Furlan (Re)

Furlan (Re) Collection Decisions of the Court of Appeal Date 2014-10-27 Neutral citation 2014 ONCA 740 Docket numbers C57275 Judges Cronk, Eleanore Ann; LaForme, Harry Smith; Lauwers, Peter D. Subject Criminal Decision Content 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. Furlan’s 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. Furlan’s 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 Board’s 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. Furlan’s post-discharge conduct and condition that it says undermines the Board’s reasons for granting an absolute discharge and, in critical respects, the factual foundation for the Board’s disposition. [7] The Hospital’s 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 Hospital’s fresh evidence by tendering additional fresh evidence on behalf of Mr. Furlan, which Amicus submits contradicts or belies many of the assertions in the Hospital’s 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 Hospital’s 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 Board’s 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 Board’s 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 Board’s 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 Board’s disposition and, as a result, the fresh evidence could reasonably have affected the result at the Board hearing. [15] The Hospital’s fresh evidence indicates that after Mr. Furlan’s 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. Furlan’s 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. Furlan’s 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 Hospital’s motion, suspended the Board’s 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. Furlan’s 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. Furlan’s mother now claims that she exaggerated Mr. Furlan’s 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 Hospital’s 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 Hospital’s fresh evidence undermines the Board’s reasons for granting an absolute discharge, especially the then accepted factual foundation for that disposition. [26] In particular, the new evidence of Mr. Furlan’s rapid decompensation and volatile and aggressive behaviour after his absolute discharge collides with the Board’s 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 Board’s 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. Furlan’s 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 Hospital’s fresh evidence regarding Mr. Furlan’s 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 Board’s 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 Board’s 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.”