





CITATION:
R. v.
Gacek
, 2011 ONCA 205



DATE:  20110315



DOCKET: C51163 and C52963



COURT OF APPEAL FOR ONTARIO



Simmons, Rouleau and Karakatsanis JJ.A.



BETWEEN



Her Majesty The Queen

Respondent

and

David
Gacek

Appellant



David Gacek, in person

Suzan E. Fraser,
amicus
          curiae
for the appellant



Amanda
Rubaszek
, for the Attorney
          General

Jean
Buie
, for the Centre for
          Addiction and Mental Health



Heard and released orally: March 10, 2011



On appeal from the Dispositions of the Ontario Review Board
          dated August 31, 2009 and September 22, 2010.



ENDORSEMENT



[1]

Mr. Gacek appeals from Dispositions of the Ontario
    Review Board dated August 31, 2009 and September 22, 2010. Both
    Dispositions make detention orders. The 2009 Disposition detained Mr. Gacek at
    the minimum security unit at CAMH. The 2010 Disposition detains the appellant
    in the General Forensic Unit at CAMH, which is also a minimum security unit.
    Both dispositions permit Mr. Gacek to live in the community in the Greater
    Toronto Area in accommodation approved by the person in charge at CAMH. In its
    2010 Disposition, the Board also concluded that a hospital decision made during
    2010, which significantly increased the restrictions on Mr. Gacek, was
    reasonable.

[2]

Mr. Gacek contends that the Board erred in failing to
    grant him an absolute discharge as he no longer constitutes a significant
    threat to the safety of the public and that the Boards finding was
    unreasonable. Amicus argues on his behalf that in its 2010 Disposition the
    Board erred by imposing a burden on Mr. Gacek to establish he does not pose a
    significant threat. In the alternative, with the assistance of amicus, Mr.
Gacek
argues that the Board erred in failing to consider the
    availability of a conditional discharge and further, that the failure to grant
    a conditional discharge was unreasonable. Amicus also contends that the Board
    erred in not conducting a review of whether the failure to reinstate certain
    privileges to Mr. Gacek constituted a significant restriction of liberty under
    s. 672.56 of the
Criminal Code
and by failing to determine whether such restriction was warranted.

[3]

We would not accept these submissions.  The Board made a finding that the appellant constitutes
    a significant threat to the safety of the public in the first paragraph of the
    conclusion section of its reasons. In so finding, the Board did not place any
    burden of proof on Mr. Gacek. The impugned paragraph relied on by amicus comes
    later in the Boards reasons. Read fairly, this paragraph simply explains why
    the Board did not give effect to the submissions made by counsel for Mr. Gacek.
    Reading its reasons as a whole, we are not persuaded that the Board erred in
    the manner alleged.

[4]

Further, we are satisfied that the Boards finding that
    Mr. Gacek constitutes a significant threat to the safety of the public was
    reasonable on the record before it, including the expert evidence of the
    treating psychiatrist.

[5]

As for the failure to grant a conditional discharge, in
    our view, it is implicit in the Boards reasons that it did not consider this a
    realistic case for a conditional discharge because of Mr. Gaceks failure to
    comply with hospital conditions and because of the need to control his place of
    residence.

[6]

Finally, in our view, the Board cannot be faulted for
    failing to address the argument raised on appeal concerning an ongoing failure
    to reinstate privileges and whether that constitutes a significant restriction
    of liberty.  On the record before the
    Board, that was not raised as a live issue.

[7]

We have reviewed the sworn affidavit filed by Mr.
    Gacek. It does not affect the outcome of these appeals.

[8]

Given our conclusions concerning the 2010 Disposition,
    the appeal of the 2009 Disposition is moot. The appeals are therefore
    dismissed.

[9]

We do however note that it would appear that Mr. Gacek
    has now agreed to go forward with the plan to place him with a brain injury
    clinic. We hope this will allow him to receive the treatment he requires and move
    forward towards release.


Signed:           Janet Simmons J.A.

Paul
    Rouleau J.A.


Karakatsanis
    J.A.


