Court of Appeal for Ontario

Citation: Okolotowicz (Re), 2011 ONCA 375

Date: 20110512

Docket: C53069

Before: Weiler, Gillese and LaForme JJ.A.

In the Matter of: Zbigniew Okolotowicz

Counsel: Zbigniew Okolotowicz, appearing in person Jill Presser, as amicus curiae John Patton, for the Attorney General Jean D. Buie, for the Centre for Addiction and Mental Health

Heard and released orally: May 9, 2011

On appeal against the disposition of the Ontario Review Board, dated September 13, 2010.

Endorsement

[1] The appellant and amicus seek an absolute discharge, or alternately a conditional discharge, or alternately a new hearing with directions. The focus of the argument was however whether the Board erred in not granting a conditional discharge.

[2] Three issues are raised. Those issues and our response to them are:

1) Did the board err in finding that the appellant posed a significant threat to public safety?

[3] The Board’s decision was reasonable and is entitled to significant deference. The Board’s conclusion was based on the appellant’s treating doctor’s opinion that the appellant posed an ongoing significant threat, given his criminal record of violence and alcohol-related offences, his history of mental illness, his limited insight into his medical problems, difficulties with assessing the speed of potential decompensation, and concerns that the appellant would not recognize the signs of his decompensation.

2) In the absence of positive evidence, did the board err in concluding that detention was the least onerous least restrictive disposition?

[4] The majority did not proceed in the absence of evidence. It proceeded on the evidence of the appellant’s history which necessitated a cautious approach given the appellant’s recidivism, his mental illness, and his recent progress.

3) Did the board err in failing to meaningfully consider a conditional discharge?

[5] While the accused would consent to terms of medication compliance, that consent did not address with any certainty the relevant supervisory needs. Having regard to the Board’s reasons as a whole, there was no need for the Board to specifically mention consent to medical treatment in its reasons. The Board was completely alive to the question of a detention order with conditions or a conditional discharge. The majority of the Board held that because of the unknowns around the appellant’s potential decompensation, a conditional discharge could not sufficiently manage the risk that he posed. This conclusion was reasonable.

[6] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“H.S. LaForme J.A.”