Court of Appeal for Ontario

Citation: R. v. Capano, 2008 ONCA 351

Date: 20080505

Docket: C47711

Before: CRONK and EPSTEIN, JJ.A. and GLITHERO R.S.J. (ad hoc)

Between:

ROCCO CAPANO

Appellant

and

HER MAJESTY THE QUEEN

Respondent

and

THE PERSON IN CHARGE OF THE CENTRE FOR ADDICTION AND MENTAL HEALTH

Respondent

Counsel:

Rocco Capano, in person

Michael Davies, amicus curiae

Andreea Baiasu, for the respondent, Her Majesty the Queen

James Hammond, for the respondent Centre for Addiction and Mental Health

Heard: April 28, 2008

On appeal from the disposition of the Ontario Review Board dated August 23, 2007.

ENDORSEMENT

[1] This is an appeal from the August 23, 2007 disposition of the Ontario Review Board directing that the appellant be detained at the minimum secure unit of the Centre for Addiction and Mental Health (the Hospital) subject to the condition, among others, that, in the discretion of the person in charge of the Hospital, the appellant could live in the community in accommodation approved by the Hospital.

[2] The appellant argues that the Board should have made a disposition providing for his absolute discharge.

[3] We disagree. The Board’s critical finding that the appellant continues to pose a significant risk to the safety of the public was amply supported by the evidence of the appellant’s continuing lack of insight into his illness, his need for medication, the dangers – given his illness – of drug use, and the index offence. The Board’s finding of the risk posed by the appellant precluded his absolute discharge.

[4] Amicus counsel submits that the Board erred in law in declining to conditionally discharge the appellant by erroneously concluding that the terms of a conditional discharge could not include the specification of a particular residence in the community for the appellant, nor provision for the continuing involvement of the appellant’s treatment team in any future decision as to where the appellant could safely reside.

[5] We do not accept this reading of the Board’s reasons. The Board stated:

As a return to his parent’s home is contrary to his treatment needs, and as Mr. Capano is not an individual who can manage independently at this stage (as he might wish), the involvement of the treatment team in any decision as to where Mr. Capano can safely reside and can be appropriately managed should continue and, as such, a detention disposition remains necessary. Further, given his lack of insight and the current fragility of his mental state, the hospital should continue to have the ability to return Mr. Capano quickly to hospital should signs of decompensation be noted. As Mr. Capano does not believe he suffers from any illness, the likelihood of him agreeing to return to hospital on a voluntary basis pursuant to the terms of a conditional discharge is minimal, such that a detention disposition remains necessary.

[6] In our view, properly read, this passage reveals that the Board concluded, on the evidence before it, that a custodial disposition for the appellant was required in order to ensure that: (i) his risk could be appropriately managed; and (ii) his treatment team would be involved in any future decisions concerning his place of residence and his care.

[7] The Board found that the appellant’s condition is fragile, that he lacks insight into the important matters that we have described above, and that it is likely – absent an enforceable requirement that he do so – that the appellant will not comply with his treatment. These findings are not challenged on appeal.

[8] In these circumstances, the Board correctly concluded that to ensure the continued authority of the Hospital to alter the appellant’s community living arrangements or to compel his return to the Hospital – should either option become necessary due to deterioration in the appellant’s condition – a detention disposition was required. In our view, this conclusion conforms, rather than conflicts, with this court’s decision in Brockville Psychiatric Hospital v. McGillis, [1996] O.J. No. 3430 (C.A.).

[9] We were informed that the appellant is currently residing in the community in a group home approved by the Hospital, where he is complying with his treatment. The disposition crafted by the Board was designed to permit the continuation of this type of placement for the appellant, so long as he does not decompensate. The challenged disposition also serves to protect the public, by ensuring that the appellant’s living arrangements can be changed or his rehospitalisation can be required by his treatment team, if warranted, for the proper management of his condition. This disposition was entirely reasonable on the record before the Board.

[10] For the reasons given, the appeal is dismissed.

“E.A. Cronk J.A.”

“G. Epstein J.A.”

“C. Stephen Glithero R.S.J. (ad hoc)”