



COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2020 ONCA 4

DATE: 20200106

DOCKET: M50960 (C67007)

Strathy
    C.J.O. (Motions Judge)

IN
    THE MATTER OF:  BARTOSZ GAJEWSKI

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant/responding
    party

Joanne Stuart, for the respondent/responding
    party, Attorney General of Ontario

Michele
    Warner, for the respondent/responding party, the Person in Charge of the Centre
    for Addiction and Mental Health (CAMH)

Sheila Block,
    for the moving party (proposed intervener), K.N.

Michael
    Davies, for the moving party (proposed intervener), the Empowerment Council

Heard: November 6, 2019

REASONS
    FOR DECISION

[1]

K.N. seeks leave to intervene as a person
    interested in this appeal from a disposition of the Ontario Review Board in
    respect of the appellant, Bartosz Gajewski. The motion is brought pursuant to rr.
    23 and 38(3) of the
Criminal Appeal Rules
, SI/93-169, and r. 13 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The Empowerment Council, Systemic Advocates in
    Addiction and Mental Health, also seeks leave to intervene if K.N.s motion is
    successful.

[3]

I dismissed K.N.s motion with reasons to
    follow. These are my reasons.


I.

Background

[4]

In 2003, Mr. Gajewski became infatuated with
    K.N. She had done nothing to give him reason to be, and his feelings for her
    were not in any way reciprocated. He was later charged with criminal harassment
    and threatening bodily harm against her. The charges were withdrawn after he
    entered into a peace bond.

[5]

Mr. Gajewski had no further contact with K.N.
    until September 17, 2009 when the index offences occurred.

[6]

He dragged her from her car and down the street
    and attempted to kidnap her in the name of Jehovah God under a delusion that
    she and her father were involved in a conspiracy to commit crimes against him.
    He was charged with the index offences, assault and forcible confinement of
    K.N. He was subsequently diagnosed as suffering from a delusional disorder of a
    persecutory nature.

[7]

K.N. was injured in the course of the attack. The
    attack has had a lasting impact on her. To this day, she remains terrified of
    Mr. Gajewski. If granted leave to intervene, she proposes to submit that the
    Board erred in failing to impose a geographic boundary as a term of Mr.
    Gajewskis release in order to protect her psychological and physical security.

[8]

To put her motion in context, it is necessary to
    briefly review the history of this matter before the ORB and in this court.


II.

Proceedings before the ORB

[9]

On March 24, 2011, Mr. Gajewski was found not
    criminally responsible by reason of a mental disorder. He has been under the
    jurisdiction of the Ontario Review Board since that date.

[10]

At his annual hearing in 2012, the ORB ordered
    that Mr. Gajewski be detained in the Secure Forensic Unit at CAMH. In 2013 and
    2014, the ORB found that he remained a significant threat to the safety of the
    public and ordered that he continue to be detained in the Secure Forensic Unit,
    with privileges up to and including accompanied hospital and ground privileges.
    Mr. Gajewski appealed both decisions. The appeals were heard on April 24, 2014
    and May 6, 2015 respectively, and were dismissed by this court: 2014 ONCA 332; 2015
    ONCA 332.

[11]

In December 2015, Mr. Gajewski was transferred
    to the General Unit at the hospital. At his annual review in 2016, the ORB
    found that the appropriate disposition was detention in the General Unit, with
    indirectly supervised entry into the community of Toronto on passes for up to
    seven days. The Board also ordered that Mr. Gajewski refrain from coming within
    500 metres of K.N.: 2016 CarswellOnt 17990.

[12]

The Crown appealed, arguing that the condition
    allowing Mr. Gajewski indirectly supervised entry into the community was
    unreasonable, and that K.N.s father should also have been included in the 500-metre
    boundary condition. This court allowed the appeal in part, holding that K.N.s
    father should be included in the restriction, but that the indirectly
    supervised entry into the community was not unreasonable: 2017 ONCA 354.

[13]

The issue of a boundary or geographic restriction
    in the terms of Mr. Gajewskis release  the subject of K.N.s proposed
    intervention submissions  was first raised by the Crown at his annual review
    in 2016. In the event Mr. Gajewski was granted indirectly supervised passes or
    community living, the Crown sought to create an exclusion zone around the
    area where K.N. and her father lived and worked. K.N. and her father appeared
    at the hearing, but after inconclusive attempts by the parties to resolve the
    issue, the Board observed:

[The Crown] sought a boundary condition in the
    disposition in the event the accused was permitted to exercise indirectly
    supervised passes or to live in the community. Possible boundaries were
    proposed and discussed but, in the absence of information regarding the addresses
    at which the victim lives and works, no agreement was reached with respect to
    the issue.

[14]

The Board did not accept the Crowns submission
    that a geographic boundary should be imposed. It held:

The panel is of the opinion an area of
    exclusion with defined boundaries provides illusory reassurance to victims of
    crime, and finds an area of exclusion around individuals more effective in
    securing those persons safety than a defined geographical area. The panel
    devoted considerable thought to ensuring the safety of the victim in this
    matter and concluded a moving exclusion zone better fulfills that goal. Victims
    are entitled to feel secure wherever they may be and not only within a defined
    area. Combining the two adds no further security. Accordingly, Mr. Gajewski
    will be prohibited from attending within 500 metres of anywhere [K.N.] lives,
    works, worships, or is known by him to be.

[15]

The Crown renewed its request for a geographic
    boundary at the 2018 annual hearing. A majority of four of the five Board
    members declined to alter the 2016 disposition: 2018 CarswellOnt 9761. The
    dissenting member found that the risk to the safety of the public could be
    minimized by including in the disposition a geographic envelope within which
    Mr. Gajewski would not be allowed to travel. She stated:

Imposition of this geographic restriction
    could have an additional benefit in that it could also serve to impede any
    efforts at surveillance by Mr. Gajewski. In addition, I believe that a
    non-contact clause with the victim of the offence and her father as described
    in the reasons of the majority should also be included.

[16]

The Crown did not appeal the disposition.

[17]

At his 2019 annual review, which is the subject
    of this appeal, the Crown, relying on the dissent in the 2018 decision, again
    sought a boundary restriction. In support of the argument, K.N. filed a victim
    impact statement, as she had done at previous hearings. The statement noted
    that, while K.N. understood that a person deemed NCR should have access to the
    best possible treatment in order for the potential to improve and be able to
    return to the community, the ORB was tasked with protecting her and her
    father. She claimed that a boundary restriction is the only circumstance that
    can to some degree ensure [her] safety and that of [her] father. Mr. Gajewskis
    attending psychiatrist, who had testified at previous hearings, opined that a
    geographic boundary restriction was unnecessary.

[18]

The Board unanimously rejected the Crowns
    request, finding that a geographic boundary was unnecessary: 2019 CarswellOnt
    10003. The hearing panel included the member who had dissented at the 2018
    hearing. The Board stated:

We note that Mr. Gajewski has not had any such
    limitations for over a year and there has been no indication that there has
    been any attempts to contact the victim or members of her family. Given the
    fact that there has been no attempt to contact the victim, and a Detention
    Order which would permit the Hospital and the police to move quickly if there
    were to be any attempt to contact, we are of the view that it is unnecessary to
    include a geographical boundary limitation in the upcoming disposition.

[19]

However, the Board maintained the condition
    requiring Mr. Gajewski to refrain from contacting K.N., her father, or her
    lawyer, and not knowingly coming within 500 metres of K.N. or her father.


III.

Mr. Gajewskis Condition

[20]

K.N. submits that the evidence demonstrates that
    Mr. Gajewskis delusional beliefs are persistent and unchanged, and that he
    lacks insight into his illness and the need for treatment.

[21]

For the purpose of this motion, I accept that
    K.N. has a reasonable concern for her physical and psychological well-being and
    for that of her father.


IV.

The Parties Submissions

[22]

K.N. does not seek to intervene as a friend of
    the court in the traditional sense. Nor does she seek to intervene by virtue of
    her status as a past victim of Mr. Gajewskis delusions. She asserts a direct
    interest in the appeal because she is the only target of Mr. Gajewskis
    persistent delusions and her future safety is at issue. She maintains that her
    safety should have been the Boards paramount consideration when it considered
    whether Mr. Gajewski was a significant risk to the safety of the public.

[23]

Because the Crown has not appealed the ORBs
    refusal to impose a geographic boundary, she points out that her voice will not
    be heard unless she is granted leave to intervene. She says that the Board
    erred in law in finding that it was unnecessary to impose a geographic
    boundary, when the test was whether the boundary was desirable. Applying this
    higher standard was an error in law.

[24]

Counsel on behalf of the Hospital takes no
    position on the proposed intervention. Nor does counsel on behalf of the
    Attorney General, although she points out that it is unprecedented in the
    context of Ontario Review Board appeals to grant intervenor status to a
    complainant.

[25]

Counsel for Mr. Gajewski says that K.N.s motion
    contravenes a basic rule of interventions  it raises an issue that is not
    raised by the parties and is therefore unfair and prejudicial to Mr. Gajewski.
    Moreover, the issue of a geographic boundary has been raised and dealt with at
    the past three annual reviews (2016, 2018, and 2019) and has each time been
    resolved against the position taken by K.N. The Crown, which has put a voice to
    K.N.s concerns, has finally accepted this position and it is time for K.N. to
    do the same.

[26]

As noted above, the Empowerment Council will not
    pursue its request for intervener status if K.N. is not granted leave.


V.

Analysis

[27]

It is beyond dispute that absent a constitutional
    issue, leave to intervene is seldom granted in criminal appeals:
R. v.
    McCullough
(1995), 24 O.R. (3d) 239 (C.A.), at p. 243. A proposed
    intervener must be able to make a useful contribution beyond that which would
    be offered by the parties and without causing an injustice to the immediate
    parties:
McCullough
, at p. 243;
R. v. Bedford
, 2009 ONCA 669,
    98 O.R. (3d) 792, at para. 2, quoting
Peel (Regional Municipality) v. Great
    Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d) 164 (C.A.),
    at p. 167. In criminal appeals, the primary concern is fairness and the
    appearance of fairness:
R. v. K.A.R.
(1992), 76 C.C.C. (3d) 536
    (N.S.C.A.), at p. 540, citing
R. v. Finta
(1990), 1 O.R. (3d) 183
    (C.A.), at p. 186.

[28]

No party identified any case in which a
    complainant has been granted leave to intervene in an ORB appeal. However, K.N.
    cites three cases in support of her position:

·

In
R. v. McCullough
, the accuseds
    counsel was granted leave to intervene because the trial judge had ordered him
    to pay certain costs of the proceedings below;

·

In
R. v. K.A.R.
, the victim of a sexual
    assault was granted leave to intervene, because the appellant sought an order
    pursuant to s. 683 of the
Criminal Code
, R.S.C. 1985, c. C-46, for
    production of her former psychiatrists file: see also
R. v. J.L.
,
    1995 CarswellOnt 3536 (C.J.), affd [1997] O.J. No. 4953 (C.A.); and

·

In
R. v. Bernardo
(1995), 38 C.R. (4th)
    229 (Ont. C.J.), LeSage A.C.J.O.C. granted the parents of the victims leave to
    intervene to argue that the public should be excluded from the courtroom during
    the playing of videotaped evidence. He observed that the circumstances were
    strikingly unusual and that the parents had a unique and different
    perspective on the issue.

[29]

In my view, none of these cases bear any
    resemblance to the circumstances of this case. Both
McCullough
and
Bernardo
involved applications by non-complainants and dealt with issues distinct from
    those at play here. While
K.A.R.
involved an application by a
    complainant, the order at issue concerned her privacy interests, which would
    not have been adequately addressed without her participation. The decision to
    allow a complainant to make submissions regarding the production of her medical
    records accords with the production regime established several years later by
    the Supreme Court of Canada in
R. v. OConnor
, [1995] 4 S.C.R. 411,
    and the subsequent statutory scheme enacted by Parliament (ss. 278.1-278.9, the
Mills
regime:
R. v. Mills
, [1999] 3 S.C.R. 668). The
Charter
principles of privacy and equality motivating the protection of sexual violence
    complainants and their records are not engaged in this case.

[30]

Another decision involving an intervention
    application by a complainant is
R. v. OConnor
(1993), 82 C.C.C. (3d)
    495 (B.C.C.A.). In that case, four complainants who had been sexually assaulted
    by a priest while attending a residential school sought leave to intervene in a
    Crown appeal. The appeal was from a judicial stay of proceedings made during
    the course of the trial as a result of Crown disclosure delays that
    disadvantaged the accused. The complainants sought to make submissions regarding
    the proper law and procedure governing the disclosure of complainants confidential
    information in sexual assault cases. The court denied leave to intervene,
    observing that the complainants personal interest in the proceedings would
    make it impossible for them to address the issues before the court in a
    detached manner.

[31]

While the circumstances are somewhat distinct
    here  the complainants in
OConnor
had launched parallel civil
    proceedings against the accused  similar fairness concerns are engaged. Permitting
    K.N. to make submissions would prejudice Mr. Gajewski, as her arguments are
    targeted at restricting Mr. Gajewskis liberties beyond the restrictions
    already imposed by the Board. In my view, there is no basis on which to grant
    K.N. leave to intervene and it would be unfair to Mr. Gajewski to do so.

[32]

The
Criminal Code
provides a mechanism
    for the complainant to have a voice in the sentencing stage through a victim
    impact statement: s. 722. This applies to ORB proceedings as well: s. 672.5(14).
    K.N. filed a victim impact statement.

[33]

In addition, her concerns with respect to a
    boundary restriction were articulated by the Crown on three occasions, in 2016,
    2018, and 2019. They were rejected by a majority of the Board in 2018 and
    unanimously in 2016 and 2019. The Board, possessed of expertise in its field,
    articulated sound reasons as to why a moving restriction would be more
    efficacious than a geographic one.

[34]

I respectfully agree with the observations of
    the Court of Appeal for British Columbia in
OConnor
, that
    complainants do not have special status in law by reason of being the persons
    named in the indictment: at p. 503. An essential feature of the criminal law
    is its public nature. A crime is, in fact, not a wrong against the actual
    person harmed  but a wrong against the community as a whole: at p. 503,
    quoting Alan W. Mewett & Morris Manning,
Criminal Law
, 1st ed.
    (Toronto: Butterworths, 1978), at p. 14.

[35]

I accept K.N.s argument that she, not the
    community, is at risk. However, as a member of the community, K.N.s concern
    was addressed by the ORB pursuant to its mandate to determine whether Mr.
    Gajewski poses a significant threat to the safety of the public. Where there is
    a concern regarding whether or not the Board has carried out its mandate effectively,
    it is the Crowns responsibility to speak for the community.


VI.

Disposition

[36]

For these reasons, I would dismiss the motion
    for leave to intervene.

G.R.
    Strathy C.J.O.


