In the Matter of Gajewski

[Indexed as: Gajewski (Re)]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O. (motion judge)

January 6, 2020

149 O.R. (3d) 145 | 2020 ONCA 4

Case Summary

Criminal law — Crown — Victim of assault denied leave to intervene in Crown appeal of disposition of Ontario Review Board — Individual's concern was addressed by board pursuant to its mandate to determine whether there was a significant threat to the safety of the public — Crown's responsibility to speak for community over concerns whether mandate carried out effectively.

Criminal law — Mental disorder — Review board — Victim of assault denied leave to intervene in Crown appeal of disposition of Ontario Review Board — Individual's concern was addressed by board pursuant to its mandate to determine whether there was a significant threat to the safety of the public.

Criminal law — Procedure — Appeals — Intervenor — Victim of assault denied leave to intervene in Crown appeal of disposition of Ontario Review Board — Individual's concern was addressed by board pursuant to its mandate to determine whether there was a significant threat to the safety of the public.

G became infatuated with K to the point that G was charged with criminal harassment and threatening bodily harm. The charges were withdrawn after he entered into a peace bond. After no further contact for several years he attempted to kidnap K and was charged with assault and forcible confinement. He was found not criminally responsible by reason of a mental disorder. At his annual review before the Ontario Review Board in 2016, the board ordered hospital detention with indirectly supervised entry into the community of Toronto on passes for up to seven days. G was also ordered to refrain from coming within 500 metres of K. The Crown had sought to create an exclusion zone around the area where K and her father lived and worked, but the board rejected the submission. At the 2018 annual review, a majority of the board again rejected the Crown's request for a geographic boundary. At the 2019 annual review, the Crown again sought a boundary restriction by relying on the 2018 dissent and K's victim impact statement. The board unanimously rejected the request. When the Crown appealed the 2019 review, but not the board's refusal to impose a geographic boundary, K moved for leave to intervene as a "person interested" in the appeal.

Held, the motion should be dismissed.

Permitting K to make submissions would have unfairly prejudiced G. As a complainant, K had a voice in the Ontario Review Board proceedings through her victim impact statement, but she had no special status in law by reason of being the person named in the indictment. Her concerns with respect to a boundary restriction were articulated by the Crown at three of the annual reviews. The board, possessed of expertise in its field, articulated sound reasons why a "moving" restriction would be more efficacious than a geographic one. K was at risk, but as a member of the community her concern was addressed by the board pursuant to its mandate to determine whether G posed a significant [page146] threat to the safety of the public. Where there was a concern whether the board had carried out its mandate effectively, it was the Crown's responsibility to speak for the community.

R. v. Bernardo, 1995 CanLII 7434 (ON SC), [1995] O.J. No. 246, 38 C.R. (4th) 229, 26 W.C.B. (2d) 343 (Gen. Div.); R. v. McCullough (1995), 1995 CanLII 585 (ON CA), 24 O.R. (3d) 239, [1995] O.J. No. 1603, 82 O.A.C. 63, 27 W.C.B. (2d) 385 (C.A.); R. v. R. (K.A.), 1992 CanLII 4829 (NS CA), [1992] N.S.J. No. 405, 116 N.S.R. (2d) 418, 76 C.C.C. (3d) 536, 17 W.C.B. (2d) 500 (C.A.), distd

Other cases referred to

Bedford v. Canada (Attorney General) (2009), 98 O.R. (3d) 792, [2009] O.J. No. 3881, 2009 ONCA 669, 255 O.A.C. 21, 181 A.C.W.S. (3d) 45; Gajewski (Re), [2014] O.J. No. 2031, 2014 ONCA 332, 113 W.C.B. (2d) 241; Gajewski (Re), [2015] O.J. No. 2363, 2015 ONCA 332, 121 W.C.B. (2d) 262; Gajewski (Re), 2016 CarswellOnt 17990; Gajewski (Re), [2017] O.J. No. 2263, 2017 ONCA 354; Gajewski (Re), 2018 CarswellOnt 9761; Gajewski (Re), 2019 CarswellOnt 10003; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378, 46 Admin. L.R. 1, 45 C.P.C. (2d) 1, 2 C.R.R. (2d) 327, 22 A.C.W.S. (3d) 292 (C.A.); R. v. Finta (1990), 1990 CanLII 6824 (ON CA), 1 O.R. (3d) 183, [1990] O.J. No. 2282, 44 O.A.C. 349, 11 W.C.B. (2d) 395 (C.A.); R. v. L. (J.G.), [1997] O.J. No. 4953 (C.A.), affg 1995 CarswellOnt 3536 (C.J.); R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, J.E. 99-2312, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 69 C.R.R. (2d) 1, 44 W.C.B. (2d) 124, 1999 CCAN para. 10,064; R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152, EYB 1995-67073, 1995 DFQ para. 10,005, 1995 CCAN para. 10,059, 1996 CHFL para. 15,300; R. v. O'Connor, 1993 CanLII 9389 (BC CA), [1993] B.C.J. No. 1466, 105 D.L.R. (4th) 110, 31 B.C.A.C. 173, 82 C.C.C. (3d) 495, 22 C.R. (4th) 273, 20 W.C.B. (2d) 230 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedom

Criminal Code, R.S.C. 1985, c. C-46, ss. 278.1 [as am.], 278.2 [as am.], 278.3 [as am.], 278.4 [as am.], 278.5 [as am.], 278.6 [as am.], 278.7 [as am.], 278.8, 278.9 [as am.], 672.5(14) [as am.], 683 [as am.], 722 [as am.]

Rules and regulations referred to

Criminal Appeal Rules, SI/93-169, rules 23, 38(3)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13

Authorities referred to

Mewett, Alan W., and Morris Manning, Criminal Law, 1st ed. (Toronto: Butterworths, 1978)

MOTION for leave to intervene in an appeal from the Ontario Review Board.

Anita Szigeti, for appellant/responding party.

Joanne Stuart, for respondent/responding party, Attorney General of Ontario.

Michele Warner, for respondent/responding party, the Person in Charge of the Centre for Addiction and Mental Health (CAMH).

Sheila Block, for moving party (proposed intervenor), K.N. [page147]

Michael Davies, for moving party (proposed intervenor), the Empowerment Council.

[1] STRATHY C.J.O.: — K.N. seeks leave to intervene as a "person interested" in this appeal from a disposition of the Ontario Review Board ("ORB") in respect of the appellant, Bartosz Gajewski. The motion is brought pursuant to rules 23 and 38(3) of the Criminal Appeal Rules, SI/93-169, and Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] The Empowerment Council, Systemic Advocates in Addiction and Mental Health, also seeks leave to intervene if K.N.'s motion is successful.

[3] I dismissed K.N.'s motion with reasons to follow. These are my reasons.

I. Background

[4] In 2003, Mr. Gajewski became infatuated with K.N. She had done nothing to give him reason to be, and his feelings for her were not in any way reciprocated. He was later charged with criminal harassment and threatening bodily harm against her. The charges were withdrawn after he entered into a peace bond.

[5] Mr. Gajewski had no further contact with K.N. until September 17, 2009 when the index offences occurred.

[6] He dragged her from her car and down the street and attempted to kidnap her in the name of "Jehovah God" under a delusion that she and her father were involved in a conspiracy to commit crimes against him. He was charged with the index offences, assault and forcible confinement of K.N. He was sub-sequently diagnosed as suffering from a delusional disorder of a persecutory nature.

[7] K.N. was injured in the course of the attack. The attack has had a lasting impact on her. To this day, she remains terrified of Mr. Gajewski. If granted leave to intervene, she proposes to submit that the board erred in failing to impose a geographic boundary as a term of Mr. Gajewski's release in order to protect her psychological and physical security.

[8] To put her motion in context, it is necessary to briefly review the history of this matter before the ORB and in this court.

II. Proceedings Before the ORB

[9] On March 24, 2011, Mr. Gajewski was found not criminally responsible by reason of a mental disorder. He has been under the jurisdiction of the Ontario Review Board since that date. [page148]

[10] At his annual hearing in 2012, the ORB ordered that Mr. Gajewski be detained in the Secure Forensic Unit at CAMH. In 2013 and 2014, the ORB found that he remained a significant threat to the safety of the public and ordered that he continue to be detained in the Secure Forensic Unit, with privileges up to and including accompanied hospital and ground privileges. Mr. Gajewski appealed both decisions. The appeals were heard on April 24, 2014 and May 6, 2015 respectively, and were dismissed by this court: [2014] O.J. No. 2031, 2014 ONCA 332; [2015] O.J. No. 2363, 2015 ONCA 332.

[11] In December 2015, Mr. Gajewski was transferred to the General Unit at the hospital. At his annual review in 2016, the ORB found that the appropriate disposition was detention in the General Unit, with indirectly supervised entry into the community of Toronto on passes for up to seven days. The board also ordered that Mr. Gajewski refrain from coming within 500 metres of K.N.: 2016 CarswellOnt 17990.

[12] The Crown appealed, arguing that the condition allowing Mr. Gajewski indirectly supervised entry into the community was unreasonable, and that K.N.'s father should also have been included in the 500-metre boundary condition. This court allowed the appeal in part, holding that K.N.'s father should be included in the restriction, but that the indirectly supervised entry into the community was not unreasonable: [2017] O.J. No. 2263, 2017 ONCA 354.

[13] The issue of a boundary or geographic restriction in the terms of Mr. Gajewski's release -- the subject of K.N.'s proposed intervention submissions -- was first raised by the Crown at his annual review in 2016. In the event Mr. Gajewski was granted indirectly supervised passes or community living, the Crown sought to create an "exclusion" zone around the area where K.N. and her father lived and worked. K.N. and her father appeared at the hearing, but after inconclusive attempts by the parties to resolve the issue, the board observed:

[The Crown] sought a boundary condition in the disposition in the event the accused was permitted to exercise indirectly supervised passes or to live in the community. Possible boundaries were proposed and discussed but, in the absence of information regarding the addresses at which the victim lives and works, no agreement was reached with respect to the issue.

[14] The board did not accept the Crown's submission that a geographic boundary should be imposed. It held:

The panel is of the opinion an area of exclusion with defined boundaries provides illusory reassurance to victims of crime, and finds an area of exclusion around individuals more effective in securing those persons' safety than a defined geographical area. The panel devoted considerable thought to [page149] ensuring the safety of the victim in this matter and concluded a moving exclusion zone better fulfills that goal. Victims are entitled to feel secure wherever they may be and not only within a defined area. Combining the two adds no further security. Accordingly, Mr. Gajewski will be prohibited from attending within 500 metres of anywhere [K.N.] lives, works, worships, or is known by him to be.

[15] The Crown renewed its request for a geographic boundary at the 2018 annual hearing. A majority of four of the five board members declined to alter the 2016 disposition: 2018 CarswellOnt 9761. The dissenting member found that "the risk to the safety of the public could be minimized by including in the disposition a geographic envelope within which Mr. Gajewski would not be allowed to travel". She stated:

Imposition of this geographic restriction could have an additional benefit in that it could also serve to impede any efforts at surveillance by Mr. Gajewski. In addition, I believe that a non-contact clause with the victim of the offence and her father as described in the reasons of the majority should also be included.

[16] The Crown did not appeal the disposition.

[17] At his 2019 annual review, which is the subject of this appeal, the Crown, relying on the dissent in the 2018 decision, again sought a boundary restriction. In support of the argument, K.N. filed a victim impact statement, as she had done at previous hearings. The statement noted that, while K.N. understood that "a person deemed NCR should have access to the best possible treatment in order for the potential to improve and be able to return to the community", the ORB was tasked with protecting her and her father. She claimed that a boundary restriction "is the only circumstance that can to some degree ensure [her] safety and that of [her] father". Mr. Gajewski's attending psychiatrist, who had testified at previous hearings, opined that a geographic boundary restriction was unnecessary.

[18] The board unanimously rejected the Crown's request, finding that a geographic boundary was unnecessary: 2019 CarswellOnt 10003. The hearing panel included the member who had dissented at the 2018 hearing. The board stated:

We note that Mr. Gajewski has not had any such limitations for over a year and there has been no indication that there has been any attempts to contact the victim or members of her family. Given the fact that there has been no attempt to contact the victim, and a Detention Order which would permit the Hospital and the police to move quickly if there were to be any attempt to contact, we are of the view that it is unnecessary to include a geographical boundary limitation in the upcoming disposition.

[19] However, the board maintained the condition requiring Mr. Gajewski to refrain from contacting K.N., her father, or her [page150] lawyer, and not knowingly coming within 500 metres of K.N. or her father.

III. Mr. Gajewski's Condition

[20] K.N. submits that the evidence demonstrates that Mr. Gajewski's delusional beliefs are persistent and unchanged, and that he lacks insight into his illness and the need for treatment.

[21] For the purpose of this motion, I accept that K.N. has a reasonable concern for her physical and psychological well-being and for that of her father.

IV. The Parties' Submissions

[22] K.N. does not seek to intervene as a friend of the court in the traditional sense. Nor does she seek to intervene by virtue of her status as a past victim of Mr. Gajewski's delusions. She asserts a direct interest in the appeal because she is the only target of Mr. Gajewski's persistent delusions and her future safety is at issue. She maintains that her safety should have been the board's paramount consideration when it considered whether Mr. Gajewski was a significant risk to the safety of the "public".

[23] Because the Crown has not appealed the ORB's refusal to impose a geographic boundary, she points out that her voice will not be heard unless she is granted leave to intervene. She says that the board erred in law in finding that it was "unnecessary" to impose a geographic boundary, when the test was whether the boundary was "desirable". Applying this higher standard was an error in law.

[24] Counsel on behalf of the hospital takes no position on the proposed intervention. Nor does counsel on behalf of the Attorney General, although she points out that it is unprecedented in the context of Ontario Review Board appeals to grant intervenor status to a complainant.

[25] Counsel for Mr. Gajewski says that K.N.'s motion con-travenes a basic rule of interventions -- it raises an issue that is not raised by the parties and is therefore unfair and prejudicial to Mr. Gajewski. Moreover, the issue of a geographic boundary has been raised and dealt with at the past three annual reviews (2016, 2018 and 2019) and has each time been resolved against the position taken by K.N. The Crown, which has put a voice to K.N.'s concerns, has finally accepted this position and it is time for K.N. to do the same.

[26] As noted above, the Empowerment Council will not pursue its request for intervenor status if K.N. is not granted leave. [page151]

V. Analysis

[27] It is beyond dispute that "absent a constitutional issue, leave to intervene is seldom granted in criminal appeals": R. v. McCullough (1995), 1995 CanLII 585 (ON CA), 24 O.R. (3d) 239, [1995] O.J. No. 1603 (C.A.), at p. 243 O.R. A proposed intervenor must be able to "make a useful contribution beyond that which would be offered by the parties and without causing an injustice to the immediate parties": McCullough, at p. 243 O.R.; Bedford v. Canada (Attorney General) (2009), 98 O.R. (3d) 792, [2009] O.J. No. 3881, 2009 ONCA 669, at para. 2, quoting Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, [1990] O.J. No. 1378 (C.A.), at p. 167 O.R. In criminal appeals, the primary concern is fairness and the appearance of fairness: R. v. R. (K.A.), 1992 CanLII 4829 (NS CA), [1992] N.S.J. No. 405, 76 C.C.C. (3d) 536 (C.A.), at p. 540 C.C.C., citing R. v. Finta (1990), 1990 CanLII 6824 (ON CA), 1 O.R. (3d) 183, [1990] O.J. No. 2282 (C.A.), at p. 186 O.R.

[28] No party identified any case in which a complainant has been granted leave to intervene in an ORB appeal. However, K.N. cites three cases in support of her position:

-- in R. v. McCullough, the accused's counsel was granted leave to intervene because the trial judge had ordered him to pay certain costs of the proceedings below;

-- in R. v. R. (K.A.), the victim of a sexual assault was granted leave to intervene, because the appellant sought an order pursuant to s. 683 of the Criminal Code, R.S.C. 1985, c. C-46, for production of her former psychiatrist's file: see, also, R. v. L. (J.G.), 1995 CarswellOnt 3536 (C.J.), affd [1997] O.J. No. 4953 (C.A.); and

-- in R. v. Bernardo, 1995 CanLII 7434 (ON SC), [1995] O.J. No. 246, 38 C.R. (4th) 229 (Gen. Div.), LeSage A.C.J.O.C. granted the parents of the victims leave to intervene to argue that the public should be excluded from the courtroom during the playing of videotaped evidence. He observed that the circumstances were "strikingly unusual" and that the parents had a unique and different perspective on the issue.

[29] In my view, none of these cases bear any resemblance to the circumstances of this case. Both McCullough and Bernardo involved applications by non-complainants and dealt with issues distinct from those at play here. While R.(K.A.) involved an application by a complainant, the order at issue concerned her privacy interests, which would not have been adequately addressed without her participation. The decision to allow a complainant [page152] to make submissions regarding the production of her medical records accords with the production regime established several years later by the Supreme Court of Canada in R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, and the subsequent statutory scheme enacted by Parliament (ss. 278.1-278.9, the Mills regime: R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68). The Canadian Charter of Rights and Freedom principles of privacy and equality motivating the protection of sexual violence complainants and their records are not engaged in this case.

[30] Another decision involving an intervention application by a complainant is R. v. O'Connor, 1993 CanLII 9389 (BC CA), [1993] B.C.J. No. 1466, 82 C.C.C. (3d) 495 (C.A.). In that case, four complainants who had been sexually assaulted by a priest while attending a residential school sought leave to intervene in a Crown appeal. The appeal was from a judicial stay of proceedings made during the course of the trial as a result of Crown disclosure delays that disadvantaged the accused. The complainants sought to make submissions regarding the proper law and procedure governing the disclosure of complainants' confidential information in sexual assault cases. The court denied leave to intervene, observing that the complainants' personal interest in the proceedings would make it impossible for them to address the issues before the court in a detached manner.

[31] While the circumstances are somewhat distinct here -- the complainants in O'Connor had launched parallel civil proceedings against the accused -- similar fairness concerns are engaged. Permitting K.N. to make submissions would prejudice Mr. Gajewski, as her arguments are targeted at restricting Mr. Gajewski's liberties beyond the restrictions already imposed by the board. In my view, there is no basis on which to grant K.N. leave to intervene and it would be unfair to Mr. Gajewski to do so.

[32] The Criminal Code provides a mechanism for the complainant to have a voice in the sentencing stage through a victim impact statement: s. 722. This applies to ORB proceedings as well: s. 672.5(14). K.N. filed a victim impact statement.

[33] In addition, her concerns with respect to a boundary restriction were articulated by the Crown on three occasions, in 2016, 2018 and 2019. They were rejected by a majority of the board in 2018 and unanimously in 2016 and 2019. The board, possessed of expertise in its field, articulated sound reasons as to why a "moving" restriction would be more efficacious than a geographic one.

[34] I respectfully agree with the observations of the Court of Appeal for British Columbia in O'Connor, that "complainants do not have special status in law by reason of being the persons named in the indictment": at p. 503 C.C.C. An essential feature of [page153] the criminal law is its "public nature". A "crime is, in fact, not a wrong against the actual person harmed . . . but a wrong against the community as a whole": at p. 503 C.C.C., quoting Alan W. Mewett and Morris Manning, Criminal Law, 1st ed. (Toronto: Butterworths, 1978), at p. 14.

[35] I accept K.N.'s argument that she, not the community, is at risk. However, as a member of the community, K.N.'s concern was addressed by the ORB pursuant to its mandate to determine whether Mr. Gajewski poses a significant threat to the safety of the public. Where there is a concern regarding whether or not the board has carried out its mandate effectively, it is the Crown's responsibility to speak for the community.

VI. Disposition

[36] For these reasons, I would dismiss the motion for leave to intervene.

Motion dismissed.

End of Document