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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: Public Guardian for Nunavut v R. A.,


2019 NUCJ 07
Date: 20190613
Docket: 10-18-280-GRD
Registry: Iqaluit

Applicant: Public Guardian for Nunavut


-and-

Respondent: R. A.

________________________________________________________________________

Before: Mr. Justice Paul Bychok

Counsel (Applicant): M. Rasmussen


Counsel (Respondent): S. Siebert

Location Heard: Iqaluit, Nunavut


Date Heard: December 13th, 2018 & March 15th, 2019
Matters: Contested Guardianship Application

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


2

DISCLAIMER PAGE

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with legislative requirements


or at the discretion of the authoring Justice to protect vulnerable parties.
Letters have been assigned at random.
3

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.

[2] In Nunavut, guardians and guardianship applications are governed by


the procedures in the Guardianship and Trusteeship Act. The Act
provides various safeguards to ensure that the subject person’s
autonomy is not infringed without just cause. Judges must act with
care and the utmost caution before depriving a person of their
autonomy. This case features a guardianship application where the
respondent, R. A., says he does not need a guardian. Mr. A.’s
estranged mother supports the Public Guardian’s application.3

II. BACKGROUND

[3] This application has been brought by Nunavut’s Public Guardian to be


appointed guardian for Mr. A. I heard the application in Iqaluit on
December 13, 2018. Mr. A. testified by telephone. Counsel advised
the Court that Dr. George Stones – who performed a psychological
assessment on Mr. A. – was not available to testify. After hearing the
submissions of counsel, I adjourned the hearing to March 15, 2019. I
ordered Dr. Stones to appear at the hearing. I note that Dr. Stones’
report was dated February 7, 2018, and was somewhat dated. I also
ordered the preparation of a second psychological assessment. The
hearing was adjourned to March 15, 2019, for completion.

[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

[6] The Public Guardian has brought this application pursuant to s. 7 of


the Guardianship and Trusteeship Act. Section 7(1)(b) of the Act
empowers the Court to make a guardianship order if it is satisfied that
the person:

(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

[7] Among other things, the application must be supported by a report


prepared by a medical practitioner or registered psychologist. The
report must canvass the three prerequisites outlined in the preceding
paragraph. The report must also address the subject’s “present and
future physical, mental, social, vocational, residential and educational
needs”. The report must also report on the subject’s preference as to
who might be appointed as his guardian.5

[8] The Act also empowers the Court to request a second psychological
opinion, which I did here.6

III. THE PARTIES’ POSITIONS


A. The Public Guardian

[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.

[10] Mr. A. opposes the application. He says he does not need a


guardian.

[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:

1. Did Mr. A. give informed consent to participate with the


psychologists in the preparation of their reports?

2. Is the current battery of psychological assessment tools culturally


appropriate to Nunavut?

3. Is Mr. A. in need a guardian? and,

4. If the answer to issue 3 is yes, would the appointment of a guardian


substantially benefit Mr. A.?

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.

[15] Mr. A. possess certain abilities as described by Dr. Stone including


the ability to

• Communicate verbally and be understood;


• Hear and understand communication from others;
• Make [his] needs known;
• Read;
• Write;
• Recall information from an hour ago;
• Recall information from 24 hours ago;
• Recall information from a week ago;
• Wash [his] hands and face;
• Shower;
• Bathe;
• Brush or comb [his] hair;
• Brush teeth;
• Dress himself and feed himself; and
• He is fully aware of time.10

[16] Mr. A. testified by telephone. He is a 28-year-old Inuk. He is from


Pangnirtung. He was a premature baby and was hospitalised as an
infant in Montreal and Ottawa. He suffered neglect and abuse at
home and he was moved at age four to the care of his maternal
grandparent.

[17] As an adolescent, he moved to Iqaluit with his Aunt Lucy where he


started to use insolvents around age 12 or 13. His father committed
suicide sometime around 2008 or 2009. Mr. A. is reported to have
been deeply affected by his father’s suicide.

[18] Mr. A. is currently living at ‘I Have a Chance’ group home in Stoney


Plain, Alberta, and is subject to a temporary guardianship order.

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?

A. And so much [INDISCERNABLE] it’s just like now, so I have –


like they’re bad people. And I’ve been to [INDISCERNABLE] and
like they – they’re bad people.

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.

A. Some of the [INDISCERNABLE] there are bad and in some


ways – sometimes they are good. Sometimes they are bad like
[INDISCERNABLE] argument in there just a little bit for some
reason.

THE COURT: Ms. Siebert, can you help me? I’m not able to
understand him.

MS. SIEBERT: … He’s asked you

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?

A Sometimes [INDISCERNABLE] arguing here and there for some


other reasons [INDISCERNABLE].

MS. SIEBERT: Can you say that again?

A. Sometimes they end up arguing a little bit and then


[INDISCERNABLE].

MS. SIEBERT: So I got first of that that sometimes you start arguing
a little. What are you arguing about?

A. Certain things, like – or I don’t know, nothing major.

MS. SIEBERT: Okay. So you’re arguing a little, and what do they do


to mistreat you when that’s happening?

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?

A. And attitude and that sort of thing.

MS. SIEBERT: Their attitude. Okay, is there anything else that they
do that you think is mistreatment?

A. No, not really.12

[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.

[23] However, there is also evidence is that Mr. A. is banned permanently


from both the Men’s Shelter and the mental health facility in Iqaluit
because of his past violent behaviour.14

[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

[25] As Mr. A. disagrees with the opinions of the two psychologists, we


need to examine briefly the basis for their two assessments.

[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:

In December 2014 R. was readmitted to Selkirk following a suicide


attempt (attempted hanging). Upon admission, his behaviour was
disorganized, he claimed magical powers, including the ability to
read minds and convert water into wine. Response to medication
was complicated by negative side effects that included akathisia
(chronic restlessness) and sialorrhea (excessive drooling).
Destruction of property was noted, with R. smashing a fire sprinkler
resulting in extensive damage. The intake diagnosis was acute
schizophrenia, Paranoid type, and neuroleptic-induced akathisia.
With a change in medication, his behaviour gradually stabilized and
R. was discharged to Iqaluit, where he lived at the men’s mission and
was a community client of Akausisarvik.16

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:

Discharge back to Iqaluit [from Selkirk] occurred in mid-July 2017,


with R. attending Akausisarvik on an outpatient basis since then.
Current medications, administered by Akausisarvik personnel,
include: Palperidone 50 mg/0.5 ml every 4 weeks (a long acting
antipsychotic agent); Olanzapine ODT 5 mg tablet 1-2 per day as
needed.

Medication noncompliance is a serious concern. Currently, R. is


compliant but only because it is a requirement of his participation in
the day program at Akausisarvik. R. relies on the program for a
number of his physical and emotional needs; in particular, he is
served daily meals at Akausisarvik. As reported by staff, R.’s insight
into his condition is poor. R. does not believe that he requires
medication and his history demonstrates noncompliance and swift
psychiatric decompensation when not under directed care.17

VI. THE PSYCHOLOGICAL OPINIONS


A. Dr. George Stones and Dr. Monty Nelson

[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

analysis only to the key pieces of their evidence and opinions


pertinent to the issues before the Court.

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.

[30] The Act is necessarily silent on the issue of consent. This is so


because the vast majority of cases involve persons who are incapable
of providing informed consent. Mr. A.’s case is challenging because
he is capable of some discernment and able, with structure and
assistance, to “function reasonably well in some areas”.22

[31] The Canadian Code of Ethics for Psychologists guides psychologists


in the exercise of their professional responsibilities. The following
guidelines pertaining to consent are relevant here:

1.16 Seek as full and active participation as possible from others in


decisions that affect them, respecting and integrating as much as
possible their opinions and wishes.

1.22 Accept and document oral consent, in situations in which


signed consent forms are not acceptable culturally or in which there
are other good reasons for not using them.

1.33 Seek to use methods that maximise understanding and ability


to consent of persons of diminished capacity to give informed
consent, and that reduce the need for a substitute decision maker.23

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

[32] Dr. Nelson testified as follows on the consent issue:

… we basically, like I said, have to spend as much time as necessary


to ensure the, the client understands what, what we’re doing. And it
was clear to me that R. did because right away he wanted me to
ensure that I wrote a good report about him so that he didn’t have a
guardian. So that, to me, indicated he knew that this was about
reviewing his decision-making capacity.24

[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

B. Is the current battery of psychological assessment tools


culturally appropriate to Nunavut?

[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

[37] I cannot do so. To my query whether Ewert featured the same


psychological assessment tools as in the present case, counsel
replied: “They are not”. Nor did either party call any evidence
respecting this point. The evidence before the Court, however, does
indicate clearly that both Dr. Stones and Dr. Nelson were aware of,
and culturally sensitive to, issues facing Inuit who suffer from mental
illness.

[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.

[40] Standardized psychological testing and case specific opinions are


areas of specialist expertise. These mental health assessments lie
outside the general easily proven area of common knowledge. In my
view, the Court cannot take judicial notice that Dr. Stones and Dr.
Nelson used culturally biased assessment tools when assessing Mr.
A.

[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:

… it is our conclusion that Mr. A. requires the intervention of an


adult guardian.

… Mr. A. displays diminished capacity in the following areas and


abilities: making informed healthcare decisions, including issuing an
advanced-care direction regarding end of life decisions; managing
daily affairs (including ensuring safe adequate shelter, nutrition);
understanding the implications of applying for any license, permit,
financial credit or legally binding contractual arrangement;
consenting to marriage; managing personal finances, including bill
payment; identifying potentially unsafe situations and self-protection
in potentially dangerous situations; and last, caring for a dependent.

Left to his own devices, Mr. A. is at serious risk of harm, either


intentionally or through misadventure. Based upon his documented
history, family support is poor. Medication non-compliance, when
not under direct care, is also a significant concern.30

[44] This is what Dr. Nelson said, in part:

The situation with R. is quite concerning. Despite nearly a decade of


documentation of struggles, repeated attempts to control his
behaviours, and the involvement of numerous professionals over the
years, he continues to struggle. He shows no evidence of being able
to make judgements in his best interests.

Decision-making capacity, such as in an area regarding being able to


make health care-related decisions requires numerous cognitive
skills. First of all, an individual needs to be able to understand
information and process it. R. has very limited language
30
Stones Report, supra note 10 Appendix at 13, 14.
16

comprehension, and struggles with retaining new information.


Therefore his skill is very weak in this area.

Furthermore, an individual must be able to appreciate the


significance of information relevant to themselves. This requires
insight as well as executive functioning (particularly self-
management and self-regulatory processes). As R. has no insight into
his needs, and very poor impulse control, he becomes frustrated with
those he feels are providing him with inappropriate and unnecessary
structure and treatment. Therefore, this
Is also a cognitive skill that is a significant weakness for him.

Reasoning (to make good choices) is also essential…R. becomes


bored quickly, needs frequent redirection to the task at hand, and
does not feel that there are any consequences to any of his
decisions…He demonstrates little or no abstract reasoning nor
understanding of the consequences of his actions, and no sense of his
own agency in orchestrating some of the difficulties he has had.31

[45] Dr. Nelson’s conclusion bears repeating:

Ultimately, R. continues to lack decision-making capacity as he is a


victim of a severe mental illness (schizophrenia). Although he may
deny or be unaware of his current issues, and although he may only
wish to follow his own desires and to regain control of his life, it is
felt that R. is fundamentally out of control. Despite his wishes to
make his own decisions, he deserves and requires the intensive
mental health and residential supports that he cannot effectively
arrange on his own. His mental illness means that he cannot
advocate for his own needs as he does not realistically know what his
needs are. His ability to determine trustworthy individuals is also
disturbed. If left to his own devices, R. would ultimately once again
render himself as homeless and receiving no treatment.; his history
shows that this type of situation would ultimately put himself and
those around him at risk.32 [Emphasis added]

[46] I agree with the Public Guardian that it is significant that both
assessments were conducted while Mr. A. was receiving considerable
assistance.

First, at the time the Stones Assessment was conducted, Mr. A.

31
Nelson Report, supra note 13 Appendix at 12.
32
Ibid Appendix at 14.
17

was receiving some assistance with his decision making as he was an


outpatient at the Akausisarvik Mental Health Treatment Centre day
program …

Secondly, the more recent Nelson Assessment was conducted while


Mr. A. was residing in a group home administered by I Have a
Chance Support Services Ltd (IHAC). At IHAC, Mr. A. has
significant Assistance with his decision making as the group home is
staffed 24 hours a day, 7 days a week.33

[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

[48] In my view, Mr. A. clearly requires the assistance of a guardian.


D. Would the appointment of a guardian substantially benefit Mr.
A.?

[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

[50] Mr. A. needs assistance in obtaining a safe and structured residential


environment with ready and supervised access to appropriate medical
care. Therefore, I grant the Public Guardian’s application for a five-
year guardianship order for Mr. A.

[51] However, Mr. A.’s circumstances do not call for a comprehensive


order. The evidence shows that Mr. A. is able to function in certain
areas with assistance. The limitations this Court places on his
personal autonomy ought to reflect that reality.
33
Brief of the Petitioner, the Public Guardian for Nunavut, Filed March 11, 2019 at 13 paras 40, 41.
34
Stones Report, supra note 10 Appendix at 6.
18

[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:

1. decide where R. A. is to live, temporarily or permanently, in


accordance with section 11(2)(a) of the Act; and

2. consent to any type of health care on behalf of Mr. A., in accordance


with section 11(2)(j) of the Act.

[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.

Dated at the City of Iqaluit this 13th day of June, 2019

___________________
Justice P. Bychok
Nunavut Court of Justice

35
Guardianship and Trusteeship Act, supra note 2, s 9(2)(a).