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CHILD PROTECTION - Circumstances - Unmanageable children - Medical and psychological treatment

Tuesday, July 07, 2020 @ 5:48 AM  

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Appeal by EMY from a secure treatment order. The order placed the appellant, a child in care, in a treatment facility. The appellant argued the judge erred in admitting an affidavit filed by the Minister because it contained inadmissible hearsay. She also argued references to her past criminal involvement violated the Youth Criminal Justice Act. The appellant, a Mi’kmaw First Nation Band member, was in the permanent care and custody of Mi’kmaw Family and Children’s Services since February 2006. She was presenting with some very challenging behaviours that placed her and others at risk. Her behaviours limited options as to where she could safely reside. At the time the Minister issued the certificate and applied for a secure treatment order, the appellant had run out of placement options and was at increased risk of harming herself and others. In support of the application, the Minister filed the affidavit of a clinical social worker at the treatment facility who was assigned to the appellant’s case. The appellant was at the facility only a few days prior to the social worker swearing her affidavit. In preparing her affidavit, the social worker relied upon documents prepared by other professionals involved in the appellant’s care. The appellant confirmed in her affidavit that she believed the information to be true. The appellant argued that the proceedings should be conducted as if they were a trial with all the attendant formalities. Having determined this was an application to which Rule 16.02(1) applied, the judge found the evidence in the social worker’s affidavit complied with the Rule. The judge found in the alternative that if a proceeding was a hearing and not an application for the purposes of Rule 16, he would have exercised his discretion under Rule 16.02(2) and admitted the affidavit. The appellant also argued it was neither necessary nor in her best interests that she be confined for treatment because there was no evidence the facility offered culturally appropriate treatment and there was a prohibition against speaking the Mi’kmaw language.

HELD: Appeal dismissed. The judge did not err by admitting the hearsay evidence. Affidavits based on information and belief were permissible in secure treatment proceedings. The judge conducted a purposive and consequential analysis of the governing provisions of the Children and Family Services Act and how they interacted with the applicable Rules. The judge did not err by refusing to strike the references to the appellant’s youth criminal involvement from the affidavit. These references were not subject to the Youth Criminal Justice Act records restrictions because they did not meet the definition of a record. The information regarding the appellant’s criminal involvement contained in the affidavit and the records appended thereto were created for the purpose of the related secure treatment order child protection proceeding. To exclude this information would create absurd results and not serve the best interests of children. The judge’s determination that it was in the appellant’s best interests to order secure treatment was supported in the record. The judge was cognizant of the appellant’s need for culturally-appropriate services. His findings that the appellant was suffering from an emotional or behavioural disorder, that it was necessary to confine her to remedy or alleviate the disorder and that the confinement for treatment was in her best interests were amply supported by the evidence.

E.M.Y. v. Nova Scotia (Community Services), [2020] N.S.J. No. 209, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., E. Van den Eynden and C.A. Beaton JJ.A., June 10, 2020. Digest No. TLD-July62020003