Court and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20220328 DOCKET: C69777
Simmons, Miller and Nordheimer JJ.A.
IN THE MATTER OF: Siobhan Arnatsiaq AN APPEAL UNDER PART XX.1 OF THE CODE
Counsel: Anita Szigeti, for the appellant Jacob Millns, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in Charge of North Bay Regional Health Centre
Heard: March 25, 2022 by video conference
On appeal from the disposition of the Ontario Review Board, dated July 8, 2021, with reasons dated August 9, 2021.
Reasons for Decision
[1] Ms. Arnatsiaq was found not criminally responsible on May 7, 2021. She appeals from the initial disposition of the Ontario Review Board that made a detention order against her. The appellant submits that the Board erred in making the detention order. In particular, she submits that the Board erred in finding that the appellant poses a significant risk to the safety of the public. She asks that the detention order be set aside and that an absolute discharge be granted. Alternatively, the appellant asks for a conditional discharge with the Royal Ottawa Hospital as supervising facility. In the further alternative, the appellant seeks a new hearing. At the conclusion of the hearing, we dismissed the appeal for reasons to follow. We now provide our reasons.
[2] The appellant has been under the auspices of the Board since May 7, 2021, arising out of charges of assault and failure to comply with a release order. The assault involved an attack by the appellant, while she was in hospital, on a 71‑year‑old female patient. The patient suffered serious injuries as a result of the assault.
[3] The Board found that the appellant continues to pose a significant risk to the safety of the public. The Board accepted the evidence of the attending psychiatrist, Dr. Alabi, that, if released, the appellant would rapidly decompensate. Dr. Alabi said that the appellant had limited and fluctuating insight with respect to her mental illness. He also noted that there had been instances of violence over the years although none of these appear to have resulted in any criminal convictions.
[4] The appellant submits that the Board applied the wrong test in concluding that the appellant posed a serious risk to the safety of the public and that, in the absence of a formal risk assessment, the Board should minimally have been left uncertain as to whether the necessary threshold was met. The appellant notes that she has been suffering from mental illness since she was a teenager yet, despite that fact, she was able to practice law for many years. She also notes that she does not have any prior criminal convictions.
[5] In our view, it was open to the Board, on the evidence, to conclude that the appellant posed a significant risk to public safety. In that regard, the appellant has failed to demonstrate that the Board’s conclusion is unreasonable. With respect to the requirement that there be evidence that a person will commit a criminal offence giving rise to a real risk of serious physical or psychological harm to a member of the public, this must be understood in the context of what serious means. Serious in this context is described as “going beyond the merely trivial or annoying”: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62. Further, there appears to be some evidence that the appellant may be suffering more from her mental illness, and thus acting out more, in recent times than she has in the past.
[6] As for the appellant’s risk assessment argument, the Hospital Report filed at the hearing included a detailed Clinical Assessment of Risk leading the treatment team to conclude that the appellant poses a significant threat to the safety of the public. Although there had been insufficient time between the NCR finding and the hearing to conduct an actuarial risk assessment, it was open to the Board to accept and rely on the clinical risk assessment as it did.
[7] While we recognize some troubling aspects regarding how the appellant’s situation has been handled, we note that the Board took direct action with respect to them. For one, the Board ordered that the appellant be immediately transferred to an all-female unit of the hospital. Inexplicably, the appellant was initially placed on a predominantly male unit, notwithstanding her past history of sexual and physical abuse at the hands of men. For another, the Board ordered a six-month review of the appellant’s situation to ensure that the appellant’s case was progressing in terms of evaluation and treatment. For yet another, the Board appears to be conscious of the fact that it may be better for the appellant if she were housed in a facility in the Ottawa area. We expect that the Board will continue to monitor the situation to determine whether that transfer can be accomplished in a relatively short period of time.
[8] We do not accept that the Board erred in failing to impose a conditional discharge. Given the appellant’s limited insight into her mental illness, the inability of the hospital to effectively monitor her in a community setting, and the risk that the appellant poses, we agree that a conditional discharge was not a reasonable alternative at this time. Again, that was a reasonable conclusion for the Board to reach on the evidence. Similarly, as Dr. Alabi’s evidence was that a community living privilege would not be exercised in the coming year, it was reasonable for the Board not to include such a condition in its disposition.
[9] We also do not accept the appellant’s contention that the Board failed to consider Gladue [1] principles in accordance with the decision of this court in R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.). As noted by Sharpe J.A. in that case at p. 189: “An individual will not be more or less dangerous, nor will an individual be more or less mentally ill, because of his or her aboriginal status.” In addition, a review of the Board’s reasons demonstrates that the Board is fully conscious of the appellant’s background and the need to consider it in its disposition decisions. Further, we expect that the Board will continue to monitor the Hospital’s progress in investigating available and appropriate cultural supports for the appellant in the area and give further direction to the Hospital in that regard if necessary.
[10] It is for these reasons that the appeal was dismissed.
“Janet Simmons J.A.”
“B.W. Miller J.A.”
“I.V.B. Nordheimer J.A.”