



COURT OF APPEAL FOR ONTARIO

CITATION: Marceau (Re),
    2014 ONCA 528

DATE: 20140707

DOCKET: C58180

Feldman, MacPherson and Cronk JJ.A.

IN THE MATTER OF: Brad M. Marceau

AN APPEAL UNDER PART XX.1 OF THE
CODE

Susan E. Fraser, for the appellant

Michael Perlin, for the respondent, The Attorney General
    for Ontario

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

Heard: July 4, 2014

On appeal against the disposition of the Ontario Review
    Board dated November 26, 2013.

ENDORSEMENT

[1]

The sole issue on this appeal is whether the Ontario Review Board erred
    in law by finding that the appellant poses a significant threat to the safety
    of the public.

[2]

At the hearing held on November 18, 2013, Dr. Sheppard expressed the
    position of the treatment team as well as that of the hospital that the
    appellant is mentally ill, but does not pose a risk to the safety of the
    public. The hospital report stated in part:

... the treatment team is not persuaded that Mr. Marceau meets
    the
Winko
threshold for significant threat to public safety. In our
    view it cannot be said that, if absolutely discharged, Mr. Marceau would likely
    commit a serious criminal offence resulting in physical or psychological harm
    to a member of the public.

If absolutely discharged, in fact, Mr. Marceaus treatment
    would continue in exactly the way that it has over the course of the past year,
    that is, under the authority of the
Mental Health Act
. He has
    historically maintained a good relationship with the OTR Team, which provides
    ongoing services to Mr. Marceau, equivalent to those provided by an ACT Team,
    and who are very well acquainted with Mr. Marceau and his family, with Mr.
    Marceaus treatment needs including with respect to his comorbid issues, and
    with the elements of a treatment and rehabilitation plan which will be required
    in order to successfully reintegrate him into the community. It is our position
    that the OTR Team, with the utilization of the
Mental Health Act
if
    necessary, is quite capable of managing whatever risks may arise from Mr.
    Marceaus illness and, accordingly, that Mr. Marceau would not present a
    significant threat to public safety if absolutely discharged and re-engaged
    with the OTR Team as his primary service providers.

It is acknowledged that this young man does present some level
    of risk to public safety. When acutely unwell he can be agitated, irritable and
    defiant, and early in his current hospital stay he did require brief periods of
    locked seclusion until his condition started to stabilize. The circumstances of
    the index offences, also, would indicate some level of concern. Nevertheless
    Mr. Marceau does not have an adult history of criminal convictions. Despite the
    fact that he has remained quite floridly unwell for many months, and that he
    has continued to use marijuana episodically, his behaviour has been almost
    entirely non-aggressive. Since he has been receiving antipsychotic treatment,
    which he will clearly require indefinitely and which will be provided for him
    via substitute consent, he has in fact been easily manageable in hospital.
    Despite his lack of insight and his tendency to defy authority, there have been
    no reports of any sort of behavioural disturbances during the extended periods
    of time that Mr. Marceau has spent in the community, generally in the company
    of his family. While there is an element of risk, it is the position of the
    treatment team that whatever threat that Mr. Marceau does pose to public safety
    is not significant.

[3]

This opinion was not contradicted in the evidence before the Board. Dr.
    Sheppard and the appellants mother corrected an inaccuracy in the hospital
    report which said that the appellant had once assaulted his mother. In fact
    this had not occurred. Although the appellant, when his mental illness was
    manifesting itself floridly, could be physically and verbally aggressive, he
    had gone so far as to damage some property but he was not violent with people.

[4]

His only incident of such violence was the index offence. The
    circumstances of that event were described in the evidence. The appellant was
    in the hospital through the civil mental health system and went home without
    leave. His mother called the hospital and asked for the police to come and pick
    him up because she was afraid he would jump out of the car if she tried to
    drive him back.

[5]

When the police came, they insisted on handcuffing him, he resisted, at
    which point, according to his mother, they got him on the ground, kneed him,
    beat him with a club and a flashlight and punched him in the head. The family
    and neighbours were screaming for them to stop. In the scuffle one officer got
    kicked in the mouth and the appellant spit on another, although that was after
    they pushed his head into the dirt on the ground.

[6]

It was acknowledged by Dr. Sheppard at the hearing that these
    circumstances were somewhat unique.

[7]

The appellant was initially conditionally discharged but ended up back
    in hospital on May 13, 2013 under a Form 1 in the civil system because his
    continued drug use and relationship problems exacerbated his mental health
    problems. He has remained in hospital since that time. In January 2013, his
    treatment team had decided to wean him off his medication which turned out to
    be the wrong treatment decision.

[8]

At the time of the hearing, the appellant was not doing as well mentally
    as he was a year earlier, which was why the hospital wanted to retain him but
    only under the civil mental health system.

[9]

The Boards reasons for rejecting the evidence and opinions of the
    psychiatrist and the hospital are at the conclusion of its reasons as follows:

Having heard and considered all of the evidence and the
    submissions of all of the parties, the Board is of the view that the accused is
    a significant threat to the safety of the public. We find on all of the
    evidence that there is a foreseeable and substantial risk that the accused
    would commit a serious criminal offence, if discharged absolutely. We make this
    finding on the basis of the following evidence.

The accused is diagnosed with a major mental illness,
    Schizophrenia, Disorganized and Paranoid Features. This diagnosis is
    complicated by a diagnosis of Polysubstance Abuse. Substance abuse is a known
    risk factor in relation to relapse of a major mental disorder. The accused has
    used illicit substances in breach of his disposition over the course of the
    past year. He has tested not only positive for cannabinoids but also for
    cocaine which is associated with considerable risk of relapse.

The accused has a long history of anger management issues and
    immaturity. When psychotic, he is paranoid and has a history of requiring
    physical and chemical restraint in hospital. In 2006, the accused attempted to
    jump out of a moving vehicle when being brought to hospital. It is his current
    belief that the hospital is gassing him. The accused has a history of
    physically aggressive behaviour when ill. Instances of aggressive behaviour are
    documented on more than one occasion.

Of significance is the fact that the accused committed the
    index offences in the context of the enforcement of the
Mental Health Act
.
    It is our view that the type of offences committed by the accused when
    involuntary readmission is sought by officials causes harm within the
Winko
standard. Mr. Marceaus behaviour due to psychosis and anger potentially
    affects police officers, nurses, staff and co-patients. The Board does not have
    the jurisdiction to question the findings of not criminally responsible. We
    accept that the accused committed the physical elements of the index offences.
    Mr. Marceau is an individual found not criminally responsible 1.5 years ago,
    whose mental stability has deteriorated since his last hearing and whose risk
    of relapse is enhanced by his use of illicit substances. The Board is of the
    view that he meets the threshold of significant threat.

[10]

In
Winko v. British Columbia (Forensic Psychiatric Institute),
[1999] 2 S.C.R.
    625, at para. 57, the Supreme Court described the requirements of a significant
    threat to the public as follows:

The threat must also be significant, both in the sense that
    there must be a real risk of physical or psychological harm occurring to
    individuals in the community and in the sense that this potential harm must be
    serious. A minuscule risk of a grave harm will not suffice. Similarly, a high
    risk of trivial harm will not meet the threshold. Finally, the conduct or
    activity creating the harm must be criminal in nature
In short, Part XX.1 can only maintain its authority
    over an NCR accused where the court or Review Board concludes that the
    individual poses a significant risk of committing a serious criminal offence

[11]

In
    our view, the evidence relied on by the Board cannot meet the
Winko
test.
    The Board seemed to correlate the appellants drug use and the symptoms of his
    mental illness with risk to the public. This was speculative and not supported
    by the evidence. The evidence was that he is well supported by his treatment
    team and his family. His mother is committed to caring for him and making
    treatment decisions as long as necessary. He is compliant with the doctors and
    with his medication. Unfortunately he has a serious mental disorder. But that
    does not necessarily mean he is violent or is likely to commit a serious
    criminal offence.

[12]

The
    Board also relied on the index offence, but ignored the fact that the appellant
    had not been physically violent to anyone before or since, as well as the very
    unique circumstances of the offence.

[13]

In
    our view, the finding of substantial risk to the safety of the public was an
    unreasonable one and must be set aside.

[14]

As
    stated by the hospital, that does not mean that the appellant will necessarily be
    released from the control of the hospital. Recourse to the civil mental health
    system for his continued detention and treatment remains possible, as
    necessary.

[15]

The
    appeal is allowed and an order for an absolute discharge is substituted.

K. Feldman J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


