Court of Appeal for Ontario

Date: 2018-06-13 Docket: C64630 Judges: MacFarland, Watt and Paciocco JJ.A.

In the Matter of: Mason Simopoulos

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant Mason Simopoulos
• Elena Middelkamp, for the respondent the Attorney General of Ontario

Heard: May 14, 2018

On appeal against the disposition of the Ontario Review Board, dated November 16, 2017.

Reasons for Decision

Background

[1] On January 6, 2012, the appellant was found not criminally responsible on account of mental disorder (NCRMD) on charges of criminal harassment and failure to comply with a recognizance (x2). As a result of these verdicts, the appellant came under the jurisdiction of the Ontario Review Board (the Board). The particulars of the index offences which occurred in May-July 2011 are summarized at para. 5 of the Board's reasons as follows:

The victim in respect of the index offences was a woman who was one of Mr. Simopoulos' teachers when he was a student at Humber College. Details of the index offences are set out in considerable length in the hospital report. Essentially, Mr. Simopoulos began telling the victim that he loved her, made references to intimate feelings for her and persisted in this behaviour despite warnings to stop both from the teacher and from the school. Ultimately, Mr. Simopoulos was removed from the victim's class and then contacted her repeatedly by text and email. He also attended her classroom during a lecture. Security was called and Mr. Simopoulos was escorted off school property. He again texted the teacher. The matter was reported to the police and Mr. Simopoulos was arrested and charged with criminal harassment.

[2] The appellant was detained in hospital until he was discharged into the community in June 2017, pursuant to the conditions of his detention order that permitted community living in the discretion, and subject to the approval, of the person in charge of the hospital. He was transferred from CAMH to St. Joseph's Healthcare Hamilton on December 15, 2014.

[3] Throughout his stay at CAMH his behaviour was, in the words of the respondent, "extremely problematic", until his mother was appointed as substitute decision maker in May 2014. He engaged in inappropriate and sexually suggestive conduct with female nurses. He became fixated with his then psychologist, Dr. Gibas, to the point where a safety plan had to be put in place for Dr. Gibas. After he began treatment in May 2014 his behaviour improved, but he still engaged in sexually inappropriate conduct and was charged with sexual assault.

[4] The appellant's use of marijuana and its impact on his mental health has been an issue throughout his tenure under the Board.

[5] After his transfer to St. Joseph's in December 2014 his behaviour improved. The appellant continued to insist, as he does today, that medical marijuana is helpful to him. Until 2016 it was reported that he had no insight into the negative impact marijuana may have on his mental health. That year he participated in Substance Abuse and Relapse Prevention programs and it appeared he had gained some insight into this aspect of illness.

[6] However, despite the significant progress he made during his time at St. Joseph's, soon after his discharge into the community, in July 2017, he tested positive for THC. He completed substance abuse programs but he remains firmly of the view that medical marijuana helps his anxiety and that Dr. Prat's views that the use of marijuana is contraindicated for him are outdated and not in accord with modern thinking.

[7] Paragraph 19 of the respondent's factum nicely summarizes the unanimous opinion of the treatment team:

Although the appellant had made significant progress over the last year, the team opined that his situation remained fragile. He required a lot of support from the clinical team and without that support it was expected that the appellant would become even less motivated and use illicit substances to the point that he would become psychotic. In the clinical risk summary, it was also noted that the appellant had contacted some staff members through social media. With respect to the appellant representing a significant risk to the safety of the public, his risk factors were noted to include his psychotic disorder, active substance use disorder, and lack of prosocial behaviour and motivation. The treatment team was of the unanimous opinion that the appellant remained a significant risk to the safety of the public.

[8] At the time of the hearing before the Board in October 2017, Dr. Prat had been the appellant's attending psychiatrist for over two years. He noted that when the appellant stopped using marijuana in January 2017 his behaviour improved such that it led to his discharge into the community in June. However, soon after his discharge, he began to use marijuana and, not long after that, started to contact some staff members through social media, commenting about their appearance and the fact that he liked them.

The Current Appeal and Analysis

[9] While counsel for the appellant suggests the conduct was innocuous and simply represented the appellant reaching out because he was lonely, the difficulty is that this type of conduct is reminiscent of the index offence in its early stages. Key evidence before the Board is recited at para. 22 of the respondent's factum:

Dr. Prat stated that after the hospital report was completed the appellant tested positive for marijuana on a second occasion. The appellant advised that he had obtained a licence for medical marijuana and had smoked marijuana for five days. Dr. Prat advised that he assessed the appellant on the day after his last dose and observed that the appellant's mental status had changed. In his opinion, the appellant was not fully psychotic, but he was irritable and oppositional. Dr. Prat stated that the appellant's presentation showed precursive signs of a potential psychotic relapse. Dr. Prat re-assessed him the next day and the appellant's mental status had returned to his baseline, there was no oppositional behaviour or irritability.

[10] It was Dr. Prat's opinion that the recent events with respect to the appellant's relapses with marijuana use demonstrated conclusively that marijuana has a negative impact on his mental health. Further, that if the appellant used lots of regular cannabis, even within a short period of time, he would become floridly psychotic and require readmission. The return of those symptoms would lead to impulsivity, poor judgment and an inability to conform his conduct, leading to conflict with other individuals and possible further interaction with the law. He concluded that the appellant is at much greater risk for engaging in impulsive, aggressive behaviour and the potential for assaultive behaviour remains even when his mental illness is chemically treated. The risk continues because of the destabilizing effect that marijuana has on his mental state.

[11] The appellant argues that the Board erred in finding he constitutes a significant threat to the safety of the public and by failing to conduct a proper analysis and give reasons for the finding of significant risk.

[12] We do not agree. The treatment team including Dr. Prat were unanimous in their opinion that the appellant remains a significant risk.

[13] In its reasons the Board reviewed the risk summary contained in the Hospital Report and recited relevant portions at para. 7 of its reasons and in particular:

Mr. Simopoulos presents with several risk factors, which include his psychotic disorder, his active substance use disorder, and his lack of prosocial behaviour and motivation. Based on the above, I am of the clinical opinion that Mr. Simopoulos remains a risk for the safety of the public. Indeed, Mr. Simopoulos remains at risk for becoming psychotic if he does not manage to stop using cannabis. If Mr. Simopoulos were to become psychotic, he would require rapid admission to the hospital and would unlikely cooperate with staff, as per his past psychiatric history. Therefore, it is my clinical opinion that Mr. Simopoulos' risk can be managed on a Detention Order in a Forensic General Unit, with a community living provision in his disposition.

[14] Despite the hospital's recommendation for a continued detention order, the Board was of the view that in all the circumstances, the appellant's care could be managed through the terms of a conditional discharge – which we note was the alternative relief requested by the appellant before the Board.

[15] Its decision in finding that the appellant remained a significant risk to the safety of the public is not unreasonable. It was the unanimous view of the treatment team and of Dr. Prat. For the reasons outlined above they were of the view that the appellant's continued use of marijuana and his intention to continue its use rendered him a significant threat. As the Board noted at para. 13 of its reasons:

Dr. Prat confirmed that the use of marijuana was central to the significant threat issue and noted that this has been a constant for Mr. Simopoulos, despite efforts by the hospital to deal with the issue.

And at para. 14:

Dr. Prat confirmed that when Mr. Simopoulos was using marijuana during the summer, there had been a noticeable change in his mental status.

[16] While the reasons of the Board could be improved upon, on the whole it is clear that they reviewed the evidence and accepted the opinion of the treatment team and Dr. Prat that the appellant remains a significant risk because of his continued use of marijuana and his refusal to discontinue its use.

[17] Their decision is reasonable and there is no basis to interfere with the disposition.

[18] It is to be hoped that the appellant will be persuaded to once again participate in a substance abuse prevention program to continue the progress he was making before his discharge into the community. The Board was hopeful that he would do so and hence their order provided for a pre-hearing conference to determine whether a six-month review would be warranted.

Disposition

[19] The appeal is dismissed.

"J. MacFarland J.A."

"David Watt J.A."

"David M. Paciocco J.A."