Court of Appeal for Ontario
CITATION: Smethurst (Re), 2015 ONCA 649
DATE: 20150924
DOCKET: C58603
BEFORE: Doherty, Tulloch and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Stephen Smethurst
Appellant
COUNSEL:
Ken J. Berger, for the appellant
Matthew Asma, for the respondent
Gavin S. MacKenzie, for the Centre for Addiction and Mental Health
HEARD: September 18, 2015
On appeal against the disposition of the Ontario Review Board, dated March 26, 2014.
APPEAL BOOK ENDORSEMENT
[1] The appellant submits that the Board has no "jurisdiction" to make any order under s. 672.54 because the appellant does not suffer from a "disease of the mind".
[2] The appellant misunderstands jurisdiction. The Board is a statutory body. Its jurisdiction over the appellant comes from the relevant provisions of the Criminal Code: see s. 672.45(1.1) and s. 672.47. That jurisdiction is not affected by assertions by the appellant, or even medical evidence to the effect that the appellant does not and never did have a disease of the mind.
[3] In any event, the concept of "disease of the mind" is a legal one that is relevant to a determination of whether a person should be held accountable for a criminal act. That determination is made by the court in the criminal proceeding. The concept has no application to the inquiry under s. 672.54 which is concerned with the safety of the public and the "mental health" of the "accused" as it relates to the risk, if any, posed by the "accused" to the public.
[4] There is no merit to the Charter arguments. The constitutionality of the process under s. XX.I and, in particular, s. 672.54 was settled in Winko, [1999] 2 S.C.R. We have heard nothing to suggest that we need go beyond the analysis in Winko.
[5] The appellant advises that apart from the "jurisdictional" and constitutional arguments, he does not challenge the Board's order. That order has been superseded by an order made in February of this year. The appellant has not appealed from that order.
[6] The appeal is dismissed.