Court of Appeal for Ontario

Date: 2018-03-27 Docket: C63703 Judges: Watt, Brown and Huscroft JJ.A.

In the Matter of: Mary Marchese

An Appeal Under Part XX.1 of the Code

Counsel:

• Russell Browne, for the appellant Mary Marchese
• Megan Petrie, for the respondent the Attorney General of Ontario

Heard: February 22, 2018

On appeal against the disposition of the Ontario Review Board, dated April 13, 2017.

Brown J.A.:

I. OVERVIEW

[1] The appellant, Mary Marchese, appeals the disposition of the Ontario Review Board (the "Board") dated April 13, 2017 (the "Order") that continued her detention, with a term that, subject to the discretion of the person-in-charge of St. Joseph's Healthcare Hamilton (the "Hospital"), would permit her to live in the community in accommodation approved by the person-in-charge.

[2] The appellant advances two grounds of appeal: (i) the decision of the Board that she was a significant threat to the safety of the public was unreasonable; (ii) alternatively, the detention order did not amount to the least onerous and least restrictive disposition in the circumstances, with the result that the Board should have granted her a conditional discharge. (Although the appellant couched her alternative argument in the old language of s. 672.54 of "least onerous and least restrictive", I shall use the section's current language of "necessary and appropriate.")

[3] The 2008 index offences that resulted in a finding of not criminally responsible on account of a mental disorder ("NCRMD") involved the appellant spitting at and assaulting a psychiatrist while she was in a hospital's psychiatric intensive care unit. The appellant's current diagnosis is Schizophreniform Disorder.

[4] The appellant has generally lived in the community since 2010. However, between 2011 and 2017 the appellant was readmitted seven times to the general forensic unit of the Hospital for treatment, often for quite lengthy periods of time. At present, she lives in the community with her common-law partner, Mr. Ben Savage.

[5] For the reasons set out below, I would dismiss the appeal.

II. THE FINDING OF SIGNIFICANT THREAT TO THE SAFETY OF THE PUBLIC

[6] The continued supervision of an NCR accused under Part XX.1 of the Criminal Code requires the Board to find that the person remains a significant threat to the safety of the public – that is, the person poses a significant risk of committing a serious criminal offence: Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 48-49 and 57.

[7] Under the reasonableness standard of review, the Board's reasons must be able to withstand a "somewhat probing examination" to ascertain whether the decision is "justifiable, transparent, and intelligible, and falls within 'a range of possible, acceptable outcomes'": R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33; and Delta Air Lines Inc. v. Lukács, 2018 SCC 2, 416 D.L.R. (4th) 579, at para. 12.

[8] To conduct a "somewhat probing examination" this court must have something to probe. Yet, too often this court sees reasons from the Board that go on at considerable length to recite the NCRMD accused's history, the evidence considered by the Board, and the parties' submissions, only to conclude with a cursory analysis of the key issue: is the appellant a significant threat to the safety of the public?

[9] Cursory analysis is difficult to probe. It also risks failing to provide justification, transparency, and intelligibility for the resulting decision. To avoid that risk, in every case the Board's reasons should clearly explain what evidence in the record leads it to conclude that the condition and conduct of the NCRMD accused creates a significant threat to the safety of the public, both in the sense that there exists a real, foreseeable risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must itself be serious: R. v. Ferguson, 2010 ONCA 810, 264 C.C.C. (3d) 451, at para. 8. The Board's reasons must clearly deal with the likelihood of a risk materializing and the seriousness of the harm that might occur: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[10] In the present case, the brevity of the Board's treatment of the key issue of significant threat to the safety of the public is cause for concern: only one paragraph at the end of five pages of reasons. This brevity led the Board to treat material evidence without the rigour one would expect from a specialized tribunal such as the Board.

[11] For example, in concluding the appellant was a significant threat to the safety of the public, the Board relied on the fact that "[w]hile readmitted to the hospital, [the appellant] has required seclusion due to her behaviour." The details of the appellant's behaviour and the resulting seclusion were not set out in the Board's reasons. They did exist - in the depths of the Hospital record, which the Board accepted as uncontroverted evidence. But, the point is that transparency and intelligibility require the Board to identify the material evidence upon which it relies in its reasons and to explain how that evidence is linked to the issue of significant threat to the safety of the public.

[12] That said, on a review of the Board's reasons, taking into consideration the evidence it accepted in the Hospital record, I am not persuaded the Board's decision that the appellant remains a significant risk to the safety of the public was unreasonable.

[13] There was evidence before the Board to support its finding that the appellant remained a significant threat to the safety of the public. During the period under review, the appellant was re-admitted to the Hospital for over seven months due to a deterioration in her mental status. While in the Hospital, the appellant was placed in seclusion for one day because of escalated behaviour that risked harm to herself and to others. As well, she experienced a significant incident of delusion when she left the Hospital without permission and presented herself at another hospital asking for a caesarian section, thinking she was pregnant when she was not.

[14] At the hearing, Dr. Prat testified that in the first incident – the escalated behaviour – the appellant's presentation was similar to that at the time of the index offence, and the second recalled certain delusional behaviour concerning babies displayed prior to the index offences.

[15] In light of that evidence, I would not interfere with the Board's finding that the appellant remained a significant threat to the safety of the public.

III. THE NECESSARY AND APPROPRIATE DISPOSITION

[16] In every case, the Board is obliged to explain why the disposition ordered is necessary and appropriate in the circumstances: R. v. Lamanna, 2009 ONCA 612, 252 O.A.C. 280, at para. 14. In the present case, the Board failed to do so. It merely curtly stated its conclusion: "[T]he necessary and appropriate disposition is a continuation of the current Detention Order without amendment."

[17] A conclusion is not an explanation. Nor is such a brief, conclusory statement "justifiable, transparent, and intelligible." Whether it falls within "a range of possible, acceptable outcomes" cannot be assessed given the absence of any analysis to justify the conclusion.

[18] The Board's perfunctory treatment of what disposition order would be necessary and appropriate in the circumstances was not appropriate on the evidence before it.

[19] On the appellant's 2013 annual review, her attending psychiatrist and the Hospital supported a conditional discharge. The Board did not accept their recommendation. In its May 16, 2016 Reasons for Disposition, the Board rejected the suggestion of counsel for Ms. Marchese of a conditional discharge, explaining that a continued detention order would enable a more timely intervention in the event of the appellant's rapid decompensation than would be available under the provisions of the Mental Health Act, R.S.O. 1990, c. M.7 (the "MHA").

[20] On the current 2017 review, a similar reason for continuing the detention order was advanced in the clinical risk summary.

[21] However, at the 2017 review hearing the Board heard from Mr. Savage, the appellant's common-law partner. They have been together for the last four years and currently live together. Mr. Savage pointed out that a new general hospital had opened about 15 minutes away from their residence. He believed the appellant could be managed within the MHA system.

[22] Those circumstances lent an "air of reality" to a conditional discharge as potentially the necessary and appropriate disposition. Consequently, given the record before it, the Board was required to explain why it concluded that a continued detention order, not a conditional discharge, was the necessary and appropriate disposition in the circumstances: R. v. Breitweiser, 2009 ONCA 784, 99 O.R. (3d) 43, at para. 18. It was unreasonable for the Board not to provide an explanation.

[23] Such an explanation would include a consideration of the adequacy or inadequacy in the circumstances of: (i) conditions such as those upheld by this court in Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at paras. 26-33;[1] (ii) a condition, if agreed to, under s. 672.55 to take medication; (iii) the mechanisms for enforcing conditions in a conditional discharge found in ss. 672.91, 672.92 and 672.93 of the Criminal Code; and (iv) the committal provisions of the MHA: Breitweiser, at para. 18; Lamanna, at paras. 14-17; and Gacek (Re), 2012 ONCA 591, 298 O.A.C. 148, at para. 43.

[24] Notwithstanding the Board's failure to explain the disposition it selected, I am not prepared to interfere with the Order. At the hearing of the appeal, counsel for Ms. Marchese alluded to her having further contact with the Hospital. In fact, Ms. Marchese was readmitted to the Hospital on September 12, 2017 and remained there until at least late October 2017 when the Board conducted a restriction on liberty hearing. The Board held that the Hospital's decision to significantly increase the restrictions on the liberty of the appellant was warranted: Marchese (Re), 2017 CarswellOnt 17863 (Review Board).

[25] Accordingly, whether a conditional discharge would constitute the necessary and appropriate disposition for Ms. Marchese is an issue best left to her next annual review. Whatever disposition the Board ends up making on the evidence before it at that time, the Board must explain its choice of disposition in accordance with the directions given in these reasons.

IV. DISPOSITION

[26] For the reasons set out above, I would dismiss the appeal.

Released: March 27, 2018

"David Brown J.A." "I agree. David Watt J.A." "I agree. Grant Huscroft J.A."

Footnote

[1] Those conditions required that the NCR accused: (i) upon notice by the person in charge of the hospital, immediately submit to attendance and for readmission to hospital; and (ii) upon the request of the hospital, attend for psychiatric assessment, and upon notice of the person in charge, attend for admission to the hospital: Young, at para. 8.