



COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2017 ONCA 354

DATE: 20170503

DOCKET: C62959

Laskin, Watt and Hourigan JJ.A.

IN THE MATTER OF:  BARTOSZ GAJEWSKI

AN APPEAL UNDER PART XX.1 OF THE
CRIMINAL

CODE

Grace Choi, for the appellant

Anita Szigeti and Joseph Berger, for the respondent
    Bartosz Gajewski

Gavin S. MacKenzie for the Person in Charge of the
    Centre for Addiction and Mental Health

Heard and released orally: April 13, 2017

On appeal against the disposition of the Ontario Review
    Board dated, October 12, 2016.

ENDORSEMENT

[1]

The Crown appeals the Boards disposition and argues two grounds of
    appeal:

1.

The condition allowing Mr. Gajewski indirectly supervised or
    unaccompanied entry into the community for up to seven days is unreasonable
    because it does not protect public safety.

2.

The Boards failure to include J.N., the victims father, in the 500
    metre boundary condition is also unreasonable.

(1)

Indirectly supervised entry into the community

[2]

We are not persuaded that allowing Mr. Gajewski unaccompanied access or
    indirectly supervised entry into the community is unreasonable. We note that
    the Crown did not oppose this condition at the hearing. Instead what it did
    oppose was a condition allowing for community living. The Board acceded to the
    Crowns position and did not include in this disposition a condition permitting
    community living.

[3]

In this court the Crown argues that if indirectly supervised entry is to
    be allowed, it should be for no longer than four hours per day. We do not agree
    with the Crowns argument. The Boards disposition was reasonably supported by
    the list of evidentiary considerations at para. 26 of the factum of CAMH.

[4]

We add two other points. First, we do not view the Boards disposition as
    logically inconsistent as the Crown argues. The Crown contends the Boards
    disposition is inconsistent because on the one hand the Board rejected
    community living, but on the other approved unsupervised access for up to seven
    days. We do not agree with the Crowns contention.  The Boards disposition
    reflected its concern that a condition allowing for community living was
    premature.

[5]

Second, Mr. Gajewskis access to the community is not absolute. His
    liberty is entirely at the discretion of the hospital, the body that will
    manage Mr. Gajewskis risk. Seven days is a maximum, not a minimum period.

[6]

We therefore decline to give effect the Crowns main submission.

(2)

Including J.N. in the 500 Metre Boundary Condition

[7]

CAMH supports the inclusion of J.N and Mr. Gajewski does not object to his
    inclusion. We think it is reasonable to include J.N. and we so order.

[8]

The Crowns appeal is allowed in part in accordance with these reasons.

John Laskin J.A.

David Watt J.A.

C.W. Hourigan J.A.


