



COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen (Re), 2020 ONCA 247

DATE: 20200408

DOCKET: C67178

Watt, Fairburn and Zarnett JJ.A.

IN THE MATTER OF: Hung Van Nguyen

AN APPEAL UNDER PART XX.1 OF THE
CODE

Paul Calarco, for the appellant

Michael S. Dunn, for the respondent, the
    Attorney General of Ontario

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

Heard: March 12, 2020

On appeal from the disposition of the
    Ontario Review Board, dated May 27, 2019, with reasons dated June 13, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Hung Van Nguyen, has been
    detained at the Centre for Addiction and Mental Health (CAMH) in Toronto
    since 2012. After a hearing on May 14, 2019, the Ontario Review Board (the Board)
    ordered that the appellant continue to be detained at CAMH, subject to certain
    conditions. In making that disposition, the Board rejected the parties joint
    submission that the appellant be transferred from CAMH to the High Secure
    Provincial Forensic Programs at Waypoint Centre for Mental Health (Waypoint)
    in Penetanguishene.

[2]

The appellant argues that the Board erred in two
    respects and that its disposition therefore cannot stand. First, he submits
    that the Board failed to give notice that it was contemplating rejecting the
    joint submission, and thus breached its duty of procedural fairness. Second, he
    submits that the decision of the Board not to give effect to the requested
    transfer was unreasonable.

[3]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND

[4]

In January 2012, the appellant was admitted to
    Waypoint. In March 2012, he was found not criminally responsible on account of
    mental disorder (NCR) on a charge of committing an indecent act. In November
    2012, he was transferred from Waypoint to a general forensic unit at CAMH.

[5]

In October 2013, the appellant was found NCR on
    a charge of invitation to sexual touching. In December 2013, the appellant was
    transferred to a secure unit at CAMH. He remained detained at the Secure
    Forensic Unit at CAMH at the time of the Boards hearing.

[6]

The appellant suffers from schizophrenia, which is
    treatment-resistant and complicated by substance abuse, medication nonadherence,
    and a personality disorder. He exhibits symptoms of psychosis and has limited
    insight into his mental illness. He has a history of violence and inappropriate
    behaviour towards others. He requires close supervision and medication
    monitoring, as he decompensates rapidly if he abuses substances or is medication
    noncompliant.

[7]

In the four years leading up to the May 2019
    Board hearing, there were three occasions on which the appellant absconded while
    on passes; on the last two of these occasions, he tested positive for cannabis
    use after returning to CAMH. There was no report of violence on any of these
    occasions.

[8]

Following these events, the appellant was
    determined to be a high risk for elopement and needed to be escorted by
    security to appointments on CAMH grounds. From November 2017 to the time of the
    Boards hearing, he was not granted any off-unit passes, meaning that he was
    essentially confined to his unit. This was a source of frustration for the
    appellant, who asked on a number of occasions to be transferred to other
    facilities, including Waypoint.

THE BOARD HEARING

[9]

The Boards hearing was to review the disposition
    under which the appellant was detained at CAMH. At the hearing, the parties
    made a joint submission. They agreed that the appellant continues to represent
    a significant threat to the safety of the public and should continue to be
    detained. CAMH recommended that the conditions of the existing disposition
    continue with one change: the appellant should be transferred to the high
    secure program at Waypoint. The reason articulated was that Waypoint, unlike
    CAMH, has a secure perimeter, which would allow granting the appellant
    privileges to be outside of his unit but within Waypoints secure perimeter.
    The Crown and the appellant agreed with the CAMH recommendation.

[10]

The Board noted the joint submission, but indicated
    it wished to hear the evidence. Accordingly, the appellants attending
    psychiatrist, Dr. Walton, testified. In addition, hospital reports from CAMH
    and a letter from the Director of Waypoints Forensic Assessment Program regarding
    the requested transfer (the Waypoint Letter) were entered as Exhibits.

[11]

The Waypoint Letter commented specifically on
    CAMHs view that a transfer to Waypoint could afford [the appellant] more
    liberal off-unit privileges within the confines of a secure perimeter. It
    explained the risk assessments that are made before Waypoint allows a patient
    to access services and amenities within the high secure perimeter. The author
    of the letter opined:

Given Mr. Nguyens
    history and risk factors, I expect that he would not experience independent
    off-unit access to the common areas contained within our high secure perimeter.
    Instead, once his risk is assessed to be low enough for him to leave his unit,
    he would need to be escorted or accompanied to the common and centralized areas
    of our facility.

[12]

The letter also pointed out the limited
    resources that Waypoint had to assess and manage risk at the community
    interface that exists when a patient is re-integrating into the community[W]e
    do not have the resources to provide discretionary privileges beyond our high
    secure perimeter with the minimal exception of staff escorted (at a 2:1 minimum
    staff to patient ratio) hospital grounds walks, should such discretionary
    privileges be included in a patients disposition.

[13]

The Board members asked Dr. Walton questions,
    including questions about the Waypoint Letter and the concerns it raised about
    the appellant getting access to the secure perimeter area. There were also
    questions about the therapeutic relationship that the appellant appeared to
    have with a behavioural therapist at CAMH and whether that would continue at
    Waypoint. Dr. Walton was also asked about other facilities in Ontario with
    secure perimeters and whether the appellant had any reason to prefer Waypoint
    to them.

THE BOARD DECISION

[14]

The Board agreed with the first part of the
    joint submissionthat the appellant continued to represent a significant threat
    to the safety of the public and that a detention order, with the existing conditions,
    was therefore justified. However, the Board rejected the second part of the
    joint submission involving a transfer to Waypoint. It found that the transfer
    to a high secure facility was not necessary or appropriate in all the
    circumstances. The Board provided several interrelated reasons for this
    conclusion.

[15]

First, the Board noted that, although the
    appellant had absconded three times while at CAMH, he had been off-unit on
    passes at other times and did not abscond. In the Boards view, there was a
    prospect of limited passes off-unit with security and further engagement on
    the unit and work with [the behavioural therapist that] may result in more
    privileges for Mr. Nyugen as his intrusive behaviour diminishes. It noted that
    no inquiry had been made as to whether Waypoint would have a behavioural
    therapist available for the appellant.

[16]

Second, the Board discounted the prospect that
    the appellants lack of engagement in programs at CAMH might increase if his
    request for a transfer were met. It noted Dr. Waltons evidence that his
    challenges may continue wherever he was transferred. The Board also highlighted
    that, while at CAMH, the appellant had participated in several recreational
    activities and attended three social events, displaying some progress. There
    had also been no incidents of inappropriate touching since January 2019.

[17]

Third, while the Board noted CAMHs view that a
    transfer would allow the appellant more liberal off-unit privileges within a
    secure perimeter, it found that the appellant would not be granted such
    privileges any time soon given the content of the Waypoint Letter. Specifically,
    the Board stated that it cannot conclude that Mr. Nguyen could have more
    off-unit privileges at Waypoint.

[18]

Finally, the Board was not prepared to find that
    a move from CAMH, a medium secure facility, to Waypoint, a high secure facility,
    would be the least onerous and least restrictive disposition in the
    circumstances. This was especially so given that other medium secure facilities
    with secure perimeters had not been explored as transfer options.

ANALYSIS

Rejection of the
    Joint Submission

[19]

A joint submission is beneficial to the Boards
    process. It can narrow the issues, reduce the time and expense of hearings, and
    minimize inconvenience to witnesses. It can also temper adversarial positions
    to the benefit of the person whose disposition is under consideration. Nevertheless,
    the Board is inquisitorial in its approach, and has the authority and duty to
    reject a joint submission that does not meet the requirements of s. 672.54 of
    the
Criminal Code
, R.S.C. 1985, c. C-46:
Re Benjamin,
2016
    ONCA 118, 345 O.A.C. 210, at paras. 19-20.

[20]

Where the Board considers that it might reject a
    joint submission, it must provide notice in order to give procedural fairness
    to the parties, especially to the person subject to the Boards disposition.
    The form of the notice may vary. For example, it may be given expressly by a
    statement that the Board is considering rejecting the joint submission and
    inviting additional evidence or submissions. This statement may be made during
    the hearing or after the Board has taken the matter under deliberation. Or it may
    be given implicitly, by Board members asking questions during the hearing that are
    significantly probing about the core elements of the joint submission:
Re
    Benjamin
, at para. 22. Ultimately, whether appropriate notice has been
    given is a contextual issue, the test being whether the method followed
    satisfied the objective of allowing the person subject to the Boards
    disposition to present evidence and argument relevant to the Boards decision:
Benjamin
,
    at paras. 22-23;
Re Osawe,
2015 ONCA 280, 125 O.R. (3d) 428, at paras.
    73-74.

[21]

In this case, the Board did not give an express
    notice that it was considering rejecting the joint submission. However, it also
    gave no indication that it was satisfied with it. During the hearing, Board members
    asked questions about the core plank of the joint submissionthe proposed
    transfer to Waypoint. These included questions about the statements in the Waypoint
    Letter concerning whether, and when, the appellant might enjoy off-unit
    privileges within Waypoints secure perimeter; the existence and availability
    of such privileges were the key advantage ascribed to the proposed transfer. Beyond
    that, there were also questions about another effect of the proposed transferthe
    end of the appellants relationship with the behavioural therapist at CAMH and
    whether anything similar would be available to the appellant at Waypoint.

[22]

In our view, taken as a whole, the questions
    asked were significantly probing about the core elements of the joint
    submission so as to provide the required notice that the joint submission may
    be rejected. The fact that more than one Board member picked up the same topic
    for questioning adds important contextual support for this conclusion. The
    recurring themes in the questions show not only that Board members had initial concerns
    about the joint submission, but that they maintained those concerns even after initial
    answers were proffered.

[23]

The appellant argues that, in determining
    whether the asking of questions conveys notice that the joint submission might
    be rejected, consideration must be given not only to the questions but also to
    the answers. We agree that the answers form part of the context; but we do not
    agree that consideration of them detracts from what the questions conveyed
    concerning the fate of the joint submission. Dr. Walton gave thoughtful answers
    to the Board members questions. However, Dr. Walton had no experience at
    Waypoint or direct familiarity with the way it performed risk assessments. The
    Board was not required to accept her views about the likelihood of the appellant
    receiving off-unit passes there and the Board was entitled to form its own
    views based on the Waypoint Letter. Nor was the Board required to accept her suggestion
    that behavioural therapy would be available to the appellant at Waypoint equivalent
    to that at CAMH, as she had acquired no information on that topic.

[24]

Nothing in the Board members reactions to Dr.
    Waltons answers suggested that Dr. Walton had allayed their concerns; the
    revisiting of certain subjects by more than one Board member would, if
    anything, suggest that the concerns were not allayed.

[25]

The implicit notice that the Board provided through
    its questioning satisfied the objective of allowing a meaningful opportunity to
    present evidence and argument relevant to the Boards disposition. While it is
    undoubtedly preferable for a Board, when considering the rejection of a joint
    submission, to give express notice and an express opportunity to lead more
    evidence and make additional submissions, here the Board did not err by failing
    to do so. The parties were well placed, in listening to the Boards questions
    and evaluating the answers Dr. Walton was able to give, to determine whether
    more evidence should be led and/or whether any specific submissions should be
    made to better ensure acceptance of the joint submission.

[26]

The Board did not fail in its duty of procedural
    fairness. We reject this ground of appeal.

The
    Unreasonableness Ground of Appeal

[27]

The appellant, supported by CAMH, also argues
    that the Boards disposition, to the extent that it fails to give effect to the
    requested transfer to Waypoint, is unreasonable. The appellant submits that the
    Board misapprehended the evidence about when the appellant had been off the
    unit at CAMH, and the evidence in the Waypoint Letter about when off-unit
    access would occur there. The appellant also submits that the Board unreasonably
    rejected evidence suggestive of a treatment impasse at CAMH that had a prospect
    of being overcome at Waypoint.

[28]

This court may allow an appeal against a
    disposition of the Board where the disposition is unreasonable or cannot be
    supported by the evidence:
Criminal Code
, s. 672.78(1)(a). A
    reasonable decision is one where the Boards reasoning process and the
    outcome reflects an internally coherent and rational chain of analysisthat is
    justified in relation to the facts and law:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at paras. 83, 85;
Re
    Ahmadzai
, 2020 ONCA 169, at paras. 12-13. A proper appreciation of the
    evidence is related to whether the resulting decision is reasonable, as [t]he reasonableness
    of a decision may be jeopardized where the decision maker has fundamentally
    misapprehended or failed to account for the evidence before it:
Vavilov
,
    at para. 126;
Re Ahmadzai
, at para. 23.

[29]

In our view, the Boards decision was not
    unreasonable. The Board did not misapprehend the evidence about when the
    appellant had been off the unit at CAMH, nor the statement in the Waypoint Letter
    about what needed to occur before off-unit access would be allowed there. The
    Boards decision accounted for the evidence before it. The Boards critical finding,
    that off-unit access at Waypoint would not be allowed any time soon, was
    available to it on the record.

[30]

There was no evidence of a treatment impasse at
    CAMH in the sense of there being an absence of treatment, a complete refusal to
    engage with the treatment team, or treatment of no effect on the management of
    the appellants mental health issues:
Re Abeje
, 2019 ONCA 734, at para.
    30. The Boards finding that there had been some progress with the behavioural
    therapist at CAMH was not contrary to the evidence. For example, there was
    evidence that interaction with the behavioural therapist had recently resulted
    in the appellant meeting certain goals relating to hygiene and a reduction of
    inappropriate touching. This progress was appropriately contrasted by the Board
    with the lack of evidence that anything similar would be available at Waypoint,
    and was appropriately assessed by the Board in light of Dr. Waltons statement
    that the appellants motivation to engage in treatment might not be better even
    if he moved to Waypoint.

[31]

The Boards disposition is internally coherent
    and reflects a rational chain of analysis justified in light of the facts and
    law. We reject this ground of appeal.

CONCLUSION

[32]

For the above reasons, the appeal is dismissed.

David Watt J.A.

Fairburn J.A.

B. Zarnett J.A.


