2023 ONCJ 327, 2023 ONCJ 327

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under

Part V of the Child, Youth and Family Services Act, 2017 , (being

Schedule 1 to the Supporting Children, Youth and Families Act, 2017 , S.O. 2017, c. 14 ), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows: 87.—

(7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 142.—

(3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(

c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. YOUTH CRIMINAL JUSTICE ACT, 2002, c.1 . THESE PROCEEDINGS ARE SUBJECT TO s. 110, 111, 118, 129 AND 138 OF THE ACT WHICH PROVIDE: 110.

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111.

(1) Subject to this section, no person shall publish the name of a child or a young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 118(1) Except as authorized or required by this Act, no person shall be given access to a record kept under sections 114 to 116, and no information contained in it may be given to any person, where to do so would identify the young person to whom it relates as a young person dealt with under this Act. . . . 129 No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. . . . 138.

(1) Every person who contravenes subsection 110(1) (identity of offence not to be published), 111(1) (identity of victim or witness not to be published)… (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction.

ONTARIO COURT OF JUSTICE CITATION: Parekh v. Family & Children’s Services of Guelph & Wellington , 2023 ONCJ 327 DATE: July 19, 2023 COURT FILE No.: Guelph D23/107 BETWEEN: Dr. S. Parekh Applicant — AND — Family & Children’s Services of Guelph & Wellington and J.P. Respondents Before Justice K.S. Neill Heard on July 6 and 11, 2023 Reasons for Judgment released on July 19, 2023 A. Circelli .................................................................................................... Dr. Shrenik Parekh O.

Rebeiro........................................................... counsel for FCS of Guelph & Wellington J. Pietrangelo and V. Ruoso............ counsel for the Office of the Children’s Lawyer, legal representative for the youth J.P. NEILL J.: [ 1 ] The applicant, Dr. Parekh is a psychiatrist who has met with the subject youth, J.P. born […], 2005 while J.P. was residing at a group home. J.P. is now 17 years old. On June 13, 2023, Dr. Parekh commenced an application to have J.P. committed to the secure treatment program at Syl Apps for the maximum period permitted, being 180 days. The youth, J.

P. was only served personally with the application for secure treatment on June 28, 2023, as she was missing for approximately two months. However, her lawyer was served on June 13, 2023. Mr. Pietrangelo is counsel for J.P. in the child protection proceedings and had not been formally appointed as counsel for the secure treatment application, which order was made on the first day of the hearing. Regardless, both Mr. Pietrangelo and Ms. Ruoso participated in the secure treatment hearing as co-counsel for J.P. [ 2 ] Dr.

Parekh also brought a motion for emergency admission of J.P. to Syl Apps pursuant to s. 171 of the Child, Youth & Family Services Act (“CYFSA”). As applications for emergency admission must be made to the administrator of the secure treatment program, the court did not have jurisdiction to deal with this motion. Background: [ 3 ] The child, J.P. is the daughter of N.M. and D.P.. Mr. D.P. recently died, and the whereabouts of N.M. have been unknown for approximately the past year.

[ 4 ] Family & Children’s Services of Guelph and Wellington (“the Society”) has a long history with this family. A Protection Application was commenced and J.P. was initially placed in care. In 2013, J.P. was found in need of protection and placed on supervision orders with her mother, then her step-father, and eventually her step-father obtained custody of her. [ 5 ] In 2021, the Society became reinvolved after it was discovered that her mother was trafficking J.P. The Society again commenced a Protection Application after J.P. was brought back into the Society’s care in April, 2021.

On January 18, 2022, J.P. was found to be in need of protection pursuant to s. 74(2)(a)(i), (a)(ii), (b)(i), (b)(ii), (c), (d), (

f) and (h); and a final order was made that she be placed in interim society care for a period of 6 months. A further final order was made on July 12, 2022, extending J.P.’s interim society care for a further 12-month period. The Society has recently commenced a Status Review Application seeking extended society care for J.P. as no family or community placement has come forward for her. [ 6 ] Although a finding was originally made on January 18, 2022 that J.P. was not indigenous, it has been discovered that J.P. has Metis heritage, and her indigenous status is still being investigated by the Society.

An application has recently been made for J.P. to obtain Metis citizenship , and the Society has connected J.P. with the Metis Family Well-Being Program for support. Mental Health Concerns: [ 7 ] A psycho-educational assessment from psychologist, Dr. Susan Gross, dated January 6, 2014, was filed indicating that J.P. has a long history of learning, social-emotional and behavioural problems. In 2013, when J.P was 7 years old, she was referred to the inter- professional FASD Diagnostic team to investigate if she has been affected by reported prenatal exposure to alcohol in utero.

She was in the care of the Guelph CAS at that time. J.P. had a history of aggression and swearing at school, and she was on an IEP requiring specialized education services. She had a mental health worker through the Child and Adolescent Assessment and Treatment Team. J.P. had significant difficulty in regulating and modulating her attention, behaviour and her emotions consistently and adequately. Dr. Gross made the following diagnosis for J.P.: * Partial Fetal Alcohol Syndrome. * Attention Deficit Hyperactivity Disorder – Combined Type. [ 8 ] Dr.

Gross also indicated that given the possible relational trauma in J.P.’s early years, her profile of behaviours would also fit that of children continuing to experience effects of early insecure attachment. Dr. Gross explained in her report that children with such concerns are felt to have not had the opportunity to fully develop their sense of how to participate in relationships, leading to real and long-lasting changes in brain development.

These changes are understood as having an impact on a child’s behaviour in significant ways, often leading to impulsivity, immaturities in executive functioning, dependence and inconsistent social abilities. [ 9 ] Since J.P. was placed again in the Society’s care, concerns regarding her mental health have increased and her aggressive behaviour quickly escalates. [ 10 ] In or about January, 2022, J.P. was referred to a psychiatrist, Dr. Parekh at the Youth Hub, a program for troubled youth. Dr. Parekh did an initial intake with J.P. in January, 2022 and met with her again in April, 2022.

At that time, J.P. was residing in a group home operated by the Guelph CAS with 2:1 staff. J.P. reported feeling depressed and wanted medication. She was smoking marijuana on a daily basis to regulate her mood and help her sleep. Effexor and Biphentin was prescribed for her depression. [ 11 ] On July 28, 2022, Dr. Parekh again met with J.P. when she was residing at Suffolk Street Housing. J.P. reported that the prescribed medication was “fucking her up”, and was no longer taking the Effexor. Dr. Parekh reduced J.P.’s dosage of Biphentin. Although Dr.

Parekh made follow-up appointments with J.P., she never attended and he has not seen her since July, 2022. Youth Criminal Justice Records: [ 12 ] When this application was first before the court on June 16, 2023, the issue of the use of J.P.’s youth criminal justice records (“YCJA records”) in this proceeding was raised. There is conflicting caselaw on the use of YCJA records in child protection proceedings. Justice Buttazzoni in Children’s Aid Society of the Districts of Sudbury and Manitoulin v.

A.A. [1] considered the restrictions on admissibility of YCJA records in CYFSA proceedings as articulated in s. 129 of the YCJA which reads: “ No person who is given access to a record or to whom information is disclosed under this Act , shall disclose that information to any other person unless the disclosure is authorized under this Act”. [Emphasis added] [ 13 ] Justice Buttazzoni found that, at paragraph 17 of his decision: “ In circumstances where a society worker properly obtains access to a record or the information contained in a record, the Society is prohibited from disseminating to anyone the information that has been disclosed to them in the course of the YCJA proceeding.

The fact that a Society worker may have recorded the “YCJA disclosed information” in her notebook for CYFSA proposes does not diminish from the privacy protection accorded to that information by virtue of s. 129 of the YCJA. In my view, such information can only be disclosed within the context of the CYFSA proceeding after first having obtained an order in youth court pursuant to section 119(1)(

s) or section 123(1). Furthermore, the fact that the YCJA information is intended to be used in a CYFSA proceeding which focuses on the best interest of the child, does not diminish or override the privacy constraints imposed by the CYFSA”. [ 14 ] In Children’s Aid Society of the Regional Municipality of Waterloo v. S.M. et al, [2] Justice Tweedie took a different approach.

Justice Tweedie indicated at paragraphs 28, 30, 32 and 47 that: “ .. the details about a child’s involvement with the youth criminal justice system is relevant to the determination of whether a child is in need of or continues to be in need of protection, and to the determination as to what disposition is in the child’s best interests. It is imperative that the information is shared with the parties in the proceedings and is ultimately brought to the court’s attention”.

“.. records kept by a child protection agency, and information noted by a protection worker or agent of the Society therein regarding a young person’s criminal justice involvement, does not constitute a record as contemplated by the YCJA. Therefore, it is unnecessary to seek an order from a youth court regarding the use of those records”…” The records of a child protection agency are not created or kept for the purposes of the YCJA.

They are created and kept for the purposes of the CYFSA”. “To be clear, however, child protection records do NOT include the criminal Information (Form 2), occurrence reports, criminal undertakings, criminal release orders, assessments order pursuant to s. 34(1) and s. 40(1) of the YCJA, or any other documents that are produced within the context of the YCJA proceedings.

A party, including the Society, is required to seek an order from the youth court for disclosure and use of those records”. [ 15 ] Justice Tweedie outlined the process to use youth criminal involvement information in CAS records in a child protection proceeding as follows: (at paragraph 48) a. A Children’s Aid Society shall disclose its records to the parties in a proceeding, including information relating to the youth criminal justice involvement, subject to its usual policy of redaction, and does not require an order from a youth court to disclose its records. b.

A Children’s Aid Society shall disclose to the court hearing the child protection proceeding relevant information contained in its records regarding a child’s youth criminal justice involvement and does not require an order from a youth court to do so. c. A Children’s Aid Society shall disclose its possession of YCJA records (such as assessments) to the other parties but shall not disclose the record itself without a youth court order. d.

Parties shall be entitled to use the information obtained through the Society disclosure for the purposes of the child protection proceedings and refer to it in their pleadings and affidavits, subject to the rules of evidence. e. Should a party object to the use of specific information in pleadings or affidavits, that party shall bring a motion in the child protection court seeking an order striking those passages. [ 16 ] In

summary, Justice Tweedie indicated that, at paragraph 51: “If information regarding youth criminal justice involvement contained in the Society records is disclosed at the outset of the proceedings, then there may be sufficient information available to the parties and to the court to determine the issues.

In the event that a party wishes further information that is contained in the YCJA records, that party may commence an application in youth court for access to the records”. [ 17 ] I note that the decision of Justice Buttazzoni was made in the context of using a youth’s YCJA records in a secure treatment application, and Justice Tweedie’s decision was made in the context of using YCJA records in a child protection proceeding. There may be distinguishable purposes in both types of proceedings.

However, in both types of proceedings, the court is guided by the paramount purpose of the Act in s. 1(1) to promote the best interests, protection and well-being of children. [ 18 ] At the hearing of this secure treatment application, the parties did not raise the issue of the use of YCJA documents in this proceeding in argument. No motion was brought to strike out any portions of the materials from the applicant or the Society. [ 19 ] However, given the privacy interests at stake for J.P. I will address the issue of the use of YCJA records in this proceeding. [ 20 ] Dr.

Parekh’s affidavit sworn March 3, 2023 includes information that he obtained about J.P.’s youth criminal charges from the society worker. He also attached to his affidavit two warrants to remand a young person dated June 21, 2022 and October 19, 2022, which are clearly documents produced in the context of the YCJA proceedings, and should be removed. [ 21 ] The society worker, Ms.

Heaney including in her affidavit YCJA information regarding J.P. that would be included in the society records and information that she obtained while attending youth court, which is information properly disclosed to the parties and the court.

Recent history of J.P.’s behaviours from 2022 to the present: [ 22 ] J.P. has been involved in the criminal justice system since she was 16 years old , has broken down numerous society placements, has made threats of harm to herself and others and has actually harmed others as follows: * J.P. has been charged with 4 assaults that occurred between March and May, 2022 perpetrated against a peer, a foster parent and staff member. * In September, 2022, J.P. was diverted from the criminal justice system after assaulting a staff member, lighting a peer’s jacket on fire, and walking on a highway. * On September 30 and October 2, 2022, J.P. assaulted her child in care worker, Beth Farquharson, with a weapon and uttered threats.

When she returned to her group home, she threatened to kill 2 staff members while holding a knife and heard voices repeatedly telling her to hurt people. * On October 7, 2022, J.P. was formed under a Form 2 and brought to Guelph General Hospital. J.P. left the hospital through an open Ambulance Bay Door, was subsequently located and placed on a Form 1. The society worker, Jennifer Heaney met with J.P. at the hospital. J.P. was clear that she wanted to reside in a home without staffing. She was agitated and called Ms. Heaney a “fat bitch”. J.P. began shouting, punching a concrete wall and throwing things.

After an assessment, J.P. did not meet the criteria for a Form 1 and was released. J.P. went missing until October 18, 2022.

* After October 18, 2022, J.P. has been offered a number of placements, including Wyndham House and a basement apartment with 1:1 staffing of skilled workers who deal with youth with challenging behaviours. * From December 15, 2022 to January 12, 2023, J.P. resided at Staybridge Suites in a one-bedroom apartment with 2:1 staffing. During this time, J.P. struggled to return in time for her 9 p.m. curfew on a few occasions. She began using crystal methamphetamines and marijuana. She returned to stay with a previous partner who had assaulted her.

J.P. was missing from December 22 to 29, 2022 and January 5 to 12, 2013. * On February 22, 2023, J.P. returned to Staybridge Suites with 2:1 staff. She then went missing from February 23 to April 4, 2023. During this time, she had been staying at a Women’s Shelter after experiencing partner violence. * On April 4, 2023, J.P.’s aunt contacted the Guelph CAS advising that J.P. was at her home. Both the Society worker and Guelph police at the aunt’s home and J.P. was arrested but released on a Promise to Appear.

As J.P. advised that she had been assaulted, she was brought to Guelph Hospital but did not participate in an examination. She was brought to Marianne’s Place Women’s Shelter in Guelph. J.P. expressed that she was fearful and that people in the community were after her, and that someone pointed a gun at her. J.P. was initially calm, but began to escalate, yelling at the society worker to “get the fuck out of the room and to leave”, and threatened the worker to “punch her face in”. * On April 5, 2023, J.P. was asked to leave the Marianne’s Place Women’s Shelter as she was aggressive with staff.

She was returned to the offices of the Guelph CAS. When told that she would be placed in a hotel with 2:1 staffing, she became aggressive, lunged at the worker and was screaming at her. After this outburst, she went missing until April 7, 2023. * On April 7, 2023, J.P. returned to Staybridge Suites, and was fairly stable for a period of time.

However, it was reported that she still engaged in aggressive behaviour including verbal fights with her boyfriend on the phone and extensive damage to her hotel room including smashing her TV, breaking lamps and breaking a window. * On April 25, 2023, J.P. was evicted from Staybridge Suites due to the damage she had done to the hotel room. J.P. was missing from April 25, 2023 until in or about June 28, 2023, which she was located by police in Guelph, and was arrested for several offences. She was taken to the Guelph General Hospital for assessment but was released and taken to the Guelph police station. When Ms.

Heaney attended at the police station to meet with J.P., J.P. had bruising and red marks on her arms and legs. She had lost weight and appeared to be malnourished. [ 23 ] During this past year, J.P. has incurred many charges and has been incarcerated for up to 60 days. On December 14, 2022, J.P. plead guilty to 8 charges including uttering threats to cause death, theft under , assault with a weapon.

On February 22, 2023, J.P. plead guilty to 2 charges of breaching her conditions. [ 24 ] In January, 2023, J.P. was placed on waiting lists for beds at the secured treatment programs at Syl Apps Youth Centre and Roberts Smart Centre. A meeting was held with service providers and Syl Apps on January 12, 2023.

On January 17, 2023, the Director of Syl Apps, Jim McNamee, confirmed by letter that the Secure Treatment Program would be effective to prevent J.P. from causing or attempting to cause serious bodily harm to herself or another person and that there was treatment at the program that was appropriate for J.P’s mental disorder. However, a bed was not available for J.P. at that time. [ 25 ] Mr. McNamee confirmed by letter dated June 6, 2023 that a bed was available for J.P. at Syl Apps, which would be held until July 6, 2023.

During the court proceeding, the court was advised that Syl Apps would continue to hold a bed for J.P. until July 19, 2023. [ 26 ] Both of the letters from Mr. McNamee were filed. Mr. McNamee filed a Form 33F Consent to Secure Treatment dated June 6, 2023 for the youth, J.P. The Hearing: [ 27 ] Following confirmation that a bed was available for J.P. as of June 6, 2023, Dr. Parekh commenced the present secure treatment application on June 13, 2023. The application was initially before the court on June 16, 2023, which is within 10 days of the making of the application as required under s. 161(2).

On that date, counsel for the child, J.P., Mr. Pietrangelo sought an adjournment as he had not been able to meet with his client. An order was made on June 16, 2023 that: • The respondents to the Secured Treatment Application be amended to be only the Guelph CAS and the OCL. • The motion for emergency treatment and the Secure Treatment Application was adjourned to July 6, 2023 for a hearing. • Dr.

Parekh was to provide to respondent’s counsel evidence of his Canadian medical qualifications. • Affidavits from two social workers from the Guelph CAS were ordered to be filed, who may be subject to cross-examination, and the OCL was permitted to file an affidavit. • Oral evidence was ordered to be presented by Dr. Parekh, and Jim McNamee, administrator of Syl Apps in chief with cross- examination subject to time limitations. [ 28 ] Affidavits were filed by Dr. Parekh, and Jennifer Heaney, the society worker.

The parties consented to the affiants allowing to adopt the contents of their affidavits as part of their evidence in chief. [ 29 ] The child, J.P. is presumptively entitled to be present at the hearing, which she was by zoom. [3] On such hearings, the court shall hear oral evidence, unless the child consents to the hearing in writing. [4]

[ 30 ] During the hearing, the following persons testified: • Dr. Parekh, the applicant to this secure treatment application; • J.P.’s child protection worker, Jennifer Heaney; • Dr. Giovanni Foti, a registered psychologist and clinical manager at Syl Apps. [ 31 ] Dr. Parekh explained that although he obtained his medical degree in psychiatry in the United States, he is licensed to practice medicine in Ontario, restricted to the area of psychiatry. He filed a confirmation from the College of Physicians and Surgeons of Ontario Registration Renewal, which is valid until May 31, 2024.

The parties did not challenge his qualifications at the hearing. The Legal Framework: [ 32 ] Applications to commit a youth to secure treatment are governed under

Part VII of the Child, Youth and Family Services Act. (“the Act”) Secure treatment is one of the “extraordinary measures” that a court can order for a child. Secure treatment is highly intrusive and there are significant liberty interests at stake for the child in these proceedings. Therefore, strict adherence to the statutory provisions of the Act are essential.

Long term secure treatment orders can only be made as an absolute last resort. [5] Commitment to Secure Treatment: Criteria [ 33 ] The test that the applicant must meet for an order committing a child to secure treatment is outlined in s. 164(1) of the Act . The applicant bears the onus to provide clear, logical and convincing evidence established on a balance of probabilities, that each of the six criteria set out in s. 164(1) of the Act . have been met [6] . These criteria are outlined as follows: 164

(1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that, (

a) the child has a mental disorder; (

b) the child has, as a result of the mental disorder, within the 45 days immediately preceding, (

i) the application under subsection 161 (1), … caused or attempted to cause serious bodily harm to themself or another person; (

c) the child has, (

i) within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or (ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death; (

d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person; (

e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and (

f) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances. [ 34 ] As J.P. is 17 years of age and has not consented to the application, only a physician can bring the Application for Secure Treatment. [7] In this case, the application was formally brought by Dr. Parekh. There is an additional requirement that must be met where the applicant is a physician.

Under s. 164(3), the court must be satisfied that the applicant believes the criteria set out in s. 164(1) are met. [ 35 ] Even if all of the criteria pursuant to s. 164(1) are met, an order for a secure treatment program is still discretionary, and the court can still refuse to make a secure treatment order if it is not in the best interests of the child. [8] [ 36 ] The evidentiary standard on such applications is that the evidence must be trial worthy. [9] It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.

Therefore, I have disregarded the evidence that is not trial worthy. [ 37 ] Finally, in any application under the Act, the court is also guided by the paramount purpose of the Act in s. 1(1) to promote the best interests, protection and well-being of children. Position of the Parties: [ 38 ] Counsel on behalf of the Society and Dr. Parekh argue that all of the criteria under s. 164(1) have been met. However, it is noted that Dr. Parekh acknowledged that Criteria B had not been met, and the society worker, Ms.

Heaney acknowledged that there was no specific information regarding what happened with J.P. while she was missing from April 25 to June 28 th , 2023, within the 45 days prior to the application being commenced.

[ 39 ] Ms. Ruoso on behalf of J.P. acknowledges that some of the criteria under s. 164(1) have been met. She agrees that J.P. has a mental disorder as defined under the Act, and that in the 12 months prior to the application being commenced J.P. made a substantial threat to cause serious bodily harm to another person. She argues that the other 4 criteria under s. 164(1) have not been met, and that the application should be dismissed. The Criteria for Secure Treatment [ 40 ] As stated, the court must be satisfied that the applicant, Dr. Parekh believes the criteria set out in s. 164(1) are met. In Dr.

Parekh’s opinion, except for the second criteria of a specific incident within 45 days prior to the application being commenced that J.P. attempted to cause serious bodily harm to herself or another person, all of the criterial under s. 164(1) have been made. Criteria A: The child has a mental disorder. [ 41 ]

Section 157 defines a “mental disorder” as follows: “a substantial disorder of emotional processes, thought or cognition which grossly impairs a person’s capacity to make reasoned judgment”. [ 42 ] What is required to prove that the child has a “mental disorder” is medical evidence that the child’s capacity to make reasoned judgments has been grossly impaired. [ 43 ] In her psycho-educational assessment dated January 6, 2014, Dr.

Susan Gross, diagnosed J.D. with: Partial Fetal Alcohol Syndrome Attention Deficit Hyperactivity Disorder – Combined type Early insecure attachment. [ 44 ] In the course of his short involvement with J.P. from January to July, 2022, Dr. Parekh diagnosed J.D. with: o Cannabis use disorder o Complex Post-Traumatic Stress Disorder. [ 45 ] In her report from 2014, Dr. Gross explains how J.P.’s mental diagnoses could impair her capacity to make reasoned judgments.

At the time of the report, it was noted that J.P. had significant difficulty in regulating and modulating her attention, behaviour and consequently her emotions consistently and adequately. Fetal Alcohol Syndrome is a brain-based neurodevelopmental disability and as such is likely to affect cognitive and learning development and J.P.’s cognitive skills may continue to develop at a slower and more variable rate than her peers.

J.P. was also experiencing effects of early insecure attachment, which impact her behaviour in significant ways often leading to impulsivity, immaturities in executive functioning, dependence and inconsistent social abilities. [ 46 ] Dr. Parekh explained that a diagnosis of partial FAS means that J.P. exhibited certain indicators of FAS, but not all. In terms of facial features, J.P. may have some but not all features of FAS. In terms of cognitive functioning, she may have a different percentile.

However, the theme will be the same, being that J.P. will have challenges in all areas of emotional, psychological and social issues. Therefore, J.P. will be affected by her FAS, but to a differing degree than others. [ 47 ] When he met with J.P. in 2022, Dr. Parekh could see many indicators of FAS in her behaviour: her rigidity of or “all or nothing” thinking; quick to make judgments; developmentally not age appropriate; inability to tolerate stress and need for support to get to brief appointments without lashing out. Because J.P. presents in a complex way, Dr.

Parekh explains that it is difficult to know what behaviour is from the use of drugs, from lack of sleep, or from her FAS. [ 48 ] Dr. Parekh also explained that “combined type” of ADHD meant that J.P. has issues both with inattention and hyperactivity. J.P.’s brain cannot sustain attention on the task at hand. When he met with J.P. in 2022 she had a remarkable presence of ADHD features, such as difficulties in school, inability to sustain minor structures and rules; inability to remember to take her medicine; forgetfulness and impulsivity; and a high risk of “blowing up”. [ 49 ] In Dr.

Parekh’s opinion, FAS and ADHD often are closely connected. A person’s wiring for focus is in the part of the brain that can be affected by alcohol, which damages that part of the brain even more. A person’s ADHD can then become difficult to treat because treatment medication can make a person irritated and angry. [ 50 ] Dr. Parekh explained J.P.’s diagnosis of PTSD was an extension of her attachment disorder and the early childhood trauma that she experienced. This makes her more vulnerable to be retraumatized.

Because of this diagnosis, J.P. puts herself in situations of vulnerability in relationships and substance abuse. The fact that it is labelled as “complex” PTSD, meant that when a child experiences trauma before language is developed, they cannot create a narrative in their mind to understand when they are triggered by a certain experience. Therefore, J.P. may react to triggers that she is unaware of. Dr. Parekh indicates that J.P. struggles with decisions by authority figures for her, but her “danger filter” is very skewed, which places her at risk. [ 51 ] In Dr.

Parekh’s opinion, J.P.’s aggression is strongly based on her mental health. [ 52 ] Dr. Parekh indicated that although the report from 2014 is dated and the assessment was completed when J.P. was only 7 years old, these are developmental diagnosis, and would not change as J.P. aged. Even though the assessment report dated January, 2014 had a disclaimer that “This information is valid for predicative purposes for two years from the date of the assessment”, this is a standard disclaimer. A person’s learning, language and cognitive skills may change as the person grows, but these diagnosis would not change.

Issues such as J.P.’s exposure to alcohol in utero, does not change. [ 53 ] Dr. Parekh strongly relied upon Dr. Gross’ previous diagnoses. There is no cure for either FAS or ADHD, but they can be treated. What may change over time is J.P.’s adaptability and how she has learned to manage these diagnoses since 2014 and make her

higher functioning. [ 54 ] Although Dr. Parekh diagnosed J.P. with cannabis use disorder in 2022, he is unaware of her present usage and if she would still qualify for this diagnosis. [ 55 ] Dr. Parekh agreed that a diagnosis of ADHD and FAS on their own may not qualify a youth for secure treatment as many youth have these diagnoses. Dr. Parekh indicated that J.P.’s diagnoses of FAS and PTSD fit the definition of a “mental disorder” as these grossly impair J.P.’s capacity to make reasoned judgments.

Although J.P. may present as an age-appropriate adolescent, her judgement is limited because of her FASD and this places her at higher risk. [ 56 ] Still Dr. Parekh has not seen J.P. for one year and has not assessed her management of her diagnoses, which he agrees could change over time.

However, he was very concerned by the fact that J.P. had been missing for over 2 months, appeared to be malnourished and had bruising on her when she was found, which is indicative of poor choices she has made in the past and could place her at risk. [ 57 ] Given the serious infringement on the child’s liberty, secure treatment should not be a means of managing difficulty behaviours where alternative placements have broken down rather than a means to procure necessary treatment.

Impulsiveness and bad judgment do not equate to gross impairment of the child’s capacity to make reasoned judgments. [10] I do not find that this is a case where J.P. is just impulsive and makes bad judgments. J.P. has been diagnosed at a fairly early age with significant mental health issues that have grossly impaired her judgment. [ 58 ] Therefore, I find that J.P. has a mental disorder as defined under the Act.

Criteria B: The child has, as a result of the mental health disorder, caused or attempted to cause serious bodily harm to herself or another person within 45 days immediately preceding the Application. [ 59 ] Timing of events is very important when dealing with secure treatment applications. The initial Application for Secure Treatment was dated March 3, 2023 but was not filed with the court until June 13, 2023.

Rule 8(1) of the Family Law Rules indicates that to start a case, a person shall file an application, including an Application for Secure Treatment. [ 60 ] As the original Application was commenced on June 13, 2023, this incident must have occurred within 45 days prior to that date, being on or after April 30, 2023 and on or before June 13, 2023. The caselaw has clarified the following principles related to this criteria of the test: The 45 days referenced in this

section is a strict time limit and must not be deviated from. [11] In Weechi-It-Te-Win Child and Family Services v. F(DK) as the child’s serious behaviour and harm fell outside of the 45 days, the application for secure treatment was dismissed. There must be a nexus between the mental disorder and the threat of self-harm/harm to another person.

The serious bodily harm a child causes, or attempts to cause, must stem from a mental disorder, and not be a case of self-defence, or the case of poor judgment of a gravitation towards undesirable persons. [12] The purpose of secure treatment is to create a program for treatment of children with mental disorders.

Therefore, placing a child in a secure treatment program for behaviour that is not tied to a mental disorder would obscure the purpose of secure treatment and be an inappropriate imposition on a child’s liberty rights. [13] There is a high threshold of harm required to meet the test under this subsection. The evidence must support not only that bodily harm has been caused or attempted, but serious bodily harm. To be “serious” the harm must not be “trifling or superficial”.

For example, cuts that require stitches are “serious” but cuts that do not require stitches are not serious. [14] Something more than minor assaults or nuisances, or an assault that causes merely bodily harm and not serious bodily harm. [15] Harm that is extremely worrisome does not necessarily constitute serious bodily harm, particularly where the victim suffered no injuries nor required medical attention. [16] Even in a case where a youth abused substances and alcohol, was raped while conversing with undesirable individuals and punched her sister in the face reopening stitches that the sister received from an unrelated incident was not enough to meet the test of causing or attempting to cause serious bodily harm. [17] [ 61 ] J.P. was missing from April 25 th to June 13, 2023 and there is no identified specific incident where she attempted to cause serious bodily harm to herself or another person.

Dr. Parekh acknowledged that he was unaware of what happened with J.P. in the 45 days prior to the commencement of the secure treatment application, and that this criteria of the test may not have been met. However, he could only make the application once he knew that a bed was available at Syl Apps, being after June 6, 2023. [ 62 ] The Applicant and the Society both argue that due to the fact that J.P. was roaming Guelph and missing for over 2 months places her at risk of serious bodily harm. She had no place to stay and no money to the Society’s knowledge.

When J.P. was eventually found, she had bruises on her arms and legs and appeared malnourished. But there was no evidence regarding how she was injured. J.P. advised Ms. Heaney that she had injured her hand when she was missing as her ex-partner hit her with a police baton. J.P. had an x- ray but not results of this x-ray were provided. In Ms. Heaney’s opinion, when J.P. was finally located on June 28, 2023, she was thin and had lost about 20 pounds from her regular normal healthy weight. Ms.

Heaney testified when J.P. was found it was the worst she had ever seen her. [ 63 ] When she was incarcerated at Craigwood at the end of June, 2023, J.P. admitted to staff there that she had been using fentanyl and meth, and recently used. However, there was no information about when J.P. specifically used drugs, which could have been after June 14 th . Ms. Heaney admitted that there is no information that from April 30 th to June 13, 2023, J.P. had hurt or attempted to hurt herself or anyone else.

[ 64 ] I cannot find that being missing and being found with some bruising that did not require medical attention and appearing malnourished meets the high threshold of “serious” harm to meet the test under this subsection. Although J.P.’s circumstances while she was missing are extremely worrisome, that does not necessarily constitute serious harm. [ 65 ] I note that when J.P. was finally located in Guelph on June 28, 2023, she was initially taken to the Guelph General Hospital for assessment but was not Formed under the Mental Health Act at the hospital and released to police.

There was no information that the hospital was concerned about her mental health at all. If she had attempted serious harm to herself while being at large, most likely she would have been hospitalized. [ 66 ] What is at stake for J.P. is the underlying goal of preventing the arbitrary loss of J.P.’s liberty. The language in section 164(1) (

b) is clear and unambiguous that there must be an incident within 45 days of the secure treatment application being commenced of the youth, as a result of her mental health disorder, causing or attempting to cause serious bodily harm to herself or another person. [18] There is no evidence to satisfy this criteria. [ 67 ] Although I cannot find that that all of the criteria under s. 164(1) are met, I will briefly discuss the analysis under the remaining criteria.

Criteria C: The child has, within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death. [ 68 ] With respect to this third criteria, the qualifying behaviour or act is broadened beyond an attempt to cause or causing serious bodily harm.

It includes a substantial threat to cause serious bodily harm to themself or another person, evidenced by words or conduct of the child. However, this act must have taken place within 12 months prior to the application being commenced.

It also must not be the same act that is relied upon under Criteria B unless the child caused or attempted to cause another person’s death, which is not the situation in this case [19] . [ 69 ] Particulars of the incidents of aggression are required; not just a blanket statement that numerous incidents have occurred without providing specifics of the incidents. [20] [ 70 ] Specific intent to cause serious harm for each incident is not required.

It is enough, looking at a collection of behaviours, if the child knew or ought to have known that by continuing to engage in these behaviours the cumulative effect would be that he would have caused serious harm to himself or others. [21] [ 71 ] All parties agree that this criteria has been met. I also find that since June, 2022, 12 months prior to the application being commenced, J.P. has made a substantial threat to cause serious bodily harm to another person. She has: In September, 2022, J.P. lit a peer’s jacket on fire.

In September and October, 2022, she assaulted her children’s services worker with a weapon by throwing a cup of coffee and soda can at her worker’s face and uttered threats against her. She threatened to kill staff of the group home while she had a knife on her and heard voices repeatedly telling her to kill people. She also assaulted her CMHA worker by kicking and punching her and pushing her down some stairs. 911 was called during this incident, but the worker did not sustain serious injuries.

On October 7, 2022, after being placed on a Form 2 at the Guelph General Hospital, J.P. was agitated, shouting and punched a concrete wall and threw things. Ms. Heaney indicated that J.P. only punched the wall once and did not react after she punched it. There was no evidence of any injuries to J.P. as a result of this incident. On April 4, 2023, J.P.’s children’s service worker, Ms. Heaney, was trying to develop a safety plan for J.P. J.P. began to escalate and was yelling at Ms. Heaney, telling her to “get the fuck out of the room”. Ms.

Heaney left the room, and J.P. screamed at her that she would “punch her in the face” if she came into the hallway. On this date, J.P. disclosed being sexually assaulted by someone and she was scheduled to be interviewed by the police the next day, but went missing. • On April 5, 2023, when her worker, Ms. Heaney told J.P. that her placement was an apartment with staff supervising her, J.P. “lunged” at Ms. Heaney, which Ms. Heaney describes as getting up quickly, coming towards her and yelling. Ms. Heaney acknowledged that J.P. did not raise her hand, did not touch her, and Ms. Heaney did not suffer any injuries.

Criteria D: The secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person. Criteria E: Treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates. [ 72 ] The fourth and fifth criteria are interrelated. [ 73 ] To meet these criteria, a medical professional with knowledge of the secure treatment program must provide a professional opinion to establish that the specific treatment proposed for the child would be effective.

This part of the test goes beyond merely arguing that while the child, J.P is locked up, she would be less likely to cause serious bodily harm to himself or to someone. [22] [ 74 ] If J.P. is to be committed to a secure treatment program, the program must be equipped with the type of services required to prevent her from causing or attempting to cause serious bodily harm to himself or others. [23] Further, it must be appropriate for J.P.’s specific mental disorder and there must be evidence of the likelihood of the treatments’ success. [24]

[ 75 ] In McMaster Children’s Hospital v. L.R. [25] Justice Starr noted that, starting at paragraph 106 to 111: “ Syl Apps is a secure setting which specializes in managing and treating children with complex mental disorders and high risk behaviours. Syl Apps provides evidence-based assessment and treatment for the children who are committed to the program.

All of the children who are committed to secure treatment there are housed on one unit… It offers long term residential treatment and uses an inter- professional model of care consisting of psychiatry, psychology, social work, art therapy, recreation therapy, clinical case coordination and nursing. The program at Syl Apps provides constant 24/7 supervision and a secure environment. The unit is staffed by child and youth workers at a ratio of one staff for every two children. … At night the child’s room is locked from 11 p.m. to 7 a.m… At Syl Apps the use of restraints is available.

This can include physical restraints such as the application of Velcro cuffs or restraining techniques employed by staff trained in their application and use.” [ 76 ] Before he commenced the application for secure treatment, Dr. Parekh met with a psychologist from Syl Apps to determine if J.P. would benefit from their program and to discuss what he hoped for J.P. from the program. [ 77 ] In his affidavit, Dr.

Parekh indicated that in his opinion Syl Apps could offer some of the following benefits to J.P.: • Longer term stability and a level of routine that she has not enjoyed to date; • Diagnostics and observation; • Consistency in her medication regime for her which to date she has not been compliant with; • Access to regular psychology; • Coping skills; and • School, which has been intermittent at best. [ 78 ] In his testimony, Dr. Parekh further indicated that being placed in a secure facility will give J.P. time to be substance-free, which would take 8 -12 weeks.

This would permit the facility to observe J.P.’s baseline to truly know her best functioning, which is something that would be difficult to accomplish in the community. Dr. Parekh’s knowledge of the team approach at Syl Apps with many different service providers assigned to one youth is more comprehensive to be able to meet J.P.’s needs. If the team is part of one institution, this eliminates the risk of lack of communication if there are many involved in J.P.’s treatment but do not have a level of constant communication.

In the past, J.P.’s treatment has been constantly interrupted as she has continued to run from placements. J.P. would be able to create a trust relationship with her caregivers in secure treatment, which is essential given her diagnosis of insecure attachment. To treat J.P.’s past trauma requires consistent engagement with services which is what J.P. will be offered at Syl Apps. Dr. Parekh noted that J.P has struggled with learning, which could make her feel helpless. At Syl Apps, she may discover methods of learning that would be helpful for her. [ 79 ] Dr. Giovanni Foti testified.

He is a registered psychologist, and clinical manager at Syl Apps since 2010. He explained that: Syl Apps is a large facility with a school attached to it. There are 8 cottages where the youth reside. Each cottage/unit is like a loft; with an eating area, lounge area, and bedrooms. The doors to the bedrooms are locked between 11 p.m. and 7 a.m., and the unit is also locked. Each bedroom has a bed and desk and a window that cannot be opened. Initially a youth would not have access to many personal items in their room, but as safety concerns decrease, the youth will have more access to personal items.

There are many services at Syl Apps, including a wellness centre; a gym; a sensory room; a spiritual place; outdoor courtyards with gardens; places to play basketball, soccer and baseball. Mr. Foti explained the youth’s routine during the day including attending school; breakfast, lunch and dinner breaks; time for therapy and recreational activities. Each youth has a professional team including youth workers; social workers; art and recreational therapists; psychiatrists, psychologists, nurses, nurse practitioners, case coordinators, and transitional support workers.

There are groups available for issues such as coping skills and substance abuse. Youth are not permitted to have cell phones, but a phone is available to them. Visits with friends/family are encouraged and can happen daily. Syl Apps have a least restrictive policy to manage aggressive behaviours, and verbal de-escalation is always the first resort. They do use physical restraints starting with the least intrusive (hand on arm to re-direct) to holding a youth on the floor or against the wall. They sparingly use mechanical/Velcro restraints such as handcuffs. They do not use any chemical restraints.

In cases of extreme emergency 911 is called. [ 80 ] Dr. Foti explained that if J.P. is admitted, there will be an initial assessment with a nurse, nurse practitioner and psychiatrist. She will be assigned a therapist to review her history. They will develop treatment plans for therapy and medication. Regular school will be offered to J.P., but she is not forced to attend. There will be meetings with outside collaterals throughout her stay, such as psychiatrists and the Society to plan for her integration back into the community. In Dr.

Foti’s opinion, a reintegration plan is one of the most important aspects of secure treatment so that youth can maintain their successes in the community. [ 81 ] Dr. Foti acknowledged that he had not actually met J.P. but only reviewed reports about her. A formal treatment plan for J.P. would not be developed until she was admitted to Syl Apps. Dr. Foti knew that J.P. had not been in a stable place for several years.

For J.P., a place without access to substances in a secure environment to be able to access treatment would be essential for her. [ 82 ] A team from Syl Apps has already been assembled for J.P., including a case manager, a nurse, a psychologist, and a child and

youth worker. They have all reviewed the reports on J.P., and scheduled a meeting with her on July 10, 2023 to begin to develop a treatment plan. Due to J.P. being required in criminal court, this meeting could not occur but has been rescheduled for July 12, 2023. [ 83 ] Dr. Foti acknowledged that as a specific program was not developed yet for J.P. he cannot predict if secure treatment would be successful for J.P. However, he believed that a treatment program appropriate for J.P.’s mental disorder could be created to help her develop coping strategies and skills.

He also acknowledged that J.P. would have to engage in the program for it to be successful. [ 84 ] Ms. Heaney has had multiple meetings with Syl Apps to discuss J.P.’s needs and determine if this was an appropriate placement for her, which she believes it is. J.P. has never consistently attended high school, and the most promising moments she had in school was when she was incarcerated at Craigwood. Syl Apps can offer her education in a structured, secure setting. [ 85 ] Approximately 15 years ago, Ms. Heaney worked with a youth with similar diagnoses that J.P. has to obtain a placement at Syl Apps.

This youth was successful to transition to the adult sector after his treatment at Syl Apps. J.P. will be 18 years old in November, 2023 and the Society will be working to transition her to the adult developmental sector. Syl Apps specifically can assist to transition J.P. to her own residence in the community. An updated assessment is required for J.P. to transition to adult services, and in the past when an assessment was offered in the community J.P. was not cooperated.

She is more likely to cooperate if the assessment is done in a secure setting. [ 86 ] Although there are no guarantees that J.P. will engage in therapy and counselling at Syl Apps, her worker, Ms. Heaney testified that on June 28, 2023, for the first time since her involvement with J.P. over the past 9 months, J.P. indicated that she would be open to going to treatment as she no longer wanted to run and have this lifestyle. Ms.

Heaney indicated that treatment will be more valuable for J.P. if she is willing to engage. [ 87 ] Therefore, I find that at Syl Apps J.P. would receive the treatment that she needs and that it will be effective in treating her specific mental health issues. Criteria F: No less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances. [ 88 ] As stated by Justice Starr in McMaster Children’s Hospital v. L.R., at paragraph 134 , there are at least three key guiding principles regarding Criteria F: (

a) All other treatment options outside of secure treatment have been considered and none of them have been or would be appropriate in the circumstances. (

b) The evidence must address the specific efforts that were made to exhaust all options available to support the child outside of a secure setting. (

c) Evidence that the child could benefit from secure treatment or that it is in the child’s best interest to attend secure treatment is not sufficient. [ 89 ] The test is not whether another placement is available but rather whether another less restrictive method of providing treatment is appropriate. [26] Evidence that the child could benefit from secure treatment or that it is in the child’s best interest to attend secure treatment is not sufficient. [27] [ 90 ] However, while the applicant has the onus of showing that he has exhausted all options, this does not mean he must explore every idea.

The applicant must explore all reasonably viable and known alternatives to secure treatment. The challenging party must either through cross examination of the witnesses or by leading evidence to support the assertion, establish on a prima facie basis that: 1 . There exists another method of providing treatment appropriate for the child’s mental health disorder and which is appropriate in the circumstances.

This would include demonstrating on a prima facie basis that the alternative is available, can be immediately implemented or implemented in short order and will be effective in preventing the child from causing or attempting to cause serious bodily harm to himself, and will provide treatment appropriate for his mental disorder; and 2 . The applicant has failed to properly explore this alternative. [28] [ 91 ] In Dr. Parekh’s opinion, there are no other alternatives to secure treatment that are presently available to keep J.P. safe.

J.P.’s repeated aggressive behaviours continuously place her in the criminal justice system where she cannot get treatment. He did not believe that J.P. was a criminal: because of her mental health issues she makes poor judgments. Locally, the only mental hospital she could attend would be Grand River Hospital in Kitchener, and there is no psychologist on site. London Health Sciences would not accept her as she is close to 18 years old. [ 92 ] Dr. Parekh listed 8 placements that J.P. has had from October, 2021 to the present, in addition to staying in a hotel with her mother.

These placements include foster homes, group homes and hotels, sometimes with 2:1 staffing at times. These placements were not successful for J.P., most recently because of the violence perpetrated by J.P. against staff, workers and peers. [ 93 ] During this period of time, J.P. has had access to the following services:

• The Youth Hub, where J.P. would have access to a team of professionals to assist her with housing, mental health, a s. 23 school, psychologist and a psychiatrist, and nursing staff to provide health education and drug treatment. This has not been successful. • The Society has hired Barrantes and Associates to do one-on-one work with J.P. and support her in the community.

However, J.P. claimed that staff from Barrantes were having sex with her and injecting her with drugs, and this is part of the reason that she runs away. • During periods when J.P. has been in custody at Craigwood from October to December, 2022 and January to February, 2023, J.P. had a suicide attempt and did speak with a counsellor but this was a short term counselling only. • J.P has also had the support of: o An FASD support worker o Dr.

McLeod, a psychologist o An anti-human trafficking worker through Women in Crisis; o CMHA supports o Amanda Bayer to assist J.P. to connect with Metis services. [ 94 ] Because of J.P.’s residential instability any mental health treatment offered has not been successful. Although J.P. has been formed in the hospital on several occasions, this has only provided short term treatment and J.P. requires longer term treatment. In Dr. Parekh’s opinion, any voluntary treatment option would not be suitable for J.P. [ 95 ] Dr.

Foti testified that he could not think of a less intrusive program for J.P. as the voluntary nature of other programs would not ensure that J.P. got treatment. It is the treatment available at Syl Apps coupled with the secure setting that is required for J.P. The staffing and monitoring at Syl Apps is unique and more appropriate for J.P. than an involuntary hospital setting. [ 96 ] J.P. has not been open to engaging in any less restrictive forms of treatment. J.P. has not consented to stabilizing in any form of housing.

The Society has reached out to multiple Outside Paid Resources (“OPRs”), and, given her behaviour, none will accept her at this time. J.P. is presently incarcerated and the Society has no bail plan other than secure treatment. [ 97 ] Ms. Ruoso on behalf of J.P. put to Ms. Heaney two alternatives: requesting a

section 34 assessment under the YCJA and an indigenous healing and treatment centre. Neither of these alternatives had been explored by the Society. Ms. Heaney could ask the crown attorney dealing with J.P.’s matter to request a s.34 assessment, but that would take time to obtain while J.P. would be in custody and not getting treatment, and there is no guarantee that the order would be made. Ms. Heaney acknowledged that she had not canvassed the option of an indigenous healing and treatment centre given J.P.’s high level of need from services. In Dr.

Parkeh’s opinion, a placement such as a healing lodge that would not provide a team approach would not be suitable for J.P. [ 98 ] There was no other appropriate treatment option that was presented for J.P. other than secure treatment. Conclusion on Commitment: [ 99 ] As indicated, I cannot find that in J.P.’s case all of the criteria pursuant to s. 164(1) have been met, which was admitted by the applicant, Dr. Parekh.

As such, I cannot commit J.P. to a secure treatment program at this time, given the high threshold and strict compliance with the test pursuant to s. 164(1). [ 100 ] J.P. is presently incarcerated, and the Society acknowledges that the only “bail plan” to have her released is a placement at Syl Apps. They have no other viable options.

The extraordinary measure of admitting a child to a locked secure treatment facility is not be viewed as a placement option. [29] [ 101 ] While it is clear that the program at Syl Apps would greatly benefit J.P. and that it is in her best interests to be in a safe, secure setting with the treatment that will meet her needs, that is not the test for committing J.P. to secure treatment. The test for committal is not a “best interests” test. [30] If that was the test, my decision may be different. [ 102 ] I commend all counsel for their passionate submissions to attempt to get the best treatment for J.P.

I commend the parties; the Society and Dr. Parekh for their significant efforts to assist J.P. As J.P. is close to turning 18, this may be one of her last opportunities to get the specialized treatment that Syl Apps can offer. I am fully aware that J.P. is an indigenous young woman, who may be lost in the criminal justice system where there are disproportionate numbers of indigenous women in custody. She has already been a missing indigenous young woman.

I am also aware that there are significant liberty interests at stake for J.P. to commit her to secure treatment without her consent. [ 103 ] There may be evidence that will meet the test for secure treatment at some point before J.P. turns 18. I hope that J.P. may now be open to treatment as she recently advised Ms. Heaney that she no longer wanted to run and have this lifestyle.

It must be reinforced to J.P. that there are a lot of people willing to assist her to ensure she gets the treatment she needs. [ 104 ] On the basis of the evidence before me that I have found does not meet all of the criteria and strict test for secure treatment pursuant to s. 164(1), Dr. Parekh’s application for secure treatment for J.P. dated March 3, 2023 and the amended application for secure treatment dated June 22, 2023 shall be dismissed. Released: July 19, 2023

Signed: Justice K.S. Neill