



COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2019 ONCA 1009

DATE: 20191220

DOCKET: C67007

Hoy A.C.J.O., Simmons and Nordheimer JJ.A.

IN THE MATTER OF:  BARTOSZ GAJEWSKI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Joanne Stuart, for the respondent, Attorney General of
    Ontario

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

Heard: December 9, 2019

On appeal against the disposition of the Ontario Review Board,
    dated May 23, 2019.

REASONS FOR DECISION

[1]

Bartosz Gajewski, appeals the disposition of the Ontario Review Board,
    dated May 23, 2019, ordering that he be detained at the General Forensic Unit
    of the Centre for Addiction and Mental Health (CAMH or the Hospital), with
    conditions including allowing the person in charge to permit him to live in the
    community in accommodation approved by the person in charge.

[2]

The appellant seeks an order discharging him subject to conditions,
    including that he reside with his mother. In the alternative, he asks that the
    matter be returned to the Board for a re-hearing.

[3]

For the reasons that follow, we would allow the appeal and return the
    matter to the Board for re-consideration with the guidance provided below.

Background

[4]

The appellant suffers from what the Crown characterizes as an
    intractable delusion that K.N. unlawfully interfered with his life.

[5]

The appellant had done some work on a renovation for K.N. and, in 2003,
    became infatuated with her. At that time, he was charged with criminal
    harassment and threatening bodily harm. The charges were withdrawn in 2004,
    when the appellant entered into a Peace Bond.

[6]

The appellant had no further contact with K.N. until September 17, 2009,
    when he approached her while she was sitting in her car and informed her that
    he was placing her under arrest in the name of Jehovah. He pulled her from the
    car and dragged her 40 metres down the street despite an attempted intervention
    by K.N.s colleague. The police were called and the appellant was arrested. K.N.
    sustained torn ligaments in her foot.

[7]

The appellant was charged with forcible confinement and assault. At his
    bail hearing, the appellant testified that his plan was to take K.N. back to
    his apartment, bind her in nylon ties, contact the Attorney General, and hand K.N.
    over.

[8]

The appellant was found not criminally responsible by reason of mental
    disorder (NCR) and transferred to CAMH on March 24, 2011, and came under the
    Boards jurisdiction. His major mental diagnosis is delusional disorder,
    persecutory type. His mother is his substitute decision maker.

[9]

The appellant has been very stable for two years. He is compliant with
    taking injectable medication (Paliperidone) and in the reporting period had no
    episodes of violence, inappropriate behaviour, or psychotic decompensation. The
    appellant was not on medication at the time of the index offences. However,
    even with the injectable Paliperidone, his delusions have remained intact since
    2002.

[10]

The Board concluded that the appellant continues to pose a significant
    risk to public safety. The appellant does not challenge that finding on appeal.

[11]

For a couple of years, the appellant had been residing with his mother,
    beginning Thursday evening and ending Sunday evening, without incident.  On the
    other days, he spent his time at his mothers or with his Jehovahs Witnesses
    congregation, only returning to the Hospital to sleep. The appellants
    treatment team would have approved a residence in the mothers house, but the
    Office of the Person in Charge for CAMH (OPIC) had not approved it. The
    appellants treating physician, Dr. Iosif, testified that the OPIC did not
    provide reasons for its decision.

[12]

As to the necessity for a detention order, Dr. Iosif testified that she
    had concerns about managing risk under a conditional discharge if the appellant
    were to decompensate. Dr. Iosif was not concerned that the provisions of the
Mental
    Health Act
, R.S.O. 1990, c. M.7 (
MHA
)
would be insufficient to bring the
    appellant back to the Hospital if he decompensated. Rather, her concern was
    that, if involuntarily admitted, the Box B criteria under ss. 15(1.1) and
    20(1.1) of the
MHA
might not operate to keep him there for as long as
    appropriate because the attending physician might not understand the fixed and
    specific nature of the appellants delusional disorder and its significance in
    terms of the risk to K.N.

[13]

Section 20(1.1) of the
MHA
authorizes the attending physician to
    complete a certificate of involuntary admission to a psychiatric facility where
    an individual incapable of consenting to his or her own treatment, who
    previously received effective treatment for a mental disorder that could result
    in harm if untreated, is suffering from the same mental disorder and given his
    or her history and current condition is likely to cause harm to himself or
    herself or others or suffer substantial deterioration. Under s. 20(4) of the
MHA
,
    a certificate of involuntary admission is valid for 14 days and can be renewed
    for periods that escalate in length with each renewal, up to three months after
    a third certificate of renewal or a certificate of continuation. Each renewal
    requires another assessment under s. 20(1.1).

[14]

The Board accepted Dr. Iosifs evidence on this point and rejected the
    appellants request for a conditional discharge:

We considered the mechanism of Box B
    criteria contained in forms 1, 3 and 4 of the
Mental Health Act
and
    concluded that, while the process might work to admit [the appellant] to
    hospital, it would be unlikely to keep him detained in a manner necessary to
    protect the victim and public. On this point, we accept the uncontroverted
    evidence of Dr. Iosif.

[15]

The Board rejected the Crowns request for a
    boundary limitation to protect K.N. and her family. The appellant had not had
    any boundary limitations for over a year. Given that there had been no attempt
    to contact K.N. and a detention order would permit the Hospital and the police
    to move quickly if there were any such attempt, the Board concluded that it was
    unnecessary to include such a restriction. Dr. Iosif, who recommended a
    detention order, was also of the view that geographical boundary limitations
    were unnecessary.

[16]

The Board decided that the detention order
    should be maintained. However, it did ask OPIC to reconsider its decision
    regarding the appellant residing at his mothers house and, if of the view it was
    inappropriate for the appellant to reside at his mothers house, to provide
    reasons to the treatment team that could be conveyed to the Board at the next
    years hearing.

[17]

At the hearing of the appeal, counsel advised
    that the appellant was approved to reside with his mother and has been residing
    with her since October 10, 2019.

The Appellants Position on Appeal

[18]

The appellant argues that the Board erred in its
    analysis of the suitability of a conditional discharge in two respects.

[19]

First, the Board misapprehended the evidence of
    Dr. Iosif. She did not go so far as to say that, if the appellant were
    involuntarily admitted to a hospital under the Box B criteria of the
MHA
,
it was
likely
that the attending physician would fail to keep the appellant
    detained for as long as was warranted. She simply expressed concern that this
might
occur. The possibility that this
    might occur was not enough to make a detention order, the minimal necessary disposition
    in the circumstances.

[20]

Second, the possibility that an attending
    physician at CAMH might not get it right and fail to complete a certificate
    of involuntary admission, a certificate of renewal, or a certificate of
    continuation under s. 20 of the
MHA
when warranted cannot be a reason for
    denying a conditional discharge. The attending physician would have access to
    the whole of the appellants health record and details of the nature of the
    appellants delusional disorder are presumably in that record. The Board should
    assume the competence of attending physicians.

[21]

The appellant also argues that, because he had
    resided at his mothers for part of the week for a couple of years, without
    incident, and the treatment team approved of his mothers residence, the
    Boards reliance on the OPICs decision not to permit him to reside at his mothers
    residence, which was unsupported by reasons, was unreasonable.

Analysis

[22]

We agree with the appellant that aspects of the
    Boards decision are troubling.

[23]

R
.
v. Winko
, [1999] 2 S.C.R. 625, at
    para. 54, instructs that the system in Part XX.1 of the
Criminal Code
is inquisitorial, and that the Board has a duty to search out and consider
    evidence favouring an NCR accuseds absolute discharge or release, subject to
    the minimal necessary constraints. The burden of justifying a restrictive
    disposition remains with the Board. If the Board is uncertain, resolution
    defaults in favour of the liberty of the individual.

[24]

In our view, the Board failed in its
    inquisitorial duty in two respects.

[25]

First, it did not inquire if Dr. Iosifs concern
    that an attending physician at CAMH might not appreciate the fixed and specific
    nature of the appellants delusional disorder and its significance in terms of
    the risk to K.N. could be alleviated through a note or cautionary flag in the
    appellants file, coupled with a term requiring that the appellant be returned
    to CAMH, or by some other means.  Further, the Board did not explore the extent
    of the risk. As the appellant argues, Dr. Iosif did not go so far as to say
    that it was
likely
that an
    attending physician would fail to appreciate the nature of the risk that the
    appellants mental disorder entails, just that it was a possibility.

[26]

Second, the Board was presented with evidence
    that the appellant had been residing with his mother several days a week for a
    couple of years without incident, and that the treatment team approved the
    appellant residing with his mother. In the face of this information, the Board
    did not require evidence as to why the OPIC did not approve the appellant
    residing with his mother before the Board refused the appellants request to
    reside with his mother. In our view, the Boards reliance on the fact that the
    OPIC had not approved the appellant residing with his mother, in the absence of
    any reasons for that determination, and in face of the evidence from the team favouring
    such a term, resulted in an unreasonable restriction on the appellants
    liberty. However, as the OPIC has now approved the mothers residence, this
    issue is moot.

[27]

The appellant provided a draft order, providing
    for his conditional discharge, on terms, for the courts consideration. We
    decline to order the conditional discharge that the appellant requests. Among
    other reasons, we note that one of the Boards reasons for declining to impose
    the boundary limitation term was that a detention order would allow the
    Hospital and the police to move quickly if there were any attempt to contact
    K.N. Instead, we return this matter to the Board for a re-hearing on an
    expedited schedule. The Hospital should be prepared to address what can be done
    to mitigate the risk of an attending physician not appreciating the nature of
    the appellants mental disorder, and the risk that poses to K.N. and revisit
    whether, if this risk can be mitigated, a conditional discharge is then
    appropriate.

Disposition

[28]

The appeal is allowed, and this matter is returned to
    the Board for re-hearing on an expedited schedule.


Alexandra Hoy
    A.C.J.O.

Janet Simmons J.A.

I.V.B. Nordheimer
    J.A.


