COURT OF APPEAL FOR ONTARIO
CITATION: Gajewski (Re) 2014 ONCA 332
DATE: 20140429
DOCKET: C57630
Weiler, Feldman and Gillese JJ.A.
IN THE MATTER OF: BARTOSZ GAJEWSKI
AN APPEAL UNDER PART XX.1 OF THE CODE
Bartosz Gajewski, appellant appearing in person
Jill R. Presser and Andrew Menchynski, amicus curiae
Joanne Stuart, for the Crown
Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health
Heard: April 24, 2014
On appeal against the disposition of the Ontario Review Board dated, August 20, 2013.
ENDORSEMENT
[1] The appellant was found NCR after a trial on the charges of forcible confinement and assault. He met the complainant in 2002 while working in her home and became infatuated with her. He was under the delusion that she was in love with him. After one incident in which the charges of criminal harassment were withdrawn, he had no contact with the complainant until 2009 when he attempted to abduct her, purporting to be effecting a citizen’s arrest. The complainant was physically injured in the attempt and remains afraid of him to this day.
[2] After his initial review, on the understanding that the appellant had some insight into his illness and was open to treatment, he was ordered detained on the General Forensic Unit at CAMH.
[3] Unfortunately, problems arose. The appellant made it clear that he had no intention of taking treatment and did not believe his diagnosis. His delusions in respect to the complainant remained. Concerns about his use of the computer arose. Intimidating behaviour towards hospital staff was reported. His paranoid beliefs were more entrenched and had extended to hospital staff, including one of his treating psychiatrists.
[4] At an early review in February 2012, the hospital report indicated that the appellant had been seen by eight different psychiatrists, all of whom were of the view that he is psychotic and in need of antipsychotic medication. He manifested symptoms of active psychosis, including paranoia, grandiosity, and religious delusions. The Board ordered detention in a Secure Forensic Unit.
[5] At his review in 2013, the Board found that the appellant remains a significant threat to the safety of the public and ordered that he be detained in the Secure Forensic Unit of CAMH, with privileges up to and including accompanied hospital and grounds privileges.
[6] The Board’s finding was based largely on the evidence of Dr. Darby and the Hospital Report, which shows that the appellant continues to suffer from Delusional Disorder, persecutory type, which remains mostly untreated. Dr. Darby testified that an individual suffering from a delusional disorder of this nature is likely to have fixed delusions until treated and that the appellant’s complete disengagement from his treatment team made management of his risk “impossible”.
THE ISSUES
[7] The appellant, through amicus, raises three issues on appeal. Did the Board:
Act unreasonably or err in law by placing the appellant in the Secure Forensic Unit instead of the General Forensic Unit?
Give insufficient reasons for refusing to place the appellant in the LGUD Hybrid Unit or err in failing to make this placement decision?
Err by limiting his right to cross-examine his treating psychiatrist?
ANALYSIS
Issue 1: Placement in the Secure Forensic Unit
[8] In our view, the Board’s finding that the hospital was unable to manage the appellant’s risk unless he was detained in the Secure Forensic Unit, with only accompanied passes in the hospital and on the grounds, is neither unreasonable nor an error in law. On the Secure Forensic Unit, there is a higher staff ratio which can lead to greater vigilance. (We note also the Board’s finding that it may also lead to some privileges of benefit to the appellant.)
[9] The main reasons for the appellant’s original transfer to the Secure Forensic Unit from the General Forensic Unit remain. These include his lack of insight into his mental illness, his refusal to engage with his treatment team, and the resulting risk he poses to the complainant. That risk has increased and expanded to include others, including hospital staff. The evidence showed that the appellant’s disengagement from treatment made the management of his risk impossible.
Issue 2: Refusal to place the appellant in the LGUD Hybrid Unit
[10] The appellant complains that the Board reasons do not address his possible placement in this unit, which would have been less onerous and less restrictive than placing him in a secure unit.
[11] Reading the reasons as a whole, it is clear that the Board did not address this matter because it found that he should be detained in a Secure Unit. Having made that determination, it was not necessary to go further and address issues relating to the LGUD, which is a type of general forensic unit.
Issue 3: Limits on Cross-examination
[12] The appellant submits that the Board unfairly restricted his counsel’s right to cross-examine Dr. Darby on the reasonableness of his refusal to take medication and the feasibility of his treatment plan.
[13] In the circumstances of this case, we see no unfairness in the Board’s having limited the right of cross-examination. At the point where the Chair of the Board intervened, counsel had elicited the evidence she needed to make her points about the diagnosis, proposed treatment, side-effects of anti-psychotic medication, and that there is no guarantee that the medication will make the delusions disappear.
[14] Moreover, the Chair asked counsel to explain the relevance of further cross-examination on the matters in question. That relevance was not made clear at the hearing and we do not see it as relevant. There was no disagreement that the appellant posed a significant threat to the safety of the public. Further, the appellant’s position was clear: he did not acknowledge that he had a mental illness and he refused any form of treatment. The issue was whether placement should be on the secure unit or the general unit.
DISPOSITION
[15] Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
“K. Feldman J.A.”
“E.E. Gillese J.A.”