Giang Ly v. Centre for Addiction and Mental Health, 2015 ONCA 141

COURT OF APPEAL FOR ONTARIO

CITATION: Ly (Re), 2015 ONCA 141 DATE: 20150304 DOCKET: C58809

Before: MacFarland, Tulloch and Pardu JJ.A.

IN THE MATTER OF Giang Ly

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Anita Szigeti, for Giang Ly Gavin S. MacKenzie, for CAMH Shawn Porter, for the respondent Crown

Heard: February 23, 2015

On appeal against the disposition of the Ontario Review Board dated, May 9, 2014.

ENDORSEMENT

1On April 17, 2005 the appellant was found not criminally responsible on account of mental disorder (NCRMD) on charges of break and enter with intent to commit an indictable offence and arson.

2At the time of his hearing before the Review Board, the appellant was subject to a Disposition dated May 28, 2013 detaining him at the General Forensic Unit of the Centre for Addiction and Mental Health (CAMH) with privileges up to and including living within the community in supervised accommodation approved by the person in charge.

3While the appellant did not concede that he remained a significant threat to the safety of the public, he did not seek an absolute discharge.

4The only issue the Board faced was whether in the circumstances of this offender, the least onerous, least restrictive disposition was a conditional discharge or a continuation of the current detention order.

5The applicant submits that the Board erred in law by failing to meaningfully consider if the appellant could be discharged conditionally. As the Crown notes in para. 2 of its factum:

The dispute between the parties did not focus on the need for terms governing medication compliance, housing and street drug use. Rather, the dispute centered on whether those terms should be part of a conditional discharge or detention order –

6The differences between a conditional discharge and a detention order were thoroughly canvassed in this court’s decision in R. v. Breitwieser 2009 ONCA 784.

7The appellant’s diagnoses at the time of the Board’s disposition which is the subject of this appeal were:

Schizophrenia, Substance Abuse Disorder and Maladaptive Personality Traits/Disorder

8The hospital report filed at the hearing details the appellant’s history over the years following the NCR finding.

9Although discharged from the hospital setting in June 2006 to independent housing through the Canadian Mental Health Association (CMHA) – he was readmitted frequently as the result of urine samples positive for drugs. He remained an in-patient for the most part from January 2010 to August 2013 with – as the Board noted – several short-lived discharges into the community. It was noted there were episodes of physical aggression towards co-patients and staff.

10In March 2013 he was discharged to CMHA-supported housing where staff was on site 24/7. By early April problems began to exhibit themselves and as the Board noted the appellant:

• became increasingly pre-occupied by his delusional belief system and had no insight into the fact that his symptoms arose from his mental illness.

11According to the hospital report

The intensification and nature of his psychosis pose an acute elevation in his risk of violence and as such he was admitted to a General Schizophrenia Unit for stabilization on April 13, 2013.

12It was at this juncture that after discussion with his then treating psychiatrist his anti-psychotic medication was changed to Clozapine.

13He was in hospital until mid-May 2013 and subsequently readmitted in July because of substance use and discharged to CMHA supervised living again on August 19, 2013.

14In September 2013 the appellant insisted on reducing his level of Clozapine. This was contrary to his doctor’s medical advice. He continues to request that the dosage be further reduced.

15As the Board noted –

While his psychosis responds well to Clozapine, his decision to reduce the dose against his psychiatrist’s advice (and which he wants to further reduce) has resulted in a return of his auditory hallucinations. He continues to have a striking lack of insight.

16The appellant through his counsel agrees to a conditional discharge where he will agree to the following terms:

1. to consent to treatment pursuant to s. 672.55 of the Criminal Code.

2. to reside at his current residence

3. and to be delivered to CAMH in the event he breaches a term of his disposition.

17The Board in its reasons dealt with the proposed terms.

18Dr. Duff was very concerned that Mr. Ly, who is competent to treatment, would further reduce his dosage of Clozapine, he did so once already contrary to his doctor’s advice and is seeking further reduction.

19Absent his medication, decompensation for the appellant can occur quickly and when he becomes psychotic as Dr. Duff noted, he becomes agitated and acts on his psychosis in a desperate and unpredictable way – putting the public at risk.

20His treatment team was of the view that he would rapidly revert to the use of substances (spice in particular – a synthetic form of marijuana) and become non-compliant with medication absent his current support structure.

21As for housing, although he is doing well in his current setting – it is transient in nature. The average stay is 18 months and the appellant was close to that at the time of his hearing. Although he would agree to a term requiring his continued residence there – there cannot be a guarantee he would be able to remain there – despite his willingness to agree to such a term, he has expressed a desire to move from his current setting.

22This court has said that the requirement for an appellant to reside in approved, supervised community housing meant that a conditional discharge is not an appropriate disposition. See R. v. Runnalls, 2009 ONCA 504. Currently there are staff on site 24/7 to monitor the residents. Absent the involvement of the person in charge of CAMH in the event of a move there is the real likelihood that the current structures – which allow the appellant to do as well as he does – would disappear with resulting serious consequences. And while he would agree to be returned to CAMH in the event of a breach – there can be no guarantee that he would be returned there where he is subject to a conditional discharge – for the reasons fully set out in R. v. Breitwieser.

23As it has been in the past, it is important for the appellant to get to the hospital quickly where the necessary steps can be taken to stabilize him.

24The Board in its reasons noted Dr. Duff’s evidence – where she stated that she was aware of the appellant’s request for a conditional discharge but did not think it wise.

25She noted that while he had been better in the past year – it is still “within a very tight safety net” under his then current disposition.

26While the appellant noted that he’d had no positive tests for illicit substances since January 2014 – the Board noted there had been six positive reports in the reporting year. Further there was reluctance to rely on the urine testing in view of the appellant’s past history of tampering with urine samples.

27The Board concluded that in all the circumstances a detention order was the least onerous, least restrictive disposition to manage the risk posed by the appellant which included:

• He requires close medical supervision to insure compliance.

• Given his substance abuse history close monitoring for that is required.

• His current attitude towards the drug, spice – and his lack of insight into the role that drug plays in his non-compliance with his medication is troubling.

• His striking lack of insight into his mental illness.

• Further while the appellant says he will agree to be returned to the hospital in the event of a breach – there can be no guarantee of that on a conditional discharge – and in the past he has been angry when told he needed to be re-admitted to hospital.

28In all the circumstances, we are not persuaded the Board made any error in law and their decision in the particular circumstances of this appellant was a reasonable one.

29We note that at the time of the review which is the subject of his appeal. The appellant had been doing reasonably well although for a short time. We are hopeful that his efforts will continue.

30Appeal is dismissed.