Court of Appeal finds mental health causally linked to offence, prison would threaten rehabilitation

Addiction, mental illness and a history of trauma may causally underly criminal conduct without the accused lacking capacity or criminal responsibility, the Ontario Court of Appeal clarified in a recent decision.

“This appeal exposes the ongoing challenges for sentencing judges arising from the opiate scourge in our province,” begins the Court’s reasons, which were written by Justice Eileen Gillese.

In R. v. Fabbro, 2021 ONCA 494, Justice Gillese and Justices Janet Simmons and Grant Huscroft unanimously decided to substitute a conditional sentence for a man convicted of a number of firearm offences and conditions breaches.

The decision helps correct the misconception that for serious mental health issues to be causally linked to an offence, the offender must lack the capacity to appreciate what they are doing, says Anita Szigeti, a litigator and expert on mental health and the law.

“This case is important,” she says. “It educates judges. It educates lawyers. It raises awareness. It highlights trauma as the basis of very serious mental health issues that can cause criminality. It highlights the importance of rehabilitation for those with serious mental health issues.”

“And hopefully it will shift focus – a least somewhat – in how sentencing judges see people with serious mental health issues, to elevate the focus and consideration of rehabilitation and the progress that's been made.”

At age 25, Justin James Fabbro was injured in a boating accident and prescribed Percocet and OxyContin for the pain. He developed an addiction to the meds and when the doctors cut him off, he began buying drugs off the street. The accident capped off a year during which Fabbro experienced three events for which he had unresolved trauma. He had found the body of a neighbour who had committed suicide, witnessed a friend decapitated and saw a snowmobiler drive off a cliff.

On Jan. 20, 2019, in Sault Ste Marie, Ont., the police were notified that Fabbro had left a residence with a firearm and was a danger to himself. The police caught up with him and initiated a traffic stop. Fabbro pulled his truck into a nearby driveway and put the gun in his mouth.

At the time, he was wanted on a surety revocation warrant connected to outstanding gun charges and was bound by a recognizance not to possess firearms.

The police officer called for backup. A negotiator arrived and an hours-long standoff took place. Fabbro told the police he was using heroin, wanted to stop, did not want to go to jail and did not want to hurt the police or anyone else.

Eventually he threw the gun out of the window, got out of the truck and was arrested and later charged.

In the aftermath, Fabbro took “sustained, significant steps to address his substance addiction and mental health challenges,” said Justice Gillese. He completed one residential treatment program and enrolled in another, but it was shut down due to COVID. Fabbro was also in a methadone program and under the care of a psychiatrist.

Ontario Court Justice John Condon acknowledged Fabbro’s addiction and mental health challenges but viewed the primary sentencing principles to be denunciation and deterrence, because the incident involved a firearm. Justice Condon sentenced Fabbro to two years less a day in prison, followed by three years of probation.

“It does highlight that we still have a lot of work to do as far as mental health goes, how we underestimate the problems that plague people,” says Donald Orazietti, who represented Fabbro. “A lot of them end up in the justice system… Some are undiagnosed, and some of them are ignored.”

“In this case, his mental health issues were ignored, in the sense that the Judge found that they weren't connected to his conduct.”

On appeal, Fabbro argued the sentence was demonstrably unfit. The Court of Appeal found Justice Condon had erred in principle in two respects.

First, Justice Condon had placed “undue emphasis” on denunciation and deterrence because he had failed to consider a relevant factor. Second, the judge should have considered whether there was a causal link between the offence and Fabbro’s mental health condition.

The Crown argued on appeal that the evidence did not show such a causal link. He was not experiencing delusions nor incapable of appreciating the consequences of his actions and he had not challenged his criminal responsibility or mental capacity during sentencing.

“Respectfully, the Crown’s argument misses the point,” said Justice Gillese. For Fabbro’s mental health to be a mitigating factor, he does not need to be delusional. His illness needs to be “an underlying reason” behind the offence and there must be evidence a jail sentence would have a “serious negative effect” on him. Given his pre-sentence reports, medical records, treatment and psychiatrist, social worker and therapist reports, “a causal link is virtually inescapable,” she said.

A custodial sentence would threaten the progress the evidence clearly showed Fabbro had made concerning his addiction and mental health, said Justice Gillese.

“An act of attempted suicide is the ultimate plea for help. It does not cry out for a denunciatory sentence.”

The Court of Appeal’s recognition that denunciation and deterrence can be achieved without a custodial sentence was significant, says Szigeti. Undermining Fabbro’s rehabilitation does not serve society’s best interest, she says.

“This individual has made tremendous progress and sending him to jail was very likely to set all that back. And that doesn't serve the rehabilitative purpose of our criminal justice system at all.”