“The court may make a secure treatment order provided that the criteria set out in s. 164(1) of the CYFSA are satisfied. Section 164(1) provides:
Commitment to secure treatment: criteria
164 (1) The court may order that a child be committed to a secure treatment program only where the court is satisfied that,
(a) the child has a mental disorder;
(b) the child has, as a result of the mental disorder, within the 45 days immediately preceding,
i) the application under subsection 161 (1),
(ii) the child’s detention or custody under the Youth Criminal Justice Act (Canada) or under the Provincial Offences Act, or
(iii) the child’s admission to a psychiatric facility under the Mental Health Act as an involuntary patient, caused or attempted to cause serious bodily harm to themself or another person;
(c) the child has,
(i) within the 12 months immediately preceding the application, but on another occasion than that referred to in clause (b), caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to themself or another person, or
(ii) in committing the act or attempt referred to in clause (b), caused or attempted to cause a person’s death;
(d) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to themself or another person;
(e) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and
(f) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.
Legal Principles
The parties referred to McMaster Children’s Hospital v. L.R.-U., 2019 ONCJ 496, as the leading case in secure treatment applications. Starr J. provides a helpful review of the key principles that govern these types of applications. At para. 26, Starr J. writes:
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- The loss of a young person’s liberty is a very serious matter. Decisions that have the potential of resulting in such a loss are not to be made arbitrarily;
- An order committing a child to secure treatment is to be considered as a remedy of last resort.
- The applicant bears the onus to demonstrate why the young person should be (or continue to be) committed to a secure program against the child’s wishes.
- To fulfill its onus the applicant must:
- adduce clear, logical, and convincing evidence establishing, on a balance of probabilities, that each and every one of the five criteria has been met.
- direct evidence from the psychiatrist whose opinion evidence resulted in the child’s admission.
- The court cannot make a ruling on the basis of a summary procedure. It is the applicant’s obligation to lead oral evidence and the child is entitled to test that evidence.
- The evidentiary standard on such applications is that the evidence must be trial worthy. It is not permissible to lead or rely on inadmissible hearsay or on hearsay opinion evidence given only in written form.
- The court is required to review the evidence with respect to each criteria carefully and exhaustively; and be satisfied that the preponderance of evidence with respect to each of the criteria, supports a finding that the particular criteria has been established;
- The court may only make an order committing, or extending the committal, where it is satisfied that all of the criteria in subsection 164(1) (secure treatment applications) and ss. 167(1) (extension applications) have been met.
- The court retains the discretion to decline to make a committal order, even in cases where all of the criteria have been met.
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Regarding criteria (b) and (c) of s. 164(1) of the CYFSA, there is an additional legal principle to consider. There must be a nexus between the mental disorder and the act of causing serious bodily harm or attempt to cause it: McMaster, at para. 62.
The court retains the discretion not to make a secure treatment order if it is not in the child’s best interest, even if the criteria are satisfied: McMaster, at para. 9.”