Court of Appeal for Ontario

Date: 2025-09-18 Docket: C69432

Judges: Rouleau, Huscroft and Trotter JJ.A.

Between

His Majesty the King Respondent

and

Michelle Erstikaitis Appellant

Counsel

Michelle Erstikaitis, acting in person

Joseph Wilkinson, appearing as amicus curiae

Manasvin Goswami, for the respondent

Heard: September 15, 2025

On appeal from: the sentence imposed by Justice Alfred J. O'Marra of the Superior Court of Justice on November 29, 2019.

Reasons for Decision

[1] The appellant appeals from an indeterminate sentence imposed following convictions for assault with a weapon, assault causing bodily harm, and carrying a concealed weapon. The convictions arose out of the appellant's actions at the American consulate in Toronto, where she forced her way into the building and slashed a security guard with a box cutter when he tried to stop her.

[2] The appeal is dismissed for the reasons that follow.

Background

[3] The appellant's prior criminal conduct and psychiatric history are set out in detail in the reasons of the sentencing judge and need not be repeated here: R v. Erstikaitis, 2019 ONSC 6863, at paras. 18-20. In short, the appellant has committed offences including assault, mischief, threatening death, criminal harassment, weapons offences, theft, arson, failure to comply with court orders, and breaches of long-term supervision orders. She has been diagnosed with several intractable personality disorders with antisocial, borderline, and narcissistic traits.

[4] The appellant has been subject to two Long Term Supervision Orders (LTSOs). The first was imposed in 2001, following her conviction for arson with disregard for human life. The second was imposed in 2011, following her conviction for assaulting a peace officer, assault with a weapon, possession of a weapon, uttering threats, and breach of the earlier LTSO. The appellant was also designated a dangerous offender as a result of the 2011 convictions. The LTSOs were breached on several occasions and the predicate offences were committed while the appellant was on statutory release and under community supervision.

The Sentencing Judge's Decision

[5] The appellant was sentenced to an indeterminate sentence pursuant to s. 753.01(5) of the Criminal Code, R.S.C., 1985, c. C-46, which provides as follows:

If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[6] The meaning of the provision is clear. An indeterminate sentence must be imposed unless the sentencing judge is satisfied that there is a reasonable expectation that a determinate sentence, with or without a long-term supervision order, will adequately protect the public from the commission of murder or a serious personal injury offence by the appellant.

[7] The sentencing judge considered the appellant's criminal history, her institutional history and behaviour, her psychiatric history, and the results of various psychiatric and risk assessments. He noted her extensive history of violent offences and that her problematic acts and behaviours have increased over time, with no evidence of any meaningful improvement as she has gotten older. She has been consistently diagnosed with several personality disorders and was found to pose a high risk of violence under various risk assessments. One such assessment placed the appellant in the 99.9th percentile.

[8] The sentencing judge considered the observation by amicus (not Mr. Wilkinson) that the violence committed by the appellant did not have serious consequences. Nevertheless, he found that the violence – arson, stabbing her boyfriend with scissors, and slashing the neck and arm of a security guard with a box cutter blade – was serious and that it would be "no more than speculation" to conclude that the appellant could be controlled under an LTSO or at the expiry of such an order. There was no reasonable expectation that a determinate sentence, with or without a new period of long-term supervision, would adequately protect the public. In light of the substantial danger to public safety posed by the appellant and the lack of any reasonable expectation of eventual control in the community, the sentencing judge imposed an indeterminate sentence.

The Sentencing Judge Made No Errors

[9] The appellant argues that the indeterminate sentence imposed by the sentencing judge was disproportionate and unjustified in the circumstances. The argument was set out in a factum provided by counsel, and amicus ably assisted the appellant at the hearing with submissions flowing from points raised in that factum.

[10] The appellant argues, in essence, that despite her lengthy record, she has never caused anyone "more than minor and fleeting bodily harm", and that her violent offences have been "few and far between".

[11] We do not agree.

[12] The sentencing judge carefully reviewed all of the relevant evidence. Although the appellant's prior offences did not have serious physical consequences, it is plain that the appellant has shown a willingness to commit serious personal injury. She has serious personality disorders that are not amenable to treatment and lacks insight into her situation. The recent evidence establishes that the appellant poses a very high risk of violent reoffending.

[13] The sentencing judge was required to impose an indeterminate sentence unless there was a reasonable expectation that a determinate sentence would adequately protect the public against the commission of murder or a serious personal injury offence. His finding that there was no such reasonable expectation is amply supported by the record and is entitled to deference: R v. J.E., 2025 ONCA 409, at para. 11. There is no basis for this court to interfere.

Disposition

[14] Accordingly, the appeal is dismissed.

"Paul Rouleau J.A."

"Grant Huscroft J.A."

"Gary Trotter J.A."