Re: Marek Chmielowski, 2025 CanLII 102474

Ontario Review Board

Re: Marek Chmielowski

ORB File No: 8512

Hearing held on: Monday, August 25, 2025

Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Mr. R. Bigelow Members: Dr. P. Prendergast Dr. S. Wiseman Mr. M.D. Segal Mr. S. Duffy

Parties Appearing: Accused: Marek Chmielowski Counsel: Mr. T. Whillier The person in charge of hospital: Counsel: Ms. S. Rosales-Zelaya Attorney General of Ontario: Counsel: Ms. K. Kirec

REASONS FOR DISPOSITION

(Dated October 8, 2025)

Introduction

1Marek Chmielowski, age 53, was on March 8, 2024, found unfit to stand trial on charges of utter threat, assault, resisting/obstructing peace officer, assault peace officer, and failing to comply with a release order, all contrary to the Criminal Code. Mr. Chmielowski was found unfit to stand trial and ordered to be detained at the Forensic Service at the Centre for Addiction and Mental Health (the “hospital”), with privileges up to and including residing in the community in accommodation approved by the person in charge.

2On August 25, 2025, Mr. Chmielowski appeared for a hearing related to his fitness and for an annual hearing before the Ontario Review Board (the “Board”).

3The Board had before it as Exhibit 1, the Hospital Report dated July 31, 2025, and the most recent Reasons for Decision and Disposition order.

4A Polish interpreter was present and translated verbatim.

Diagnoses

[5] Intellectual Developmental Disorder Alcohol Use Disorder

Index Offence

6The circumstances giving rise to the alleged index offences are abstracted from last year’s Reasons for Disposition as follows:

“On April 1, 2023, Mr. Chmielowski became intoxicated at the residence of Jadwiga Chmielowski (the mother of Mr. Chmielowski and the victim), at 267 Roywood Drive, Unit #704 in Toronto. Mr. Chmielowski became involved in an argument with the victim and stated something to the effect of “I’m going to kill you.” The victim became fearful for her safety and produced her phone to notify police. Mr. Chmielowski then grabbed the victim’s wrists and took the phone from her hands. Once Mr. Chmielowski calmed down, the victim was able to obtain her phone and called 911. When police attended the address, they placed Mr. Chmielowski under arrest inside the apartment. Mr. Chmielowski struggled with the arresting officer and resisted the arrest.

On April 4, 2023, Mr. Chmielowski was released on a Release Order with conditions to not contact or be within 100 meters of his mother.

On April 12, 2023, Mr. Chmielowski entered the residence of his mother, the victim, using a key. He had a brief conversation with the victim then went to bed in his old room. The victim then contacted her daughter, who notified police. The police attended the address and placed Mr. Chmielowski under arrest. However, he became aggressive and started to kick the windows of the police car. Following his arrest, Mr. Chmielowski was being paraded at the 32 Division before the Officer in Charge in relation to the initial charge. At this time, Mr. Chmielowski turned towards the second victim, Officer Colin Nasmith, and spit in his left eye. Mr. Nasmith sustained a minor injury to the left eye including redness.”

Preliminary Positions

7In preliminary positions the hospital, supported by Crown counsel, took the position that the patient was fit and should be returned to court. Mr. Whillier, for the patient, indicated he was unable to obtain meaningful instructions regarding the issues of fitness or disposition.

8The Hospital Report reviews Mr. Chmielowski’s personal circumstances. The report makes reference to his out-of-control use of alcohol and the impact of alcohol on his behaviour. There were three counts of assault in 2007 that stem from altercations while intoxicated on public transportation. Those charges were withdrawn. Mr. Chmielowski has virtually no recollection of these events. The report also reviews the index offences in April of 2023, which involved threatening to kill his mother with whom he lived, and a struggle with police. About two weeks later he gained access to his mother's residence without permission. Again, he reacted poorly to police presence, kicking the windows of the squad car and spitting in an officer's eye. He was found unfit.

9In January 2024, Mr. Chmielowski refused to participate in a fitness examination. In June 2024, Mr. Chmielowski refused to participate in a cognitive test or a fitness test. In March of 2025, he was admitted to hospital. At the outset, his admission did not go smoothly. There were seclusions and a restriction of liberty. Over time, he eventually engaged with the team and participated in a fitness hearing.

Evidence at Hearing

10Dr. A. Valoo, the patient’s psychiatrist, testified. She had last assessed Mr. Chmielowski for fitness on August 21. She indicated that there have been a number of coaching sessions that have addressed the Taylor questions and went beyond those questions. Coaching included the information about court processes and the Board. While Mr. Chmielowski’s ability to distinguish between court and the Board is not mature, Mr. Chmielowski has made progress in a number of areas, including next steps in court, should he be found to be fit.

11Dr. Valoo indicated that over time Mr. Chmielowski’s ability to answer questions and his understanding of the criminal process has improved. He retains the information. He understands the nature of court proceedings and potential outcomes. He has been increasingly motivated to participate in fitness conversations and is enthusiastic to have such discussions. His ability to communicate with staff his needs also inform his ability to communicate with counsel according to the doctor. He has a reality-based understanding of the criminal proceedings and can instruct counsel on key decisions. Delusional beliefs are not present, and psychotic symptoms have been absent since coming under the Board’s supervision.

12The principal reason for the previous unfitness findings, according to Dr. Valoo, was the patient’s intellectual disability. There is an ongoing assessment of that disability.

13In Dr. Valoo’s view, earlier challenges with grasping the court process were exacerbated by anxiety and low distress tolerance. The doctor opined that previous alcohol consumption may have also contributed to the view that he was then unfit. The doctor noted that Mr. Chmielowski has the ability to learn new information about the court process.

14When Mr. Chmielowski returns to court, the doctor recommends positive reinforcement. If Mr. Chmielowski feels he is not performing well, he can become depressed. The doctor would also recommend frequent breaks and an empathetic approach to optimize participation.

15It has been observed by his counsel that personal attendance of an interpreter, as opposed to video or telephonic assistance, serves to produce the best results. Mr. Chmielowski was attentive to the Board’s proceedings and to the interpreter in a one-hour hearing.

16The R v Bharwani (SCC) criteria were reviewed with the doctor who continued to strongly endorse Mr. Chmielowski’s fitness. In final submissions Crown counsel noted the positive trajectory of Mr. Chmielowski’s fitness journey as detailed at pages 11 and 15 of the Hospital Report. Mr. Chmielowski satisfies the limited cognitive capacity test.

Analysis

17After observing Mr. Chmielowski, reading the Hospital Report, hearing from Dr. Valoo, the Board concluded that Mr. Chmielowski is now fit to stand trial and should be returned to court. Through the good work of the hospital and Mr. Chmielowski’s cooperation, his inappropriate behaviour has subsided, and his understanding of fitness has improved immeasurably. He has a good grasp of the Taylor questions and can instruct counsel. He has a reality-based understanding of the criminal court process and is well positioned to communicate with counsel regarding the key decisions that need to be made.

18The Board is of the view that Dr. Valoo's suggestions make good sense regarding when Mr. Chmielowski returns to court. Specifically, an empathetic approach, taking it slow, with appropriate breaks, positive reinforcement and a good quality in person interpreter would no doubt be of assistance. Efforts to alleviate anxiety and distress would be helpful. Going forward, continued assessment of Mr. Chmielowski’s intellectual disability in conjunction with his history of alcoholism will no doubt be a focus of the team. The current Disposition and its terms remain in place.