Court File and Parties

CITATION: R. v. Capano, 2010 ONCA 308

DATE: 20100430

DOCKET: C50763

COURT OF APPEAL FOR ONTARIO

Sharpe, Blair and MacFarland JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Rocco Capano

Appellant

Paul Burstein as amicus curiae

Christine Bartlett-Hughes, for the respondent

James Hammond, for the Centre of Addiction and Mental Health

Heard & released orally: April 27, 2010

On appeal from the decision of the Ontario Review Board dated February 17, 2009.

ENDORSEMENT

[1] We do not agree that the Board’s decision that the least onerous and restrictive disposition was a conditional discharge was unreasonable. While the Board does have a duty to exercise its investigative powers, here the Board had both evidence and the agreement of all parties, including the appellant, represented by experienced counsel, that the appellant continued to pose a significant risk to the public and that a conditional discharge was appropriate.

[2] The treating physician recognized the considerable improvement made by the appellant on his new medication and it was for that reason that the institution, the Crown and the treating physician agreed to a conditional discharge rather than a detention order.

[3] The appellant is to be commended for the progress he has made. We hope that progress will continue and that he will ultimately qualify for an absolute discharge. However, on this record, we cannot agree that the Board unreasonably refused to grant him an absolute discharge. In the absence of any evidence as to the possible application of the Mental Health Act or a Community Treatment Order to the facts of this case, consideration of the application of those provisions would be premature.

[4] We note that the next annual Review Board hearing is scheduled for May 7, 2010 and that this will afford the appellant and the Board an opportunity to consider his present situation and to determine whether in view of the progress he has made, he continues to pose a significant risk to the public.

[5] For these reasons, the appeal is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”