COURT OF APPEAL FOR ONTARIO

CITATION: Trang (Re), 2016 ONCA 441

DATE: 20160606

DOCKET: C60759

Strathy C.J.O., Pepall and Hourigan JJ.A.

IN THE MATTER OF: Chanh Henry Trang

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti, for the appellant

Moiz Rahman, for the respondent the Attorney General for Ontario

Janice Blackburn, for the respondent the Person in Charge of Waypoint Centre for Mental Health Care

Heard: May 30, 2016

On appeal against the disposition of the Ontario Review Board dated June 18, 2015.

ENDORSEMENT

Background

[1] On May 20, 2011, the appellant was found not criminally responsible on account of mental disorder (“NCR”) on a charge of assault contrary to the Criminal Code, R.S.C. 1985, c. C-46.

[2] Since the time of the index offence, the appellant has been continuously detained in a maximum security psychiatric facility.

[3] The appellant suffers from Schizophrenia-Paranoid Type (specifier: continuous), Neuroleptic Malignant Syndrome (past history of) and Neuroleptic-Induced Tardive Dyskinesia. His form of schizophrenia is treatment resistant. His treatment proposals and past treatment modalities included electro-convulsive therapy (“ECT”, also known as shock treatment), and clozapine, an oral anti-psychotic medication.

[4] The appellant had been receiving ECT treatment and it seemed to the treatment team that he could be transferred to the Centre for Addiction and Mental Health (“CAMH”). However the ECT treatment was discontinued because he experienced seizure activity. Without ECT, his condition deteriorated.

The Hearing

[5] The appellant’s hearing was scheduled before the Ontario Review Board (the “Board”) for June 1, 2015. At the time of the Board’s hearing, the appellant was awaiting an EEG and a CT scan to ascertain the possible cause of the seizure so as to determine whether he could undergo further ECT treatments.

[6] On June 18, 2015, the Board found that the appellant continued to be a significant threat to the safety of the public, a finding that is conceded by the appellant. The Board relied on the view of Dr. Helena Chekina who had been the appellant’s attending physician since August 2013. She had opined that the appellant would be difficult to manage in a less secure setting and that if he were transferred to a less secure institution than Waypoint Centre for Mental Health Care (“Waypoint”), he would be significantly more restricted due to his high risk of elopement.

[7] The Board concluded that the appellant should stay at Waypoint. The Board therefore ordered that he continue to be detained at Waypoint with the same privileges and conditions as set out in his previous disposition. These included hospital and grounds privileges beyond the secure perimeter of the institution when escorted by staff and in the discretion of the Person in Charge of Waypoint.

Grounds of Appeal

[8] The appellant appeals against this disposition. He takes the position that the hearing before the Board constituted a miscarriage of justice.

[9] He submits that his challenge to the psychiatrist qualifications of Dr. Chekina, her representations, and his treatment team’s lack of unanimity on his placement obliged the Board to conduct its own inquiries. He also submits that the Board ought to have ordered an independent assessment. No issue was taken with Dr. Chekina’s clinical opinions on the risk the appellant poses, that he is a high elopement risk, or on the nature of his schizophrenia. The challenge related to her opinion on the relative restrictions between Waypoint and CAMH.

[10] Accordingly, the appellant asks this court to order his transfer to CAMH, conduct a re-hearing before a new panel, or order an independent assessment.

Analysis

[11] The Board was alive to the issue of Dr. Chekina’s qualifications, which it reviewed in some detail, and was entitled to accept her qualifications and her opinions. The Board was itself comprised of two psychiatrists.

[12] The Board was advised at the commencement of the hearing that some of the appellant’s treatment team members were of the view that he could be managed at a less secure setting. Dr. Chekina, the program director, hospital administration, and the clinical manager on the program all were of the view that the appellant should stay at Waypoint. The Board asked questions on, and was alive to, the issue of lack of unanimity. We are not persuaded that there was a miscarriage of justice or any failure to inquire. We also observe that Dr. P. Wright, a psychologist at CAMH, wrote that CAMH continued to oppose a transfer to its facility.

[13] There was no treatment impasse in this case. The appellant had been responding to the ECT treatment before it was discontinued but is now awaiting an electrocardiogram, a CT scan and an EEG to determine the cause of the seizure activity.

[14] The Board’s decision reflected the least onerous and least restrictive disposition for the appellant. The Board balanced the appellant’s admitted continuing threat to public safety with the need to restrict his liberty and reasonably concluded that this balance was best achieved by having the appellant remain at Waypoint. The Board’s decision was reasonable.

[15] Having so concluded, we would nonetheless observe that in the unique circumstances of this case, the Board may wish to consider whether the appellant should be independently assessed at his forthcoming hearing scheduled for this month.

Disposition

[16] The appeal is dismissed.

“G.R. Strathy C.J.O.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”