DATE: 20011101 DOCKET: C35797

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– MIRKA (MYRA) SIMANEK (Appellant)

BEFORE:

FINLAYSON, AUSTIN and SHARPE JJ.A.

COUNSEL:

Paul Calarco, for the appellant

Riun Shandler, for the respondent

HEARD:

October 24, 2001

RELEASED ORALLY:

October 24, 2001

On appeal from the decision of Justice Edward F. Then, sitting as a motions court judge, dated December 7, 2000.

E N D O R S E M E N T

[1] The appellant’s position on appeal is a repetition of the position taken on the applications before Then J. wherein she asserted that Marshall J. “attempted to do indirectly what she could not do directly.” In our opinion, there is no basis for this assertion.

[2] While Marshall J. was found in error by ordering a psychiatric assessment under the Criminal Code provisions, she nonetheless remained seized with an outstanding sentencing matter for which she determined, on the basis of her observations of the appellant, that she required information regarding her mental health. This court has endorsed the use of the Mental Health Act provisions to obtain this information for sentencing purposes in R. v. Lenart (1998), 1998 CanLII 1774 (ON CA), 123 C.C.C. (3d) 353 at pp. 376-77:

… The legislation in question [ss. 21 and 22 of the Mental Health Act] provides a mechanism to furnish the court with information that may assist with sentencing, and is consistent with cooperation with respect to mental health and criminal matters, ….

In my opinion, the impugned sections of the Mental Health Act are not susceptible to constitutional challenge on the basis that they are ultra vires the provincial legislature. In the absence of any conflicting or even companion provisions in the Criminal Code, they were available to the trial judge in sentencing the appellant.

[3] Accordingly, Then J. committed no error in holding that Marshall J. exercised her discretion judiciously when ordering the Mental Health Act assessment to assist in sentencing the appellant.

[4] Further, it is our view that Then J. did not err in denying the appellant an order of prohibition. There was no evidence before him of bias on the part of Marshall J.

[5] Accordingly, the appeal is dismissed.

Signed: “G.D. Finlayson J.A.”

“Austin J.A.”

“Robert J. Sharpe J.A.”