COURT OF APPEAL FOR ONTARIO

CITATION: Capano (Re), 2013 ONCA 737

DATE: 20131205

DOCKET: C57059

Cronk, Watt and van Rensburg JJ.A.

IN THE MATTER OF: Rocco Capano

AN APPEAL UNDER PART XX.1 OF THE CODE

Her Majesty the Queen

and

Centre for Addiction and Mental Health

Respondents

and

Rocco Capano

Appellant

Rocco Capano, in person

Paul Burstein, amicus curiae

Andreea Baiasu, for the Attorney General for Ontario

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

Heard and released orally: December 2, 2013

On appeal against the disposition of the Ontario Review Board, dated May 6, 2013.

ENDORSEMENT

[1] Mr. Capano appeals the disposition of the Ontario Review Board, dated May 6, 2013, ordering that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health (the “Hospital”), with conditions that permit him to live in the community in accommodation approved by the Person in Charge of the Hospital. A similar community-based detention order was imposed by the Board in 2011 as a result of Mr. Capano’s annual review that year.

[2] The Hospital and the Attorney General for Ontario support the Board’s disposition, arguing that it is fully grounded in the evidence, that it is reasonable, and that it is the least onerous and least restrictive disposition in the circumstances.

[3] In his factum, Amicus has helpfully outlined the history and the facts underlying the Board’s disposition, as well as what he understands to be the grounds for the appellant’s challenge of the Board’s disposition. He has further indicated, however, that having reviewed the materials filed in relation to the appeal, he is unable to further assist the appellant concerning his appeal.

[4] In his notice of appeal as supplemented by his oral submissions, Mr. Capano essentially argued that: (1) the Board erred by finding that he poses a significant threat to the public’s safety; (2) the Board’s disposition is neither reasonable nor the least onerous and least restrictive disposition; and (3) the Board erred by failing to discharge him absolutely or, in the alternative, by failing to discharge him subject to conditions.

[5] We reject these submissions.

[6] Mr. Capano has been diagnosed as suffering from schizophrenia of a paranoid type. There was uncontroverted evidence before the Board that he lacks insight into his mental illness (indeed he has denied and continues to deny that he suffers from a psychotic illness), is resistant to treatment, seeks to avoid taking his prescribed anti-psychotic medications, and suffers from grandiose and persecutory delusions, as well as auditory hallucinations and disorganized thought patterns. He has been assessed by his clinical team as being at a high risk of psychotically-motivated threatening, violent or intrusive behaviour should his current structured environment be altered. The medical evidence before the Board established that, absent structure and supervision, Mr. Capano will stop taking his medications, resulting in rapid decompensation and risk to the public.

[7] Mr. Capano’s treating psychiatrist also testified that shortly before the April 2013 Board hearing, Mr. Capano continued to suffer from delusions and his clinical presentation had worsened from prior occasions. He said that to the extent that Mr. Capano had been stable in the year or so before his 2013 Board hearing, this was attributable to the structure afforded by the custodial detention order then in place.

[8] We further note that Mr. Capano has been re-admitted to the Hospital on three prior occasions due to decompensation, once while on a conditional discharge and twice while he was subject to detention orders.

[9] There was, therefore, ample evidentiary support for the Board’s finding that Mr. Capano remains a significant threat to the safety of the public.

[10] Moreover, given the evidence of Mr. Capano’s risk assessment, his history of aggressive and threatening behaviour, his continued lack of insight into his illness and his persistent efforts to avoid treatment, the Board’s rejection of an absolute discharge was inevitable. For the same reasons, its rejection of a conditional discharge and its order that Mr. Capano’s community-based detention be continued were both reasonable and firmly anchored in the evidentiary record.

[11] Nor do we see any error in the Board’s conclusion that a community-based detention order was the least onerous and least restrictive disposition in the present circumstances. That order will permit Mr. Capano’s treatment team to monitor his clinical condition and progress and his treatment compliance, and will facilitate intervention by them if necessary.

[12] Mr. Capano is concerned to provide care for his elderly parents who are themselves apparently in poor health. In our view, his commitment to care for his parents is admirable and we commend him for it. We note, however, that the Board’s disposition will permit Mr. Capano to continue to live in the community, including with his parents, so long as his clinical condition and progress justify such living arrangements and they are approved by the Hospital.

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

[14] We note that Mr. Capano has an outstanding leave application regarding his original NCR finding. Counsel for the Attorney General for Ontario has agreed to do what is possible in the circumstances to advance the progress of the leave application.

“E.A. Cronk J.A.”

“David Watt J.A.”

“K. van Rensburg J.A.”