Re Maliani, 2025 CanLII 13637

Re: Maliani Maliani

(DOB: 14.09.86)

ORB File No: 8421

Hearing held on: Thursday January 30, 2025

Place of Hearing: North Bay Regional Health Centre

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. R. Bigelow

Members: Dr. R. Kunjukrishnan

Dr. G. Kerry

Mr. E. Siebenmorgen

Mr. A. Bouvier

Parties Appearing:

Accused: Maliani Maliani

Counsel: Mr. C. Nahum

Person in Charge of the Hospital Counsel: Mr. P. Trenker

Attorney-General of Ontario: Counsel: Ms. M. Mazurski

REASONS FOR DISPOSITION (Dated February 12, 2025)

Introduction

1. On November 3, 2023, Maliani Maliani was found unfit to stand trial on account of mental disorder on charges of assault, assaulting a peace officer(X2), failure to comply with a release order (X3), and failure to comply with probation, all contrary to the Criminal Code. She was most recently subject to a Disposition of the Ontario Review Board (the Board) dated February 15, 2024, ordering her detention at the North Bay Regional Health Center – North Bay Site, Forensic Programs (the Hospital) with privileges up to and including indirectly supervised access to the community of North Bay.

2. On Thursday, January 30, 2025, the Board convened a hearing to review Ms. Maliani’s fitness to stand trial and her Disposition pursuant to sections 672.48(1) and 672.81(1) of the Criminal Code. Ms. Maliani was present at the hearing and was represented by counsel, Mr. Nahum, by video.

Positions of the Parties

3. At the commencement of the hearing the parties were requested to provide their initial without prejudice positions with respect to the issues before the Board. All were agreed that Ms. Maliani is now fit to stand trial and should be returned to court. The parties also agreed that pending her return, the Board should order, pursuant to s. 672.49(1) of the Criminal Code, that Ms. Maliani remain in hospital (in the vernacular, a “keep fit” order). These positions were maintained at the conclusion of the hearing.

Evidence at the Hearing

4. The evidence at the hearing consisted of a Hospital Report dated December 6, 2024 (Exhibit 1) and the testimony of Dr. J.-G. Gagnon, Ms. Maliani’s treating psychiatrist.

Findings

5. For the Reasons that follow, the panel accepted the parties’ joint position, found that Ms. Maliani is fit to stand trial, and ordered that she be returned to court pursuant to s. 672.48(2) of the Criminal Code. On the evidence, the panel also found that there were reasonable grounds to believe that Ms. Maliani would become unfit to stand trial if either released or returned to pre-trial detention. An Order was therefore made that Ms. Maliani continue to be detained in the Hospital until a court determines whether she is fit to stand trial.

Index Offences

6. The circumstances surrounding the alleged index offences are taken from a series of synopses that are reproduced in the Hospital Report. They read as follows:

Assault, May 31, 2023

On May 31, 2023, Frederica DIMARTINO was on the way to school. She was at Greensboro Transit Station. She was sitting down and waiting for her bus. It was at around 0950hrs, and at this time DIMARTINO was already waiting for about 30-40 minutes.

Whole time while she was waiting, Maliani MALIANI described as short, larger build, possibly Philippina, with short dark brown hair, wearing a grey shorts and grey shirt, was yelling and talking to herself. DIMARTINO did not pay much attention to her. MALIANI continued to walk in front of her.

Without warning or provocation MALIANI grabbed DIMARTINO, while she was sitting, by the hair, pulled her down to the ground while screaming something at DIMARTINO. Two others intervene and got her off DIMARTINO.

DIMARTINO got up, got on the first bus that arrived and left.

Once in school she called police to attend.

Assault Peace Officer (X2), Fail to Comply with Probation, Fail to Comply with Release Order, July 21, 2023

On February 2, 2023, the Accused, Maliani MALIANI was convicted for assault and failing to comply with a release order. She was sentenced to twelve months probation with several conditions, Information #22-11404573 and 22-1140888; The Probation Order is valid from February 2, 2023 to February 2, 2024, and was issued by Justice H. Perkins-McVey of the Ontario Court of Justice. The Accused is bound by several conditions including to keep the peace and be of good behaviour.

On June 21, 2023, the Accused was charged with assault and released from custody on a Form 11 Release Order entered before Justice of the Peace L. LEBLANC. The Accused was bound by conditions, which included to “not attend OC Transpo property EXCEPT if you are required to report to the John Howard Society in person to meet with your bail supervisor, you may travel directly to & from 110 Bell St, South, Ottawa ON by bus.”

On July 2, 2023, at 12:45 a.m., at the Hurdman OC Transpo Station, located at 1432 Riverside Drive in the City of Ottawa, OC Transpo Special Constables KENNEDY and WILKES observed the Accused walking around the bus shelters inside the station. Special Constable KENNEDY was aware that the Accused was on conditions to not be on OC Transpo property and engaged the Accused.

The Accused was reminded of her conditions and instructed to leave the property. The Accused ignored the officers and moved towards another bus shelter. When officers approached her again, the Accused assaulted them by throwing coffee at them, striking the officers in the face, neck and upper body. The coffee was discovered to be cold and neither officer was injured.

The Accused was arrested for assaulting the two peace officers. The Accused resisted the officers by failing to comply with verbal instruction and physically resisting the officers, who were required to bring the Accused to the ground to obtain physical control.

The arrest and the Accused resistance were witnessed by transit employee Jason BUCK. She was advised she was also being arrested for assault peace officer (x2), resist peace officer, breaching the probation order for failing to keep the peace and breach of release order, for being on OC Transpo property. The time of day made it highly unlikely that the Accused was using transit to attend the John Howard Society.

The Accused sustained a minor injury and was treated by paramedics, but requested transport to hospital.

At 2:02 a.m. the Accused was released on a Undertaking with a first appearance date of August 30, 2023, in Courtroom #14 at the Ottawa Courthouse, 161 Elgin Street in Ottawa. She was instructed to appear in room #1057 at that same location on August 15, 2023, at 9:00 a.m. for fingerprints and photograph (Identification of Criminals Act).

The Accused was transported to hospital by paramedics.

Fail to Comply with Release Order, July 17, 2023

On July 17 the Accused Maliani, Maliani while bound by a release order issued by the Hon L Leblanc on June 21 2023 with the explicit condition to Report to the John Howard Society Bail Supervision Program by phone on June 23, 2023 at 1000am was in breach of such condition.

The Accused failed to contact her Bail Supervisor Melissa Bradford at 1000am on June 23 2023. The Accused was afforded a second opportunity outlined in the form of letter sent to 256 King Edward Ave with new time of 100pm on July 11 2023. Once again, the Accused failed to report to her supervisor on the given day and time. Furthermore, she made no effort after the fact to report or explain her failure to do to her Bail supervisor Melissa Bradford.

As a result, Maliani, Maliani is charged with one count of Breach of Release order contrary to section 145(5) of the Criminal Code of Canada.

Fail to Comply with Release Order, July 17, 2023

On June 21, 2023, the Accused, Maliani MALIANI was charged with assault and was released on a Form 11 Release Order before a Justice of the Peace. It was issued by Worship L. LEBLANC of the Ontario Court of Justice.

The Accused was bound by several conditions, including:

Report to the John Howard Society Bail Supervisor BY PHONE on Friday June 23, 2023, at 10:00 a.m., and thereafter as directed by your Bail Supervisor. Melissa Bradford 613-282-5584

Do not attend any OC Transpo property, EXCEPT if you are required to report to the John Howard Society in person to meet with your bail supervisor, you may travel directly to & from 110 Bell St., South, Ottawa ON by bus.

OC Transpo Special Constables dealt with the Accused on transit property in eight events between June 21, 2023 and July 14, 2023.

On July 14, 2023, at 9:00 a.m., OC Transpo Special Constable RYCKMAN, the Special Constable Court Liaison Officer, spoke to Melissa BRADFORD by phone and emailed Ottawa Police Constable COVIC to report the multiple breaches of the Accused condition to not be on OC Transpo Property. Information was received that Cst. COVIC was not available until July 26, 2023.

Ms. BRADFORD reported that the Accused had never reported to the John Howard Society and she had reported the Accused to be in breach for failing to report.

At 3:43 p.m. Special Constable RYCKMAN advised OC Transpo Special Constables via email that any further contacts with the Accused, should result in an arrest and bail hearing for any further breaches of the order.

On July 17, 2023, at 11:27 a.m., OC Transpo Special Constable GALIPEAU and MANDINO found the Accused at the Blair OC Transpo Station, 1200 Blair Road in the City of Ottawa.

The Accused was arrested for Fail to Comply with the Form 11 Release Order condition to not be on OC Transpo property.

She was read her Charter Rights, Cautioned, and section 524 caution.

At 12:07 p.m. the Accused was transported to the Ottawa Police cell block, 474 Elgin Street.

The Accused declined to speak with counsel.

At 12:25 p.m. the Accused was lodged in cells for show-cause hearing.

Background Information Regarding the Accused

7. Ms. Maliani is currently 38 years of age and single with no dependents. She reportedly was born in Thantlang, a city located in the northwest region of Myanmar (Burma) near the borders of India and Bangladesh. Little information is available about Ms. Maliani’s birth family and early childhood. She reportedly grew up with her biological parents and two siblings, including a brother and a sister who passed away in early childhood. Some reports suggest she was adopted by another family sometime between the ages of seven and ten. She lived in India for several years with her adoptive family before immigrating to Canada with her adoptive father in 2003, when Ms. Maliani was approximately sixteen years old. Ms. Maliani's first languages are the Mizo and Hualngo dialects of Chin, a family of languages native to the Himalayan region. These languages have few speakers outside this area. Ms. Maliani is also familiar with Burmese, which she understands but does not speak.

8. Ms. Maliani is reportedly no longer in contact with her adoptive father, who most recently was noted to be residing in Quebec. Healthcare records suggest that Ms. Maliani also has an aunt residing in Canada, although she is not in regular contact with her. Records suggest that most of Ms. Maliani’s family who came to Canada live in British Columbia. She reportedly does not have any family in the Ottawa area, where she was living at the time of the index charges.

9. Of note, Ms. Maliani attended an adult learning school to study English after immigrating to Canada but has no other formal education beyond attending primary grades in Myanmar and India.

10. Ms. Maliani is supported financially by Ontario Disability Support Program (ODSP) benefits. She is homeless and was reportedly living in the shelter system in Ottawa prior to her arrest for the index charges.

Legal History

11. Prior to the index charges, Ms. Maliani was on probation, having been conditionally discharged for an assault and for failure to comply with a release order. Several charges had been withdrawn, including an assault in 2019.

Psychiatric History

12. The Hospital Report details Ms. Maliani’s 10-year psychiatric history prior to the index charges. She was formally diagnosed with schizophrenia in March of 2013. She has not been consistent with outpatient follow-up and medication adherence in the community. Schizophrenia remains her current diagnosis.

Evidence of Dr. Gagnon

13. Dr. Gagnon summarized the information in the Hospital Report, highlighting that Ms. Maliani has had ongoing psychoeducation regarding the court process over the past reporting year. She has also been attending classes to improve her English language ability.

14. Dr. Gagnon also noted, as discussed in the Hospital Report, that Ms. Maliani’s antipsychotic medication was switched to clozapine in the past year. She continues to experience some residual symptoms of her illness, however. Ms. Maliani is described as very polite and pleasant on her unit.

15. Dr. Gagnon addressed the issue of fitness to stand trial, which is also discussed in the Hospital Report. In the doctor’s opinion, Ms. Maliani is now able to understand the roles of the various court personnel, as well as the nature, object and consequences of the proceedings. She has an understanding of the various potential defences to the charges, including the “not criminally responsible” verdict. She is able to communicate with counsel and provide instructions to counsel in the conduct of the proceedings.

16. Dr. Gagnon expressed the opinion that there is a high likelihood that Ms. Maliani would become unfit to stand trial if she were not in hospital and stated that the Hospital is willing and able to keep her until she is able to return to court. He further advised that the Crown Attorney’s office in Ottawa has been alerted to the current situation with Ms. Maliani.

Analysis and Conclusions

17. The panel finds that the evidence amply supports a finding that Ms. Maliani is now fit to stand trial. We accept the evidence of Dr. Gagnon, supported by the Hospital Report, in this regard. Both concerns expressed in the evidence and Reasons from Ms. Maliani’s initial Board hearing last year (her mental disorder and her challenges with the English language) have been the subject of considerable positive work by both Ms. Maliani and her treatment team over the past reporting year. It is evident that the medication change has resulted in a reduction of Ms. Maliani’s residual symptoms of psychosis and an improvement, which she has verbalized, in her ability to think clearly. Combined with regular coaching on the court process and Ms. Maliani’s own participation in English language learning, her treatment has yielded positive results.

18. The panel is satisfied that that there are reasonable grounds to believe that Ms. Maliani would become unfit to stand trial, however, if she did not remain in hospital pending her return to court. We accept Dr. Gagnon’s opinion that there is indeed a high likelihood of such an outcome. Ms. Maliani does not currently have any social or professional supports in the Ottawa area where her charges are to be dealt with, and her past history of medication compliance is not encouraging. Accordingly, the panel ordered that Ms. Maliani be detained at the Hospital pending her return to court.

19. In closing, the panel notes with appreciation the efforts of the treatment team and all counsel to undertake communication with the Crown Attorney’s office so that Ms. Maliani’s return to court can be facilitated.

DATED this 12^th of February 2025, at the City of Toronto, in the Toronto Region.

Eric Siebenmorgen

Legal Member

Office of the Registrar

Ontario Review Board