In the Matter of Marzec[^1]

[Indexed as: Marzec (Re)]

Ontario Reports

Court of Appeal for Ontario,

Feldman, MacPherson and B.W. Miller JJ.A.

September 30, 2015

127 O.R. (3d) 788 | 2015 ONCA 658

Case Summary

Criminal law — Mental disorder — Dispositions — Accused found not criminally responsible after threatening neighbour with an axe — Accused psychotic at time of offence — Hospital supporting appellant's request for absolute discharge on basis offence likely isolated incident — Review board imposing conditional discharge on terms that allowed [page789] appellant to return to his home but not contact his neighbour — Board erring in ordering conditional discharge out of abundance of caution on basis that accused had not been in community for some time and stability might be because of hospital setting and support — Psychiatrist stating risk increased if accused no longer had support from hospital but testifying that the risk rose to level of significant risk of harm to public — Board's decision unreasonable — Lack of evidence of significant risk of harm requiring that accused be discharged absolutely.

The appellant was charged with assault with a weapon after threatening his neighbour with an axe. At the time of the offence, he was psychotic and believed himself to be under attack by evil spirits. He was found not criminally responsible on account of mental disorder and was detained at the Secure Forensic Unit of the Thunder Bay Regional Health Sciences Centre ("TBRHSC") subject to conditions. In 2013, the Ontario Review Board permitted him to return to the community but not to be within 100 metres of the neighbour's house. As he resided within that distance, the order effectively prevented him from returning home and he declined suggestions that he reside at another location. At his annual review in 2014, he asked the board for an absolute discharge. The TBRHSC supported that request. In the opinion of his treating team, the appellant did not pose a significant threat to public safety and his treating psychiatrist said that the offence was "likely" an "isolated event". The board, however, concluded that the appellant remained a significant threat to public safety. The board noted the evidence indicated that the accused was doing well in the environment of the hospital where there were supports and few stressors and that he had few supports in the community. The board found that, because the appellant had not lived in the community for some time, he was "untested" and should live in the community under its jurisdiction before an absolute discharge was granted. The board affirmed the conditional discharge on terms that permitted the appellant to return to his home, on condition that he not contact his neighbour and report weekly. The appellant appealed.

Held, the appeal should be allowed.

The board's decision was not reasonable. Although the evidence indicated that his risk would increase were he to have fewer supports, it did not indicate that it rose to the level where he posed a significant risk. If the appellant posed a significant risk to the public, it was difficult to see how it could be safe to return him to his home on the conditions imposed since the board's order would effectively require the neighbours to protect themselves if the accused was still dangerous. The only reasonable conclusion -- one that was supported by the evidence -- was that the appellant did not pose a significant risk of harm. The board appeared to have ordered a conditional discharge out of an abundance of caution. That was not the legal test. If the appellant did not pose a significant risk to the public, the board was required to order an absolute discharge.

Cases referred to

Laberakis (Re), [2012] O.J. No. 373, 2012 ONCA 70, 99 W.C.B. (2d) 832; Marzec (Re), [2014] O.R.B.D. No. 2894; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 267 [as am.], 672.78(1) [page790]

APPEAL from the disposition of the Ontario Review Board, [2014] O.R.B.D. No. 2895.

Suzan E. Fraser, for appellant.

Janice Blackburn, for respondent person in charge of Thunder Bay Regional Health Sciences Centre.

Kevin Rawluk, for respondent Attorney General of Ontario.

Endorsement BY THE COURT: --

A. Overview

[1] The appellant appeals the disposition of the Ontario Review Board dated December 1, 2014, with reasons issued December 5, 2014 [[2014] O.R.B.D. No. 2894]. The appellant asked the board for an absolute discharge. The board granted the appellant a conditional discharge.

[2] On June 11, 2012, there was an altercation between the appellant and his neighbour. Words were exchanged between the two on the appellant's property. On the appellant's account, he felt threatened and went into his house, retrieved a pickaxe and chased the neighbour down the street. The appellant swung at his neighbour with the axe, but did not make contact. The neighbour's wife called out that she was going to call the police, at which point the appellant returned to his house and waited on his front steps. He surrendered when the police arrived.

[3] At the time of the index offence, the appellant was psychotic and believed himself to be under attack by evil spirits.

[4] The appellant was charged with assault with a weapon contrary to s. 267 of the Criminal Code, R.S.C. 1985, c. C-46. He was found not criminally responsible on account of mental disorder on October 3, 2012.

[5] Since that finding, the appellant has been detained at the Secure Forensic Unit of the Thunder Bay Regional Health Sciences Centre (the "TBRHSC"), subject to conditions.

[6] The appellant appeals the board's disposition on the basis that it erred in failing to grant him an absolute discharge by concluding that he posed a significant threat to the safety of the public. The TBRHSC supports the appellant's submissions.

[7] The Crown opposed the imposition of an absolute discharge and maintains that position on the appeal. It supports the conclusion of the board that the appellant continues to pose a significant threat to the safety of the public, which requires that the board maintain its jurisdiction and deny an absolute discharge. [page791]

[8] For the reasons that follow, we find the board's decision to be unreasonable and substitute an absolute discharge.

B. Facts

[9] Following the holding that the appellant was not criminally responsible on account of mental disorder for his index offence, the appellant was admitted to the TBRHSC on November 6, 2012. The board's initial disposition was to detain the appellant at the Secure Forensic Unit of the TBRHSC with privileges in the hospital, its grounds and in the community.

[10] On November 26, 2013, the board granted the appellant a conditional discharge, which included that (1) the appellant not attend within 100 metres of his neighbours' residence; and (2) the appellant report to the TBRHSC on a biweekly basis.

[11] The practical effect of the first condition was that the appellant was precluded from returning to live in his home. Despite his right to live elsewhere in the community, the appellant remained at the TBRHSC.

[12] The TBRHSC stated that the appellant resisted its attempts to resettle him in the community. This appears to be due to his preference to live in his own home and his belief that he lacks the financial resources to afford alternative accommodation.

C. The November 18, 2014 Board Hearing

[13] The most recent board hearing was held on November 18, 2014.

[14] The board considered a risk assessment contained in the TBRHSC's report indicating that, in the opinion of the appellant's treatment team, the appellant "does not pose a significant threat to public safety" although [at para. 10] "he does suffer from a longstanding, untreated, schizophrenic illness and continues to harbour beliefs regarding alleged persecution and mistreatment by authorities".

[15] The TBRHSC's report states that the appellant does not participate in hospital programming or activities, but regularly utilizes community passes and has done so without incident.

[16] In addition to the TBRHSC's report, the board was provided with a risk assessment report prepared by Dr. P. Johnston, a staff psychologist at the TBRHSC.

[17] Dr. Johnston predicted that the appellant would continue to do well in "a stable and semi-structured environment" where he is "exposed to a limited number of stressors and has supports available", should he express a need for them. He noted that the appellant has "limited to no social support available beyond the hospital environment". [page792]

[18] He concluded that the appellant is "a low-moderate risk of future violent offending with low risk of imminent violence, given an ongoing structured and supportive environment able to provide regular management and support". That conclusion was qualified by a concern for increased risk of physical harm to others should he be in an environment without support.

[19] The board also heard expert testimony from Dr. Sheppard, who is the appellant's attending psychiatrist. Dr. Sheppard testified that he viewed the index offence as "likely being an isolated event" and that it was "speculative to suspect that [the appellant] might act out in a harmful manner".

[20] The hospital recommended an absolute discharge. The board, however, concluded that the appellant remains a significant threat to the safety of the public.

[21] The board concluded that because the appellant has not lived in the community for some time, he is "untested" and should live in the community under its jurisdiction before an absolute discharge is granted. This was intended to allow for an assessment of the degree to which the appellant's current stability is a function of the structured and supportive hospital environment in which he currently lives.

[22] Accordingly, the board affirmed the conditional discharge, but with two amendments: (1) the condition that the appellant not attend within 100 metres of his neighbours' residence was replaced with a non-contact provision; and (2) the reporting requirement was increased from biweekly to weekly.

D. *Analysis*

(1) Standard of review

[23] This court can only interfere with the board's decision, according to s. 672.78(1) of the Criminal Code, if it is of the opinion that

(1) the decision is unreasonable or cannot be supported by the evidence;

(2) the decision is based on an error of law; or

(3) there was a miscarriage of justice.

[24] The appellant submits that the board's finding that he continues to pose a significant risk is unreasonable.

(2) Was the board's decision unreasonable?

[25] The board is required to determine whether releasing the appellant would pose a significant risk to public safety. There [page793] must be a real risk, and the potential harm must be serious: see Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at paras. 51, 57.

[26] The appellant seeks an absolute discharge. He is supported in this by the TBRHSC. Both rely on the expert evidence of Dr. Sheppard and the two risk assessment reports.

[27] The board disagrees. It is an expert body and is entitled to reject the expert evidence before it. Where the board rejects expert evidence, it must base its decision on the evidence: see Laberakis (Re), [2012] O.J. No. 373, 2012 ONCA 70, at para. 3.

[28] Both Dr. Sheppard and Dr. Johnston found that there would likely be an increased risk of harm to the public if the appellant was in an unstructured and unsupported environment in which he might be subject to stress. But notwithstanding that the risk would be higher, neither articulated the conclusion that an absolute discharge would result in a significant threat to public safety. The TBRHSC's report, in fact, articulated the opposite: "[t]he significant threat threshold is no longer met. It cannot be said at this time that, if absolutely discharged, [the appellant] would likely commit a serious criminal offence causing physical or psychological harm to others."

[29] The board's concern seems to be that because the appellant has not yet lived outside of the hospital, he is "untested" in the community. Having him live outside of the hospital would indeed allow for the board to assess the degree to which the appellant's hospitalization is responsible for his stability.

[30] Such an approach, however, would erroneously place the onus on the appellant to prove that he is not a risk before he is entitled to an absolute discharge.

[31] The current disposition allows the appellant to resume living in his home, next to the same neighbours with whom he had the initial conflict. The only restrictive measures in place are the requirement that he have no contact with his neighbours and that he report to the hospital on a weekly basis.

[32] If the appellant poses a serious risk of harm to the public, it is difficult to see how it could be safe to return him to his home on these conditions. The board would essentially be leaving the appellant's neighbours to protect themselves. The board's disposition is at odds with its reasoning.

[33] The only reasonable conclusion -- one that is supported by the totality of the evidence -- is that the appellant does not [page794] pose a significant risk of harm. The board appears to have ordered a conditional discharge out of an abundance of caution. That is not the legal test. As per Winko, if the appellant does not pose a significant risk to the public, the Board must order an absolute discharge.

E. Disposition

[34] The appeal is allowed, the disposition made by the Board dated December 1, 2014 is set aside and an order for the absolute discharge of the appellant is substituted.

Appeal allowed.

[^1]: Vous trouverez la traduction française à la p. 794, post.

End of Document