Re: Aliaksandr Marushchak, 2026 CanLII 32121

Re: Aliaksandr Marushchak

ORB File No: 8090

Hearing held on: Wednesday, March 11, 2026

Place of hearing: Waypoint Centre for Mental Health Care

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. P. Capelle

Members: Dr. P.L. Darby Dr. S. Wiseman Ms. C. Murray Mr. A. Mete

Parties Appearing:

Accused: Aliaksandr Marushchak Counsel: Mr. C. Hynes

Person in charge of Hospital: Representative: Ms. T. Murdock

Attorney General of Ontario: Counsel: Ms. S. Curry

REASONS FOR DISPOSITION

(Dated April 8, 2026)

Introduction

1. On June 1, 2022, Mr. Aliaksandr Marushchak was found unfit to stand trial on account of mental disorder 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, Penetanguishene (“Waypoint”), with privileges up to and including hospital and grounds, beyond the secure perimeter, escorted by staff.

2. On March 11, 2026, a panel of the Ontario Review Board (“the ORB” or “the Board”) convened a hearing pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code of Canada.

Preliminary Matter

3. When the hearing began, Mr. Marushchak was not present. His Counsel, Mr. Hynes had just spoken with Mr. Marushchak with the assistance of a Russian/English interpreter and advised that his client did not wish to attend. Mr. Marushchak’s presence was therefore excused pursuant to s. 672.5(10) of the Code. Mr. Marushchak’s ward was advised that if Mr. Marushchak decided he wished to attend at any time during the course of the hearing that he was welcome to do so.

Initial Position of the Parties

4. Ms. Murdock indicated that the Hospital’s position was that Mr. Marushchak remains unfit to stand trial and no changes were recommended to his existing Disposition. That position was supported by Ms. Currie, on behalf of the Attorney General. Mr. Hynes advised that his client wishes to go to court and to go home.

Background and Outstanding Charges

5. Mr. Marushchak’s history and background are detailed in the Hospital Report and need not be repeated here. In brief, Mr. Marushchak is a 45-year-old man who was born in Belarus and came to Canada with his mother and brother in 1999. After arriving, his mother returned to Belarus for a visit but was unable to return to Canada. As a result, Mr. Marushchak, and his brother, who also has schizophrenia, were largely left to care for themselves. As an adult, Mr. Marushchak has lived in boarding homes and group homes and most recently was residing at Seaton House. He is single with no dependants. His first language is Russian, and he receives financial support through the Ontario Disability Support Program.

6. Mr. Marushchak has a criminal record dating back to 2006. It includes convictions for assault and for failing to follow court orders, among other offences. He is also reported to have a history of substance use, including crystal methamphetamine and cocaine.

7. According to available records, Mr. Marushchak's psychiatric history began in 2010, when he was first diagnosed with Schizophrenia. Since then, he has been hospitalized on multiple occasions at facilities in Toronto. During these episodes, he typically displayed disorganized behaviour and presented as irritable and agitated.

8. The circumstances of the outstanding charges are taken from last year’s 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 Diagnoses

• Schizophrenia

Evidence at Hearing

9. Dr. Bunker testified for the hospital. She had read and agreed with the contents of the Hospital Report. Dr. Bunker attempted to assess Mr. Marushchak’s fitness the day prior to this hearing. The doctor advised that when Mr. Marushchak saw her, he turned away. She also met with him the week prior to this hearing. At that time, Mr. Marushchak was able to identify the role of the judge and his own counsel. However, when Dr. Bunker attempted to probe further, he disengaged. This mirrored the extent of his engagement with her some two years prior.

10. Mr. Marushchak’s tolerance of legal conversations remains quite low. Previously a Russian-speaking staff member attempted to engage him with fitness questions, but he was dismissive of her. There is no evidence that delusional thinking impacts his fitness although this remains open to debate.

11. Dr. Bunker testified that in the fall of 2025, Mr. Marushchak indicated he was eager to participate in today’s hearing. His refusal to do so, immediately prior to this hearing, is indicative that he would likely also have difficulty engaging in court proceedings.

12. Since the writing of the Hospital Report, Mr. Marushchak was moved to the Awenda program on February 18, 2026. The Awenda program is designed for patients experiencing cognitive challenges and may therefore provide greater opportunities for Mr. Marushchak to regain fitness given the expertise of staff.

13. There is ample evidence that Mr. Marushchak is violent when unwell. At Waypoint, he is treated with two psychotropic injections as well as with clozapine. Absent forensic support, he would discontinue antipsychotic medications because he has no insight vis-à-vis his need for treatment. Dr. Bunker opined that it is premature to ascertain if Mr. Marushchak could be managed within a less secure environment. She added that he could not be handled at the Centre for Addiction and Mental Health, Toronto at this time. Waypoint’s structure is contributory to keeping Mr. Marushchak mentally stable and allowing him to leave the unit. This is unlikely to be feasible at a medium secure facility.

14. Responding to questions from Mr. Hynes, Dr. Bunker advised that her patient grudgingly accepts his weekly antipsychotic injections. Further, he is compliant with clozapine but absent a hospital setting would likely refuse it.

15. Dr. Bunker agreed that the use of substances would negatively impact Mr. Marushchak’s ability to regain fitness and would also augment his risk.

16. Dr. Bunker opined that due to Mr. Marushchak’s history of institutionalization he may be afraid of getting into trouble and therefore wants to avoid engaging in Taylor test questions. She opined that this may also be a response to past traumatic experiences.

17. To his credit, Mr. Marushchak’s mental state and fitness are on a positive trajectory. It is possible that he may regain his fitness to stand trial within the next 12 months. The use of clozapine has been helpful in this regard.

18. Dr. Bunker agreed with Mr. Hynes’ suggestion that there has been a dramatic improvement in Mr. Marushchak’s presentation. He has not been secluded since June 8, 2025, and his tolerance of fitness discussions has improved although they cannot be sustained. There has also been a noted improvement in his impulse control. Nevertheless, Mr. Marushchak continues to experience grandiose and religious delusions. His paranoia has improved but fluctuates. He continues to experience auditory hallucinations and is often seen giggling/talking to himself.

19. A panel member inquired if personality factors are at play in Mr. Marushchak’s presentation. Dr. Bunker responded that knowing that her patient remains psychotic she does not sense that he has a strong personality disorder.

20. Ms. Currie noted that a date to set Mr. Marushchak’s prima facie hearing has been scheduled for May 28, 2026.

Closing Observations

21. The Hospital maintained its initial position, supported by the Attorney General’s Representative. Mr. Hynes reiterated that improvement has been seen vis-à-vis Mr. Marushchak’s engagement and that he is doing well.

Analysis and Decision

(a) Fitness

22. The issues to be determined by the Board was whether Mr. Marushchak continues to be unfit to stand trial and, if so, what is the necessary and appropriate disposition taking into account the factors set out in section 672.54 of the Criminal Code. In addition, should the Board find that Mr. Marushchak:

-remains unfit &

-is unlikely to ever become fit &

-no longer poses a significant threat to the safety of the public,

then the Board must determine whether to recommend that the court hold an inquiry to ascertain whether a stay of proceedings should be ordered pursuant to section 672.851 of the Criminal Code.

23. In 2025 the Supreme Court of Canada released its decision in R. Bharwani, 2025 SCC 26, which provides the decisive interpretation of the definition of “unfit to stand trial” within the Criminal Code as well as the application of the “fitness test”.

24. Before the Supreme Court of Canada, Counsel for Mr. Bharwani argued that the fitness test required an accused:

to have analytical capacity, meaning that the accused must possess the ability to make rational decisions in the conduct of their defence

25. The Supreme Court of Canada dismissed the above noted argument, stating the following at paragraph 6, vis-à-vis “fitness to stand trial”:

… an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.

26. Dr. Bunker last assessed Mr. Marushchak’s fitness to stand the week prior to this hearing. At that time Mr. Marushchak successfully described the role of his lawyer and that of the judge. However, he disengaged thereafter such that Dr. Bunker was unable to ascertain his understanding of the other key players in a court proceeding as well as their respective roles, the difference between a guilty and not guilty plea or recognize the importance of telling the truth while giving evidence in court. Dr. Bunker observed that Mr. Marushchak’s limited tolerance and restricted engagement was similar to his presentation when she attempted to assess his fitness some twenty-four months earlier. A Russian speaking staff also attempted to have Mr. Marushchak address fitness questions but was rebuffed.

27. Given the foregoing, the panel unanimously finds that Mr. Marushchak is unable to understand the consequences of a Court proceeding, unable to advocate on his own behalf or to work effectively with his lawyer. This panel of the Board accepts Dr. Bunker’s uncontested expert evidence that there has been no change in Mr. Marushchak’s presentation from when she last assessed him to the date of this hearing date and that he therefore remains unfit to stand trial.

(b) Significant Threat

28. Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.

29. In determining whether Mr. Marushchak continues to represent a significant threat to the safety of the public the Board carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

30. The Board unanimously finds that Mr. Marushchak continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the joint position of the parties and accepted the uncontroverted evidence of Dr. Bunker that Mr. Marushchak continues to pose a significant threat. The Board also relies on the Hospital Report and more particularly the most likely risk pathway as set out at page 36, reproduced below for ease of reference:

At this juncture, in addition to remaining Unfit, Mr. Marushchak continues to pose a significant threat to public safety. While he is certainly improving in some ways, it is far too early to opine that his violence risk has diminished, and it seems that if left to his own devices, nothing would meaningfully change from the time that he committed the index offences.

31. The Board therefore accepts that absent an ORB Disposition, Mr. Marushchak would likely become non-compliant with prescribed medications which would lead to decompensation, the use of substances and the re-emergence of behaviours similar to those seen at the time of the index offences. We are satisfied that absent an ORB Disposition, it is likely that Mr. Marushchak will cause serious physical or psychological harm to members of the public and such conduct will likely be criminal in nature.

(c) Disposition

32. Flowing from the Board’s finding that Mr. Marushchak continues to pose a significant threat to the safety of the public it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Mr. Marushchak’s needs pursuant to s. 672.54 of the Criminal Code.

33. The necessary and appropriate disposition for Mr. Marushchak provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.

34. In considering Mr. Marushchak needs, the Board was attentive to the overall improvement in this patient’s presentation during the 2025-2026 clinical year. Whereas he continues to experience both religious and grandiose delusions noted improvements include:

• no seclusions since June 5, 2025,

• better impulse control,

• level of paranoia, (albeit with fluctuations)

• tolerance of fitness discussions(albeit unsustainable)

35. This panel of the Board was encouraged to learn that Dr. Bunker anticipates her patient’s recent relocation to the Awenda program may present greater opportunities for him to regain fitness. This optimism is tied to the Awenda Program’s focus and expertise in working with cognitively challenged patients.

36. Mr. Marushchak’s current ability to tolerate, let alone address legal questions surrounding fitness remains low. Nevertheless, Dr. Bunker remains optimistic that given Mr. Marushchak’s improving presentation and treatment compliance within a high secure forensic milieu, in particular vis-à-vis clozapine, he could be made fit to stand trial within the 2026-2027 clinical year.

Conclusion

37. Therefore, the Board unanimously determines that Mr. Marushchak remains unfit to stand trial and a significant threat to public safety. The necessary and appropriate Disposition required to manage the threat Mr. Marushchak poses to the safety of the public while still meeting his needs, remains a Detention Disposition absent any changes.

38. In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Bunker and is satisfied that these determinations are 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 8th day of April 2026, at the City of Toronto, in the Toronto Region.

Mr. P. Capelle

Alternate Chairperson

__________________

Office of the Registrar

Ontario Review Board