



COURT OF APPEAL FOR ONTARIO

CITATION:
Arnatsiaq (Re), 2022 ONCA 260

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

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
    Boards 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 appellants 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 appellants 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 appellants
    situation to ensure that the appellants 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 appellants 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. Alabis 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 appellants 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 Boards reasons
    demonstrates that the Board is fully conscious of the appellants background
    and the need to consider it in its disposition decisions. Further, we expect
    that the Board will continue to monitor the Hospitals 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.





[1]

R. v.
    Gladue
, [1999] 1 S.C.R. 688.


