they were. (…) CONCLUSION: The Evaluation concludes that X was exposed to an advance of a sexual nature by the 11 year old boy, which is not the first time. Given X’s history of sexual abuse and trauma, she is particularly vulnerable to acts of a sexual nature. X has been able to state that she felt uncomfortable with being asked to have sex and became reactive following the incident. In accordance with

Article 38D1 of the Youth Protection Act (sexual abuse) X has been subjected to a sexual gesture without physical contact. The behaviour of the 11 year old boy is considered inappropriate and imposed on X. At this time, [Director of Youth Protection B] have taken the steps to immediately address the situation and moved the 11 year old boy to another unit, As a result, X’s security and development is not considered compromised under

Article 38D1 of the YPA (for the current signalement). (…) (… ) Although a safety plan included arms length supervision for X, it was not being implemented at the time of the incident. Given the children were being supervised; the security and development of X is (sic) not considered compromised as a result of

Article 38b iii of the YPA. Measures must also be taken within the Readaptation units and group homes in order to ensure the educators and the staff are aware of the particular behaviours expressed by the children placed in our care. DECISION: In light of the above, we consider the facts founded for

Article 38D1 of the Youth Protection Act and believe the security and development of X not compromised as [Director of Youth Protection B] have the internal mechanisms to address the situation and X is currently receiving services for similar issues. Additionally, we considered the facts not founded under

Article 38b iii of the Youth Protection Act, (at pages 1 to 6 – our emphasis) [ 71 ] The following excerpts from the Chronological Notes (Exhibit LD-E-2) are also of interest: 2017-08-15 Discussion clinique [SOCIAL WORKER 1] [group home A] Educator, [Social Worker 24] contacted [Social Worker 12] advising that there was another incident between X and another client. (sic) reportedly, X and the other client were outside and he touched her leg then arm and asked her to have sex with

him. X reportedly said No, became anxious about this interaction and went to staff to advise them herself. (…) 2017-08-16 Discussion clinique [SOCIAL WORKER 1] [Social Worker 25], RTS RTS social worker, Ms. [Social Worker 25] contacts [Social Worker 12] to advise that the incident with X and another client was signaled . She asks a few questions to clarify. Not udnerstanding (sic) how this occurred again since measures were put in place to keep X safe (sight supervision of other lcient (sic) as well as X, never to be alone together etc…) referring to document prepared by [group home A].

The other child will be moving from this unit tonight.

Ms. [Social Worker 25] advises that [Centre A] spotted the child and X outside unsueprvised (sic) and the boy had his hand between his legs on her vagina so she confirms that the signalement is retained under lack of supervision 38 b) 1 iii and under Di (…) 2017-08-16 Discussion clinique [Social Worker 26]-SAC [Social Worker 27], [Social Worker 28], [Social Worker 29] Met to discuss the institutional abuse investigation. [Social Worker 29] (sic), [Social Worker 30], [Social Worker 7], [Social Worker 31], [Social Worker 32] [Social Worker 6] were present to go over allegations and discuss the plan to evaluate the signalement. [Social Worker 7], Program Manager confirmed that X is at arm’s length in terms of supervision and will remain.

Ms. [Social Worker 7] reported that both youth involved did not claim innappropriate (sic) touching but both admitted that X was asked repeatedly to have sex by other child. One [group home A] staff ([Social Worker 33]) saw X being grabbed by the crotch. During this time the situation was chaotic and the children were running around rying (sic) to get away from staff. [Social Worker 6] reviewed the cameras and confirmed chaotic nature of situation. Mr. [Social Worker 29] confirmed that the Supervision piece was being evaluated at this time and appears to be a major issue.

It was stated during meeting that Risk Management [Social Worker 15] from CIUSSS was asked to join meeting but was not available. She had been part of process in the past. she (sic) had asked that rules be listed somewhere for staff to follow . Ms [Social Worker 7] affirmed that a major restructuring was in ordr (sic) and concerns are real. She went on to add that the youth involved were very disorganized when they came in . they (sic) were interviewed by staff. Ms [Social Worker 27] Program manager at DYP offered that these children have been interviewed many times.

According to Ms [Social Worker 7], the chaos continued through the shower times. 3 children ended up being removed from the unit. X was doing cartwheels, staff chasing her, encouraging those around to riot, laughing, screaming, calling people names, trying to hug staff. «X had asked for a meeting because she felt uncomfortable» according to Ms [Social Worker 7]. She insisted nothing else happened. X will talk when coaxed according to Ms [Social Worker 7] and has lied. Is straightfaced and capable of lying. Says that X is needy and craves one on one attention. She appeals to people and people want to save X.

Worker and others agreed that X is in survival mode and has suffered tremendous trauma and that this behaviour is to be expected given her profile. (at pages 32 to 34 - our emphasis) [ 72 ] This third incident also involved Z, then 11 years of age, who was also involved with X in the first incident. [ 73 ] The social worker, Ms. [Social Worker 1], was nervous and upset after the third incident and believed that further to her discussion with the evaluation – orientation worker, Ms. [Social Worker 14], the signalement was deemed to be retained.

She reiterates that she just wants X to obtain the services which she needs. [ 74 ] X would bring Z up in their regular conversations and according to Ms. [Social Worker 1], the fact that they were living on the same unit, eating and doing activities together created further boundary issues for X.

The latter even told her that the reason that the boys were doing this to her was that the older girls would say no. [ 75 ] The Coordinator for Residential Services, Ms. [Social Worker 6], confirms that Z was moved to [Group Home D] permanently on the evening of the third incident. [ 76 ] The revamping of the clinical program model towards a new relational based approach (Connecting to Kids, Circle of Courage) began in August 2017.

The new trauma informed care model involved a very individualized approach with an emphasis on attachment self-regulation competencies to help the children move forward. [ 77 ] The educators were given training on this model which was implemented at the [group home A] Unit in February 2018. [ 78 ] Ms. [Social Worker 6] recognizes that there were staff turnover issues during 2017 and that the personnel tried their best to keep the children separate and apart.

She owns up to the fact of what happened. [ 79 ] The Director of Youth Protection, Ms. [Social Worker 5], admits that there was a lack of appropriate supervision, as well as a

lack of understanding of procedures and safety plans during all three incidents.

She also recognizes the lack of judgment of the staff of letting the children play a game of hide and go seek or tag during the third incident. [ 80 ] As for the possibility of moving the children to another unit, given his needs and the resources available, Ms. [Social Worker 6] reports that Z could not be transferred before July 2017 and when he was eventually sent to [Group Home D] in August, a constant shadow was assigned to him. [ 81 ] As for X, Ms. [Social Worker 5] explains that given the fact to that she had been placed in many resources and had attended many schools, moving her to another centre would be challenging for her and would cause her more trauma. [ 82 ] X’s art therapist, Ms.

Power, was informed of the third incident by the staff at [group home A]. She did address it with X who wanted to move on and not elaborate on it. Ms. Powers adds that it is very rare for X to bring other children in their exchanges during their sessions. 5. THE RELEVANT STATUTORY PROVISIONS [ 83 ] The second paragraph of

Section 74.1 of the Youth Protection Act states that the Comission des droits de la personne et de la jeunesse may refer to the Tribunal any situation where it has reason to believe that the rights of the child have been wronged. (« lésés ») by persons, bodies or institutions. [ 84 ] In addition, the last paragraph of

Section 91 of the Act [1] provides that 91. Where the tribunal concludes that the security or development of the child is in danger, it may, for the period it determines, order the implementation of one or more of the following measures: (…) (

f) that a person working for an institution or body provide aid, counselling or assistance to the child and the child’s family; (…) (

i) that the child receive specific health care and health services; (

j) that the child be entrusted to an institution operating a rehabilitation centre or to a foster family, chosen by the institution operating a child and youth protection centre; (…) Where the tribunal concludes that the rights of a child in difficulty have been wronged by persons, bodies or institutions, it may order the situation to be corrected. (Our emphasis) [ 85 ] As Madame Justice Marie Pratte points out, no definition of the word «wronged» appears in the Act : [141] Le terme lésé n'est pa s défini par la Loi.

À défaut d'une définition particulière, il conserve son sens commun et signifie « atteindre, blesser quelqu'un dans ses […] droits ». [142] Il y a donc lésion de droits au sens de la

Loi sur la protection de la jeunesse lorsqu'une personne, un organisme ou un établissement porte atteinte aux droits d'un enfant en ne les respectant pas. [143] Ces droits peuvent être autant ceux reconnus à la

Loi sur la protection de la jeunesse , au Code civil du Québec ou dans diverses lois particulières, que ceux enchâssés dans la Charte des droits et libertés de la personne . [2] (…) (our emphasis) [ 86 ] Madam Justice Carole Brosseau also adopts a broad

interpretation of the notion of the child’s rights [3] : [26] La lésion de droit vise non seulement les différents droits et principes prévus par la loi, mais également ceux qui le sont dans la Charte des droits et libertés de la personne (la Charte), de même que la Charte canadienne des droits et libertés . [27] En effet, l’intérêt de l’enfant est indissociable des droits prévus dans la Charte et la référence aux droits de l’article 91(4) ne peut faire autrement qu’envelopper les droits fondamentaux prévus dans celle-ci . (our emphasis) [ 87 ] Moreover, Mr.

Justice André Denis of the Superior Court puts the Youth Protection Act in the following legislative context [4] : : [100] La L.p.j. doit être lue à la lumière de l’ensemble des lois existantes et non comme une création autonome redéfinissant les droits et exigences de la personne. (…)

[110] En résumé, il résulte d’une lecture empirique des lois québécoises en matière d’enfance, la chronologie suivante :

a) la Charte des droits et libertés de la personne qui énonce les droits fondamentaux;

b) le Code civil qui établit le droit commun;

c) la

Loi sur les services de santé et les services sociaux , loi générale qui organise le réseau de la santé et des services sociaux et répartit les droits et obligations des bénéficiaires et des intervenants;

d) toute autre loi particulière et notamment ici, la L.p.j. qui s’applique à un enfant dont la sécurité et le développement sont compromis. [111] La Charte, le Code civil , la

Loi sur les services de santé et les services sociaux continuent à s’appliquer même quand la L.p.j. est susceptible d’être prise en compte. Ces lois sont inter-reliées et ne peuvent être lues indépendamment les unes des autres. [112] En tout ou en partie, la Charte , le Code civil et la

Loi sur les services de santé et les services sociaux sont aussi des lois d’ordre public . (our emphasis) [ 88 ] In an

article [5] dealing with the notion of a child’s rights having been wronged (« lésion de droits »), Me Sophie Papillon cites an

article written by Me Claude Boies which gives a broad

interpretation of the rights of a child which can be subject to such a violation: Enfin, précisons qu’une lésion de droits semble viser non seulement les différents droits et principes prévus par la LPJ, mais également ceux qui le sont dans la Charte . C’est notamment ce qu’invoquait M e Claude Boies dans un

article sur le recours en lésion de droits, centrant son argumentation sur l’article 3 de la LPJ selon lequel toute décision doit être prise dans l’intérêt de l’enfant et dans le respect de ses droits. Selon cet auteur, l’intérêt de l’enfant est indissociable des droits prévus dans la Charte et la référence aux « droits » de cet

article ne peut faire autrement qu’englober les droits fondamentaux prévus dans celle-ci . Poussons l’argument plus loin : les droits pouvant faire l’objet d’une lésion pourraient également viser les droits prévus dans la Charte canadienne des droits et libertés ou dans la Convention relative aux droits de l’enfant . La même réflexion s’impose quant au Code civil du Québec ainsi qu’à toute loi qui prévoit des droits relatifs aux enfants soumis au régime de la LPJ , telle la

Loi sur l’instruction publique . (at page 157 – our emphasis) [ 89 ] In this regard,

Section 41 of the

Interpretation Act [6] favours a broad

interpretation to ensure the attainment of the object of a provision as well as its carrying out: 41. Every provision of

an Act is deemed to be enacted for the recognition of rights , the imposition of obligations or the furtherance of the exercise of rights, or for the remedying of some injustice or the securing of some benefit.

Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit. (our emphasis) [ 90 ] With these principles in mind, the Court finds it useful to draw the following inventory of the rights raised by the child’s attorney which have allegedly been wronged in this matter. [ 91 ] In this regard, the other relevant provisions of the Youth Protection Act are the following: 2.3 Any intervention in respect of a child and the child’s parents under this Act (

a) must be designed to put an end to and prevent the recurrence of a situation in which the security or the development of the child is in danger ; and (…) 2.4 Every person having responsibilities towards a child under this Act, and every person called upon to make decisions with respect to a child under this Act shall, in their interventions, take into account the necessity (1) of treating the child and the child’s parents with courtesy, fairness and understanding, and in a manner that respects their dignity and autonomy ; (…) (5) of opting for measures, in respect of the child and the child’s parents, which allow action to be taken diligently to ensure the child’s protection , considering that a child’s perception of time differs from that of adults, and which take into consideration the following factors: (

a) the proximity of the chosen resource; (

b) the characteristics of cultural communities; (

c) the characteristics of Native communities.

(…) 3. Decisions made under this Act must be in the interest of the child and respect his rights. In addition to the moral, intellectual, emotional and material needs of the child , his age, health, personality and family environment and the other aspects of his situation must be taken into account . (…) 8.

The child and the parents are entitled to receive, with continuity and in a personalized manner, health services and social services that are appropriate from a scientific, human and social standpoint , taking into account the legislative and regulatory provisions governing the organization and operation of the institution providing those services, as well as its human, material and financial resources. (…) 11.1 Any child to whom foster care is provided by an institution under this Act shall be placed in premises appropriate to his needs and rights , taking into account the legislative and regulatory provisions governing the organization and operation of the institution and the human, material and financial resources at its disposal. (…) 62.

Where the tribunal orders the compulsory foster care of a child, it shall require the director to designate an institution, to which the child may be entrusted, that operates a hospital centre or a rehabilitation centre or works in conjunction with foster families, and to see that foster care is provided under adequate conditions . (…) (our emphasis) [ 92 ] In addition, Articles 3 , 32 and 33 of the Civil Code of Québec are applicable to the matter at hand,

Section 3 of the Youth Protection Act mirroring this latter provision: 3. Every person is the holder of personality rights , such as the right to life, the right to the inviolability and integrity of his person , and the right to the respect of his name, reputation and privacy. These rights are inalienable. (…) 32. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him. 33. Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child , to the child’s age, health, personality and family environment, and to the other aspects of his situation . (our emphasis) [ 93 ] The following provisions of the Act respecting health services and social services [7] are also of interest with respect to the rights of users of such services. 3.

For the application of this Act, the following guidelines shall guide the management and provision of health services and social services: (1) the person requiring services is the reason for the very existence of those services; (2) respect for the user and recognition of his rights and freedoms must inspire every act performed in his regard; (3) the user must be treated, in every intervention , with courtesy, fairness and understanding, and with respect for his dignity, autonomy, needs and safety ; (4) the user must, as far as possible, play an active role in the care and services which concern him; (5) the user must be encouraged, through the provision of adequate information, to use services in a judicious manner. (…) 5.

Every person is entitled to receive, with continuity and in a personalized and safe manner , health services and social services which are scientifically, humanly and socially appropriate . (…) 79. Health services and social services shall be provided by the institutions in the following centres:

(1) a local community service centre; (2) a hospital centre; (3) a child and youth protection centre; (4) a residential and long-term care centre; (5) a rehabilitation centre. (…) 82.

The mission of a child and youth protection centre is to offer in the region such psychosocial services, including social emergency services, as are required by the situation of a young person pursuant to the Youth Protection Act (chapter P-34.1 ) and the Youth Criminal Justice Act (S.C. 2002, c. 1 ), and services for child placement, family mediation, expertise at the Superior Court on child custody, adoption, research into family and medical antecedents, and reunions.

To that end, every institution which operates such a centre shall ensure that the needs of the persons who require such services are assessed and that the services which these persons or their families require are offered to them either directly or through the centres, organizations or persons best suited to assist them. (our emphasis) [ 94 ] It should be noted that the wording of

Section 8 of the Youth Protection Act is identical to that of

Section 5 which is set out above. [ 95 ] On a broader scale, in assessing this situation from a human rights perspective, it is useful to refer to the Convention on the Rights of the Child [8] to which Canada became a signatory on May 28, 1990 and ratified in 1991. After referring to the Universal Declaration of Human Rights in its

preamble, the Convention sets out a number of articles dealing with the rights of a child in a context such as the one under review in this matter:

Article 3 1. In all actions concerning children , whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures . 3.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision . (…)

Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation , including sexual abuse, while in the care of parent(s), legal guardian(

s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Article 20 1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2. States Parties shall in accordance with their national laws ensure alternative care for such a child. 3. Such care could include , inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children .

When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background. (…) (our emphasis)

[96] In a landmark ruling rendered by the Supreme Court of Canada on February 1st, 2018[9] in the matter of Commission desnormes, de l’équité, de la santé et de la sécurité du travail v. Caron, Madam Justice Rosalie Abella, who drafted the Court’s reasons for a majority of the bench, dealt with the application of the Québec Charter of Human Rights and Freedoms[10] in the following terms: 32. The tools to address the issues in this case are found in this Court’s decision in Quebec (Commission des droits de la personne et desdroits de la jeunesse) v.

Communauté urbaine de Montréal, 2004 SCC 30 , [2004] 1 S.C.R. 789, where LeBel J. confirmed thatQuebec legislation must be interpreted in accordance with the principles of the Quebec Charter: In Quebec law, in matters within the jurisdiction of the National Assembly, the Quebec Charter has been elevated to the rank of a sourceof fundamental law. The

interpretation of legislation must draw on its principles. The preliminary provision of the Civil Code of Québec,S.Q. 1991, c. 64, states that the Code, as the jus commune of Quebec, must be interpreted in harmony with the Quebec Charter. [Emphasis added; para. 20.] It is an approach that has generally been followed in the Quebec jurisprudence. It endorses the view that all Quebec law should beinterpreted in conformity with the Quebec Charter. It is, as a result, unnecessary to deal with Mr. Caron’s argument, raised for thefirst time in this Court, that R. v.

Conway, 2010 SCC 22 , [2010] 1 S.C.R. 765, should be applied. 33 This approach has also been applied outside Quebec, as this Court noted in VIA Rail: . . . human rights legislation, as a declaration of “public policy regarding matters of general concern”, forms part of the body ofrelevant law necessary to assist a tribunal in interpreting its enabling legislation. [para. 114] (See also Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 , [2006] 1 S.C.R. 513.) (our emphasis) [97] As a source of fundamental law, the

interpretation of legislation such as the Youth Protection Act must thus be inferred based onthe principles set out in the Charter. [98] The following provisions of the Charter are applicable in the matter at hand: 39. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are capable ofproviding. (…) 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of suchinterference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. (our emphasis) [99] The Court specifies that no claim for damages was submitted in the matter at hand. [100] Reference was also made to the following provisions of the Canadian Charter of Rights and Freedoms[11]: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. (…) 12.

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (…) 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (our emphasis) [101] Finally,

Article 49 of the Code of Civil Procedure[12] deals with the general powers of the courts in the following terms: 49. The courts and judges, both in first instance and in appeal, have all the powers necessary to exercise their jurisdiction. They may, at any time and in all matters, even on their own initiative, grant injunctions or issue protection orders or orders tosafeguard the parties’ rights for the period and subject to the conditions they determine. As well, they may make such orders as areappropriate to deal with situations for which no solution is provided by law. (our emphasis)

[ 102 ] Pursuant to

Section 85 of the Youth Protection Act ,

Article 49 applies in the matter at hand. [ 103 ] The Court now turns to its analysis of the issues raised by the Application . 6.

ANALYSIS 6.1 The violation of X’s rights 6.1.1 The incidents of November 2016, May 2017 and August 2017 [ 104 ] The jurisprudence recognizes that the Court’s power in such matters is similar to a surveillance and review power. [ 105 ] It is also established law that the violation of a child’s rights entails a prejudice for the child even in the absence of damages. [ 106 ] Based on the preponderance of the evidence submitted by the parties, the Court comes to the conclusion that X’s rights have been violated as a result of these three (3) incidents. [ 107 ] In reaching this conclusion, the Court is not bound by the Director’s findings that the signalement relating to the first and third incidents were not retained.

Indeed, the Court considers that in the eyes of this child, she was subjected to sexual abuse on all three occasions. [ 108 ] The Director of Youth Protection admits that there was a lack of appropriate supervision, as well as a lack of understanding of safety plans during all three incidents. [ 109 ] Despite the Major Incident Review Meeting of June 6 th , 2017, after the second incident, just a few months later, the third incident occurs which also entails a lack of judgment and respect of safety procedures in letting the children involved play hide and go seek or tag. [ 110 ] In its Decision at the end of the Evaluation Report of the third incident which occurred on August 14 th , 2017, filed as Exhibit LD-3, it is thus quite astonishing to read the conclusion that X’s security and development are not compromised as [Director of Youth Protection B] has the internal mechanisms to address the situation and that she is currently receiving services for similar issues when those mechanisms were clearly not complied with during this third incident. [ 111 ] The Court also takes notice of X’s strong reactions after each incident as evidenced by the Chronological Notes filed as Exhibit LD-E-2 referred to previously: • November 18 th , 2016 – See paragraphs [35] and [43] of this judgement.

For the first time, X verbalizes no longer wanting to be at [group home A]. Despite Z’s recurring sexualized behaviours referred to in Exhibit LD-5, he is maintained at [group home A] because no other resources have a place available for him. He will finally be transferred to [Group Home D] after the third incident. • May 30 th , 2017 – See paragraphs [51] and [67] of this judgment. It is also striking that A and X shared the same bathroom at the time and that A disclosed that before Christmas, he reported a similar incident when Z snuck into his room to have anal sex with him.

The Major Incident Review Meeting of June 6 th , 2017 also refers to the importance that safety measures and procedures be visibly posted for all staff to see . • August 14 th , 2017 – See paragraph [71] of this judgment. The Court is also concerned by the fact that X’s therapist, Ms. Amanda Power, was not made aware of the first two incidents after they occurred which could have made her respond differently to X (see paragraph [67]). [ 112 ] It must not be forgotten that in light of the assessments referred to previously in third

section of this judgment, X is a severely traumatized child for whom safety needs were to provide the foundation for any other interventions.

Sight supervision for this child in a highly structured environment where appropriate behaviour can be modeled and inappropriate behaviours redirected immediately was deemed appropriate. [ 113 ] One can only conclude that despite all of the written materials available, staff meetings held and constant reminders given regarding supervision of the children, X was sexually abused on three (3) occasions over a period of nine (9) months. [ 114 ] As was suggested by the child’s attorney during oral arguments, this raises the issue of why a shadow was not appointed to X after the first incident, especially with Z’s worrisome profile.

It is also quite troubling that X verbalized to her social worker that the reason that the boys were doing this to her was that the older girls at the [group home A] Unit would say no. [ 115 ] The Court also shares the concern expressed by the social worker, Ms. [Social Worker 1], regarding the fact that by being maintained at the [group home A] Unit with both Z and A after the first two incidents and having interactions with them during meal times and other activities, this sent the wrong message to X and the other children.

Ms. [Social Worker 1]’s reaction after entering the [group home A] Unit on July 7 th , 2017 (see paragraph 63 of this judgment) was legitimate and understandable.

[ 116 ] Indeed, a serious prejudice to X’s dignity, integrity and autonomy results from the normalization of the behaviours exhibited during the three incidents th

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