COURT FILE NO.: CR-17-10000486-0000

DATE: 20191129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHELLE ERSTIKAITIS

Accused

Jennifer Gibson, for the Crown

Michelle Erstikaitis, Self- Represented

Paula Rochman, Amicus Curiae

HEARD: June 17, 18, 19 and September 27, 2019

A.J. O’MARRA. J.

REASONS FOR SENTENCE

[1] Michelle Erstikaitis was found guilty after trial by jury on June 5, 2018 for the offences of assault with a weapon, assault causing bodily harm and carrying a concealed weapon, contrary to ss. 267(a), 267(b) and 90(1) of the Criminal Code of Canada. Ms. Erstikaitis chose to be self-represented and as a result an Amicus Curiae was appointed to assist her and the court to protect her interests.

[2] Ms. Erstikaitis was declared a dangerous offender previously by Archibald J. on April 7, 2011 pursuant to s. 753(1)(a) of the Criminal Code for the offences of assault peace officer, assault with a weapon, possession of a weapon, uttering threats, and breach of an earlier LTSO imposed August 23, 2001when she was declared a long-term offender. In addition to more than 2 years pre-trial custody Ms. Erstikaitis was sentenced to a further 7 days custody and placed on another long-term supervision order for 10-years.

[3] On June 17, 2016 Ms. Erstikaitis had been released from the Grand Valley Institute for Women on statutory release for other offences. On July 11, 2016 while under the supervision of the Elizabeth Fry Society and subject to the long-term supervision order Ms. Erstikaitis left her security monitored apartment unescorted and attended the United States Consulate at 360 University, Toronto. There she spoke with a uniformed security officer posted outside about seeking asylum in the United States. When a family exited the controlled access door to the building, she pushed her way past them and the security officer to gain entry. The guard reached out to try to prevent her from entering. The officer continued to hold on to her to contain her and prevent her from proceeding further into the building. She made her way past a body scanner and into the lobby area where the officer slowed her down and grabbed a hold of her sweatshirt. At that point she lunged at him and slashed at the left side of his neck above his protective vest with a box cutter blade that had been concealed in her right hand. The security officer was cut along the left side of his jawline. Ms. Erstikaitis continued to struggle and slashed at his arm where he received another cut. Other officers attended to the area as a result of the security breach and assisted to take control of Ms. Erstikaitis. She dropped the blade from her hand, which was later recovered from the floor of the Consulate access area. As she was handcuffed and detained for the arrival of police, she screamed various references to ISIS, the Taliban and blowing up the Consulate if she was not given political asylum in the United States. She screamed that she was a victim of government torture and sexual abuse.

[4] Ms. Erstikaitis is now 40 years of age. Since an early age has been under the continuous supervision or custody of the state for having committed a variety of offences, assault, mischief, threatening death, criminal harassment, weapons offences, theft, arson and failure to comply with court orders, as well as multiple breaches of the previous long-term supervision orders. Further, she has been diagnosed consistently with several profound and intractable personality disorders - antisocial, borderline and narcissistic personality disorder, and histrionic personality traits.

[5] In August 2001, after being found guilty of arson, she was considered a substantial risk to reoffend and placed on a long-term offender order for 6 years, subsequently breached several times.

[6] In April 2011, as noted above, Ms. Erstikaitis was declared a dangerous offender and placed on a long-term supervision order for 10 years. She breached that order multiple times and committed the predicate offences while on statutory release from her latest breach of the LTSO order, by having absconded for 2 months. She was on strict supervision while in the community for 26 days prior to committing the predicate offences.

[7] As an offender previously found to be a dangerous offender after Ms. Erstikaitis was found guilty of the assaults committed at the Consulate, the Crown sought and received a forensic psychiatric assessment pursuant to s. 753.01(1) of the Criminal Code. On receipt and review of Dr. Lisa Ramshaw’s 112-page report detailing Ms. Erstikaitis’ legal, institutional and psychiatric history and risk assessments, the Crown on consent of the Attorney General, with notice to Ms. Erstikaitis, now seeks the imposition of an indeterminate sentence in a penitentiary pursuant to s. 753.01(4) of the Criminal Code. The Crown submits that Ms. Erstikaitis poses a substantial danger to the public and there is no reasonable expectation of her eventual control in the community.

Applicable Criminal Code Provisions

[8] Under s. 753.01(4), after the expert assessment report is filed the prosecutor may apply for sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new period of long-term supervision, in addition to any other sentence that may be imposed for the offence.

[9] Section 753.01(5) of the Criminal Code states:

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.

[10] Ms. Erstikaitis has already been designated a dangerous offender on April 7, 2011 and having committed a serious personal injury offence, assault causing bodily harm and assault with a weapon, the issue based on the entirety of the evidence is whether the court is satisfied that there is a reasonable expectation of the offender’s eventual control in the community in the absence of the imposition of an indeterminate sentence.

[11] The question to be determined is whether the sentencing sanction of a determinate sentence or a determinate sentence with a long-term supervision order is enough to reduce the threat posed by the offender to an acceptable level in the community. In other words, can the court be satisfied that there is a reasonable expectation of eventual control of the substantial risk posed by the offender to the community?

[12] In applying s. 753.01(5) there is an apparent presumption that an indeterminate sentence shall be imposed, unless rebutted by evidence that the public can be protected without the imposition of an indeterminate sentence (see Regina v. Middleton, 2019 ONCJ 280 at paras. 17-18 referencing Regina v. Wright, [2018] BCJ No. 287 (BCSC).

[13] In addition, s. 753.01(5) has similar language to s. 753(4.1) which is to be considered on finding an offender to be a dangerous offender. Section 753(4.1) of the Criminal Code reads:

The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraphs (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

[14] The approach that should be taken is to first determine if a conventional fixed sentence would adequately protect the public against the commission of murder or a serious personal injury offence. If such a sentence will not adequately protect the public, then the court must determine if a fixed sentence and an additional long-term supervision order would adequately do so. If the answer is “no” to both these considerations, then the court must proceed to impose a detention in a penitentiary for an indeterminate period of time.

[15] In Regina v. Boutilier 2017 SCC 64 at para. 70 the court in setting out the framework the court stated:

Section 753(4.1) reflects the fact that, just as nothing less than a sentence reducing the risk to an acceptable level is required for a dangerous offender, so too is nothing more required.

[16] In Boutilier at para. 68 the court states that under s. 753(4.1), the sentencing judge is under the obligation to conduct a “thorough inquiry” into the possibility of control in the community. The judge considers all the evidence presented during the hearing in order to determine the fittest sentence for the offender:

The judge should . . . take into account all the evidence available before making a determination, which will inevitably require a thorough investigation. Once such an investigation has been conducted, it will be up to the judge to determine the sentence; there is no obligation on any of the parties to prove on any standard the adequate sentence one way or another.

[17] Further, once the sentencing judge has exhausted the least coercive sentencing options to address the question of risk based on the evidence, indeterminate detention in a penitentiary is the last option.

Legal History and Reports of Criminal Conduct

[18] Ms. Erstikaitis’ history of criminal conduct and involvement in the justice system is contained in Dr. Ramshaw’s report at pages 11-20, summarized as follows:

1. July 21, 1993 assault. On May 17, 1993 when Ms. Erstikaitis was 13, she was in a group home during which she threw a combination lock striking a staff member and threatening to hit a staff member over the head with a picture frame.

2. August 12, 1993 mischief under $1,000.00. Ms. Erstikaitis had been removed from the group home after she set fire to the bedroom of another child.

3. April 21, 1994 weapons dangerous. On January 8, 1994 while in another group home she ripped up the bedsheets of another resident and carved the words “Jen M is going to die tonight” and “I luv Paul Teale (Paul Bernardo)” on a wall. She threatened staff causing staff and residents to seek refuge in an office. She attempted to gain access to the office by using a knife to break the door mechanism. Being unsuccessful she began breaking furniture, ripping up bedding, smashing light fixtures and stabbing at the door. She barricaded the door and eventually after 2 hours she surrendered into police custody and was removed from the group home.

4. June 29, 1995 theft under $5,000.00. On April 28, 1995 Ms. Erstikaitis was charged with theft which alleged she shoplifted an item from Shoppers Drug Mart.

5. June 20, 1996 criminal harassment, failed to comply with disposition x2, attempt to escape lawful custody and mischief. In this instance Ms. Erstikaitis was charged with harassing and making threatening telephone calls to the family of Leslie Mahaffy, a teenage murder victim of Paul Bernardo. She made such calls in September 1995 and continued to make them in 1996 resulting in the criminal harassment and fail to comply with probation offences.

In making the telephone calls she left “extremely disturbing and sadistic messages on the Mahaffy answering machine” which included threats to the life of Mrs. Mahaffy’s son. In the initial message left she stated “Hi, I just wondered if I could speak with Leslie, but I guess she’s not there right now, so I’ll call back later”. In other messages she called and pretended to be Leslie Mahaffy stating, “Hi Mom, I might be coming home late tonight from some party, so don’t lock the door . . . you never know what might happen to me like Leslie Mahaffy or something”. In reference to Paul Bernardo she stated “I love him you know, I still do a lot, but you put him in jail; you videotaped the impact statement; isn’t that cute? He videotaped the rapes, isn’t that . . . justice or whatever the hell . . . I’m a young offender, I’m afraid I’ll just have to go your son’s school and you know and get him ala Kristen French”.

6. In January 1996 while detained at the Vanier Centre for Women Ms. Erstikaitis and another young offender used a pair of plyers to cut metal pieces from the window trim of their room to escape lawful custody. In February 1996 she and another inmate ran from the escorting officers to scale a chain link fence to escape confines of the Vanier Centre.

Adult Convictions

7. January 8, 1998 unlawfully at large. Ms. Erstikaitis while serving an 8-month open custody sentence in Brampton absconded from the facility on December 28, 1997 and remained at large until January 7, 1998 when she was arrested in Hamilton.

8. June 11, 1999 failed to comply with probation and uttering threats. On December 27, 1998 Ms. Erstikaitis called 911 and stated “you know the mother of Leslie Mahaffy, Deborah, the one who put me in jail for 3 years? She’s dead. I’m going to kill her, and my name is Michelle Erstikaitis; I killed a guy tonight; I stabbed him; it was me ha ha ha”.

9. July 14, 1999 failed to comply with probation. Ms. Erstikaitis had been within 2 weeks of her release into the community, took up residence in an unapproved address and was returned to jail.

10. August 23, 2001 failed to comply with probation order, arson – disregard for human life.

On October 12, 1999 Ms. Erstikaitis set fire to an apartment she shared with her then boyfriend after an argument. She attended to a hardware store and purchased a gasoline container, later spread gasoline throughout their apartment and set it on fire. She said to police after it had been discovered that she had set fire to kill herself, however later she said that it was a pact with her boyfriend to commit suicide.

In this instance, Ms. Erstikaitis received an 18-month custodial sentence with 673 days of pre-sentence custody credit and a long-term offender designation was made with a 6-year long-term supervision order.

11. March 18, 2003 on December 20, 2002 Ms. Erstikaitis was released from the Grand Valley Institute for Women on statutory release, however, later the same day she was suspended for failing to operationalize her release plan. No Correctional Residential Facility (CRF) in Ontario would accept her and she declined entry on being dropped off at the Salvation Army in Toronto. She remained at Grand Valley until her warrant expiry date and the long-term supervision order came into effect. She was not released and remained at the Vanier Centre for Women due to outstanding charges.

12. April 26, 2006 unlawfully at large and possession of Schedule II substance. On April 6, 2006 Ms. Erstikaitis absconded from her residence and remained missing until she was found by police on April 11 with an older man in a crack house. The older male which whom she was associated, a 61-year-old former federal offender, was neither known about or approved by the case management team.

13. December 21, 2006 breach of LTSO. Ms. Erstikaitis pleaded guilty for testing positive for cannabis.

14. November 7, 2007 breach of the LTSO. Again, Ms. Erstikaitis had a positive cannabis test for which she received additional time.

15. April 7, 2011 assault peace officer, assault with a weapon, possession of a weapon, uttering threats, breach of LTSO.

On December 29, 2008 Ms. Erstikaitis was living with another male, Mr. Billings at his apartment in Toronto. On January 16, 2009 Mr. Billings reported that Ms. Erstikaitis had been working for an escort service since January 9, 2009 and he no longer wanted her to reside with him. When he insisted that she leave she threatened to have him physically harmed or killed. On January 20, 2009 she returned to his apartment where she damaged some of his property. On January 21, 2009 she and Mr. Billings got into an argument. She grabbed a glass plate and threw it at him striking him on the chest, then attacked him, kicking him in the arms and chest. Again, when he told her to leave, she stated, “if I’m going back to the cops I might as well make it a good reason and stab you or attack you”. She then grabbed a pair of scissors and tried to stab him, striking his left forearm. He suffered two small cuts to his left forearm. She also threatened him while holding a knife.

After Ms. Erstikaitis had been arrested and detained, she appeared before the Superior Court on a Bail Review Application. She became upset and began to yell at the presiding justice. When a court officer attempted to intervene, she threw a cup of water at the officer and stated, “you don’t know who I am, they are trying to get a dangerous offender application on me”. She then spat in the officer’s face. As she was being escorted to the holding cell, she kneed the officer in the groin, requiring other officers to intervene.

16. Archibald J. citing the conclusion of Dr. Colleton, the assessment psychiatrist, from his report accepted that there was a significant pattern of repetitive behaviour and a likelihood that Ms. Erstikaitis would cause injury to other persons or inflict severe psychological damage upon other persons through failure in the future to restrain her behaviour and that the criteria for dangerous offender designation had been met. In quoting Dr. Colleton’s report, he noted:

“Ms. Erstikaitis suffered from severe conduct disorder beginning in early childhood and persisting through her adolescence. As an adult, her character has developed into a severe mix cluster B personality disorder with antisocial, borderline, narcissistic and histrionic trait evident. She has a long history of substance abuse and even dependence at times, primarily with respect to her use of cannabis, alcohol and prescription medications . . . Her high rating on the PCL-R (34.7 out of 40) . . . her personality is the primary source of difficulty with respect to supervision, recidivism in criminal activity. Substance abuse and situational stress have been significant contributors. There is little evidence that her core personality has changed over the course of her life thus far, and her current difficulties are variants of the difficulties she had as a youth”.

The court noted Dr. Colleton’s impression that Ms. Erstikaitis’ need for treatment and supervision would “likely extend far into the future, well beyond the 10-year maximum for a long-term supervision order” and the fact that “a personality disorder cannot be cured; it can only be modified to some extent in some cases, depending upon case specific factors”.

Ms. Erstikaitis was found to be a dangerous offender, April 7, 2011 and placed on another LTSO for 10 years.

17. July 27, 2011 breach of LTSO. On July 27, 2011 Ms. Erstikaitis was absence without leave for 21 hours from her Elizabeth Fry residence and as a result a warrant of suspension and apprehension was issued.

18. March 8, 2012 breach of LTSO, possession of a Schedule 2 substance. On October 18, 2011 a search was conducted of Ms. Erstikaitis’ room at the Elizabeth Fry residence at 215 Wellesley Street, Toronto. A quantity of marijuana and drug paraphrenia was recovered. A warrant of apprehension and suspension was issued, and she was subsequently arrested and remanded to the Vanier Centre for Women.

19. June 3, 2012 statutory release violation – recommitted. On June 3, 2012 a warrant of apprehension, suspension and recommitment was issued due to “staff safety concerns and the high risk of associating with Ms. Erstikaitis”.

20. April 17, 2015 breach of the LTSO. On September 6, 2013 Ms. Erstikaitis had a brief unaccompanied pass from the Correctional Residency Facility but did not return. She was apprehended on November 6, 2013 after the National Monitoring Centre received notice from the Calgary Police Service of a call from the staff of the South Calgary Campus Hospital where Ms. Erstikaitis had been undergoing a psychiatric assessment. A warrant was issued, and she was transferred to the South Alberta Forensic Psychiatric Centre and on April 17, 2015. She was sentenced to 21 months incarceration in addition to 15 months of pre-sentence custody.

Institutional History and Behaviour

[19] Since the age of 13 Ms. Erstikaitis has been in various forms of custody, supervision and treatment.

1. From the age of 13 Ms. Erstikaitis was in the care of the Children’s Aid Society. She was in numerous foster homes and group homes and discharged from foster care in 1993 after she set fire to the bedroom of a foster brother. She was placed in open custody at Cassada Youth Centre in May 1993, however due to her behavioural problems, self-abusive behaviour and suicidal threats she was placed in a receiving home in August 1993 and then in the Parkhill Girls home. There, she escaped on two occasions, returned and found difficult to manage. She threatened staff and was charged. Subsequently, she was admitted to Syl Apps Youth Detention Centre from January 1994 to April 1995. Again, she was transferred to Secure Treatment due to her behavioural problems and attempts at elopement. In September 1995 after an elopement and subsequent threats to staff, she was held at the Vanier Detention Centre for Women, and even there she made two attempts to escape.

2. On December 19, 1997 at the age of 18, Ms. Erstikaitis began serving an 8-month open custody sentence in relation to her youth convictions. She absconded and remained at large from December 28, 1997 to January 7, 1998 when she was arrested in Hamilton. Initially, she was held in the juvenile custody facility until spring of 1998 when she was transferred to an adult correctional facility. She lived briefly with her adopted mother until police were required to remove her when the relationship broke down. On August 30, 1998 she was sentenced to 12 months probation for placing 911 calls, which included calls to the Mahaffy family.

3. On December 28, 1998 she was arrested and charged with failing to comply with probation and uttering threats and subsequently convicted. She was sentenced to 1- day with 165 days pre-sentence custody credit and 3 years probation.

4. On June 11, 1999, age 20 she was released from custody and within 2 weeks she was found to be residing in an unapproved address and returned to jail. She was convicted of failed to comply with probation and sentenced to 1 day in additional to 17 days pre-sentence custody. On release, she resided at an independent apartment in Hamilton and required to report weekly however, in October 1999 she failed to report and was subsequently arrested on October 12, 1999 for having set fire to her apartment. While in custody on January 27, 2000 she was charged with failing to comply with probation after she set fire to herself.

5. On August 23, 2001 Ms. Erstikaitis was found guilty of arson, disregard for human life and failed to comply with probation. This was the instance in which she was designated a long-term offender with a supervision period of 6 years. During the period of incarceration, before release on the long-term supervision order she was found to have been in possession of letters written to the Oklahoma City bomber, Timothy McVeigh and to Debbie Mahaffy referencing her deceased daughter. There was also a letter addressed to a man advising that she knew how they could “drug his girlfriend so that they could be together”. Again, on September 4, 2001 she set fire to herself. She was at that time classified as a maximum-security inmate, and on September 20, 2001 transferred to Springhill Institution, Nova Scotia.

6. On December 12, 2001 she was admitted to the Regional Psychiatric Centre Prairies for the intensive healing program to improve her cognitive skills, anger management and address her substance abuse and self-harming behaviour. By August 2002 her behaviour was considered appropriate and she was reclassified to medium security. Later, her mental health declined. She was hording medication. A document was found with a list of her goals which included defacing the Oklahoma City Memorial, purchase of firearms and ammunition . . . to “shoot up” the Columbine High School and to “find out where Gary lives, blow his brains out”.

7. On December 20, 2002 Ms. Erstikaitis was released from the Grand Valley Institute on statutory release however, suspended on the same day because no residential facility was unable to her.

8. On January 26, 2003 she turned over a collection of writings which referred to the Columbine shooters and Timothy McVeigh and contained a detailed plan to kill a specific individual and correctional officers at the Toronto West Detention Centre.

9. On March 18, 2003 the National Parole Board revoked her statutory release after having been charged with 2 counts of uttering death. In July 2003 while at court after refusing a search and as a result of her threatening and uncontrollable behaviour she was pepper sprayed and put in restraints. Later, she was held at the Hamilton Wentworth Detention Centre and then transferred to the Vanier Centre for Women.

10. On August 22, 2003 on the warrant expiry date of her most recent sentence, her LTSO came into effect but she remained in custody due to outstanding charges. While attending a court hearing in September she became verbally threatening. Later two letters addressed to Paul Bernardo were confiscated from her jail cell and her community residential support plan was withdrawn.

In February 2004, she advised staff at the Vanier Centre that she and her ex-partner had killed and dismembered four women and provided a full account of how the victims were found, killed, dismembered and disposed of.

11. On February 12, 2004 Ms. Erstikaitis was released to the Elizabeth Fry Society to begin serving the LTSO portion of her sentence.

In Dr. Lisa Ramshaw’s report, it is noted that her LTSO supervision ran from 2004-2009 and involved recurrent behavioural problems, her disregard for rules, late returns to her residence, substance use and unauthorized absences of varying duration. There were occasional periods of stability for weeks or months at most.

Between 2004-2009 she was detained on seven occasions and when in the community she was primarily in correctional residential facilities for periods of time between three weeks to seven months. She was arrested in 2009 for assault and detained until 2011.

12. In 2004 Ms. Erstikaitis breached several of her release conditions. She had initially started counselling with Dr. Nexhipi but terminated it after the third session and thereafter refused the recommendation for psychiatric evaluation. Later she relented but then refused to consent for release of information.

In March 2004 staff of the residential facility found two plastic toy guns in her room during a random search. The NPB suspended the LTSO.

While in custody in June 2004 a letter to her adopted mother was found in her cell asserting that she had been abandoned, described fantasies of sexual assault by Paul Teale (Paul Bernardo), and proudly alleged having met Leslie Mahaffy and being involved in her death.

On August 24, 2004 she pleaded guilty to breach of the LTSO and received time served and was released, again into a residential facility. By October 2004 it was determined that she had exhibited significant growth since her past release and Dr. Lightfoot opined that she was manageable under restrictive conditions of release. Notwithstanding, she made little progress regarding her correctional plan due to several “instances, mental health concerns, and breaches of her special conditions by cultivating relationships with men who are unknown or had criminal histories.”

13. In mid-December 2004 during a verbal dispute with staff members at her residence, she accused them of being out to get her and stated, “Paul (Bernardo) killed the wrong two girls”, “you too are going to hell”. Further she stated, “if this is hell then I can get out in the community and kill a child, because there are no rules in hell therefore, I would get away with it”. In January 2005 she commented that she could kill someone in her three hours of free time.

By March 10, 2005 she was again released to the community with a residential facility requirement. By May of 2005 she was found to have deteriorated. There were indications that she was working in the sex trade and wanted to work in pornography.

14. In October 2005 her release was again suspended and returned to custody after she became intimidating and threatening towards staff who tried to enforce the residential rules of the Correctional Residential Facility (CRF). She was again released on October 24 to the CRF however, on November 29 she went on an unauthorized absence but was found on December 4, 2005 in Kingston. It was suspected that she was suffering at that time from a drug induced psychosis stating she wished “evil things on the children of her probation supervisor”. During the elopement she disclosed that she had been partying with strangers and engaged in the heavy drug use, especially cocaine. Subsequently she was returned to custody at the Grand Valley Institute for Women where she was held until May 2006. Throughout 2006, there were several releases, and returns to custody due to escalating behavioral disruptions, many condition breaches and threatening attacks on staff members.

15. In Dr. Ramshaw’s report it was noted that the first half of 2008 was much more constructive for Ms. Erstikaitis during which she had more unsupervised time in the community and had been employed at Northview Window for a period of time. There were however, eight incident reports, although characterized as minor (such as late curfews, diluted urine samples, verbal outbursts and disrespect toward staff) between January and August 2008. Her behaviour deteriorated however, in July 2008 with increased tensions between her and other residents due to derogatory comments she made based on ethnicity or body type. She accused staff of harassment. On August 9, 2008 she again eloped. However, she was apprehended within a few days and taken to the Vanier Centre for Women where she was kept in segregation until her release on September 8. Again, by December the Elizabeth Fry Society had withdrawn their community support for her due to her behaviour, derogatory and abusive statements. she was apprehended by police and taken to the Grand Valley Institute.

16. On December 29, 2008 Ms. Erstikaitis was released from custody and took up residence with her then boyfriend for approximately 3 weeks. By the end of that period she had been arrested for an altercation with him in which she stabbed him twice in the arm with a pair of scissors. By January 30,2009 she was transferred to the Grand Valley Institute for Women where she was classified as a maximum-security offender. She was charged with several assault and weapon offences, as well as breach of the LTSO. Later she was charged with assault peace officer for throwing a cup of water, spiting and kneeing the court officer in the groin.

17. In 2011/2012 there were numerous occurrences noted in her institutional file of threatening staff. She made threats of decapitation and dismemberment to specific staff and their children. She spoke of being involved in child rape and “sexual escapades with Paul Bernardo, herself and little girls”. She attempted to contact notorious murderer Luca Magnotto whom she claimed to have had a relationship with in 2008 after she had played Karla Homolka in a web video. She made claims about being involved in a murder committed by Paul Bernardo and she continued to attempt to mail letters to him.

18. In 2012 she told an institutional staff psychologist that she had been traumatized by correctional staff over the years through sexual abuse and torture and suffered from PDSD. She began to refer to herself as a political prisoner; that she enjoyed being around sex offenders; became infatuated with more multiple murderers; and admitted to seeing herself as a dangerous person with homicidal fantasies who might kill someone if she was in a rage. There were several ongoing threats made by her of committing traumatic acts of violence, such as going on a shooting spree or committing serial murders. Again, throughout the period Ms. Erstikaitis was either in custody or on community release but in a correctional residential facility under supervision.

19. Ms. Erstikaitis absconded from her residence from September 6 to November 6 2013and later was apprehended in Calgary after an anonymous call informed the police that she was undergoing a psychiatric assessment at the South Calgary Campus Hospital. She was later transferred to the South Alberta Forensic Psychiatry Centre and then later returned to the Grand Valley Institute for Women. There she was classified as a maximum-security offender and spent most of her time in segregation due to repeated episodes of self-harming behaviour and “threatening comments and accusatory statements directed at or about staff”.

20. On April 17, 2014 she was convicted of the breach of the LTSO for her unlawful absence and sentenced to 21 months incarceration, in addition to 15 months of pre-sentence custody. On April 23, while serving her sentence at the Grand Valley Institute, a hand drawn graphic image with her signature was found on the window of her cell which depicted a woman hanging from a hook by a ponytail with obvious violence done to her genitalia, neck, limbs and abdomen cut open. There was a message scrawled on it wishing Happy New Year addressed to a named correctional officer. She remained at the Grand Valley Institute until she completed service of her sentence on June 17, 2016.

21. In 2014 the Institutional records again began noting the threats she made against kindergarten children and made some references to Al Qaeda. She began to see a psychologist although later refused because she claimed her problems were caused by them, as they were “monsters”.

22. In 2015 when she was asked whether she was suicidal, she responded: “I can’t kill myself I have too many people I want to hurt”. On one occasion she tied a belt around her neck and provoked a situation by calling out the name Ashley Smith (the young woman who died at the Grand Valley Institute by strangling herself). She made 20 inmate grievances over two days about staff treatment and that she had been manipulated by Dr. Colleton, the psychiatrist who reported on the 2011 dangerous offender application. She began to compare herself to Angelina Jolie due to her beauty and intelligence. She expressed the desire to be extradited to Ireland due to physical torture and sexual abuse she claimed committed by government workers and inmates. She became more paranoid and believed that staff terrorised and harassed her due to her political beliefs, which were extremely right-winged. She refused to participate in programs or therapy as she felt she had no issues to deal with. She continued to accuse staff who tried to work with her of harassment and abuse.

By 2016 she began to refer to her detention as illegal and submitted hundreds of complaints to various government agencies, including the UN. She alleged that the CSC was trying to create a serial killer.

23. In January 2016 the Grand Valley Institution received a request from the U.S. Consulate that she not be allowed to contact or call the Consulate as she frequently did, making allegations of being abused, tortured, raped, strip searched and videotaped by correctional staff. Similar requests were made by the Freedom of Information Commissioner and a women’s shelter after receiving numerous threatening calls from her.

24. Just prior to her statutory release date of June 17, 2016 it was noted in the institutional records that her level of threats and paranoid behaviour increased. She told a correctional staff member “you will get yours, you fuckin bitch cunt. How would you like me to torture a fuckin child and carve your name in its fuckin chest?” Further, she made comments about involving the FBI, invoked the death of a young woman, boasted about her intelligence, of her being a high-profile inmate, a high class/upper class woman and falsely commented on a guard’s nephew who had committed suicide, which had not in fact occurred.

25. On June 17, 2016 when she was released from the Grand Valley Institute, she was required to reside at the Correctional Residential Facility of the Elizabeth Fry. Due to her conflicts with others, she was required to reside in an apartment, however to remain there, and only to leave escorted by a staff member. In addition, the apartment door was alarmed in order to alert the Elizabeth Fry staff of her exiting the apartment without permission and with an escort.

During her time in the community until the predicate offence on July 11, 2016 she refused all psychological interventions including a community mental health referral. While on an escorted shopping outing Ms. Erstikaitis was overheard wanting to buy a calling card to call North Korea. She wanted the contact numbers for the Toronto Mayor’s office, as well as the U.S. Consulate. She began making complaints to Governments of Russia, Iran, Turkey, the United Kingdom and to the United Nations.

Just prior to the predicate offence while accompanied outside the U.S. Consulate where she was overheard by her escort to make a complaint of being stalked and not knowing who that person was, in reference to the correctional staff member supervising her, Ms. Erstikaitis was advised to call the police if that was the situation. On another occasion, she was told by the U.S. Embassy staff if she wanted to make a claim of political asylum, she would have to do it at the U.S. border, not the Consulate. She made several complaints to officers of the Toronto Police Service, 51 Division about her “forcible confinement” by the CSC and that she wanted to seek political asylum.

26. In Dr. Ramshaw’s report, Ms. Erstikaitis’ explanation for the assault at the Consulate was that she had been repeatedly subject to assaultive behaviour by correctional authorities and prisoners which was intended to cause her severe pain and suffering to punish and intimate her. She had made repeated requests to a variety of entities that she had been subject to torture but to no avail and then went to the U.S. Consulate to seek asylum. She had been seeking records related to her allegations of torture from 2011 to 2016 which included hundreds of telephone calls to the FBI, the U.S. Consulate, the United Nations, RCMP, various professional bodies and others. She insisted that the convictions for having gone to the U.S. Consulate was based on tampered evidence. At one point she indicated that a “body double” had been used in the security video footage to depict her as being aggressive. She stated whether she had a weapon in her hand was irrelevant. She had gone to the Consulate in order to “get protection from sexual, physical torture . . . harassment”. It had been perpetuated by everyone including psychologists and the media. She believed she needed a “body guard” and had gone to the Consulate in an attempt to obtain assistance from “the FBI and the U.N”. She characterized herself as “a woman who was doing everything to get help” including from the Russian government, stating that she was already a Russian refugee.

Psychiatric History

[20] Ms. Erstikaitis has a long history of psychological and behavioural difficulties and as a result numerous psychiatric hospital contacts as a youth and adult.

1. At the age of 12 Michelle Erstikaitis took an overdose of medication as a possible suicide attempt and as a result in 1992 was assessed by a psychologist, Dr. Wendy Brennan who noted that she was “a seriously emotionally disturbed child”, who externalized emotional problems through delinquent and aggressive behaviour including lying, stealing and teasing others and seemed to exhibit no guilt for her misdeeds. She sent eight letters to other children, threatened other children and lacked any sense of guilt for her actions. Her life revolved around obsessions for movie and pop stars, and sex. She lacked empathy for others. It was also noted that she had stolen and set fires and thought about sex a lot for a girl her age, 12. Her demonstration of aggressive behaviour included cruelty towards others, as well as physical attacks and threats. Dr. Brennan opined that she required “a vigorously therapeutic environment with well trained staff under psychiatric supervision. Her psychological testing showed her to have a love of violence.

2. In 1993 Dr. Barry Cook, psychologist was asked to assess Ms. Erstikaitis, then 14 following an arrest on assault with a weapon and uttering threat charges. He noted her to be “an exceptionally disturbed adolescent” and expressed great concern about her potential for real destructiveness. She was described as very poorly integrated, chronically frustrated and emotionally disturbed. She was narcissistic and egocentric in the extreme. She maintained an omnipotent control through primitive defences, including denial, spitting and protective identification. He opined that she should only be placed in a secure, staff operated facility as her living elsewhere would pose a danger to others she may be living with. He recommended placement in the Syl Apps Secure Treatment Unit.

3. In 1993 Ms. Erstikaitis was admitted to the London Psychiatric Hospital having made an apparent suicide attempt and later discharged to the Parkhill Group Home where she threatened to kill co-residents. Dr. Cook reassessed Ms. Erstikaitis in February 1995 to determine her emotional health and the appropriate placement of her, having been living at the Syl Apps Youth Secure Treatment Centre for approximately one year. He found that she “continued to be seriously disturbed, narcissistic and attempting to maintain an air of sophistication”. She had learned to fool others and herself and was unable to tolerate frustration, criticism or failure of any kind. She had an impulsive and an active fantasy life of a sexual and violent nature. Dr. Cook noted her to be a “very seriously disturbed adolescent who still had a high potential to be both a risk to herself and others”. His prognosis for her was poor if placed anywhere else but in a secure setting akin to Syl Apps.

4. Dr. Dalrymple, another psychologist who saw Ms. Erstikaitis at Syl Apps opined she suffered from a mental disorder and difficulties associated with a personality disorder.

5. In 1996 on Ms. Erstikaitis being transferred from Syl Apps to the Vanier Centre for Women, Dr. Cook in a reassessment noted: “at the risk of being overly blunt but wanting to be clear, Michelle is a paranoid schizophrenic girl, and, in my opinion, there is no hope for ‘helping’ her. She was already a very disturbed and potentially dangerous youngster before she entered Syl Apps”.

6. The OPP Behavioural Sciences section conducted a threat assessment of her as a result of her various contacts she had with the Mahaffy family and an apparent infatuation with Paul Bernardo and Karla Homolka. On a review of her letters, diary entries and previous psychological and psychiatric assessments it was concluded that “Michelle Erstikaitis is a very seriously disturbed person who has a high potential to be both a risk to herself and others”, and that she “shows no signs of improving her behaviour”.

7. In December 1999 Ms. Erstikaitis was admitted to the Centre for Addiction and Mental Health (CAMH) for a psychiatric assessment as to her fitness to stand trial, conducted by Dr. M. Ben-Aron. During the assessment she denied any suicidal ideation although stated “maybe I’ll try to kill other people”. When asked to elaborate she responded “John Wayne Gacy had an IQ of 130, I have an IQ of 160, so what do you think I am going to tell you”. She also stated she wanted to be like Satan. She was found fit to stand trial. It was noted that she had several personality problems with borderline and antisocial features.

8. On December 19, 2000 in a psychiatric long-term offender report prepared by Dr. S. J. Hucker, he concurred with prior diagnoses of a personality disorder with mixed features, including borderline, antisocial, histrionic and narcissistic traits. He concluded she was a high risk for reoffending, in particular violent reoffending. Having breached conditions of her probation, she was expected to continue to be non-compliant. He noted that any attempt to provide treatment other than in a controlled setting was unlikely to have any effect.

9. In a court order long-term assessment report prepared Dr. Ramshaw dated March 1, 2001, she concluded that Ms. Erstikaitis did not appear to suffer from any major mental illness, such as schizophrenia or bipolar effective disorder. Rather, she had significant personality disorders (antisocial and borderline, with narcissistic and histrionic traits) and she met criteria for psychopathy. Her maladaptive behaviour tended to become exasperated with alcohol and substance abuse. She possibly suffered from sexual paraphilia, not otherwise specified, involving masochism and sadism. On the Psychopathy Checklist – Revised (PCL-R), she had a prorated score of 36.7 out of 40. She was scored independently by the psychometrist and received a prorated score of 37.8 out of 40.

Dr. Ramshaw concluded that from a clinical perspective, based on history and presentation, and the PCL-R score, Ms. Erstikaitis appeared to be of “significant risk for future violence”, and there was little to suggest that her future risk of violence could be controlled in the community.

10. In April 2002, psychologist Dr. L.D. Presse, in conducting a risk assessment observed that her historical risk factors were “significant to suggest that her risk for future violence should be assessed as moderately high”. However, the psychologist noted that “she impressed as someone who was clearly treatable and serious about wanting to get her life back on track”. She concluded that her risk “should be manageable in the community with a suitable release plan”.

11. In an August 2002 progress report, it was observed that while Ms. Erstikaitis was motivated to attend programming she had “gained little insight into her offending behaviour”. She continued to minimize the severity of her crimes and demonstrated a lack of victim empathy or remorse for her past behaviours. Accordingly, her risk of reoffending did not appear to have been mitigated and remained high. Subsequently, her attendance at programming declined, she was found to be “cheeking” medication and ingesting larger amounts than prescribed. She also had some violent outbursts.

12. In an October 2002 psychological summary prepared by Dr. Presse following a total of 23 sessions with Ms. Erstikaitis at the Regional Psychiatric Centre Prairies, she noted that Ms. Erstikaitis had stated that while she liked talking to her she did not need her or any other therapist and refused a referral to continue therapy on her transfer to the Grand Valley Institute. Dr. Mela, psychiatrist observed that Ms. Erstikaitis met the criteria for “full blown cluster B diagnosis”, including “all of the features of the cluster B antisocial personality disorders, as well as narcissistic features. It was noted that her risk of violence will be because of her presence of personality disorder. Dr. Mela characterized her history of making violent statements as attention seeking behaviour in keeping with her histrionic personality traits. However, this was complicated by her antisocial features, which made her potential to carry out these threats “likely”.

13. In a psychiatric assessment report prepared by Dr. L. Ligate in January 2003 on Ms. Erstikaitis being placed in segregation at the Grand Valley Institute, it was noted that Ms. Erstikaitis had a chaotic background with lying, setting fires, stealing, death threats, rule violation, aggression, and impulsivity. She would become angry when needs not met. She lacked remorse and empathy. Diagnoses included poly substance abuse (alcohol, marijuana, crack cocaine, psilocybin and LSD), borderline, narcissistic and antisocial personality disorder, psychopathy, masochism and sadism, with ongoing writings about her homicidal rage, need for revenge and identification with killers. She liked the notoriety that serial killers and rapists received. She “feels exhilarated by pain”. She had an active sexual and violent fantasy life. She remained unstable. She was “impulsive, and while she could be cooperative, she “turns quickly to being aggressive if her needs are not met”. She lacked the capacity for remorse or empathy, except on a “very superficial level”, and would go to any length to obtain attention. She was a high risk – and a danger to herself and to the community in the prison and in general. She had spent years in treatment facilities with little progress and had not engaged in any therapeutic alliance. She remained unstable. Her psychopathy showed “no signs of discontinuing with age”.

14. The reason for Dr. Ligate to see Ms. Erstikaitis on that assessment was because she had turned over her writings and journal to her primary worker stating that she had an attack-of-conscience. In the writings there were phrases such as “kill kill kill kill kill kill kill kill all the liars, all the liars all the liars” and . . . “I make no secret of my homicidal rage. To me, everyone of you are targets and hunting season begins when they open this cage!” She wrote of the Columbine shooters, Timothy McVeigh and that their spirits had come to her and told her “to shoot a bunch of guards outside the west during shift change”. On assessment she showed no remorse for the threats that she had made.

15. In May 2004 she was referred to Dr. G. Nexhipi for psychological counselling as a condition of her LTSO to address substance abuse and personality/emotional difficulties. She was residing at the time with the Elizabeth Fry Society Community Residential Facility in Toronto under constant supervision with the exception for her one-hour daily leave privileges. Over the course of three sessions with Dr. Nexhipi, she was consistent with significant and extreme fluctuations and mood. There was “pronounced emotional instability”.

Dr. Nexhipi opined that while Ms. Erstikaitis did not have any major mental illness, she suffered from, “a significant personality disorder including borderline narcissistic, histrionic and psychopathic traits”. Substance abuse historically had a further disinhibiting effect. There was “some concern regarding the presence of sexual paraphilia involving elements of both masochism and sadism and she appeared to have a violent fantasy life. Her history of criminal conduct was in versatile and continuous, without any evidence of change over time. She remained “a high risk of reoffence, including violent reoffending”. She appeared “unlikely to benefit from therapeutic interventions. Dr. Nexhipi strongly recommended she remain subject to close supervision and monitoring as “the most reliable intervention will occur through external controls”. It would include “a highly structured environment and supervision by two parole officers to minimize attempted manipulation to section and splitting”.

16. She was referred by Dr. Nexhipi to Dr. R. Dickie, psychiatrist for an evaluation of pharmacotherapy, however Ms. Erstikaitis refused to participate and would not consent to the release of information in order to complete the assessment.

17. In May 2004 Dr. R. Dickie did perform an assessment for parole purposes. He concluded that she represented “a significant risk for being involved in bad trouble”. It was noted that although psychological counselling might be of some assistance for monitoring and support to do so might be difficult and “would more likely be ineffective in effecting positive change”.

18. In another parole psychiatric assessment prepared by Dr. Dickie, June 7, 2006 he noted that her difficulties continue to be characterological. Further, there is no psychiatric treatment that would be effective, and he believed that psychopharmacological treatment would be contraindicated.

19. In a CSC psychological services report prepared by Dr. L. Lightfoot, April 2, 2007 he noted that Ms. Erstikaitis characterized her counselling sessions as “psychology at gunpoint” and a waste of time.

20. Court order dangerous offender psychiatric assessment, February 12, 2011 prepared by Dr. M. Colleton, he reiterated that Ms. Erstikaitis was diagnosed with personality disorder, not otherwise specified (mix cluster B personality disorder), characterized by borderline, antisocial, narcissistic and histrionic traits. He incorporated in the report the HCR-20 (a structured clinical violence risk assessment tool). Her score of 36 out of 40 which placed her in the “high risk category” for future violence. On the psychopathy checklist – revised (PCL-R) she scored 34.7 out of 40 placing her in the 99th percentile compared to a reference sample of North American female offenders for a high risk of violent reoffending. In that instance, while he opined that she met the criteria for dangerous offender designation, a long-term offender designation seemed “more in keeping with the current set of index offences”. Although, he noted it was difficult to rule out the possibility that she would continue to pose a risk to the community at the end of the maximum available 10-year supervision period.

21. Ms. Erstikaitis reoffended violently while under close supervision during the long-term supervision order imposed on April 7, 2011.

[21] The Correctional Service of Canada records indicate that during the period of time while in custody or under close supervision in the community under the long-term supervision order, Ms. Erstikaitis would participate initially in counselling services and discontinue or declined to participate altogether.

[22] When interviewed November 29, 2018 in preparation of the psychiatric report by Dr. Ramshaw on the Crown’s application, Ms. Erstikaitis adamantly denied any significant medical or psychiatric history. She responded “not even remotely” when specifically asked about any history of mental illness or mood disorders. She denied any current treatment with medication stating, “I don’t need medications at all”. She insisted there was “nothing wrong” with her except for the continuous maltreatment she was subjected to in prison. Rather, she stated: “I have a problem that every man wants me – a beautiful body”. She indicated that it was the Correctional Service of Canada that labelled her with “mental health problems” when her difficulties were the result of restrictions imposed on her by the supervision order.

[23] In later interviews Ms. Erstikaitis acknowledged more of her psychiatric difficulties and reported “constant anger and frustration because of what’s inflicted on me” and that she felt “almost powerless with constant distress” as a result of her current circumstances. She indicated that she had nerve problems “and described experiencing meltdowns when she felt “frustrated over the top” and had “no adult way of dealing with it”. Again, she attributed her difficulties in coping to the restrictions imposed by her supervision and her inability to access alcohol or benzodiazepines to manage stress.

Psychiatric Assessments

[24] Dr. Lisa Ramshaw on a careful and detailed historical review of Ms. Erstikaitis’ involvement in the criminal justice system and her numerous psychological and psychiatric assessments concluded that she is “an extremely disturbed woman who has a life-long emotional and behavioural difficulties and associated criminal versality”. There has been an increase in her emotional dysregulation, disorganization, grandiosity, and paranoia over the past 3-4 years with an associated deterioration of her judgment and increasing to make accusations against those around her.

[25] Her diagnoses over time have been consistent. She has severe personality disorders, including antisocial, borderline and narcissistic personality disorders, and histrionic personality traits. She has significant psychopathy and psychotic-like symptoms. Her substance use disorder, involving cannabis, alcohol, cocaine and benzodiazepines have exacerbated her characterological difficulties.

[26] She has evidenced a limited response to and poor compliance with treatment interventions and with supervision. Dr. Ramshaw notes: “her engagement with care providers at times has been in service of facilitating her substance dependence to sedative hypnotics (benzodiazepines), and to engage in positive impression management to get her needs met under community supervision.”

Risk Assessments

[27] Risk assessment instruments have been utilized a number of times over the years to assess Ms. Erstikaitis’ risk for reoffending violently. The results have demonstrated consistently that Ms. Erstikaitis continues to pose a serious and real risk of future harm to others. In terms of previous risk assessments all assessors, except for Dr. Presse in 2002, rated Ms. Erstikaitis as a high-risk violence to others and to herself. There has been no significant difference in the scores since 2001, all of which reveal a very high level of psychopathy.

[28] Most recently it was found in applying the Psychopathy Check List-Revised (PCL-R), which considers historical risk factors, her prorated score (two factors omitted due to her extensive time in custody) was 37.8 out of 40, which placed her in the 99.9th percentile compared to a female prison inmate population for risk of violent re-offending.

[29] Her score reveals a significant level of psychopathy which will continue to impact her supervision in the community and her amenability to treatment. The score is considered very high risk for reoffending violently and is unusual in anyone, male or female.

[30] In the HCR-20 V.3 risk assessment for violence, which considers historic variables, clinical variables and risk management factors Ms. Erstikaitis’ score indicated that she was a high risk of future violence, even in the context of a long-term supervision order with special conditions, and at risk of “imminent reoffending if released unsupervised”.

[31] Dr. Ramshaw notes that Ms. Erstikaitis’ high score on the PCL-R, both historically and during the current assessment, her numerous static and dynamic risk factors, raises significant concerns about the feasibility of any community risk management plan, as they all indicate a high risk of violent reoffending.

[32] An individual’s history of violence is one of the best predictors of future violence. Ms. Erstikaitis’ criminal history is characterized as displaying a significant criminal versality and “acts of reactive and predatory violence”. She has been convicted as an adult of multiple violent offences including arson, threats and several assaults and use of weapons. She has convictions for criminal harassment as a youth and an ongoing pattern of similar psychological targeting, intimation and threatening behaviour throughout her adulthood. Her institutional conduct reveals multiple charges/misconducts for assault and threatening behaviours and documented reports of psychological targeting of vulnerable peers. Her acts and behaviours have increased over time. There is no evidence of any amelioration with age.

[33] Dr. Ramshaw notes, Ms. Erstikaitis has done better generally during periods of greater structure and support. Given her history of impulsivity and fluctuating attendance, participation and involvement in treatment programs, she would “likely require a high level of external oversight and reinforcement”.

[34] She needs a high level of intervention and significant resources to decrease her high risk of violent reoffending. She is a high risk to herself and others in any setting without any clear solutions. She lacks internal controls and yet cannot tolerate external controls. Her level of psychopathy, her external attributional style and belief that she does not need to change, all limit the impact of behavioural therapy programs. Further, although she could potentially benefit from treatment with anti-psychotic medication and/or anti-depression medication, which she refuses, her lack of insight and impulsivity would render such treatment very difficult.

[35] The management of her risk in the community to reoffend violently is unlikely in the short and long-term.

[36] Ms. Erstikaitis had requested an assessment by a forensic psychiatrist of her choice, Dr. N. Federoff. When arrangements were made for her attendance, she refused to participate in the assessment process.

[37] On the Crown’s application as part of the evidence she wanted the Court to consider she called the evidence of a “potential employer”, Laurence St. Germaine editor of a publication “Your Ward News”, now defunct, in which he was found to have wilfully promoted hatred. He was convicted June 26, 2019. I found nothing of value in his evidence in consideration of the issue as to whether Ms. Erstikaitis’ risk of violence could be reduced to an acceptable level.

[38] On the hearing, Ms. Erstikaitis testified that she did not consider herself a criminal and she was being detained arbitrarily only because of her personality.

[39] Ms. Erstikaitis faults her actions at the U.S. Consulate with having been sexually abused and tortured by the Canadian government, and states in her factum:

The accused has been held in government custody for 26 years, and it is not unusual for an incarcerated woman to have pen pals – never in history, to the defence’s knowledge, has a woman been bullied and terrorized over it. The accused’s beauty, expensive clothing, intelligence, and ambition regarding her acting career, is the reason a woman is being terrorized over letters to a serial killer.

The accused is an actress being prevented from being a movie star, or progressing in her political career, which would explain WHY the accused screams from torture and harassment, calls 911, and is consistently requesting Global Affairs Canada about the harassment. As mentioned by the accused during her own testimony at sentencing, if given an indeterminate sentence in a penitentiary, the accused will probably provide a legal support to Foreign Intelligence Services.

[40] Ms. Erstikaitis submits that the imposition of a sentence which would release her into the community with no supervisory control would be best for her: “the accused could almost certainly function without controls and persecution either in the community as an actress and living with boyfriend . . . and working in the Toronto film industry, or even in the United States entertainment industry, where serial killer fascination and involvement is marketable, for example through Shamrock Solutions, or in Russia, working in the Russian political world and dating/marrying a Russian politician and/or KGB (Foreign Intelligence Services) officer”.

[41] It was clear from her own evidence that she has no insight into her personality disorders, the risk she poses, the supports she requires or her situation. As Dr. Ramshaw observed, Ms. Erstikaitis does not understand that she must change, not the world around her.

[42] I consider the observations made by Amicus Curiae that the actual acts of violence committed by Ms. Erstikaitis have been minimal in effect. The arson leading to the first long-term offender order resulted in no harm to anyone. The stabbing of her boyfriend, which led to her designation as a dangerous offender and long-term supervision order resulted in only minor injuries. The slashing of the neck and arm of the Consulate security officer with the box-cutter blade caused minor injuries, as well.

[43] Despite all her threats of harm to others, there is no evidence that she has tried to access or could access firearms or other significant weapons. Despite her endless admiration for serial killers and other repulsive or notorious offenders, there is no evidence that any of them have ever had any communication with her or any interest in her whatsoever. While in the community, there is no evidence that she has tried to associate herself with such individuals that have caused or wished to cause violence or that they wish to associate with her.

[44] The exhibits she has filed and her verbal conduct in court has consistently shown a complete detachment from reality. She has grandiose thinking and delusional notion of self-importance.

[45] Although her institutional records are replete with vial and disgusting threats which have meant to shock and to get reaction they have not led to any risk to a person’s actual safety. However, she has caused severe psychological harm both to inmates and to staff.

[46] Notwithstanding, she has committed serious personal injury offences on access to the community. It is clear she has been quite prepared to commit such acts when she believes that there is a need to do so. She was found to be a Long-Term Offender for setting an apartment on fire during a dispute with her boyfriend. She was declared a Dangerous Offender in 2011 and placed on a long-term supervision order for assaulting her boyfriend with a weapon during a dispute. In this instance, when she had been in the community for only 26 days under a residency requirement, tantamount to being in custody with community access only under supervision by Elizabeth Fry staff, she was prepared to force her way into the U.S. Consulate and attack a security officer with a weapon in the process, based on a fanciful belief she could obtain political asylum as a victim of government torture.

[47] In determining whether there is a reasonable expectation of her eventual control in the community by the imposition of a fixed period of incarceration or imprisonment for two years or more plus a long-term supervision order, I consider Ms. Erstikaitis’ extensive history of criminal versatility, her numerous psychological and psychiatric assessments of her being a high risk to commit acts of violence, the diagnosis of her having significant personality disorders, her resistance to treatment and Dr. Ramshaw’s opinion that Ms. Erstikaitis is a high risk of reoffending violently in the absence of external controls. It would be no more than speculation that Ms. Erstikaitis could be controlled while under a long-term supervision order or at the expiry of such an order.

[48] I accept on the evidence that the serious and real risk posed by Ms. Erstikaitis cannot be managed in the community within a definite period of time. I accept Dr. Ramshaw’s view that Ms. Erstikaitis requires extensive psychological and behavioural treatment prior to release in the community, which may take years, if ever to assist in mitigating her risk. Moreover, not only does treatment have to be continuous, but Ms. Erstikaitis must be motivated to engage in such treatment, and she needs constant supervision. She has not demonstrated or even declared a willingness to participate in any such treatment programs or plans. She has not demonstrated any motivation, commitment or capacity to engage in treatment in the past. There is no evidence to support a reasonable expectation she would do so in the future while having access to the community in any form.

[49] In Regina v. Newton, [2006] OJ No. 1180 at para. 164 it was noted that before a court declares an offender to be a long-term offender, the court must be satisfied that the public can be adequately protected both during the term of the long-term supervision order and after its expiry.

[50] Further, as noted earlier in Regina v. D.J.D., [2003] OJ No. 5547 at para. 41, Nordheimer J. (as he then was) stated:

If the eventual control of the risk must rely on such lifetime restrictions or conditions, and those conditions cannot be imposed, then the reality is that the risk is not being controlled; it is simply being postponed. The long-term offender designation ought not to be used to create a façade of accomplishing a goal that it is, in fact, not accomplishing. Otherwise it risks, among other things, creating a false sense of security in the community.

[51] On the evidence, there is no community management plan that has been successful in mitigating her risk. If Ms. Erstikaitis was released into the community under a long-term supervision order for there to be any reasonable expectation of the control of her violent behaviour her situation would have to be akin to a custodial setting with constant supervision. Even when such was the case, she committed a violent act at the U.S. Consulate.

[52] I am not satisfied on the evidence that there is a reasonable expectation that a sentence for the offences committed, with or without a new period of long-term supervision – will adequately protect the public against Ms. Erstikaitis committing a serious personal injury offence.

[53] I am satisfied that Ms. Erstikaitis poses a substantial danger to public safety and that there is no reasonable expectation of the eventual control of that risk in the community in the absence of an indeterminate sentence of incarceration.

A.J. O’Marra J.

Released: November 29, 2019

COURT FILE NO.: CR-17-10000486-0000

DATE: 20191129

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MICHELLE ERSTIKAITIS

Accused

REASONS FOR SentencE

A.J. O’Marra J.

Released: November 29, 2019