


COURT OF APPEAL FOR ONTARIO

CITATION:
Capano
    (Re), 2012 ONCA 172

DATE: 20120320

DOCKET: C54080

Doherty, Laskin JJ.A. and Brown R.S.J. (
Ad
    Hoc
)

IN THE MATTER OF:  Rocco Capano

Rocco Capano, acting in person

Paul Burstein, as
amicus

curiae

Andreea Baiasu, for the Attorney General

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

Heard: February 13, 2012

On appeal against the disposition of the Ontario Review
    Board dated, July 27, 2011.

ENDORSEMENT

[1]

Mr. Capano appeals the disposition of the Ontario Review Board dated
    July 27, 2011.  That disposition, made following an early review hearing
    requested by CAMH, imposed a detention order in the minimum secure unit of the
    hospital, but gave the hospitals officials discretion to permit Mr. Capano to
    continue living in the community.

Background

[2]

In May 2004, Mr. Capano was found not criminally responsible on account
    of a mental disorder.  Since January 2007, he has been living in the community
    in a supervised residence at 60 Borden Street, under the care and supervision
    of his Assertive Community Treatment team.  Following his annual review hearing
    in 2009, the Board granted Mr. Capano a conditional discharge.  This court
    dismissed his appeal from that disposition and affirmed the conditional discharge.

[3]

After his annual review in 2010, the Board again imposed a conditional
    discharge on identical terms to the 2009 disposition.  Although Mr. Capano has
    appealed his 2010 disposition, that appeal has been rendered moot by the 2011
    disposition.

[4]

While Mr. Capano is now subject to a detention order, he continues to
    reside in the community.

Mr. Capanos Position

[5]

Mr. Capano asks this court to set aside the detention order and grant
    him an absolute discharge.  What underlies his request is his desire to have complete
    freedom to care for his elderly and ailing parents.

[6]

While Mr. Capanos desire to take care of his parents is understandable,
    we cannot agree to his request for an absolute discharge.  The Board found that
    Mr. Capano remains a significant threat to the safety of the public.  That
    finding is well supported by the record.  For many years Mr. Capano has
    suffered from schizophrenia.  He frequently has delusions and auditory
    hallucinations, and his thinking is at times disorganized.  He has limited insight
    into his underlying psychiatric disorder or the need for ongoing anti-psychotic
    medication.

[7]

Because Mr. Capano is a significant threat to the safety of the public,
    under the provisions of the
Criminal Code
he is not entitled to an
    absolute discharge.

Amicus Curiae
s Position

[8]

The three-member Review Board was divided.  The majority imposed a
    detention order.  The minority  the psychiatrist on the panel  would have
    maintained a conditional discharge.

[9]

Amicus
submits that we should set aside the detention order and
    substitute the conditional discharge proposed by the dissent.
Amicus
essentially makes three submissions.  First, the majority erred by failing to
    properly consider whether a conditional discharge continued to be the least
    onerous and least restrictive disposition.  Second, the majority erred by
    finding that Mr. Capano had breached the terms of his conditional discharge. 
    And third, this court should give less deference to the majority decision of
    the Board than it would otherwise do because the expert on the panel
    dissented.  We do not agree with any of these submissions.

(1)

A detention order was the least onerous and least restrictive
    disposition

[10]

The
    majority found that since the 2010 disposition, Mr. Capano had not complied
    with the terms of his conditional discharge.  The majority concluded that Mr.
    Capanos failure to do so was a significant change from the previous year.  In
    Dr. Simpsons words, Mr. Capano had gone downhill.

[11]

The
    majoritys finding and its conclusion are reasonably supported by the evidence
    at the hearing.  In particular:



·

Mr. Capano had started staying overnight at his parents home
        without the approval of the hospital; in the previous year he would be at their
        home only in the daytime.

·

Mr. Capano regularly failed to meet with his Assertive Community
        Treatment team, and generally made himself unavailable to the team; in the
        previous year he typically reported for assessment six days a week.

·

Mr. Capano now refuses to take his medication; in the previous
        year he would eventually agree to take his medication, albeit under threat of
        hospitalization.



[12]

Because
    of these significant changes, the majority of the Board reasonably concluded
    that Mr. Capanos risk could only be adequately managed under a detention
    order.  In reaching this conclusion, the majority considered the available
    mechanisms for returning Mr. Capano to the hospital under both a conditional
    discharge and a detention order.  The majority held that the mechanisms
    available to the hospital under a conditional discharge did not adequately
    protect the public.  Moreover, they noted that in the light of the limitations
    in re-admitting Mr. Capano to the hospital under the terms of a conditional
    discharge, a detention order would not only more likely ensure Mr. Capans
    compliance but as well would likely be less onerous.

[13]

The
    majoritys decision is thorough and well reasoned.  We see no basis to
    interfere with its finding that a detention order is the least onerous and
    least restrictive disposition.

(2)

Mr. Capano breached
    the terms of his conditional discharge

[14]

We
    accept
amicus
submission that some of the terms of the conditional
    discharge could have been more precisely spelled out.  Nonetheless, we are
    satisfied that Mr. Capano was fully aware of the substance of those conditions
    and in the period leading up to the 2011 disposition, breached several of them.

[15]

For
    example, although the conditional discharge order did not expressly say that
    Mr. Capano could stay overnight at his parents home only with the approval of
    the person in charge, Mr. Capano was aware that the permitted contact term in
    paragraph 1(f) of the conditional discharge order meant that he needed the
    hospitals permission to stay overnight at his parents residence.  Yet he
    continually stayed there without obtaining permission to do so.  We are
    therefore satisfied that Mr. Capano did breach the terms of his conditional
    discharge.

(3)

The majority decision should be upheld without regard to the standard of
    review.

[16]

In
    essence,
amicus
submits that the standard of review of reasonableness
    fluctuates according to the individual expertise or qualifications of the
    members of the Board whose decision is being appealed.  A tribunals expertise
    is an important consideration supporting a deferential standard of review of a tribunals
    decision.  The case law, however, has uniformly considered the expertise of the
    tribunal itself, rather than inquiring into the expertise or qualifications of
    individual members.  Nonetheless, in this case, we need not decide the merits
    of
amicus
 submission.

[17]

We
    agree with the decision of the majority, and would therefore uphold it if we
    accorded it limited deference or even no deference at all.

Conclusion

[18]

The
    appeal from the 2011 disposition is dismissed.

Doherty
    J.A.

John Laskin
    J.A.

M.F. Brown
    R.S.J. (Ad Hoc)


