



COURT OF APPEAL FOR ONTARIO

CITATION: Marzec (Re), 2015 ONCA 658

DATE: 20150930

DOCKET: C60268

Feldman, MacPherson and Miller JJ.A.

IN THE MATTER OF: Edward Gerald Marzec

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

Suzan E. Fraser, for the appellant

Janice Blackburn, for the respondent, the Person in
    Charge of Thunder Bay Regional Health Sciences Centre

Kevin Rawluk, for the respondent, the Attorney General
    of Ontario

Heard: September 11, 2015

On appeal against the disposition of the Ontario Review
    Board dated December 1, 2014.

ENDORSEMENT

A.

OVERVIEW

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    December 1, 2014, with reasons issued December 5, 2014. The appellant asked the
    Board for an absolute discharge. The Board granted the appellant a conditional
    discharge.

[2]

On June 11, 2012, there was an altercation between the appellant and his
    neighbour. Words were exchanged between the two on the appellants property. On
    the appellants account, he felt threatened and went into his house, retrieved
    a pick axe, and chased the neighbour down the street. The appellant swung at
    his neighbour with the axe, but did not make contact. The neighbours wife
    called out that she was going to call the police, at which point the appellant
    returned to his house and waited on his front steps. He surrendered when the
    police arrived.

[3]

At the time of the index offence, the appellant was psychotic and believed
    himself to be under attack by evil spirits.

[4]

The appellant was charged with assault with a weapon contrary to s. 267
    of the
Criminal Code
, R.S.C. 1985, c. C-46. He was found not
    criminally responsible on account of mental disorder on October 3, 2012.

[5]

Since that finding, the appellant has been detained at the Secure
    Forensic Unit of the Thunder Bay Regional Health Sciences Centre (the TBRHSC),
    subject to conditions.

[6]

The appellant appeals the Boards disposition on the basis that it erred
    in failing to grant him an absolute discharge by concluding that he posed a
    significant threat to the safety of the public. The TBRHSC supports the
    appellants submissions.

[7]

The Crown opposed the imposition of an absolute discharge and maintains
    that position on the appeal. It supports the conclusion of the Board that the
    appellant continues to pose a significant threat to the safety of the public,
    which requires that the Board maintain its jurisdiction and deny an absolute
    discharge.

[8]

For the reasons that follow, we find the Boards decision to be
    unreasonable and substitute an absolute discharge.

B.

FACTS

[9]

Following the holding that the appellant was not criminally responsible
    on account of mental disorder for his index offence, the appellant was admitted
    to the TBRHSC on November 6, 2012. The Boards initial disposition was to
    detain the appellant at the Secure Forensic Unit of the TBRHSC with privileges
    in the hospital, its grounds, and in the community.

[10]

On
    November 26, 2013, the Board granted the appellant a conditional discharge,
    which included that: (1) the appellant not attend within 100 metres of his
    neighbours residence; and (2) the appellant report to the TBRHSC on a biweekly
    basis.

[11]

The
    practical effect of the first condition was that the appellant was precluded from
    returning to live in his home. Despite his right to live elsewhere in the
    community, the appellant remained at the TBRHSC.

[12]

The TBRHSC stated that the appellant
    resisted its attempts to resettle him in the community. This appears to be due
    to his preference to live in his own home and his belief that he lacks the
    financial resources to afford alternative accommodation.

C.

THE
NOVEMBER
18, 2014 BOARD
    HEARING

[13]

The
    most recent Board hearing was held on November 18, 2014.

[14]

The Board considered a
risk assessment
    contained in the TBRHSCs report indicating that, in the opinion of the
    appellants treatment team, the appellant does not pose a significant threat
    to public safety although he does suffer from a longstanding, untreated,
    schizophrenic illness and continues to harbour beliefs regarding alleged
    persecution and mistreatment by authorities.

[15]

The TBRHSCs report states that the
    appellant does not participate in hospital programming or activities, but
    regularly utilizes community passes and has done so without incident.

[16]

In addition to the TBRHSCs report, the
    Board was provided with a Risk Assessment Report prepared by Dr. P. Johnston, a
    staff psychologist at the TBRHSC.

[17]

Dr. Johnston predicted that the
    appellant would continue to do well in a stable and semi-structured
    environment where he is exposed to a limited number of stressors and has
    supports available, should he express a need for them. He noted that the
    appellant has limited to no social support available beyond the hospital
    environment.

[18]

He concluded that the appellant is a low-moderate risk of
    future violent offending with low risk of imminent violence, given an ongoing
    structured and supportive environment able to provide regular management and
    support. That conclusion was qualified by a concern for increased risk of physical
    harm to others should he be in an environment without support.

[19]

The Board also heard expert testimony
    from Dr. Sheppard, who is the appellants attending psychiatrist. Dr. Sheppard
    testified that he viewed the index offence as likely being an isolated event
    and that it was speculative to suspect that [the appellant] might act out in a
    harmful manner.

[20]

The hospital recommended an absolute discharge.
The Board, however, concluded that the appellant remains a
    significant threat to the safety of the public.

[21]

The Board concluded that because the
    appellant has not lived in the community for some time, he is untested and
    should live in the community under its jurisdiction before an absolute
    discharge is granted. This was intended to allow for an assessment of the
    degree to which the appellants current stability is a function of the
    structured and supportive hospital environment in which he currently lives.

[22]

Accordingly, the Board
affirmed
    the conditional discharge, but with two amendments: (1) the condition that the
    appellant not attend within 100 metres of his neighbours residence was
    replaced with a non-contact provision; and (2) the reporting requirement was
    increased from biweekly to weekly.

D.

ANALYSIS:

(1)

Standard of Review

[23]

This court can only interfere with the
    Boards decision, according to s. 672.78(1) of the
Criminal Code
, if it is of the opinion that:

1. the decision is unreasonable or
    cannot be supported by the evidence;

2. the decision is based on an error
    of law; or

3.

there was a miscarriage
    of justice.

[24]

The appellant submits that the Boards finding
    that he continues to pose a significant risk is unreasonable.

(2)

Was the Boards Decision Unreasonable?

[25]

The Board is required to determine
    whether releasing the appellant would pose a significant risk to public safety.
    There must be a real risk, and the potential harm must be serious: see
Winko
    v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 625, at paras. 51, 57.

[26]

The appellant seeks an absolute
    discharge. He is supported in this by the TBRHSC. Both rely on the expert
    evidence of Dr. Sheppard and the two risk assessment reports.

[27]

The Board disagrees. It is an expert
    body and is entitled to reject the expert evidence before it. Where the Board
    rejects expert evidence, it must base its decision on the evidence: see
Laberakis
    (Re)
,
2012 ONCA 70, [2012] O.J. No. 373, at para.
    3.

[28]

Both Dr. Sheppard and Dr. Johnston found
    that there would likely be an increased risk of harm to the public if the appellant
    was in an unstructured and unsupported environment in which he might be subject
    to stress. But notwithstanding that the risk would be higher, neither articulated
    the conclusion that an absolute discharge would result in a significant threat to
    public safety. The TBRHSCs report, in fact, articulated the opposite: [t]he
    significant threat threshold is no longer met. It cannot be said at this time
    that, if absolutely discharged, [the appellant] would likely commit a serious
    criminal offence causing physical or psychological harm to others.

[29]

The Boards concern seems to be that because
    the appellant has not yet lived outside of the hospital, he is untested in
    the community. Having him live outside of the hospital would indeed allow for
    the Board to assess the degree to which the appellants hospitalization is
    responsible for his stability.

[30]

Such an approach, however, would erroneously
    place the onus on the appellant to prove that he is not a risk before he is
    entitled to an absolute discharge.

[31]

The current disposition allows the appellant
    to resume living in his home, next to the same neighbours with whom he had the
    initial conflict. The only restrictive measures in place are the requirement
    that he have no contact with his neighbours and that he report to the hospital
    on a weekly basis.

[32]

If the appellant poses a serious risk
    of harm to the public, it is difficult to see how it could be safe to return
    him to his home on these conditions. The Board would essentially be leaving the
    appellants neighbours to protect themselves. The Boards disposition is at
    odds with its reasoning.

[33]

The only reasonable conclusion  one
    that is supported by the totality of the evidence  is that the appellant does
    not pose a significant risk of harm. The Board appears to have ordered a
    conditional discharge out of an abundance of caution. That is not the legal
    test. As per
Winko,

if the appellant
    does not pose a significant risk to the public, the Board must order an
    absolute discharge.

E.

DISPOSITION

[34]

The appeal is allowed, the disposition
    made by the Board dated December 1, 2014 is set aside and an order for the absolute
    discharge of the appellant is substituted.

K.
    Feldman J.A.

J.C.
    MacPherson J.A.

B.W.
    Miller J.A.


