



COURT OF APPEAL FOR ONTARIO

CITATION: Tran (Re), 2020 ONCA 722

DATE: 20201112

DOCKET: C67286

Pepall, Hourigan and
    Roberts JJ.A.

IN THE MATTER OF: Van
    Truong Tran

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Dena Bonnet, for the respondent, Attorney General of
    Ontario

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

Heard: June 2, 2020 by videoconference

On appeal from the disposition of
    the Ontario Review Board, dated July 18, 2019, with reasons reported at [2019]
    O.R.B.D. No. 1733.

Pepall
    and Roberts JJ.A.:

A.

Introduction

[1]

This appeal primarily focuses on the issue of
    notice of a significant increase in restrictions on the liberty of an NCR (not
    criminally responsible on account of mental disorder) accused and the resultant
    mandatory hearing under ss. 672.56(2) and 672.81(2.1), respectively, of the
Criminal Code
, R.S.C. 1985, c. C-46
    (the 
Code
),
and the application of the
    framework established by this court in
Campbell (Re)
, 2018 ONCA 140, 139 O.R. (3d) 401. The appellant, Van Truong Tran,
    submits that notice and a restriction of liberty hearing were required and that
    the increased restrictions on his liberty were not the least onerous and least
    restrictive in the circumstances.

[2]

Mr. Tran also asks that the Ontario Review Boards
    (the Boards) continued detention disposition be replaced by a conditional discharge
    disposition.

[3]

Lastly, as part of this appeal and the companion
    appeal in
Brownlee (Re)
, 2020 ONCA 723, the Attorney General of
    Ontario invites this court to endorse its proposed procedures on notices and
    hearings under ss. 672.56(2) and 672.81(2.1) of the
Code
.

[4]

For the reasons that follow, we would dismiss
    the appeal. We would also decline to endorse the Attorney Generals proposed
    notice and hearing procedure.

B.

Background Facts

[5]

Mr. Tran had been found NCR on charges of
    attempted murder, assault with a weapon, endangering life while committing an
    assault, aggravated assault, uttering threats to cause death or bodily harm,
    and possession of a weapon for a dangerous purpose. The index offences occurred
    in April 2014. He had stabbed the victim in his right side before stabbing him
    again in the back. Two days later, he contacted the victim, stating this time,
    it was with a knife but the next time it could be worse. He has been diagnosed
    with schizophrenia and substance use disorder (which is in remission in a
    controlled setting) and has differential diagnoses of schizoaffective disorder
    and major depressive disorder.

[6]

He is 49 years old, and prior to the index
    offences, he had no known psychiatric history or hospitalizations. He was
    initially under the jurisdiction of the Quebec Review Board and subsequently
    was transferred to the Centre for Addiction and Mental Health (CAMH) in March
    2016. He started on the secure forensic unit and then was moved to the general
    forensic unit in November 2016.

[7]

In February 2017, he began using accompanied
    hospital grounds privileges. This meant he could leave the ward with one staff
    person and other patients. This expanded to use of accompanied privileges to
    the community in April 2017.

[8]

By October 2017, he was exercising indirectly
    supervised privileges on hospital grounds, and by January 2018, to the
    community. This meant he could leave the grounds alone.

[9]

On June 4, 2018, he was subject to a disposition
    detaining him on a general forensic unit with privileges up to and including
    community living in approved accommodations with conditions. He continued to
    reside on the general forensic unit, under the care of Dr. Benassi. In the
    hospital report filed as evidence before the Board, CAMH reported that there
    were no incidents of violence, physical aggression, absconding, or other
    problematic behaviour. He attended Hong Fook Asian Mental Health Associations
    English classes (ESL classes) twice a week in the community, which were
    operated by the Toronto District School Board. His team arranged for a
    Vietnamese-speaking volunteer to visit Mr. Tran and assist in practicing his
    English. The hospital further reported that with encouragement from the
    recreational therapist, Mr. Tran participated in some recreational programming,
    including a cooking group, gym, and a summer outdoor soccer league. Feedback
    from program facilitators was positive.

[10]

Other than his partner, who visited once or
    twice a month at the hospital, Mr. Tran did not identify any other
    personal supports. The hospital reported that he was not observed to often
    socially engage with others and tended to keep to himself in the hospital and
    in the community. The clinical team applied to a variety of community
    accommodations, and Mr. Tran was designated Alternative Level of Care, a
    hospital designation that signifies readiness for discharge.

[11]

In January 2019, Mr. Tran asked to switch to a
    new antipsychotic medication due to potential weight gain side-effects. The
    hospital changed his medication.

[12]

On April 10, 2019, the Board convened for Mr.
    Trans 2019 annual disposition review, but it was adjourned to June 12, 2019
    due to the absence of the Vietnamese interpreter.

[13]

After April 10, 2019, his clinical team saw a
    change in his mental state and noticed behavioural changes indicating possible
    mental deterioration. In its report, the hospital stated:

On several occasions [Mr. Tran] was observed
    to be talking to himself out loud in Vietnamese which was out of character for
    him. When questioned about this, he claimed he was either [singing] out loud or
    telling others (who were not Vietnamese-speaking) jokes. His affect remained
    euthymic, yet he became more socially withdrawn and suddenly stopped
    participating in hospital and community programming. It was discovered that he
    missed several Hong Fook ESL classes as he stopped attending. When questioned
    by the team, he claimed he was suffering from a headache [and] could no
    longer concentrate and participate in programs or activities.

[14]

As of April 10, 2019, he had voluntarily ceased
    attending all of his community programs but was using indirectly supervised
    passes daily to go on hospital grounds and to go to the store in the community
    across the street from the hospital.

[15]

Then, on April 30, 2019, Mr. Tran disclosed at
    his team review that he had been experiencing delusions and auditory
    hallucinations, and that they had been present during his entire admission to
    CAMH. He reported hearing voices that, among other things, would threaten to
    kill him. Dr. Benassi comprehensively assessed Mr. Tran, who no longer believed
    that he suffered from a mental condition and did not believe psychotic
    treatment was necessary to manage his mental condition or that there would be
    any consequence if discontinued. Dr. Benassi opined that Mr. Tran was no
    longer capable of consenting to psychiatric treatment.

[16]

On April 30, 2019, Mr. Trans team placed on
    hold his access to the community and his indirectly supervised privileges both
    on the hospital grounds and in the community. He did not lose his accompanied
    privileges to the hospital grounds but declined to use them. He did not want to
    go out with staff members.

[17]

On May 28, 2019, Mr. Tran regained his access to
    escorted community passes, but again did not want to go out with staff members.
    On June 7, 2019, he was restarted on his former medication. Dr. Benassi
    testified that within two to three weeks the hospital might be in a position to
    restore the passes.

CAMH Letter to the Board

[18]

On May 27, 2019, CAMH wrote to the Board, with a
    copy to the Crown and Mr. Trans counsel, for informational purposes only
    pursuant to para. 69 of this courts decision in
Campbell
.

[19]

Dr. Darby, the Person in Charge at CAMH,
    commenced CAMHs letter with reference to
Campbell
. He advised that as
    of April 30, 2019, Mr. Trans indirectly supervised off-unit privileges were
    placed on hold:

due to a significant deterioration in his
    mental state, including auditory hallucinations and paranoid beliefs. Mr. Tran
    has disclosed that he has been hearing voices making derogatory comments and
    threatening to kill him. At times, the auditory hallucinations scare Mr. Tran,
    who also believes he has a camera in his eye controlled remotely by people via
    the Internet and has disclosed delusional thoughts with respect to people
    spying on him. Mr. Tran has had at least two episodes of non-compliance with
    his oral anti-psychotic medication during this period of psychotic relapse.

[20]

Dr. Darby explained that Mr. Trans indirectly
    supervised passes were on hold given concerns about his risk to others if
    unsupervised while off the unit. Mr. Tran continued to have access to
    staff-accompanied passes off the unit.

[21]

Dr. Darby added that when Mr. Trans passes were
    placed on hold, Mr. Trans liberty norm could be characterized as the
    exercising of indirectly supervised passes into the community and on hospital
    grounds. Referencing
Campbell
, Dr. Darby acknowledged that the
    restriction from April 30 to the date of the letter, May 27, 2019,
clearly deviated from Mr. Trans established liberty norm
.
    However, applying the test from
Campbell
, CAMH took the position that
    a reasonable person aware of the circumstances of Mr. Trans case
would not
believe that the hospitals decision to place his indirectly supervised passes
    on hold resulted in a loss of liberty so significant that the Board must
    convene a hearing (emphasis in original). Dr. Darby concluded his letter by
    stating that the hospitals actions were the least onerous and restrictive way
    of managing the risk, the letter was not a notification under s. 672.56(2) of
    the
Code
of a
    significant restriction of liberty, and Mr. Trans annual review was scheduled
    for June 12, 2019.

[22]

On May 28, 2019, Mr. Trans counsel wrote to the
    Board asking it to convene a hearing to review the allegedly significant
    increase on the restriction of his liberty.

[23]

On May 29, 2019, the Board responded to Dr.
    Darby at CAMH with a copy to Mr. Trans counsel, stating that his letter would
    be distributed at Mr. Trans annual hearing on June 12, 2019. It did not write
    separately to Mr. Trans counsel.

The Hearing and the Boards Decision

[24]

The Board convened on June 12, 2019. It addressed
    the necessary and appropriate disposition. As well, the Board considered Mr. Trans
    loss of privileges and asked the parties to provide written submissions on this
    issue.

[25]

CAMH and the Crown recommended the continuation
    of the detention order and took the position that there was no need to review
    the restriction of liberty decision of the hospital.

[26]

Mr. Tran took the position that he was not a
    significant threat and was entitled to an absolute discharge, or if found to be
    a significant threat, a conditional discharge with terms mirroring the current
    detention order. He also sought a review of his restriction of liberty.

[27]

The Board found that Mr. Tran continued to pose
    a significant threat to the safety of the public. He had limited insight into
    his illness and the need for medication, could not consent to treatment, and
    exhibited positive signs of his illness. The index offences were very serious
    and violent, and he was experiencing symptoms of psychosis and auditory
    hallucinations similar to those he experienced at the time of the index
    offences. The hope was that once his new medication dosage was optimized, his
    privileges would incrementally increase to the point of once more exercising
    his indirectly supervised passes. The Board determined that the necessary and
    appropriate disposition was a continuation of the detention order on the
    general forensic unit, with privileges up to and including community living in
    approved accommodations, as well as the terms and conditions that were
    implemented in the prior years disposition.

[28]

As for the restriction of liberty decision, the
    Board noted the need for an individualized assessment, as mandated by this
    court in
Campbell,
and that the court, at para. 65, directed the Board
    to consider what liberty the accused was actually experiencing before the
    increased restrictions were put in place.

[29]

At para. 12 and following of its reasons, the
    Board reviewed in detail Dr. Benassis evidence. At para. 13, the Board
    reviewed evidence that [f]rom April 10
th
until April 30
th
,
    notwithstanding the change in Mr. Trans behaviour, he continued to use his
    indirectly supervised passes, although in a somewhat limited fashion. Further,

sometime after April 10, 2019, he stopped
    going to his ESL classes and other programs in the community and he only used
    his hospital ground privileges. Dr. Benassi advised that he expects Mr. Trans
    privileges to slowly be restored beginning in the next two to three weeks, as
    it is hoped that he will show improvement, as he started his Olanzapine [his
    former medication] last week. However, the usual trajectory is that the
    treatment team will want him to successfully use his escorted passes to the
    community first (for example, to see if he can follow direction of staff),
    before reinstituting indirectly supervised passes to the community.

[30]

The Board, at para. 17, noted Dr. Benassis
    evidence that up until April 2019, Mr. Tran was using his passes for other
    activities, such as soccer, attending stores, and running errands by himself.
    He had several hours a day in which he was exercising those passes.

[31]

The Board commenced the analysis section of its
    reasons on restriction of liberty by referring to para. 68 of
Campbell,
where this court identified
    an instance where notice is required as one where an NCR accused has been
    afforded significant community access for long enough that it has become the
    individuals liberty norm. The Board then asked itself whether, considering
    Mr. Trans lengthy access to the hospital grounds and community, the Board
    should exercise its jurisdiction and what circumstances it should consider. It
    considered the
dicta

in
Campbell
on notice as an
    important liberty safeguard, the need for a case-by-case review, an
    individualized assessment, and the rejection by
Campbell
of a
    categorical approach.

[32]

The Board directed itself to consider the
    liberty Mr. Tran was actually experiencing before the increased restrictions
    were put in place:
Campbell
, at para. 65. The Board wrote, at para.
    41:

It was after around April 10
th
that
    there was observed a noticeable change in Mr. Trans behaviour, which appears
    to have resulted in Mr. Tran no longer utilizing his indirect passes to the
    community to, for example, attend ESL classes.
He
    used his passes from April 10-30, but only to attend the hospital and grounds
    and to attend the store across the street from the hospital
. [Emphasis added.]

[33]

The Board concluded, at para. 42:

Mr. Trans liberty norm on April 30, 2019 was
     in a state of flux and it was in the process of deteriorating. As well,
    this is not a situation where Mr. Tran was employed or going to school at the
    time his indirectly supervised passes were curtailed, as Mr. Tran had stopped
    attending ESL classes from around April 10, 2019. It is reasonable to conclude
    that
the deterioration in Mr. Trans mental state
    was probably the reason why he no longer was attending such classes, or using
    his community privileges to the degree he was prior to April 2019
. The Court in
Campbell

mandates
    an analysis of the determination of the pre-existing liberty norm that
    considers the individuals pattern of liberty in the recent past (para 66).
    The Board finds that Mr. Trans liberty norm could be characterized, on April
    30, 2019, as him significantly reducing the use of his indirectly supervised
    hospital and community privileges. He also continued to have accompanied
    hospital grounds privileges, and escorted passes to the community were
    reinstated on May 28
th
. [Emphasis added.]

[34]

As such, the Board concluded that Mr. Trans
    liberty norm following removal of the passes was not significantly different
    than his liberty norm prior to that date. He could no longer attend the
    hospital grounds or the store just outside the hospital grounds, indirectly
    supervised, and his escorted passes to the community were withheld until the
    end of May and then reinstated.

[35]

The Board found that Mr. Trans restriction of
    liberty, and change in liberty status, was not so significant that a
    reasonable person, considering all of the circumstances, would think that the
    Board should be called on to consider whether the hospital properly applied the
    least onerous and least restrictive test ahead of the next annual review:
    citing
Campbell
, at para. 67. At para. 44, the Board also adopted the
    submission of Ms. Naidoo, counsel for CAMH, that:

Given the significant increase in risk
    associated with the emergence of active symptoms similar to those at the time
    of the index offence, and concurrent changes in Mr. Trans behavior, the
    decision of [the] hospital to ensure that he was supervised when off the unit
    was clearly within the hospitals day-to-day discretion, necessary to protect
    public safety.

[36]

The Board decided that a notice of restriction
    of liberty was not required.

C.

Issues

[37]

This appeal raises four issues:

1.

Did the Board err in ordering Mr. Trans continued detention?

2.

Did the Board err in concluding that the increase in the restrictions on
    Mr. Trans liberty was not significant?

3.

If the increase in the restrictions on liberty was significant, was this
    increase the least onerous and least restrictive measure in the circumstances?

4.

Should this court impose a restriction of liberty notice and hearing
    procedure on the Person in Charge and the Board, as proposed by the Attorney
    General?

D.

Standard of
Review

[38]

The standard of review of a Board decision is
    set out in s. 672.78 of the
Code
. This court is only entitled to
    interfere if the decision (a) is unreasonable or cannot be supported by the
    evidence; (b) is based on a wrong decision on a question of law; or (c)
    occasioned a miscarriage of justice. The reasonableness standard of review
    applies to findings of facts and the drawing of inferences:
Campbell
,
    at para. 27. If the Boards disposition is supported by reasons that can bear even
    a somewhat probing examination, it will not be considered unreasonable:
Saikaley
    (Re)
, 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35, citing
Mazzei v.
    British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006
    SCC 7,
[2006] 1 S.C.R. 326, at para. 17
. The Boards discretionary decisions are similarly owed deference:
Saikaley
,
    at para. 36. Questions of law, on the other hand, are assessed on a correctness
    standard:
M.L.C. v. Ontario (Review Board)
, 2010 ONCA 843, 104 O.R.
    (3d) 450, at para. 21.

[39]

As discussed in
Campbell
, at para. 28, the
    meaning to be given to significantly increase in s 672.81(2.1) attracts a
    standard of correctness because this engages a question of law. A
    reasonableness standard applies to the Boards application of the test in
Campbell
.

E.

Analysis

(1)

Did the
    Board err in ordering Mr. Trans continued detention?

[40]

While not conceding that he continued to be a significant
    threat to the safety of the public, Mr. Tran focused his challenge of the
    disposition on the Boards rejection of his submission that he should be
    discharged pursuant to certain conditions. Mr. Tran had consented to submit to
    a treatment clause and to the Person in Charge determining his residence and
    agreed to remain at CAMH until appropriate accommodation could be found for
    him.

[41]

The Board determined that a conditional
    discharge was not an appropriate disposition in Mr. Trans circumstances. These
    circumstances included Mr. Trans significant psychiatric history, the index
    offences, and his recent decompensation following a change in his medication.
    In consequence, the Board concluded that although Mr. Tran was initially
    designated as ready for discharge, that plan had to be altered because of the
    dramatic change in his condition. As a result of this change, his risk to the
    public could not be adequately safeguarded by a conditional discharge
    disposition. A detention order allowing CAMH staff to stabilize Mr. Trans
    psychotic symptoms and medication, approve his housing, and determine his level
    of privileges in the community was required to manage his significant risk to
    the safety of the public, with the hope that Mr. Tran would again be ready for
    discharge in the near future.

[42]

We see no error in the Boards disposition which
    was the least onerous and least restrictive in these circumstances, in
    accordance with s. 672.54 of the
Code
. The record clearly supports the
    Boards conclusion that Mr. Tran represents a significant risk to public
    safety. Mr. Trans index offences were very serious: under the influence of his
    psychosis, he heard voices telling him to kill people, which led to him
    stabbing an acquaintance with a knife. While Mr. Tran has made significant
    progress over the last few years and was ready for discharge, unfortunately,
    following a change in his medication, he again began to exhibit psychotic
    symptoms and heard the same kind of voices that had led to the index offence,
    though Mr. Tran submits these voices do not instruct him to commit violence
    against others. He lost insight into his mental illness and need for medication,
    and he became incapable of consenting to treatment.

[43]

In these circumstances, it was open to the Board
    to conclude that a conditional discharge was not appropriate. To manage Mr.
    Trans significant risk, the Board recognized, correctly in our view, that CAMH
    must be able to regulate Mr. Trans medication and treatment and to choose his
    residence and the details of community access, which is only possible under a
    detention order. This was the least onerous and least restrictive disposition
    in the circumstances.

[44]

Accordingly, we would not give effect to this
    ground of appeal.

(2)

Did the Board err in determining that the
    increase of the restrictions on Mr. Trans liberty was not significant?

[45]

Mr. Tran submits that the Board erred in
    its approach and consideration of his use of privileges thereby incorrectly
    concluding that the increase of the restrictions on his liberty was not
    significant. He argues that the Board unreasonably minimized the importance of
    Mr. Tran being able to leave the unit on his own to go wherever he wants on the
    hospital grounds or to the store in the community. In addition, he submits that
    the Board misapprehended the evidence relating to his use of privileges.

(a)

Code
Provisions

[46]

The relevant
Code
provisions are:

s. 672.56(2)

A person who increases the restrictions on the liberty of the accused
    significantly pursuant to authority delegated to the person by a Review Board
    shall

(a)
make a record
    of the increased restrictions on the file of the accused; and

(b)
give notice of
    the increase as soon as is practicable to the accused and, if the increased
    restrictions remain in force for a period exceeding seven days, to the Review
    Board.

s. 672.81
(2.1)
The Review Board shall hold a hearing to review a decision to
    significantly increase the restrictions on the liberty of the accused, as soon
    as practicable after receiving the notice referred to in subsection 672.56(2).

(b)

Division of Responsibilities and Context

[47]

Under s. 672.81(1), an NCR accused is entitled
    to a review hearing of the Board every year. Between those annual reviews,
    authority is delegated to the hospital, which is charged with the care and
    progress of the accused. The hospital may make decisions between annual reviews
    which restrict the liberty of the accused. The question to be addressed with
    any restriction of liberty of an accused is when and whether a hearing is
    required between the regularly scheduled annual reviews. The purpose of an
    additional hearing is to take a second look at a hospitals decision involving
    a restriction of the liberty of the accused.

[48]

In
M.L.C.
, this court succinctly
    described the division of responsibilities between the Board and the hospital
    while an NCR accused remains under the jurisdiction of the Board. The court stated
    at para. 28, that s. 672.56(1) of the
Code:


allows the Board to delegate to the hospital
    certain decisions about the patients liberty. Any restrictions the hospital places
    on the patient must fall within the envelope of the conditions enumerated by
    the Board in its disposition. As a safeguard, any decision by a hospital that
    significantly restricts a patients liberty for more than seven days must be
    considered by the Board in a restrictions review.
[1]

As noted in that case, at para. 28,
    hospitals must be provided with sufficient flexibility to respond to a
    patients needs.

[49]

It is easy to become entangled in the semantics
    of the notice requirement found in s. 672.56(2), but the fundamental issue must
    be whether the increase in the liberty restriction is sufficiently significant
    that a hearing into the merits of the hospitals decision should be convened.

[50]

The interpretation accorded to the significance
    component of the notice requirement in s. 672.56(2) follows from the context of
    the notice requirement in the overall statutory scheme. The words of the
    section are to be read in their entire context, as repeatedly instructed by the
    Supreme Court: see
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC
    42, [2002] 2 S.C.R. 559, at paras. 26, 29. This context includes the division
    of responsibilities between the Board and the hospital, as outlined above, and
    the other liberty safeguards present in the scheme, including the requirement
    for an annual review, and the mandatory nature of the hearing that follows
    automatically upon notice under s. 672.56(2), together with the public
    protection objective of the statutory provisions.

[51]

The notice provision is an important safeguard
    for liberty, but it is far from the only liberty safeguard for the accused. It
    must be construed against the backdrop of the many liberty safeguards in
    place, including the requirement for an annual review and the availability of
    discretionary reviews at the direction of the Board or the hospital:
Campbell
,
    at paras. 50, 55 and 60.

[52]

Once notice is triggered, a hearing is
    mandatory; there is no discretion given to the Board. The mandatory hearing
    obligation that flows from the giving of notice of a significant increase must
    also inform the meaning to be given significant. That is, given that the
    hospital must be afforded flexibility to respond to the day-to-day needs of the
    accused, in order to keep patients and staff safe and to provide care, notice
    and a mandatory hearing are not required for any increase in restriction on
    liberty. Such an approach would result in unnecessary mandatory hearings and
    interfere with the work of hospitals:
Campbell
, at para. 63.

[53]

Considered in this context, the purpose of s.
    672.56(2) is to act as a final liberty safeguard, allowing for a second-look at
    those hospital decisions that have such serious ramifications for the liberty
    of the NCR accused, that they should be examined ahead of the next yearly
    review:
Campbell
, at para. 64.

(c)

The
Campbell
Decision and its Application

[54]

Campbell
provided a useful analysis of the methodology to be taken when dealing with the
    issue of the notice requirement under s. 672.56(2). A case-by-case approach and
    an individualized assessment are to be adopted. Fairburn J.A. (as she then was)
    noted that as with all tests, over time, jurisprudence will breathe life into
    the analysis:
Campbell
,

at para. 68.

[55]

The
Campbell
framework provides, at
    paras. 65-67, that:

[T]he NCR accuseds liberty norm must be
    identified. Calibrating the liberty norm requires consideration of the duration
    and pattern of liberty the NCR accused was experiencing before the decision or
    decisions resulting in increased restrictions on liberty. Determining the
    liberty norm does not ask what the individual may have been entitled to, but
    what [they were] actually experiencing before the increased restrictions were
    put in place. The liberty must be of sufficient duration to have become,
    objectively speaking, the NCR accuseds norm.



Accordingly, when determining the NCR
    accuseds liberty norm, hospitals should take a contextual approach, one that
    considers the individuals pattern of liberty in the recent past.

Once the liberty norm is determined, it must
    be compared against the NCR accuseds liberty status following the increases in
    restrictions. Only where the change in liberty status clearly deviates from the
    NCR accuseds liberty norm must the hospital notify the Board. The change in
    liberty status must be so significant that a reasonable person, considering all
    of the circumstances, would think that the Board should be called on to
    consider whether the hospital properly applied the least onerous and least
    restrictive test ahead of the next annual review.

[56]

Put another way,
Campbell

asks:

1. Was there an increase in the restrictions on the accuseds
    liberty, having regard to:

(a) the accuseds liberty norm before the impugned restriction;

(b) the accuseds liberty status following the impugned
    restriction; and

2. If yes, is the change in liberty status  so significant
    that a reasonable person, considering all of the circumstances, would think
    that the Board should be called on to consider whether the hospital properly
    applied the least onerous and least restrictive test ahead of the next annual
    review: at para. 67.

Thus,
Campbell

contemplates
    first a finding on whether there was in fact an increase in restrictions. In
Campbell
itself, the majority of the Board had concluded that the transfer of Ms.
    Campbell from the secure forensic rehabilitation unit (FRU) to the secure forensic
    assessment unit (FAU) actually resulted in a less restrictive environment
    because at the FAU, she no longer needed one-on-one supervision:
Campbell
,

at para. 18. Once an increase has been established, then the question is
    whether the increase is significant such that notice and a mandatory hearing
    are required.

[57]

Campbell
does
    not mandate an inflexible mathematical before and after approach to an NCR
    accuseds liberty norm. The increase component of s. 672.56(2), or part
    one of the test, requires a quantitative assessment, comparing the before and
    after of the accuseds liberty status. However, part two then involves
    assessment of the reasonableness or significance threshold. In this second part
    of the test, a contextual approach is to be adopted. This flows from Fairburn
    J.A.s direction that the assessment of the significance of the increase should
    be contextual and individualized (
Campbell
,

at paras. 65, 68)
    and conducted from the perspective of a reasonable person,
considering all
    of the circumstances
:
Campbell
,

at para. 67 (emphasis
    added). This may include consideration of such factors as an accuseds history
    and use of privileges. Examination of what an accused has experienced in the
    recent past involves consideration of the use of privileges by the individual.
    It would also include an accuseds treatment horizon and the proximity of the
    annual review. This evaluation engages the significant component of s.
    672.56(2).

[58]

Applying the first part of the
Campbell
test, there was an increase in the restrictions on Mr. Trans liberty. He no
    longer could attend the hospital grounds or community indirectly supervised and
    for one month his escorted passes to the community were withheld. Indeed, in
    its
Campbell
letter to the Board, the hospital acknowledged an
    increase in the restrictions on Mr. Trans liberty. In making the restriction
    of liberty determination, the Board conflated the two parts of the test. The
    Board looked at both Mr. Trans liberty history and his more recent experience
    and concluded that his liberty norm was in a state of flux and in the process
    of deteriorating. Thus, it examined use of privileges in its analysis of Mr.
    Trans liberty norm rather than as a factor to be considered in its significance
    analysis. This conflation amounted to an error of law.

[59]

However, we do not see any error with the
    Boards conclusion that the significance threshold was not met. The Board
    recognized the need for a case-by-case analysis and the importance of notice as
    a liberty safeguard.

[60]

In examining all of the circumstances (to use
    the words from
Campbell
), the hospital and the Board were faced with
    an NCR accused who had been using his privileges for a variety of activities, who
    was on the verge of being placed in a home in the community, whose medication
    was altered, whose mental state then seriously deteriorated, and who had reduced
    his own use of his privileges. He had stopped engaging in the indirectly
    supervised activities he used to enjoy, instead preferring to remain close to
    the hospital. While he could no longer exercise indirectly supervised passes,
    he continued to have access to accompanied passes to the hospital grounds, and
    as of May 28, 2019, he could use escorted passes into the community. He chose
    not to use those passes.

[61]

We do not agree with Mr. Trans submission that
    the Board minimized the importance of his activities of walking around the
    hospital grounds or going to the nearby store in the community. By indicating
    that Mr. Tran was only participating in these activities, the Board did not
    engage in a qualitative evaluation of their worth. Rather, the use of the word
    only refers to the narrowness of Mr. Trans self-restricted activities, which
    the Board was entitled to take into account.

[62]

Applying the second part of the
Campbell

test, the change in liberty status was not so significant that a reasonable
    person, considering all of the circumstances, including Mr. Trans reduced use
    of privileges, would think that notice and a hearing were required.

[63]

The changes made in this case are the kind of
    day-to-day adjustments that should properly reside with the clinical team, the
    experts who are charged with the care and improvement in the mental condition
    of the NCR accused and his gradual reintegration into the community.

[64]

As Fairburn J.A. wrote, at para. 63 of
Campbell
,
    the hospital must be left to do its work free from constant review and all of the
    demands that a decision-notice-review-decision-notice-review approach would
    impose. Absent a significant increase in the restriction of liberty, the
    day-to-day management decisions are to be left with the hospital until the next
    annual review. The significance inquiry must be informed by the discretion
    afforded to the hospital. To require notice and a hearing in the circumstances
    faced by the hospital and the Board in Mr. Trans case involves the precise
    sort of micro-management that
Campbell
warns against.

(d)

Alleged Misapprehension

[65]

Turning to the alleged misapprehension of the
    evidence, Mr. Tran submits that the Board erred in stating that after April 10,
    2020, Mr. Tran was significantly reducing the use of his indirectly
    supervised hospital and community privileges and only using his passes to
    visit a store across the street from the hospital and to access the hospital
    grounds. According to Dr. Benassis evidence, Mr. Tran continued to use his
    privileges on a daily basis; only the nature of his activities had changed. As
    a result, according to Mr. Tran, the Board erred in concluding that Mr. Trans
    liberty norm was accordingly in a state of flux and deteriorating by April 30,
    2019.

[66]

It follows from our earlier analysis that the
    Board was entitled to rely on the evidence about Mr. Trans use of privileges
    in assessing the significance arm of the test. Moreover, certainly there was
    evidence to support the Boards finding that Mr. Tran was significantly
    reducing his use of privileges and that his use was in a state of flux and in
    the process of deteriorating.

[67]

The hospital report was filed in evidence before
    the Board. It reported that prior to April 10, 2019, Mr. Tran had attended ESL
    classes twice a week and recreational programming including a cooking group,
    gym and a summer outdoor soccer league. The hospital reported that shortly
    after April 10, 2019, he had stopped participating in hospital and community
    programming including his ESL classes. He had become socially withdrawn. By
    April 30, 2019, when his privileges were placed on hold, he had not been attending
    ESL classes or any of the other community programs for close to three weeks.
    This could only be described as a significant reduction or deterioration in usage,
    not in the sense of evaluating what was the best use of Mr. Trans time, but
    with respect to the materially narrowed scope of his activities.

[68]

At the same time, the Board recognized that Mr.
    Tran was continuing to exercise his indirectly supervised privileges by going
    to the store across the street from the hospital and by accessing the hospital
    grounds.

[69]

The Board did not misapprehend the purport of
    the evidence.

(3)

Was the increase in restrictions on Mr. Trans
    liberty the least onerous and least restrictive measure?

[70]

Since the Board determined that notice of the
    increased restrictions was not required, it did not go on to consider whether they
    were the least onerous and least restrictive measures to impose in the
    circumstances of this case. Mr. Tran requests that this court undertake that
    analysis.

[71]

While not strictly necessary given our
    disposition of this appeal, we undertake this analysis for completeness. We
    conclude that the increase in the restrictions on Mr. Trans liberty was the
    least onerous and least restrictive in the circumstances.

[72]

The Person in Charge was required to give due
    regard to Mr. Trans liberty interest in light of the twin goals of public
    safety and treatment and also had to ensure that the conditions it imposed met
    the least onerous and least restrictive standard:
M.L.C.
, at paras.
    27-28, 45-46;
Chaudry (Re)
, 2015 ONCA 317, 125 O.R. (3d) 641, at para.
    72, leave to appeal refused, [2016] S.C.C.A. No. 460.

[73]

Mr. Tran had sadly decompensated following a
    change in his medication. He stopped attending all structured programming in
    the community, such as soccer and his ESL classes. The deterioration in his
    activities mirrored the deterioration in his condition. He heard the same kind
    of threatening voices that had urged him to commit the index offences. He had
    lost all insight into his condition. He was deemed incapable of treatment. The
    decision to impose more restrictive measures until Mr. Tran was stabilized was necessary
    to manage the risk he posed to others when unsupervised, given the
    deterioration in his mental state. Accompanied passes to the CAMH grounds
    remained available and escorted passes to the community were offered to Mr.
    Tran as of May 28, 2019. We are satisfied that this was the least onerous and
    least restrictive measure in these circumstances.

[74]

Accordingly, and in any event, we would not give
    effect to this ground of appeal.

(4)

Should the proposed restriction on liberty
    notice and hearing procedure by the Attorney General be imposed?

[75]

On this appeal and in
Brownlee
, the
    Attorney General proposes that a uniform procedure to restriction on liberty
    notice and hearings should be developed. The Attorney General advocates this
    approach in order to respond to regional differences in how hospitals and the
    Board approach the question of notice and hearings in situations where the
    hearing has not been triggered automatically.

[76]

In particular, the Attorney General submits that
    there are varying approaches to the giving of informal notices as noted by this
    court in
Campbell
. While notice under s.
672.56(2)
of the
Code
will generate an automatic hearing under s.
672.81(2.1)
, it is always open to the hospital to
    simply inform the Board (in what has come to be known as a 
Campbell
letter) about a decision that has changed the NCR accuseds liberty status. Counsel
    for the parties advised that in some jurisdictions,
Campbell
letters are
    not routinely filed with the Board. In other jurisdictions, where
Campbell
letters are sent to the Board, the Board apparently only acknowledges receipt
    and does not specifically respond to defence counsels request for a review.

[77]

As a result, the Attorney General submits that
    the following procedure should be adopted:

(1) As obligated under Part XX.1, if notice is provided subject
    to s. 672.56(2), this will generate an automatic [restriction of liberty
    (ROL)] hearing under s. 672.81(2.1)[.]

(2) If the Hospital provides notice to the Board of a
    restriction of liberty as information only, the Review Board will review the
    information provided (including any subsequent letter from the accuseds
    counsel that sets out their position) and determine whether a discretionary
    hearing should be convened. Their decision should be communicated to all
    parties in a timely manner (although reasons are not required)[.]

(3) If the Board determines that a hearing is required, they
    will convene a hearing under s. 672.82(1)[.]

(4) If a ROL hearing is not convened after information is
    provided to the Board, then, to the extent that [it] is warranted or requested
    by one of the parties, the general circumstances of the restriction of liberty
    should be considered at the next annual hearing.

(5) If a ROL issue only becomes known at the annual hearing, it
    should be addressed during that hearing.

[78]

We decline to comment on or order the
    implementation of the Attorney Generals proposed procedure. This court should
    not generally dictate the Boards approach on this issue. Such a directive
    could impinge upon the Boards jurisdiction to fashion its own rules of
    procedure and practice and the exercise of its discretion.

[79]

Section 672.44(1) of the
Code
empowers
    the Board to make rules providing for the practice and procedure before it,
    subject to the approval of the Lieutenant Governor in Council of the province. Other
    than the procedures prescribed by the
Code
and the regulations made by
    the Governor in Council, any additional rules concerning the response to
Campbell
letters must therefore come from the Board:
Code
, ss. 672.44(1),
    672.44(3). However, prescribing procedural rules of general application in the
    abstract is not the role of the appellate court under Part XX.1 of the

Code
.

[80]

This does not preclude these issues being raised
    in an appropriate case.
The fairness and reasonableness
    of the Boards procedure and its treatment of the parties in coming to a
    disposition can warrant appellate intervention
: see e.g.,
Chaudry
,
    at paras. 112, 116 and 118;
Kachkar (Re)
, 2014 ONCA 250, 119 O.R. (3d)
    641, at para. 39. The Board has a duty to treat vulnerable NCR accused with the
    utmost dignity:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at para. 42.

[81]

Accordingly, we decline the Attorney Generals invitation
    to elaborate on or impose a uniform procedure.

F.

Disposition

[82]

For these reasons, we would dismiss the appeal
    on all grounds.

Released: November 12, 2020 (S.E.P)

S.E. Pepall J.A.

L.B. Roberts J.A.

I agree. C.W. Hourigan J.A.





[1]

In the case under appeal, the restrictions fell within the
    envelope of the enumerated conditions for Mr. Tran. There is therefore no issue
    about this.


