DATE: 20040310

DOCKET: C40676

COURT OF APPEAL FOR ONTARIO

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

B E T W E E N :

Scott Starson (Appellant)

• and -

HER MAJESTY THE QUEEN (Respondent)

In Person Anita Szigeti, amicus curiae Riun Shandler, for the respondent

Heard: February 13, 2004

On appeal from the disposition of the Ontario Review Board made on August 28, 2003.

ROSENBERG J.A.:

[1] The appellant appeals from the disposition of the Ontario Review Board on August 28, 2003 that he continue to be detained at the medium secure unit of the Royal Ottawa Health Care Group. The appellant submits that the findings of the Board, that he represents a significant threat to the safety of the public and that the least restrictive and onerous disposition is to continue his detention at the Royal Ottawa Hospital, are unreasonable. Ms. Szigeti, amicus curiae, raises an additional ground concerning the fairness of the process before the Board. For the following reasons, I would dismiss the appeal.

THE FACTS

[2] On November 24, 1998, the appellant was found not criminally responsible on account of mental disorder on two counts of threatening. He has been detained in a hospital since that time. Prior to the hearing that resulted in the August 28, 2003 disposition, the appellant was held on the basis of a disposition made October 10, 2002. Pursuant to that disposition, it was ordered that the appellant continue to be detained but that he be transferred from the maximum security Oak Ridge Division of the Mental Health Centre, Penetanguishene to a medium secure unit of the Royal Ottawa Health Care Group. At that time, the Board pointed out the difficulty in dealing with the appellant’s case. They concluded their reasons for the October 10, 2002 disposition with the following statement:

The Board can’t accept that the system outlined in Part XX.I of the Criminal Code is serving Professor Starson as it is intended to, or in any event, very well. Given the words of the Chief Justice [in Winko v. British Columbia (Forensic Psychiatric Institute) infra], it would not appear that the system has any room in which to deal with persons who are treatment resistant either because of the nature of their disorder or the absence of consent.…

Professor Starson’s current position can be described as one in which he is standing within the system with his rights in his hand.

The Board concludes that the accused remains a significant threat to the safety of the public by reason of mental disorder and, accordingly, pursuant to the provisions of section 672.54, after considering the factors therein outlined, that the least onerous and least restrictive disposition is that Professor Starson be detained. It is the Board’s further conclusion that an appropriate condition to be attached to that detainment is that he be detained at the Royal Ottawa Health Care Group, Ottawa, Ontario, until the further disposition of the Board. It is the intention of the Board to conduct an annual review hearing within a period of seven months from the date upon which the accused is transferred to the Royal Ottawa Health Care Group. The Board also concludes that it is appropriate that during his detainment at the Royal Ottawa Health Care Group, that Professor Starson come under the direct supervision of Dr. John Bradford and that Dr. John Bradford advise the Board of his assessment of the condition of Professor Starson within three months of the date upon which he is admitted to the Royal Ottawa Health Care Group.

[3] The appellant’s interaction with the criminal justice system began with the formal onset of his mental disorder in approximately 1985. Since that time he has been convicted on numerous occasions. With few exceptions, the convictions are for uttering threats or making harassing telephone calls. Since 1985, he has been admitted to a number of hospitals in Canada and the United States. There have been a number of psychiatric diagnoses for his condition. Until recently, the operating diagnosis was bipolar affective disorder. The current diagnosis is schizoaffective disorder. In the most recent Reasons for Disposition of the Board, his psychiatric history is described as consisting of “poor insight, medication non-compliance, and a tendency to become belligerent, aggressive, and threatening, in instances where his wishes were not met or his will thwarted”. When he was initially found not criminally responsible he was detained at the Centre for Addiction and Mental Health in Toronto. Following a number of threats to staff, he was transferred to Penetanguishene. He was transferred to the Royal Ottawa Hospital on March 26, 2003 in accordance with the October 2002 disposition.

[4] A special issue with this appellant is his refusal to take treatment. In December 1998, he was declared incompetent to consent to treatment. That matter was reviewed by the Consent and Capacity Board and eventually by the courts resulting in the decision of the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722. The Supreme Court upheld the decision of Molloy J. of the Superior Court of Justice and of this court that the appellant was capable of consenting (or refusing to consent) to treatment. The decision of the Supreme Court was released in June of 2003. In April 2003, Dr. John Bradford, the appellant’s attending psychiatrist, had evaluated the appellant and declared him incapable. While Dr. Bradford’s testimony at the hearing was less than clear on this point, it would seem that he accepts the subsequent decision of the Supreme Court of Canada, as there has been no further attempt to treat the appellant, who continues to refuse treatment for his mental disorder.

[5] Despite the lack of treatment, since his transfer to the Royal Ottawa Hospital the appellant’s condition seems to have improved. Dr. Bradford attributes the apparent improvement to the less structured setting of the Royal Ottawa Hospital. Dr. Bradford testified that the appellant would be threatening and intimidating when there was any talk of restrictions, such as when there were restrictions placed on telephone calls or when Dr. Bradford turned down the appellant’s request for medical marijuana. However, Dr. Bradford testified that in the short time before the Board hearing, the appellant had engaged in minimal threatening or intimidating behaviour because the staff had left the appellant alone as much as possible.

[6] Dr. Bradford would have a number of concerns if the appellant were to be placed in the community:

• The type of major mental illness that the appellant suffers is associated with a significantly higher risk of physical violence than the general population;
• If released into the community, the appellant would be able to access marijuana, the use of which increases the risk of physical violence for persons suffering from this type of illness; and
• The appellant is driven by his delusional beliefs that allow him to feel empowered to order things, order people around and have his demands met; if people were to stand in his way, he would become threatening and intimidating.

[7] The Board’s conclusions are as follows:

The Board has carefully considered all of the information presented, viva voce and documentary, in Starson’s case. Starson suffers from a serious ongoing major mental disorder, namely schizoaffective disorder. The onset of that illness is coincidental with a number of encounters Starson has had with the criminal justice system; and the preponderance of these encounters involves serious threats made by Starson, which were not just off-putting or of a nuisance nature. Those threats have continued until recent times, albeit they are reportedly of lesser severity over the last number of months Starson has been a resident of the Royal Ottawa Hospital.

Dr. Bradford’s review of Starson’s risk makes clear that he is at substantial risk for threatening and aggressive behaviour, both within the hospital and in the community, if strict controls are not kept in place.

Based on all the evidence made available to the Board, it has no difficulty arriving at an affirmative view that Starson continues to represent a significant threat to the safety of the public, and it does so unanimously.

The Board concludes that the least restrictive and onerous Disposition is to continue Starson’s current order with the proviso that he be allowed staff accompanied access to the community, and directly supervised access to the hospital and its grounds. The Board anticipates that greater access to the hospital and its grounds will be afforded to Starson if indeed he is transferred to the parallel secure (medium) unit at the Brockville branch of the Royal Ottawa Health Care Group. Notably, Starson was agreeable to that approach.

ANALYSIS

The Procedural Issue

[8] The appellant’s hearing before the Ontario Review Board was originally scheduled for July 4, 2003. At that time, the appellant was not represented by counsel and did not want counsel. The Board observed that he was “clearly very ill” and that “[h]e was unable to remain focused on the issue before the board and was rambling and irrational in his submissions.” Accordingly, the Board appointed counsel for the appellant, exercising its power under s. 672.5(8)(b) of the Criminal Code, R.S.C. 1985, c. C-46, and adjourned the hearing to August 20, 2003.

[9] On August 20, 2003, Mr. M. Davies appeared as appointed counsel for the appellant. The appellant did not want Mr. Davies, or any lawyer, to act for him. It was apparent that the appellant’s condition had improved since July 4th. It was his view that he needed to act for himself so that the truth would come out. He was, however, agreeable to have Mr. Davies act as amicus curiae, as were all the other parties. The Board adopted this procedure.

[10] Before this court, Ms. Szigeti raised the question of the Board’s power to appoint amicus curiae. She also submitted that the appointment of amicus contributed to an unfair proceeding. I do not intend to address the first question; the issue was not raised by the appellant in this court, and the Board adopted the procedure it did with the consent of all parties and in an effort to ensure that the appellant had a fair hearing while respecting his wishes to represent himself. More importantly, I am satisfied that the appellant did have a fair hearing and that the appellant’s rights were not impaired because of the presence and intervention of amicus before the Board.

[11] On the question of fairness of the process, Ms. Szigeti’s main concern was that because of the interplay between the appellant and Mr. Davies, important issues were not properly probed. In discussing the role of amicus in questioning Dr. Bradford, the Chairperson told counsel:

But in the circumstances and given the informality of our process and also given what’s at stake over here, we’ll in the circumstance allow you to ask questions bearing in mind Mr. Dzioba’s [Crown counsel] caution around that. It wouldn’t be in anyone’s interest to have you simply revisit areas that Professor Starson has already explored with Dr. Bradford.

[12] In my view, this direction did not prevent Mr. Davies from raising important issues in the proceedings and did not prevent him from cross-examining Dr. Bradford on matters that had not been adequately explored by the appellant in his questioning. Thus, while the Chairperson asked counsel to bear in mind Crown counsel’s “caution”, Crown counsel had made it clear that he felt it was the role of amicus to raise those issues that in the Board’s opinion were relevant and “which ought to be perhaps either explored or more fully elaborated”. In the result, Professor Starson’s cross-examination of Dr. Bradford covers sixteen pages of the transcript. Mr. Davies’ cross-examination covers thirty pages. The cross-examination canvassed the important issues before the Board, including the basis for Dr. Bradford’s opinion that persons with the appellant’s illness are at a greater risk to commit acts of violence; the relationship between cannabis use and violence in persons with this disorder; the circumstances under which the appellant was being detained; the fact that he had not had to be physically restrained since coming to the Royal Ottawa Hospital; the fact that there had been a change in his behaviour since coming to the Hospital; the fact that he had responded appropriately to Dr. Bradford; the question of treatment and the impact of the decision of the Supreme Court of Canada; the progress of the disorder; and the options for greater privileges, including making different arrangements at the Brockville campus of the Royal Ottawa Hospital.

[13] After the questioning by amicus, members of the Board asked Dr. Bradford a number of questions, particularly directed to the issue of risk to the safety of the public and the appellant’s behaviour in the hospital.

[14] The role of the Board was described by the Supreme Court in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 62:

The proceeding before the court or Review Board is not adversarial. If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision.

[15] In my view, with the assistance of amicus curiae, the Board fulfilled its duty to ensure that it had the evidence necessary to make its decision. Ms. Szigeti suggested that there was not sufficient probing of Dr. Bradford’s testimony that the appellant was threatening and intimidating. That is not my view of the proceedings. That issue was dealt with by the appellant in his questioning and by Mr. Davies. By the end of the hearing, there could have been no doubt that whatever had been the case in the past, most recently the appellant’s behaviour had improved so that as Dr. Bradford put it, “any kind of threats or intimidating behaviour has been very low key if not at all”. The critical question, however, was the reason for this change. Mr. Davies and the Board examined Dr. Bradford on this issue. That examination established that the reason for the change was not due to any change in the progress of the appellant’s illness but a consequence of a “hands-off” approach by Dr. Bradford and the Royal Ottawa Hospital staff.

[16] Ms. Szigeti pointed out that at the opening of the appellant’s cross-examination of Dr. Bradford, the appellant stated that had he known Mr. Davies was going to be amicus curiae, he “would have a lot of this more prepared”. A dialogue then ensued between the appellant and the Chairperson about the use that could be made of Molloy J.’s reasons in Starson v. Swayze, reported at [1999] O.J. No. 4483.[^1] The Chairperson pointed out to the appellant that he would have an opportunity to present evidence later but this was his opportunity to cross-examine Dr. Bradford. He was also told that he could offer the reasons later. The appellant understood and questioned Dr. Bradford. The appellant did testify later but did not attempt to present Molloy J.’s reasons or any of the other material from that hearing.

[17] In my view, it has not been shown that the change in status of Mr. Davies from appointed counsel to amicus affected the appellant’s ability to present evidence. It must be remembered that it was the appellant who precipitated the change because he did not want counsel. At that point, the alternatives were to force counsel on the appellant or simply permit Mr. Davies to withdraw. The former was contrary to what the appellant wanted. There is nothing to indicate that the appellant was incapable of making the choice not to have counsel. If Mr. Davies simply withdrew, the appellant would be in no better position than he was with amicus. To the contrary, the presence of amicus assisted in exploring the relevant issues.

[18] Finally, Ms. Szigeti points out that during the appellant’s testimony, he indicated that he wanted to call witnesses, apparently by teleconference. For example, the appellant had wanted to call one witness, Dennis Douse, who had been a friend for thirty years. There was no indication, however, that this or any other witness had any relevant evidence to give. The appellant also stated that he wanted to refer to papers he had written. Again, there was nothing to show that this material would have been relevant to the Board’s determination. No attempt was made in this court to adduce fresh evidence.

[19] I am satisfied that the appellant had a fair hearing before the Board and that the participation by amicus curiae contributed to that process.

Dangerousness

[20] The appellant’s principal submission on the appeal was that the Board erred in finding that he continues to pose a significant threat to the safety of the public. Before examining this issue, it is necessary to note the standard of review on an appeal from a disposition by the Ontario Review Board. The Supreme Court of Canada most recently addressed that question in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. Absent an error in law or an allegation of a miscarriage of justice, the standard of review of the decision is reasonableness simpliciter. The Court described that standard at para. 33:

The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board's risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination…. If the Board's decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene.

[21] In my view, the Board’s risk assessment is not unreasonable. I have set out the Board’s reasons for its determination above. In summary, they accepted Dr. Bradford’s opinion that without strict controls, the appellant would represent a significant threat to the safety of the public. The Board extensively and accurately reviewed Dr. Bradford’s testimony and his report. The appellant submits that the facts are that there have been no threats recently and that he has never physically injured anyone. The Board was well aware of this. For example, the Board accurately summarized the evidence, in part, as follows:

Dr. Bradford is of the clear view that Starson continues to represent a significant threat to the safety of the public. Although Starson has not demonstrated any physical aggression over the course of his stay at the Royal Ottawa Hospital, he has acted in a psychologically abusive and threatening manner. Notably, Starson’s history is replete with examples of him making severe threats that have no doubt been associated with a substantial risk of psychological harm to the victim of that threat.

Dr. Bradford, in his oral testimony, acknowledged some measure of behavioural improvement on Starson’s part. Although he remains actively psychotic and evidently harbours the same delusional belief system as he has in the past, there has been no effort on Starson’s part to act out any of his delusions, nor does he seem to be as affectively charged in relation to those beliefs as he had been in the past.

[22] It was open to the Board to accept that since the appellant suffers from a major mental illness that had not been treated, the explanation for the recent improvement in the appellant’s behaviour was the hands-off approach at the Royal Ottawa Hospital. Accordingly, it was reasonable to conclude that if the appellant was not kept closely confined and monitored, he would return to his threatening and intimidating behaviour. It seems inevitable, given the nature of the appellant’s disorder, that if the appellant were to come into contact with other persons who would not accede to his unreasonable demands, he would return to his prior behaviour.

[23] Finally, it must be remembered that harm to society includes psychological harm. As was said in Winko, at para. 62:

A "significant threat to the safety of the public" means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.

[24] Thus, the fact that, to date, the appellant has never physically harmed anyone does not render the Board’s decision unreasonable. There was a body of evidence to support a finding that the appellant continued to represent a real risk of serious psychological harm to members of the public by his threatening behaviour, which in the past has included threats of death. As the Court held in Winko, at para. 61:

Appellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a "significant threat" to public safety.

[25] I would not give effect to this ground of appeal.

Least Onerous

[26] The appellant submits that even if this court were to uphold the Board’s decision that he poses a significant threat to public safety, his continued detention in the hospital is not the least onerous order. McLachlin J. summarized the Board’s role at para. 62 of Winko:

If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives. It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions.

When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.

[27] At the hearing, the appellant presented a plan, of sorts, for his discharge from hospital on conditions. In answer to questions from amicus, the appellant stated that he would find a residence in Toronto and be an outpatient at the Queen Street and work with an unnamed psychiatrist with whom he has a rapport and who would not force him to accept treatment with drugs. He also stated that he would be willing to report by telephone every four hours.

[28] Dr. Bradford indicated that the Hospital would be agreeable to transferring the appellant to another medium secure facility in the Royal Ottawa Health Care Group, the Brockville campus, so that the appellant could have greater access to the community. The appellant agreed that this would be fairer to him, and stated that he would be willing to cooperate so that he could slowly move back to the community.

[29] As Dr. Bradford pointed out, the appellant had only recently been transferred to a medium security institution from the maximum security facility at Penetanguishene. He saw the next logical step as permitting the appellant to have greater supervised access to the community:

[Y]ou’ve got somebody whose come from maximum security where they’ve been contained in a period of time, come to a medium security where I think that there has been a lessening of tension over some period of time and I’ve explained why because of the unstructured approach. Is that positive? Yes, I think it is. There’s been no isolation rooms, no chemical restraint but progress is very, very slow. And you know, other things have occurred. So yes, I mean for me, the next logical step would be – I mean the whole thing is geared towards establishing better rapport with Starson and hopefully, out of that treatment progress would be made. And I think that that’s something which you know, we’ll continue to work on. And at this moment in time, given his mental status, the only thing that I can see in the foreseeable future is direct supervision off the unit.

[30] The Board addressed the issue of least restrictive and onerous disposition. It concluded that the appellant’s continued detention in hospital, with the proviso that he be allowed staff-accompanied access to the community and directly supervised access to the hospital and its grounds, was the least restrictive disposition possible. The Board also anticipated that this greater access would be afforded to the appellant if he were transferred to the Brockville campus.

[31] I cannot say that the Board’s disposition was unreasonable bearing in mind the factors it had to consider, namely, the appellant’s reintegration into society, his mental status and his needs. As was said in Owen at para. 45, “the Board's decision was within a reasonable range of outcomes”. I would not give effect to this ground of appeal.

DISPOSITION

[32] Accordingly, I would dismiss the appeal. I wish to thank counsel for their assistance in this appeal and especially Ms. Szigeti who acted as amicus curiae.

Signed: “M. Rosenberg J.A.”

“I agree M. Moldaver J.A.”

“I agree Janet Simmons J.A.”

RELEASED: “MR” MARCH 10, 2004

[^1]: In her factum, Ms. Szigeti made reference to these reasons and in particular certain factual findings made by Molloy J. Crown counsel objected to reference to this material, since he did not have proper notice that this was material to which Ms. Szigeti intended to refer. It was not part of the record before the Board. We adjourned briefly to permit Ms. Szigeti to confer with the appellant. We made it clear that if the appellant wished to refer to the proceedings before Molloy J. he would be given the opportunity to do so, but that the appeal could not proceed at this time. The appellant stated that he wished to proceed with the appeal at this time without reference to the proceedings before Molloy J.