



COURT OF APPEAL FOR ONTARIO

CITATION: Marchese (Re), 2018 ONCA 307

DATE: 20180327

DOCKET: C63703

Watt, Brown and Huscroft JJ.A.

IN THE MATTER OF:  Mary Marchese

AN APPEAL UNDER PART XX.1 OF THE
CODE

Russell Browne, for the appellant Mary Marchese

Megan Petrie, for the respondent the Attorney General of Ontario

Heard: February 22, 2018

On appeal against the disposition of the Ontario Review
    Board, dated April 13, 2017.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Mary Marchese, appeals the disposition of the Ontario
    Review Board (the Board) dated April 13, 2017 (the Order) that continued
    her detention, with a term that, subject to the discretion of the
    person-in-charge of St. Josephs Healthcare Hamilton (the Hospital), would
    permit her to live in the community in accommodation approved by the person-in-charge.

[2]

The appellant advances two grounds of appeal: (i) the decision of the
    Board that she was a significant threat to the safety of the public was
    unreasonable; (ii) alternatively, the detention order did not amount to the
    least onerous and least restrictive disposition in the circumstances, with the
    result that the Board should have granted her a conditional discharge.
    (Although the appellant couched her alternative argument in the old language of
    s. 672.54 of least onerous and least restrictive, I shall use the sections
    current language of necessary and appropriate.)

[3]

The 2008 index offences that resulted in a finding of not criminally
    responsible on account of a mental disorder (NCRMD) involved the appellant
    spitting at and assaulting a psychiatrist while she was in a hospitals
    psychiatric intensive care unit. The appellants current diagnosis is
    Schizophreniform Disorder.

[4]

The appellant has generally lived in the community since 2010. However,
    between 2011 and 2017 the appellant was readmitted seven times to the general
    forensic unit of the Hospital for treatment, often for quite lengthy periods of
    time. At present, she lives in the community with her common-law partner, Mr.
    Ben Savage.

[5]

For the reasons set out below, I would dismiss the appeal.


II.

THE FINDING OF SIGNIFICANT THREAT TO THE SAFETY OF THE PUBLIC

[6]

The continued supervision of an NCR accused under Part XX.1 of the
Criminal
    Code
requires the Board to find that the person remains a significant
    threat to the safety of the public  that is, the person poses a significant
    risk of committing a serious criminal offence:
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras. 48-49 and
    57.

[7]

Under the reasonableness standard of review, the Boards reasons must be
    able to withstand a somewhat probing examination to ascertain whether the
    decision is justifiable, transparent, and intelligible, and falls within a
    range of possible, acceptable outcomes:
R. v. Owen
, 2003 SCC 33, [2003]
    1 S.C.R. 779, at para. 33; and
Delta Air Lines Inc. v. Lukács
, 2018
    SCC 2, 416 D.L.R. (4th) 579, at para. 12.

[8]

To conduct a somewhat probing examination this court must have
    something to probe. Yet, too often this court sees reasons from the Board that
    go on at considerable length to recite the NCRMD accuseds history, the evidence
    considered by the Board, and the parties submissions, only to conclude with a
    cursory analysis of the key issue: is the appellant a significant threat to the
    safety of the public?

[9]

Cursory analysis is difficult to probe. It also risks failing to provide
    justification, transparency, and intelligibility for the resulting decision. To
    avoid that risk, in every case the Boards reasons should clearly explain what
    evidence in the record leads it to conclude that the condition and conduct of
    the NCRMD accused creates a significant threat to the safety of the public,
    both in the sense that there exists a real, foreseeable risk of physical or
    psychological harm occurring to individuals in the community and in the sense
    that this potential harm must itself be serious:
R. v. Ferguson
, 2010 ONCA 810,
    264 C.C.C. (3d) 451, at para. 8. The Boards reasons must clearly deal with the
    likelihood of a risk materializing and the seriousness of the harm that might
    occur:
Carrick (Re)
,
    2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[10]

In
    the present case, the brevity of the Boards treatment of the key issue of
    significant threat to the safety of the public is cause for concern: only one
    paragraph at the end of five pages of reasons. This brevity led the Board to
    treat material evidence without the rigour one would expect from a specialized
    tribunal such as the Board.

[11]

For
    example, in concluding the appellant was a significant threat to the safety of
    the public, the Board relied on the fact that [w]hile readmitted to the
    hospital, [the appellant] has required seclusion due to her behaviour. The
    details of the appellants behaviour and the resulting seclusion were not set
    out in the Boards reasons. They did exist - in the depths of the Hospital record,
    which the Board accepted as uncontroverted evidence. But, the point is that
    transparency and intelligibility require the Board to identify the material
    evidence upon which it relies in its reasons and to explain how that evidence
    is linked to the issue of significant threat to the safety of the public.

[12]

That
    said, on a review of the Boards reasons, taking into consideration the
    evidence it accepted in the Hospital record, I am not persuaded the Boards
    decision that the appellant remains a significant risk to the safety of the
    public was unreasonable.

[13]

There
    was evidence before the Board to support its finding that the appellant
    remained a significant threat to the safety of the public. During the period
    under review, the appellant was re-admitted to the Hospital for over seven
    months due to a deterioration in her mental status. While in the Hospital, the
    appellant was placed in seclusion for one day because of escalated behaviour
    that risked harm to herself and to others. As well, she experienced a
    significant incident of delusion when she left the Hospital without permission
    and presented herself at another hospital asking for a caesarian section,
    thinking she was pregnant when she was not.

[14]

At
    the hearing, Dr. Prat testified that in the first incident  the escalated
    behaviour  the appellants presentation was similar to that at the time of the
    index offence, and the second recalled certain delusional behaviour concerning
    babies displayed prior to the index offences.

[15]

In
    light of that evidence, I would not interfere with the Boards finding that the
    appellant remained a significant threat to the safety of the public.

III.

THE NECESSARY AND APPROPRIATE DISPOSITION

[16]

In
    every case, the Board is obliged to explain why the disposition ordered is necessary
    and appropriate in the circumstances:
R. v. Lamanna
, 2009 ONCA 612, 252
    O.A.C. 280, at para. 14. In the present case, the Board failed to do so. It
    merely curtly stated its conclusion: [T]he necessary and appropriate
    disposition is a continuation of the current Detention Order without
    amendment.

[17]

A
    conclusion is not an explanation. Nor is such a brief, conclusory statement
    justifiable, transparent, and intelligible. Whether it falls within a range
    of possible, acceptable outcomes cannot be assessed given the absence of any
    analysis to justify the conclusion.

[18]

The
    Boards perfunctory treatment of what disposition order would be necessary and
    appropriate in the circumstances was not appropriate on the evidence before it.

[19]

On
    the appellants 2013 annual review, her attending psychiatrist and the Hospital
    supported a conditional discharge. The Board did not accept their
    recommendation.  In its May 16, 2016 Reasons for Disposition, the Board
    rejected the suggestion of counsel for Ms. Marchese of a conditional discharge,
    explaining that a continued detention order would enable a more timely
    intervention in the event of the appellants rapid decompensation than would be
    available under the provisions of the
Mental Health Act
, R.S.O. 1990,
    c. M.7 (the 
MHA
).

[20]

On
    the current 2017 review, a similar reason for continuing the detention order
    was advanced in the clinical risk summary.

[21]

However,
    at the 2017 review hearing the Board heard from Mr. Savage, the appellants
    common-law partner. They have been together for the last four years and
    currently live together. Mr. Savage pointed out that a new general hospital had
    opened about 15 minutes away from their residence. He believed the appellant
    could be managed within the
MHA
system.

[22]

Those
    circumstances lent an air of reality to a conditional discharge as
    potentially the necessary and appropriate disposition. Consequently, given the
    record before it, the Board was required to explain why it concluded that a
    continued detention order, not a conditional discharge, was the necessary and
    appropriate disposition in the circumstances:
R. v. Breitweiser
, 2009
    ONCA 784, 99 O.R. (3d) 43, at para. 18. It was unreasonable for the Board not
    to provide an explanation.

[23]

Such
    an explanation would include a consideration of the adequacy or inadequacy in
    the circumstances of: (i) conditions such as those upheld by this court in
Young
    (Re)
, 2011 ONCA 432, 273 C.C.C. (3d) 512, at paras. 26-33;
[1]
(ii) a condition, if agreed to, under s. 672.55 to take medication; (iii) the
    mechanisms for enforcing conditions in a conditional discharge found in ss. 672.91,
    672.92 and 672.93 of the
Criminal Code
;
and (iv) the committal provisions of the
MHA
:
Breitweiser
,
    at para. 18;
Lamanna
, at paras. 14-17; and
Gacek (Re)
, 2012
    ONCA 591, 298 O.A.C. 148, at para. 43.

[24]

Notwithstanding
    the Boards failure to explain the disposition it selected, I am not prepared
    to interfere with the Order. At the hearing of the appeal, counsel for Ms.
    Marchese alluded to her having further contact with the Hospital. In fact, Ms.
    Marchese was readmitted to the Hospital on September 12, 2017 and remained
    there until at least late October 2017 when the Board conducted a restriction
    on liberty hearing. The Board held that the Hospitals decision to
    significantly increase the restrictions on the liberty of the appellant was
    warranted:
Marchese (Re),
2017 CarswellOnt 17863 (Review Board).

[25]

Accordingly,
    whether a conditional discharge would constitute the necessary and appropriate disposition
    for Ms. Marchese is an issue best left to her next annual review. Whatever
    disposition the Board ends up making on the evidence before it at that time,
    the Board must explain its choice of disposition in accordance with the
    directions given in these reasons.

IV.

DISPOSITION

[26]

For the reasons set out above, I would dismiss the
    appeal.

Released: DW Mar 27 2018

"David Brown J.A."
"I agree. David Watt J.A."
"I agree. Grant Huscroft J.A."





[1]

Those conditions required that
    the NCR accused: (i) upon notice by the person in charge of the hospital, immediately
    submit to attendance and for readmission to hospital; and (ii) upon the
    request of the hospital, attend for psychiatric assessment, and upon notice of
    the person in charge, attend for admission to the hospital:
Young
, at
    para. 8.


