Court of Appeal for Ontario
Date: 2017-05-03 Docket: C62959
Judges: Laskin, Watt and Hourigan JJ.A.
In the Matter of: Bartosz Gajewski
An Appeal Under Part XX.1 of the Criminal Code
Counsel:
- 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 Board's disposition and argues two grounds of appeal:
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.
The Board's failure to include J.N., the victim's 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 Crown's 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 Crown's argument. The Board's 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 Board's disposition as logically inconsistent as the Crown argues. The Crown contends the Board's 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 Crown's contention. The Board's disposition reflected its concern that a condition allowing for community living was premature.
[5] Second, Mr. Gajewski's access to the community is not absolute. His liberty is entirely at the discretion of the hospital, the body that will manage Mr. Gajewski's risk. Seven days is a maximum, not a minimum period.
[6] We therefore decline to give effect to the Crown's 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 Crown's appeal is allowed in part in accordance with these reasons.
"John Laskin J.A."
"David Watt J.A."
"C.W. Hourigan J.A."