Ontario Review Board
Re: Aliaksandr Marushchak
ORB File No: 8090
Hearing held on: Wednesday, January 29, 2025
Place of hearing: Waypoint Centre for Mental Health Care 500 Church Street, Penetanguishene
Pursuant to: Sections 672.48(1) and 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. P. Capelle Members: Dr. R. Wood Hill Dr. G. Stones
Parties Appearing:
Accused: Aliaksandr Marushchak Counsel: Mr. C. Hynes
The Person in charge of Hospital: Counsel: Ms. J. Lefebvre
Attorney General of Ontario: Counsel: Ms. S. Curry (via Zoom)
REASONS FOR DECISION
(Dated March 27, 2025)
Introduction
On June 1, 2022, Aliaksandr Marushchak was found unfit to stand trial on account of mental disorder (“unfit”) on charges of assault (x4), fail to comply with an appearance notice, and fail to attend court, contrary to the Criminal Code of Canada (the "Criminal Code"). Mr. Marushchak is currently subject to a Disposition of the Ontario Review Board (the “Board”) dated October 28, 2024, detaining him at the Waypoint Centre for Mental Health Care – High Secure Provincial Forensic Programs (“Waypoint” or the Hospital”), with hospital and grounds privileges, beyond the secure perimeter, escorted by staff.
On January 29, 2025, a panel of the Ontario Review Board (“the ORB” or “the Board”) convened a hearing at Waypoint pursuant to ss. 672.48(1) and 672.81(2.1) of the Criminal Code.
Preliminary Matter
Mr. Marushchak was not in attendance. Mr. Hynes advised that he had met with his client for a few hours prior to the start of this hearing and was told directly by Mr. Marushchak that he did not wish to attend. Mr. Hynes added that he was told by staff a few minutes prior to the start of this hearing that Mr. Marushchak reiterated that he did not want to attend. Asked if he had instructions to proceed Mr. Hynes advised that his client has little understanding of the nature of the proceedings. Given the foregoing, Mr. Marushchak’s attendance was excused per 672.5(10) of the Criminal Code and the hearing preceded in his absence.
Without Prejudice Position of the Parties
Ms. Lefebvre, on behalf of the hospital, advised that the seclusion that had commenced on November 22 and concluded on December 1, was necessary and warranted from start to finish. Both Ms. Curry and Mr. Hynes joined in the hospital's position.
Background and Outstanding Charges
The circumstances of the outstanding charges are excerpted from last year’s Amended Reasons for Disposition, as follows:
“September 4, 2021 – Assault
On September 4th, 2021, the accused and the victim were in the shared dining room (Seaton House) waiting for their dinner meal. The victim was stationed further ahead in the line than the accused was. The accused approached the victim and decided to take his spot in line. The victim and the accused became involved in an argument.
The argument was escalating, resulting in the accused shoving the victim. The victim lost his balance and fell backwards, striking his head on a wall. The accused continued to advance forward toward the victim and punched him 3 times, striking him in the face (charge #1).
The victim sustained minor injuries to his face. The injuries were described as bruising to the face and a small cut beneath his left eye. The victim sought medical treatment through Paramedics and later attended Toronto General Hospital for a check-up.
The accused was located by Police and taken into custody. At the time of the interaction with Police, the victim was too intoxicated to provide a statement.
October 20, 2021 – Fail to Attend
On September 5, 2021, the accused appeared before the Honourable Justice S. Dudani at the Ontario Court of Justice - College Park being charged with one count of Assault. The accused was released on this date on a Release Order being ordered to attend court again on October 20, 2021, at 2:00 PM at College Park Court, courtroom #505.
On October 20, 2021, the accused failed without a reasonable excuse to attend court as ordered in his Release Order. On November 24, 2021, the Honourable Justice K. Bhattacharjee of the Ontario Court of Justice issued a Bench Warrant for the arrest of the accused.
On December 6, 2021, the accused was investigated on unrelated matters when the outstanding warrant came to light. The accused was placed under arrest on the strength of the warrant, read his rights to counsel and transported to 51 Division where he was further charged with Fail to Attend Court and held pending a show cause hearing.
February 18, 2022 – Fail to Comply with Release Order
Background: On September 4th, 2021, the accused was arrested for Assault and held for a show cause hearing. On September 5th, 2021, the accused appeared before the Honorable Justice S. DUDANI at an Ontario Court of Justice located at 444 Yonge Street, Toronto. Upon his release from custody, the accused signed a Release Order (Form 11) and agreed to abide by several conditions. One of the conditions stated: "DO NOT ATTEND WITHIN 100 METRES OF SEATON HOUSE LOCATED AT 339 GEORGE STREET, TORONTO, ONTARIO, EXCEPT ON ONE OCCASION, TO RETRIEVE YOUR PERSONAL BELONGINGS IN THE PRESENCE OF A UNIFORMED POLICE OFFICER"
On February 18th, 2022, officers responded to a service call at 339 George St, Toronto - Seaton House Shelter. Officers located and investigated the accused when the conditions of his prior release came to light. As result, the accused was found to be failing to comply with the conditions of his release order.
February 28, 2022 – Assault x3.
On Sunday, February 27, 2022, at approximately 10:50 AM, the accused was walking near the intersection of Dundas Street East and Jarvis Street in the City of Toronto. One of the victims, (A. E) was also in the area when he was approached by the accused for no reason. The accused attempted to kick him in the stomach three times, but A.E. was able to block the kicks with his left hand all three times (CHARGE #1). A. E. refused medical services, and no visible injuries were observed.
The accused left and walked toward Dundas Square.
The second victim (A. N.) was walking at the Yonge Street and Dundas Street West crosswalk with a group of friends. The accused was acting erratic, before approaching A. N. and randomly, pushing her to the ground and kicking her in the stomach two times (CHARGE #2). A. N. refused medical services, and no visible injuries were observed.
At that point, an unidentified civilian chased the accused away. Officers were flagged down and directed southbound by civilians. When the accused observed Police, he ran away, resulting in a short foot pursuit. During this foot pursuit, the accused pushed past the third victim (E.W.), causing her to fall against the wall on the north side of Queen Street West near Yonge Street (CHARGE #3). E. W. sustained minor bruising to her wrist but refused medical attention.”
Current Diagnosis
- Schizophrenia
Evidence at Hearing
Dr. Mishra confirmed that he had reviewed and adopts the contents of the Hospital Report. Ms. Lefebvre asked Dr. Mishra to describe his patient’s presentation on November 22, 2024 and why seclusion was required on that date. According to Dr. Mishra, Mr. Marushchak was responding to unseen stimuli, was irritable and abusive. He told the on-call psychiatrist on November 23 to “go fuck yourself” and made a fist through the opening in his door. There was no physical contact made. Threats were directed towards staff which may have been attributable to water intoxication and continued to November 27, when he was initially offered but only tolerated 10 minutes of seclusion relief before yelling angrily at staff. On November 29 he was only out of his room for five minutes before returning and slamming the door.
Ongoing efforts by staff team to shorten Mr. Marushchak’s seclusion continued. He was regularly offered seclusion relief by the seclusion relief team. Specifically, the opportunity to walk around on the locked ward, to take a shower, and to play board games. Further, the OT therapist checked in with him and offered reading materials/music and attempted to engage him in conversation.
On November 30 Mr. Marushchak consented to receive a haircut and shave during a period of seclusion relief. According to Dr. Mishra nothing dramatic occurred that day. There were no medication changes. A haircut and shave was simply something that he liked. Thereafter as set out at page 4 of the Hospital Report:
He laughed with the staff and followed directions. He again participated successfully in seclusion relief on December 1 and his seclusion was discontinued.
Mr. Hynes inquired of Dr. Mishra if Mr. Marushchak would understand the purpose of this Restriction of Liberty hearing. The doctor responded that he would not have that ability and also does not grasp why he is being kept in hospital.
Analysis and Decision
The analytical framework established by Campbell (Re), 2018 ONCA 140, requires the Board to consider both the liberty norm and liberty status of an accused during a restriction. These must be examined to determine the significance of the increase (if any) on the restriction of an accused’s liberty norm and liberty status attributable to the restriction.
“In determining the liberty norm of an accused at the outset of each period of restriction, the Board must “take a contextual approach, one that considers the individual’s pattern of liberty in the recent past.” Campbell, para. 66.
The liberty she/he was actually experiencing (rather than what she/he was entitled to) at the time of the increase is what the Board is to consider, and that “liberty must be of sufficient duration to have become, objectively speaking, the NCR accused’s norm” Campbell, para. 65.
The test to be applied to significant increases in the restriction of liberty is the same as is required for a disposition, whether the significant increase is necessary and appropriate to protect the safety of the public.
This Restriction of Liberties was initiated on November 22nd 2024 because, as described at page 2 of the Hospital Report:
On November 22, 2024, Mr. Marushchak became frustrated waiting for his evening medications, yelled expletives, and told the staff, “…You will pay the price”. When asked to return to his room while his medications were being prepared he refused and told the staff to “shut up”. With the presence of additional staff, he complied, loudly yelling,
“Faggots. Idiots. You all will pay the price” and slammed his door. He remained angry and threatening when his medications were brought to him and a seclusion order was obtained.
Mr. Marushchak was offered and accepted a haircut and shave on November 30. His mood improved, he was able to follow directions and was deemed to have successfully participated in seclusion relief. This resulted in a discontinuance of his seclusion the following day.
This seclusion lasted a total of eight days. The evidence contained in the Hospital Report as well as the viva-voce evidence of Dr. Mishra confirms that Mr. Marushchak’s seclusion order was reviewed pursuant to Hospital directives and that seclusion relief was regularly offered.
Therefore, the significant restriction of Mr. Marushchak’s liberty was both necessary and appropriate from its initiation through to its termination in order to ensure the safety of staff and co-patients.
Conclusion
In making this Decision, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Mishra and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. Marushchak’s mental condition, his reintegration into society and other needs.
DATED this 27^th^ day of March 2025, at the City of Toronto, in the Toronto Region.
Mr. P. Capelle Alternate Chairperson
Office of the Registrar Ontario Review Board