



COURT OF APPEAL FOR ONTARIO

CITATION: Okolotowicz (Re), 2013 ONCA 712

DATE: 20131121

DOCKET: C56900

Weiler, MacFarland and Watt JJ.A.

IN THE MATTER OF:  ZBIGNIEW OKOLOTOWICZ

AN APPEAL UNDER PART XX.1 OF THE
CODE

Zbigniew Okolotowicz, acting in person

Jill R. Presser,
Amicus Curiae

John Patton, for the respondent, Attorney General for
    Ontario

James Thomson, for the respondent CAMH

Heard:  November 8, 2013

On appeal against the disposition of the Ontario Review
    Board dated, January 16, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of the Ontario Review Board
    (hereafter "the board") which conditionally discharged him rather
    than granting him an absolute discharge.

[2]

On his behalf
amicus
submits two grounds of appeal:

1.       the
    board erred in law in that it failed to apply the proper test of
    significant risk of harm

2.       the
    decision of the board is unreasonable and cannot be supported by
    the evidence;

[3]

The board was split on its decision. Three members favoured granting a
    conditional discharge. Two dissenting members would have absolutely discharged
    the appellant.

[4]

The hearing in relation to the disposition which is the subject of this
    appeal was held on December 20, 2012. The board issued its disposition
    continuing the appellant's conditional discharge on January 16, 2013 and issued
    reasons on March 22, 2013.

[5]

The appellant has a criminal record for violence and a long history of
    mental illness. The index offences which resulted in the NCRMD finding occurred
    in 2008 and 2009 - assault with a weapon and simple assault.

[6]

Until shortly before the hearing in December 2012, the nature of the
    appellant's illness had been variously described as "paranoid
    disorder", "schizotypal personality disorder", and
    "psychosis not otherwise specified".

[7]

On and off historically, he was treated with anti-psychotic medications
    which seemed to alleviate his symptoms. After what is described in the hospital
    report as "a positive year clinically" in July 2011 and with his
    treating psychiatrist's approval, he discontinued his medication.  As the
    hospital report put it:

Due to the unclear nature of his diagnosis (which was assessed
    as being Psychosis Not Otherwise Specified), his concerns about weight gain
    with the medication and his personal insight that his bizarre and violent
    behaviours in the past, including the index offences, were all associated with
    the use of alcohol, a gradual decrease in Olanzapine 5mg was effected. As of
    July 19, 2011 Olanzapine was discontinued; no emergence of psychotic symptoms
    or disorganization was observed.

[8]

Things went reasonably well for the appellant until August of 2012.  He
    was, at that time, under some stress as the result of a number of factors in his
    life. His case manager became aware that his mental state was not at baseline
    and, despite a number of attempts, he was unable to reach the appellant. After
    reports were received about disruptive and disorganized behaviour from staff at
    his residence, a Form 2 was granted and the police returned the appellant to
    CAMH.

[9]

Dr. Wilkie, his treating psychiatrist, was of the opinion that the
    appellant had suffered a manic episode and, with the appellant's agreement, he
    was put on Olanzapine (an anti-psychotic medication) and Lithium, a mood
    stabilizer. For the first time, the appellant was diagnosed with bipolar
    affective disorder and Lithium was added to his medication regime. He was
    compliant with medication use, his symptoms abated, and he was discharged back
    to his residence on October 15, 2012.

[10]

On
    October 18, 2012 the appellant met with Dr. Wilkie. He was not in her words
    "entirely convinced" of her diagnosis and his insight into his
    illness was only "partial".

[11]

His
    treatment team at CAMH -unanimously- concluded at the time that the appellant
    continued to represent a significant threat to the safety of the public.

[12]

At
    the time of the treatment teams report, the appellant had only recently been
    discharged from hospital and his recovery remained unclear. He complained of
    side effects from the medication and his psychiatrist was contemplating
    changes.

[13]

The
    treatment team concluded that the few months following their report (prepared
    October 18, 2012) would be important in establishing his response to and
    attitude toward his treatment regime - and that a six month review would be
    warranted. Unfortunately perhaps for the appellant his review came well before
    the end of that recommended six month period.

[14]

Notwithstanding
    the years of treatment, the appellant's diagnosis remained unsettled and his
    response to treatment hard to predict.

[15]

The
    board understood its task was to determine whether the appellant continued to
    meet the threshold of a significant risk to the public and if so, to determine
    the least onerous and least restrictive disposition bearing in mind the factors
    set out in s.672.54 of the
Criminal Code
.

[16]

The
    majority of the board accepted Dr. Wilkie's evidence that she believed that, in
    the short term, the appellant would be compliant with medication but she was
    not confident he would be in the long term. He was in need of more psycho-education
    to improve his insight into his illness and his need for medication. If not
    medicated, his mental state would deteriorate putting the public at risk in the
    manner of the index offences. Historically he did not have insight when he
    became unwell and did not reach out to his workers for help in those times.

[17]

In
    our view the board applied the proper test to the evidence before it and it
    cannot be said that the decision is unreasonable.

[18]

It
    is unfortunate that the appellant's review came so soon after his most recent
    diagnosis. The passage of time since the appellants last review and his
    exemplary behaviour during this time will no doubt be taken into consideration
    at the next review in November, 2013.

[19]

For
    these reasons the appeal is dismissed.

K. M. Weiler
    J.A.

J. MacFarland J.A.

David Watt J.A.


