Bartosz Gajewski, 2019 ONCA 1009

Court of Appeal for Ontario

Date: 2019-12-20 Docket: C67007

Panel: Hoy A.C.J.O., Simmons and Nordheimer JJ.A.

In the Matter of: Bartosz Gajewski

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant
• Joanne Stuart, for the respondent, Attorney General of Ontario
• Michele Warner, for the respondent, the Person in Charge of the Centre of Addiction and Mental Health

Heard: December 9, 2019

On appeal against the disposition of the Ontario Review Board, dated May 23, 2019.

Reasons for Decision

1Bartosz Gajewski appeals the disposition of the Ontario Review Board, dated May 23, 2019, ordering that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health ("CAMH" or the "Hospital"), with conditions including allowing the person in charge to permit him to live in the community in accommodation approved by the person in charge.

2The appellant seeks an order discharging him subject to conditions, including that he reside with his mother. In the alternative, he asks that the matter be returned to the Board for a re-hearing.

3For the reasons that follow, we would allow the appeal and return the matter to the Board for re-consideration with the guidance provided below.

Background

4The appellant suffers from what the Crown characterizes as an intractable delusion that K.N. unlawfully interfered with his life.

5The appellant had done some work on a renovation for K.N. and, in 2003, became infatuated with her. At that time, he was charged with criminal harassment and threatening bodily harm. The charges were withdrawn in 2004, when the appellant entered into a Peace Bond.

6The appellant had no further contact with K.N. until September 17, 2009, when he approached her while she was sitting in her car and informed her that he was placing her under arrest in the name of Jehovah. He pulled her from the car and dragged her 40 metres down the street despite an attempted intervention by K.N.'s colleague. The police were called and the appellant was arrested. K.N. sustained torn ligaments in her foot.

7The appellant was charged with forcible confinement and assault. At his bail hearing, the appellant testified that his plan was to take K.N. back to his apartment, bind her in nylon ties, contact the Attorney General, and hand K.N. over.

8The appellant was found not criminally responsible by reason of mental disorder ("NCR") and transferred to CAMH on March 24, 2011, and came under the Board's jurisdiction. His major mental diagnosis is delusional disorder, persecutory type. His mother is his substitute decision maker.

9The appellant has been very stable for two years. He is compliant with taking injectable medication (Paliperidone) and in the reporting period had no episodes of violence, inappropriate behaviour, or psychotic decompensation. The appellant was not on medication at the time of the index offences. However, even with the injectable Paliperidone, his delusions have remained intact since 2002.

10The Board concluded that the appellant continues to pose a significant risk to public safety. The appellant does not challenge that finding on appeal.

11For a couple of years, the appellant had been residing with his mother, beginning Thursday evening and ending Sunday evening, without incident. On the other days, he spent his time at his mother's or with his Jehovah's Witnesses congregation, only returning to the Hospital to sleep. The appellant's treatment team would have approved a residence in the mother's house, but the Office of the Person in Charge for CAMH ("OPIC") had not approved it. The appellant's treating physician, Dr. Iosif, testified that the OPIC did not provide reasons for its decision.

12As to the necessity for a detention order, Dr. Iosif testified that she had concerns about managing risk under a conditional discharge if the appellant were to decompensate. Dr. Iosif was not concerned that the provisions of the Mental Health Act, R.S.O. 1990, c. M.7 ("MHA") would be insufficient to bring the appellant back to the Hospital if he decompensated. Rather, her concern was that, if involuntarily admitted, the "Box B" criteria under ss. 15(1.1) and 20(1.1) of the MHA might not operate to keep him there for as long as appropriate because the attending physician might not understand the fixed and specific nature of the appellant's delusional disorder and its significance in terms of the risk to K.N.

13Section 20(1.1) of the MHA authorizes the attending physician to complete a certificate of involuntary admission to a psychiatric facility where an individual incapable of consenting to his or her own treatment, who previously received effective treatment for a mental disorder that could result in harm if untreated, is suffering from the same mental disorder and given his or her history and current condition is likely to cause harm to himself or herself or others or suffer substantial deterioration. Under s. 20(4) of the MHA, a certificate of involuntary admission is valid for 14 days and can be renewed for periods that escalate in length with each renewal, up to three months after a third certificate of renewal or a certificate of continuation. Each renewal requires another assessment under s. 20(1.1).

14The Board accepted Dr. Iosif's evidence on this point and rejected the appellant's request for a conditional discharge:

We considered the mechanism of Box 'B' criteria contained in forms 1, 3 and 4 of the Mental Health Act and concluded that, while the process might work to admit [the appellant] to hospital, it would be unlikely to keep him detained in a manner necessary to protect the victim and public. On this point, we accept the uncontroverted evidence of Dr. Iosif.

15The Board rejected the Crown's request for a boundary limitation to protect K.N. and her family. The appellant had not had any boundary limitations for over a year. Given that there had been no attempt to contact K.N. and a detention order would permit the Hospital and the police to move quickly if there were any such attempt, the Board concluded that it was unnecessary to include such a restriction. Dr. Iosif, who recommended a detention order, was also of the view that geographical boundary limitations were unnecessary.

16The Board decided that the detention order should be maintained. However, it did ask OPIC to reconsider its decision regarding the appellant residing at his mother's house and, if of the view it was inappropriate for the appellant to reside at his mother's house, to provide reasons to the treatment team that could be conveyed to the Board at the next year's hearing.

17At the hearing of the appeal, counsel advised that the appellant was approved to reside with his mother and has been residing with her since October 10, 2019.

The Appellant's Position on Appeal

18The appellant argues that the Board erred in its analysis of the suitability of a conditional discharge in two respects.

19First, the Board misapprehended the evidence of Dr. Iosif. She did not go so far as to say that, if the appellant were involuntarily admitted to a hospital under the "Box B" criteria of the MHA, it was likely that the attending physician would fail to keep the appellant detained for as long as was warranted. She simply expressed concern that this might occur. The possibility that this might occur was not enough to make a detention order, the minimal necessary disposition in the circumstances.

20Second, the possibility that an attending physician at CAMH might not "get it right" and fail to complete a certificate of involuntary admission, a certificate of renewal, or a certificate of continuation under s. 20 of the MHA when warranted cannot be a reason for denying a conditional discharge. The attending physician would have access to the whole of the appellant's health record and details of the nature of the appellant's delusional disorder are presumably in that record. The Board should assume the competence of attending physicians.

21The appellant also argues that, because he had resided at his mother's for part of the week for a couple of years, without incident, and the treatment team approved of his mother's residence, the Board's reliance on the OPIC's decision not to permit him to reside at his mother's residence, which was unsupported by reasons, was unreasonable.

Analysis

22We agree with the appellant that aspects of the Board's decision are troubling.

23R. v. Winko, [1999] 2 S.C.R. 625, at para. 54, instructs that the system in Part XX.1 of the Criminal Code is inquisitorial, and that the Board has a duty to search out and consider evidence favouring an NCR accused's absolute discharge or release, subject to the minimal necessary constraints. The burden of justifying a restrictive disposition remains with the Board. If the Board is uncertain, resolution defaults in favour of the liberty of the individual.

24In our view, the Board failed in its inquisitorial duty in two respects.

25First, it did not inquire if Dr. Iosif's concern that an attending physician at CAMH might not appreciate the fixed and specific nature of the appellant's delusional disorder and its significance in terms of the risk to K.N. could be alleviated through a note or cautionary flag in the appellant's file, coupled with a term requiring that the appellant be returned to CAMH, or by some other means. Further, the Board did not explore the extent of the risk. As the appellant argues, Dr. Iosif did not go so far as to say that it was likely that an attending physician would fail to appreciate the nature of the risk that the appellant's mental disorder entails, just that it was a possibility.

26Second, the Board was presented with evidence that the appellant had been residing with his mother several days a week for a couple of years without incident, and that the treatment team approved the appellant residing with his mother. In the face of this information, the Board did not require evidence as to why the OPIC did not approve the appellant residing with his mother before the Board refused the appellant's request to reside with his mother. In our view, the Board's reliance on the fact that the OPIC had not approved the appellant residing with his mother, in the absence of any reasons for that determination, and in face of the evidence from the team favouring such a term, resulted in an unreasonable restriction on the appellant's liberty. However, as the OPIC has now approved the mother's residence, this issue is moot.

27The appellant provided a draft order, providing for his conditional discharge, on terms, for the court's consideration. We decline to order the conditional discharge that the appellant requests. Among other reasons, we note that one of the Board's reasons for declining to impose the boundary limitation term was that a detention order would allow the Hospital and the police to move quickly if there were any attempt to contact K.N. Instead, we return this matter to the Board for a re-hearing on an expedited schedule. The Hospital should be prepared to address what can be done to mitigate the risk of an attending physician not appreciating the nature of the appellant's mental disorder, and the risk that poses to K.N. and revisit whether, if this risk can be mitigated, a conditional discharge is then appropriate.

Disposition

28The appeal is allowed, and this matter is returned to the Board for re-hearing on an expedited schedule.