Court of Appeal for Ontario

Citation: Marchese (Re), 2020 ONCA 80

Date: 20200203

Docket: C66927

Before: Doherty, Watt and Hourigan JJ.A.

IN THE MATTER OF MARY MARCHESE

AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE

BETWEEN

Person in Charge of St. Joseph’s Healthcare Hamilton

Appellant

and

Mary Marchese

Respondent

and

Her Majesty the Queen

Respondent

Counsel:

Janice E. Blackburn, for the appellant, Person in Charge of St. Joseph’s Healthcare Hamilton

Russell Browne, for the respondent, Mary Marchese

Amy Alyea, for the respondent, Her Majesty the Queen

Heard and released orally: January 29, 2020

On appeal from the disposition of the Ontario Review Board, dated April 9, 2019, with reasons released on May 1, 2019.

REASONS FOR DECISION

[1] The 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.

[2] Counsel 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.

[3] Given 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.

[4] The 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.

“Doherty J.A.”

“David Watt J.A.”

“C.W. Hourigan J.A.”