COURT OF APPEAL FOR ONTARIO

CITATION: Marceau (Re), 2014 ONCA 528

DATE: 20140707

DOCKET: C58180

Feldman, MacPherson and Cronk JJ.A.

IN THE MATTER OF: Brad M. Marceau

AN APPEAL UNDER PART XX.1 OF THE CODE

Susan E. Fraser, for the appellant

Michael Perlin, for the respondent, The Attorney General for Ontario

Janice E. Blackburn, for the respondent, The Person in Charge of Thunder Bay Regional Health Sciences Centre

Heard: July 4, 2014

On appeal against the disposition of the Ontario Review Board dated November 26, 2013.

ENDORSEMENT

[1] The sole issue on this appeal is whether the Ontario Review Board erred in law by finding that the appellant poses a significant threat to the safety of the public.

[2] At the hearing held on November 18, 2013, Dr. Sheppard expressed the position of the treatment team as well as that of the hospital that the appellant is mentally ill, but does not pose a risk to the safety of the public. The hospital report stated in part:

... the treatment team is not persuaded that Mr. Marceau meets the Winko threshold for significant threat to public safety. In our view it cannot be said that, if absolutely discharged, Mr. Marceau would likely commit a serious criminal offence resulting in physical or psychological harm to a member of the public.

If absolutely discharged, in fact, Mr. Marceau’s treatment would continue in exactly the way that it has over the course of the past year, that is, under the authority of the Mental Health Act. He has historically maintained a good relationship with the OTR Team, which provides ongoing services to Mr. Marceau, equivalent to those provided by an ACT Team, and who are very well acquainted with Mr. Marceau and his family, with Mr. Marceau’s treatment needs including with respect to his comorbid issues, and with the elements of a treatment and rehabilitation plan which will be required in order to successfully reintegrate him into the community. It is our position that the OTR Team, with the utilization of the Mental Health Act if necessary, is quite capable of managing whatever risks may arise from Mr. Marceau’s illness and, accordingly, that Mr. Marceau would not present a significant threat to public safety if absolutely discharged and re-engaged with the OTR Team as his primary service providers.

It is acknowledged that this young man does present some level of risk to public safety. When acutely unwell he can be agitated, irritable and defiant, and early in his current hospital stay he did require brief periods of locked seclusion until his condition started to stabilize. The circumstances of the index offences, also, would indicate some level of concern. Nevertheless Mr. Marceau does not have an adult history of criminal convictions. Despite the fact that he has remained quite floridly unwell for many months, and that he has continued to use marijuana episodically, his behaviour has been almost entirely non-aggressive. Since he has been receiving antipsychotic treatment, which he will clearly require indefinitely and which will be provided for him via substitute consent, he has in fact been easily manageable in hospital. Despite his lack of insight and his tendency to defy authority, there have been no reports of any sort of behavioural disturbances during the extended periods of time that Mr. Marceau has spent in the community, generally in the company of his family. While there is an element of risk, it is the position of the treatment team that whatever threat that Mr. Marceau does pose to public safety is not significant.

[3] This opinion was not contradicted in the evidence before the Board. Dr. Sheppard and the appellant’s mother corrected an inaccuracy in the hospital report which said that the appellant had once assaulted his mother. In fact this had not occurred. Although the appellant, when his mental illness was manifesting itself floridly, could be physically and verbally aggressive, he had gone so far as to damage some property but he was not violent with people.

[4] His only incident of such violence was the index offence. The circumstances of that event were described in the evidence. The appellant was in the hospital through the civil mental health system and went home without leave. His mother called the hospital and asked for the police to come and pick him up because she was afraid he would jump out of the car if she tried to drive him back.

[5] When the police came, they insisted on handcuffing him, he resisted, at which point, according to his mother, they got him on the ground, kneed him, beat him with a club and a flashlight and punched him in the head. The family and neighbours were screaming for them to stop. In the scuffle one officer got kicked in the mouth and the appellant spit on another, although that was after they pushed his head into the dirt on the ground.

[6] It was acknowledged by Dr. Sheppard at the hearing that these circumstances were “somewhat unique”.

[7] The appellant was initially conditionally discharged but ended up back in hospital on May 13, 2013 under a Form 1 in the civil system because his continued drug use and relationship problems exacerbated his mental health problems. He has remained in hospital since that time. In January 2013, his treatment team had decided to wean him off his medication which turned out to be the wrong treatment decision.

[8] At the time of the hearing, the appellant was not doing as well mentally as he was a year earlier, which was why the hospital wanted to retain him but only under the civil mental health system.

[9] The Board’s reasons for rejecting the evidence and opinions of the psychiatrist and the hospital are at the conclusion of its reasons as follows:

Having heard and considered all of the evidence and the submissions of all of the parties, the Board is of the view that the accused is a significant threat to the safety of the public. We find on all of the evidence that there is a foreseeable and substantial risk that the accused would commit a serious criminal offence, if discharged absolutely. We make this finding on the basis of the following evidence.

The accused is diagnosed with a major mental illness, Schizophrenia, Disorganized and Paranoid Features. This diagnosis is complicated by a diagnosis of Polysubstance Abuse. Substance abuse is a known risk factor in relation to relapse of a major mental disorder. The accused has used illicit substances in breach of his disposition over the course of the past year. He has tested not only positive for cannabinoids but also for cocaine which is associated with considerable risk of relapse.

The accused has a long history of anger management issues and immaturity. When psychotic, he is paranoid and has a history of requiring physical and chemical restraint in hospital. In 2006, the accused attempted to jump out of a moving vehicle when being brought to hospital. It is his current belief that the hospital is gassing him. The accused has a history of physically aggressive behaviour when ill. Instances of aggressive behaviour are documented on more than one occasion.

Of significance is the fact that the accused committed the index offences in the context of the enforcement of the Mental Health Act. It is our view that the type of offences committed by the accused when involuntary readmission is sought by officials causes harm within the Winko standard. Mr. Marceau’s behaviour due to psychosis and anger potentially affects police officers, nurses, staff and co-patients. The Board does not have the jurisdiction to question the findings of not criminally responsible. We accept that the accused committed the physical elements of the index offences. Mr. Marceau is an individual found not criminally responsible 1.5 years ago, whose mental stability has deteriorated since his last hearing and whose risk of relapse is enhanced by his use of illicit substances. The Board is of the view that he meets the threshold of significant threat.

[10] In Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 57, the Supreme Court described the requirements of a significant threat to the public as follows:

The threat must also be “significant”, both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold. Finally, the conduct or activity creating the harm must be criminal in nature … In short, Part XX.1 can only maintain its authority over an NCR accused where the court or Review Board concludes that the individual poses a significant risk of committing a serious criminal offence…

[11] In our view, the evidence relied on by the Board cannot meet the Winkotest. The Board seemed to correlate the appellant’s drug use and the symptoms of his mental illness with risk to the public. This was speculative and not supported by the evidence. The evidence was that he is well supported by his treatment team and his family. His mother is committed to caring for him and making treatment decisions as long as necessary. He is compliant with the doctors and with his medication. Unfortunately he has a serious mental disorder. But that does not necessarily mean he is violent or is likely to commit a serious criminal offence.

[12] The Board also relied on the index offence, but ignored the fact that the appellant had not been physically violent to anyone before or since, as well as the very unique circumstances of the offence.

[13] In our view, the finding of substantial risk to the safety of the public was an unreasonable one and must be set aside.

[14] As stated by the hospital, that does not mean that the appellant will necessarily be released from the control of the hospital. Recourse to the civil mental health system for his continued detention and treatment remains possible, as necessary.

[15] The appeal is allowed and an order for an absolute discharge is substituted.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”