



COURT OF APPEAL FOR ONTARIO

CITATION:
    Gajewski (Re), 2021 ONCA 244

DATE: 20210419

DOCKET:
    C68337

Tulloch,
    Hourigan and Coroza JJ.A.

IN
    THE MATTER OF: Bartosz Gajewski

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Elena Middelkamp, for the appellant, Attorney
    General of Ontario

Anita Szigeti
, for the respondent, Bartosz
    Gajewski

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

Heard: December 4, 2020 by
    video conference

On appeal from
    the disposition of the Ontario Review Board, dated April 16, 2020, with reasons
    dated April 22, 2020 and reported at [2020] O.R.B.D. No. 755.

Tulloch
    J.A.:

A.

O
verview

[1]

On March 24, 2011, Bartosz Gajewski, the respondent, was found not
    criminally responsible (NCR) on account of mental disorder on charges of
    assault and forcible confinement. Since then, the respondent has been subject
    to the jurisdiction of the Ontario Review Board (the ORB or the Board).
    Until the disposition under appeal, the respondent was detained at the general forensic
    unit of the Centre for Addiction and Mental Health (CAMH or the Hospital)
    with privileges including residing in the community in approved accommodations.

[2]

In his most recent disposition dated April 16, 2020 (reasons issued
    April 22, 2020), the Board conditionally discharged the respondent:
Gajewski (Re),
[2020] O.R.B.D. No. 755,
at para. 61, (
Gajewski (Re),
(ORB,
    2020)).

[3]

The Crown appeals this April 16, 2020 disposition. It asks this court to
    either add a geographic boundary condition to the respondents disposition, or
    to remit the matter to the Board for a re-hearing. The respondents, Mr.
    Gajewski and the CAMH, each ask this court to dismiss the appeal.

[4]

For the reasons below, the appeal is dismissed.

B.

Background

(1)

Events Leading Up to the Index Offences

[5]

In December 2002, the respondent first met the victim of the index
    offences, K.N. The respondent was a cabinet maker at the time. The victim was
    the respondents indirect boss as the owner of a design firm that had
    contracted the respondents employer. The respondent became fixated on the
    victim and formed the delusion that she was in love with him.

[6]

In 2003, the respondent was charged with criminally harassing her and
    threatening bodily harm. Approximately two months after he was charged, the
    respondents mother and his brother went to a Justice of the Peace. They were
    granted a Form 2 order under the
Mental Health Act
,
    R.S.O. 1990, c. M.7,

for the respondent to be assessed at a hospital.
    The respondents family was concerned that he was not doing well and could be a
    danger to the victim. In March 2004, these charges were resolved by way of a
    peace bond with a duration of one year, barring any contact with the victim and
    her father.

[7]

In 2004, the respondent appeared before a Justice of the Peace and
    attempted to lay charges against the victim, her father, and sixteen other
    people. He believed that these individuals were collaborating against him; that
    the victim had infiltrated multiple areas of his life; that she had tried to
    forcefully convert him back to Christianity (he had recently begun studying the
    Bible with Jehovahs Witnesses); and that she and her father were conspiring
    against the respondent to create problems for him. The Justice of the Peace
    held that there was a lack of evidence for the charges to proceed.

[8]

In 2007, while the respondent was working for another employer, he was
    informed by that employer that his wages were to be garnished due to a tax
    assessment. The respondent believed that the victim was involved in having this
    assessment brought against him. In late 2008, the respondent decided that he
    needed to arrest the victim, as he needed to question her under oath
    regarding the tax assessment. He did not think he could contact the police
    because he still believed that they were conspiring with the victim. The
    respondent planned what he viewed as a citizens arrest of the victim.

(2)

The Index Offences

[9]

On September 17, 2009, the respondent committed the index offences,
    approximately five years after he last contacted the victim. The respondent
    attempted to abduct K.N. from her neighborhood, purporting to place her under a
    citizens arrest for public mischief and fraud.

[10]

The
    victim was seated in her car, awaiting her business partner. The respondent
    opened the vehicle door and informed the victim that he was placing her under
    arrest pursuant to the
Criminal Code,
R.S.C.,
    1985, c. C-46, and in the name of 
Jehovah God
. The
    respondent pulled the victim by her wrists out of her parked car, and as he
    tried to drag her down the street, repeated his alleged authority for this
    arrest. He intended to hail a taxi to take the victim to his apartment, where
    he would await her apprehension by the Attorney Generals of Canada and Ontario.
    The victim was unable to physically resist the attack. The victims business
    partner arrived and immediately intervened. The respondent managed to pull the
    victim and her partner approximately 40 metres down the street, at which point
    two neighbours also intervened. The police were
called,
and they arrested the respondent before he could complete his plan.

[11]

After
    the incident, the victim attended a hospital, where it was determined that she
    had sustained torn ligaments in her foot.

[12]

The
    police subsequently executed a search warrant at the respondents apartment and
    discovered nylon ties, duct tape, and an exacto blade. The respondent stated
    that the nylon ties and tape were to restrain the victim while he waited for
    the Attorney Generals arrival.

(3)

Previous Dispositions and Decision

[13]

In
    2011, the respondent was found NCR on charges of forcible confinement and
    assault arising from the events set out above. He was diagnosed with delusional
    disorder of a persecutory nature.

[14]

At
    his annual hearing in 2012, the Board ordered the respondent detained in the secure
    forensic unit at CAMH. The Board observed in their reasons that the respondent
    continued to suffer from the delusions he had at the time of the index offence
    and posed a risk to the victim. In 2013 and 2014, the Board found that the
    respondent remained a significant threat to the safety of the public and
    ordered his continued detention in the secure forensic unit, with privileges up
    to and including accompanied hospital and ground privileges. The respondent
    appealed both decisions, and both appeals were dismissed by this court:
Gajewski (Re),
2014 ONCA 332;
Gajewski
    (Re),
2015 ONCA 332.

[15]

In
    December 2015, the respondent was transferred to the general unit at the Hospital.
    At his annual review in 2016, the Board ordered the respondent detained in the general
    unit, with indirectly supervised entry into the Toronto community on passes for
    up to a week:
Gajewski (Re),
[2016] O.R.B.D.
    No. 2757, at para. 54, (
Gajewski (Re),
(ORB,
    2016)). The Board also ordered the respondent to refrain from coming within
    500 metres of
where the victim lives, works, worships, or is
    otherwise known to be (the 500 metre prohibition)
:
Gajewski (Re),
(ORB, 2016), at para. 56. The Crown
    appealed, and this court allowed the appeal in part, holding that the victims
    father should be included in the restriction:
Gajewski
    (Re),

2017 ONCA 354
(
Gajewski
    (Re),
(ONCA, 2017)).

(4)

The Geographic Boundary Condition

[16]

In
    the 2016 annual review hearing, the Crown first raised the issue of a
    geographic boundary restriction (boundary condition). If the respondent were
    granted indirectly supervised passes or community living, the Crown sought to
    create an exclusion zone around the area where the victim and her father lived
    and worked. The Board rejected this proposal, holding that a blanket geographic
    ban provided illusory reassurance to the victim and that it was less effective
    than an area of exclusion around the individuals themselves:
Gajewski (Re),
(ORB, 2016),

at para. 56. On
    appeal, this court did not take issue with the ORBs decision with respect to
    the boundary condition:
Gajewski (Re),
(ONCA,
    2017).

[17]

The
    Crown renewed its request for a boundary condition at the 2018 annual hearing. Four
    of the five Board members
were not persuaded that a
    geographical boundary provides any greater protection to the victim than the
    terms set out in the October 2016 disposition:
Gajewski (Re),
[2018]
    O.R.B.D. No. 1342, at para. 97. The dissenting member found that a boundary
    restriction could minimize the risk to public safety. The Crown did not appeal
    this disposition.

[18]

At
    the respondents 2019 annual review, the Crown, relying on the dissent in the
    2018 decision, again sought a boundary restriction. The victim filed a victim
    impact statement that did not conform to the
Criminal Code
requirements for such statements, as she had done at previous
    hearings. The statement noted how, while NCR individuals must have access to
    the best treatment to improve and return to the community, the Board was also
    tasked with protecting the victim and her father, something that could only be
    done by a boundary condition that ensured physical separation between the NCR
    accused and herself. The Board unanimously rejected the Crowns request,
    finding that the boundary was unnecessary:
Gajewski (Re),
[2019]
    O.R.B.D. No. 1282, at para. 38 (
Gajewski (Re),
(ORB,
    2019)). The panel included the member who dissented at the 2018 hearing.
    However, the Board maintained the no contact condition and the 500 metre
    prohibition:
Gajewski (Re),
(ORB, 2019), at para.
    39. As I return to below, the respondent appealed this disposition order.

[19]

In
    November 2019, this court heard a motion for leave to intervene by the victim
    in the respondents appeal of the 2019 disposition. The victim wanted to appeal
    from the Boards refusal to impose the boundary condition, as the Crown had not
    cross-appealed this issue:
Gajewski (Re),
2020
    ONCA 4, at paras. 1, 23, (
Gajewski (Re),
(ONCA,
    2020)).

[20]

Strathy
    C.J.O. rejected the motion:
Gajewski (Re),
(ONCA,
    2020), at paras. 1, 23, 36. He commented on the victims desire for the
    boundary condition at paras. 33 and 35:

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.



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 Crown's responsibility to speak
    for the community. [Emphasis added.]

[21]

On
    December 20, 2019, this court allowed the respondents appeal and ordered the
    Board to reconsider their 2019 disposition on an expedited basis:
Gajewski (Re),
2019 ONCA 1009, at paras. 1-3, (
Gajewski (Re),
(ONCA, 2019)).

[22]

The
    victim subsequently filed a motion requesting that she be granted party status
    in the Boards re-hearing of the respondents 2019 disposition. In the
    alternative, she sought limited participatory rights to, among other things,
    make submissions regarding the proposed boundary condition. The Board denied
    the application, concurring with Strathy C.J.O.s reasons in
Gajewski (Re)
, (ONCA, 2020);
Gajewski
    (Re),
[2020] O.R.B.D. No. 919, at paras. 9, 60.

C.

Decision Below

(1)

Relevant Evidence and the Positions of the Parties

[23]

The
    January 2020 Hospital report was presented as evidence at the hearing. It noted
    that the respondent maintains his delusional beliefs, has minimal insight into
    his mental illness, and would discontinue medication immediately if given the
    opportunity. It also described how the respondent denies any desire to harm or
    contact the victim, and that he would only seek revenge in the form of a civil
    remedy.

[24]

The
    Board also accepted a victim impact statement from K.N., despite it again not
    conforming with the requirements of the
Criminal Code
.
    The Board indicated in its reasons that it allowed the victim impact statement to
    be filed on the understanding that it would only consider the relevant
    portions:
Gajewski (Re),
(ORB, 2020), at
    para. 18, footnote 2.

[25]

The
    Crown and the Hospital agreed that the respondent remained a significant threat.
    Counsel for the respondent did not argue to the contrary. In other words, the
    significant threat issue was uncontested. Instead, the submissions largely
    focused on what was the least onerous disposition available in the
    circumstances. Counsel for the respondent and the Hospital submitted that a
    conditional discharge was appropriate, while counsel for the Crown argued for a
    detention order:
Gajewski (Re),
(ORB, 2020), at
    paras. 4-5.

[26]

The
    Crown also argued that any disposition should include a boundary condition. The
    respondent opposed this request arguing that it would impose an unnecessary
    limit on his liberty. Likewise, the Hospital did not support the imposition of
    a boundary condition. It was the position of the respondents treating
    psychiatrist, Dr. Pearce, that such a term was unnecessary:
Gajewski (Re),
(ORB, 2020), at paras. 7, 51.

(2)

The Decision

[27]

The
    Board held that the respondent continued to be a significant threat to the
    public. He was conditionally discharged to reside in the community with his
    mother. Conditions included that the respondent would have no contact with the
    victim or her father, and would not be allowed within 500 metres of any place
    they live, work, and worship, or any place he knows them to be:
Gajewski (Re),
(ORB, 2020), at para. 61.

[28]

However,
    the Board again refused to include the Crowns requested boundary condition. In
    reaching this conclusion, the Board relied upon the opinion of the respondents
    treating psychiatrist, Dr. Pearce, that this condition was unnecessary.
    Further, the respondent had been in the community for substantial periods of
    time in recent years. Notably, he had resided in the community with family for
    the past six months. Yet, there was no suggestion of him either having or
    seeking out any contact with the victim. Based on this evidence, the Board was
    unable to conclude that the term requested was necessary and appropriate.
    Instead, the concerns of the victim could be addressed by the continuing
    prohibition from contact and the
500 metre prohibition
:
Gajewski (Re),
(ORB, 2020), at paras. 49-52.

D.

Issues on Appeal

[29]

The
    Crown raises two issues on appeal:

1.

The Boards decision not to impose the proposed boundary
    condition reflects an error of law; and

2.

The Boards decision not to impose the
    geographic boundary condition was unreasonable.

E.

Analysis

(1)

Standard of Review

[30]

This court may set aside an order of the Board
    only where it is of the opinion that: (a) the decision is unreasonable or
    cannot be supported by the evidence; (b) the decision is based on a wrong
    decision on a question of law (unless no substantial wrong or miscarriage of
    justice has occurred); or (c) there was a miscarriage of justice:
Criminal
    Code
, R.S.C., 1985, c. C-46, s. 672.78(1);
R. v. Owen
,
    2003 SCC 33, 174 C.C.C. (3d) 1, at para. 31.

(2)

Did the Boards Failure to Include the Proposed Boundary
    Condition Reflect an Error of Law?

(a)

Relevant Background

[31]

Section 674.54 of the
Criminal Code
describes the factors that the Board must consider in making a disposition, as
    well as the types of dispositions that it can make:

672.54
When a court or Review Board makes a disposition under subsection
    672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84,
it shall, taking into account the safety of the public, which
    is the paramount consideration, the mental condition of the accused, the
    reintegration of the accused into society and the other needs of the accused,
    make one of the following dispositions that is necessary and appropriate in the
    circumstances
:

(a)
where
    a verdict of not criminally responsible on account of mental disorder has been
    rendered in respect of the accused and, in the opinion of the court or Review
    Board,
the accused is not a significant threat to the
    safety of the public, by order, direct that the accused be discharged
    absolutely
;

(b)
by
    order, direct that the
accused be discharged subject to
    such conditions
as the court or Review Board considers appropriate; or

(c)
by
    order, direct that the accused be
detained in custody in
    a hospital, subject to such conditions
as the court or Review Board
    considers appropriate. [Emphasis added.]

[32]

Additionally, s. 672.542 requires the Board to
    consider further conditions where there are concerns for the safety and security
    of any person:

672.542
When a court or Review Board holds a hearing referred to in section
    672.5, the court or Review Board
shall consider whether
    it is desirable, in the interests of the safety and security of any person,
    particularly a victim
of or witness to the offence or a justice system
    participant, to
include as a condition
of the
    disposition that the accused:

(a)

abstain from communicating
, directly or indirectly, with
    any victim, witness or other person identified in the disposition,
or refrain from going to any place
specified in the
    disposition; or

(b)

comply with any other condition specified in the disposition
    that the court or Review Board considers necessary
to ensure the safety
    and security of those persons.

(b)

Positions of the Parties

[33]

The Crown argues that the Boards analysis of
    the boundary condition reflects an error of law. It points to
Haddad (Re)
,
    2020 ONCA 233, at paras. 15-17, a case in which this court: (1) noted that s.
    672.542 requires the Board to balance the interests of the NCR accused against
    the interests of the victim, and (2) observed that the conditions imposed by
    the Board must be viewed collectively and not in isolation when assessing
    whether the disposition is necessary and appropriate under s. 672.54.

[34]

The Crown submits that while the Board analyzed
    whether it should impose a boundary condition, it did not reference or
    meaningfully consider its obligation to balance the respondents interests against
    the victims interests, nor its obligation to assess the entire package of
    conditions. As a result, the Crown argues that the Board erred in law by
    failing to fulfil its statutory obligation under s. 672.542 or apply the proper
    test to the condition requested.

[35]

Both the respondent and the Hospital oppose the Crowns
    appeal on this ground, contending that the Boards disposition was correct and
    free of legal error.

(c)

Analysis

[36]

I do not agree with the Crowns submissions, and
    as such would not give effect to this ground of appeal.

[37]

Contrary to the Crowns argument, there is no
    legal requirement on the Board to consider the request for a boundary
    condition. I agree with counsel for Mr. Gajewski that this proposition is based
    on a misapprehension of the application of s. 672.542.

[38]

Section 672.542 requires the Board to consider
    whether it is desirable to include any conditions relating to the safety and
    security of a victim, witness, or justice system participant. Under s. 672.542(a),
    the inquiry for the Board is simply whether a no contact term or a prohibition
    against attending a specific place would be desirable in the interests of the
    safety and security of a victim, witness, or other person. Under s. 672.542(b),
    the Board may consider whether it is desirable to impose any other condition
    necessary to ensure the safety or security of such persons. Nothing in the
    wording of this section requires the Board to entertain all proposed conditions
    by the parties. Rather, what conditions may be desirable within the meaning
    of s. 672.542 remains squarely within the Boards discretion.

[39]

I agree with the appellant that s. 672.542
    requires the Board to balance the NCR accuseds interests against those of the
    victim. However, I am not persuaded that the decision of the Board failed to
    meet this obligation. There were terms in the conditional discharge that
    restricted the respondents liberty in order to sufficiently protect the
    victim: specifically, the no contact order and the 500 metre prohibition. It is
    also important to bear in mind that the Board must apply s. 672.542 in
    accordance with its other statutory obligations. Specifically, pursuant to s. 672.54,
    the Board was required to only impose conditions that are both necessary and appropriate,
    given the twin goals of protecting the public and safeguarding the NCR
    accuseds liberty interests.  In my view, these goals were met by the
    conditions imposed.

[40]

While the Board may not have explicitly
    referenced s. 672.542, the totality of their reasons demonstrate that the Board
    balanced the victims interests and those of the respondent. The Boards
    decision to continue the non-contact condition and the 500 metre prohibition demonstrate
    that the Board considered the requirements of s. 672.542, notwithstanding the
    fact that the Board did not explicitly set out that section.

[41]

When the Boards reasons are considered as a
    whole, I am satisfied that the Board applied the correct legal test, adequately
    balanced the interests of the accused against those of the victim, and was
    justified in finding that a boundary condition was not necessary or appropriate.

[42]

In all the circumstances, I would dismiss this
    ground of appeal.

(3)

Was the Boards Decision Not to Impose the Geographic
    Boundary Condition Unreasonable?

(a)

Relevant Background

[43]

The Crown cross-examined Dr. Pearce on the issue
    of the proposed boundary condition, as follows:

Q. And the boundary condition, if Mr.
    Gajewski's mother resides I think on sort of the, the midtown area as we've
    described, and there's even indication in the hospital report that the Crown
    had raised concerns, there's some proximity of that address to where the victim
    resides and works?

A. I don't know.

Q. Okay. That was -- I guess when he first had
    his indirect passes they were put on hold for a couple of weeks because that
    concern was raised and then they were reinstituted, or sorry, reinstituted
    after -- within a week because of that; okay. And, and so, if Mr. Gajewski
    himself -- leaving aside from what might benefit the victim, we'll talk about
    that in a moment, but Mr. Gajewski himself seems to be concerned not to want to
    have contact with the victim.
And would, would it not be
    of some use if he had a definitive area where in fact, he was prohibited from
    going into?

A.
I mean, that -- I
    mean, I think it's up to the Board in terms of weighing those restrictions on,
    on his liberty and, and the potential risk reduction, or against the victim.
    So, I mean, I dont think it matters much to me, but if he does get work, I
    want him to be able to, to work where he needs to. That's my only concern.

Q. Okay. But should he -- if he were to get
    work, you know, two blocks from the victim, do you think that's acceptable?

A. Well, yes, (indiscernible) away from the
    victim.

Q. So indeed, there's going to be some
    limitations put upon him, even if he were to work, at least a 500 metre
    condition. So, there's still going to be a limitation.

A. Right. I mean, I don't know, I mean, I
    don't know, you know, where the -- where, where he may be working. You know, I
    mean, I -- you know, it looks to me like the map was a large, a large map, but,
    you know, I mean, I think these things aren't up to me.



Q. The -- just to go back to the boundary
    you've requested, and I won't spend too long on this. You, you described that
    it represented a restriction in Mr. Gajewski's liberties, which indeed it
    does.
But could I ask you to also assess it in terms of,
    in terms of public safety, and in this case, public safety is the safety of [the
    victim]. Would you see it being of no benefit to a victim
to have a safe
    zone in which they could feel relatively confidant, confidant that they could
    move about freely without contacting the accused?

A. You know, I'm not sure.
Perhaps in this case that would be a benefit to the victim. I'm
    not sure how that gets weighed with the other needs -- the other integration
    needs of the accused. That's up to the, up to the Board.
[Emphasis
    added.]

[44]

The Board ultimately concluded that the boundary
    condition was unnecessary, given the evidence noting that the respondent had
    lived in the community without incident and Dr. Pearces testimony. Their
    reasoning on this point was set out at paras. 49-52 of their reasons:

As noted above, Mr. Feindel requests any
    Disposition include a term that Mr. Gajewski not enter the area set out in the
    map filed as Exhibit 11 in order to provide the victim with a 'safe zone'. Ms.
    Szigeti is opposed to the term as being an unnecessary interference with her
    client's freedom. and the hospital does not support it.

We note that Mr. Gajewski has been in the
    community for substantial periods of time over the last several years and
    residing in the community for the last 6 months. Throughout that time there has
    been no suggestion of his either having or seeking to have any contact with the
    victim. Throughout the time he has been able to be in the community he has
    abided by terms that he have no contact with the victim and certain other
    individuals and that he remain 500 meters from the victim and her father.

Dr. Pearce was of the view that such a term
    was not necessary.

As noted above, any restriction imposed upon
    an accused must be the least onerous and least restrictive which is both
    necessary and appropriate in the circumstances. On the evidence before the
    Board we are unable to conclude that the term requested is necessary. The
    understandable concerns of the victim are addressed by the continuing
    prohibition from contact.

(b)

Positions of the Parties

[45]

The Crown argues that the Boards decision not
    to impose the boundary condition was unreasonable as: (1) the Board
    misapprehended Dr. Pearces evidence; and (2) failed to meaningfully account
    for the evidence before it.

[46]

The Crown argues that the Boards cursory
    assessment of the boundary condition cannot be justified in light of the
    following facts:

·

the respondents delusions remain fixed and
    intractable, despite treatment;

·

the victim impact statement demonstrated that
    the victim suffers psychological stress and lives in fear due to the
    respondents continued delusions;

·

the respondents increasing freedom within the
    community increases the victims fears;

·

the boundary condition is important to the
    victim in terms of her psychological and physical security;

·

Dr. Pearce testified that if the respondent
    re-offends, it would be severe;

·

while Dr. Pearce did not support the boundary
    condition, he agreed it could be beneficial to the victim; and

·

there was no evidence that the respondent was
    currently pursuing employment or that he had any need to visit a location within
    the proposed boundary.

[47]

The Crown further submits that the Board was
    required to explain why it did not impose the boundary condition, considering
    this evidence.

[48]

While the Board declined the Crowns request for
    a geographic boundary condition in the past, the Crown argues that the change
    from a detention order to a conditional discharge has significant implications
    for the victims physical and psychological security, giving rise to new
    considerations.

[49]

The Crown argues that the Board also erred by
    failing to address what evidence it accepted from the victim impact statement,
    and by not providing reasons explaining its conclusion that the prohibition from
    contact addressed the victims psychological safety.

[50]

The Crown submits that the Board misconstrued
    Dr. Pearces evidence. The Crown states that Dr. Pearce conceded in
    cross-examination that anything that would prevent contact between the
    respondent and the victim would be beneficial.

[51]

The Crown argues that this case is one where a
    boundary condition was clearly desirable for the victims safety and security,
    and there was no evidence that the condition was a significant interference
    with the respondents interests. Accordingly, it is the Crowns position that
    the Board erred in failing to impose the condition.

[52]

The respondents argue that the Boards decision
    with respect to the boundary condition was reasonable and well supported by the
    record.

(c)

Analysis

[53]

I would not give effect to this ground of appeal.
    I agree with counsel for Mr. Gajewski that none of the concerns raised by
    the Crown are borne out in an examination of the transcript and record.

[54]

The Board did not have to specifically set out
    that Dr. Pearce acknowledged that the victim may find a boundary condition
    helpful. Furthermore, given the history of this case and the multiple times the
    Crown has raised the boundary condition, it cannot be suggested that the Board
    treated the victims request in a cursory fashion. In their reasons and
    analysis, the Board focused on the actual issue in this case: namely, whether a
    conditional discharge could keep the public, including the victim, safe. The
    Board concluded that it could.

[55]

I also do not accede to the Crowns argument
    that the Board failed to consider the increased safety and security concerns
    with respect to the victim as a result of substituting the detention order with
    a conditional discharge. As the Board recognized, the respondent had already
    spent a significant amount of time in the community and had abided by his
    conditions. The 500 metre prohibition already created a safe zone  one that
    was calibrated to be the least onerous and restrictive measure as was necessary
    and appropriate in the circumstances.

[56]

Moreover, under a conditional discharge, the
    respondents liberty is still subject to significant restrictions. As the name
    of the disposition suggests, the respondents liberties are subject to the
    terms set out in the conditional discharge. The Board concluded that the terms
    in the conditional discharge adequately militated against the risk of any harm
    to the public. That was a decision that the Board was entitled to make.

[57]

As Doherty J.A. explained in
Young (Re),
2011
    ONCA 432, 278 O.A.C. 274, at para. 26, the key difference between the detention
    order and the conditional discharge is the mechanism available to the Hospital
    in the event that the respondent needs to be committed. In the event of
    decomposition or any breach to the terms of the conditional discharge, the
    respondent can be returned to a hospital by convening a new hearing under s.
    672.82(1), by resorting to the provisions governing breaches of conditional
    discharges found in s. 672.92, or through the committal provisions available
    under the
Mental Health Act
. In other words, should any concerns
    arise, the Hospital has mechanisms at its disposal to act. It was in the
    Boards discretion to decide whether this would suffice.

[58]

The Boards task in fashioning an appropriate
    disposition order calls for significant expertise. Accordingly, appeal courts
    should not be too quick to overturn the Boards decision regarding how best to
    manage a patients risk to the public:
R. v. Conway,
2010 SCC 22,
    [2010] 1 SCR 765, at para. 95. I see no basis to interfere with the Boards
    decision.

F.

Disposition

[59]

The Boards decision was correct and reasonable.
    The appeal is dismissed.

Released: April 19, 2021 M.T.

M.
    Tulloch J.A.

I
    agree. C.W. Hourigan J.A.

I
    agree. S. Coroza J.A.


