Re: Andy Huynh
ORB File No: 6980
Hearing held on: Thursday, May 1, 2025
Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto
Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Mr. B. Garrow Members: Dr. P.E. Cook Dr. H. Moulden Ms. C. Finley Mr. S. Duffy
Parties Appearing: Accused: Andy Huynh Counsel: Mr. N. Xynnis (via Zoom)
The person in charge of hospital: Counsel: Ms. M. Warner
Attorney General of Ontario: Counsel: Ms. E. McNamara
REASONS FOR DISPOSITION
(Dated June 10, 2025)
Introduction
[1]. On June 29, 2016, Andy Huynh was found unfit to stand trial on charges of assault, indecent act, indecent exhibition, vagrancy, and failing to comply with probation (x2), contrary to the Criminal Code of Canada. He is currently subject to a disposition of the Ontario Review Board (ORB/the Board), dated May 28, 2024, detaining him at the Forensic Service of the Centre for Addiction and Mental Health (CAMH/the hospital) with discretionary privileges up to and including the ability to reside in the community in 24 hour a day supervised accommodation.
[2]. On May 1, 2025, the Board convened a panel at the hospital pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code. Mr. Huynh was present and represented by his counsel Mr. Xynnis, who attended via Zoom technology.
[3]. At the outset of the proceedings, all parties were canvased as to their positions on the issues to be determined by the Board: whether Mr. Huynh remains unfit to stand trial; and if so, whether he represents a significant threat to the safety of the pubic; and if so, the necessary and appropriate disposition having regard to the criteria set out in s. 672.54 of the Criminal Code.
[4]. Dr. Wilkie, on behalf of the hospital, submitted that Mr. Hunh is unfit, indeed, likely permanently unfit. He continues to represent a significant threat to the safety of the public and the necessary and appropriate disposition is a continuation of the current detention order. Ms. McNamara, on behalf of the Ministry of the Attorney General, concurred in the hospital’s positions. Mr. Xynnis indicated that he was not able to receive instructions from Mr. Huynh and was not opposed to the hospital’s positions.
Findings
[5]. For the reasons that follow, the panel finds that Mr. Huynh remains unfit to stand trial and is likely permanently unfit. Further, he continues to represent a significant threat to the safety of the public and the necessary and appropriate disposition is a continuation of the current detention order.
The Evidence
[6]. The evidence at the hearing consisted of the Hospital Report, dated April 15, 2025 (ex. 1), and the viva voce evidence of Dr. Wilkie, Mr. Huynh’s treating psychiatrist.
The Alleged Index Offences
[7]. The alleged index offences occurred on three dates in 2016. The facts underlying the fail to comply charges and the vagrancy charge are best explained by a chronology of events from October 2015 to April 2016.
[8]. The charges of fail to comply with probation are based on a probation order that was issued on October 2, 2015. following Mr. Huynh's conviction on charges of assault and fail to comply with probation. That probation order included terms that he report as required and that he keep the peace and be of good behaviour.
[9]. Between November 9, 2015 and January 21, 2016, Mr. Huynh failed to report to his probation officer as required. This failure was the basis of the first alleged index offence of fail to comply with probation. The hospital report details attempts made to contact him during the period covered by the charge, namely, November 5, 2015 to January 21, 2016. A warrant on this charge was issued on February 8, 2016.
[10]. In the meantime, on January 27, 2016, Mr. Huynh was sitting behind the victim on a TTC streetcar. She could hear him mumbling and when she looked behind, he spat upon her back and into her hair. The streetcar operator was notified and Mr. Huynh was arrested. This incident resulted in the alleged index offence of assault and second alleged index offence of fail to comply with probation relative to its term that he keep the peace and be of good behaviour. Following his arrest on those charges he was released on a recognizance. However, he then failed to attend court on those January 27 charges. In the result, a bench warrant was issued on February 5, 2016.
[11]. On March 5, Mr. Huynh was arrested on that bench warrant, released on a recognizance the next day but then failed to attend court on March 7 as scheduled with respect to those charges. In the result, on March 7 another bench warrant was issued.
[12]. On April 12, 2016, Mr. Huynh was again arrested on a bench warrant while being investigated for his behaviour. Although the report does not say so he presumably was again released on a recognizance because five days later, on April 17, he was arrested in what was then Ryerson University on the last three of the alleged index offences, namely indecent act, indecent exposure and vagrancy.
[13]. More particularly, on April 17, 2016 at the Ryerson University Student Learning Centre, Mr. Huynh was observed by security officers to be standing on the top of the stairs leading into the learning centre, which was in clear view of an intersection on busy Yonge Street. Mr. Huynh began to lift his shirt and expose his chest and stomach area, then while speaking to random students he pulled down his pants and exposed his penis, and then with his pants down and genitals exposed, he began to jump up and down in an effort to attract as much attention as possible.
[14]. Details of underlying events, as well as more details about the alleged index offences, are included in the hospital report.
Background Information
[15]. The Hospital Report contains a great deal of information about Mr. Huynh’s background and psychiatric history and need not be repeated here beyond the following material facts. Mr. Huynh is a 52-year-old man who was born in Saigon, Vietnam. At the age of ten, he and his brother fled Vietnam by boat and joined their older brothers in Canada.
[16]. Mr. Huynh has no known history of problematic substance use. He has a criminal record that includes convictions for sexual assault, assault with a weapon and assault, the details of which are included in the Hospital Report.
[17]. Mr. Huynh first started exhibiting issues with his mental health at the age of thirteen. He struggled with concentration, describing his thought process as “cloudy” and experienced a deterioration in his language skills. He was referred to a psychiatrist who diagnosed Mr. Huynh with schizophrenia and prescribed antipsychotic medication.
[18]. The Hospital Report includes summaries of numerous hospital admissions, some pursuant to a court ordered assessment and others due to assaultive and bizarre behaviour in the community in the context of medication noncompliance. There are histories of assaultive behaviour, the victims of which included his sister, staff in residences and strangers. Mr. Huynh also was frequently sexually inappropriate. The institutions where he was admitted included Ontario Shores, Western Hospital, St. Michael's Hospital and CAMH. The hospital report provides extensive details regarding many of these admissions that need not be repeated here.
[19]. Following the finding of Unfit to Stand Trial, Mr. Huynh was admitted to CAMH in June, 2016. He was found incapable to consent to psychiatric treatment decisions and his brother became his substitute decision maker (SDM). Over the ensuing seven years, Mr. Huynh continued to struggle with sexual disinhibition, impulsivity and sexually inappropriate behaviours towards staff and co-patients. He also was irritable and verbally abusive, often voicing racial slurs towards those in his vicinity.
[20]. In February 2018, Mr. Huynh commenced treatment with clozapine. His behavioural challenges were mitigated but nonetheless remained. In addition, he received a diagnosis of intellectual disability and was assessed and accepted for services in the developmental sector.
[21]. On June 13, 2023, Mr. Huynh was discharged from CAMH to reside in a 24-hour supervised residence in Scarborough.
Course Since the Last Disposition
[22]. Mr. Huynh’s current diagnoses are Schizoaffective Disorder (bipolar type) and Intellectual Developmental Disorder (moderate). He remains incapable and the Public Guardian and Trustee currently is his substitute decision maker. Mr. Huynh has remained compliant with medication and the requisite bloodwork.
[23]. Mr. Huynh continues to reside in his supervised residence. He is one of three clients living in the home where he receives individualized care as staffing is provided on a 1:1 basis. Even with this level of supervision and support, Mr. Huynh continues to exhibit inappropriate sexual behaviour towards housing staff, co-residents and forensic outpatient team staff. As a result of his intellectual limitations, Mr. Huyn has low frustration tolerance and has difficulty understanding the perspective of others. He regularly presents as labile, disinhibited and agitated. Staffing ratios at the residence were increased to minimize the amount of time staff were alone with Mr. Huynh.
[24]. Mr. Huynh was assessed by Dr. Benassi at the Sexual Behaviours Clinic at CAMH. The doctor made the following observation as found in the Hospital Report, at p.27 :
“[F]rom a sexological perspective, Mr. Huynh continued to exhibit sexual disinhibition, impulsivity and exhibitionistic behaviours. There was evidence that his behaviour could be oriented towards immediate gratification, leading to impulsive behaviours driven by current thoughts, feelings, and external stimuli, without regard for past learning or consideration for future consequences. These behaviours appeared to be attributable to symptoms of his psychotic illness and intellectual impairment, which resulted in poor self-control, and social/coping deficits”.
[25]. Following discussions with staff at the residence and Mr. Huynh’s forensic outpatient team, in October 2024, Dr, Benassi prescribed leuprolide, a sex-drive reducing medication. A decrease in the frequency and intensity of his inappropriate sexual comments and behaviours was noted. However, he continued to make inappropriate sexual comments and attempted to touch others. As noted on page 27 of the Hospital Report:
“He would continue to require a high level of support and external oversight to manage any inappropriate sexual behaviour to others. His intellectual impairment was also likely a barrier for the integration and implementation of teaching regarding sexual health and boundaries.”
[26]. As of January 2025, staff no longer arrange outings to crowded public spaces, such as shopping malls, as Mr. Huynh was more likely to exhibit inappropriate behaviour in these types of settings.
[27]. With the oversight of staff at the residence and the forensic outpatient team, Mr. Huynh has remained compliant with medication and the required bloodwork. While his brother no longer serves as his SDM, he visits Mr. Huynh on weekends and holidays.
[28]. Mr. Huynh’s fitness to stand trial was assessed on April 8, 2025. As in the past, he was not able to demonstrate an understanding of the nature or object of the proceedings, the possible consequences or participate meaningfully in any proceedings.
[29]. Mr. Huynh’s insight into his diagnosis, the ongoing need for medication and the risk for violence remain limited. As noted on page 33 of the Hospital Report:
“He continues to lack insight into his psychiatric diagnosis and does not appreciate the need for treatment and is incapable to consent to treatment decisions. He lacks appreciation into the role of his mental health issues and the inappropriate sexual behaviour he demonstrated at the time of the index offences. During this reporting period, he expressed frustration related to his sex-drive reducing agents (though it was unclear if this was related to pain at the administration site as opposed to issues with erections and ejaculation). As well, in the past, he expressed a desire to stop taking his prescribed medications including his antipsychotic and mood stabilizing medications if not under the auspices of the ORB.”
[30]. Dr. Wilkie testified before the Board. She reported that throughout the year, it has been challenging to engage Mr. Huynh in a discussion regarding fitness. When she spoke with him on the day of the hearing, he was upset, believing that one of the charges he is facing is murder. As in the past, he did not want to engage in any further discussion with respect to the court process or his participation in that process. It remains the clinical team's opinion that Mr. Huynh is unfit to stand trial from a psychiatric perspective and likely permanently so.
[31]. Dr. Wilkie reported that Mr. Huynh continued to exhibit a number of challenging behaviours over the course of the year. Since the initial decrease in incidents from the time of the introduction of the sex-drive reducing medication, there has been no significant impact on his inappropriate behaviour.
[32]. Dr. Wilkie testified that Mr. Huynh has just begun engaging in a day program in the community that is geared towards those with intellectual and developmental disorders. This is an important step in engaging Mr. Huyh in structured activity. He appears to enjoy the program, and it is hoped that he will work up to attending daily.
[33]. Dr. Wilkie testified that Mr. Huynh remains a significant threat to the safety of the public. He continues to engage in aggressive and sexually inappropriate behaviour. His dynamic risk remains elevated. In her opinion, Mr. Huynh’s risk can be managed in the community due to the very good support that he receives at his residence. Without that level of support, he would be unable to manage.
[34]. The Hospital Report includes the following reoffence scenario, at p. 33:
“If Mr. Huynh were to re-offend it would most likely occur in the context of lack of direct supervision and non-adherence to psychotropic treatment. In a living environment with decreased supervision and limited monitoring, Mr. Huynh would become increasingly intrusive to others and others would not be present to redirect him or to intervene. He would also likely stop taking his medications and exhibit increasing mental health symptoms including mood instability, and paranoia.
In this circumstance, he would be likely to misinterpret the intentions of others and could potentially become angry and retaliate. When angry, he may become physically dysregulated and attack or spit at others or become verbally abusive and use racial slurs. He could also misinterpret normative social behaviour as sexual overtures. In this circumstance, he could touch others in a sexually inappropriate manner especially in settings with decreased supervision as well as public settings (including bathrooms in the past). Mr. Huynh may engage in problematic sexual behaviour and may omit this information due to his limited appreciation regarding the concerning nature of this behaviour.”
[35]. All parties maintained the joint submission.
Analysis and Conclusion
[36]. The Board carefully considered the evidence of Dr. Wilkie and unanimously concluded that Mr. Huynh remains unfit to stand trial. The panel has the benefit of the Ontario Court of Appeal decision, R v Bharwani, 2023 ONCA 203, that provides guidance on this issue. To be fit, the accused must be capable of communicating rationally with counsel or the court. The accused must have a reality-based understanding of his legal situation, be able to maintain a meaningful presence, and have the capacity to meaningfully participate in the trial process. These are touchstones for the fitness inquiry and the determination of the fundamental question of whether the accused can fairly participate.
[37]. The Board also is mindful of the recent Court of Appeal decision in Clayton (Re), 2025 ONCA 305, wherein the Court emphasized that test for fitness must be considered in the context of the nature of the charges and allegations.
[38]. The Board accepts Dr. Wilkie’s expert evidence that Mr. Huynh is unable to meaningfully participate in the court process and is unable to communicate and provide instructions to his counsel. His diagnoses of Schizoaffective Disorder (Bipolar type) and his Intellectual Development Disorder (moderate) both contribute to his unfitness. Historically, fitness coaching has been largely unsuccessful.
[39]. Although it was not contested that Mr. Huynh poses a significant threat, the Board finds, on all the evidence, that Mr. Huynh poses a real risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature (but not necessarily violent). Mr. Huynh continues to suffer from a major mental illness, namely schizoaffective disorder, bipolar type, as well as an intellectual disability (moderate). He has a history of decompensating, often in conjunction with medication noncompliance. He has poor insight and is highly impulsive.
[40]. Mr. Huynh’s relative stability has been maintained within the context of intensive professional supports in the community. Even with those supports, and even compliance with medication, Mr. Huynh continues to display problematic and inappropriate sexual behaviour towards residence staff, co-residents and members of the forensic outpatient team. Without the supervision, intervention and administration of medication by staff, Mr. Huynh would cease taking his medication and likely experience symptoms of mood instability and paranoia. He likely would engage in physically and sexually dysregulated behaviour, putting members of the public at risk.
[41]. The panel also accepts that the necessary and appropriate disposition is a continuation of the current detention order with the same terms and conditions. The support and supervision provided by the staff at his residence are crucial in the management of Mr. Huynh’s risk in the community. It is necessary and appropriate that the hospital have the ability to approve Mr. Huynh’s accommodation in the community.
[42]. In arriving at this conclusion, the panel has considered the paramount factor of the safety of the public, Mr. Huyn’s community reintegration, his mental condition, and his other needs as required by s. 672.5 of the Criminal Code.
DATED this 10th day of June, 2025, at the City of Toronto, in the Region of Toronto.
Ms. C. Finley Legal Member
__________________ Office of the Registrar Ontario Review Board