COURT OF APPEAL FOR ONTARIO

CITATION: Furlan (Re), 2013 ONCA 618

DATE: 20131011

DOCKET: M42828 (C57275)

Watt J.A. (In Chambers)

IN THE MATTER OF: DANIEL FURLAN

AN APPEAL UNDER PART XX.1 OF THE CODE

Andreea Baiasu, for the applicant

Daniel Furlan, acting in person

Joseph Di Luca, appearing as amicus curiae

Janice E. Blackburn, for the respondent, Person in Charge of Centre for Addiction and Mental Health

Heard: September 13, 2013

On application for an order under s. 672.76 of the Criminal Code suspending the application of an absolute discharge and directing the application of a conditional discharge pending appeal.

Watt J.A.:

[1] On the joint recommendation of the parties and the evidence received at the hearing, a panel of the Ontario Review Board (the Board) was satisfied that Daniel Furlan (the respondent) was no longer a significant threat to the safety of the public. The Board directed that the respondent be discharged absolutely.

[2] A few weeks later, the respondent returned to some of his old habits. He took drugs, like cocaine and marijuana. He drank alcohol. He stopped taking, or took only intermittently, his prescribed medication. He missed appointments at the Forensic Outpatient Service at the Centre for Addiction and Mental Health (CAMH) where he had been treated for his major mental disorder for some time. He became psychotic, hostile, verbally aggressive, and threatening.

[3] The respondent returned to CAMH when mental health authorities invoked provincial mental health legislation to have him arrested and confined there involuntarily. The person in charge of CAMH served the respondent with a notice of appeal against the absolute discharge granted by the Board.

[4] The Attorney General applies for an order under s. 672.76 of the Criminal Code suspending the disposition of an absolute discharge pending the determination of the appeal and substituting a conditional discharge without a s. 672.55 treatment condition.

[5] At the conclusion of the hearing of the application, I granted the order sought. These are my reasons for doing so.

THE BACKGROUND

[6] A brief reference to some of the background events and procedural history is essential to an appreciation of this application and its result.

The Predicate Offences and NCRMD Finding

[7] On July 25, 2008, the respondent launched unprovoked attacks on unsuspecting citizens including a 13-year-old boy whom he tried to throw in front of a moving vehicle. Concerned citizens intervened and called police. When police arrived, the respondent resisted apprehension. One of the officers suffered significant muscular injury in his attempts to subdue the respondent.

[8] About a year later, on August 6, 2009, the respondent was found NCRMD on charges of aggravated assault, assault with intent to resist arrest, assault causing bodily harm, and simple assault. The respondent’s underlying mental disorder is schizophrenia, possibly personality disorder (anti-social type), and polysubstance dependence (crack, cocaine, heroin, cannabis and alcohol).

[9] The trial judge did not conduct a disposition hearing, rather ordered the respondent detained pending a hearing before the Board.

The Conditional Discharge in 2012

[10] At the annual review hearing conducted in April, 2012, the Board unanimously concluded that the respondent continued to represent a significant threat to the safety of the public. A majority of the Board decided that the least onerous and least restrictive disposition that was appropriate was a conditional discharge. A minority of the Board concluded that a detention order was the appropriate disposition.

[11] The conditional discharge permitted the respondent to reside in the Greater Toronto Area and required him to: a) report to the person in charge of CAMH or his designate not less than every two weeks; b) abstain absolutely from the non-medical use of alcohol, drugs, or other intoxicants; c) on his consent, to take any treatment prescribed under s. 672.55(1) of the Criminal Code; d) participate in the rehabilitation program prescribed by the person in charge of CAMH, and; e) submit samples of urine or breath to the hospital for analysis.

The Absolute Discharge of April, 2013

[12] At the annual review hearing held in April, 2013 the Hospital Report from CAMH described the preceding 12 months as an “exemplary year” for the respondent. According to the Report, he displayed no symptoms of psychosis, was compliant with his self-administered medication, and had only negative results when his urine samples were analyzed for the presence of alcohol and non-prescribed drugs. The report of the treatment team concluded:

While we cannot rule out the presence of personality factors that might impinge on his mental state stability in the future, given his pro-social lifestyle and attitudes, mental state stability, adequate personal supports, fair insight, intact judgment, abstinence from substance use, and compliance with remediation recommendations, he does not in the team’s opinion, meet the threshold of significant risk as per Winko.

[13] In her testimony before the Board, the respondent’s out-patient psychiatrist confirmed the contents of the treatment team’s report and their recommendation that the respondent be discharged absolutely.

[14] At the hearing before the Board, counsel for CAMH, the respondent, and the Attorney General agreed that the evidence would not support a finding that the respondent continued to represent a significant risk to the safety of the public. Crown counsel registered some concern, however, because of the serious mental illness from which the respondent suffered, as well as the nature of his index offences, but agreed that the significant threat threshold could not be met on the available evidence.

[15] The Board agreed with the recommendation of all parties that the respondent no longer represented a significant threat to the safety of the public. On April 23, 2013, the Board directed that the respondent be discharged absolutely.

The Subsequent Events

[16] Within a month of the Board’s disposition, the respondent resumed his use of cocaine and cannabis. He failed to attend two scheduled out-patient appointments. In the following month, his mother reported that the respondent was becoming paranoid and had drugs in his room. She wanted the hospital authorities to “revoke” the respondent’s absolute discharge.

[17] The respondent became more psychotic, hostile, aggressive and destructive as the days and weeks passed. He was taken by police, acting under provincial mental health legislation, to Humber River Regional Hospital where he was briefly confined.

[18] In mid-June, the respondent went to the Forensic Out Patient Service at CAMH. He acknowledged that he had missed prior appointments because they were “voluntary”. He admitted that he had used drugs and that he had been inconsistent in taking his prescribed medication. He appeared paranoid. A week later, the respondent was obviously decompensating. His mother was afraid of him.

The Apprehension and Hospital Admission

[19] Towards the end of June, 2013, about two months after the absolute discharge had been ordered, the respondent was taken into custody by police and delivered to an area hospital under a Form 2 under s. 16 of the Mental Health Act, R.S.O. 1990, c. M.7. A urine sample taken there tested positive for both THC and cocaine. Two days later, he was transferred to CAMH on a Form 1.

The Notice of Appeal

[20] At CAMH, the respondent was served with a notice of appeal on behalf of the person in charge of the hospital. The relief sought was an order setting aside the absolute discharge and writing a conditional discharge disposition under s. 672.54(b) of the Criminal Code in the same terms and conditions as that in place before the hearing at which the respondent had been discharged absolutely.

The Current Status

[21] Since his re-admission to CAMH, the respondent has been confined largely as an involuntary or civilly-committed patient under the Mental Health Act. He has displayed signs of mania and is incapable of making treatment decisions about antipsychotic and mood-stabilizing medication. He has decompensated significantly since his absolute discharge was ordered.

[22] The respondent’s in-patient psychiatrist and the person in charge of CAMH are both of the view that the respondent currently represents a significant threat to the safety of the public because of his mental disorder. Both doctors are satisfied that without the conditions included in the prior conditional discharge, the respondent will continue his use of illicit substances, his questionable compliance with medication, and his inconsistent attendance at medical appointments. In the doctors’ view, without these conditions, the respondent will become increasingly paranoid and manic.

The Application

[23] The Attorney General (the Crown) seeks an order under s. 672.76 of the Criminal Code suspending the application of the absolute discharge granted to the respondent by the Board on August 23, 2013, pending the determination of an appeal by the person in charge of CAMH against that order. Further, the Crown seeks an order that the respondent be made subject to the terms of a conditional discharge, identical to that in force immediately before the Board decision under appeal save for the deletion of a s. 672.55 treatment condition.

The Positions of the Parties

[24] The argument in support of this application by the Crown was advanced by counsel for the person in charge of CAMH, Ms. Blackburn. She submits that to return the respondent to the jurisdiction of the Board under a conditional discharge, the applicant must demonstrate that the respondent now represents a significant threat to the safety of the public because of his mental disorder. This determination should be informed by the principles at work when a party seeks to suspend the application of conditional discharges and detention orders pending appeal. Ms. Blackburn says that the evidence adduced on the application satisfies the applicable standard and warrants the order sought.

[25] As amicus, Mr. Di Luca agrees with the standard or test proposed by Ms. Blackburn. Further, Mr. Di Luca acknowledges that the evidence adduced on the application satisfies the “significant threat” threshold. He takes no position on whether the orders sought should issue.

[26] The respondent, Daniel Furlan, says that the orders sought are academic. He is currently an involuntary patient at CAMH under provincial mental health legislation. Even if the basis upon which he is currently confined is not renewed after it expires in mid-October of this year, he intends to remain there voluntarily. Thus, he submits, there is no need for the orders.

The Governing Principles

[27] The authority invoked by the Crown is statutory, but informed by a handful of decisions by other judges of this court assigned the same task. It is helpful to begin with an examination of the enabling statutory authority before mining the available precedents for further assistance.

The Statutory Provisions

[28] Section 672.54 of the Criminal Code describes the dispositions that may be made by a court or Review Board after a disposition or review hearing has been held. The section lists four factors that must be considered by the court or Board in reaching its decision:

• the need to protect the public from dangerous persons;

• the mental condition of the accused; and

• the reintegration of the accused into society; and

• the other needs of the accused.

The section directs the court or Board to make the listed disposition that is the least onerous and least restrictive to the accused.

[29] The available dispositions include absolute and conditional discharges and detention orders. What divides absolute discharges, on the one hand, and conditional discharges and detention orders on the other, is whether the accused is a significant threat to the safety of the public. An accused who is not a significant threat to the safety of the public is entitled to an absolute discharge under s. 672.54(a). An accused who is a significant threat to the safety of the public is entitled to the least onerous and least restrictive conditional discharge or detention order.

[30] A disposition comes into force when it is made unless the court or Board orders otherwise and it remains in force until the Board holds a hearing to review the disposition and makes another disposition: Criminal Code, s. 672.63.

[31] Any party may appeal against the disposition made by a court or a Review Board on any ground of appeal that raises a question of law or fact alone or a question of mixed law and fact: Criminal Code, s. 672.72(1). The appeal is to be based on a transcript of the proceedings before the court or Board and “any other evidence that the court of appeal finds necessary to admit in the interests of justice”: Code, s. 672.73(1). Section 672.73(2) incorporates by reference the provisions of ss. 683(1) and (2) concerning the reception of fresh or further evidence on appeal.

[32] When a notice of appeal is filed against an absolute discharge, s. 672.75 suspends the application of the absolute discharge pending the determination of the appeal. In R. v. Kobzar, 2012 ONCA 326, 110 O.R. (3d) 670, a majority of this Court concluded that the words “paragraph 672.54(a)” in s. 672.75 offend ss. 7 and 9 of the Charter and are not saved by s. 1. Thus those words, which refer to an absolute discharge, are of no force and effect. The declaration of invalidity has been suspended until March 31, 2014 and the Crown instructed to bring an application, as here, if it seeks an order suspending an absolute discharge and replacing it with another disposition pending the determination of the appeal from the absolute discharge.

[33] Where an appeal is taken against the disposition, any party who gives notice to each of the other parties involved, may apply to a judge of the court of appeal for an order under s. 672.76(2) respecting a disposition that is under appeal. The language of the section is discretionary, permitting any of the listed orders to be made only if the judge is satisfied that the mental condition of the accused justifies it. Among the orders that may be made under s. 672.76(2)(c), where the application of an absolute discharge has been suspended, is “any other disposition … that is appropriate in the circumstances” other than an absolute discharge or treatment disposition under s. 672.58.

[34] Where the application of a disposition from which an appeal has been taken is suspended, s. 672.77 revivifies the disposition in effect immediately before the disposition under appeal was made pending the determination of the appeal, unless another disposition is ordered under s. 672.76(2)(c).

The Authorities

[35] From the few precedents that the industry of Ms. Blackburn has been able to unearth, several principles emerge.

[36] First, the principal purpose of s. 672.76 is to suspend the application of dispositions as a result of changes in the circumstances which may make compliance with the disposition pending appeal inappropriate: Penetanguishene Mental Health Centre (Administrator) v. Ontario (Attorney General) (2001), 2001 24036 (ON CA), 154 C.C.C. (3d) 187 (Ont. C.A. – Ch’rs), at para. 7.

[37] Second, the applicant bears the onus under s. 672.76 to demonstrate that there are compelling reasons to doubt the validity or soundness of the disposition made by the Board as it relates to the mental condition of the accused: Conway v. Brockville Psychiatric Hospital (1994), 1994 8781 (ON CA), 18 O.R. (3d) 27 (Ont. C.A. – Ch’rs), at p. 29; Northeast Mental Health Centre v. Rogers, 2007 ONCA 561 (Ch’rs), at para. 9; Penetanguishene Mental Health Centre, at para. 7. The provisions of s. 672.76 should only be invoked in extraordinary circumstances: Conway, at p. 29, Rogers, at paras. 9, 16-17.

[38] Third, the remedies available under s. 672.76 are not limited to cases in which a change in circumstances has occurred between the date on which the disposition under appeal was made and the time at which the application under s. 672.76 has been brought: Rogers, at para. 11.

[39] Fourth, the decision on an application under s. 672.76 is influenced by contextual considerations including all the provisions of Part XX.1, the specific provisions under consideration, and the extent of the authority of the Board: Rogers, at para. 15.

The Principles Applied

[40] The bipartite nature of the order the Crown seeks on this application requires consideration of two issues:

i. whether the application of the absolute discharge should be suspended; and if so,

ii. whether a conditional discharge should be ordered pending the determination of the appeal against the absolute discharge.

For all practical purposes, both issues fall to be decided on the application of the governing principles to the evidence of the respondent’s mental condition as disclosed by his words and conduct after the Board ordered his absolute discharge.

[41] The analysis must begin with the presumption that the Board’s order of an absolute discharge was correct. The Board is an expert tribunal whose business is to conduct disposition and review hearings of mentally disordered accused. The order the Board made is an order that the Criminal Code requires absent a finding that the accused represents a significant threat to the safety of the public. In accordance with the position of the parties at the hearing, and the evidence adduced there, the Board concluded that the respondent did not then represent a significant threat to the safety of the public. In those circumstances, the only available disposition was an absolute discharge.

[42] The presumption of validity or correctness of the order under appeal is rebuttable. Sometimes, an applicant may be able to identify an error in the Board’s reasons. That is not the case here. In this case, the full weight of the applicant’s burden falls to be discharged on the basis of the evidence about the respondent’s mental condition since the Board ordered his absolute discharge.

[43] Deprived of reliance on the automatic suspension of the application of the absolute discharge for which s. 672.75 provides on filing the notice of appeal, the Crown relies on the evidence collected since the discharge was directed to demonstrate compelling reasons to doubt the correctness of the decision.

[44] Where fresh evidence provides the wherewithal to set aside the disposition, it seems to me that a chambers judge should be satisfied that the evidence would qualify for admission on appeal under s. 672.73(1) and the incorporation by reference of the general principles in ss. 683(1)and (2) by s. 672.73(2).

[45] In my respectful view, the material submitted in support of this application would qualify for admission as fresh evidence on the appeal against the absolute discharge. As evidence of what has taken place after the Board directed the absolute discharge, this evidence could not have been obtained with the exercise of due diligence at the review hearing. The evidence, which includes admissions by the respondent and expert opinion about his mental condition and whether he currently represents a significant threat to the safety of the public is reasonably capable of belief and bears on the critical issue of “significant threat”. Further, if the evidence were believed, and it is unchallenged, when taken with the balance of the evidence, it could reasonably affect the result at the hearing.

[46] In the result, I am persuaded that the applicant has satisfied the test for an order suspending the application of the absolute discharge pending determination of the appeal.

[47] To achieve its second goal, the direction of a conditional discharge pending the determination of the appeal, the applicant must establish that:

i. the mental condition of the respondent justifies it; and

ii. a conditional discharge is “appropriate in the circumstances”

[48] In my respectful view, the clause, “if satisfied that the mental condition of the accused justifies it”, in s. 672.76(2), on its own, but more particularly in combination with the phrase, “appropriate in the circumstances” in s. 672.76(2)(c), requires the applicant to demonstrate, in light of the factors described in s. 672.54 of the Criminal Code:

i. that the respondent is a significant threat to the safety of the public; and

ii. that a discharge subject to conditions is the least onerous and least restrictive disposition to the respondent.

[49] With the exception of the respondent, the parties agree that the evidence adduced on the application and proposed for admission on appeal establishes the “significant threat” requirement. I agree. Indeed, the evidence permits of no other rational conclusion.

[50] I am equally satisfied that, when consideration is given to:

i. the need to protect the public from dangerous persons;

ii. the mental condition of the respondent;

iii. the reintegration of the respondent into society; and

iv. the other needs of the respondent,

the conditional discharge proposed is the least onerous and least restrictive disposition to the accused in the circumstances of this case.

CONCLUSION

[51] It is for these reasons that I concluded that the application of the absolute discharge directed by the Board on April 23, 2013, should be suspended and a conditional discharge should be directed pending the determination of the appeal.

Released: October 11, 2013 (“D.W.”)

“David Watt J.A.”