“The legal and factual considerations applicable to a secure treatment application were recently reviewed by Justice Starr in McMaster Children’s Hospital, Dr. Jennifer Couturier and L.R.U and J.U 2019 ONCJ 496. In that matter, the court summarized the key guiding principles in such an application at paragraphs 14, 18 and 26:
14. Secure treatment is a highly intrusive procedure that engages children’s section 7 rights under the Charter. The Legislature has recognized this by placing the secure treatment provisions in a special part of the Act entitled “Extraordinary Measures” and by highlighting at section 158 of the CYFSA that secure treatment programs impose continuous restriction on a child’s liberty.
18. It recognition of the highly intrusive nature of this type of order and to ensure that this procedure complies with the Charter and the principles of fundamental justice, both the CYFSA and jurisprudence recognize that long-term secure treatment orders can only be made if the strict criteria are met.
26. Taking all of the foregoing into account along with the guiding principles this Court summarized at paragraph 20 of its’ decision in an Ontario Shores Centre for Mental Health Sciences v. C. S., supra, the following emerge as the key guiding principles with respect to how the court is to safeguard against the arbitrary loss of a young person’s liberty in the context of the secure treatment applications, be the applications of first instance or applications to extend the committal:
1. The loss of a young person’s liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;
2. an order committing a child to secure treatment is to be considered as a remedy of last resort;
3. the applicant bears the onus to demonstrate why the young person should be(or continue to be) committed to a secure program against the child’s wishes;
4. to fulfil its own as the applicant must:
a. adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria have been met;
b. direct evidence from a psychiatrist whose opinion evidence resulted in the child’s admission;
5. the court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.
6. The evidentiary standard on such applications is that the evidence must be trialworthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form;
7. the court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of the evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;
8. the court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in sub section 164(1) (secure treatment applications) and ss.167(1) (extension applications) have been met;
9. the court retains the jurisdiction to decline to make a committal order, even in cases were all of the criteria have been met.”
Children’s Aid Society of Ottawa v. G.L., 2019 ONSC 7528 (CanLII) at 7