Court File and Parties

COURT FILE NO.: CR-13-70000181-0000 DATE: 20190619

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOSEPH MARCUS (SARAH) McDONALD

Counsel: J. Gibson, for the Crown J. DiCecca, for Ms. McDonald

HEARD: June 14, 2019

Reasons for Judgment

SCHRECK J.:

[1] On January 22, 2019, the Ontario Review Board (“ORB”) made a recommendation pursuant to s. 672.851(1) of the Criminal Code that this court hold an inquiry to determine whether proceedings against Marcus (Sarah) McDonald [1] should be stayed. Ms. McDonald was charged with arson with disregard for human life contrary to s. 433 of the Criminal Code on February 13, 2010. On December 15, 2014, she was found unfit to stand trial. Ms. McDonald has been out of custody since her arrest, first subject to the terms of a judicial interim release order and thereafter a disposition of the ORB. She has not committed any criminal offences or engaged in any behaviour that could be considered dangerous to the public since that time. The recommendation by the ORB was made on the basis of its conclusion that the requirements of s. 672.851(1)( b ), namely, that Ms. McDonald is not likely to ever become fit to stand trial and does pose a significant threat to the safety of the public, had been met.

[2] On February 26, 2019, I made an order pursuant to s. 672.851(5) that Ms. McDonald be assessed. That assessment was done by Dr. Paul Benassi of the Centre for Addiction and Mental Health (“CAMH”). On the basis of his report, Ms. McDonald’s counsel and the Crown have jointly recommended that the proceedings against her be stayed.

[3] I agree that the proceedings should be stayed. However, since maintaining public confidence in the administration of justice is one of the factors that must be considered in determining whether a stay should be granted, I will briefly set out the reasons for my conclusion.

I. The Requirements for a Stay

[4] The circumstances in which a stay may be ordered are set out in s. 672.851(7) and (8) of the Code:

(7) The court may, on completion of an inquiry under this section, order a stay of proceedings if it is satisfied (a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial; (b) that the accused does not pose a significant threat to the safety of the public; and (c) that a stay is in the interests of the proper administration of justice.

Proper administration of justice

(8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court shall consider any submissions of the prosecutor, the accused and all other parties and the following factors: (a) the nature and seriousness of the alleged offence; (b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice; (c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 to decide whether sufficient evidence can be adduced to put the accused on trial; and (d) any other factor that the court considers relevant.

II. Relevant Facts

A. The Index Offence

[5] The facts of the index offence are as follows. On February 12, 2010, Ms. McDonald was living with her father. Her father left her alone in the house and when he returned, he found that a file of clothing in his bedroom was on fire. At the time, there were tenants upstairs. Ms. McDonald’s father called the fire department. The street was shut down and the building as well as an adjacent building had to be evacuated. At the scene, Ms. McDonald approached a police officer and admitted to having set the fire.

B. Diagnosis and Fitness

[6] Ms. McDonald is 29 years old and biologically male. She grew up in Toronto and began to exhibit symptoms of psychosis in early adolescence and was later diagnosed with schizophrenia. Her symptoms include delusional ideation, hallucinations, and disorganization in speech and thought. Since the initial finding of unfitness, Ms. McDonald has been assessed many times and repeatedly found to be unfit. She has tried a number of different anti-psychotic medications, but showed minimal or no improvement.

[7] Ms. McDonald remains unfit. According to Dr. Benassi, whose report was filed and who testified before me, she has only a limited understanding of the nature and objective of the legal proceedings and the roles of the individuals involved in the court process. She believes that the Crown Attorney’s job is to collect money from her and that the judge’s job is to “fold up anyone who goes through anyone.” She believes that the death penalty exists in Canada and that a court could order to have somebody found guilty killed.

[8] Dr. Benassi is of the opinion that due to the “nature, chronicity and treatment-resistant nature of her symptom deficits”, Ms. McDonald’s unfit status is permanent.

C. Risk Assessment

[9] As noted earlier, Ms. McDonald has not engaged in any criminal behaviour since her arrest. Dr. Benassi assessed her using the Historical Clinical Risk Management Guidelines, known as the HCR-20, Version 3. Her score on the HCR-20 indicates that she is at a low risk of imminent or future violence. However, in the absence of professional interventions and support, this risk could increase.

[10] Ms. McDonald is currently the subject of a Community Treatment Order (“CTO”) made pursuant to s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M.7, which includes a comprehensive plan of assessment, monitoring and treatment. Her father is her substitute decision maker. Ms. McDonald has a history of compliance and Dr. Benassi anticipates that she will continue to comply with the CTO. The current plan is for her to transition from the ORB regime to the civil mental health regime.

[11] Based on his assessment, her history and the treatment plan, Dr. Benassi is of the opinion that Ms. McDonald does not pose a significant threat to the safety of the public. His opinion has not been challenged.

III. Analysis

A. Unlikelihood of Fitness

[12] Based on Dr. Benassi’s evidence, it is clear that Ms. McDonald remains unfit and is not likely to ever become fit.

B. Significant Threat

[13] On the basis of Dr. Benassi’s evidence, I share the ORB’s view that Ms. McDonald does not pose a significant threat to the safety of the public.

C. Interests of the Proper Administration of Justice

(i) Nature and Seriousness of the Alleged Offence

[14] The offence Ms. McDonald was charged with is clearly serious and carries a maximum penalty of life imprisonment. I note, however, that nobody was injured as a result of the fire.

(ii) Salutary and Deleterious Effects of a Stay and Public Confidence in the Administration of Justice

[15] The salutary effect of an order staying proceedings would be that Ms. McDonald could focus on her treatment plan. As well, there would no longer be any need for the prima facie hearings required by s. 672.33 of the Code every two years or repeated ORB hearings, which would free up scarce judicial resources to be used for other purposes.

[16] The deleterious effect would be that there would never be a trial on the merits. I note, however, that there is a significant possibility that Ms. McDonald would have been found to be not criminally responsible had she been tried, so this is not a situation where a guilty person will go unpunished.

[17] With respect to public confidence in the administration of justice, in my view this issue should be considered in a manner similar to the consideration of public confidence in the context of s. 515(10) ( c ) of the Criminal Code in relation to bail. The “public” whose confidence must be considered consists of “reasonable, well-informed persons, and not overly emotional members of the community”: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 77. As noted in St. Cloud, at para. 49:

Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence.

[18] In my view, a reasonable member of the public would not lose confidence in the administration of justice if a stay were granted in this case. To the contrary, such a member of the public would not expect criminal proceedings to be prolonged indefinitely for a mentally ill person who is unlikely to become fit.

(iii) Elapsed Time and Sufficiency of the Evidence

[19] While there remains sufficient evidence to put Ms. McDonald on trial, over 10 years have elapsed since she was charged. Nothing would be served by continuing to have repeated prima facie hearings.

IV. Disposition

[20] For the foregoing reasons, there will be an order pursuant to s. 672.851(7) staying the proceedings against Ms. McDonald.

Justice P.A. Schreck

Released: June 19, 2019.

COURT FILE NO.: CR-13-70000181-0000 DATE: 20190619 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOSEPH MARCUS (SARAH) McDONALD REASONS FOR JUDGMENT P.A. Schreck J. Released: June 19, 2019.

Note: [1] Ms. McDonald identifies as female and prefers to go by the given name Sarah. I will accordingly refer to her as Ms. McDonald.