



COURT OF APPEAL FOR ONTARIO

CITATION: Ly (Re), 2015 ONCA 141

DATE: 20150304

DOCKET: C58809

MacFarland, Tulloch and Pardu JJ.A.

IN THE MATTER OF Giang
    Ly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for Giang Ly

Gavin S. MacKenzie, for CAMH

Shawn Porter, for the respondent Crown

Heard:  February 23, 2015

On appeal against the disposition of the Ontario Review
    Board dated, May 9, 2014.

ENDORSEMENT

[1]

On April 17, 2005 the appellant was found not criminally responsible on
    account of mental disorder (NCRMD) on charges of break and enter with intent to
    commit an indictable offence and arson.

[2]

At the time of his hearing before the Review Board, the appellant was
    subject to a Disposition dated May 28, 2013 detaining him at the General
    Forensic Unit of the Centre for Addiction and Mental Health (CAMH) with
    privileges up to and including living within the community in supervised
    accommodation approved by the person in charge.

[3]

While the appellant did not concede that he remained a significant
    threat to the safety of the public, he did not seek an absolute discharge.

[4]

The only issue the Board faced was whether in the circumstances of this
    offender, the least onerous, least restrictive disposition was a conditional
    discharge or a continuation of the current detention order.

[5]

The applicant submits that the Board erred in law by failing to
    meaningfully consider if the appellant could be discharged conditionally.  As
    the Crown notes in para. 2 of its factum:

The dispute between the parties did not focus on the need for
    terms governing medication compliance, housing and street drug use. Rather, the
    dispute centered on whether those terms should be part of a conditional
    discharge or detention order 

[6]

The differences between a conditional discharge and a detention order
    were thoroughly canvassed in this courts decision in
R. v. Breitwieser
2009 ONCA 784.

[7]

The appellants diagnoses at the time of the Boards disposition which
    is the subject of this appeal were:

Schizophrenia, Substance Abuse Disorder and Maladaptive Personality
    Traits/Disorder

[8]

The hospital report filed at the hearing details the appellants history
    over the years following the NCR finding.

[9]

Although discharged from the hospital setting in June 2006 to
    independent housing through the Canadian Mental Health Association (CMHA)  he
    was readmitted frequently as the result of urine samples positive for drugs. 
    He remained an in-patient for the most part from January 2010 to August 2013
    with  as the Board noted  several short-lived discharges into the community. 
    It was noted there were episodes of physical aggression towards co-patients and
    staff.

[10]

In
    March 2013 he was discharged to CMHA-supported housing where staff was on site
    24/7.  By early April problems began to exhibit themselves and as the Board
    noted the appellant:

-

became
    increasingly pre-occupied by his delusional belief system and had no insight
    into the fact that his symptoms arose from his mental illness.

[11]

According
    to the hospital report

The intensification and nature of his psychosis pose an acute
    elevation in his risk of violence and as such he was admitted to a General
    Schizophrenia Unit for stabilization on April 13, 2013.

[12]

It
    was at this juncture that after discussion with his then treating psychiatrist
    his anti-psychotic medication was changed to Clozapine.

[13]

He
    was in hospital until mid-May 2013 and subsequently readmitted in July because
    of substance use and discharged to CMHA supervised living again on August 19,
    2013.

[14]

In
    September 2013 the appellant insisted on reducing his level of Clozapine.  This
    was contrary to his doctors medical advice.  He continues to request that the
    dosage be further reduced.

[15]

As
    the Board noted 

While his psychosis responds well to Clozapine, his decision to
    reduce the dose against his psychiatrists advice (and which he wants to
    further reduce) has resulted in a return of his auditory hallucinations. He continues
    to have a striking lack of insight.

[16]

The
    appellant through his counsel agrees to a conditional discharge where he will
    agree to the following terms:

1)       to
    consent to treatment pursuant to s. 672.55 of the
Criminal      Code
.

2)       to
    reside at his current residence

3)       and
    to be delivered to CAMH in the event he breaches a term     of his disposition.

[17]

The
    Board in its reasons dealt with the proposed terms.

[18]

Dr.
    Duff was very concerned that Mr. Ly, who is competent to treatment, would
    further reduce his dosage of Clozapine, he did so once already contrary to his
    doctors advice and is seeking further reduction.

[19]

Absent
    his medication, decompensation for the appellant can occur quickly and when he
    becomes psychotic as Dr. Duff noted, he becomes agitated and acts on his
    psychosis in a desperate and unpredictable way  putting the public at risk.

[20]

His
    treatment team was of the view that he would rapidly revert to the use of
    substances (spice in particular  a synthetic form of marijuana) and become
    non-compliant with medication absent his current support structure.

[21]

As
    for housing, although he is doing well in his current setting  it is transient
    in nature. The average stay is 18 months and the appellant was close to that at
    the time of his hearing.  Although he would agree to a term requiring his
    continued residence there  there cannot be a guarantee he would be able to
    remain there  despite his willingness to agree to such a term, he has
    expressed a desire to move from his current setting.

[22]

This
    court has said that the requirement for an appellant to reside in approved,
    supervised community housing meant that a conditional discharge is not an
    appropriate disposition.  See
R. v. Runnalls
, 2009 ONCA 504. Currently
    there are staff on site 24/7 to monitor the residents. Absent the involvement
    of the person in charge of CAMH in the event of a move there is the real
    likelihood that the current structures  which allow the appellant to do as
    well as he does  would disappear with resulting serious consequences. And
    while he would agree to be returned to CAMH in the event of a breach  there
    can be no guarantee that he would be returned there where he is subject to a
    conditional discharge  for the reasons fully set out in
R. v. Breitwieser
.

[23]

As
    it has been in the past, it is important for the appellant to get to the
    hospital quickly where the necessary steps can be taken to stabilize him.

[24]

The
    Board in its reasons noted Dr. Duffs evidence  where she stated that she was
    aware of the appellants request for a conditional discharge but did not think
    it wise.

[25]

She
    noted that while he had been better in the past year  it is still within a
    very tight safety net under his then current disposition.

[26]

While
    the appellant noted that hed had no positive tests for illicit substances
    since January 2014  the Board noted there had been six positive reports in the
    reporting year.  Further there was reluctance to rely on the urine testing in
    view of the appellants past history of tampering with urine samples.

[27]

The
    Board concluded that in all the circumstances a detention order was the least
    onerous, least restrictive disposition to manage the risk posed by the
    appellant which included:

-        He
    requires close medical supervision to insure compliance.

-        Given
    his substance abuse history close monitoring for that is   required.

-        His
    current attitude towards the drug, spice  and his lack of      insight into
    the role that drug plays in his non-compliance with       his medication is
    troubling.

-        His
    striking lack of insight into his mental illness.

-        Further
    while the appellant says he will agree to be returned to   the hospital in the
    event of a breach  there can be no         guarantee of that on a conditional
    discharge  and in the past       he has been angry when told he needed to be
    re-admitted to   hospital.

[28]

In
    all the circumstances, we are not persuaded the Board made any error in law and
    their decision in the particular circumstances of this appellant was a
    reasonable one.

[29]

We
    note that at the time of the review which is the subject of his appeal.  The
    appellant had been doing reasonably well although for a short time. We are
    hopeful that his efforts will continue.

[30]

Appeal
    is dismissed.

J.
    MacFarland J.A.

M.
    Tulloch J.A.

G.
    Pardu J.A.


