COURT OF APPEAL FOR ONTARIO

CITATION: Tran (Re), 2020 ONCA 722

DATE: 20201112

DOCKET: C67286

Pepall, Hourigan and Roberts JJ.A.

IN THE MATTER OF: Van Truong Tran

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti and Maya Kotob, for the appellant

Dena Bonnet, for the respondent, Attorney General of Ontario

Kendra A. Naidoo, for the respondent, Person in Charge of the Centre for Addiction and Mental Health

Heard: June 2, 2020 by videoconference

On appeal from the disposition of the Ontario Review Board, dated July 18, 2019, with reasons reported at [2019] O.R.B.D. No. 1733.

Pepall and Roberts JJ.A.:

A. Introduction

[1] This appeal primarily focuses on the issue of notice of a significant increase in restrictions on the liberty of an NCR (not criminally responsible on account of mental disorder) accused and the resultant mandatory hearing under ss. 672.56(2) and 672.81(2.1), respectively, of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), and the application of the framework established by this court in Campbell (Re), 2018 ONCA 140, 139 O.R. (3d) 401. The appellant, Van Truong Tran, submits that notice and a restriction of liberty hearing were required and that the increased restrictions on his liberty were not the least onerous and least restrictive in the circumstances.

[2] Mr. Tran also asks that the Ontario Review Board’s (the “Board’s”) continued detention disposition be replaced by a conditional discharge disposition.

[3] Lastly, as part of this appeal and the companion appeal in Brownlee (Re), 2020 ONCA 723, the Attorney General of Ontario invites this court to endorse its proposed procedures on notices and hearings under ss. 672.56(2) and 672.81(2.1) of the Code.

[4] For the reasons that follow, we would dismiss the appeal. We would also decline to endorse the Attorney General’s proposed notice and hearing procedure.

B. Background Facts

[5] Mr. Tran had been found NCR on charges of attempted murder, assault with a weapon, endangering life while committing an assault, aggravated assault, uttering threats to cause death or bodily harm, and possession of a weapon for a dangerous purpose. The index offences occurred in April 2014. He had stabbed the victim in his right side before stabbing him again in the back. Two days later, he contacted the victim, stating “this time, it was with a knife” but the next time “it could be worse.” He has been diagnosed with schizophrenia and substance use disorder (which is in remission in a controlled setting) and has differential diagnoses of schizoaffective disorder and major depressive disorder.

[6] He is 49 years old, and prior to the index offences, he had no known psychiatric history or hospitalizations. He was initially under the jurisdiction of the Quebec Review Board and subsequently was transferred to the Centre for Addiction and Mental Health (“CAMH”) in March 2016. He started on the secure forensic unit and then was moved to the general forensic unit in November 2016.

[7] In February 2017, he began using accompanied hospital grounds privileges. This meant he could leave the ward with one staff person and other patients. This expanded to use of accompanied privileges to the community in April 2017.

[8] By October 2017, he was exercising indirectly supervised privileges on hospital grounds, and by January 2018, to the community. This meant he could leave the grounds alone.

[9] On June 4, 2018, he was subject to a disposition detaining him on a general forensic unit with privileges up to and including community living in approved accommodations with conditions. He continued to reside on the general forensic unit, under the care of Dr. Benassi. In the hospital report filed as evidence before the Board, CAMH reported that there were no incidents of violence, physical aggression, absconding, or other problematic behaviour. He attended Hong Fook Asian Mental Health Association’s English classes (“ESL classes”) twice a week in the community, which were operated by the Toronto District School Board. His team arranged for a Vietnamese-speaking volunteer to visit Mr. Tran and assist in practicing his English. The hospital further reported that with encouragement from the recreational therapist, Mr. Tran participated in some recreational programming, including a cooking group, gym, and a summer outdoor soccer league. Feedback from program facilitators was positive.

[10] Other than his partner, who visited once or twice a month at the hospital, Mr. Tran did not identify any other personal supports. The hospital reported that he was not observed to often socially engage with others and tended to keep to himself in the hospital and in the community. The clinical team applied to a variety of community accommodations, and Mr. Tran was designated Alternative Level of Care, a hospital designation that signifies readiness for discharge.

[11] In January 2019, Mr. Tran asked to switch to a new antipsychotic medication due to potential weight gain side-effects. The hospital changed his medication.

[12] On April 10, 2019, the Board convened for Mr. Tran’s 2019 annual disposition review, but it was adjourned to June 12, 2019 due to the absence of the Vietnamese interpreter.

[13] After April 10, 2019, his clinical team saw a change in his mental state and noticed behavioural changes indicating possible mental deterioration. In its report, the hospital stated:

On several occasions [Mr. Tran] was observed to be talking to himself out loud in Vietnamese which was out of character for him. When questioned about this, he claimed he was either [singing] out loud or telling others (who were not Vietnamese-speaking) “jokes.” His affect remained euthymic, yet he became more socially withdrawn and suddenly stopped participating in hospital and community programming. It was discovered that he missed several Hong Fook ESL classes as he stopped attending. When questioned by the team, he claimed he was suffering from a “headache” [and] could no longer concentrate and participate in programs or activities.

[14] As of April 10, 2019, he had voluntarily ceased attending all of his community programs but was using indirectly supervised passes daily to go on hospital grounds and to go to the store in the community across the street from the hospital.

[15] Then, on April 30, 2019, Mr. Tran disclosed at his team review that he had been experiencing delusions and auditory hallucinations, and that they had been present during his entire admission to CAMH. He reported hearing voices that, among other things, would threaten to kill him. Dr. Benassi comprehensively assessed Mr. Tran, who no longer believed that he suffered from a mental condition and did not believe psychotic treatment was necessary to manage his mental condition or that there would be any consequence if discontinued. Dr. Benassi opined that Mr. Tran was no longer capable of consenting to psychiatric treatment.

[16] On April 30, 2019, Mr. Tran’s team placed on hold his access to the community and his indirectly supervised privileges both on the hospital grounds and in the community. He did not lose his accompanied privileges to the hospital grounds but declined to use them. He did not want to go out with staff members.

[17] On May 28, 2019, Mr. Tran regained his access to escorted community passes, but again did not want to go out with staff members. On June 7, 2019, he was restarted on his former medication. Dr. Benassi testified that within two to three weeks the hospital might be in a position to restore the passes.

CAMH Letter to the Board

[18] On May 27, 2019, CAMH wrote to the Board, with a copy to the Crown and Mr. Tran’s counsel, for “informational purposes only” pursuant to para. 69 of this court’s decision in Campbell.

[19] Dr. Darby, the Person in Charge at CAMH, commenced CAMH’s letter with reference to Campbell. He advised that as of April 30, 2019, Mr. Tran’s indirectly supervised off-unit privileges were placed on hold:

due to a significant deterioration in his mental state, including auditory hallucinations and paranoid beliefs. Mr. Tran has disclosed that he has been hearing voices making derogatory comments and threatening to kill him. At times, the auditory hallucinations scare Mr. Tran, who also believes he has a camera in his eye controlled remotely by people via the Internet and has disclosed delusional thoughts with respect to people spying on him. Mr. Tran has had at least two episodes of non-compliance with his oral anti-psychotic medication during this period of psychotic relapse.

[20] Dr. Darby explained that Mr. Tran’s indirectly supervised passes were on hold given concerns about his risk to others if unsupervised while off the unit. Mr. Tran continued to have access to staff-accompanied passes off the unit.

[21] Dr. Darby added that when Mr. Tran’s passes were placed on hold, Mr. Tran’s “liberty norm” could be characterized as the exercising of indirectly supervised passes into the community and on hospital grounds. Referencing Campbell, Dr. Darby acknowledged that the restriction from April 30 to the date of the letter, May 27, 2019, clearly deviated from Mr. Tran’s established “liberty norm”. However, applying the test from Campbell, CAMH took the position that “a reasonable person aware of the circumstances of Mr. Tran’s case would not believe that the hospital’s decision to place his indirectly supervised passes on hold resulted in a loss of liberty so significant that the Board must convene a hearing” (emphasis in original). Dr. Darby concluded his letter by stating that the hospital’s actions were the least onerous and restrictive way of managing the risk, the letter was not a notification under s. 672.56(2) of the Code of a significant restriction of liberty, and Mr. Tran’s annual review was scheduled for June 12, 2019.

[22] On May 28, 2019, Mr. Tran’s counsel wrote to the Board asking it to convene a hearing to review the allegedly significant increase on the restriction of his liberty.

[23] On May 29, 2019, the Board responded to Dr. Darby at CAMH with a copy to Mr. Tran’s counsel, stating that his letter would be distributed at Mr. Tran’s annual hearing on June 12, 2019. It did not write separately to Mr. Tran’s counsel.

The Hearing and the Board’s Decision

[24] The Board convened on June 12, 2019. It addressed the necessary and appropriate disposition. As well, the Board considered Mr. Tran’s loss of privileges and asked the parties to provide written submissions on this issue.

[25] CAMH and the Crown recommended the continuation of the detention order and took the position that there was no need to review the restriction of liberty decision of the hospital.

[26] Mr. Tran took the position that he was not a significant threat and was entitled to an absolute discharge, or if found to be a significant threat, a conditional discharge with terms mirroring the current detention order. He also sought a review of his restriction of liberty.

[27] The Board found that Mr. Tran continued to pose a significant threat to the safety of the public. He had limited insight into his illness and the need for medication, could not consent to treatment, and exhibited positive signs of his illness. The index offences were very serious and violent, and he was experiencing symptoms of psychosis and auditory hallucinations similar to those he experienced at the time of the index offences. The hope was that once his new medication dosage was optimized, his privileges would incrementally increase to the point of once more exercising his indirectly supervised passes. The Board determined that the necessary and appropriate disposition was a continuation of the detention order on the general forensic unit, with privileges up to and including community living in approved accommodations, as well as the terms and conditions that were implemented in the prior year’s disposition.

[28] As for the restriction of liberty decision, the Board noted the need for an individualized assessment, as mandated by this court in Campbell, and that the court, at para. 65, directed the Board to consider what liberty the accused was “actually experiencing before the increased restrictions were put in place.”

[29] At para. 12 and following of its reasons, the Board reviewed in detail Dr. Benassi’s evidence. At para. 13, the Board reviewed evidence that “[f]rom April 10^th until April 30^th, notwithstanding the change in Mr. Tran’s behaviour, he continued to use his indirectly supervised passes, although in a somewhat limited fashion.” Further,

sometime after April 10, 2019, he stopped going to his ESL classes and other programs in the community and he only used his hospital ground privileges. Dr. Benassi advised that he expects Mr. Tran’s privileges to slowly be restored beginning in the next two to three weeks, as it is hoped that he will show improvement, as he started his Olanzapine [his former medication] last week. However, the usual trajectory is that the treatment team will want him to successfully use his escorted passes to the community first (for example, to see if he can follow direction of staff), before reinstituting indirectly supervised passes to the community.

[30] The Board, at para. 17, noted Dr. Benassi’s evidence that up until April 2019, Mr. Tran was using his passes for other activities, such as soccer, attending stores, and running errands by himself. He had several hours a day in which he was exercising those passes.

[31] The Board commenced the analysis section of its reasons on restriction of liberty by referring to para. 68 of Campbell, where this court identified an instance where notice is required as one where an NCR accused has been “afforded significant community access for long enough that it has become the individual’s liberty norm”. The Board then asked itself whether, considering Mr. Tran’s lengthy access to the hospital grounds and community, the Board should exercise its jurisdiction and what circumstances it should consider. It considered the dicta in Campbell on notice as an important liberty safeguard, the need for a case-by-case review, an individualized assessment, and the rejection by Campbell of a categorical approach.

[32] The Board directed itself to consider the liberty Mr. Tran was “actually experiencing before the increased restrictions were put in place”: Campbell, at para. 65. The Board wrote, at para. 41:

It was after around April 10^th that there was observed a noticeable change in Mr. Tran’s behaviour, which appears to have resulted in Mr. Tran no longer utilizing his indirect passes to the community to, for example, attend ESL classes. He used his passes from April 10-30, but only to attend the hospital and grounds and to attend the store across the street from the hospital. [Emphasis added.]

[33] The Board concluded, at para. 42:

Mr. Tran’s liberty norm on April 30, 2019 was … in a “state of flux” and it was “in the process of deteriorating”. As well, this is not a situation where Mr. Tran was employed or going to school at the time his indirectly supervised passes were curtailed, as Mr. Tran had stopped attending ESL classes from around April 10, 2019. It is reasonable to conclude that the deterioration in Mr. Tran’s mental state was probably the reason why he no longer was attending such classes, or using his community privileges to the degree he was prior to April 2019. The Court in Campbell mandates an analysis of the determination of the pre-existing liberty norm that “considers the individual’s pattern of liberty in the recent past” (para 66). The Board finds that Mr. Tran’s liberty norm could be characterized, on April 30, 2019, as him significantly reducing the use of his indirectly supervised hospital and community privileges. He also continued to have accompanied hospital grounds privileges, and escorted passes to the community were reinstated on May 28^th. [Emphasis added.]

[34] As such, the Board concluded that Mr. Tran’s liberty norm following removal of the passes was not significantly different than his liberty norm prior to that date. He could no longer attend the hospital grounds or the store just outside the hospital grounds, indirectly supervised, and his escorted passes to the community were withheld until the end of May and then reinstated.

[35] The Board found that Mr. Tran’s restriction of liberty, and change in liberty status, was not so “significant” that “a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review”: citing Campbell, at para. 67. At para. 44, the Board also adopted the submission of Ms. Naidoo, counsel for CAMH, that:

Given the significant increase in risk associated with the emergence of active symptoms similar to those at the time of the index offence, and concurrent changes in Mr. Tran’s behavior, the decision of [the] hospital to ensure that he was supervised when off the unit was clearly within the hospital’s day-to-day discretion, necessary to protect public safety.

[36] The Board decided that a notice of restriction of liberty was not required.

C. Issues

[37] This appeal raises four issues:

1. Did the Board err in ordering Mr. Tran’s continued detention?

2. Did the Board err in concluding that the increase in the restrictions on Mr. Tran’s liberty was not significant?

3. If the increase in the restrictions on liberty was significant, was this increase the least onerous and least restrictive measure in the circumstances?

4. Should this court impose a restriction of liberty notice and hearing procedure on the Person in Charge and the Board, as proposed by the Attorney General?

D. Standard of Review

[38] The standard of review of a Board decision is set out in s. 672.78 of the Code. This court is only entitled to interfere if the decision (a) is unreasonable or cannot be supported by the evidence; (b) is based on a wrong decision on a question of law; or (c) occasioned a miscarriage of justice. The reasonableness standard of review “applies to findings of facts and the drawing of inferences”: Campbell, at para. 27. If the Board’s disposition is “supported by reasons that can bear even a somewhat probing examination”, it will not be considered unreasonable: Saikaley (Re), 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35, citing Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 17. The Board’s discretionary decisions are similarly owed deference: Saikaley, at para. 36. Questions of law, on the other hand, are assessed on a correctness standard: M.L.C. v. Ontario (Review Board), 2010 ONCA 843, 104 O.R. (3d) 450, at para. 21.

[39] As discussed in Campbell, at para. 28, the meaning to be given to “significantly increase” in s 672.81(2.1) attracts a standard of correctness because this engages a question of law. A reasonableness standard applies to the Board’s application of the test in Campbell.

E. Analysis

(1) Did the Board err in ordering Mr. Tran’s continued detention?

[40] While not conceding that he continued to be a significant threat to the safety of the public, Mr. Tran focused his challenge of the disposition on the Board’s rejection of his submission that he should be discharged pursuant to certain conditions. Mr. Tran had consented to submit to a treatment clause and to the Person in Charge determining his residence and agreed to remain at CAMH until appropriate accommodation could be found for him.

[41] The Board determined that a conditional discharge was not an appropriate disposition in Mr. Tran’s circumstances. These circumstances included Mr. Tran’s significant psychiatric history, the index offences, and his recent decompensation following a change in his medication. In consequence, the Board concluded that although Mr. Tran was initially designated as ready for discharge, that plan had to be altered because of the dramatic change in his condition. As a result of this change, his risk to the public could not be adequately safeguarded by a conditional discharge disposition. A detention order allowing CAMH staff to stabilize Mr. Tran’s psychotic symptoms and medication, approve his housing, and determine his level of privileges in the community was required to manage his significant risk to the safety of the public, with the hope that Mr. Tran would again be ready for discharge in the near future.

[42] We see no error in the Board’s disposition which was the least onerous and least restrictive in these circumstances, in accordance with s. 672.54 of the Code. The record clearly supports the Board’s conclusion that Mr. Tran represents a significant risk to public safety. Mr. Tran’s index offences were very serious: under the influence of his psychosis, he heard voices telling him to kill people, which led to him stabbing an acquaintance with a knife. While Mr. Tran has made significant progress over the last few years and was ready for discharge, unfortunately, following a change in his medication, he again began to exhibit psychotic symptoms and heard the same kind of voices that had led to the index offence, though Mr. Tran submits these voices do not instruct him to commit violence against others. He lost insight into his mental illness and need for medication, and he became incapable of consenting to treatment.

[43] In these circumstances, it was open to the Board to conclude that a conditional discharge was not appropriate. To manage Mr. Tran’s significant risk, the Board recognized, correctly in our view, that CAMH must be able to regulate Mr. Tran’s medication and treatment and to choose his residence and the details of community access, which is only possible under a detention order. This was the least onerous and least restrictive disposition in the circumstances.

[44] Accordingly, we would not give effect to this ground of appeal.

(2) Did the Board err in determining that the increase of the restrictions on Mr. Tran’s liberty was not significant?

[45] Mr. Tran submits that the Board erred in its approach and consideration of his use of privileges thereby incorrectly concluding that the increase of the restrictions on his liberty was not significant. He argues that the Board unreasonably minimized the importance of Mr. Tran being able to leave the unit on his own to go wherever he wants on the hospital grounds or to the store in the community. In addition, he submits that the Board misapprehended the evidence relating to his use of privileges.

(a) Code Provisions

[46] The relevant Code provisions are:

s. 672.56(2) A person who increases the restrictions on the liberty of the accused significantly pursuant to authority delegated to the person by a Review Board shall

(a) make a record of the increased restrictions on the file of the accused; and

(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board.

s. 672.81(2.1) The Review Board shall hold a hearing to review a decision to significantly increase the restrictions on the liberty of the accused, as soon as practicable after receiving the notice referred to in subsection 672.56(2).

(b) Division of Responsibilities and Context

[47] Under s. 672.81(1), an NCR accused is entitled to a review hearing of the Board every year. Between those annual reviews, authority is delegated to the hospital, which is charged with the care and progress of the accused. The hospital may make decisions between annual reviews which restrict the liberty of the accused. The question to be addressed with any restriction of liberty of an accused is when and whether a hearing is required between the regularly scheduled annual reviews. The purpose of an additional hearing is to take a second look at a hospital’s decision involving a restriction of the liberty of the accused.

[48] In M.L.C., this court succinctly described the division of responsibilities between the Board and the hospital while an NCR accused remains under the jurisdiction of the Board. The court stated at para. 28, that s. 672.56(1) of the Code:

allows the Board to delegate to the hospital certain decisions about the patient’s liberty. Any restrictions the hospital places on the patient must fall within the envelope of the conditions enumerated by the Board in its disposition. As a safeguard, any decision by a hospital that significantly restricts a patient’s liberty for more than seven days must be considered by the Board in a restrictions review.[^1]

As noted in that case, at para. 28, hospitals must be provided with sufficient flexibility to respond to a patient’s needs.

[49] It is easy to become entangled in the semantics of the notice requirement found in s. 672.56(2), but the fundamental issue must be whether the increase in the liberty restriction is sufficiently significant that a hearing into the merits of the hospital’s decision should be convened.

[50] The interpretation accorded to the significance component of the notice requirement in s. 672.56(2) follows from the context of the notice requirement in the overall statutory scheme. The words of the section are to be read in their entire context, as repeatedly instructed by the Supreme Court: see Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26, 29. This context includes the division of responsibilities between the Board and the hospital, as outlined above, and the other liberty safeguards present in the scheme, including the requirement for an annual review, and the mandatory nature of the hearing that follows automatically upon notice under s. 672.56(2), together with the public protection objective of the statutory provisions.

[51] The notice provision is an important safeguard for liberty, but it is far from the only liberty safeguard for the accused. It must be construed against the backdrop of the “many liberty safeguards in place”, including the requirement for an annual review and the availability of discretionary reviews at the direction of the Board or the hospital: Campbell, at paras. 50, 55 and 60.

[52] Once notice is triggered, a hearing is mandatory; there is no discretion given to the Board. The mandatory hearing obligation that flows from the giving of notice of a significant increase must also inform the meaning to be given ‘significant’. That is, given that the hospital must be afforded flexibility to respond to the day-to-day needs of the accused, in order to keep patients and staff safe and to provide care, notice and a mandatory hearing are not required for any increase in restriction on liberty. Such an approach would result in unnecessary mandatory hearings and interfere with the work of hospitals: Campbell, at para. 63.

[53] Considered in this context, “the purpose of s. 672.56(2) is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review”: Campbell, at para. 64.

(c) The Campbell Decision and its Application

[54] Campbell provided a useful analysis of the methodology to be taken when dealing with the issue of the notice requirement under s. 672.56(2). A case-by-case approach and an individualized assessment are to be adopted. Fairburn J.A. (as she then was) noted that as with all tests, over time, jurisprudence will breathe life into the analysis: Campbell, at para. 68.

[55] The Campbell framework provides, at paras. 65-67, that:

[T]he NCR accused’s liberty norm must be identified. Calibrating the liberty norm requires consideration of the duration and pattern of liberty the NCR accused was experiencing before the decision or decisions resulting in increased restrictions on liberty. Determining the liberty norm does not ask what the individual may have been entitled to, but what [they were] actually experiencing before the increased restrictions were put in place. The liberty must be of sufficient duration to have become, objectively speaking, the NCR accused’s norm.

Accordingly, when determining the NCR accused’s liberty norm, hospitals should take a contextual approach, one that considers the individual’s pattern of liberty in the recent past.

Once the liberty norm is determined, it must be compared against the NCR accused’s liberty status following the increases in restrictions. Only where the change in liberty status clearly deviates from the NCR accused’s liberty norm must the hospital notify the Board. The change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review.

[56] Put another way, Campbell asks:

1. Was there an increase in the restrictions on the accused’s liberty, having regard to:

(a) the accused’s liberty norm before the impugned restriction;

(b) the accused’s liberty status following the impugned restriction; and

2. If yes, is the “change in liberty status … so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review”: at para. 67.

Thus, Campbell contemplates first a finding on whether there was in fact an increase in restrictions. In Campbell itself, the majority of the Board had concluded that the transfer of Ms. Campbell from the secure forensic rehabilitation unit (“FRU”) to the secure forensic assessment unit (“FAU”) “actually resulted in a less restrictive environment” because at the FAU, she no longer needed one-on-one supervision: Campbell, at para. 18. Once an increase has been established, then the question is whether the increase is significant such that notice and a mandatory hearing are required.

[57] Campbell does not mandate an inflexible mathematical before and after approach to an NCR accused’s liberty norm. The “increase” component of s. 672.56(2), or part one of the test, requires a quantitative assessment, comparing the before and after of the accused’s liberty status. However, part two then involves assessment of the reasonableness or significance threshold. In this second part of the test, a contextual approach is to be adopted. This flows from Fairburn J.A.’s direction that the assessment of the significance of the increase should be contextual and individualized (Campbell, at paras. 65, 68) and conducted from the perspective of “a reasonable person, considering all of the circumstances”: Campbell, at para. 67 (emphasis added). This may include consideration of such factors as an accused’s history and use of privileges. Examination of what an accused has experienced in the recent past involves consideration of the use of privileges by the individual. It would also include an accused’s treatment horizon and the proximity of the annual review. This evaluation engages the “significant” component of s. 672.56(2).

[58] Applying the first part of the Campbell test, there was an increase in the restrictions on Mr. Tran’s liberty. He no longer could attend the hospital grounds or community indirectly supervised and for one month his escorted passes to the community were withheld. Indeed, in its Campbell letter to the Board, the hospital acknowledged an increase in the restrictions on Mr. Tran’s liberty. In making the restriction of liberty determination, the Board conflated the two parts of the test. The Board looked at both Mr. Tran’s liberty history and his more recent experience and concluded that his liberty norm was in a state of flux and in the process of deteriorating. Thus, it examined use of privileges in its analysis of Mr. Tran’s liberty norm rather than as a factor to be considered in its significance analysis. This conflation amounted to an error of law.

[59] However, we do not see any error with the Board’s conclusion that the significance threshold was not met. The Board recognized the need for a case-by-case analysis and the importance of notice as a liberty safeguard.

[60] In examining all of the circumstances (to use the words from Campbell), the hospital and the Board were faced with an NCR accused who had been using his privileges for a variety of activities, who was on the verge of being placed in a home in the community, whose medication was altered, whose mental state then seriously deteriorated, and who had reduced his own use of his privileges. He had stopped engaging in the indirectly supervised activities he used to enjoy, instead preferring to remain close to the hospital. While he could no longer exercise indirectly supervised passes, he continued to have access to accompanied passes to the hospital grounds, and as of May 28, 2019, he could use escorted passes into the community. He chose not to use those passes.

[61] We do not agree with Mr. Tran’s submission that the Board minimized the importance of his activities of walking around the hospital grounds or going to the nearby store in the community. By indicating that Mr. Tran was “only” participating in these activities, the Board did not engage in a qualitative evaluation of their worth. Rather, the use of the word “only” refers to the narrowness of Mr. Tran’s self-restricted activities, which the Board was entitled to take into account.

[62] Applying the second part of the Campbell test, the change in liberty status was not so significant that a reasonable person, considering all of the circumstances, including Mr. Tran’s reduced use of privileges, would think that notice and a hearing were required.

[63] The changes made in this case are the kind of day-to-day adjustments that should properly reside with the clinical team, the experts who are charged with the care and improvement in the mental condition of the NCR accused and his gradual reintegration into the community.

[64] As Fairburn J.A. wrote, at para. 63 of Campbell, the hospital must be left to do its work “free from constant review and all of the demands that a decision-notice-review-decision-notice-review approach would impose.” Absent a significant increase in the restriction of liberty, the day-to-day management decisions are to be left with the hospital until the next annual review. The significance inquiry must be informed by the discretion afforded to the hospital. To require notice and a hearing in the circumstances faced by the hospital and the Board in Mr. Tran’s case involves the precise sort of micro-management that Campbell warns against.

(d) Alleged Misapprehension

[65] Turning to the alleged misapprehension of the evidence, Mr. Tran submits that the Board erred in stating that after April 10, 2020, Mr. Tran was “significantly reducing” the use of his indirectly supervised hospital and community privileges and “only” using his passes to visit a store across the street from the hospital and to access the hospital grounds. According to Dr. Benassi’s evidence, Mr. Tran continued to use his privileges on a daily basis; only the nature of his activities had changed. As a result, according to Mr. Tran, the Board erred in concluding that Mr. Tran’s liberty norm was accordingly in a state of flux and deteriorating by April 30, 2019.

[66] It follows from our earlier analysis that the Board was entitled to rely on the evidence about Mr. Tran’s use of privileges in assessing the significance arm of the test. Moreover, certainly there was evidence to support the Board’s finding that Mr. Tran was “significantly reducing” his use of privileges and that his use was in a state of flux and in the process of deteriorating.

[67] The hospital report was filed in evidence before the Board. It reported that prior to April 10, 2019, Mr. Tran had attended ESL classes twice a week and recreational programming including a cooking group, gym and a summer outdoor soccer league. The hospital reported that shortly after April 10, 2019, he had stopped participating in hospital and community programming including his ESL classes. He had become socially withdrawn. By April 30, 2019, when his privileges were placed on hold, he had not been attending ESL classes or any of the other community programs for close to three weeks. This could only be described as a significant reduction or deterioration in usage, not in the sense of evaluating what was the best use of Mr. Tran’s time, but with respect to the materially narrowed scope of his activities.

[68] At the same time, the Board recognized that Mr. Tran was continuing to exercise his indirectly supervised privileges by going to the store across the street from the hospital and by accessing the hospital grounds.

[69] The Board did not misapprehend the purport of the evidence.

(3) Was the increase in restrictions on Mr. Tran’s liberty the least onerous and least restrictive measure?

[70] Since the Board determined that notice of the increased restrictions was not required, it did not go on to consider whether they were the least onerous and least restrictive measures to impose in the circumstances of this case. Mr. Tran requests that this court undertake that analysis.

[71] While not strictly necessary given our disposition of this appeal, we undertake this analysis for completeness. We conclude that the increase in the restrictions on Mr. Tran’s liberty was the least onerous and least restrictive in the circumstances.

[72] The Person in Charge was required to give due regard to Mr. Tran’s liberty interest in light of the twin goals of public safety and treatment and also had to ensure that the conditions it imposed met the least onerous and least restrictive standard: M.L.C., at paras. 27-28, 45-46; Chaudry (Re), 2015 ONCA 317, 125 O.R. (3d) 641, at para. 72, leave to appeal refused, [2016] S.C.C.A. No. 460.

[73] Mr. Tran had sadly decompensated following a change in his medication. He stopped attending all structured programming in the community, such as soccer and his ESL classes. The deterioration in his activities mirrored the deterioration in his condition. He heard the same kind of threatening voices that had urged him to commit the index offences. He had lost all insight into his condition. He was deemed incapable of treatment. The decision to impose more restrictive measures until Mr. Tran was stabilized was necessary to manage the risk he posed to others when unsupervised, given the deterioration in his mental state. Accompanied passes to the CAMH grounds remained available and escorted passes to the community were offered to Mr. Tran as of May 28, 2019. We are satisfied that this was the least onerous and least restrictive measure in these circumstances.

[74] Accordingly, and in any event, we would not give effect to this ground of appeal.

(4) Should the proposed restriction on liberty notice and hearing procedure by the Attorney General be imposed?

[75] On this appeal and in Brownlee, the Attorney General proposes that a uniform procedure to restriction on liberty notice and hearings should be developed. The Attorney General advocates this approach in order to respond to regional differences in how hospitals and the Board approach the question of notice and hearings in situations where the hearing has not been triggered automatically.

[76] In particular, the Attorney General submits that there are varying approaches to the giving of informal notices as noted by this court in Campbell. While notice under s. 672.56(2) of the Code will generate an automatic hearing under s. 672.81(2.1), it is always open to the hospital to simply inform the Board (in what has come to be known as a “Campbell letter”) about a decision that has changed the NCR accused’s liberty status. Counsel for the parties advised that in some jurisdictions, Campbell letters are not routinely filed with the Board. In other jurisdictions, where Campbell letters are sent to the Board, the Board apparently only acknowledges receipt and does not specifically respond to defence counsel’s request for a review.

[77] As a result, the Attorney General submits that the following procedure should be adopted:

(1) As obligated under Part XX.1, if notice is provided subject to s. 672.56(2), this will generate an automatic [restriction of liberty (“ROL”)] hearing under s. 672.81(2.1)[.]

(2) If the Hospital provides notice to the Board of a restriction of liberty as “information only”, the Review Board will review the information provided (including any subsequent letter from the accused’s counsel that sets out their position) and determine whether a discretionary hearing should be convened. Their decision should be communicated to all parties in a timely manner (although reasons are not required)[.]

(3) If the Board determines that a hearing is required, they will convene a hearing under s. 672.82(1)[.]

(4) If a ROL hearing is not convened after information is provided to the Board, then, to the extent that [it] is warranted or requested by one of the parties, the general circumstances of the restriction of liberty should be considered at the next annual hearing.

(5) If a ROL issue only becomes known at the annual hearing, it should be addressed during that hearing.

[78] We decline to comment on or order the implementation of the Attorney General’s proposed procedure. This court should not generally dictate the Board’s approach on this issue. Such a directive could impinge upon the Board’s jurisdiction to fashion its own rules of procedure and practice and the exercise of its discretion.

[79] Section 672.44(1) of the Code empowers the Board to make rules providing for the practice and procedure before it, subject to the approval of the Lieutenant Governor in Council of the province. Other than the procedures prescribed by the Code and the regulations made by the Governor in Council, any additional rules concerning the response to Campbell letters must therefore come from the Board: Code, ss. 672.44(1), 672.44(3). However, prescribing procedural rules of general application in the abstract is not the role of the appellate court under Part XX.1 of the Code.

[80] This does not preclude these issues being raised in an appropriate case. The fairness and reasonableness of the Board’s procedure and its treatment of the parties in coming to a disposition can warrant appellate intervention: see e.g., Chaudry, at paras. 112, 116 and 118; Kachkar (Re), 2014 ONCA 250, 119 O.R. (3d) 641, at para. 39. The Board has a duty to treat vulnerable NCR accused with the utmost dignity: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 42.

[81] Accordingly, we decline the Attorney General’s invitation to elaborate on or impose a “uniform procedure”.

F. Disposition

[82] For these reasons, we would dismiss the appeal on all grounds.

Released: November 12, 2020 (“S.E.P”)

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”

“I agree. C.W. Hourigan J.A.”

[^1]: In the case under appeal, the restrictions fell within the envelope of the enumerated conditions for Mr. Tran. There is therefore no issue about this.