



COURT OF APPEAL FOR ONTARIO

CITATION: Marchese (Re), 2020 ONCA 80

DATE: 20200203

DOCKET: C66927

Doherty, Watt and Hourigan JJ.A.

IN THE MATTER OF MARY MARCHESE

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL CODE

BETWEEN

Person in Charge of St. Josephs Healthcare
    Hamilton

Appellant

and

Mary Marchese

Respondent

and

Her Majesty the Queen

Respondent

Janice E. Blackburn, for the appellant, Person in Charge
    of St. Josephs Healthcare Hamilton

Russell Browne, for the respondent, Mary Marchese

Amy Alyea, for the respondent, Her Majesty the Queen

Heard and released orally: January 29, 2020

On appeal from the disposition of the Ontario Review
    Board, dated April 9, 2019, with reasons released on May 1, 2019.

REASONS FOR DECISION

[1]

The respondent was found NCR in December 2008. Until April 2017, she was
    held under a series of detention orders which included community living at the
    discretion of the Hospital. In April 2019, the Ontario Review Board, by a 3:2
    majority, directed that the respondent should be conditionally discharged. The
    Hospital appeals and the Crown supports the appeal.

[2]

Counsel for the Hospital argued that the majority reasons provide
    virtually no explanation or justification for the conditional discharge disposition.
    Certainly, those reasons, insofar as they analyze the evidence, are brief, if
    not cursory. The majoritys reliance on the provisions of the
Mental Health
    Act
goes unexplained in those reasons.

[3]

Given the respondents tendency to seriously decompensate very rapidly
    for a variety of reasons, and her recent history of involuntary admissions
    prior to the hearings before the Board, it was essential that the reasons of
    the majority explain why a conditional discharge could, in those circumstances,
    adequately protect the safety of the public. Unfortunately, the Boards reasons
    offer nothing beyond the conclusory comment at para. 30. In our view, absent
    adequate reasons, the Boards decision cannot stand.

[4]

The appeal is allowed and a new hearing is ordered. The hearing should
    be conducted as soon as reasonably possible and, in any event, by March 6,
    2020, one year after the last annual review. In the interim, given what we have
    been told by counsel for the Hospital, the respondent shall remain subject to
    the terms of the Boards order, dated April 9, 2019.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


