COURT OF APPEAL FOR ONTARIO
CITATION: Okolotowicz (Re), 2013 ONCA 712
DATE: 20131121
DOCKET: C56900
Weiler, MacFarland and Watt JJ.A.
IN THE MATTER OF: ZBIGNIEW OKOLOTOWICZ
AN APPEAL UNDER PART XX.1 OF THE CODE
Zbigniew Okolotowicz, acting in person
Jill R. Presser, Amicus Curiae
John Patton, for the respondent, Attorney General for Ontario
James Thomson, for the respondent CAMH
Heard: November 8, 2013
On appeal against the disposition of the Ontario Review Board dated, January 16, 2013.
ENDORSEMENT
[1] The appellant appeals the decision of the Ontario Review Board (hereafter "the board") which conditionally discharged him rather than granting him an absolute discharge.
[2] On his behalf amicus submits two grounds of appeal:
the board erred in law in that it failed to apply the proper test of significant risk of harm
the decision of the board is unreasonable and cannot be supported by the evidence;
[3] The board was split on its decision. Three members favoured granting a conditional discharge. Two dissenting members would have absolutely discharged the appellant.
[4] The hearing in relation to the disposition which is the subject of this appeal was held on December 20, 2012. The board issued its disposition continuing the appellant's conditional discharge on January 16, 2013 and issued reasons on March 22, 2013.
[5] The appellant has a criminal record for violence and a long history of mental illness. The index offences which resulted in the NCRMD finding occurred in 2008 and 2009 - assault with a weapon and simple assault.
[6] Until shortly before the hearing in December 2012, the nature of the appellant's illness had been variously described as "paranoid disorder", "schizotypal personality disorder", and "psychosis not otherwise specified".
[7] On and off historically, he was treated with anti-psychotic medications which seemed to alleviate his symptoms. After what is described in the hospital report as "a positive year clinically" in July 2011 and with his treating psychiatrist's approval, he discontinued his medication. As the hospital report put it:
Due to the unclear nature of his diagnosis (which was assessed as being Psychosis Not Otherwise Specified), his concerns about weight gain with the medication and his personal insight that his bizarre and violent behaviours in the past, including the index offences, were all associated with the use of alcohol, a gradual decrease in Olanzapine 5mg was effected. As of July 19, 2011 Olanzapine was discontinued; no emergence of psychotic symptoms or disorganization was observed.
[8] Things went reasonably well for the appellant until August of 2012. He was, at that time, under some stress as the result of a number of factors in his life. His case manager became aware that his mental state was not at baseline and, despite a number of attempts, he was unable to reach the appellant. After reports were received about disruptive and disorganized behaviour from staff at his residence, a Form 2 was granted and the police returned the appellant to CAMH.
[9] Dr. Wilkie, his treating psychiatrist, was of the opinion that the appellant had suffered a manic episode and, with the appellant's agreement, he was put on Olanzapine (an anti-psychotic medication) and Lithium, a mood stabilizer. For the first time, the appellant was diagnosed with bipolar affective disorder and Lithium was added to his medication regime. He was compliant with medication use, his symptoms abated, and he was discharged back to his residence on October 15, 2012.
[10] On October 18, 2012 the appellant met with Dr. Wilkie. He was not in her words "entirely convinced" of her diagnosis and his insight into his illness was only "partial".
[11] His treatment team at CAMH -unanimously- concluded at the time that the appellant continued to represent a significant threat to the safety of the public.
[12] At the time of the treatment team’s report, the appellant had only recently been discharged from hospital and his recovery remained unclear. He complained of side effects from the medication and his psychiatrist was contemplating changes.
[13] The treatment team concluded that the few months following their report (prepared October 18, 2012) would be important in establishing his response to and attitude toward his treatment regime - and that a six month review would be warranted. Unfortunately perhaps for the appellant his review came well before the end of that recommended six month period.
[14] Notwithstanding the years of treatment, the appellant's diagnosis remained unsettled and his response to treatment hard to predict.
[15] The board understood its task was to determine whether the appellant continued to meet the threshold of a significant risk to the public and if so, to determine the least onerous and least restrictive disposition bearing in mind the factors set out in s.672.54 of the Criminal Code.
[16] The majority of the board accepted Dr. Wilkie's evidence that she believed that, in the short term, the appellant would be compliant with medication but she was not confident he would be in the long term. He was in need of more psycho-education to improve his insight into his illness and his need for medication. If not medicated, his mental state would deteriorate putting the public at risk in the manner of the index offences. Historically he did not have insight when he became unwell and did not reach out to his workers for help in those times.
[17] In our view the board applied the proper test to the evidence before it and it cannot be said that the decision is unreasonable.
[18] It is unfortunate that the appellant's review came so soon after his most recent diagnosis. The passage of time since the appellant’s last review and his exemplary behaviour during this time will no doubt be taken into consideration at the next review in November, 2013.
[19] For these reasons the appeal is dismissed.
“K. M. Weiler J.A.”
“J. MacFarland J.A.”
“David Watt J.A.”