



COURT OF APPEAL FOR ONTARIO

CITATION: Trang (Re), 2016 ONCA 441

DATE: 20160606

DOCKET: C60759

Strathy C.J.O., Pepall and Hourigan JJ.A.

IN THE MATTER OF: Chanh Henry Trang

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Moiz Rahman, for the respondent the Attorney General for
    Ontario

Janice Blackburn, for the respondent the Person in
    Charge of Waypoint Centre for Mental Health Care

Heard: May 30, 2016

On appeal against the disposition of the Ontario Review
    Board dated June 18, 2015.

ENDORSEMENT

Background

[1]

On May 20, 2011, the appellant was
    found not criminally responsible on account of mental disorder (NCR) on a
    charge of assault contrary to the
Criminal Code
, R.S.C. 1985, c. C-46
.

[2]

Since the time of the index offence,
    the appellant has been continuously detained in a maximum security psychiatric
    facility.

[3]

The appellant suffers from Schizophrenia-Paranoid
    Type (specifier: continuous), Neuroleptic Malignant Syndrome (past history of) and
    Neuroleptic-Induced Tardive Dyskinesia. His form of schizophrenia is treatment
    resistant. His treatment proposals and past treatment modalities included electro-convulsive
    therapy (ECT, also known as shock treatment), and clozapine, an oral
    anti-psychotic medication.

[4]

The appellant had been receiving ECT
    treatment and it seemed to the treatment team that he could be transferred to the
    Centre for Addiction and Mental Health (CAMH). However the ECT treatment was
    discontinued because he experienced seizure activity. Without ECT, his
    condition deteriorated.

The Hearing

[5]

The appellants hearing was scheduled
    before the Ontario Review Board (the Board) for June 1, 2015. At the time of
    the Boards hearing, the appellant was awaiting an EEG and a CT scan to
    ascertain the possible cause of the seizure so as to determine whether he could
    undergo further ECT treatments.

[6]

On June 18, 2015, the Board found that
    the appellant continued to be a significant threat to the safety of the public,
    a finding that is conceded by the appellant. The Board relied on the view of
    Dr. Helena Chekina who had been the appellants attending physician since
    August 2013. She had opined that the appellant would be difficult to manage in
    a less secure setting and that if he were transferred to a less secure
    institution than Waypoint Centre for Mental Health Care (Waypoint), he would
    be significantly more restricted due to his high risk of elopement.

[7]

The Board concluded that the appellant should
    stay at Waypoint. The Board therefore ordered that he continue to be detained
    at Waypoint with the same privileges and conditions as set out in his previous
    disposition. These included hospital and grounds privileges beyond the secure
    perimeter of the institution when escorted by staff and in the discretion of
    the Person in Charge of Waypoint.

Grounds of Appeal

[8]

The appellant appeals against this
    disposition. He takes the position that the hearing before the Board
    constituted a miscarriage of justice.

[9]

He submits that his challenge to the psychiatrist
    qualifications of Dr. Chekina, her representations, and his treatment teams
    lack of unanimity on his placement obliged the Board to conduct its own
    inquiries. He also submits that the Board ought to have ordered an independent
    assessment. No issue was taken with Dr. Chekinas clinical opinions on the risk
    the appellant poses, that he is a high elopement risk, or on the nature of his
    schizophrenia. The challenge related to her opinion on the relative
    restrictions between Waypoint and CAMH.

[10]

Accordingly, the appellant asks this
    court to order his transfer to CAMH, conduct a re-hearing before a new panel, or
    order an independent assessment.

Analysis

[11]

The Board was alive to the issue of Dr.
    Chekinas qualifications, which it reviewed in some detail, and was entitled to
    accept her qualifications and her opinions. The Board was itself comprised of
    two psychiatrists.

[12]

The Board was advised at the
    commencement of the hearing that some of the appellants treatment team members
    were of the view that he could be managed at a less secure setting. Dr.
    Chekina, the program director, hospital administration, and the clinical manager
    on the program all were of the view that the appellant should stay at Waypoint.
    The Board asked questions on, and was alive to, the issue of lack of unanimity.
    We are not persuaded that there was a miscarriage of justice or any failure to
    inquire. We also observe that Dr. P. Wright, a psychologist at CAMH, wrote that
    CAMH continued to oppose a transfer to its facility.

[13]

There was no treatment impasse in this
    case. The appellant had been responding to the ECT treatment before it was
    discontinued but is now awaiting an electrocardiogram, a CT scan and an EEG to
    determine the cause of the seizure activity.

[14]

The Boards decision reflected the
    least onerous and least restrictive disposition for the appellant. The Board
    balanced the appellants admitted continuing threat to public safety with the
    need to restrict his liberty and reasonably concluded that this balance was
    best achieved by having the appellant remain at Waypoint. The Boards decision
    was reasonable.

[15]

Having so concluded, we would
    nonetheless observe that in the unique circumstances of this case, the Board
    may wish to consider whether the appellant should be independently assessed at
    his forthcoming hearing scheduled for this month.

Disposition

[16]

The appeal is dismissed.

G.R.
    Strathy C.J.O.

S.E. Pepall
    J.A.

C.W.
    Hourigan J.A.


