Arscott v. Yukon et al., 2016 YKCA 1

• Judge: Saunders, Groberman and Shaner, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: March 04, 2016
• Jurisdiction: Yukon
• Citations: 2016 YKCA 1;(2016), 383 B.C.A.C. 305 (YukCA)

Arscott v. Yukon (2016), 383 B.C.A.C. 305 (YukCA);

    661 W.A.C. 305

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MR.005

Marlon Hugh Arscott (appellant) v. The Government of Yukon (respondent) and Public Prosecution Service of Canada (respondent)

(15-YU761; 2016 YKCA 1)

Indexed As: Arscott v. Yukon et al.

Yukon Court of Appeal

Saunders, Groberman and Shaner, JJ.A.

March 4, 2016.

Summary:

In 1997, the now 56 year old accused schizophrenic (Arscott), charged with manslaughter, was found not criminally responsible by reason of mental disorder. He remained under the supervision of the British Columbia Review Board until 2003, when he was granted an absolute discharge. In 2004, Arscott was charged with multiple assaults in the Yukon. He was again found not criminally responsible due to mental disorder. The Yukon Review Board granted a series of conditional discharges. Arscott's health deteriorated due to the failure to take his medication and illegal drug use. In 2012 he was detained in a psychiatric hospital. Two subsequent conditional discharges were granted. In June 2015, the Board granted another conditional discharge. The accused appealed, submitting that the Board erred in refusing to grant an absolute discharge.

The Yukon Court of Appeal allowed the appeal and substituted an absolute discharge. The Board erred in finding that Arscott recently used illegal drugs (marijuana) and would continue to do so. This was contrary to evidence that Arscott had not used drugs for 2.5 years. Further, the Board's finding that Arscott would not continue to comply with his medication regime if granted an absolute discharge was unreasonable. In light of these errors, there was no basis upon which Arscott posed a significant risk to the safety of the public.

Criminal Law - Topic 93.82

General principles - Mental disorder - Dispositions by court or review board - Absolute discharge - See paragraphs 22 to 43.

Criminal Law - Topic 93.89

Mental disorder - Dispositions by court or review board - Discharge or release - Evidence (incl. onus of proof) - See paragraphs 22 to 43.

Cases Noticed:

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 31].

Counsel:

L. Whyte, for the appellant;

D. McWhinnie, for the respondent, Public Prosecution Service of Canada;

No one appearing for the Government of Yukon.

This appeal was heard on November 18, 2015, at Whitehorse, Yukon, before Saunders, Groberman and Shaner, JJ.A., of the Yukon Court of Appeal.

On March 4, 2016, Shaner, J.A., delivered the following judgment for the Court of Appeal.