



COURT OF APPEAL FOR ONTARIO

CITATION: Smethurst (Re), 2015 ONCA 649

DATE: 20150924

DOCKET: C58603

Doherty, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Smethurst

Appellant

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 Boards 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  That order has been superseded by an order made in February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.


