COURT OF APPEAL FOR ONTARIO

CITATION: Piscopo (Re), 2014 ONCA 19

DATE: 20140110

DOCKET: C56921

Doherty, Feldman and MacPherson JJ.A.

IN THE MATTER OF: Luigi Piscopo

AN APPEAL UNDER PART XX.1 OF THE CODE

Joseph Di Luca, Amicus Curiae

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

Dena Bonnet, for the respondent, the Attorney General of Ontario

Heard and released orally: December 13, 2013

On appeal from the disposition of the Ontario Review Board dated April 30, 2013.

ENDORSEMENT

[1] The appellant was found not guilty by reason of insanity of second degree murder of his wife in 1986.

[2] At his latest Ontario Review Board (ORB) hearing, for reasons dated April 30, 2013, the appellant’s detention was continued in the General Forensic Unit of the Centre for Addiction and Mental Health (“CAMH”) in Toronto. The disposition stipulated that the hospital may permit him to live in the community, continuing a condition of the previous disposition.

[3] The appellant currently lives in the community where he has been cared for by the same Assertive Community Treatment (ACT) team for the last ten years. He visits the team to receive his medication on weekdays and they come to his residence on weekends to ensure that he does take the medication. He requires the medication to prevent lapsing into a psychotic state where he could become delusional and homicidal.

[4] The only witness at the hearing was his treating psychiatrist, Dr. Duff. She testified that the appellant remains a significant threat to the safety of the public. She also gave the opinion that a conditional discharge was not an appropriate disposition: unlike a custody order, it would not allow for the appellant to be apprehended quickly and returned to hospital in the event that he were to go off his medication. Under a conditional discharge, there would likely be a delay or police intervention as the appellant could only be returned to hospital under the Criminal Code, R.S.C. 1985, c. C. 46 (for breach of condition) or under the Mental Health Act, R.S.O. 1990, c. M. 7 (if he became a danger to himself or others).

[5] The Board accepted Dr. Duff’s evidence and concluded:

Having heard the evidence and considered the exhibit and the submissions of the parties, the panel unanimously concludes that the accused remains a significant threat to the safety of the public. He suffers from a major mental illness, remains delusional even when medicated, and has no insight into his illness, the continued need for anti-psychotic medication, the seriousness of the index offence, and other risks he poses to public safety if not medication compliant. He reluctantly complies with the requirement that he take his medication, decompensates rapidly when unmedicated, and is quick to become angry if frustrated. The panel adopts the rationale for the conclusion of significant threat to public safety cited above in the hospital report and the evidence of Dr. Duff.

The panel does not find the suggestion of a discharge on conditions to be realistic at the present time. Mr. Piscopo is incapable to consent to treatment and has stated that he would discontinue medication if not compelled to take it. Further, the panel is persuaded that the hospital continues to need the ability to admit Mr. Piscopo into the hospital quickly as a result of his rapid rate of decompensation when unmedicated or partially medicated, to control his housing, and to ensure that the administration of his anti-psychotic medication is supervised by medical professionals. The evidence establishes that a discharge on conditions would be insufficient to maintain the level of supervision required, to ensure his quick re-admission to hospital, and to determine appropriate accommodation. Accordingly, having considered the factors set out in s. 672.54 of the Criminal Code, the panel unanimously concludes that continuation of the present detention order in all respects remains appropriate as the least onerous and least restrictive disposition in the present circumstances.

[6] Mr. DiLuca, acting as Amicus before this court,argues that the appropriate disposition here was a conditional discharge. He submits that the Board erred in its conclusion that the detention order is the least onerous and least restrictive order and necessary to maintain sufficient control of the appellant. His overall submission is that the Board could have crafted conditions in a conditional order that effectively mirrored the conditions of the detention order.

[7] We do not agree. Dr. Duff made it clear that if the appellant were to stop taking his medication and decompensate, the methods for apprehending him under the Criminal Code or under the Mental Health Act are not sufficient to get him back to the hospital quickly enough to address his condition.

[8] In our view, the Board made no error in its conclusion that a detention order was the least onerous and least restrictive order that could be made for the appellant at this time.

[9] The appeal is therefore dismissed.

“Doherty J.A.”

“K. Feldman J.A.”

“J.C. MacPherson J.A.”