COURT OF APPEAL FOR ONTARIO

CITATION: Capano (Re), 2012 ONCA 172

DATE: 20120320

DOCKET: C54080

Doherty, Laskin JJ.A. and Brown R.S.J. (Ad Hoc)

IN THE MATTER OF: Rocco Capano

Rocco Capano, acting in person

Paul Burstein, as amicus curiae

Andreea Baiasu, for the Attorney General

Janice E. Blackburn, for the Centre for Addiction and Mental Health

Heard: February 13, 2012

On appeal against the disposition of the Ontario Review Board dated, July 27, 2011.

ENDORSEMENT

[1] Mr. Capano appeals the disposition of the Ontario Review Board dated July 27, 2011. That disposition, made following an early review hearing requested by CAMH, imposed a detention order in the minimum secure unit of the hospital, but gave the hospital’s officials discretion to permit Mr. Capano to continue living in the community.

Background

[2] In May 2004, Mr. Capano was found not criminally responsible on account of a mental disorder. Since January 2007, he has been living in the community in a supervised residence at 60 Borden Street, under the care and supervision of his Assertive Community Treatment team. Following his annual review hearing in 2009, the Board granted Mr. Capano a conditional discharge. This court dismissed his appeal from that disposition and affirmed the conditional discharge.

[3] After his annual review in 2010, the Board again imposed a conditional discharge on identical terms to the 2009 disposition. Although Mr. Capano has appealed his 2010 disposition, that appeal has been rendered moot by the 2011 disposition.

[4] While Mr. Capano is now subject to a detention order, he continues to reside in the community.

Mr. Capano’s Position

[5] Mr. Capano asks this court to set aside the detention order and grant him an absolute discharge. What underlies his request is his desire to have complete freedom to care for his elderly and ailing parents.

[6] While Mr. Capano’s desire to take care of his parents is understandable, we cannot agree to his request for an absolute discharge. The Board found that Mr. Capano remains a significant threat to the safety of the public. That finding is well supported by the record. For many years Mr. Capano has suffered from schizophrenia. He frequently has delusions and auditory hallucinations, and his thinking is at times disorganized. He has limited insight into his underlying psychiatric disorder or the need for ongoing anti-psychotic medication.

[7] Because Mr. Capano is a significant threat to the safety of the public, under the provisions of the Criminal Code he is not entitled to an absolute discharge.

Amicus Curiae’s Position

[8] The three-member Review Board was divided. The majority imposed a detention order. The minority – the psychiatrist on the panel – would have maintained a conditional discharge.

[9] Amicus submits that we should set aside the detention order and substitute the conditional discharge proposed by the dissent. Amicus essentially makes three submissions. First, the majority erred by failing to properly consider whether a conditional discharge continued to be the least onerous and least restrictive disposition. Second, the majority erred by finding that Mr. Capano had breached the terms of his conditional discharge. And third, this court should give less deference to the majority decision of the Board than it would otherwise do because the “expert” on the panel dissented. We do not agree with any of these submissions.

(1) A detention order was the least onerous and least restrictive disposition

[10] The majority found that since the 2010 disposition, Mr. Capano had not complied with the terms of his conditional discharge. The majority concluded that Mr. Capano’s failure to do so was a significant change from the previous year. In Dr. Simpson’s words, Mr. Capano had “gone downhill”.

[11] The majority’s finding and its conclusion are reasonably supported by the evidence at the hearing. In particular:

• Mr. Capano had started staying overnight at his parents’ home without the approval of the hospital; in the previous year he would be at their home only in the daytime.

• Mr. Capano regularly failed to meet with his Assertive Community Treatment team, and generally made himself unavailable to the team; in the previous year he typically reported for assessment six days a week.

• Mr. Capano now refuses to take his medication; in the previous year he would eventually agree to take his medication, albeit under threat of hospitalization.

[12] Because of these significant changes, the majority of the Board reasonably concluded that Mr. Capano’s risk could only be adequately managed under a detention order. In reaching this conclusion, the majority considered the available mechanisms for returning Mr. Capano to the hospital under both a conditional discharge and a detention order. The majority held that the mechanisms available to the hospital under a conditional discharge did not adequately protect the public. Moreover, they noted that in the light of the limitations in re-admitting Mr. Capano to the hospital under the terms of a conditional discharge, a detention order would not only more likely ensure Mr. Capan’s compliance but as well would likely be less onerous.

[13] The majority’s decision is thorough and well reasoned. We see no basis to interfere with its finding that a detention order is the least onerous and least restrictive disposition.

(2) Mr. Capano breached the terms of his conditional discharge

[14] We accept amicus’ submission that some of the terms of the conditional discharge could have been more precisely spelled out. Nonetheless, we are satisfied that Mr. Capano was fully aware of the substance of those conditions and in the period leading up to the 2011 disposition, breached several of them.

[15] For example, although the conditional discharge order did not expressly say that Mr. Capano could stay overnight at his parents’ home only with the approval of the person in charge, Mr. Capano was aware that the “permitted contact” term in paragraph 1(f) of the conditional discharge order meant that he needed the hospital’s permission to stay overnight at his parents’ residence. Yet he continually stayed there without obtaining permission to do so. We are therefore satisfied that Mr. Capano did breach the terms of his conditional discharge.

(3) The majority decision should be upheld without regard to the standard of review.

[16] In essence, amicus submits that the standard of review of reasonableness fluctuates according to the individual expertise or qualifications of the members of the Board whose decision is being appealed. A tribunal’s expertise is an important consideration supporting a deferential standard of review of a tribunal’s decision. The case law, however, has uniformly considered the expertise of the tribunal itself, rather than inquiring into the expertise or qualifications of individual members. Nonetheless, in this case, we need not decide the merits of amicus’ submission.

[17] We agree with the decision of the majority, and would therefore uphold it if we accorded it limited deference or even no deference at all.

Conclusion

[18] The appeal from the 2011 disposition is dismissed.

“Doherty J.A.”

“John Laskin J.A.”

“M.F. Brown R.S.J. (Ad Hoc)”