Marchese (Re), 2020 ONCA 80

REASONS FOR DECISION

1The respondent was found NCR in December 2008. Until April 2017, she was held under a series of detention orders which included community living at the discretion of the Hospital. In April 2019, the Ontario Review Board, by a 3:2 majority, directed that the respondent should be conditionally discharged. The Hospital appeals and the Crown supports the appeal.

2Counsel for the Hospital argued that the majority reasons provide virtually no explanation or justification for the conditional discharge disposition. Certainly, those reasons, insofar as they analyze the evidence, are brief, if not cursory. The majority’s reliance on the provisions of the Mental Health Act goes unexplained in those reasons.

3Given the respondent’s tendency to seriously decompensate very rapidly for a variety of reasons, and her recent history of involuntary admissions prior to the hearings before the Board, it was essential that the reasons of the majority explain why a conditional discharge could, in those circumstances, adequately protect the safety of the public. Unfortunately, the Board’s reasons offer nothing beyond the conclusory comment at para. 30. In our view, absent adequate reasons, the Board’s decision cannot stand.

4The appeal is allowed and a new hearing is ordered. The hearing should be conducted as soon as reasonably possible and, in any event, by March 6, 2020, one year after the last annual review. In the interim, given what we have been told by counsel for the Hospital, the respondent shall remain subject to the terms of the Board’s order, dated April 9, 2019.