



COURT OF APPEAL FOR ONTARIO

CITATION: Furlan (Re), 2013 ONCA 618

DATE: 20131011

DOCKET: M42828 (C57275)

Watt J.A. (In Chambers)

IN THE MATTER OF:  DANIEL FURLAN

AN APPEAL UNDER PART XX.1 OF THE
CODE

Andreea Baiasu, for the applicant

Daniel Furlan, acting in person

Joseph Di Luca, appearing as
amicus curiae

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

Heard: September 13, 2013

On application for an order under s. 672.76 of the
Criminal
    Code
suspending the application of an absolute discharge and directing the
    application of a conditional discharge pending appeal.

Watt J.A.:

[1]

On the joint recommendation of the parties and the evidence received at
    the hearing, a panel of the Ontario Review Board (the Board) was satisfied that
    Daniel Furlan (the respondent) was no longer a significant threat to the safety
    of the public. The Board directed that the respondent be discharged absolutely.

[2]

A few weeks later, the respondent returned to some of his old habits. 
    He took drugs, like cocaine and marijuana.  He drank alcohol.  He stopped
    taking, or took only intermittently, his prescribed medication.  He missed
    appointments at the Forensic Outpatient Service at the Centre for Addiction and
    Mental Health (CAMH) where he had been treated for his major mental disorder
    for some time. He became psychotic, hostile, verbally aggressive, and
    threatening.

[3]

The respondent returned to CAMH when mental health authorities invoked
    provincial mental health legislation to have him arrested and confined there
    involuntarily. The person in charge of CAMH served the respondent with a notice
    of appeal against the absolute discharge granted by the Board.

[4]

The Attorney General applies for an order under s. 672.76 of the
Criminal
    Code
suspending the disposition of an absolute discharge pending the
    determination of the appeal and substituting a conditional discharge without a
    s. 672.55 treatment condition.

[5]

At the conclusion of the hearing of the application, I granted the order
    sought.  These are my reasons for doing so.

THE BACKGROUND

[6]

A brief reference to some of the background events and procedural
    history is essential to an appreciation of this application and its result.

The Predicate Offences and NCRMD Finding

[7]

On July 25, 2008, the respondent launched unprovoked attacks on
    unsuspecting citizens including a 13-year-old boy whom he tried to throw in
    front of a moving vehicle. Concerned citizens intervened and called police.
    When police arrived, the respondent resisted apprehension. One of the officers
    suffered significant muscular injury in his attempts to subdue the respondent.

[8]

About a year later, on August 6, 2009, the respondent was found NCRMD on
    charges of aggravated assault, assault with intent to resist arrest, assault
    causing bodily harm, and simple assault. The respondents underlying mental
    disorder is schizophrenia, possibly personality disorder (anti-social type),
    and polysubstance dependence (crack, cocaine, heroin, cannabis and alcohol).

[9]

The trial judge did not conduct a disposition hearing, rather ordered
    the respondent detained pending a hearing before the Board.

The Conditional Discharge in 2012

[10]

At
    the annual review hearing conducted in April, 2012, the Board unanimously
    concluded that the respondent continued to represent a significant threat to
    the safety of the public. A majority of the Board decided that the least
    onerous and least restrictive disposition that was appropriate was a
    conditional discharge. A minority of the Board concluded that a detention order
    was the appropriate disposition.

[11]

The
    conditional discharge permitted the respondent to reside in the Greater Toronto
    Area and required him to: a) report to the person in charge of CAMH or his designate
    not less than every two weeks; b) abstain absolutely from the non-medical use
    of alcohol, drugs, or other intoxicants; c) on his consent, to take any
    treatment prescribed under s. 672.55(1) of the
Criminal Code
; d)
participate in the
    rehabilitation program prescribed by the person in charge of CAMH, and; e) submit
    samples of urine or breath to the hospital for analysis.

The Absolute Discharge of April, 2013

[12]

At
    the annual review hearing held in April, 2013 the Hospital Report from CAMH
    described the preceding 12 months as an exemplary year for the respondent. According
    to the Report, he displayed no symptoms of psychosis, was compliant with his
    self-administered medication, and had only negative results when his urine
    samples were analyzed for the presence of alcohol and non-prescribed drugs. 
    The report of the treatment team concluded:

While we cannot rule out the presence of personality factors
    that
might
impinge on his mental state stability in the future, given
    his pro-social lifestyle and attitudes, mental state stability, adequate
    personal supports, fair insight, intact judgment, abstinence from substance
    use, and compliance with remediation recommendations, he does not in the teams
    opinion, meet the threshold of significant risk as per
Winko
.

[13]

In
    her testimony before the Board, the respondents out-patient psychiatrist
    confirmed the contents of the treatment teams report and their recommendation
    that the respondent be discharged absolutely.

[14]

At
    the hearing before the Board, counsel for CAMH, the respondent, and the Attorney
    General agreed that the evidence would not support a finding that the
    respondent continued to represent a significant risk to the safety of the
    public.  Crown counsel registered some concern, however, because of the serious
    mental illness from which the respondent suffered, as well as the nature of his
    index offences, but agreed that the significant threat threshold could not be
    met on the available evidence.

[15]

The
    Board agreed with the recommendation of all parties that the respondent no
    longer represented a significant threat to the safety of the public. On April
    23, 2013, the Board directed that the respondent be discharged absolutely.

The Subsequent Events

[16]

Within
    a month of the Boards disposition, the respondent resumed his use of cocaine
    and cannabis. He failed to attend two scheduled out-patient appointments. In
    the following month, his mother reported that the respondent was becoming
    paranoid and had drugs in his room. She wanted the hospital authorities to
    revoke the respondents absolute discharge.

[17]

The
    respondent became more psychotic, hostile, aggressive and destructive as the
    days and weeks passed.  He was taken by police, acting under provincial mental
    health legislation, to Humber River Regional Hospital where he was briefly
    confined.

[18]

In
    mid-June, the respondent went to the Forensic Out Patient Service at CAMH. He
    acknowledged that he had missed prior appointments because they were
    voluntary.  He admitted that he had used drugs and that he had been
    inconsistent in taking his prescribed medication. He appeared paranoid. A week
    later, the respondent was obviously decompensating. His mother was afraid of
    him.

The Apprehension and Hospital
    Admission

[19]

Towards
    the end of June, 2013, about two months after the absolute discharge had been
    ordered, the respondent was taken into custody by police and delivered to an
    area hospital under a Form 2 under s. 16 of the
Mental Health Act
,
    R.S.O. 1990, c. M.7.  A urine sample taken there tested positive for both THC
    and cocaine. Two days later, he was transferred to CAMH on a Form 1.

The Notice of Appeal

[20]

At
    CAMH, the respondent was served with a notice of appeal on behalf of the person
    in charge of the hospital. The relief sought was an order setting aside the
    absolute discharge and writing a conditional discharge disposition under
    s. 672.54(b) of the
Criminal Code
in the same terms and
    conditions as that in place before the hearing at which the respondent had been
    discharged absolutely.

The Current Status

[21]

Since
    his re-admission to CAMH, the respondent has been confined largely as an
    involuntary or civilly-committed patient under the
Mental Health Act
.
    He has displayed signs of mania and is incapable of making treatment decisions
    about antipsychotic and mood-stabilizing medication. He has decompensated
    significantly since his absolute discharge was ordered.

[22]

The
    respondents in-patient psychiatrist and the person in charge of CAMH are both
    of the view that the respondent currently represents a significant threat to
    the safety of the public because of his mental disorder. Both doctors are
    satisfied that without the conditions included in the prior conditional
    discharge, the respondent will continue his use of illicit substances, his
    questionable compliance with medication, and his inconsistent attendance at medical
    appointments. In the doctors view, without these conditions, the respondent
    will become increasingly paranoid and manic.

The Application

[23]

The
    Attorney General (the Crown) seeks an order under s. 672.76 of the
Criminal
    Code
suspending the application of the absolute discharge granted to the
    respondent by the Board on August 23, 2013, pending the determination of an
    appeal by the person in charge of CAMH against that order. Further, the Crown
    seeks an order that the respondent be made subject to the terms of a
    conditional discharge, identical to that in force immediately before the Board
    decision under appeal save for the deletion of a s. 672.55 treatment condition.

The Positions of the Parties

[24]

The
    argument in support of this application by the Crown was advanced by counsel
    for the person in charge of CAMH, Ms. Blackburn. She submits that to return the
    respondent to the jurisdiction of the Board under a conditional discharge, the
    applicant must demonstrate that the respondent now represents a significant
    threat to the safety of the public because of his mental disorder. This
    determination should be informed by the principles at work when a party seeks
    to suspend the application of conditional discharges and detention orders
    pending appeal. Ms. Blackburn says that the evidence adduced on the application
    satisfies the applicable standard and warrants the order sought.

[25]

As
amicus
, Mr. Di Luca agrees with the standard or test proposed by
    Ms. Blackburn. Further, Mr. Di Luca acknowledges that the evidence adduced
    on the application satisfies the significant threat threshold.  He takes no
    position on whether the orders sought should issue.

[26]

The
    respondent, Daniel Furlan, says that the orders sought are academic.  He is
    currently an involuntary patient at CAMH under provincial mental health
    legislation. Even if the basis upon which he is currently confined is not
    renewed after it expires in mid-October of this year, he intends to remain
    there voluntarily.  Thus, he submits, there is no need for the orders.

The Governing Principles

[27]

The
    authority invoked by the Crown is statutory, but informed by a handful of
    decisions by other judges of this court assigned the same task. It is helpful
    to begin with an examination of the enabling statutory authority before mining
    the available precedents for further assistance.

The Statutory
    Provisions

[28]

Section
    672.54 of the
Criminal Code
describes the dispositions that may be
    made by a court or Review Board after a disposition or review hearing has been
    held. The section lists four factors that must be considered by the court or
    Board in reaching its decision:

·

the need to protect the public from dangerous persons;

·

the mental condition of the accused;

·

the reintegration of the accused into society; and

·

the other needs of the accused.

The section directs the court or Board to make the
    listed disposition that is the least onerous and least restrictive to the
    accused.

[29]

The
    available dispositions include absolute and conditional discharges and
    detention orders. What divides absolute discharges, on the one hand, and
    conditional discharges and detention orders on the other, is whether the
    accused is a significant threat to the safety of the public. An accused who is
not
a significant threat to the safety of the public is entitled to an absolute
    discharge under s. 672.54(a).  An accused who is a significant threat to the
    safety of the public is entitled to the least onerous and least restrictive
    conditional discharge or detention order.

[30]

A
    disposition comes into force when it is made unless the court or Board orders
    otherwise and it remains in force until the Board holds a hearing to review the
    disposition and makes another disposition:
Criminal
Code
, s.
    672.63.

[31]

Any
    party may appeal against the disposition made by a court or a Review Board on
    any ground of appeal that raises a question of law or fact alone or a question
    of mixed law and fact:
Criminal
Code
, s. 672.72(1). The appeal
    is to be based on a transcript of the proceedings before the court or Board and
    any other evidence that the court of appeal finds necessary to admit in the
    interests of justice:
Code
, s. 672.73(1).  Section 672.73(2)
    incorporates by reference the provisions of ss.  683(1) and (2) concerning
    the reception of fresh or further evidence on appeal.

[32]

When
    a notice of appeal is filed against an absolute discharge, s. 672.75 suspends
    the application of the absolute discharge pending the determination of the
    appeal.  In
R. v. Kobzar
, 2012 ONCA 326, 110 O.R. (3d) 670, a majority
    of this Court concluded that the words paragraph 672.54(a) in s. 672.75
    offend ss. 7 and 9 of the
Charter
and are not saved by s. 1.  Thus those
    words, which refer to an absolute discharge, are of no force and effect. The
    declaration of invalidity has been suspended until March 31, 2014 and the Crown
    instructed to bring an application, as here, if it seeks an order suspending an
    absolute discharge and replacing it with another disposition pending the
    determination of the appeal from the absolute discharge.

[33]

Where
    an appeal is taken against the disposition, any party who gives notice to each
    of the other parties involved, may apply to a judge of the court of appeal for
    an order under s. 672.76(2) respecting a disposition that is under appeal.
    The language of the section is discretionary, permitting any of the listed
    orders to be made only if the judge is satisfied that the mental condition of
    the accused justifies it.  Among the orders that may be made under s.
    672.76(2)(c), where the application of an absolute discharge has been suspended,
    is any other disposition  that is appropriate in the circumstances other
    than an absolute discharge or treatment disposition under s. 672.58.

[34]

Where
    the application of a disposition from which an appeal has been taken is
    suspended, s. 672.77 revivifies the disposition in effect immediately before
    the disposition under appeal was made pending the determination of the appeal,
    unless another disposition is ordered under s. 672.76(2)(c).

The Authorities

[35]

From
    the few precedents that the industry of Ms. Blackburn has been able to unearth,
    several principles emerge.

[36]

First,
    the principal purpose of s. 672.76 is to suspend the application of
    dispositions as a result of changes in the circumstances which may make
    compliance with the disposition pending appeal inappropriate:
Penetanguishene
    Mental Health Centre (Administrator) v. Ontario (Attorney General)
(2001),
    154 C.C.C. (3d) 187 (Ont. C.A.  Chrs), at para. 7.

[37]

Second,
    the applicant bears the onus under s. 672.76 to demonstrate that there are
    compelling reasons to doubt the validity or soundness of the disposition made
    by the Board as it relates to the mental condition of the accused:
Conway
    v. Brockville Psychiatric Hospital
(1994), 18 O.R. (3d) 27 (Ont. C.A. 
    Chrs), at p. 29;
Northeast Mental Health Centre v. Rogers
, 2007
    ONCA 561 (Chrs), at para. 9;
Penetanguishene Mental Health Centre
, at
    para. 7. The provisions of s. 672.76 should only be invoked in
    extraordinary circumstances:
Conway
, at p. 29,
Rogers
,
    at paras. 9, 16-17.

[38]

Third,
    the remedies available under s. 672.76 are not limited to cases in which a
    change in circumstances has occurred between the date on which the disposition
    under appeal was made and the time at which the application under s. 672.76 has
    been brought:
Rogers
, at para. 11.

[39]

Fourth,
    the decision on an application under s. 672.76 is influenced by contextual
    considerations including all the provisions of Part XX.1, the specific
    provisions under consideration, and the extent of the authority of the Board:
Rogers
,
    at para. 15.

The Principles Applied

[40]

The
    bipartite nature of the order the Crown seeks on this application requires
    consideration of two issues:


i.

whether the application of the absolute discharge should be suspended;
    and if so,


ii.

whether a conditional discharge should be ordered pending the
    determination of the appeal against the absolute discharge.

For all practical purposes, both issues fall to be
    decided on the application of the governing principles to the evidence of the
    respondents mental condition as disclosed by his words and conduct after the
    Board ordered his absolute discharge.

[41]

The
    analysis must begin with the presumption that the Boards order of an absolute
    discharge was correct. The Board is an expert tribunal whose business is to
    conduct disposition and review hearings of mentally disordered accused.  The
    order the Board made is an order that the
Criminal Code
requires
    absent a finding that the accused represents a significant threat to the safety
    of the public.  In accordance with the position of the parties at the hearing,
    and the evidence adduced there, the Board concluded that the respondent did not
then
represent a significant threat to the safety of the public. In
    those circumstances, the only available disposition was an absolute discharge.

[42]

The
    presumption of validity or correctness of the order under appeal is rebuttable.
    Sometimes, an applicant may be able to identify an error in the Boards
    reasons. That is not the case here. In this case, the full weight of the
    applicants burden falls to be discharged on the basis of the evidence about
    the respondents mental condition since the Board ordered his absolute
    discharge.

[43]

Deprived
    of reliance on the automatic suspension of the application of the absolute
    discharge for which s. 672.75 provides on filing the notice of appeal, the
    Crown relies on the evidence collected since the discharge was directed to
    demonstrate compelling reasons to doubt the correctness of the decision.

[44]

Where
    fresh evidence provides the wherewithal to set aside the disposition, it seems
    to me that a chambers judge should be satisfied that the evidence would qualify
    for admission on appeal under s. 672.73(1) and the incorporation by reference of
    the general principles in ss. 683(1)and (2) by s. 672.73(2).

[45]

In
    my respectful view, the material submitted in support of this application would
    qualify for admission as fresh evidence on the appeal against the absolute
    discharge.  As evidence of what has taken place after the Board directed the
    absolute discharge, this evidence could not have been obtained with the
    exercise of due diligence at the review hearing. The evidence, which includes
    admissions by the respondent and expert opinion about his mental condition and
    whether he currently represents a significant threat to the safety of the
    public is reasonably capable of belief and bears on the critical issue of
    significant threat.  Further, if the evidence were believed, and it is
    unchallenged, when taken with the balance of the evidence, it could reasonably
    affect the result at the hearing.

[46]

In
    the result, I am persuaded that the applicant has satisfied the test for an order
    suspending the application of the absolute discharge pending determination of
    the appeal.

[47]

To
    achieve its second goal, the direction of a conditional discharge pending the
    determination of the appeal, the applicant must establish that:


i.

the mental condition of the respondent justifies it; and


ii.

a conditional discharge is appropriate in the circumstances

[48]

In
    my respectful view, the clause, if satisfied that the mental condition of the
    accused justifies it, in s. 672.76(2), on its own, but more particularly in
    combination with the phrase, appropriate in the circumstances in s.
    672.76(2)(c), requires the applicant to demonstrate, in light of the factors
    described in s. 672.54 of the
Criminal Code
:


i.

that the respondent is a significant threat to the safety of the public;
    and


ii.

that a discharge subject to conditions is the least onerous and least
    restrictive disposition to the respondent.

[49]

With
    the exception of the respondent, the parties agree that the evidence adduced on
    the application and proposed for admission on appeal establishes the
    significant threat requirement.  I agree.  Indeed, the evidence permits of no
    other rational conclusion.

[50]

I
    am equally satisfied that, when consideration is given to:

i.

the need
    to protect the public from dangerous persons;

ii.

the mental
    condition of the respondent;

iii.

the reintegration of
    the respondent into society; and

iv.

the other needs of the
    respondent,

the conditional discharge proposed is the least
    onerous and least restrictive disposition to the accused in the circumstances
    of this case.

CONCLUSION

[51]

It
    is for these reasons that I concluded that the application of the absolute
    discharge directed by the Board on April 23, 2013, should be suspended and a
    conditional discharge should be directed pending the determination of the
    appeal.

Released: October 11, 2013 (D.W.)

David
    Watt J.A.


