



COURT OF APPEAL FOR ONTARIO

CITATION: Furlan (Re), 2014 ONCA 740

DATE: 20141027

DOCKET: C57275

Cronk, LaForme and Lauwers JJ.A.

BETWEEN

Person
    in Charge of

Centre
    for Addiction and Mental Health

Appellant

and

Her Majesty the Queen

Respondent

and

Daniel Furlan

Respondent

Janice E. Blackburn, for the appellant

Joseph Di Luca and Erin Dann,
Amicus Curiae

Andreea Baiasu, for the respondent Her Majesty the Queen

Daniel Furlan, respondent in person

Heard: October 21, 2014

On appeal from the disposition of the Ontario Review
    Board, dated April 23, 2013, with reasons reported at [2013] O.R.B.D. No. 1656.

By the Court:

I.        Introduction

[1]

In July 2008, the respondent, Daniel Furlan, assaulted three persons. 
    The victims included a 13-year-old boy whose arm was fractured when Mr. Furlan tried
    to throw him into the path of a moving vehicle, and a police officer whom Mr.
    Furlan assaulted in the course of resisting arrest.  On August 6, 2009, he was
    found not criminally responsible (NCR) on account of mental disorder on
    charges of aggravated assault, assault with intent to resist arrest, assault
    causing bodily harm, and assault.

[2]

Mr. Furlan was subsequently diagnosed with schizophrenia, possible
    antisocial personality disorder, and polysubstance dependence involving
    cocaine, crack cocaine, heroin, alcohol and marijuana.

[3]

Following the NCR finding, Mr. Furlan was detained at the Centre for
    Addiction and Mental Health (the Hospital) until November 2010, when he began
    to live in the community with his parents, subject to a detention order.  In
    April 2010, a majority of the Ontario Review Board (the Board) imposed a
    conditional discharge after finding that Mr. Furlan had been compliant with his
    medication, had pursued recommended rehabilitation programs, and his urine drug
    screens were negative.

[4]

At Mr. Furlans annual review hearing held on April 23, 2013, in the
    face of evidence of his continued reported progress, the Board accepted the then
    unanimous opinion of Mr. Furlans treatment team, supported by the Crown on the
    available evidence, that Mr. Furlan no longer met the threshold of significant
    risk to the safety of the public and, consequently, that he should be
    absolutely discharged.

[5]

The Hospital appeals from the April 2013 disposition of the Board
    ordering that Mr. Furlan be absolutely discharged.  It seeks an order setting
    aside the absolute discharge and substituting a conditional discharge in its
    place.

II.       Fresh Evidence

[6]

The Hospital does not challenge the reasonableness of the Boards
    absolute discharge disposition at the time made and based on the evidentiary
    record then before the Board.  Rather, the Hospital, supported by the Crown,
    relies exclusively on fresh evidence concerning Mr. Furlans post-discharge
    conduct and condition that it says undermines the Boards reasons for granting
    an absolute discharge and, in critical respects, the factual foundation for the
    Boards disposition.

[7]

The Hospitals fresh evidence consists
    of: 1) an affidavit of Dr. Padraig Darby (a practising psychiatrist and the
    Person in Charge of the Hospital for the purpose of Part XX.1 of the
Criminal
    Code
), sworn September 10, 2013; and 2) a
    further affidavit of Dr. Darby, sworn July 14, 2014.  The September 10, 2013
    affidavit was filed with this court as evidence in support of a motion to
    suspend the absolute discharge pending appeal, as heard and determined by Watt
    J.A. of this court on September 13, 2013.

[8]

The parties agree that this fresh
    evidence meets the test for admission on appeal established by s. 672.73(1) of
    the
Criminal Code
,
as discussed in
R.
    v. Owen
, 2003 SCC 33
,
at pp. 803-07.

We agree.

[9]

Amicus
seeks to counter the Hospitals fresh evidence by
    tendering additional fresh evidence on
behalf of Mr.
    Furlan, which
Amicus
submits
    contradicts or belies many of the assertions in the Hospitals fresh evidence.
Amicus
 fresh evidence consists of
    affidavits sworn by Mr. Furlan and his mother.

[10]

We are satisfied that the fresh evidence
    proffered by
Amicus
also satisfies
    the test for admission of fresh evidence on appeal.  In our view, it is in the
    interests of justice that the fresh evidence tendered by
Amicus
and the Hospital be admitted as part of the record on this
    appeal.

III.      Issue

[11]

As
    we see it, the sole issue on appeal is whether the foundation for the absolute
    discharge ordered by the Board has been shattered by the Hospitals fresh
    evidence.  The central question is whether the fresh evidence could reasonably
    have affected the outcome of the Board hearing.  For the reasons that follow, we
    conclude that the answer to this question is yes.  Consequently, a new Board
    hearing is required.

IV.     Discussion

[12]

The
    Boards decision to absolutely discharge Mr. Furlan flowed from its conclusion
    that, at the time of the Board hearing, Mr. Furlan did not pose a significant
    threat to the safety of the public.  This dispositive conclusion was based on
    the Boards acceptance of evidence before it that Mr. Furlan had good insight
    into his mental illness, [and] the importance of medication compliance and of
    abstaining from substances.  The Boards ruling also rested on undisputed evidence
    that Mr. Furlan had been fully compliant, for more than one year prior to the
    hearing, with all the terms of his conditional discharge, and had not presented
    with any symptoms of his mental illness.  Further, he had sought help when
    required and it was anticipated that he would do so in the future.

[13]

Based
    on this evidence, all parties before the Board accepted that Mr. Furlan no
    longer represented a significant risk to the safety of the public and that he
    was therefore entitled to an absolute discharge.  The Board agreed, and so
    ordered.  Indeed, once the Board concluded that Mr. Furlan did not represent a
    significant threat to the safety of the public, the only available disposition
    was an absolute discharge, as a matter of law.

[14]

The
    Hospital argues that the fresh evidence proffered by it materially undermines
    the foundation for the Boards disposition and, as a result, the fresh evidence
    could reasonably have affected the result at the Board hearing.

[15]

The
    Hospitals fresh evidence indicates that after Mr. Furlans absolute discharge
    from the Hospital:

1)

almost
    immediately, he resumed the use of drugs and alcohol, his mental condition
    significantly deteriorated, and he became psychotic, hostile, verbally
    aggressive and threatening;

2)

his
    urine samples tested positive for cannabinoids and cocaine;

3)

concerns
    about his compliance with his psychiatric medication resurfaced;

4)

he
    missed two out-patient appointments with his treating psychiatrist;

5)

he
    was admitted on two separate occasions to area hospitals in June 2013 under s.
    16 of the
Mental Health Act
, R.S.O. 1990, c. M.7 due to allegedly
    hostile and aggressive behaviour.  A urine sample taken then tested positive
    for both THC and cocaine;

6)

on
    June 26, 2013, he was transferred from a local hospital to the Hospital when
    mental health authorities invoked provincial mental health legislation to have
    him confined involuntarily.  At the hospital, he exhibited signs of mania;

7)

from
    July 2, 2013, he was civilly committed at the Hospital as likely posing a risk
    of causing serious bodily harm to others; and

8)

during
    the period July 6, 2013 to September 13, 2013, he presented on at least one
    occasion in a full manic state, requiring chemical restraint.  He also
    threatened a nurse with physical violence, refused his medication, and was
    placed in seclusion because of aggressive episodes.

[16]

As
    a result of these events, by mid-September 2013, both the Hospital and Mr.
    Furlans then treating psychiatrist  Dr. Ian Swayze  formed the opinion that
    Mr. Furlan again met the significant threat threshold and required structural
    conditions of detention in the interests of public safety.

[17]

Accordingly,
    on September 13, 2013, the Hospital moved before this court for an order
    suspending Mr. Furlans absolute discharge pending appeal, pursuant to s.
    672.76 of the
Criminal Code
.  Justice Watt, sitting in chambers, determined
    that Mr. Furlan had suffered a significant decompensation in his mental health,
    including psychosis and mania due to his resumption of alcohol and illicit
    drugs and non-compliance with his medication regime, and that he met the
    significant threat threshold.  Accordingly, he granted the Hospitals motion,
    suspended the Boards April 2013 disposition, and directed a conditional
    discharge disposition on specific terms pending the determination of this
    appeal:
Furlan (Re)
, 2013 ONCA 618; see also
R. v. Kobzar
,
    2012 ONCA 326, 110 O.R. (3d) 670.

[18]

In
    the 13 months since Watt J.A.s order, Mr. Furlan has remained under the
    jurisdiction of the Board and subject to the conditional discharge ordered by
    Watt J.A.  He was detained at the Hospital as an inpatient until February 3,
    2014, when he was discharged to outpatient status by his then Hospital
    inpatient psychiatrist, Dr. Peter Prendergast.

[19]

On
    his discharge to outpatient status, Mr. Furlan: 1) was being treated with
    antipsychotic medication (ziprasidone) and lithium, on substitute consent; 2)
    had only somewhat limited insight, according to his treatment team; and 3)
    was reluctant to consider any increases in his antipsychotic medication.

[20]

Further,
    at the time of his discharge to outpatient status, it remained the opinion of Drs.
    Prendergast and Darby that Mr. Furlan posed a significant threat to the safety
    of the public and that, absent the external obligations imposed by a Board
    disposition, Mr. Furlan would likely return to substance use and/or medication
    non-compliance and, in such a condition, would likely become volatile and
    aggressive and engage in violent behaviour.

[21]

As
    an outpatient, Mr. Furlan has been living with his family at the family home. 
    There is no dispute that he has made considerable progress.  He is employed on
    a full-time basis and is seen by his outpatient psychiatrist  Dr. Virginia
    Duff  approximately every two weeks.  He is viewed by his treatment team as
    doing well.  He denies experiencing problems or cravings for substances,
    describes his mood as steady, is on a reduced antipsychotic medication regime
    and, recently, has been regarded by Dr. Duff as capable respecting his
    psychiatric medications.  He continues to take his current antipsychotic and
    mood-stabilizer medications and has been assessed as not being an imminent
    risk of violence.

[22]

Nonetheless,
    given all the events of the last 18 months and Mr. Furlans condition and
    conduct throughout, both Drs. Duff and Darby are of the clinical opinion that
    Mr. Furlan continues to meet the significant threat threshold.  In his July 14,
    2014 affidavit, Dr. Darby explained:

In my clinical opinion, absent conditions similar to those Mr.
    Furlan is currently required to abide by, he is likely to again return to
    substance abuse and/or be noncompliant with antipsychotic medication.  It
    remains my opinion that if Mr. Furlan returns to substance use or is
    noncompliant, his mental status will likely deteriorate and he is likely to
    become increasingly volatile, aggressive and engage in behaviour similar to the
    index offences.

[23]

Mr.
    Furlan, in his affidavit, disputes this opinion, maintaining that he is
    committed to abstinence from substance abuse and compliance with his
    medications.  In addition, in her affidavit filed as part of the fresh evidence
    tendered by
Amicus
, Mr. Furlans mother now claims that she
    exaggerated Mr. Furlans aggressive and threatening behaviour following his
    April 2013 absolute discharge.

[24]

That
    said, no fresh evidence from a qualified expert has been tendered to refute the
    Hospitals current assessment of the risk posed by Mr. Furlan.  Nor does Mr. Furlan
    deny his rapid decompensation, return to drug and alcohol use, and medication non-compliance
    after his absolute discharge.

[25]

In
    all these circumstances, we agree with the Hospital and the Crown that the
    Hospitals fresh evidence undermines the Boards reasons for granting an
    absolute discharge, especially the then accepted factual foundation for that disposition.

[26]

In
    particular, the new evidence of Mr. Furlans rapid decompensation and volatile
    and aggressive behaviour after his absolute discharge collides with the Boards
    findings that he had excellent insight into his mental illness and the need to
    take his prescribed medication and abstain from drug use.  If this evidence had
    been before the Board, it is beyond doubt that it reasonably could have affected
    the Boards decision.  As a result, we conclude that the appeal must be allowed
    and the matter remitted back to the Board for a rehearing.

[27]

We
    note that on the application before him in September 2013, Watt J.A. concluded
    that the then available evidence of Mr. Furlans conduct and condition after he
    was discharged absolutely from the Hospital could, if believed and
    unchallenged, reasonably have affected the result at the hearing.

[28]

Amicus
,
    in his customary thoughtful submissions, contends that this court is without
    jurisdiction to allow this appeal and remit the matter to the Board for a
    rehearing unless this court first makes a positive finding that Mr. Furlan
    poses a significant threat to public safety at present.

[29]

We
    do not agree.
Amicus
has been unable to point to any authority in
    support of this contention.  Moreover, this court has intervened and remitted
    similar cases back to the Board for rehearing in analogous circumstances: see
    for example,
Ontario Shores Centre for Mental Health Sciences v. Darch
,
    2010 ONCA 36;
Providence Continuing Care Centre v. Edgar
(2006), 216
    C.C.C. (3d) 563.  As
Darch
and
Edgar
confirm, the key
    question for this court at this time is whether the admissible fresh evidence
    tendered by the parties, had it been before the Board, could reasonably have
    affected the result of the Board hearing.  In our opinion, the Hospitals fresh
    evidence regarding Mr. Furlans post-April 2013 conduct and mental state easily
    meets this test.

[30]

We
    make two further observations.  First, approximately 13 months have passed
    since the September 2013 order of Watt J.A. imposing a conditional discharge on
    Mr. Furlan.  In that time, the Board has not held any review hearing regarding
    Mr. Furlan.  In our view, a new Board hearing concerning Mr. Furlan should be
    held as soon as practicable and no later than 60 days from the date of these
    reasons.  It will be for the Board at that hearing to determine the degree of
    risk now posed by Mr. Furlan to public safety and an appropriate disposition
    based on the evidence adduced before the Board.

[31]

Second,
    the court recognizes the significant progress Mr. Furlan appears to have made
    as an outpatient since February 2014.  He is to be commended for all that he
    has achieved in the management and control of his mental illness.  We
    anticipate that evidence of his progress will be an important consideration for
    the Board when fashioning an appropriate disposition at the new hearing.

V.      Disposition

[32]

For
    the reasons given, the appeal is allowed, the Boards April 23, 2014 disposition
    is set aside, and the matter is remitted to the Board for a new hearing in
    accordance with these reasons.  Since the effect of this decision is to subject
    Mr. Furlan to the conditional discharge in place immediately before the Boards
    April 23, 2014 disposition, we decline to grant the further relief sought by
    the Hospital.

Released:

OCT 27 2014                                   E.A. Cronk
    J.A.

EAC                                                H.S.
    LaForme J.A.

P.
    Lauwers J.A.


