COURT OF APPEAL FOR ONTARIO

CITATION: Marzec (Re), 2013 ONCA 703

DATE: 2013-11-15

DOCKET: C56608

Weiler, MacFarland and Watt JJ.A.

BETWEEN

IN THE MATTER OF EDWARD GERALD MARZEC (accused)

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel:

Suzan E. Fraser, for the appellant

Janice E. Blackburn, for the respondent, Person in Charge, Forensic Mental Health

Roger A. Pinnock, for the respondent Crown

Heard and released orally: November 8, 2013

On appeal from the Disposition of the Ontario Review Board, dated December 6, 2012.

ENDORSEMENT

[1] The appellant has a long-standing history of mental illness. He does not have a criminal record for violence save for the index offence which occurred on June 11, 2012.

[2] On October 3, 2012, the appellant was found NCRMD on a charge that he assaulted his neighbour with a pick axe. The record discloses that words were exchanged between the appellant and his neighbour. The appellant went into his home, retrieved a pick axe, and chased the neighbour down the street with it. The neighbour’s wife screamed that she was calling police. The appellant stopped his chase, returned to his home where he awaited the arrival of the police, and surrendered to them when they arrived.

[3] He was charged with assault with a weapon and languished in jail until a bed was available for him at the Thunder Bay Regional Health Sciences Centre on November 6, 2012, almost five months after the offence was committed.

[4] Dr. Sheppard, who has followed the appellant, initially assessed him on June 13, 2012 and determined that he was fit to stand trial. He next examined the appellant on July 6, 2012, for the purpose of determining whether he suffered from a mental disorder as defined under s. 16(1) of the Criminal Code at the time of the alleged offence. Dr. Sheppard concluded that he did.

[5] On October 3, 2012, the appellant was found NCRMD on the charge. The hearing which is the subject of this appeal was his initial hearing before the Board. Despite the appellant’s lengthy history of mental illness dating back to 1990, the Board noted that the appellant had grade 12 education, plus a year of studies in the electronics field, had owned and operated his own repair service for 20 years, and had managed to live rather uneventfully in the community without violence until this event.

[6] Over the years the appellant had a number of hospital admissions and had been diagnosed with schizophrenia. Although he has tried medication he discontinues usage because he says the medication makes him feel worse. He has in the past presented himself frequently at the emergency wards at the local hospitals when he recognized his need for help and, on occasion, he has been admitted to hospital as a result.

[7] Dr. Sheppard agreed that the appellant on this occasion had improved without treatment. On his evidence there was a stark difference between how the appellant had presented on June 13, 2012, when he was clearly in a psychotic state and delusional, and two weeks into his admission to the Secure Unit of the Thunder Bay Regional Health Sciences Centre when he was “pleasant, polite, engageable, organized in his thinking and cognitively intact.”

[8] In his report to the Review Board, dated November 7, 2012 Dr. Sheppard notes that despite at least a 20-year history of untreated psychiatric illness, the appellant’s hospitalizations have been relatively infrequent and of short duration. Nevertheless, the appellant lacked insight into his illness and Dr. Sheppard was of the view that the appellant remains a significant threat to public safety and required detention on the Secure Forensic Unit.

[9] The appellant’s counsel conceded at the hearing that the appellant presented a significant threat to public safety but sought a conditional discharge on behalf of his client. In our view, the Board did not give adequate consideration to whether a conditional discharge was the least onerous, and least restrictive disposition for the appellant in all the circumstances.

[10] For these reasons, we would allow the appeal and direct that the Board reconsider its decision in accordance with these reasons. The Board’s decision in this respect shall be made in conjunction with the review hearing scheduled for November 18, 2013.

“K. M. Weiler J.A.”

“J. MacFarland J.A.”

“David Watt J.A.”