The only secure treatment facility in Nova Scotia for youth in care is once again the spotlight this week, as a court of appeal hearing examined how youth are sent to the facility—and whether the care they receive there can be truly expected to meet their needs.
Wood Street Secure Care is where youth in care are sent when they have emotional or behavioral disorders and are considered a danger to themselves or others.
In theory, youth are confined at the facility in order to receive treatment, but advocates and former attendees have said a Wood Street stay can feel more like punishment. In 2018, The Coast reported that some youth preferred juvie to the Truro facility, where they said conditions were more restrictive.
The issues with the facility don’t stop there; in April, the CBC reported that a youth worker at Wood Street had been charged with sexually touching a resident over a period of several months in 2017 and 2018.
At issue this week at the court of appeal—where people can challenge decisions from other courts, in this case, family court in Truro—was the process itself that sends youth to Wood Street. The subject of the hearing was a Mi'kmaq youth, who received and subsequently appealed a secure treatment order for Wood Street.
A secure treatment order keeps a youth in Wood Street for 45 days and can be renewed.
Legal aid attorneys Paul Sheppard and Joshua Bearden argued that the evidence cited in order to send a child to the facility often amounts to hearsay, given that reports of bad behaviour—in other words, the evidence of an emotional disorder requiring confinement—can come from someone with no direct knowledge of what happened.
"Current arrangements place an unreasonable burden on the young person and permit the minister to present one side of what's happening in the community," Sheppard said at the hearing, arguing that a process where youth can respond—like cross-examining the social worker who wrote the referral—would better serve the interests of the youth themselves.
“The situation we’re in now, we cannot test the evidence.”
Lawyers also argued that the lower court decision hadn't given enough consideration of the cultural appropriateness of treatment at Wood Street.
"Courts making decisions about the liberty of Indigenous youth are required to take notice of the legacy, the history of colonization and residential schools," said Bearden.
Of the roughly 1,000 youth in care in Nova Scotia, about 23 percent are Indigenous, according to 2011 Statistics Canada data—in the 2016 census, only 5.7 percent of Nova Scotians identified as Indigenous.
In this case, the youth was sent to Wood Street despite little evidence of culturally sensitive programming and that she would be prevented from speaking Mi'kmaq (at Wood Street, youth are required to have constant supervision, which means private conversations are forbidden, including conversations in languages other than those spoken by the youth workers, like Mi'kmaq).
"The judge ought to have sought out confirmation the facility would be proactive in supporting her speaking Mi'kmaq," said Bearden. “Not to simply turn—and this is what he did do – and focus his questions and even his reasoning in his decision on the deficiency in [the youth’s] fluency and her failure to acquire her language herself.”
Peter McVey, the lawyer for the minister of community services, told the court this concern invoked a hypothetical scenario.
"There's no evidence that there was another Mi'kmaq child at Wood Street at the time, so with whom is she being denied the opportunity to speak?" McVey said. He said the argument on cultural appropriateness also went beyond what is written in the law.
The intervenor in the appeal, Mi'kmaw Family and Children's Services, said the question of language was important, but had to be balanced against other concerns, given the limited options available for youth in care.
"There are at this point, no other secure treatment options available, whether you're Mi'kmaq or otherwise," said lawyer Paul Morris.
If Wood Street was closed to Indigenous youth because of cultural concerns, he said, "There's a concern that Mi'kmaq youth would fall through the cracks."
Bearden argued that, far from closing an option to Mi'kmaq youth, a requirement to weigh cultural considerations when looking at Indigenous youth would open a different door at Wood Street.
"That extra work...is justified by the special relationship between Indigenous peoples and the Crown, and it is demanded by the terrible history of colonization and institutional attacks on Indigenous culture throughout history."
The panel reserved their decision.