Court File and Parties

Court of Appeal for Ontario Date: 20210420 Docket: C68632

Fairburn A.C.J.O., Doherty and Sossin JJ.A.

In the Matter of: Gary Robert Motuz

An Appeal Under Part XX.1 of the Code

Counsel: Dean Embry, for the appellant, Gary Robert Motuz Gerald Brienza, for the respondent, Attorney General of Ontario Julia Lefebvre, for the respondent, Person in Charge of Waypoint Centre for Mental Health Care

Heard and released orally: April 16, 2021 by video conference

On appeal from the disposition of the Ontario Review Board, dated July 13, 2020, with reasons dated August 12, 2020.

Reasons for Decision

[1] This is an appeal from the July 13, 2020 disposition of the Ontario Review Board (“Board”), imposing a detention order.

[2] On February 24, 2021, the Board convened the appellant’s annual hearing pursuant to s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, resulting in another detention order. The reasons for the most recent detention order were released on March 18, 2021. Those reasons are largely the same as the reasons released on August 12, 2020.

[3] As the July 13, 2020 disposition is no longer in effect, the parties were asked to provide written submissions on the question of mootness ahead of today’s hearing. They were also permitted to make oral submissions on the question of mootness this morning.

[4] All parties agree that the matter is moot.

[5] The appellant argues, though, that because the reasons for the current disposition are largely the same as the reasons for the now moot disposition, the March 18, 2021 reasons should simply be incorporated into the present appeal without the need for new or additional arguments.

[6] In oral submissions today, the Crown has taken the position that the matter is moot and should not be heard by this court without the benefit of a full record.

[7] The Person in Charge of Waypoint Centre for Mental Health Care agrees with the Crown that this court should not exercise its discretion to hear the appeal today.

[8] We agree that this appeal is moot, and we find that it should not be heard today.

[9] The appellant’s request is to attempt to turn an appeal from the old disposition into an appeal from the new disposition. To be clear, the new disposition has not been appealed from and there is no record before this court as it relates to the new disposition. On their face alone, the reasons for the new disposition demonstrate that things have changed to some extent between the two dispositions. Counsel are in agreement that, among other things, there has been a fairly recent decompensation over the winter. Not only are we without a transcript of the evidence upon which the February 24, 2021 disposition rests, but we are also without the most recent hospital report setting out the appellant’s progress and status between the July 13, 2020 disposition and the February 24, 2021 disposition.

[10] We decline to determine the merits of an appeal without an appropriate record, particularly an appeal that rests on the question of the reasonableness of the Board’s disposition.

[11] The appeal from the 2020 order is therefore dismissed as moot.

[12] If the appellant commences an appeal from the February 24, 2021 disposition, this court will endeavour to find as early a date as possible in the circumstances for the hearing of the appeal.

“Fairburn A.C.J.O.”

“Doherty J.A.”

“L. Sossin J.A.”