Court of Appeal for Ontario

Citation: Simopoulos (Re), 2013 ONCA 702

Date: 2013-11-15

Docket: C56767

Judges: Feldman, Gillese and Tulloch JJ.A.

In the Matter of: Mason Simopoulos

An Appeal Under Part XX.1 of the Code

Counsel: Mason Simopoulos, in person Jill R. Presser and Lucy Saunders, appearing as amicae curiae Mabel Lai, for the Attorney General of Ontario James Thomson, for the Person in Charge of the Centre for Addiction and Mental Health

Heard: November 13, 2013

On appeal from the disposition of the Ontario Review Board, dated February 7, 2013.

Endorsement

[1] Mr. Simopoulos has been under the jurisdiction of the Ontario Review Board (the "Board") since January 6, 2012, when he was found not criminally responsible on account of mental disorder in respect of criminal harassment and failing to comply with a recognizance.

[2] By disposition dated February 7, 2013 (the "Disposition"), the Board ordered that he be detained in the secure unit, with an early review of the Disposition to take place within six months. While the Board unanimously found that Mr. Simopoulos remained a significant threat to public safety, a minority would have ordered that Mr. Simopoulos be detained in the secure unit but with the potential for transfer to the general unit with community living privileges.

[3] Mr. Simopoulos, with the support of amicae curiae, appeals. He argues that the Disposition is unreasonable and that he should be granted an absolute discharge. Alternatively, he seeks a conditional discharge or a detention order in the general unit with community living privileges.

[4] The six-month review mandated by the Disposition commenced on September 17, 2013, but did not finish. It is scheduled to continue on November 18, 2013. Nonetheless, Mr. Simopoulos wishes to pursue this appeal.

[5] The respondent Centre for Addiction and Mental Health (CAMH) submits that the ongoing review renders the appeal moot. While the appeal may not technically be moot, through the review process now underway, in short order the appellant will have a decision on the relief he seeks. Significantly, the Board is in the best position to decide that matter because, through the review process, the Board will have the appellant's most current and complete medical information.

[6] Having said that, the court feels it is important to draw the following points to the Board's attention, as it completes the review process.

[7] First, in the reasons for Disposition, the Board concluded that the appellant "continues to pose a risk to the safety of the public". The legal threshold on which the Board must be satisfied is whether the appellant is a significant threat to public safety. A significant threat to the public safety means a real risk of physical or psychological harm to members of the public that is serious: see R. v. Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

[8] We cannot overemphasize the importance of the Board's obligation to make this determination based on the evidence. In doing so, we remind the Board of the role that amicus plays as friend of the court and not the accused's legal representative. In the present case, although it appeared that amicus conceded the legal threshold had been met, the record shows that the accused did not concede that matter. Consequently, the Board had to decide whether the legal threshold had been met.

[9] Second and very importantly, the court is deeply concerned by the hospital's apparent failure to comply with the terms of the Disposition. Specifically, in the Disposition the Board ordered that the appellant be detained in a secure unit. The Disposition was made on February 7, 2013, but the court understands that it was not until July 2013 that the appellant was actually moved from the Assessment and Triage Unit ("ATU") to a secure unit. No satisfactory explanation was offered for this delay. We understand that conditions in the ATU are much more onerous than those on a secure unit. We expect that the Board, too, would be troubled by the hospital's apparent failure to comply with its order and that it will take steps to determine why the delay occurred and to ensure that it does not happen again.

[10] For these reasons, the appeal is dismissed.

"K. Feldman J.A."

"E.E. Gillese J.A."

"M. Tulloch J.A."