



COURT OF APPEAL FOR ONTARIO

CITATION: Trang (Re), 2017 ONCA 63

DATE: 20170124

DOCKET: C62461

Doherty, Blair and Lauwers JJ.A.

IN THE MATTER OF:  Chanh Henry Trang

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Joseph Berger, for the appellant

Rebecca De Filippis, 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: January 20, 2017

On appeal of the disposition of the Ontario Review Board,
    dated June 14, 2016.

ENDORSEMENT

[1]

The appellant, Chanh Henry Trang, appeals the June 14, 2016 disposition of
    the Ontario Review Board (Board) that ordered him to be detained at the
    Waypoint Centre for Mental Health Care  Provincial Forensic Programs Division
    (Waypoint). The order also required the person in charge of Waypoint to create
    a program for the detention in custody and rehabilitation of the accused within
    Waypoint.

Background

[2]

In May 2011, the appellant was found not criminally responsible on
    account of mental disorder on a charge of assault in contravention of the
Criminal
    Code
, R.S.C. 1985, c. C-46. The index offence involved an assault on a
    staff member at the Centre for Addiction and Mental Health (CAMH), where the
    appellant was an involuntary patient in May 2010. Before this offence, the
    appellant had a lengthy criminal history. The hospital report sets out his
    record of prior criminal convictions, starting in 1994 and proceeding up to
    2003. His convictions include a number of fraud charges, at least two
    possession of property obtained by crime charges, and a conviction for assault
    causing bodily harm and obstructing a peace officer.

[3]

The appellant suffers from SchizophreniaParanoid Type (specifier:
    continuous), Neuroleptic Malignant Syndrome (past history of), and Neuroleptic-Induced
    Tardive Dyskinesia. He also has a history of medication noncompliance.

The Hearing

[4]

The appellant conceded, at the hearing, that he presented a significant
    risk of serious harm to the public under s. 672.54 of the
Criminal Code,
and did not seek a discharge disposition. He only sought to be transferred to
    CAMH. The Board concluded that the appellant should continue to be detained at
    Waypoint with the same privileges and conditions set out in his previous
    disposition.

Grounds of Appeal

[5]

The appellant makes a single argument on this appeal, which is that he
    has reached a treatment impasse at Waypoint. He asserts it can only be addressed
    by an order requiring a comprehensive assessment of the risk he poses and the treatment
    he needs that must be undertaken by a qualified forensic psychiatrist who is
    independent of Waypoint, followed by a new hearing before a differently constituted
    panel of the Board.

[6]

In raising this argument, the appellant relies on this courts
    endorsement dated June 6, 2016 (
Trang (Re)
, 2016 ONCA 441) relating to
    the Boards previous disposition, in which the court recognized a lack of
    unanimity among members of the treatment team as to whether the appellant could
    be managed in a less secure setting than Waypoint. In the endorsement, this
    court said there was no treatment impasse in this case with respect to the
    appellants ongoing treatment plan. The court went on to say:

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.

[7]

The endorsement was released four days before the appellants review
    hearing and apparently led to the assessment work done by Dr. Beth Eayrs, who
    is a forensic psychiatrist employed at Waypoint. She was not the treating
    physician, and candidly admitted to the Board that she did not have time to
    write a formal report.

Analysis

[8]

We agree with the appellant that, as part of its inquisitorial
    function, the Board is obliged to consider the possibility that a treatment
    impasse has been reached where the evidence suggests it.
The relevant principles related to the determination of a
    treatment impasse were set out by the Supreme Courts decision in
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 42: see also
R.
    v. LePage
, [2006] O.J. No. 4486 (C.A.), at paras. 23-26, and
R. v.
    Conway
, [2008] O.J. No. 1588 (C.A.), at paras. 29-34,
per
Armstrong
    J.A., and at paras. 67, and 83-85,
per
Lang J.A.

[9]

The Supreme Court noted in
Mazzei
, at para. 42, that the Board is obliged to identify and
    address treatment impasses, 
where no progress has been made or is
    likely to be made, on the evidence before it, in light of the Boards
    responsibility: to provide opportunities for appropriate and effective medical
    treatment with a view to controlling and reducing that risk, to work towards
    the ultimate goal of rehabilitation and reintegration, and to safeguard the
    liberty interests of the accused in this process. The appellant argues his is
    such a case.

[10]

We do not accept the appellants submission that, there is a glaring
    treatment impasse here.

[11]

This court referred to the possibility of a treatment impasse in its earlier
    endorsement, and such a possibility formed the backdrop of the Boards hearing,
    although nothing was directly said about it in the reasons of the Board. The
    evidence did not substantiate the existence of a treatment impasse.

[12]

Dr. Eayrs gave evidence that there is a treatment plan
    in place that could benefit the appellant going forward. One element is
    reducing the appellants access to water and preventing the debilitating
    effects on him of water intoxication. Another element is a prospective trial
    with the medication,
Clozapine. She gave three reasons for proposing
the
Clozapine
trial:

Clozapines most likely to successfully prevent aggressive
    incidents. Secondly, many cases of Tardive Dyskinesia improve after a person
    has been switched to Clozapine. And  and then, thirdly, Clozapine is most
    likely to actually help with excessive water drinking. Its really the only  I
    remember doing a literature review on water intoxication a number of years ago
    and it was basically the only medication that showed some evidence of making a
    positive impact on the pattern of water intake. Its because it addresses
    impulsivity I think. And so its the preferred medication when a person is
    engaging  its a preferred treatment over other antipsychotic treatments in
    that context.

Given that the appellant good level of medication
    compliance, Dr. Eayrs had some confidence that the Clozapine trial would be
    successful. The third element of the treatment plan is the possibility of
    resuming ECT treatments, to which the Official Guardian and Trustee have
    already acceded.

[13]

The appellant is critical of the Hospitals failure to engage a truly
    independent witness, since Dr. Eayrs is a Waypoint employee.

[14]

Time was very short between this courts previous endorsement and the
    Boards hearing now under appeal. No real fault can be ascribed on this
    account.

[15]

The concept of a treatment impasse is premised on the expectation that
    treatment will inevitably lead to a patients improvement, but sometimes the
    true dimensions of the illness make that expectation unrealistic at the point
    in time that it is being evaluated. In the circumstances of this case, the
    absence of a Board finding on whether a treatment impasse exists is reasonable.

[16]

Before the Board, the appellant argued that in selecting the least
    onerous and least restrictive order that it could make, the Board ought to have
    ordered his transfer to a medium security facility, specifically CAMH. Counsel
    for the appellant pursues that issue on appeal and takes the position that the
    transfer is necessary so that the appellant can be independently assessed.

[17]

We do not accept this argument. The Boards decision not to transfer the
    appellant to CAMH is well supported by the evidence. The Board made this
    finding:

We are satisfied that there is a real issue concerning water
    intoxication and that issue cannot be dealt with appropriately at CAMH. We also
    accept the evidence of a history of eloping from CAMH. We are satisfied that at
    the present time Mr. Trangs threat to public safety can only be managed at
    this facility.

[18]

The Board admitted into evidence a letter from CAMH dealing with the
    request to transfer the appellant to that facility:

Over the last year, Mr. Trang has been maintained on the most
    highly structured unit at Waypoint. He has had to be secluded on many occasions
    and had been maintained on the lowest security level for much of the year. Over
    the course of the year, he has made numerous threats to kill the staff, has
    threaten to self-harm and has is engaged in excessive water intake. This has
    required him to be, not just in seclusion, but in a specialized padded room in
    seclusion. Such a padded room is not available in the seclusion rooms at CAMH.
    Neither do we have facility to cut off access to water in the same way that is
    possible at Waypoint.

For all of these reasons, I agree that Mr. Trang still requires
    the level of security provided at Waypoint and do not believe that the transfer
    to CAMH would be the necessary and appropriate Disposition.

[19]

Further, in declining to order the appellants transfer to CAMH, the
    Board specifically relied on the evidence in the hospital report and on the
    evidence given by Dr. Eayrs. The Boards decision not to order the appellants
    transfer to CAMH was reasonable.

Disposition

[20]

The appeal is dismissed.

Doherty J.A.

R.A. Blair J.A.

P. Lauwers J.A.


