Re Chmielowski, 2025 CanLII 69699

Ontario Review Board

Re: Marek Chmielowski

ORB File No: 8512

Hearing held on: Tuesday, June 10, 2025

Place of hearing: Centre for Addiction and Mental Health (Via Zoom Video Conference)

Pursuant to: Sections 672.48(1) and 672.81(2.1) of the Criminal Code

Before: Alternate Chairperson: Mr. G. Beasley Members: Dr. R. Kunjukrishnan Dr. C. Rose Ms. J. Ferguson Ms. R. MacIntyre

Parties Appearing:

Accused: Marek Chmielowski Counsel: Mr. T. Whillier

The person in charge of hospital: Counsel: Ms. A. Marshall

Attorney General of Ontario: Counsel: Ms. L. Earle

REASONS FOR DECISION

(Dated July 18, 2025)

Introduction

1On March 8, 2024, the accused, Marek Chmielowski, was found unfit to stand trial on charges of uttering threat, assault, resisting and obstructing a peace officer, assault peace officer, and failing to comply with a release order, all contrary to the Criminal Code of Canada. By reason of a Disposition of the Ontario Review Board (“ORB”) dated September 10, 2024, Mr. Chmielowski was found to be unfit to stand trial and ordered to be detained at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”), Toronto. Mr. Chmielowski’s Disposition included privileges up to residing in the community in accommodation approved by the person in charge.

2On March 26, 2025, the manager of the Office of the Person in Charge of CAMH advised the ORB that Mr. Chmielowski, who had been residing in the community, had been readmitted to hospital on an inpatient basis on March 18, 2025.

3On June 10, 2025, the ORB convened a hearing at CAMH for the purpose of the review of the circumstances of Mr. Chmielowski’s readmission to hospital and his ongoing detention, pursuant to s. 672.81(2.1) of the Criminal Code. The hearing took place with all parties attending by way of Zoom video conference technology. Mr. Chmielowski was assisted by a Polish interpreter and represented by counsel, Mr. Whillier. Counsel for the hospital was Ms. Marshall and counsel for the Attorney General of Ontario, Ms. Earle.

Alleged Index Offences

4The 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.”

Current Diagnoses

[5] Intellectual Developmental Disorder Alcohol-Use Disorder

Background and Personal History

6Mr. Chmielowski was a 52-year-old single man with no dependents. He had been living in an apartment with his 73-year-old mother in North York, Ontario. He was unemployed and financially supported on Ontario Disability Support Program (ODSP). Mr. Chmielowski suffers from a mild to moderate intellectual disability which resulted in his being found unfit to stand trial on March 8, 2024. Until the time of his admission to hospital Mr. Chmielowski was residing with his mother at home. He was well supported by his family including mother, stepfather and sisters. Mr. Chmielowski’s Detention Order included provisions for community living, a prohibition against the consumption of alcohol and random urine drug screens with weekly reporting.

Position of the Parties

7At the outset of the hearing, Ms. Marshall submitted that the decision to admit Mr. Chmielowski to hospital from the community was necessary and appropriate and the least restrictive alternative available to the hospital at the time that it occurred. She also submitted that the ongoing detention is warranted. Ms. Earle supported the submission of the hospital. Mr. Whillier stated that while he agreed with the necessity of the readmission when it occurred, the ongoing detention was not warranted.

Evidence

8The evidence on behalf of the hospital was presented by Dr. Simpson. He stated that he had been Mr. Chmielowski’s outpatient psychiatrist commencing in October 2020 when Mr. Chmielowski first came under the jurisdiction of the ORB until March 18, 2025 when he was readmitted to hospital. Dr. Simpson stated that Mr. Chmielowski had initially been very challenging on his readmission to hospital which resulted in a brief stay in seclusion. After he settled he was transferred to the general unit where he has remained since May 26, 2025. He is more relaxed now and has shown some low level of engagement in group activities. At the present time he has level 0 passes as he has expressed a clear desire to go AWOL from the hospital. He is not presently receiving any medications. Dr. Simpson stated that Mr. Chmielowski has said that he does not need to comply with any of the requirements of his ORB Disposition. He has refused to provide UDS samples. Dr. Simpson stated that any attempt to assess Mr. Chmielowski’s cognition function has failed.

9Dr. Simpson testified that the treatment team is exploring other accommodation options for Mr. Chmielowski. After being charged with the index offences which involved members of his family, Mr. Chmielowski had been on bail, residing with his mother. Dr. Simpson said that it is not possible for him to return to that address as a result of his ongoing excessive consumption of alcohol which has caused significant difficulties for his family. Dr. Simpson stated that his family have been very tolerant and supportive of him until recently when Mr. Chmielowski’s drinking appears to have escalated. His drinking is so persistent that he has been threatening to his mother and stepfather. As a result, they have withdrawn their consent for him to live in the family home. With no other approved accommodation, the treatment team had no option but to return Mr. Chmielowski to the hospital.

10Dr. Simpson was asked about Mr. Chmielowski’s expressed intention to go AWOL from hospital and where he might go if he left. Dr. Simpson said that he did not know the answer, that there were no other possible places for him to go other than home and at the present time his mother is out of the country for approximately six months. When asked about next steps, Dr. Simpson said the treatment team hopes to form a therapeutic relationship with Mr. Chmielowski to encourage him to make changes in his life, particularly as it relates to alcohol consumption. He stated that Mr. Chmielowski will have to accept that he cannot drink alcohol and that he needs to accept the support of the treatment team and agree to monitoring of substance use. The treatment team would also like to assess Mr. Chmielowski for possible DSO funding, but he has been resistant and uncooperative. If he were eligible then this would open up other support for him which might include accommodation in the community. Dr. Simpson said that Mr. Chmielowski’s family continues to be very supportive of him.

11When asked about the mention of seclusion by Ms. Marshall, Dr. Simpson stated this was a result of an interaction between Mr. Chmielowski and a co-patient and staff. He became very agitated and needed to be briefly placed into seclusion but was released the same day. Dr. Simpson stated that although Mr. Chmielowski had initially been very angry and aggressive with both the doctor and the team social worker, he has not demonstrated any hostility on the unit where he is currently residing. The team has not detected any signs of alcohol withdrawal on this admission. Dr. Simpson stated that Mr. Chmielowski does not acknowledge the impact of his drinking and his behaviour on his family. Although it has been explained to him that he cannot return to live with his mother, Dr. Simpson was unsure if Mr. Chmielowski has accepted and acknowledged that fact. If he were to be released from the Hospital he would have no place to go which results in a significant increase in the risk to public safety.

12Mr. Whillier asked Dr. Simpson about the plan of care set out on page 5 of the ROL Hospital Report and whether or not Mr. Chmielowski was more accepting of his “situation”. Dr. Simpson stated that although Mr. Chmielowski was more relaxed, he was not more accepting of the situation. When asked, Dr. Simpson stated that all meetings with Mr. Chmielowski had been with the assistance of an interpreter. When he is requested to provide a UDS, it is in the presence of a Polish interpreter. Mr. Whillier asked if it would be necessary for Mr. Chmielowski to achieve level 9 privileges before he could be discharged back to the community. Dr. Simpson said that was not necessarily the case; he might be discharged at level 7 or 8, depending upon his support needs. Dr. Simpson stated that Mr. Chmielowski expected to be released from the Hospital after the ROL hearing was completed. He said there would be a reassessment of his privilege level following the hearing.

13In response to a question from Mr. Whillier, Dr. Simpson stated that there has been no improvement into Mr. Chmielowski’s insight into his alcohol abuse and the difficulty it causes. The doctor said that although he had not examined Mr. Chmielowski in some time, Mr. Chmielowski states that it is his right to drink and that the hospital cannot stop him.

14In response to questions from a member of the panel, Dr. Simpson stated that Mr. Chmielowski has made it clear that he would abscond from the hospital at the first available opportunity. He made this comment when he was first admitted to the hospital and has maintained his stated intention to go AWOL throughout his stay. Dr. Simpson said he has no idea where Mr. Chmielowski might go and that to the best of his knowledge he has never lived independently. The doctor stated that he did not believe that Mr. Chmielowski would have the ability to organize sufficiently to reside in the community. Another parent panel member asked if the team were hopeful that they could improve Mr. Chmielowski’s insight given his cognitive issues. Dr. Simpson said that although the patient suffers from a mild intellectual disability, Mr. Chmielowski does have some talents including a real skill at bicycle repair. He has a very prosocial family, no record and the team is hopeful that he can learn. He stated that Mr. Chmielowski is a very proud man and he does not like other people telling him what to do. Dr. Simpson stated that it was feasible that Mr. Chmielowski could be returned to the community within the next 12 months, but there would need to be improvements in his insight and cooperation with the treatment team.

15Neither Ms. Earle nor Mr. Whillier called evidence at the hearing.

Submissions

16All counsel reiterated the submission made at the outset of the hearing that the decision to admit Mr. Chmielowski to the Hospital on March 8, 2025 was necessary and appropriate and the least restrictive option available to the Hospital at the time. Mr. Whillier maintained his submission that the ongoing detention was neither necessary nor appropriate.

Analysis and Decision

17The panel is unanimous in accepting the submission of the hospital as supported by the Attorney General. Following his arrest on the alleged offences, Mr. Chmielowski was permitted to remain residing in the community with his mother and stepfather at their home. This was notwithstanding the fact that they were, in fact, victims of the alleged offences along with a number of police officers. Following the finding by the court that he was unfit to stand trial, Mr. Chmielowski came under the jurisdiction of the Ontario Review Board on October 24, 2024 when his initial hearing was held. The Disposition issued that day was for a Detention Order, but it contained a community living clause in approved accommodation and Mr. Chmielowski continued to reside with his mother. As set out in the ROL Hospital Report, his consumption of alcohol continued unabated. Mr. Chmielowski has consistently refused to recognize the authority of the ORB and therefore refuses to provide UDS samples on request. Although the treatment team in the community continued to try and establish a relationship with him they were, for the most part, unsuccessful. When his consumption of alcohol began to increase, Mr. Chmielowski’s family became more concerned about their personal safety. Ultimately, they were forced to withdraw their consent for his continued residence in their home. Given the lack of approved accommodation, the team had no alternative but to admit Mr. Chmielowski to the hospital. Since his admission, Mr. Chmielowski has continued to refuse to cooperate with the treatment team. He has no insight into his substance abuse and the harm it causes. He refuses to participate in assessments intended to assist in obtaining treatment options for him. He continues to refuse to provide UDS samples or cooperate with the treatment team in any way. Finally, he continues to express an intention to abscond from the hospital given the first available opportunity.

18The panel is unanimous in accepting the decision of the treatment team to continue to detain Mr. Chmielowski in the hospital at this time. There will need to be significant improvements in his insight and cooperation to allow the team the opportunity to find him suitable accommodation in the community. Given all of the above, it is clear that the decision to admit him to the hospital was necessary and appropriate and the least restrictive option available to the hospital at the time that it occurred, and that Mr. Chmielowski’s continued detention in the hospital is warranted.