Professional Documents
Culture Documents
Respondent: R. A.
________________________________________________________________________
DISCLAIMER PAGE
TABLE OF CONTENTS
I. INTRODUCTION ...................................................................................................... 4
II. BACKGROUND ........................................................................................................ 4
A. Guardianship and Trusteeship Act ....................................................................... 5
III. THE PARTIES’ POSITIONS .................................................................................. 5
A. The Public Guardian............................................................................................. 5
B. Mr. A. ................................................................................................................... 6
IV. ISSUES .................................................................................................................... 6
V. R. A. ............................................................................................................................ 7
VI. THE PSYCHOLOGICAL OPINIONS .................................................................. 11
A. Dr. George Stones and Dr. Monty Nelson ......................................................... 11
VII. ANALYSIS ............................................................................................................ 12
A. Did Mr. A. give informed consent to participate with the psychologists in the
preparation of their reports? .................................................................................. 12
B. Is the current battery of psychological assessment tools culturally appropriate to
Nunavut? ............................................................................................................... 14
C. As an adult, is Mr. A. in need of a guardian? ..................................................... 15
D. Would the appointment of a guardian substantially benefit Mr. A.? ................. 17
VIII. CONCLUSION .................................................................................................. 17
4
I. INTRODUCTION
[1] The freedom to live our lives as we choose – subject, of course, to the
laws of the land – is a basic right enjoyed by all Canadians.1 Every
adult is presumed at law to be capable of making his or her own
decisions concerning their financial affairs and well-being.2
Debilitating illness and mental incapacity, though, exist. In these
cases, the law provides that another person may apply to the court to
be appointed as guardian for the stricken individual.
II. BACKGROUND
[4] In the interim, the Court received a second opinion prepared by Dr.
Monty Nelson. Dr. Nelson assessed Mr. A. on January 19, 2019.
1
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11 [Charter]. Charter section 7 affirms that “Everyone has the right to life,
liberty and security of the person and the right not to be deprived thereof except in accordance with the
principles of fundamental justice”.
2
Guardianship and Trusteeship Act, SNWT 1994, c 29, s 1.1 [Act].
3
Affidavit of J.P. sworn May 3, 2018, para 3.
5
[5] At the March 15th hearing, Dr. Nelson and Dr. Stones testified.
Counsel argued their respective positions, and I reserved my
decision. These are my reasons for decision.
A. Guardianship and Trusteeship Act
(i) is an adult,
(ii) is in need of a guardian because the person
(A) is not able, by himself or herself or with assistance, to understand
information that is relevant to making a decision concerning his or her
own health care, nutrition, shelter, clothing, hygiene or safety, or
(B) is not be able by himself or herself or with assistance, to appreciate the
reasonably foreseeable consequences of a decision referred to in
clause (A) or a lack of such a decision, and
(iii) will substantially benefit from the guardianship order.4
[8] The Act also empowers the Court to request a second psychological
opinion, which I did here.6
[9] The Public Guardian asserts that Mr. A. meets the legislative
prerequisites for the appointment of a guardian. In doing so, the
Public Guardian relies upon the psychological assessments prepared
4
Supra note 2 at s 7(1)(b).
5
Ibid, s 2(3).
6
Ibid, s 5.
6
by both Dr. Stones and Dr. Nelson. I shall refer to those reports in a
moment. The Public Guardian has stepped in because there is no
one else in a position or willing to act.
B. Mr. A.
[11] At the December 13th hearing, Mr. A.’s lawyer stated that the Court
ought to have “much more clear and compelling evidence [beyond Dr.
Stones’ report] that Mr. A. understood what this process was all
about”.7 Counsel stated that there are “significant concerns with
whether or not informed consent” was obtained from Mr. A.; and,
whether the Court can rely on Dr. Stones’ report. To that end, she
continued, “we should know exactly what was said to Mr. A., what
was – what were his responses, and what were [sic] his level of
understanding”.8
[12] Mr. A.’s lawyer also expressed two further concerns: (1) that the
Public Guardian had not shown that Dr. Stones’ psychological
assessment criteria were culturally appropriate in the circumstances,
and (2) the Public Guardian had failed to show that Mr. A. is not able
to make informed decisions with the assistance of others.9
IV. ISSUES
[13] This application poses several issues for the Court to decide:
7
Transcript of Proceedings, December 13, 2018, at 32 lines 26-27, at 33 line 1.
8
Ibid at 33 lines 26-27, at 34 line 1.
9
Ibid at 54 lines 6-27, at 55 lines 7-18.
7
V. R. A.
[14] This application is unusual because the subject of the application, Mr.
A., opposes the appointment of a guardian. Therefore, I think it is
important that I first provide some important information about Mr. A.
and his circumstances.
10
Dr. George Stones, Psychological Assessment Report, February 7, 2018, Filed May 30, 2018, General
Personal Information checklist at 3-6 [Stones Report].
8
[19] Mr. A.’s adult life has been one of chronic homelessness and
continuing, serious mental health difficulties. Mr. A. has a long history
of mental illness and hospitalisation. For example, he was admitted
to the Selkirk Mental Health Centre in Manitoba from March through
May 2011 (where he was diagnosed with paranoid schizophrenia).
He was again admitted in December 2014 through to February 2015
after he attempted to hang himself. In July 2015, and from June 28 to
July 22, 2017, he was again admitted to Selkirk owing to a diagnosis
of schizophrenia and cannabis use disorder. In 2012, he was sent to
the Waypoint Centre for Mental Health Care in Penetanguishene,
Ontario. In 2015, he was transported to the Royal Ottawa Hospital
where he was treated for his schizophrenia.
[20] Mr. A. told the court in December “it’s regretful” that he was placed in I
Have a Chance. He said “it hurts and they mistreat me”. He said he is
not happy living there.11 I asked Mr. A. how the staff mistreated him.
Our exchange is instructive:
THE COURT: You told me, when you were answering Ms. Siebert’s
questions, that the people where you are staying mistreat you. How
do they mistreat you?
THE COURT: All I understood was bad people and I heard you say
that twice. Why are they bad people? And can I ask you please to
speak louder because I’m having a lot of trouble hearing you.
THE COURT: Ms. Siebert, can you help me? I’m not able to
understand him.
A. All right.
11
Transcript of Proceedings, December 13, 2018, supra note 7, at 11 lines 24-27, at 12 lines 1-6.
9
MS. SIEBERT: - what they are doing to mistreat you. So can you
give an example to the judge of a time that you were mistreated?
MS. SIEBERT: So I got first of that that sometimes you start arguing
a little. What are you arguing about?
A. You can in tone [sic] and stuff and being like – what you call
that? Using attitude and stuff.
MS. SIEBERT: So I got the first part of that. So, using a tone. What
else?
MS. SIEBERT: Their attitude. Okay, is there anything else that they
do that you think is mistreatment?
[21] There was no other evidence before the Court that Mr. A. has been
hurt or mistreated by staff at the residence. Indeed, Dr. Nelson stated
that Mr. A. “is very well cared for in his current care structure and with
the staffing he receives”.13 I was told, though, that Mr. A. had
recently assaulted his favourite staff person at the residence.
[22] Mr. A. testified that he had called the Men’s’ Shelter just the day
beforehand and had spoken to Dale. Mr. A. said he called to find out
if he could stay there if he returned to Iqaluit. His lawyer tried to
clarify that conversation:
12
Ibid at 20 lines 6-27, at 21 lines 1-25.
13
Dr. Monty Nelson, Assessment Report, February 7, 2019, Filed 27 February 2019, at 19 [Nelson Report].
10
Q. Dale?
A. That was who was answering a couple of times and I asked him
if my – like am I allowed in there, and they were, like, yeah, yup,
sort of thing, something like that.
Q. Okay.
A. There’s list of names that are not allowed there. My name is not
on the list.
[24] Similarly, Mr. A. told the Court he would actively look for a job with the
help of friends and family if he is allowed to return to Iqaluit.
However, there is evidence that his family has disowned him, and he
has a weak support network in Iqaluit.15
[26] I will not recite in detail the litany of medical and legal problems which
have plagued Mr. A. over the years. I will refer to an extract from
each psychological opinion to provide insight into his issues. The
following two extracts are taken from Dr. Stones’ report:
14
Ibid Appendix “Confidential Assessment Report” at 2.
15
Stones Report, supra note 10 Appendix at 12.
16
Ibid Appendix at 5, 6.
11
[27] Mr. A. has a long and documented history of failing to take his
prescribed medications as Dr. Stone’s report articulates:
[28] The Court had the benefit of both Dr. Stones’ and Dr. Nelson’s reports
and their court testimony. I note that both Dr. Stones and Dr. Nelson
are experienced clinical psychologists with many years of experience
in assessing Nunavummiut. Dr. Stones’ administered six
standardized psychometric tests to Mr. A. during his clinical
interview.18 Dr. Nelson administered nine tests during his clinical
interview.19 Two of these tests were identical or substantially similar.
Between them, the two psychological opinions are based on the
results of 13 different standardized clinical tools. I will refer in my
17
Ibid Appendix at 6.
18
These tests were: Wide Range Achievement Test 3 (WRAT3), Reading and Arithmetic Subtests; Beta III
Intelligence Test; Mini-Mental State Examination, 2nd Edition: Standard Version (MMSE-2:SV); Kaplan
Baycrest Neurocognitive Assessment (KBNA)-Orientation, Sequences, and Practical Problem Solving
Subtests; Comprehensive Trail-Making Test (CTMT); Vineland Adaptive Behaviour Scales, Second Edition-
Parent/Caregiver Rating Form.
19
These tests were: Mini-Mental State Exam – Second Edition (MMSE-2); Wechsler Abbreviated Scale of
Intelligence – Second Edition (WASI-2) (discontinued); Test of Nonverbal Intelligence-Fourth Edition (TONI-
4); Woodcock Johnson Tests of Achievement – Fourth Edition (Form C) (WJ-IV); Trail Making Test (TMT);
Peabody Picture Vocabulary Test – Fourth Edition (PPVT-4); Independent Living Scale; Adaptive Behaviour
Assessment System Third Edition (ABAS-3 Informant report); Behavioural Rating Inventory of Executive
Function – Adult Version (BRIEF-informant report). Dr. Monty Nelson’s clinical interview (Appendix to Nelson
Report).
12
VII. ANALYSIS
A. Did Mr. A. give informed consent to participate with the
psychologists in the preparation of their reports?
[29] The Act required the Public Guardian to give notice to Mr. A. of the
application with a copy of the psychologist’s report, and to explain the
application and proceedings to him.20 The explanation requirement
may be satisfied if the applicant – in this case the Public Guardian –
“explains the matter to the best of his or her ability, whether or not the
person receiving the explanation understands it”.21 I am satisfied the
Public Guardian complied with these requirements. On the evidence
before the Court, I am satisfied that Mr. A. understood both the
purpose and potential outcomes of the application.
20
Guardianship and Trusteeship Act, supra note 2, ss 3, 4.
21
Ibid, s 3(2).
22
Nelson Report, supra note 13 Appendix at 1 citing Susan Breddam, the Public Guardian of Nunavut.
23
Canadian Code of Ethics for Psychologists Third Edition, 2000 at 11, 12, and 13 [Code].
13
[33] Dr. Stones testified that he did not make any notes of his interaction
with Mr. A. Dr. Stones addressed the consent issue as follows:
In terms of the consent thing, it’s a bit of a tautology with, with these
cases, in that the individuals that we see are already … in a, pre-
selected population, a clinical population. And having an individual
sign a consent form, whether it’s in Inuktitut or whether it’s in
English, that they don’t likely understand what they’re signing would
be in my estimation an ethical breach. It’s, it’s a meaningless
document. So, so I’m not sure that there is a way, an easy way, to, to
ensure that, that somebody understands all the nuances.25
[34] In Dr. Stones’ opinion, Mr. A. “understood the gist of what was
happening, but not likely the long-term implications of it”.26 It is
impossible to reconcile the second part of this view with Mr. A.’s
keenness to have Dr. Nelson write a “good report”. I accept Dr.
Nelson’s conclusion on this point.
[35] It is true that neither psychologist kept detailed notes of this part of
their interaction with Mr. A. Had they kept detailed notes; it may have
helped to alleviate any concerns regarding Mr. A.’s informed consent
to participate in the assessments. Nevertheless, I am satisfied on the
evidence before the Court, that Mr. A. participated willingly, and to the
extent possible, understood why the assessments were being done.
24
Transcript of Proceedings, March 15, 2019, at 11 lines 3-10.
25
Ibid at 44 lines 9-20.
26
Ibid at 43 lines 15-18.
14
[36] In her oral submissions, Mr. A.’s counsel referred to Ewert v Canada,
a decision of the Supreme Court of Canada.27 In Ewert, the majority
of the Supreme Court ruled that Correctional Services Canada had
violated the rights of its Indigenous inmates by using psychological
and actuarial assessment tools which, possibly, are culturally biased.
Counsel urged this Court to make a similar finding respecting the
psychological assessment tools used in Mr. A.’s case.28
[38] In the absence of relevant evidence and focused argument, this Court
is not able to impugn the integrity of the approaches taken by the two
psychologists.
[39] Alternatively, Mr. A.’s counsel urged the Court to take ‘judicial notice’
of “the common-sense principle that standardized testing is not
always culturally appropriate and relevant”.29 Significantly, counsel
was unable to cite any legal authority to support this proposition.
[41] On the basis of their testimonies, I am satisfied that both Dr. Stones
and Dr. Nelson exhibited cultural sensitivity in their dealings with Mr.
27
Ewert v Canada, 2018 SCC 30, [2018] 2 SCR 165 [Ewert].
28
Transcript of Proceedings, supra note 7 at 34 lines 13-27, at 35 lines 1-2.
29
Ibid at 36 lines 19-21.
Judicial Notice “dispenses with the need for proof of facts that are clearly uncontroversial or beyond
reasonable dispute.” R v Find, 2001 SCC 32 at para 48, [2001] 1 SCR 863.
15
A. I find that their assessments are reliable, and may be relied upon
by this Court.
C. As an adult, is Mr. A. in need of a guardian?
[42] Can Mr. A., with or without assistance, make informed s. 7 decisions?
Mr. A. testified that he does not want or need a guardian. But, as I
noted in paragraphs 19-27 above, his understanding of his situation in
Iqaluit is objectively unfounded.
[43] On this issue, each psychologist opined ‘no’; Mr. A. is not capable.
This is part of what Dr. Stones said:
[46] I agree with the Public Guardian that it is significant that both
assessments were conducted while Mr. A. was receiving considerable
assistance.
31
Nelson Report, supra note 13 Appendix at 12.
32
Ibid Appendix at 14.
17
[47] Notwithstanding all the assistance he was receiving at the time, Mr. A.
continued to struggle. It is particularly troubling that Mr. A. does not
believe he needs medication.34
[49] Mr. A.’s personal circumstances are tragic. He suffers from major
mental illness and is not capable of appreciating that fact. The
evidence before the Court established that Mr. A. is estranged from
his family. He has no support network. Realistically, there is no one
available to provide Mr. A. with the assistance he desperately needs
to function safely in society. In these circumstances, Mr. A. –
whether he subjectively appreciates it or not – will benefit substantially
from the appointment of a guardian who will ensure his safe
accommodation and attend to his regular medication needs.
VIII. CONCLUSION
[52] This Court orders that the Public Guardian for Nunavut be appointed
guardian for R. A. pursuant to section 7 of the Act. For that purpose,
the guardian is empowered to:
[53] The Government of Nunavut shall pay the costs and disbursements of
this application as required. The office of the Public Guardian for
Nunavut shall draft the Order.
[54] The Order will be in place for five years. The Act provides for a
review within three to five years.35 However, in the circumstances of
this case, I wish to reassess Mr. A.’s circumstances and possible
progress one year from now. I direct that the Public Guardian for
Nunavut prepare a progress report for the Court’s consideration at
that time.
___________________
Justice P. Bychok
Nunavut Court of Justice
35
Guardianship and Trusteeship Act, supra note 2, s 9(2)(a).