



COURT OF APPEAL FOR ONTARIO

CITATION:  Marzec (Re), 2013 ONCA 703

DATE: 20131115

DOCKET: C56608

Weiler, MacFarland and Watt JJ.A.

BETWEEN

IN THE MATTER OF EDWARD GERALD MARZEC (accused)

AN APPEAL UNDER PART XX.1 OF THE CODE

Suzan E. Fraser, for the appellant

Janice E. Blackburn, for the respondent, Person in
    Charge, Forensic Mental Health

Roger A. Pinnock, for the respondent Crown

Heard and released orally:  November 8, 2013

On appeal from the Disposition of the Ontario Review
    Board, dated December 6, 2012.

ENDORSEMENT

[1]

The appellant has a long-standing history of mental illness.  He does
    not have a criminal record for violence save for the index offence which
    occurred on June 11, 2012.

[2]

On October 3, 2012, the appellant was found NCRMD on a charge that he
    assaulted his neighbour with a pick axe.  The record discloses that words were
    exchanged between the appellant and his neighbour. The appellant went into his
    home, retrieved a pick axe, and chased the neighbour down the street with it.
    The neighbours wife screamed that she was calling police. The appellant
    stopped his chase, returned to his home where he awaited the arrival of the
    police, and surrendered to them when they arrived.

[3]

He was charged with assault with a weapon and languished in jail until a
    bed was available for him at the Thunder Bay Regional Health Sciences Centre on
    November 6, 2012, almost five months after the offence was committed.

[4]

Dr. Sheppard, who has followed the appellant, initially assessed him on
    June 13, 2012 and determined that he was fit to stand trial.  He next examined
    the appellant on July 6, 2012, for the purpose of determining whether he
    suffered from a mental disorder as defined under s. 16(1) of the
Criminal
    Code
at the time of the alleged offence.  Dr. Sheppard concluded that he
    did.

[5]

On October 3, 2012, the appellant was found NCRMD on the charge. The
    hearing which is the subject of this appeal was his initial hearing before the
    Board. Despite the appellants lengthy history of mental illness dating back to
    1990, the Board noted that the appellant had grade 12 education, plus a year of
    studies in the electronics field, had owned and operated his own repair service
    for 20 years, and had managed to live rather uneventfully in the community
    without violence until this event.

[6]

Over the years the appellant had a number of hospital admissions and had
    been diagnosed with schizophrenia. Although he has tried medication he
    discontinues usage because he says the medication makes him feel worse.  He has
    in the past presented himself frequently at the emergency wards at the local
    hospitals when he recognized his need for help and, on occasion, he has been
    admitted to hospital as a result.

[7]

Dr. Sheppard agreed that the appellant on this occasion had improved
    without treatment. On his evidence there was a stark difference between how the
    appellant had presented on June 13, 2012, when he was clearly in a psychotic
    state and delusional, and two weeks into his admission to the Secure Unit of
    the Thunder Bay Regional Health Sciences Centre when he was pleasant, polite,
    engageable, organized in his thinking and cognitively intact.

[8]

In his report to the Review Board, dated November 7, 2012 Dr. Sheppard
    notes that despite at least a 20-year history of untreated psychiatric illness,
    the appellants hospitalizations have been relatively infrequent and of short
    duration.  Nevertheless, the appellant lacked insight into his illness and Dr.
    Sheppard was of the view that the appellant remains a significant threat to
    public safety and required detention on the Secure Forensic Unit.

[9]

The appellants counsel conceded at the hearing that the appellant
    presented a significant threat to public safety but sought a conditional
    discharge on behalf of his client. In our view, the Board did not give adequate
    consideration to whether a conditional discharge was the least onerous, and
    least restrictive disposition for the appellant in all the circumstances.

[10]

For
    these reasons, we would allow the appeal and direct that the Board reconsider
    its decision in accordance with these reasons. The Boards decision in this
    respect shall be made in conjunction with the review hearing scheduled for
    November 18, 2013.

K. M. Weiler
    J.A.

J. MacFarland J.A.

David Watt J.A.


