Re Phat Xuan Luu, 2025 CanLII 69701

Ontario Review Board

Re: Phat Xuan Luu

ORB File No: 3928

Hearing held on: Thursday, June 19, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas

Pursuant to: Section 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Ms. S. Kert Members: Dr. T. Verny Dr. J.C. Rose Ms. K. Tomaszewski Ms. C. Plyley

Parties Appearing:

Accused: Phat Xuan Luu Counsel: Mr. R. Cunningham

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DISPOSITION

(Dated July 18, 2025)

Overview

1On February 20, 2004, Phat Luu was found not criminally responsible on account of mental disorder (NCR) on charges of assault police, assault with intent to resist arrest, break and enter with intent, possession of break and enter tools and possession of a weapon for a dangerous purpose. At the time of the hearing, Mr. Luu was subject to an Ontario Review Board disposition detaining him at the Southwest Centre for Forensic Mental Health Care (Southwest Centre), with privileges extending to living in Southwestern Ontario in accommodation approved by the person in charge.

2On June 19, 2025, this panel of the Review Board convened at the Southwest Centre to hold a hearing and review that disposition. Mr. Luu was present and was represented by his counsel, Mr. R. Cunningham.

3The issues to be decided at this hearing are whether Mr. Luu continues to pose a significant threat to the safety of the public and, if so, what is the necessary and appropriate disposition, having regard to the four factors in s. 672.54 of the Criminal Code.

4The hearing proceeded on the basis of a joint submission in respect of both issues. None of the parties contested a finding of significant threat, and the parties submitted that the current detention disposition remains necessary and appropriate.

5We agree with the parties both on the issue of significant threat and disposition. These are our reasons.

Background and Index Offences

6At the time of the hearing, Mr. Luu was 66 years old. He is single and has no dependents. His current diagnoses are schizophrenia and rule out cannabis use disorder in remission in a supervised environment. He is incapable in respect of treatment of his mental disorder and is treated under the substitute consent of his brother, Thanh.

7Mr. Luu was born and raised in Vietnam, one of nine siblings. In April 1979, he, Thanh and an uncle escaped Vietnam on a boat to Malaysia to avoid being inducted into the army. From Malaysia they travelled to Indonesia, where they remained for 13 months awaiting passage to Canada. While in refugee camps in Indonesia, Mr. Luu contracted malaria. The three men arrived in Kitchener in 1980, sponsored by Canada Manpower.

8After attending ESL courses, Mr. Luu again became ill with malaria in early 1981. He obtained employment in factories in Kitchener but was unable to continue working due to the onset of his psychiatric illness. His first psychiatric admission was in April 1981 at the Grand River Hospital (GRH) in Kitchener, for an episode of acute paranoid psychosis.

9Between 1982 and 1992, Mr. Luu had multiple further psychiatric admissions, some of extended duration. At times he was non-adherent with medication in the community, resulting in him becoming progressively more psychotic and aggressive. In that state, his behaviour could be unpredictable and inappropriate. On one occasion in 1991, he went to a friend’s house in Kitchener, climbed through the window and grabbed his daughter. Police were called and he was readmitted to hospital. Throughout his hospitalizations, communication with Mr. Luu was difficult because of language and his thought disorder. He was interviewed several times with an interpreter, but he still had difficulty communicating.

10Little information is available regarding Mr. Luu’s whereabouts or activities from 1992 until January 1999, when he was admitted to hospital after he was found sitting in his car in the middle of the road. He remained in hospital for eight months. In January 2001, he was again admitted to hospital. He had stopped taking his medication regularly and was drinking alcohol at times. He had physically assaulted a woman in the community and made several sexual advances toward CMHA staff. He remained in hospital until June 2001, and continued to attend follow-up at a clinic at the GRH until approximately February 2002.

11The index offences occurred over a period between June and September 2002. On June 6, 2002, Mr. Luu’s landlord went to his apartment to discuss his non-payment of rent and some concerns Mr. Luu had regarding the air conditioning. Mr. Luu became verbally aggressive and starting punching and kicking the landlord, hitting him in the left eye and cheek area at least twice. Two weeks later, when police attended at Mr. Luu’s apartment to arrest him for the assault, he was uncooperative and kicked the constable twice in the leg, resulting in no injuries. After being pepper sprayed, Mr. Luu was eventually arrested and released on a promise to appear.

12Late in the evening on July 27, 2002, Mr. Luu was observed entering a home in Kitchener through the basement window. He was located in the front foyer, but fled after waving a screwdriver at someone who tried to prevent him from leaving. Police found him near the home in possession of screwdrivers and pliers.

13On September 7, 2002, police received a call from an individual who advised that Mr. Luu was trespassing on his property, and that Mr. Luu (an acquaintance of the homeowner) had been harassing him and his family for the previous few weeks. When police found him sleeping in a back shed, Mr. Luu jumped to his feet, screamed at the officers and brandished a long metal rod. An officer was able to grab the rod away but Mr. Luu punched him in the lip. He was wrestled out of the shed and arrested.

14After an admission to the Southwest Centre for assessment, Mr. Luu was found unfit to stand trial in respect of the index charges in late November 2002. He was detained on a secure unit at the Southwest Centre. At least initially, he appeared to be responding to voices, was paranoid, and felt that people and cameras were watching him. Following a change in his medication to clozapine in July 2003, there was gradual improvement in his mental state. He was found fit to stand trial in January 2004, returned to court, and found NCR a month later.

15Mr. Luu has now been under the Review Board’s jurisdiction for 21 years. During that time he has been subject to various dispositions, many of which allowed him to live in the community. He has resided in several different group homes for varying periods of time, interrupted by readmissions to hospital for various reasons.

16During the last of these placements, at a 24/7 supervised group home in Kitchener, Mr. Luu’s mental condition started to decline, evidenced by him engaging in sexually inappropriate behaviour toward an outreach team member in May 2022, and returning to cannabis use at about the same time. After a further episode of inappropriate sexual behaviour in late June 2022, he was readmitted to the Southwest Center. He has remained an inpatient since then and has continued to struggle with boundaries, notably toward female staff.

Course Since the Last Hearing

17At Mr. Luu’s last annual hearing (in June 2024), the Board panel heard evidence that a recent psychological assessment indicated that Mr. Luu had very limited cognitive functioning, a decline from his previous level. Despite this, he was able to follow a structured routine for his activities of daily living and to appropriately use indirectly supervised community privileges in St. Thomas. He was also able to socialize with peers during therapeutic programming in the hospital and out in the community, and was proactive in signing up and preparing for activities. At the time, the treatment team was looking for community housing with a significant degree of support for Mr. Luu, including medication administration.

18At the current hearing we received evidence in the form of an updated hospital report, as well as the oral testimony of Dr. Ardani, Mr. Luu’s attending psychiatrist. That evidence revealed as follows: Mr. Luu remained on a rehabilitation unit for the entirety of the past reporting period. He continued to experience positive symptoms of his illness and remained delusional and disorganized at times. There was also evidence of auditory hallucinations. During a period from September to November 2024, he demonstrated significant signs of decompensation, although his clozapine levels were within the therapeutic range. While ordinarily pleasant with staff and peers, during this time he presented as more labile and agitated toward others. When more well, he was able to attend multiple programs both in the hospital and the community.

19In oral testimony, Dr. Ardani confirmed that over the year Mr. Luu experienced a significant increase in cognitive impairment – he is having more memory problems and has a lot of difficulty retaining information. His treatment team is hoping to complete a further cognitive assessment in the coming months to: i) assist in identifying the causes of his decline (which Dr. Ardani views as multifactorial, including the schizophrenia itself and the impact of 40 years of medication, among others), and ii) recommend further treatment strategies, but Mr. Luu continues to refuse recommended assessments.

20In spite of his increased cognitive difficulties, Mr. Luu is able to follow a rigid and inflexible routine that allows him to use passes appropriately in the community for up to eight hours each day. In the supervised hospital setting he will take medications when they are offered to him, and staff enforces his abstinence from cannabis through behaviour supervision.

21The view of the treatment team is that the next step in Mr. Luu’s community reintegration will be to place him in approved accommodation. Dr. Ardani testified that Mr. Luu requires a home with 24/7 supervision and support, and while there are several places available that can meet that standard, the difficulty over the past year has been that Mr. Luu has largely refused to consent to any of them. Mr. Luu’s preference is to live independently. He has the delusion that his parents left him an apartment in St. Thomas and that he should be allowed to live there. However, recently Mr. Luu toured a placement that he is prepared to agree to, and he is now on a list for that home. At some point long-term care will also be considered, but that is not currently appropriate for Mr. Luu.

Analysis and Conclusion

22Having heard and considered all of the evidence and the joint position of the parties, we agree that the threshold test for significant threat continues to be met, and that the necessary and appropriate disposition, which is also the least onerous and least restrictive in the circumstances, is a continuation of the current detention disposition, unchanged.

23Mr. Luu has a lengthy history of experiencing the symptoms of his major mental illness, schizophrenia. Those symptoms have included fixed delusions, behavioural and emotional dysregulation, cognitive impairment and, at times, oppositional defiant behaviors. When more unwell, he has acted out in ways that have put others at significant risk of harm. He has a significant history of aggression in response to psychotic stimuli, including assaults and sexually inappropriate behaviour.

24Although adherent with clozapine under supervision and substitute consent, Mr. Luu continues to experience positive symptoms of his illness. Despite the decades that he has remained in the forensic system, he has no insight into the index offences, his mental illness, his need for treatment, the effect of substances on his mental condition or his future risk of violence absent treatment. He continues to believe that he does not have a mental illness and does not require psychotropic medications. As such, absent the Board’s oversight Mr. Luu would stop his medication and/or use substances, as occurred previously when not under supervision. His mental state, already fragile, would rapidly deteriorate. He would experience an exacerbation of his symptoms, and is likely to act out in response to those symptoms with behaviour that would place the public at risk of serious physical or psychological harm.

25We are also satisfied that the current detention disposition remains necessary to manage that risk. The evidence of Dr. Ardani is that due to his level of disorganization and significant cognitive dysfunction, if Mr. Luu is to move forward in his community reintegration, he will need to be placed in supervised and supportive housing where his risk factors (medication non-adherence, substance relapse) can be monitored and controlled. Mr. Luu does not currently have the ability to live on his own, and he is not likely to be able to do so in the foreseeable future. To ensure that any placement is appropriate for Mr. Luu (including medication supervision and the possibility of making his own meals), the team requires the ability to approve his housing. Given that Mr. Luu’s level of risk is high as he begins to decompensate, the team must also be in a position to be proactive in returning him to the hospital before he might otherwise meet criteria for involuntary status under the Mental Health Act.

26Accordingly, considering public safety, which is paramount, together with Mr. Luu’s mental condition, his reintegration into society and his other needs, we find that the current detention disposition remains necessary and appropriate and should continue for the coming year.