



COURT OF APPEAL FOR ONTARIO

CITATION: Simopoulos (Re), 2013 ONCA 702

DATE: 20131115

DOCKET: C56767

Feldman, Gillese and Tulloch JJ.A.

IN THE MATTER OF: MASON SIMOPOULOS

AN APPEAL UNDER PART XX.1 OF THE
CODE

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 appellants most current and complete medical
    information.

[6]

Having said that, the court feels it is important to draw the following
    points to the Boards 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] 2 S.C.R. 625.

[8]

We cannot overemphasize the importance of the Boards 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
    accuseds 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
    hospitals 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 hospitals 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.


