Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200408 DOCKET: C67178

Watt, Fairburn and Zarnett JJ.A.

IN THE MATTER OF: Hung Van Nguyen

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Paul Calarco, for the appellant Michael S. Dunn, for the respondent, the Attorney General of Ontario Kendra Naidoo, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: March 12, 2020

On appeal from the disposition of the Ontario Review Board, dated May 27, 2019, with reasons dated June 13, 2019.

Reasons for Decision

Overview

[1] The appellant, Hung Van Nguyen, has been detained at the Centre for Addiction and Mental Health (“CAMH”) in Toronto since 2012. After a hearing on May 14, 2019, the Ontario Review Board (the “Board”) ordered that the appellant continue to be detained at CAMH, subject to certain conditions. In making that disposition, the Board rejected the parties’ joint submission that the appellant be transferred from CAMH to the High Secure Provincial Forensic Programs at Waypoint Centre for Mental Health (“Waypoint”) in Penetanguishene.

[2] The appellant argues that the Board erred in two respects and that its disposition therefore cannot stand. First, he submits that the Board failed to give notice that it was contemplating rejecting the joint submission, and thus breached its duty of procedural fairness. Second, he submits that the decision of the Board not to give effect to the requested transfer was unreasonable.

[3] For the reasons that follow, we dismiss the appeal.

Background

[4] In January 2012, the appellant was admitted to Waypoint. In March 2012, he was found not criminally responsible on account of mental disorder (“NCR”) on a charge of committing an indecent act. In November 2012, he was transferred from Waypoint to a general forensic unit at CAMH.

[5] In October 2013, the appellant was found NCR on a charge of invitation to sexual touching. In December 2013, the appellant was transferred to a secure unit at CAMH. He remained detained at the Secure Forensic Unit at CAMH at the time of the Board’s hearing.

[6] The appellant suffers from schizophrenia, which is treatment-resistant and complicated by substance abuse, medication nonadherence, and a personality disorder. He exhibits symptoms of psychosis and has limited insight into his mental illness. He has a history of violence and inappropriate behaviour towards others. He requires close supervision and medication monitoring, as he decompensates rapidly if he abuses substances or is medication noncompliant.

[7] In the four years leading up to the May 2019 Board hearing, there were three occasions on which the appellant absconded while on passes; on the last two of these occasions, he tested positive for cannabis use after returning to CAMH. There was no report of violence on any of these occasions.

[8] Following these events, the appellant was determined to be a high risk for elopement and needed to be escorted by security to appointments on CAMH grounds. From November 2017 to the time of the Board’s hearing, he was not granted any off-unit passes, meaning that he was essentially confined to his unit. This was a source of frustration for the appellant, who asked on a number of occasions to be transferred to other facilities, including Waypoint.

The Board Hearing

[9] The Board’s hearing was to review the disposition under which the appellant was detained at CAMH. At the hearing, the parties made a joint submission. They agreed that the appellant continues to represent a significant threat to the safety of the public and should continue to be detained. CAMH recommended that the conditions of the existing disposition continue with one change: the appellant should be transferred to the high secure program at Waypoint. The reason articulated was that Waypoint, unlike CAMH, has a secure perimeter, which would allow granting the appellant privileges to be outside of his unit but within Waypoint’s secure perimeter. The Crown and the appellant agreed with the CAMH recommendation.

[10] The Board noted the joint submission, but indicated it wished to hear the evidence. Accordingly, the appellant’s attending psychiatrist, Dr. Walton, testified. In addition, hospital reports from CAMH and a letter from the Director of Waypoint’s Forensic Assessment Program regarding the requested transfer (the “Waypoint Letter”) were entered as Exhibits.

[11] The Waypoint Letter commented specifically on CAMH’s view that a transfer to Waypoint “could afford [the appellant] more liberal off-unit privileges within the confines of a secure perimeter”. It explained the risk assessments that are made before Waypoint allows a patient to access services and amenities within the high secure perimeter. The author of the letter opined:

Given Mr. Nguyen’s history and risk factors, I expect that he would not experience independent off-unit access to the common areas contained within our high secure perimeter. Instead, once his risk is assessed to be low enough for him to leave his unit, he would need to be escorted or accompanied to the common and centralized areas of our facility.

[12] The letter also pointed out the limited resources that Waypoint had to “assess and manage risk at the community interface that exists when a patient is re-integrating into the community…[W]e do not have the resources to provide discretionary privileges beyond our high secure perimeter with the minimal exception of staff escorted (at a 2:1 minimum staff to patient ratio) hospital grounds walks, should such discretionary privileges be included in a patient’s disposition.”

[13] The Board members asked Dr. Walton questions, including questions about the Waypoint Letter and the concerns it raised about the appellant getting access to the secure perimeter area. There were also questions about the therapeutic relationship that the appellant appeared to have with a behavioural therapist at CAMH and whether that would continue at Waypoint. Dr. Walton was also asked about other facilities in Ontario with secure perimeters and whether the appellant had any reason to prefer Waypoint to them.

The Board Decision

[14] The Board agreed with the first part of the joint submission—that the appellant continued to represent a significant threat to the safety of the public and that a detention order, with the existing conditions, was therefore justified. However, the Board rejected the second part of the joint submission involving a transfer to Waypoint. It found that the transfer to a high secure facility was “not necessary or appropriate in all the circumstances”. The Board provided several interrelated reasons for this conclusion.

[15] First, the Board noted that, although the appellant had absconded three times while at CAMH, he had been off-unit on passes at other times and did not abscond. In the Board’s view, there was a prospect of limited passes off-unit with security and “further engagement on the unit and work with [the behavioural therapist that] may result in more privileges for Mr. Nyugen as his intrusive behaviour diminishes.” It noted that no inquiry had been made as to whether Waypoint would have a behavioural therapist available for the appellant.

[16] Second, the Board discounted the prospect that the appellant’s lack of engagement in programs at CAMH might increase if his request for a transfer were met. It noted Dr. Walton’s evidence that his challenges may continue wherever he was transferred. The Board also highlighted that, while at CAMH, the appellant had participated in several recreational activities and attended three social events, displaying some progress. There had also been no incidents of inappropriate touching since January 2019.

[17] Third, while the Board noted CAMH’s view that a transfer would allow the appellant more liberal off-unit privileges within a secure perimeter, it found that the appellant would not be granted such privileges “any time soon” given the content of the Waypoint Letter. Specifically, the Board stated that it “cannot conclude that Mr. Nguyen could have more off-unit privileges at Waypoint.”

[18] Finally, the Board was not prepared to find that a move from CAMH, a medium secure facility, to Waypoint, a high secure facility, would be the least onerous and least restrictive disposition in the circumstances. This was especially so given that other medium secure facilities with secure perimeters had not been explored as transfer options.

Analysis

Rejection of the Joint Submission

[19] A joint submission is beneficial to the Board’s process. It can narrow the issues, reduce the time and expense of hearings, and minimize inconvenience to witnesses. It can also temper adversarial positions to the benefit of the person whose disposition is under consideration. Nevertheless, the Board is inquisitorial in its approach, and has the authority and duty to reject a joint submission that does not meet the requirements of s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46: Re Benjamin, 2016 ONCA 118, 345 O.A.C. 210, at paras. 19-20.

[20] Where the Board considers that it might reject a joint submission, it must provide notice in order to give procedural fairness to the parties, especially to the person subject to the Board’s disposition. The form of the notice may vary. For example, it may be given expressly by a statement that the Board is considering rejecting the joint submission and inviting additional evidence or submissions. This statement may be made during the hearing or after the Board has taken the matter under deliberation. Or it may be given implicitly, by Board members asking questions during the hearing that “are significantly probing about the core elements of the joint submission”: Re Benjamin, at para. 22. Ultimately, whether appropriate notice has been given is a contextual issue, the test being whether the method followed satisfied the objective of allowing the person subject to the Board’s disposition to present evidence and argument relevant to the Board’s decision: Benjamin, at paras. 22-23; Re Osawe, 2015 ONCA 280, 125 O.R. (3d) 428, at paras. 73-74.

[21] In this case, the Board did not give an express notice that it was considering rejecting the joint submission. However, it also gave no indication that it was satisfied with it. During the hearing, Board members asked questions about the core plank of the joint submission—the proposed transfer to Waypoint. These included questions about the statements in the Waypoint Letter concerning whether, and when, the appellant might enjoy off-unit privileges within Waypoint’s secure perimeter; the existence and availability of such privileges were the key advantage ascribed to the proposed transfer. Beyond that, there were also questions about another effect of the proposed transfer—the end of the appellant’s relationship with the behavioural therapist at CAMH and whether anything similar would be available to the appellant at Waypoint.

[22] In our view, taken as a whole, the questions asked were “significantly probing about the core elements of the joint submission” so as to provide the required notice that the joint submission may be rejected. The fact that more than one Board member picked up the same topic for questioning adds important contextual support for this conclusion. The recurring themes in the questions show not only that Board members had initial concerns about the joint submission, but that they maintained those concerns even after initial answers were proffered.

[23] The appellant argues that, in determining whether the asking of questions conveys notice that the joint submission might be rejected, consideration must be given not only to the questions but also to the answers. We agree that the answers form part of the context; but we do not agree that consideration of them detracts from what the questions conveyed concerning the fate of the joint submission. Dr. Walton gave thoughtful answers to the Board members’ questions. However, Dr. Walton had no experience at Waypoint or direct familiarity with the way it performed risk assessments. The Board was not required to accept her views about the likelihood of the appellant receiving off-unit passes there and the Board was entitled to form its own views based on the Waypoint Letter. Nor was the Board required to accept her suggestion that behavioural therapy would be available to the appellant at Waypoint equivalent to that at CAMH, as she had acquired no information on that topic.

[24] Nothing in the Board members’ reactions to Dr. Walton’s answers suggested that Dr. Walton had allayed their concerns; the revisiting of certain subjects by more than one Board member would, if anything, suggest that the concerns were not allayed.

[25] The implicit notice that the Board provided through its questioning satisfied the objective of allowing a meaningful opportunity to present evidence and argument relevant to the Board’s disposition. While it is undoubtedly preferable for a Board, when considering the rejection of a joint submission, to give express notice and an express opportunity to lead more evidence and make additional submissions, here the Board did not err by failing to do so. The parties were well placed, in listening to the Board’s questions and evaluating the answers Dr. Walton was able to give, to determine whether more evidence should be led and/or whether any specific submissions should be made to better ensure acceptance of the joint submission.

[26] The Board did not fail in its duty of procedural fairness. We reject this ground of appeal.

The Unreasonableness Ground of Appeal

[27] The appellant, supported by CAMH, also argues that the Board’s disposition, to the extent that it fails to give effect to the requested transfer to Waypoint, is unreasonable. The appellant submits that the Board misapprehended the evidence about when the appellant had been off the unit at CAMH, and the evidence in the Waypoint Letter about when off-unit access would occur there. The appellant also submits that the Board unreasonably rejected evidence suggestive of a treatment impasse at CAMH that had a prospect of being overcome at Waypoint.

[28] This court may allow an appeal against a disposition of the Board where the disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code, s. 672.78(1)(a). A reasonable decision is one where the Board’s “reasoning process and the outcome” reflects “an internally coherent and rational chain of analysis…that is justified in relation to the facts and law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 83, 85; Re Ahmadzai, 2020 ONCA 169, at paras. 12-13. A proper appreciation of the evidence is related to whether the resulting decision is reasonable, as “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: Vavilov, at para. 126; Re Ahmadzai, at para. 23.

[29] In our view, the Board’s decision was not unreasonable. The Board did not misapprehend the evidence about when the appellant had been off the unit at CAMH, nor the statement in the Waypoint Letter about what needed to occur before off-unit access would be allowed there. The Board’s decision accounted for the evidence before it. The Board’s critical finding, that off-unit access at Waypoint would not be allowed “any time soon”, was available to it on the record.

[30] There was no evidence of a treatment impasse at CAMH in the sense of there being an absence of treatment, a complete refusal to engage with the treatment team, or treatment of no effect on the management of the appellant’s mental health issues: Re Abeje, 2019 ONCA 734, at para. 30. The Board’s finding that there had been some progress with the behavioural therapist at CAMH was not contrary to the evidence. For example, there was evidence that interaction with the behavioural therapist had recently resulted in the appellant meeting certain goals relating to hygiene and a reduction of inappropriate touching. This progress was appropriately contrasted by the Board with the lack of evidence that anything similar would be available at Waypoint, and was appropriately assessed by the Board in light of Dr. Walton’s statement that the appellant’s motivation to engage in treatment might not be better even if he moved to Waypoint.

[31] The Board’s disposition is internally coherent and reflects a rational chain of analysis justified in light of the facts and law. We reject this ground of appeal.

Conclusion

[32] For the above reasons, the appeal is dismissed.

“David Watt J.A.” “Fairburn J.A.” “B. Zarnett J.A.”