Court of Appeal for Ontario

Date: 2021-04-19 Docket: C68337

Before: Tulloch, Hourigan and Coroza JJ.A.

In the Matter of: Bartosz Gajewski An Appeal Under Part XX.1 of the Code

Counsel: Elena Middelkamp, for the appellant, Attorney General of Ontario Anita Szigeti, for the respondent, Bartosz Gajewski Michele Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: December 4, 2020 by video conference

On appeal from the disposition of the Ontario Review Board, dated April 16, 2020, with reasons dated April 22, 2020 and reported at [2020] O.R.B.D. No. 755.

Tulloch J.A.:

A. Overview

[1] On March 24, 2011, Bartosz Gajewski, the respondent, was found not criminally responsible (“NCR”) on account of mental disorder on charges of assault and forcible confinement. Since then, the respondent has been subject to the jurisdiction of the Ontario Review Board (the “ORB” or the “Board”). Until the disposition under appeal, the respondent was detained at the general forensic unit of the Centre for Addiction and Mental Health (“CAMH” or the “Hospital”) with privileges including residing in the community in approved accommodations.

[2] In his most recent disposition dated April 16, 2020 (reasons issued April 22, 2020), the Board conditionally discharged the respondent: Gajewski (Re), [2020] O.R.B.D. No. 755, at para. 61, (“Gajewski (Re), (ORB, 2020)”).

[3] The Crown appeals this April 16, 2020 disposition. It asks this court to either add a geographic boundary condition to the respondent’s disposition, or to remit the matter to the Board for a re-hearing. The respondents, Mr. Gajewski and the CAMH, each ask this court to dismiss the appeal.

[4] For the reasons below, the appeal is dismissed.

B. Background

(1) Events Leading Up to the Index Offences

[5] In December 2002, the respondent first met the victim of the index offences, K.N. The respondent was a cabinet maker at the time. The victim was the respondent’s “indirect boss” as the owner of a design firm that had contracted the respondent’s employer. The respondent became fixated on the victim and formed the delusion that she was in love with him.

[6] In 2003, the respondent was charged with criminally harassing her and threatening bodily harm. Approximately two months after he was charged, the respondent’s mother and his brother went to a Justice of the Peace. They were granted a Form 2 order under the Mental Health Act, R.S.O. 1990, c. M.7, for the respondent to be assessed at a hospital. The respondent’s family was concerned that he was not doing well and could be a danger to the victim. In March 2004, these charges were resolved by way of a peace bond with a duration of one year, barring any contact with the victim and her father.

[7] In 2004, the respondent appeared before a Justice of the Peace and attempted to lay charges against the victim, her father, and sixteen other people. He believed that these individuals were collaborating against him; that the victim had infiltrated multiple areas of his life; that she had tried to forcefully convert him back to Christianity (he had recently begun studying the Bible with Jehovah’s Witnesses); and that she and her father were conspiring against the respondent to create problems for him. The Justice of the Peace held that there was a lack of evidence for the charges to proceed.

[8] In 2007, while the respondent was working for another employer, he was informed by that employer that his wages were to be garnished due to a tax assessment. The respondent believed that the victim was involved in having this assessment brought against him. In late 2008, the respondent decided that he needed to “arrest” the victim, as he needed to question her under oath regarding the tax assessment. He did not think he could contact the police because he still believed that they were conspiring with the victim. The respondent planned what he viewed as a citizen’s “arrest” of the victim.

(2) The Index Offences

[9] On September 17, 2009, the respondent committed the index offences, approximately five years after he last contacted the victim. The respondent attempted to abduct K.N. from her neighborhood, purporting to place her under a citizen’s arrest for public mischief and fraud.

[10] The victim was seated in her car, awaiting her business partner. The respondent opened the vehicle door and informed the victim that he was placing her under arrest pursuant to the Criminal Code, R.S.C., 1985, c. C-46, and in the name of “Jehovah God”. The respondent pulled the victim by her wrists out of her parked car, and as he tried to drag her down the street, repeated his alleged authority for this arrest. He intended to hail a taxi to take the victim to his apartment, where he would await her apprehension by the Attorney Generals of Canada and Ontario. The victim was unable to physically resist the attack. The victim’s business partner arrived and immediately intervened. The respondent managed to pull the victim and her partner approximately 40 metres down the street, at which point two neighbours also intervened. The police were called, and they arrested the respondent before he could complete his plan.

[11] After the incident, the victim attended a hospital, where it was determined that she had sustained torn ligaments in her foot.

[12] The police subsequently executed a search warrant at the respondent’s apartment and discovered nylon ties, duct tape, and an exacto blade. The respondent stated that the nylon ties and tape were to restrain the victim while he waited for the Attorney Generals’ arrival.

(3) Previous Dispositions and Decision

[13] In 2011, the respondent was found NCR on charges of forcible confinement and assault arising from the events set out above. He was diagnosed with delusional disorder of a persecutory nature.

[14] At his annual hearing in 2012, the Board ordered the respondent detained in the secure forensic unit at CAMH. The Board observed in their reasons that the respondent continued to suffer from the delusions he had at the time of the index offence and posed a risk to the victim. In 2013 and 2014, the Board found that the respondent remained a significant threat to the safety of the public and ordered his continued detention in the secure forensic unit, with privileges up to and including accompanied hospital and ground privileges. The respondent appealed both decisions, and both appeals were dismissed by this court: Gajewski (Re), 2014 ONCA 332; Gajewski (Re), 2015 ONCA 332.

[15] In December 2015, the respondent was transferred to the general unit at the Hospital. At his annual review in 2016, the Board ordered the respondent detained in the general unit, with indirectly supervised entry into the Toronto community on passes for up to a week: Gajewski (Re), [2016] O.R.B.D. No. 2757, at para. 54, (“Gajewski (Re), (ORB, 2016)”). The Board also ordered the respondent to refrain from coming within 500 metres of where the victim lives, works, worships, or is otherwise known to be (“the 500 metre prohibition”): Gajewski (Re), (ORB, 2016), at para. 56. The Crown appealed, and this court allowed the appeal in part, holding that the victim’s father should be included in the restriction: Gajewski (Re), 2017 ONCA 354 (“Gajewski (Re), (ONCA, 2017)”).

(4) The Geographic Boundary Condition

[16] In the 2016 annual review hearing, the Crown first raised the issue of a geographic boundary restriction (“boundary condition”). If the respondent were granted indirectly supervised passes or community living, the Crown sought to create an exclusion zone around the area where the victim and her father lived and worked. The Board rejected this proposal, holding that a blanket geographic ban provided illusory reassurance to the victim and that it was less effective than an area of exclusion around the individuals themselves: Gajewski (Re), (ORB, 2016), at para. 56. On appeal, this court did not take issue with the ORB’s decision with respect to the boundary condition: Gajewski (Re), (ONCA, 2017).

[17] The Crown renewed its request for a boundary condition at the 2018 annual hearing. Four of the five Board members were not persuaded that a geographical boundary provides any greater protection to the victim than the terms set out in the October 2016 disposition: Gajewski (Re), [2018] O.R.B.D. No. 1342, at para. 97. The dissenting member found that a boundary restriction could minimize the risk to public safety. The Crown did not appeal this disposition.

[18] At the respondent’s 2019 annual review, the Crown, relying on the dissent in the 2018 decision, again sought a boundary restriction. The victim filed a victim impact statement that did not conform to the Criminal Code requirements for such statements, as she had done at previous hearings. The statement noted how, while NCR individuals must have access to the best treatment to improve and return to the community, the Board was also tasked with protecting the victim and her father, something that could only be done by a boundary condition that ensured physical separation between the NCR accused and herself. The Board unanimously rejected the Crown’s request, finding that the boundary was unnecessary: Gajewski (Re), [2019] O.R.B.D. No. 1282, at para. 38 (“Gajewski (Re), (ORB, 2019)”). The panel included the member who dissented at the 2018 hearing. However, the Board maintained the no contact condition and the 500 metre prohibition: Gajewski (Re), (ORB, 2019), at para. 39. As I return to below, the respondent appealed this disposition order.

[19] In November 2019, this court heard a motion for leave to intervene by the victim in the respondent’s appeal of the 2019 disposition. The victim wanted to appeal from the Board’s refusal to impose the boundary condition, as the Crown had not cross-appealed this issue: Gajewski (Re), 2020 ONCA 4, at paras. 1, 23, (“Gajewski (Re), (ONCA, 2020)”).

[20] Strathy C.J.O. rejected the motion: Gajewski (Re), (ONCA, 2020), at paras. 1, 23, 36. He commented on the victim’s desire for the boundary condition at paras. 33 and 35:

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.

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. [Emphasis added.]

[21] On December 20, 2019, this court allowed the respondent’s appeal and ordered the Board to reconsider their 2019 disposition on an expedited basis: Gajewski (Re), 2019 ONCA 1009, at paras. 1-3, (“Gajewski (Re), (ONCA, 2019)”).

[22] The victim subsequently filed a motion requesting that she be granted party status in the Board’s re-hearing of the respondent’s 2019 disposition. In the alternative, she sought limited participatory rights to, among other things, make submissions regarding the proposed boundary condition. The Board denied the application, concurring with Strathy C.J.O.’s reasons in Gajewski (Re), (ONCA, 2020); Gajewski (Re), [2020] O.R.B.D. No. 919, at paras. 9, 60.

C. Decision Below

(1) Relevant Evidence and the Positions of the Parties

[23] The January 2020 Hospital report was presented as evidence at the hearing. It noted that the respondent maintains his delusional beliefs, has minimal insight into his mental illness, and would discontinue medication immediately if given the opportunity. It also described how the respondent denies any desire to harm or contact the victim, and that he would only seek revenge in the form of a civil remedy.

[24] The Board also accepted a victim impact statement from K.N., despite it again not conforming with the requirements of the Criminal Code. The Board indicated in its reasons that it allowed the victim impact statement to be filed on the understanding that it would “only consider the relevant portions”: Gajewski (Re), (ORB, 2020), at para. 18, footnote 2.

[25] The Crown and the Hospital agreed that the respondent remained a significant threat. Counsel for the respondent did not argue to the contrary. In other words, the significant threat issue was uncontested. Instead, the submissions largely focused on what was the least onerous disposition available in the circumstances. Counsel for the respondent and the Hospital submitted that a conditional discharge was appropriate, while counsel for the Crown argued for a detention order: Gajewski (Re), (ORB, 2020), at paras. 4-5.

[26] The Crown also argued that any disposition should include a boundary condition. The respondent opposed this request arguing that it would impose an unnecessary limit on his liberty. Likewise, the Hospital did not support the imposition of a boundary condition. It was the position of the respondent’s treating psychiatrist, Dr. Pearce, that such a term was unnecessary: Gajewski (Re), (ORB, 2020), at paras. 7, 51.

(2) The Decision

[27] The Board held that the respondent continued to be a significant threat to the public. He was conditionally discharged to reside in the community with his mother. Conditions included that the respondent would have no contact with the victim or her father, and would not be allowed within 500 metres of any place they live, work, and worship, or any place he knows them to be: Gajewski (Re), (ORB, 2020), at para. 61.

[28] However, the Board again refused to include the Crown’s requested boundary condition. In reaching this conclusion, the Board relied upon the opinion of the respondent’s treating psychiatrist, Dr. Pearce, that this condition was unnecessary. Further, the respondent had been in the community for substantial periods of time in recent years. Notably, he had resided in the community with family for the past six months. Yet, there was no suggestion of him either having or seeking out any contact with the victim. Based on this evidence, the Board was unable to conclude that the term requested was necessary and appropriate. Instead, the concerns of the victim could be addressed by the continuing prohibition from contact and the 500 metre prohibition: Gajewski (Re), (ORB, 2020), at paras. 49-52.

D. Issues on Appeal

[29] The Crown raises two issues on appeal:

1. The Board’s decision not to impose the proposed boundary condition reflects an error of law; and
2. The Board’s decision not to impose the geographic boundary condition was unreasonable.

E. Analysis

(1) Standard of Review

[30] This court may set aside an order of the Board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: Criminal Code, R.S.C., 1985, c. C-46, s. 672.78(1); R. v. Owen, 2003 SCC 33, 174 C.C.C. (3d) 1, at para. 31.

(2) Did the Board’s Failure to Include the Proposed Boundary Condition Reflect an Error of Law?

(a) Relevant Background

[31] Section 674.54 of the Criminal Code describes the factors that the Board must consider in making a disposition, as well as the types of dispositions that it can make:

672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. [Emphasis added.]

[32] Additionally, s. 672.542 requires the Board to consider further conditions where there are concerns for the safety and security of any person:

672.542 When a court or Review Board holds a hearing referred to in section 672.5, the court or Review Board shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused:

(a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or

(b) comply with any other condition specified in the disposition that the court or Review Board considers necessary to ensure the safety and security of those persons.

(b) Positions of the Parties

[33] The Crown argues that the Board’s analysis of the boundary condition reflects an error of law. It points to Haddad (Re), 2020 ONCA 233, at paras. 15-17, a case in which this court: (1) noted that s. 672.542 requires the Board to balance the interests of the NCR accused against the interests of the victim, and (2) observed that the conditions imposed by the Board must be viewed collectively and not in isolation when assessing whether the disposition is necessary and appropriate under s. 672.54.

[34] The Crown submits that while the Board analyzed whether it should impose a boundary condition, it did not reference or meaningfully consider its obligation to balance the respondent’s interests against the victim’s interests, nor its obligation to assess the entire package of conditions. As a result, the Crown argues that the Board erred in law by failing to fulfil its statutory obligation under s. 672.542 or apply the proper test to the condition requested.

[35] Both the respondent and the Hospital oppose the Crown’s appeal on this ground, contending that the Board’s disposition was correct and free of legal error.

(c) Analysis

[36] I do not agree with the Crown’s submissions, and as such would not give effect to this ground of appeal.

[37] Contrary to the Crown’s argument, there is no legal requirement on the Board to consider the request for a boundary condition. I agree with counsel for Mr. Gajewski that this proposition is based on a misapprehension of the application of s. 672.542.

[38] Section 672.542 requires the Board to consider whether it is desirable to include any conditions relating to the safety and security of a victim, witness, or justice system participant. Under s. 672.542(a), the inquiry for the Board is simply whether a no contact term or a prohibition against attending a specific place would be desirable in the interests of the safety and security of a victim, witness, or other person. Under s. 672.542(b), the Board may consider whether it is desirable to impose any other condition necessary to ensure the safety or security of such persons. Nothing in the wording of this section requires the Board to entertain all proposed conditions by the parties. Rather, what conditions may be “desirable” within the meaning of s. 672.542 remains squarely within the Board’s discretion.

[39] I agree with the appellant that s. 672.542 requires the Board to balance the NCR accused’s interests against those of the victim. However, I am not persuaded that the decision of the Board failed to meet this obligation. There were terms in the conditional discharge that restricted the respondent’s liberty in order to sufficiently protect the victim: specifically, the no contact order and the 500 metre prohibition. It is also important to bear in mind that the Board must apply s. 672.542 in accordance with its other statutory obligations. Specifically, pursuant to s. 672.54, the Board was required to only impose conditions that are both necessary and appropriate, given the twin goals of protecting the public and safeguarding the NCR accused’s liberty interests. In my view, these goals were met by the conditions imposed.

[40] While the Board may not have explicitly referenced s. 672.542, the totality of their reasons demonstrate that the Board balanced the victim’s interests and those of the respondent. The Board’s decision to continue the non-contact condition and the 500 metre prohibition demonstrate that the Board considered the requirements of s. 672.542, notwithstanding the fact that the Board did not explicitly set out that section.

[41] When the Board’s reasons are considered as a whole, I am satisfied that the Board applied the correct legal test, adequately balanced the interests of the accused against those of the victim, and was justified in finding that a boundary condition was not necessary or appropriate.

[42] In all the circumstances, I would dismiss this ground of appeal.

(3) Was the Board’s Decision Not to Impose the Geographic Boundary Condition Unreasonable?

(a) Relevant Background

[43] The Crown cross-examined Dr. Pearce on the issue of the proposed boundary condition, as follows:

Q. And the boundary condition, if Mr. Gajewski's mother resides I think on sort of the, the midtown area as we've described, and there's even indication in the hospital report that the Crown had raised concerns, there's some proximity of that address to where the victim resides and works?

A. I don't know.

Q. Okay. That was -- I guess when he first had his indirect passes they were put on hold for a couple of weeks because that concern was raised and then they were reinstituted, or sorry, reinstituted after -- within a week because of that; okay. And, and so, if Mr. Gajewski himself -- leaving aside from what might benefit the victim, we'll talk about that in a moment, but Mr. Gajewski himself seems to be concerned not to want to have contact with the victim. And would, would it not be of some use if he had a definitive area where in fact, he was prohibited from going into?

A. I mean, that -- I mean, I think it's up to the Board in terms of weighing those restrictions on, on his liberty and, and the potential risk reduction, or against the victim. So, I mean, I don’t think it matters much to me, but if he does get work, I want him to be able to, to work where he needs to. That's my only concern.

Q. Okay. But should he -- if he were to get work, you know, two blocks from the victim, do you think that's acceptable?

A. Well, yes, (indiscernible) away from the victim.

Q. So indeed, there's going to be some limitations put upon him, even if he were to work, at least a 500 metre condition. So, there's still going to be a limitation.

A. Right. I mean, I don't know, I mean, I don't know, you know, where the -- where, where he may be working. You know, I mean, I -- you know, it looks to me like the map was a large, a large map, but, you know, I mean, I think these things aren't up to me.

Q. The -- just to go back to the boundary you've requested, and I won't spend too long on this. You, you described that it represented a restriction in Mr. Gajewski's liberties, which indeed it does. But could I ask you to also assess it in terms of, in terms of public safety, and in this case, public safety is the safety of [the victim]. Would you see it being of no benefit to a victim to have a safe zone in which they could feel relatively confidant, confidant that they could move about freely without contacting the accused?

A. You know, I'm not sure. Perhaps in this case that would be a benefit to the victim. I'm not sure how that gets weighed with the other needs -- the other integration needs of the accused. That's up to the, up to the Board. [Emphasis added.]

[44] The Board ultimately concluded that the boundary condition was unnecessary, given the evidence noting that the respondent had lived in the community without incident and Dr. Pearce’s testimony. Their reasoning on this point was set out at paras. 49-52 of their reasons:

As noted above, Mr. Feindel requests any Disposition include a term that Mr. Gajewski not enter the area set out in the map filed as Exhibit 11 in order to provide the victim with a 'safe zone'. Ms. Szigeti is opposed to the term as being an unnecessary interference with her client's freedom. and the hospital does not support it.

We note that Mr. Gajewski has been in the community for substantial periods of time over the last several years and residing in the community for the last 6 months. Throughout that time there has been no suggestion of his either having or seeking to have any contact with the victim. Throughout the time he has been able to be in the community he has abided by terms that he have no contact with the victim and certain other individuals and that he remain 500 meters from the victim and her father.

Dr. Pearce was of the view that such a term was not necessary.

As noted above, any restriction imposed upon an accused must be the least onerous and least restrictive which is both necessary and appropriate in the circumstances. On the evidence before the Board we are unable to conclude that the term requested is necessary. The understandable concerns of the victim are addressed by the continuing prohibition from contact.

(b) Positions of the Parties

[45] The Crown argues that the Board’s decision not to impose the boundary condition was unreasonable as: (1) the Board misapprehended Dr. Pearce’s evidence; and (2) failed to meaningfully account for the evidence before it.

[46] The Crown argues that the Board’s cursory assessment of the boundary condition cannot be justified in light of the following facts:

• the respondent’s delusions remain fixed and intractable, despite treatment;
• the victim impact statement demonstrated that the victim suffers psychological stress and lives in fear due to the respondent’s continued delusions;
• the respondent’s increasing freedom within the community increases the victim’s fears;
• the boundary condition is important to the victim in terms of her psychological and physical security;
• Dr. Pearce testified that if the respondent re-offends, it would be severe;
• while Dr. Pearce did not support the boundary condition, he agreed it could be beneficial to the victim; and
• there was no evidence that the respondent was currently pursuing employment or that he had any need to visit a location within the proposed boundary.

[47] The Crown further submits that the Board was required to explain why it did not impose the boundary condition, considering this evidence.

[48] While the Board declined the Crown’s request for a geographic boundary condition in the past, the Crown argues that the change from a detention order to a conditional discharge has significant implications for the victim’s physical and psychological security, giving rise to new considerations.

[49] The Crown argues that the Board also erred by failing to address what evidence it accepted from the victim impact statement, and by not providing reasons explaining its conclusion that the prohibition from contact addressed the victim’s psychological safety.

[50] The Crown submits that the Board misconstrued Dr. Pearce’s evidence. The Crown states that Dr. Pearce conceded in cross-examination that anything that would prevent contact between the respondent and the victim would be beneficial.

[51] The Crown argues that this case is one where a boundary condition was clearly desirable for the victim’s safety and security, and there was no evidence that the condition was a significant interference with the respondent’s interests. Accordingly, it is the Crown’s position that the Board erred in failing to impose the condition.

[52] The respondents argue that the Board’s decision with respect to the boundary condition was reasonable and well supported by the record.

(c) Analysis

[53] I would not give effect to this ground of appeal. I agree with counsel for Mr. Gajewski that none of the concerns raised by the Crown are borne out in an examination of the transcript and record.

[54] The Board did not have to specifically set out that Dr. Pearce acknowledged that the victim may find a boundary condition helpful. Furthermore, given the history of this case and the multiple times the Crown has raised the boundary condition, it cannot be suggested that the Board treated the victim’s request in a cursory fashion. In their reasons and analysis, the Board focused on the actual issue in this case: namely, whether a conditional discharge could keep the public, including the victim, safe. The Board concluded that it could.

[55] I also do not accede to the Crown’s argument that the Board failed to consider the increased safety and security concerns with respect to the victim as a result of substituting the detention order with a conditional discharge. As the Board recognized, the respondent had already spent a significant amount of time in the community and had abided by his conditions. The 500 metre prohibition already created a “safe zone” – one that was calibrated to be the least onerous and restrictive measure as was necessary and appropriate in the circumstances.

[56] Moreover, under a conditional discharge, the respondent’s liberty is still subject to significant restrictions. As the name of the disposition suggests, the respondent’s liberties are subject to the terms set out in the conditional discharge. The Board concluded that the terms in the conditional discharge adequately militated against the risk of any harm to the public. That was a decision that the Board was entitled to make.

[57] As Doherty J.A. explained in Young (Re), 2011 ONCA 432, 278 O.A.C. 274, at para. 26, the key difference between the detention order and the conditional discharge is the mechanism available to the Hospital in the event that the respondent needs to be committed. In the event of decomposition or any breach to the terms of the conditional discharge, the respondent can be returned to a hospital by convening a new hearing under s. 672.82(1), by resorting to the provisions governing breaches of conditional discharges found in s. 672.92, or through the committal provisions available under the Mental Health Act. In other words, should any concerns arise, the Hospital has mechanisms at its disposal to act. It was in the Board’s discretion to decide whether this would suffice.

[58] The Board’s task in fashioning an appropriate disposition order calls for significant expertise. Accordingly, appeal courts should not be too quick to overturn the Board’s decision regarding how best to manage a patient’s risk to the public: R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765, at para. 95. I see no basis to interfere with the Board’s decision.

F. Disposition

[59] The Board’s decision was correct and reasonable. The appeal is dismissed.

Released: April 19, 2021 “M.T.” “M. Tulloch J.A.” “I agree. C.W. Hourigan J.A.” “I agree. S. Coroza J.A.”