There is a lesson to be learned from the Ontario Court of Appeal’s overturning of a two-year prison term for weapons offences imposed on a Sault man whose main goal was he wanted to kill himself.
And this lesson was not lost on local lawyer Bruce Willson.
Recently, in upholding an appeal by lawyer Don Orazietti of the prison sentence imposed on Justin James Fabbro, the court decreed that an accused person’s mental health at the time of an offence must be given due consideration at trial.
Willson told me last week that he used the Fabbro decision in a case before Justice Melanie Dunn, who sits in the same court as Justice John P. Condon, the sentencing judge in the Fabbro case.
“My client had pleaded guilty to a charge of assault police,” he said. “He had pointed a replica handgun at the police during a standoff at his home. Police were called by a resident because of a disturbance in the home that resulted in the swat team coming He eventually surrendered himself without incident
“The Crown’s position on sentence was a jail term until I filed the Fabbro case with the court. My client’s pre-sentence report indicated an 18- year struggle with severe depression resulting in loss of employment.
“After reading the Fabbro decision Assistant Crown Attorney Matthew Caputo agreed to a conditional sentence order similar to the Fabbro case.”
Willson said Dunn referenced Fabbro in her decision not to incarcerate his client.
In regard to Fabbro, his life had fallen apart. At the age of 36 he was a heroin addict, brought about initially by drugs prescribed to fight the constant pain that resulted from a boating accident, and his marriage had broken down.
He wanted to kill himself.
Instead, being found in his vehicle by police with a sawed-off shotgun pointed into his mouth on Jan. 20, 2019, he ended up pleading guilty to weapons charges and being sentenced by Justice Condon to two years in prison with three years probation to follow.
“What does that say about Sault Ste. Marie, a young man with the ultimate cry for help in attempting to kill himself getting sent to jail for two years,” Orazietti said in an email to me last week.
“That is a really sad comment about a man whose only sin was that he failed to kill himself.”
Orazietti, in appealing the sentence, argued it was unfit in that the sentencing judge placed undue emphasis on the principle of protection of society and erred by not imposing a conditional sentence due to the appellant’s mental health.
The appeal court agreed unanimously and substituted a two-year-less-a-day conditional sentence for the custodial sentence. The order for three years of probation held.
“An act of attempted suicide is the ultimate plea for help,” Justice Eileen Gillese wrote in the three-judge panel’s decision. “It does not cry out for a denunciatory sentence.
“The primary sentencing principles in this case are not limited to denunciation and deterrence — they include rehabilitation, Imposing a custodial sentence was likely to have a serious negative effect on the appellant’s progress and would not serve the genuine societal interest.”
She said the appeal exposes the ongoing challenges for sentencing judges arising from the opiate scourge.
“This case aroused some support from health-care people but I was disappointed by the nature of the local decision and that it was so insensitive and unforgiving in nature,” Orazioetti said, suggesting mental illness is still taboo.
“If well-educated and informed people operating with a plethora of professional opinions and reports can’t get it right, how is the ordinary person supposed to digest effects of mental illness on human conduct?”
Fabbro’s addiction began when he was overprescribed Percocet and OxyContin at age 25 following a boating accident. Later, he had surgery on his shoulder and knees. After four or five years of taking pain medication, doctors would no longer prescribe them so he began buying drugs on the street.
Gillese noted the appellant also suffered from serious unresolved trauma arising from finding the body of a neighbor who had committed suicide by hanging, seeing a friend decapitated in front of him and seeing a snowmobiler go over a cliff.
And in the month leading up to the incident which brought about the charges, the appellant went to Sault Area Hospital on three occasions to get medical help for suicidal ideation but was sent away each time. Two earlier visits to the hospital had also been unsuccessful.
Police had initiated a traffic stop after being informed Fabbro had left his residence with a gun. Emotional and upset, he spoke to the police officers, repeatedly saying that he did not want to hurt the police or anyone else, only himself.
After a standoff of several hours in which police presence had grown, Fabbro threw an unloaded gun out of the vehicle. Immediately arrested and taken to hospital, where he was admitted pursuant to the Mental Health Act, he was ultimately charged with several weapons offences, including carrying a weapon for a purpose dangerous to the public peace.
Considering Fabbro was contemplating suicide, what danger to the public peace would there have been other than the noise of him blowing his head off?
In any event, over the following two years he took significant steps to curtail his substance addiction and mental health challenges. He completed a residential treatment program, began seeing a psychiatrist and held down a job. In other words, he had become a regular citizen.
All that probably would have been for naught if the custodial sentence imposed in February, of which he had served four months, had been allowed to stand.
Fabbro told The Toronto Star that the day of the standoff changed his life.
The decision by the appeal court should lead to a change for others too as more emphasis is placed on the mental health of accused persons.