COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Capano, 2014 ONCA 599

DATE: 20140819

DOCKET: C56540

Epstein, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rocco Capano

Appellant

Rocco Capano, acting in person

Erin Dann, appearing as amicus curiae

John C. Pearson, for the respondent

Heard: January 24, 2014

On leave to appeal and appeal from the judgment of Justice Faye E. McWatt of the Superior Court of Justice dated December 28, 2012 dismissing an appeal from summary conviction decision of Justice Bruno Cavion, of the Ontario Court of Justice dated May 13, 2004.

Epstein J.A.:

INTRODUCTION

[1] The appellant, Mr. Capano moves for leave to appeal, and if leave is granted, appeals the summary conviction appeal decision of McWatt J., dated December 28, 2012. The summary conviction appeal judge dismissed an appeal from Cavion J.’s determination on May 13, 2004, that Mr. Capano was not criminally responsible on account of mental disorder pursuant to s. 16 of the Criminal Code, following his conviction on March 19, 2004, of the offence of breaching a term of his probation order.

[2] The relevant chronology is as follows.

[3] On April 17, 2003, Mr. Capano was found guilty of criminal harassment and attempting to obstruct justice. Following the guilty findings, the presiding judge, Wolski J., ordered a pre-sentence report (“PSR”) and a psychiatric assessment of Mr. Capano under s. 22 of the Mental Health Act R.S.O. 1990 c. M.7. The PSR and the report of psychiatrist Dr. Gojer were before Wolski J. on September 19, 2003, when Mr. Capano returned before him. The evidence indicated that Mr. Capano suffered from a major mental illness for which he was refusing treatment, that he may be a serious risk to the public and that his family was afraid of him.

[4] Justice Wolski dismissed the Crown’s application under 672.12(3)(b) of the Criminal Code for an assessment of Mr. Capano’s mental condition (an “NCR assessment”). Taking into consideration the time Mr. Capano had spent in pre-trial custody, Wolski J. suspended sentence and ordered 12 months’ probation. The probation order contained a number of terms intended to address Mr. Capano’s long-standing mental health problems, including the requirement that he attend at the Centre for Addiction and Mental Health (“CAMH”) for a mental health assessment within 48 hours of his release “as directed by probation”. This decision was not appealed.

[5] Mr. Capano failed to attend at CAMH and was charged in November 2003 with breach of the probation order. He pleaded not guilty to this offence. Through counsel, Mr. Capano admitted he had not attended at CAMH but argued that he had a reasonable and lawful excuse for having failed to comply with the probation order. At the outset of the trial on the charge of breach of probation, the Crown advised Cavion J. that he would be seeking an NCR assessment if Mr. Capano were found guilty of the offence charged.

[6] At Mr. Capano’s trial, his assigned probation officer and a second probation officer testified about their meeting with Mr. Capano at which he was directed to attend at CAMH and discussed the two reasons Mr. Capano advanced for refusing to do so. First, he believed that the probation order was invalid as it had not been signed by Wolski J. Second, Mr. Capano was of the view that the order was under appeal. There was no truth to either assertion. The probation officers also described Mr. Capano’s behaviour toward the end of the meeting during which he claimed he had metal detectors and recording devices implanted in his body and was under surveillance.

[7] A copy of the PSR ordered by Wolski J. was entered as an exhibit. The report contained hearsay evidence of Mr. Capano’s mental state and highlighted his family’s concerns about his stability such that they had “beg[ged] the court” to order Mr. Capano to undergo psychiatric assessment and obtain treatment.

[8] The defence did not call evidence. Defence counsel argued that a reasonable person would read the probation order as requiring Mr. Capano not only to attend at CAMH but also to take any recommended medication or treatment. The defence argued that the latter term, which could compel Mr. Capano to take medication or undergo psychiatric treatment against his will, was illegal. If the order could be reasonably interpreted as illegal on that basis, Mr. Capano would have had a reasonable excuse for non-compliance.

[9] The trial judge rejected Mr. Capano’s argument and concluded that there was no reasonable excuse for his failure to comply with the probation order.

[10] After the finding of guilt, the Crown applied pursuant to s. 672.11(b) of the Code, for an NCR assessment. Mr. Capano opposed the application. The Crown again relied on the evidence of the two probation officers, described above. The Crown also relied on the psychiatric report of Dr. Gojer, prepared following his assessment of Mr. Capano in June 2003.

[11] Justice Cavion granted the order. Mr. Capano was detained for assessment at CAMH and examined by Dr. Ian Swayze, a psychiatrist, who provided a report dated May 7, 2004.

[12] At the NCR hearing, Dr. Swayze testified and his report was entered as an exhibit. The court also had the evidence from the trial of the index offence and from the NCR assessment hearing. Mr. Capano testified on his own behalf.

[13] Justice Cavion’s decision, given orally at the conclusion of the hearing, was as follows:

Upon hearing the evidence of Doctor Swayze and upon hearing the evidence of Mr. Capano, who testified against Counsel’s advice, and upon hearing the submissions of counsel, I have to conclude that Mr. Capano is, indeed, not criminally responsible because of his mental disorder, and as a result, a Warrant of Committal is signed right now.

[14] Upon hearing these reasons, Mr. Capano’s counsel immediately asked the trial judge to clarify under which branch of the second part of the test for criminal responsibility he had found Mr. Capano NCR. The trial judge’s response was limited to the following: “[h]e is not criminally responsible because of his mental disorder.”

[15] By the time this finding was made, Mr. Capano had served more than five months in custody. Since then - May 13, 2004 - Mr. Capano has been under the jurisdiction of the Ontario Review Board (the “ORB”). He resides in the community with his parents under a community-based detention order.

[16] On September 28, 2012, K. Campbell J. granted Mr. Capano an extension of time to appeal the decision of Cavion J. finding Mr. Capano NCR.

[17] Justice McWatt heard the summary conviction appeal and in her endorsement of December 28, 2012, dismissed the appeal.

[18] For the reasons that follow, I would grant leave to appeal from the decision of the summary conviction appeal court and allow the appeal.

REASONS OF SUMMARY CONVICTION APPEAL JUDGE

[19] Before the summary conviction appeal judge, Mr. Capano effectively raised four grounds of appeal in support of his position that the trial judge erred in finding him NCR. All were dismissed.

[20] Mr. Capano, relying on R. v. Swain, 1991 CanLII 104 (SCC), [1991]1 S.C.R. 933, argued that his rights under s. 7 of the Canadian Charter of Rights and Freedoms had been infringed when the Crown raised the NCR issue in advance of a finding of guilt.

[21] The appeal judge rejected this argument. She noted that Mr. Capano had conceded his failure to comply with the probation order and that, although the probation officers testified at trial about Mr. Capano’s bizarre behaviour, no psychiatric evidence was led by the Crown. The probation officers’ evidence about Mr. Capano’s explanations to them was relevant to the issue of whether he had a reasonable excuse for failure to attend at CAMH. Furthermore, Mr. Capano’s trial counsel had not objected to the manner in which the trial proceeded.

[22] Mr. Capano also submitted that the trial judge erred in ordering an NCR assessment. The appeal judge did not accept this argument. She found that there was ample evidence to support an assessment, including the evidence of the probation officers about Mr. Capano’s strange behaviour when they met with him shortly before he committed the breach.

[23] The appeal judge also did not agree with Mr. Capano’s argument that the trial judge had applied the wrong test in finding him NCR, as well as his argument that the finding was unreasonable. She found that Dr. Swayze’s evidence, bolstered by Mr. Capano’s own testimony, provided a reasonable basis for the NCR finding and that the correct legal test had been applied.

[24] Finally, Mr. Capano argued that the trial judge’s reasons were insufficient. The appeal judge described the trial judge’s reasons in which he found Mr. Capano NCR as “somewhat ‘bare boned’”. However, relying on R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 37, 40 and 44, she concluded that, in the light of the issues, the evidence and the submissions of counsel, the reasons were sufficient.

LEAVE TO APPEAL

[25] Appeals to this court in summary conviction proceedings are not as of right. Applicants may appeal on questions of law alone and leave is required. As Doherty J.A. stated in the leading case of R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 37, while leave to appeal should be granted “sparingly”, there are two circumstances in which leave to appeal may be granted: 1) where the proposed question of law is significant to the general administration of justice, or 2) where the merits of the proposed appeal are very strong, particularly where the applicant faces “significant deprivation of his or her liberty”.

[26] While Mr. Capano submits that the appeal judge erred in refusing to find that his rights under s. 7 of the Charter were violated when the Crown raised the NCR issue in advance of a finding of guilt and erred in failing to conclude that the NCR finding was unreasonable, amicus advanced argument only with respect to whether the appeal judge erred in:

1. finding that the trial judge was justified in ordering an NCR assessment of Mr. Capano; and

2. her application of the test to assess the sufficiency of reasons.

Issue one - whether the appeal judge erred in finding that the trial judge had grounds to order an NCR assessment of Mr. Capano.

[27] I note that Mr. Capano did not put his mental capacity for criminal intent into issue. Crown counsel sought an assessment under s. 672.11(b) of the Code, in accordance with s. 672.12(3)(b).

[28] Section 672.11 sets out the legitimate purposes for which an assessment may be ordered. Section 672.11(b) provides:

A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1)…

[29] When, as here, the Crown attempts to invoke the procedure, s. 672.12(3) applies:

Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

[30] Amicus submits that the trial judge’s finding that the probation officers’ evidence supported his conclusion that an assessment was warranted is not supported by the record. While the probation officers’ evidence provided the trial judge with grounds to believe that Mr. Capano suffered from a mental disorder, it provided no assistance on the critical issue of whether there were grounds to doubt Mr. Capano’s criminal responsibility for the offence of breaching his probation order.

[31] I disagree.

[32] There was evidence available to the trial judge relevant to the determination of whether there were reasonable grounds to doubt that Mr. Capano was criminally responsible for the offence, on account of mental disorder. The trial judge had observed Mr. Capano’s outbursts in the courtroom. In addition, there was the evidence of the two probation officers about their meeting with Mr. Capano – his response to the instruction to attend CAMH and his behaviour during the meeting – as well as the pre-sentence report and the report of Dr. Gojer that pre-dated the probation order.

[33] In my view, based on this evidence, the trial judge properly concluded that the Crown had satisfied the requirements of s. 672.12(3)(b). The basis for the trial judge’s belief that there were reasonable grounds to doubt Mr. Capano’s criminal responsibility is clear.

[34] Ultimately, it must be remembered that for a judge to order an assessment under s. 672.11(b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal liability – only that there be reasonable grounds to believe that further evidence of the accused's mental condition is necessary to determine whether the accused is exempt from criminal liability.

[35] Taken together, there was sufficient evidence that Mr. Capano suffered from a mental disorder and was subject to active delusions that may well have affected his capacity to understand the probation order and his obligation to comply with its terms.

[36] In my view, the appeal judge made no error in upholding the trial judge’s conclusion to order an assessment. The trial judge referred to the appropriate test under the Code and was satisfied, as am I, that the evidence available to him was sufficient to support the exercise of his discretion to order an assessment to assist in determining whether Mr. Capano’s mental disorder provided an exemption from criminal responsibility.

[37] This ground of appeal involves a consideration of well-settled legal principles. This court is essentially being asked to use the same tools to reach a different conclusion than did the courts below. Furthermore, the merits of the appeal on this issue are far from strong. I would therefore not grant leave to appeal on this issue under either branch of the R. v. R.R. test.

Issue two – whether the appeal judge erred in concluding that the trial judge’s reasons were sufficient.

[38] In my view, this ground provides the exceptional circumstances justifying a second level of appeal.

[39] The merits of appeal on this ground appear to be very strong. I say this as, for the reasons that follow, I conclude that the appeal judge erred in holding that the trial judge’s reasons for finding Mr. Capano NCR were sufficient.

[40] The consequences of an NCR finding are serious. As Trotter J. noted in R. v. John Doe, 2011 ONSC 92, 266 C.C.C. (3d) 123, at para. 35, and again in R. v. Kankis, 2012 ONSC 378, 281 C.C.C. (3d) 113, at paras. 1 and 20, an NCR finding places individuals into a socially protective regime, accompanied by a significant deprivation of liberty.

[41] The NCR finding in this case has had this effect. Mr. Capano has been under the jurisdiction of the ORB for ten years.

[42] On this ground, I would therefore grant leave to appeal.

THE APPEAL

[43] Amicus argues that the trial judge’s reasons were insufficient, as it is impossible to determine from the record why he found Mr. Capano to be NCR. While there is no question that Mr. Capano was suffering from a mental disorder, the trial judge did not identify whether his NCR finding was based on the first or second branch of s. 16, notwithstanding defence counsel’s request for clarification. Further, amicus asserts that the evidence before the trial judge did not establish that, as a result of the mental disorder, Mr. Capano was unable to understand that his failure to adhere to the probation order by attending at CAMH was “morally wrong”.

[44] The respondent submits that the appeal judge did not err in concluding that the reasons were adequate. The record leaves no question as to the path followed by the trial judge in finding Mr. Capano to be NCR. When viewed in the context of the record, the issues and the submissions of counsel, the appeal judge’s conclusion that the trial judge’s reasons were sufficient is sound, particularly given that the matter did not involve any troublesome principles of unsettled law or contradictory evidence on key issues.

Legal Principles

(i) Sufficiency of Reasons

[45] In its decisions in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, the Supreme Court confirmed the duty of a trial judge to give reasons in non-jury criminal trials. Several years later, in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Court extensively reviewed the rationale for requiring reasons. Hamish Stewart in “The Trial Judge’s Duty to Give Reasons for Judgment in Criminal Cases” (2009) 14 Can. Crim. L. Rev. 19 at pp. 22-23, summarized the “distinct but related rationales” for the duty to give reasons as follows, quoting from McLachlin C.J. in R.E.M., at paras. 11-12 in part:

1. “Reasons tell the parties affected by the decision why the decision was made.… [Reasons] attend to the dignity interest of the accused, an interest at the heart of post-World War II jurisprudence”. This consideration applies equally to convictions and to acquittals: “No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered.”

2. “Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done.”

3. “Reasons permit effective appellate review.” This consideration applies equally to findings of fact and holdings of law. “A clear articulation of the factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations [based on transcripts]…. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case.”

4. Reasons “help ensure fair and accurate decision making [because] the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law.”

5. Reasons “are a fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis.” A decision supported by inadequate reasons provides little or no insight into the principles that the decision is supposed to reflect and therefore is of little assistance as a precedent.

[46] As Professor Stewart notes, at p.23, the Supreme Court identifies the first three rationales as “main” or “critical”. These reasons for reasons, so to speak, also inform the basic requirements for reasons. Reasons must satisfactorily perform three key roles – explain to the parties why the decision was made, provide accountability to the public and permit appellate review: R.E.M., at paras. 11, 15.

[47] The three rationales give rise to a single analysis by the appellate court of the sufficiency of the trial judge’s reasons. In R.E.M., at para. 37, McLachlin C.J. stated:

The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions the “why” for the verdict — are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.

[48] The analysis turns on whether the reasons, read in their full context, show that the trial judge, in reaching the decision, grappled with the “live issues”. In R.E.M., at para 43, McLachlin C.J. wrote:

[W]hat is required is that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the judge has seized the substance of the matter.

[49] In Sheppard, R.E.M., and related decisions, the Supreme Court offered further guidance for analyzing the sufficiency of reasons.

[50] First, when assessing the sufficiency of reasons, context is critical – the entire record, including the evidence and the submissions of counsel, are relevant considerations. In R.E.M., at para. 15, McLachlin C.J. instructed that reviewing courts are to take a “functional context-specific approach” to the adequacy of reasons. Where the record discloses all that an appellate court needs to know to understand the basis upon which a decision was reached, less detailed reasons may be required: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 101. In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25, the Supreme Court instructed that “[t]he inquiry [of the appellate court] should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel”.

[51] Second, a deficiency in reasons does not, alone, provide a free-standing ground of appeal. An appellant must show that the alleged deficiency in the reasons has “occasioned prejudice to the exercise of his or her legal right to an appeal”, meaning that the reasons are so deficient that they foreclose meaningful appellate review: Braich, at para. 31 and Dinardo, at paras. 24-25.

[52] Finally, if the trial judge’s reasons are deficient, the reviewing court must examine the evidence and determine whether the reasons are, nonetheless, patent on the record. However, this exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge. Where the trial judge’s reasoning is not apparent from the reasons or the record, the appeal court ought not to substitute its own analysis for that of the trial judge: Dinardo, at para. 32.

(ii) NCR Test

[53] Section 16(1) of the Code provides that:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[54] The Crown was required to adduce evidence to meet the two-pronged test in s. 16(1), that at the time the index offence was committed:

1. the accused suffered from a mental disorder (or disease of the mind). As Doherty J.A. affirmed in R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 60, a “disease of the mind” is “a legal and not a medical concept, the purpose of which is normative, not diagnostic”; and

2. the accused’s mental disorder rendered him incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[55] The first branch of the second element of the NCR test, “incapable of appreciating the nature and quality of the act”, refers to the physical consequences of the act: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24.

[56] Concerning the second branch of the second element of the NCR test, “incapable … of knowing that [the act or omission] was wrong”, the Supreme Court explained in R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at p. 518, that “[t]he crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.” As stated by the Supreme Court in Oommen, at p.520, wrong in the second branch means “wrong having regard to the everyday standards of the ordinary person.” In R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484, at para. 5., this Court identified the Oommen concept of wrong as meaning “wrong according to the ordinary moral standards of reasonable members of the community.”

Application of Legal Principles

[57] The trial judge’s reasons, set out above, amount to the following. He concluded that the Crown, based on the evidence of Dr. Swayze and Mr. Capano and on the submissions of counsel, had proved on a balance of probabilities that Mr. Capano was NCR under s. 16 of the Code. The trial judge’s response to defence counsel’s request for clarification was that he found Mr. Capano NCR due to his mental disorder.

[58] There was no issue as to whether Mr. Capano was suffering from a mental disorder at the time he breached a term of his probation. He suffered from paranoid schizophrenia with related delusions.

[59] However, s. 16 is not triggered solely because an accused suffers from a mental disorder that causes his criminal conduct. Section 16 applies only if the mental disorder has one of two effects. The mental disorder must render the accused incapable of appreciating the nature and quality of the criminal act he committed. Or, it must render the accused incapable of knowing that the act was wrong in the Oommen sense.

[60] Both branches were at issue in this case, although it was clear from Dr. Swayze’s evidence that his opinion that Mr. Capano was NCR was based primarily on the second branch. Under cross-examination, Dr. Swayze testified as follows:

Q. Okay. Now, just so we’re clear, you’d agree that there’s, essentially, two prongs to the NCR defence. One is that he suffers from a disease of the mind?

A. Correct.

Q. And the other is that somehow that disease of the mind sort of negates his criminal liability - -

A. Correct.

Q. - - his criminal responsibility? And really, in that second test there’s really two different angles you can take to arrive at that conclusion, right?

A. Yes, you can determine if the person was unable to appreciate the nature or quality of their actions, and I suppose you could interpret that that may be applicable to Mr. Capano. I think the greater emphasis is on his lack of understanding that he was morally and legally obligated to follow this document, and so breached that believing that he was not doing so.

Q. And now, I gather from your testimony thus far, you’re of the opinion that the way he gets to being found not criminally responsible is really through the second branch of that second test, not knowing whether it’s wrong?

A. Correct.

[61] I would agree with the respondent that the record supports the conclusion that the trial judge found Mr. Capano NCR under the second branch of the second element of the test. This conclusion means that the trial judge had to address the important issue of the way – if any – in which Mr. Capano’s mental disorder rendered him incapable of knowing that failure to adhere to the probation order was wrong according to the ordinary moral standards of reasonable members of the community.

[62] The evidence demonstrated that Mr. Capano knew that the probation order required him to attend CAMH but he believed that he had a legal defence to compliance with the order.

[63] Given this evidence, there were at least two ways in which Mr. Capano could have been found to be NCR, pursuant to the second branch.

[64] First, it could have been found that Mr. Capano’s mental disorder rendered him incapable of knowing that breaching a valid probation order was wrong, according to ordinary moral standards.

[65] Second, it could have been found that Mr. Capano’s mental disorder rendered him incapable of accepting that the probation order was valid. That is, it was Mr. Capano’s mental disorder – and not rational thought – that led him to believe that the probation order was legally flawed. If so, Mr. Capano’s inability to accept the validity of the probation order would make him incapable of knowing that breaching that order was wrong.

[66] This second possibility is akin to the situation in Oommen. In Oommen, the accused killed a friend who was sleeping in his apartment. A delusion had convinced the accused that if he did not kill the victim, she would kill him. The accused believed that he had a legal and moral justification – self-defence – to commit an act that he knew in the abstract to be wrong. McLachlin J. held that the accused’s comprehension of society’s views on right and wrong did not necessarily prevent a finding of NCR under s. 16(1). She found, at pp. 522-523, that “[t]his delusion would have deprived the accused of the ability to know that his act was wrong; in his eyes, it was right.”

[67] The evidence concerning whether Mr. Capano’s belief that the probation order was invalid stemmed from delusion, as opposed to rational – if flawed – thinking, was unclear.

[68] On the one hand, at the meeting that took place the day before he was charged, Mr. Capano presented his opinion on the probation order’s validity to the probation officers and then proceeded to exhibit some very bizarre behavior. Further, Dr. Swayze’s expert opinion was that Mr. Capano’s views on the probation order were delusional and “a direct result of … psychotic disorder and its associated symptoms”.

[69] On the other hand, there was evidence that Mr. Capano had successfully defended against a previous charge of breach of probation because the previous probation order had been improperly drafted. Further, a belief that a probation order is flawed seems more likely to be based in rational thought than, for instance, a belief that killing a sleeping friend can be justified in self-defence.

[70] The trial judge did not expressly resolve this conflicting evidence or make a specific finding as to whether Mr. Capano’s belief that the probation order was invalid stemmed from his mental disorder.

[71] Such findings might be necessarily inferred from the trial judge’s conclusion that Mr. Capano was NCR but for the fact that the trial judge had another path to NCR. That is, in accordance with the first path discussed above, it could have been found that Mr. Capano’s mental disorder rendered him incapable of knowing that breaching a valid probation order was wrong, according to ordinary moral standards.

[72] Crucially, the respondent has not identified any evidence that would support a finding of NCR under this first path. Dr. Swayze acknowledged that he had not considered whether Mr. Capano was unable by reason of his mental illness to understand that he had a moral obligation to comply with the probation order:

Q. Now, you indicate at the bottom of page five: “He believed that the probation order was not signed, so invalid.”

A. Yes, he stated that to me.

Q. Would you agree with me that that shows an understanding that people are required, or that he would be required to comply with that probation order if the probation order were valid?

A. Well, I think you can say with great certainty that if Mr. Capano believed that, (a), it had been signed, (b), there was not this special clause, and, (c), that there was not some special appeal process in place, that he would have been obliged to follow through with it; however, those delusional beliefs were present, continue, I believe they likely would be present at the moment if he was canvassed, and as such, it was invalid.

Q. - - that nullifies or allows – sorry – on page six you indicate that he believes there’s a clause that nullifies the obligations?

A. Yes.

Q. I believe earlier – and I’m trying to find it as I read – that you indicate that there’s some sort of clause that allows some sort of variation to be made to the probation order? Are you talking about the same clause there? Is that what you’re talking about on page six?

A. Well, it sort of – it kind of went between the two delusional beliefs and it didn’t really coalesce. He would speak of the – this clause, which he was never specific about, at one time nullifying, at another time implying either the clause allowed for a variation, which presumptively would be that he is not required to go to the Centre for Addiction and Mental Health, or that the appeal was somehow allowing for a variation of his probationary order. There’s a blurring between those two delusional beliefs, and it really couldn’t come out with clarity, they sort of crossed over at times.

Q. Okay. But the clause that you’re referring to on page six, is that the clause that you mentioned earlier regarding the ability to obtain a variation to the probation order?

A. Well, it in some way allowed him to ignore specific portions, if not the entire document. That was the essence of Mr. Capano’s understanding, that there was some clause included in the probationary order which either entirely nullified it or allowed him to modify it in some way that he was not obliged to follow it. It fluctuated, and again, Mr. Capano, once you – I’m not sure if the court has heard from Mr. Capano, he really speaks in, again, legalese, and I would characterize that as terms which may or may not have any legal validity. They may be accurate or inaccurate. He goes at great length. He speaks of the Constitution, et cetera. So at times it’s somewhat confusing, and I wish I could be more clear as to whether this clause entirely nullified or nullified portions of it, allowed for variations. Suffice it to say, it removed his requirement to present to the Clarke, and that was beyond dispute during our discussion.

Q. Now, I don’t see anywhere in your report, Doctor, and maybe you can correct me if I’m wrong, did you deal with the issue of moral culpability with Mr. Capano?

A. Meaning?

Q. Meaning, it appears from your report that he seems to be of the view that he’s not legally bound by this probation order - -

A. That’s correct.

Q. - - is that fair to say? He seems to feel, at least as I read your report, that he feels he was legally justified not to follow this probation order?

A. Yes.

Q. Okay. So he feels he had a legal defence to this charge of breach of probation?

A. Yes, he believes - I would have believed again that if he - and he may speak, I don’t know - if he was asked, he would simply say that there was no breach because – again, I’m speculating, I don’t want to speak on behalf of Mr. Capano, but I would anticipate that his description would be that he didn’t, in fact, breach and he would once again reiterate the reason why that occurred, and he would expect His Honour to review the probationary order and say, “Yes, you’re correct,” and the charge would be withdrawn.

Q. So it appears to be that he didn’t think he was doing anything legally wrong?

A. Yes.

Q. Did you ever canvass or explore the difference between believing that something was legally wrong, as opposed to believing that something was morally wrong?

A. No, I don’t believe so.

[73] Given the two possible ways in which Mr. Capano’s mental disorder may have affected his ability to understand that failing to report to CAMH was wrong, it was critical that the trial judge analyze and resolve how he found Mr. Capano NCR. The trial judge, in his reasons, did not indicate that he analyzed, let alone resolved, this issue, leaving the route by which he arrived at the NCR decision, unclear.

[74] And, it is not appropriate for this court to attempt to discern that route and explain it. I refer back to Dinardo where, at para. 32, the Supreme Court instructs that where a trial judge’s reasoning is not apparent from the reasons or the record, an appellate court is not entitled to substitute its own analysis for that of the trial judge.

Conclusion

[75] In short, in my view, the reasons, read in the context of the record and the submissions on the live issues in the case, do not show that the trial judge seized the substance of the matter - do not indicate the foundation for his conclusion that Mr. Capano, by reason of his mental disorder, was incapable of knowing that his failure to report to CAMH was wrong.

[76] As a result, Mr. Capano has been deprived of the right to meaningful appellate review. The reasons therefore constitute an error in law and as a result I am of the view that the finding cannot stand.

[77] Given this conclusion, it is not necessary to address the other arguments advanced by Mr. Capano.

Additional comment

[78] Professor Stewart, at p. 31, expresses the view that, following R.E.M., it would appear that the only standard that reasons must satisfy is that, considered in context and having regard to the record as a whole, they allow for meaningful appellate review. The Supreme Court reiterated the focus on meaningful appellate review in its recent decision of R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10.

[79] In my view, the Supreme Court’s focus on meaningful appellate review in the legal analysis for sufficiency of reasons does not mean that the other “reasons for reasons” are no longer of any moment. Nothing the Court has said indicates a retreat from the five above-noted “distinct but related rationales” for the duty to give reasons, set out in R.E.M., particularly the first three, identified in R.E.M. as “crucial”.

[80] I make this observation as I am of the view that in cases such as this, in which the person most affected by the trial judge’s conclusion is vulnerable and is involved in a process in which he faces the loss of his liberty for an indefinite period of time, particular attention must be given to ensuring that the reasons fulfill the first rationale – that they tell the accused why the decision was made. In these circumstances, focusing on the first rationale is a way of contributing to the right of individuals such as Mr. Capano to access to justice and to their right to accommodation for their disability.

[81] I note that in the recent decision in Schutzman (Re), 2012 ONCA 229, [2012] O.J. No. 1582, a case involving a person with a mental disability, this court acknowledged the importance of the appellant’s being able to clearly understand from the reasons themselves why his position was not accepted. Although this court ultimately concluded that the ORB had provided sufficient reasons for its disposition, the observation was made, at para. 5, that: “[i]n a case like this, where a less restrictive outcome is fully discussed at the hearing but not ordered, the person concerned should be able to understand clearly from the reasons themselves why it was rejected.”

DISPOSITION

[82] For these reasons, I would grant leave to appeal and allow the appeal. I would set aside the finding that Mr. Capano was NCR for breach of probation and order a new trial.

[83] Of course, it is up to the Crown to consider the passage of time and other circumstances and determine whether a new trial is in the interests of justice.

Released: August 19, 2014 (GE)

“Gloria Epstein J.A.”

“I agree K. van Rensburg J.A.”

“I agree G. Pardu J.A.”