



COURT OF APPEAL FOR ONTARIO

CITATION: Capano (Re), 2013 ONCA 737

DATE: 20131205

DOCKET: C57059

Cronk, Watt and van Rensburg JJ.A.

IN THE MATTER OF: Rocco Capano

AN APPEAL UNDER PART XX.1 OF THE
CODE

Her Majesty the Queen

and

Centre for Addiction and
    Mental Health

Respondents

and

Rocco Capano

Appellant

Rocco Capano, in person

Paul Burstein,
amicus curiae

Andreea Baiasu, for the Attorney General for Ontario

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

Heard and released orally: December 2, 2013

On appeal against the disposition of the Ontario Review
    Board, dated May 6, 2013.

ENDORSEMENT

[1]

Mr. Capano appeals the disposition of the Ontario Review Board, dated
    May 6, 2013, ordering that he be detained at the General Forensic Unit of the
    Centre for Addiction and Mental Health (the Hospital), with conditions that
    permit him to live in the community in accommodation approved by the Person in
    Charge of the Hospital.  A similar community-based detention order was imposed
    by the Board in 2011 as a result of Mr. Capanos annual review that year.

[2]

The Hospital and the Attorney General for Ontario support the
    Boards disposition, arguing that it is fully grounded in the evidence, that it
    is reasonable, and that it is the least onerous and least restrictive
    disposition in the circumstances.


[3]

In his factum,
Amicus
has helpfully outlined the history and the facts
    underlying the Boards disposition, as well as what he understands to be the
    grounds for the appellants challenge of the Boards disposition.  He has
    further indicated, however, that having reviewed the materials filed in
    relation to the appeal, he is unable to further assist the appellant concerning
    his appeal.

[4]

In his notice of appeal as supplemented
    by his oral submissions, Mr. Capano essentially argued that: (1) the Board
    erred by finding that he poses a significant threat to the publics safety; (2)
    the Boards disposition is neither reasonable nor the least onerous and least
    restrictive disposition; and (3) the Board erred by failing to discharge him
    absolutely or, in the alternative, by failing to discharge him subject to
    conditions.

[5]

We reject these submissions.

[6]

Mr. Capano has been diagnosed as
    suffering from schizophrenia of a paranoid type.  There was uncontroverted
    evidence before the Board that he lacks insight into his mental illness (indeed
    he has denied and continues to deny that he suffers from a psychotic illness),
    is resistant to treatment, seeks to avoid taking his prescribed anti-psychotic
    medications, and suffers from grandiose and persecutory delusions, as well as
    auditory hallucinations and disorganized thought patterns.  He has been
    assessed by his clinical team as being at a high risk of psychotically-motivated
    threatening, violent or intrusive behaviour should his current structured environment
    be altered.  The medical evidence before the Board established that, absent
    structure and supervision, Mr. Capano will stop taking his medications,
    resulting in rapid decompensation and risk to the public.

[7]

Mr. Capanos treating psychiatrist also
    testified that shortly before the April 2013 Board hearing, Mr. Capano
    continued to suffer from delusions and his clinical presentation had worsened
    from prior occasions.  He said that to the extent that Mr. Capano had been
    stable in the year or so before his 2013 Board hearing, this was attributable
    to the structure afforded by the custodial detention order then in place.

[8]

We further note that Mr. Capano has
    been re-admitted to the Hospital on three prior occasions due to
    decompensation, once while on a conditional discharge and twice while he was
    subject to detention orders.

[9]

There was, therefore, ample evidentiary
    support for the Boards finding that Mr. Capano remains a significant threat to
    the safety of the public.

[10]

Moreover, given the evidence of Mr.
    Capanos risk assessment, his history of aggressive and threatening behaviour,
    his continued lack of insight into his illness and his persistent efforts to
    avoid treatment, the Boards rejection of an absolute discharge was
    inevitable.  For the same reasons, its rejection of a conditional discharge and
    its order that Mr. Capanos community-based detention be continued were both
    reasonable and firmly anchored in the evidentiary record.

[11]

Nor do we see any error in the Boards
    conclusion that a community-based detention order was the least onerous and
    least restrictive disposition in the present circumstances.  That order will
    permit Mr. Capanos treatment team to monitor his clinical condition and
    progress and his treatment compliance, and will facilitate intervention by them
    if necessary.

[12]

Mr. Capano is concerned to provide care
    for his elderly parents who are themselves apparently in poor health.  In our
    view, his commitment to care for his parents is admirable and we commend him
    for it.  We note, however, that the Boards disposition will permit Mr. Capano
    to continue to live in the community, including with his parents, so long as
    his clinical condition and progress justify such living arrangements and they
    are approved by the Hospital.

[13]

For these reasons, the appeal is
    dismissed.

[14]

We note that Mr. Capano has an
    outstanding leave application regarding his original NCR finding.  Counsel for
    the Attorney General for Ontario has agreed to do what is possible in the
    circumstances to advance the progress of the leave application.

E.A.
    Cronk J.A.

David
    Watt J.A.

K.
    van Rensburg J.A.


