Court of Appeal for Ontario

Citation: R. v. Gacek, 2011 ONCA 205

Date: 2011-03-15

Docket: C51163 and C52963

Between:

Her Majesty The Queen Respondent

and

David Gacek Appellant

Before: Simmons, Rouleau and Karakatsanis JJ.A.

Counsel:

David Gacek, in person Suzan E. Fraser, amicus curiae for the appellant Amanda Rubaszek, for the Attorney General Jean Buie, for the Centre for Addiction and Mental Health

Heard and released orally: March 10, 2011

On appeal from the Dispositions of the Ontario Review Board dated August 31, 2009 and September 22, 2010.

Endorsement

[1] Mr. Gacek appeals from Dispositions of the Ontario Review Board dated August 31, 2009 and September 22, 2010. Both Dispositions make detention orders. The 2009 Disposition detained Mr. Gacek at the minimum security unit at CAMH. The 2010 Disposition detains the appellant in the General Forensic Unit at CAMH, which is also a minimum security unit. Both dispositions permit Mr. Gacek to live in the community in the Greater Toronto Area in accommodation approved by the person in charge at CAMH. In its 2010 Disposition, the Board also concluded that a hospital decision made during 2010, which significantly increased the restrictions on Mr. Gacek, was reasonable.

[2] Mr. Gacek contends that the Board erred in failing to grant him an absolute discharge as he no longer constitutes a significant threat to the safety of the public and that the Board's finding was unreasonable. Amicus argues on his behalf that in its 2010 Disposition the Board erred by imposing a burden on Mr. Gacek to establish he does not pose a significant threat. In the alternative, with the assistance of amicus, Mr. Gacek argues that the Board erred in failing to consider the availability of a conditional discharge and further, that the failure to grant a conditional discharge was unreasonable. Amicus also contends that the Board erred in not conducting a review of whether the failure to reinstate certain privileges to Mr. Gacek constituted a significant restriction of liberty under s. 672.56 of the Criminal Code and by failing to determine whether such restriction was warranted.

[3] We would not accept these submissions. The Board made a finding that the appellant constitutes a significant threat to the safety of the public in the first paragraph of the conclusion section of its reasons. In so finding, the Board did not place any burden of proof on Mr. Gacek. The impugned paragraph relied on by amicus comes later in the Board's reasons. Read fairly, this paragraph simply explains why the Board did not give effect to the submissions made by counsel for Mr. Gacek. Reading its reasons as a whole, we are not persuaded that the Board erred in the manner alleged.

[4] Further, we are satisfied that the Board's finding that Mr. Gacek constitutes a significant threat to the safety of the public was reasonable on the record before it, including the expert evidence of the treating psychiatrist.

[5] As for the failure to grant a conditional discharge, in our view, it is implicit in the Board's reasons that it did not consider this a realistic case for a conditional discharge because of Mr. Gacek's failure to comply with hospital conditions and because of the need to control his place of residence.

[6] Finally, in our view, the Board cannot be faulted for failing to address the argument raised on appeal concerning an ongoing failure to reinstate privileges and whether that constitutes a significant restriction of liberty. On the record before the Board, that was not raised as a live issue.

[7] We have reviewed the sworn affidavit filed by Mr. Gacek. It does not affect the outcome of these appeals.

[8] Given our conclusions concerning the 2010 Disposition, the appeal of the 2009 Disposition is moot. The appeals are therefore dismissed.

[9] We do however note that it would appear that Mr. Gacek has now agreed to go forward with the plan to place him with a brain injury clinic. We hope this will allow him to receive the treatment he requires and move forward towards release.

Signed: "Janet Simmons J.A." "Paul Rouleau J.A." "Karakatsanis J.A."