Arnatsiaq (Re)

Arnatsiaq (Re) Collection Decisions of the Court of Appeal Date 2024-02-28 Neutral citation 2024 ONCA 157 Docket numbers COA-23-CR-0911 Judges MacPherson, James C.; Sossin, Lorne; Copeland, Jill M. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Arnatsiaq (Re), 2024 ONCA 157 DATE: 20240228 DOCKET: COA-23-CR-0911 MacPherson, Sossin and Copeland JJ.A. IN THE MATTER OF: Siobhan Arnatsiaq AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Siobhan Arnatsiaq Jacob Millns, for the respondent Attorney General of Ontario Julia Lefebvre, for the respondent Person in Charge of North Bay Regional Health Centre Heard: February 21, 2024 On appeal against the disposition of the Ontario Review Board dated July 4, 2023, with reasons dated July 24, 2023. REASONS FOR DECISION OVERVIEW [1] The appellant appeals from a disposition of the Ontario Review Board (the “Board”) declining to order an independent assessment of the appellant’s mental status and treatment protocols. [2] The appellant, Ms. Arnatsiaq, is an Inuk woman. She was raised in a violent home and was sexually abused by her father. She is the mother of three daughters and was in an abusive domestic relationship. She has a lengthy psychiatric history which began in 1993. Despite her challenges, she graduated from law school in 2006 and practiced law in Nunavut as a criminal defence lawyer and with the Department of Justice for ten years. [3] On May 7, 2021, Ms. Arnatsiaq was found not criminally responsible on account of mental disorder on one count of assault and two counts of failing to comply with a release order. The assault took place at a hospital in Ottawa where the appellant punched another individual who was walking in the opposite direction in the mouth, causing her to fall to the ground. She then repeatedly kicked and punched the complainant until nurses intervened. The appellant was experiencing command hallucinations at the time. The complainant suffered a broken clavicle bone. Around one month later, the appellant left her surety’s residence twice in two days knowing that she was bound by a release order requiring her to reside with her surety. [4] In August of 2021, Ms. Arnatsiaq was admitted to a secure all-female unit at the North Bay Regional Health Centre (the “Hospital”). This unit, called Hummingbird Lodge, is focused on trauma-informed care and directed at Indigenous women. [5] Dr. A. Alabi, Ms. Arnatsiaq’s treating psychiatrist, testified at the hearing about Ms. Arnatsiaq’s progress over the previous year and her prognosis. [6] In the fall of 2022, Ms. Arnatsiaq’s illness deteriorated. From time to time she was placed in isolation as she sometimes threatened staff and co-patients. Her prognosis remained unstable. [7] On May 19, 2023, Ms. Arnatsiaq was moved to Deer Lodge, where there is a mix of men and women. Due to acts of violence aimed at staff and co-patients, she was placed in isolation where she remained at the time of her hearing before the Board in June 2023. [8] At the hearing, Dr. Alabi did not oppose an independent assessment. He described Ms. Arnatsiaq’s prognosis as “not good” but was of the view that progress could be made. He testified that the Hospital would continue to explore her medication regime with the plan to maintain her at Deer Lodge until she is ready to return to Hummingbird Lodge. [9] At the time of her hearing, Ms. Arnatsiaq’s counsel acknowledged that Ms. Arnatsiaq was quite unwell, feeling helpless and hopeless, and urged the Board to consider that a fresh assessment occurs. BOARD DISPOSITION [10] The Board declined to order an independent assessment. [11] The Board recognized that, at the time of the hearing, Ms. Arnatsiaq was in a difficult state and that the hearing was conducted while she was in seclusion. Based on the evidence at the hearing, the Board described Ms. Arnatsiaq’s state, without medications, as “very concerning” and “very poor”. [12] The Board accepted that Hummingbird Lodge, founded on trauma-informed care and directed at Indigenous women, would be well-suited to Ms. Arnatsiaq’s complex needs, and stated that as soon as Ms. Arnatsiaq is ready, she could be returned there. [13] The Board did not view the movement of Ms. Arnatsiaq to Deer Lodge as a restriction of liberty since Deer Lodge appeared to have greater liberties than Hummingbird Lodge. In any event, any restrictions resulting from moving Ms. Arnatsiaq to Deer Lodge were justified and represented the least restrictive and least onerous path the Hospital could take in face of Ms. Arnatsiaq’s behaviours. [14] The Board interpreted Dr. Alabi’s openness to treatment and medication options as a continued willingness to explore any means to address the distress Ms. Arnatsiaq finds herself in. The Board encouraged Dr. Alabi to consult with peers at the Hospital and further afield. [15] The Board concluded that, while a formal outside assessment was not needed, “[i]t just makes good sense to solicit other views through consultation with other psychiatrists. The same is true regarding a review of her medication regime.” The Board noted it was aware that the Centre for Mental Health and Addiction (“CAMH”) offers a consultation on medication regimes to other hospitals which could be accessed. [16] The Board affirmed the existing disposition with an amendment that it now refer to “forensic programs” at the Hospital. This would permit Ms. Arnatsiaq to be moved between lodges as her mental health improves, including a return to Hummingbird Lodge. Further, the Board resolved that if there was no progress over the coming year, a motion for an independent assessment of Ms. Arnatsiaq’s mental status and treatment protocols could be initiated. ANALYSIS [17] This court may set aside an order of the Board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Criminal Code, R.S.C., 1985, c. C-46, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. [18] The standard of review for Board decisions is reasonableness. The Supreme Court of Canada explained in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85, that “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” [19] Ms. Arnatsiaq does not appeal against the Board’s disposition in relation to the detention order, with privileges up to entering into a residential addiction program. Rather, she argues that she is at a treatment impasse and the Board erred and was unreasonable by failing to order an independent assessment of her treatment. In the alternative, she argues that the Board erred by failing to order a review of and outside opinions on her medication regime and treatment. Ms. Arnatsiaq also argues that the principles in R. v. Gladue, [1999] 1 S.C.R. 688 were significantly impacted by her placement at Deer Lodge. [20] For the reasons that follow, we would dismiss the appeal. (1) The Board did not err in declining to order an independent assessment or a review of the medication regime [21] Ms. Arnatsiaq submits that she was at a treatment impasse that necessitated the Board’s intervention through an independent assessment. She argues that an independent assessment was necessary to explore alternate treatment approaches to the ones that, thus far, had failed to work. She argues that, considering the mandatory factors in s. 672.54 of the Criminal Code, Dr. Alabi’s testimony established that her mental condition was poor and unlikely to improve, her reintegration into society was stalled, if not going in reverse, and her other needs to be free from suffering and connected to her Indigenous heritage were unlikely to be satisfied anytime soon. She claims the Board’s finding that Dr. Alabi’s openness to treatment and medication options meant no independent assessment was necessary, was unreasonable. She also argues that putting the onus on her to initiate such an assessment was unfair. Ms. Arnatsiaq points out that Dr. Alabi did not oppose an independent assessment of her risk and treatment and that his testimony overall demonstrated that there was a treatment impasse necessitating the Board’s intervention. [22] In the alternative, Ms. Arnatsiaq submits that even if the lack of progress did not rise to the level of being a treatment impasse, the Board erred by failing to order the Hospital to seek outside opinions, consultations, and reviews of Ms. Arnatsiaq’s medication regime and treatment, instead of simply offering unenforceable suggestions. [23] The Board treated the independent assessment and medication review together, as do we. [24] The respondent Attorney General argues that the independent assessment order would only be indicated where an impasse in treatment was actually found based on evidence establishing that no progress had been made or was likely to be made. [25] The Attorney General acknowledged that the Board did not expressly make a finding with respect to whether Mr. Arnatsiaq’s treatment was at an impasse, and that it would have preferable if the Board had done so. However, the Attorney General submits that the record disclosed that there was no such impasse. First, Ms. Arnatsiaq had shown some improvement in the two years she had been at the Hospital. Second, while there had been a setback without progress for a period of approximately six months, Dr. Alabi had not given up hope of further progress and offered several treatment options that he intended to try. [26] In short, according to the Attorney General, the Board implicitly concluded that there was no impasse in treatment, and this finding was reasonable on the evidence. [27] We agree with the submissions of the Attorney General. [28] The Board, in reviewing the evidence, observed, at para. 22: “Dr. Alabi is of the view that progress can be made. It may be that her condition improves, but it is unlikely that she will become completely well.” [29] The Board concluded by acknowledging Dr. Alabi’s openness to exploring further treatment options, as well as outside expertise, and encouraging Dr. Alabi in these efforts. The Board stated, at para. 30: The Board interpreted Dr. Alabi’s openness to treatment and medication options as a continued willingness to explore any means to address the distress Ms. Arnatsiaq finds herself in. The Board encourages Dr. Alabi to consult with peers at North Bay and further afield. This does not require a formal outside assessment. It just makes good sense to solicit other views through consultation with other psychiatrists. The same is true regarding a review of her medication regime. The Board is aware that CAMH offers a consultation on medication regimes to other hospitals which could be accessed. If there is no progress over the coming year, a motion for an independent assessment of Ms. Arnatsiaq’s mental status and treatment protocols can be initiated. [30] The Board acknowledged the serious treatment challenges set out in the evidence but did not accept that Ms. Arnatsiaq’s treatment had reached an impasse with no progress in the record for the assessment year, and no progress contemplated for the future. [31] This conclusion was available to the Board on the record. [32] Furthermore, in light of the Board accepting Dr. Alabi’s evidence regarding his hope for the future, it was reasonable for the Board to encourage consultation with outside experts but not to order an independent assessment. [33] This case is distinguishable from Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, relied on by Ms. Arnatsiaq. In that case, the Supreme Court of Canada upheld a Board disposition involving an Indigenous person in the face of a treatment impasse, including an order requiring an independent assessment. One of the issues in Mazzei was whether the Board had the authority to make certain treatment orders. In the course of its reasons, the Supreme Court stated, at para. 42, that: [i]n fulfilling its statutory mandate and role under Part XX.1, it is necessary and essential for a Review Board to form its own independent opinion of an accused’s treatment plan and clinical progress, and ultimately of the accused’s risk to public safety and prospects for rehabilitation and reintegration. In so doing, a Board must be entitled to order a re-evaluation of current or past treatment approaches, and an exploration of alternatives where necessary - i.e., where no progress has been made or is likely to be made… These goals simply cannot be accomplished without accurate, independent, and up-to-date information on an accused’s mental condition, treatment plan, clinical progress, and prospects for rehabilitation. [34] In Mazzei, however, the Board’s view was clear that treatment was at an impasse (and that this impasse had lasted many years) and that an independent assessment, among other assessments and reviews, was justified in light of this impasse. In this case, by contrast, a fair reading of the Board’s reasons, as set out above, is that no impasse was found. For this reason, the Board concluded an independent assessment was not necessary while encouraging consultations with external experts. [35] We see no basis for concluding the Board’s decision not to order an independent assessment or to mandate a review of the medication regime was unreasonable. (2) The Board considered Gladue factors [36] Ms. Arnatsiaq also submits that Gladue principles were impacted significantly by her situation in Deer Lodge. She states that while confined for an extended period, on her own without any Inuit peers, without any off-unit privileges, and often in seclusion, she has been unable to access many of the Indigenous services or cultural contacts she had previously used often. For example, while at Hummingbird Lodge, she attended the smudge room frequently, met with a MINO support worker[1] several times a week, and could attend cultural events off the unit. By contrast, at Deer Lodge, she has been restricted to occasional smudging, and although she can meet with an Inuit Elder by video, these meetings are prone to cancellation because of her mental status deterioration or her seclusion. [37] The Attorney General submits that the Board’s reasons demonstrate it was aware of the relevance of Gladue principles in this case but that an application of those principles does not mandate a certain outcome. Here, while Gladue principles supported Ms. Arnatsiaq being detained at Hummingbird Lodge, the risk she posed to others weighed strongly in favour of her being detained at Deer Lodge. The Board was clear that once she was stable, she could be returned to Hummingbird Lodge. [38] The Board’s reasons acknowledge Ms. Arnatsiaq’s heritage as an Inuk woman and the importance of her ability to access Indigenous services, but do not refer to Gladue, or the requirements of a Gladue analysis per se. Further, there is no Gladue report in the record, nor did counsel raise the need for a Gladue analysis below. Nonetheless, as this court has affirmed, the onus is on the Board to address Gladue factors in its analysis and ensure appropriate information on a subject person’s Indigenous heritage is part of the record: Mitchell (Re), 2023 ONCA 229, at paras. 22-23. [39] In this case, it is clear that Ms. Arnatsiaq’s Indigenous heritage and her need for Indigenous services were key aspects of the Board’s analysis. The transcript of the hearing reveals that the Board brought up Ms. Arnatsiaq’s access to Indigenous resources at Hummingbird Lodge and sought confirmation that a transfer of Ms. Arnatsiaq back to the Hummingbird Lodge could take place without having to return for the Board’s approval. This exchange informed the Board’s statement in its reasons, at para. 28, that “[c]ertainly, the Hummingbird Lodge, founded on trauma informed care and directed at Indigenous women, is perfectly suited to Ms. Arnatsiaq’s complex needs. As soon as Ms. Arnatsiaq is ready, she can be returned there” (emphasis added). [40] As in sentencing, considering Gladue principles does not necessarily mandate a different result or favoured treatment for Indigenous persons before the Board: Mitchell, at para. 21. Rather, those principles mandate a “different method of analysis”, which guards against the discrimination which can arise from a failure of decision-makers to advert to the specific and particular problems faced by Indigenous persons in the justice system: Mitchell, at para. 21, citing R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 291 C.C.C. (3d) 549, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59. [41] In R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.), at para. 16, Sharpe J.A. held that Gladue principles are relevant to all Board dispositions involving Indigenous persons. Sharpe J.A. noted that the Board must rely on as full a record as possible and that “[a] full record would contain information pertaining to the accused person’s background, including aboriginality”: Sim, at para. 18. See also Faichney (Re), 2022 ONCA 300, at para. 24. In this case, there is no indication that the record was deficient with respect to Ms. Arnatsiaq’s Indigenous heritage or background. [42] Ms. Arnatsiaq, speaking on her own behalf in oral submissions, argued a year is an unreasonable length of time to wait for a change to the status quo, and reiterated that she does not feel she has access to therapeutic healing or programming at the current facility. Counsel for Ms. Arnatsiaq put it even more bluntly, pointing out there is no reason for Ms. Arnatsiaq to be in North Bay, far removed from her home in Nunavut, if not at least to be able to take advantage of the Indigenous services and trauma-informed care offered at Hummingbird Lodge. [43] At this juncture, it is worth recalling the limited scope of this appeal. The Board’s disposition requiring Ms. Arnatsiaq’s ongoing detention at Deer Lodge is not under appeal. We also note the Board’s conclusion that Ms. Arnatsiaq be transferred to Hummingbird Lodge as soon as she can be, and that the Hospital is “ready, willing, and able” to return Ms. Arnatsiaq to the Hummingbird Lodge once she is stable and it is safe to do so. In our view, the Board’s focus on returning Ms. Arnatsiaq to Hummingbird Lodge as soon as her condition permits reflects the incorporation of Gladue principles in the Board’s analysis. [44] Finally, Ms. Arnatsiaq raises the issue of whether the determination as to whether her treatment is at an impasse also should be informed by Gladue principles. In this case, there is insufficient indication in the record before the Board that the cause of the challenges in Ms. Arnatsiaq’s treatment relates to her Indigenous heritage or access to Indigenous services. Rather, the challenges appear to relate primarily to organic and pharmacological factors in her medication. Ms. Arnatsiaq has not pointed to any specific aspect of the Board’s analysis respecting the current treatment challenges which could be construed as unreasonable because it failed to advert to Gladue principles, nor was such an argument raised before the Board. DISPOSITION [45] For the reasons set out above, we dismiss the appeal. “J.C. MacPherson J.A.” “L. Sossin J.A.” “J. Copeland J.A.” [1] The Mînowacihewin – Regional Service for Indigenous People at the Hospital “provides culturally relevant support to Indigenous peoples through a holistic and balanced approach to health and wellness”: <https://nbrhc.on.ca/programs-services/mental-health-programs-services/regional-outreach-seniors-mental-health-program/regional-service-for-indigenous-people/>.