



COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re) 2014 ONCA 332

DATE: 20140429

DOCKET: C57630

Weiler, Feldman and Gillese JJ.A.

IN THE MATTER OF:  BARTOSZ GAJEWSKI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Bartosz Gajewski, appellant appearing in person

Jill R. Presser and Andrew Menchynski,
amicus curiae

Joanne Stuart, for
    the Crown

Michele Warner, for
    the Person in Charge of the Centre for Addiction and Mental Health

Heard: April 24, 2014

On appeal against the disposition of the Ontario Review
    Board dated, August 20, 2013.

ENDORSEMENT

[1]

The appellant was found NCR after a trial on the charges of forcible
    confinement and assault.  He met the complainant in 2002 while working in her
    home and became infatuated with her.  He was under the delusion that she was in
    love with him.  After one incident in which the charges of criminal harassment
    were withdrawn, he had no contact with the complainant until 2009 when he attempted
    to abduct her, purporting to be effecting a citizens arrest.  The complainant was
    physically injured in the attempt and remains afraid of him to this day.

[2]

After his initial review, on the understanding that the appellant had
    some insight into his illness and was open to treatment, he was ordered
    detained on the General Forensic Unit at CAMH.

[3]

Unfortunately, problems arose.  The appellant made it clear that he had
    no intention of taking treatment and did not believe his diagnosis.  His
    delusions in respect to the complainant remained.  Concerns about his use of
    the computer arose.  Intimidating behaviour towards hospital staff was
    reported.  His paranoid beliefs were more entrenched and had extended to
    hospital staff, including one of his treating psychiatrists.

[4]

At an early review in February 2012, the hospital report indicated that
    the appellant had been seen by eight different psychiatrists, all of whom were
    of the view that he is psychotic and in need of antipsychotic medication.  He
    manifested symptoms of active psychosis, including paranoia, grandiosity, and
    religious delusions.  The Board ordered detention in a Secure Forensic Unit.

[5]

At his review in 2013, the Board found that the appellant remains a
    significant threat to the safety of the public and ordered that he be detained
    in the Secure Forensic Unit of CAMH, with privileges up to and including accompanied
    hospital and grounds privileges.

[6]

The Boards finding was based largely on the evidence of Dr. Darby and
    the Hospital Report, which shows that the appellant continues to suffer from
    Delusional Disorder, persecutory type, which remains mostly untreated.   Dr.
    Darby testified that an individual suffering from a delusional disorder of this
    nature is likely to have fixed delusions until treated and that the appellants
    complete disengagement from his treatment team made management of his risk
    impossible.

THE ISSUES

[7]

The appellant, through
amicus
, raises three issues on appeal. 
    Did the Board:

1.

Act unreasonably or err in law by placing the appellant in the Secure
    Forensic Unit instead of the General Forensic Unit?

2.

Give insufficient reasons for refusing to place the appellant in the
    LGUD Hybrid Unit or err in failing to make this placement decision?

3.

Err by limiting his right to cross-examine his treating psychiatrist?

ANALYSIS

Issue 1: Placement in the Secure Forensic Unit

[8]

In our view, the Boards finding that the hospital was unable to manage
    the appellants risk unless he was detained in the Secure Forensic Unit, with
    only accompanied passes in the hospital and on the grounds, is neither
    unreasonable nor an error in law.  On the Secure Forensic Unit, there is a
    higher staff ratio which can lead to greater vigilance.  (We note also the
    Boards finding that it may also lead to some privileges of benefit to the
    appellant.)

[9]

The main reasons for the appellants original transfer to the Secure
    Forensic Unit from the General Forensic Unit remain.  These include his lack of
    insight into his mental illness, his refusal to engage with his treatment team,
    and the resulting risk he poses to the complainant.  That risk has increased
    and expanded to include others, including hospital staff.  The evidence showed
    that the appellants disengagement from treatment made the management of his
    risk impossible.

Issue 2:       Refusal to place the appellant in the LGUD
    Hybrid Unit

[10]

The
    appellant complains that the Board reasons do not address his possible
    placement in this unit, which would have been less onerous and less restrictive
    than placing him in a secure unit.

[11]

Reading
    the reasons as a whole, it is clear that the Board did not address this matter
    because it found that he should be detained in a Secure Unit.  Having made that
    determination, it was not necessary to go further and address issues relating
    to the LGUD, which is a type of general forensic unit.

Issue 3:       Limits on Cross-examination

[12]

The
    appellant submits that the Board unfairly restricted his counsels right to
    cross-examine Dr. Darby on the reasonableness of his refusal to take medication
    and the feasibility of his treatment plan.

[13]

In
    the circumstances of this case, we see no unfairness in the Boards having
    limited the right of cross-examination.    At the point where the Chair of the
    Board intervened, counsel had elicited the evidence she needed to make her
    points about the diagnosis, proposed treatment, side-effects of anti-psychotic
    medication, and that there is no guarantee that the medication will make the
    delusions disappear.

[14]

Moreover,
    the Chair asked counsel to explain the relevance of further cross-examination
    on the matters in question.  That relevance was not made clear at the hearing
    and we do not see it as relevant.  There was no disagreement that the appellant
    posed a significant threat to the safety of the public.  Further, the
    appellants position was clear:  he did not acknowledge that he had a mental
    illness and he refused any form of treatment.  The issue was whether placement
    should be on the secure unit or the general unit.

DISPOSITION

[15]

Accordingly,
    the appeal is dismissed.

K.M.
    Weiler J.A.

K.
    Feldman J.A.

E.E. Gillese J.A.


