Court of Appeal for Ontario

Date: 2017-01-24 Docket: C62461 Judges: Doherty, Blair and Lauwers JJ.A.

In the Matter of: Chanh Henry Trang

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti and Joseph Berger, for the appellant
• Rebecca De Filippis, 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: January 20, 2017

On appeal of the disposition of the Ontario Review Board, dated June 14, 2016.

Endorsement

[1] Introduction

The appellant, Chanh Henry Trang, appeals the June 14, 2016 disposition of the Ontario Review Board ("Board") that ordered him to be detained at the Waypoint Centre for Mental Health Care – Provincial Forensic Programs Division ("Waypoint"). The order also required the person in charge of Waypoint to "create a program for the detention in custody and rehabilitation of the accused" within Waypoint.

Background

[2] Criminal History and Index Offence

In May 2011, the appellant was found not criminally responsible on account of mental disorder on a charge of assault in contravention of the Criminal Code, R.S.C. 1985, c. C-46. The index offence involved an assault on a staff member at the Centre for Addiction and Mental Health ("CAMH"), where the appellant was an involuntary patient in May 2010. Before this offence, the appellant had a lengthy criminal history. The hospital report sets out his record of prior criminal convictions, starting in 1994 and proceeding up to 2003. His convictions include a number of fraud charges, at least two possession of property obtained by crime charges, and a conviction for assault causing bodily harm and obstructing a peace officer.

[3] Mental Health Diagnosis

The appellant suffers from Schizophrenia–Paranoid Type (specifier: continuous), Neuroleptic Malignant Syndrome (past history of), and Neuroleptic-Induced Tardive Dyskinesia. He also has a history of medication noncompliance.

The Hearing

[4] Board's Disposition

The appellant conceded, at the hearing, that he presented a significant risk of serious harm to the public under s. 672.54 of the Criminal Code, and did not seek a discharge disposition. He only sought to be transferred to CAMH. The Board concluded that the appellant should continue to be detained at Waypoint with the same privileges and conditions set out in his previous disposition.

Grounds of Appeal

[5] Single Argument: Treatment Impasse

The appellant makes a single argument on this appeal, which is that he has reached a treatment impasse at Waypoint. He asserts it can only be addressed by an order requiring a comprehensive assessment of the risk he poses and the treatment he needs that must be undertaken by a qualified forensic psychiatrist who is independent of Waypoint, followed by a new hearing before a differently constituted panel of the Board.

[6] Prior Court Endorsement

In raising this argument, the appellant relies on this court's endorsement dated June 6, 2016 (Trang (Re), 2016 ONCA 441) relating to the Board's previous disposition, in which the court recognized a lack of unanimity among members of the treatment team as to whether the appellant could be managed in a less secure setting than Waypoint. In the endorsement, this court said there was "no treatment impasse in this case" with respect to the appellant's ongoing treatment plan. The court went on to say:

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.

[7] Assessment by Dr. Eayrs

The endorsement was released four days before the appellant's review hearing and apparently led to the assessment work done by Dr. Beth Eayrs, who is a forensic psychiatrist employed at Waypoint. She was not the treating physician, and candidly admitted to the Board that she did not have time to write a formal report.

Analysis

[8] Legal Framework for Treatment Impasse

We agree with the appellant that, as part of its inquisitorial function, the Board is obliged to consider the possibility that a treatment impasse has been reached where the evidence suggests it. The relevant principles related to the determination of a treatment impasse were set out by the Supreme Court's decision in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 42; see also R. v. LePage, [2006] O.J. No. 4486 (C.A.), at paras. 23-26, and R. v. Conway, 2008 ONCA 326, [2008] O.J. No. 1588 (C.A.), at paras. 29-34, per Armstrong J.A., and at paras. 67, and 83-85, per Lang J.A.

[9] Mazzei Standard

The Supreme Court noted in Mazzei, at para. 42, that the Board is obliged to identify and address treatment impasses, "where no progress has been made or is likely to be made", on the evidence before it, in light of the Board's responsibility: to provide opportunities for appropriate and effective medical treatment with a view to controlling and reducing that risk, to work towards the ultimate goal of rehabilitation and reintegration, and to safeguard the liberty interests of the accused in this process." The appellant argues his is such a case.

[10] No Treatment Impasse Found

We do not accept the appellant's submission that, "there is a glaring treatment impasse here."

[11] Evidence Did Not Substantiate Impasse

This court referred to the possibility of a treatment impasse in its earlier endorsement, and such a possibility formed the backdrop of the Board's hearing, although nothing was directly said about it in the reasons of the Board. The evidence did not substantiate the existence of a treatment impasse.

[12] Treatment Plan in Place

Dr. Eayrs gave evidence that there is a treatment plan in place that could benefit the appellant going forward. One element is reducing the appellant's access to water and preventing the debilitating effects on him of water intoxication. Another element is a prospective trial with the medication, Clozapine. She gave three reasons for proposing the Clozapine trial:

Clozapine's most likely to successfully prevent aggressive incidents. Secondly, many cases of Tardive Dyskinesia improve after a person has been switched to Clozapine. And – and then, thirdly, Clozapine is most likely to actually help with excessive water drinking. It's really the only – I remember doing a literature review on water intoxication a number of years ago and it was basically the only medication that showed some evidence of making a positive impact on the pattern of water intake. It's because it addresses impulsivity I think. And so it's the preferred medication when a person is engaging – it's a preferred treatment over other antipsychotic treatments in that context.

Given that the appellant good level of medication compliance, Dr. Eayrs had some confidence that the Clozapine trial would be successful. The third element of the treatment plan is the possibility of resuming ECT treatments, to which the Official Guardian and Trustee have already acceded.

[13] Criticism of Non-Independent Assessment

The appellant is critical of the Hospital's failure to engage a truly independent witness, since Dr. Eayrs is a Waypoint employee.

[14] Time Constraints

Time was very short between this court's previous endorsement and the Board's hearing now under appeal. No real fault can be ascribed on this account.

[15] Concept of Treatment Impasse

The concept of a treatment impasse is premised on the expectation that treatment will inevitably lead to a patient's improvement, but sometimes the true dimensions of the illness make that expectation unrealistic at the point in time that it is being evaluated. In the circumstances of this case, the absence of a Board finding on whether a treatment impasse exists is reasonable.

[16] Transfer to CAMH

Before the Board, the appellant argued that in selecting the least onerous and least restrictive order that it could make, the Board ought to have ordered his transfer to a medium security facility, specifically CAMH. Counsel for the appellant pursues that issue on appeal and takes the position that the transfer is necessary so that the appellant can be independently assessed.

[17] Board's Decision on Transfer

We do not accept this argument. The Board's decision not to transfer the appellant to CAMH is well supported by the evidence. The Board made this finding:

We are satisfied that there is a real issue concerning water intoxication and that issue cannot be dealt with appropriately at CAMH. We also accept the evidence of a history of eloping from CAMH. We are satisfied that at the present time Mr. Trang's threat to public safety can only be managed at this facility.

[18] CAMH Letter

The Board admitted into evidence a letter from CAMH dealing with the request to transfer the appellant to that facility:

Over the last year, Mr. Trang has been maintained on the most highly structured unit at Waypoint. He has had to be secluded on many occasions and had been maintained on the lowest security level for much of the year. Over the course of the year, he has made numerous threats to kill the staff, has threaten to self-harm and has is engaged in excessive water intake. This has required him to be, not just in seclusion, but in a specialized padded room in seclusion. Such a padded room is not available in the seclusion rooms at CAMH. Neither do we have facility to cut off access to water in the same way that is possible at Waypoint.

For all of these reasons, I agree that Mr. Trang still requires the level of security provided at Waypoint and do not believe that the transfer to CAMH would be the necessary and appropriate Disposition.

[19] Reasonableness of Board's Decision

Further, in declining to order the appellant's transfer to CAMH, the Board specifically relied on the evidence in the hospital report and on the evidence given by Dr. Eayrs. The Board's decision not to order the appellant's transfer to CAMH was reasonable.

Disposition

[20] Appeal Dismissed

The appeal is dismissed.

"Doherty J.A."

"R.A. Blair J.A."

"P. Lauwers J.A."