Court File and Parties

CITATION: R. v. Starson, 2009 ONCA 826

DATE: 20091125

DOCKET: C50405

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty, Feldman JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Professor Scott Starson a.k.a. Scott Schutzman and the Centre for Addiction and Mental Health

Appellant

Professor Scott Starson, in person Ms. Anita Szigeti, Amicus Curiae

Ms. Leslie Paine, for the respondent Ms. Janice E. Blackburn, for the Centre for Addiction and Mental Health

Heard: November 23, 2009

On appeal from the disposition of the Ontario Review Board dated April 2, 2009.

Endorsement

[1] The appellant appeals from the disposition of the Ontario Review Board dated April 2, 2009, which ordered that the appellant be detained at the medium secure unit at the Centre for Addiction and Mental Health, Queen Street Site, pursuant to certain terms and conditions and allowing for a variety of limited potential privileges, up to and including entering the community of Toronto in the company of staff or approved persons.

[2] The appellant appeared on the appeal representing himself. Amicus curiae also made submissions on behalf of the appellant. Both counsel for the hospital and for the Attorney General also made submissions.

[3] The appellant sought an absolute discharge, or in the alternative a conditional discharge, and in the further alternative a minimum security order so that he can go back to the community and continue his work in high level physics.

[4] Amicus challenged the failure of the Board to order a hybrid disposition that would have allowed the hospital to move the appellant from medium to minimum security at its discretion. Amicus argued that as all of the psychiatrists testified that they recommended this disposition and that it was warranted based on the appellant’s prognosis of future improvement, the Board’s failure to make the order was a breach of the requirement to make the least onerous and least restrictive order. Counsel for the hospital made a similar submission. Crown counsel sought to uphold the Board’s disposition.

[5] The Board’s disposition was based on the following conclusion at p. 12 of the reasons:

The Board is not persuaded by the evidence put forward at this hearing that there is a good foundation of evidence to justify a hybrid order placing the accused on a medium secure unit and delegating the responsibility of a subsequent move to the person in charge at CAMH.

[6] The Board, as an expert tribunal, was entitled to reject the evidence of the psychiatrists and form its own conclusions regarding the efficacy of a hybrid order in the case of the appellant and whether such an order would protect the public, based on the record before it. The Board was no doubt concerned that the relatively short period of time (less than a month) over which the appellant had shown significant improvement did not provide an adequate basis for the hybrid order.

[7] However, the Board went on to state:

It is respectfully suggested that if the accused makes the progress hoped for by his caregivers to the point that such a move can be undertaken that an early review be requested in this regard.

[8] In oral submissions, counsel advised at the request of the court for an update since the hearing, that in fact, in September 2009 the hospital did request an early review in order to seek a move to minimum security for the appellant. However, to date no hearing has been scheduled by the Board.

[9] We often see such suggestions in orders of the Board. Indeed, this court itself from time to time may include a similar suggestion in its own reasons. It is essential that this suggestion, which forms part of the disposition by the board or this court, be acted upon expeditiously in every case. Otherwise, it becomes effectively meaningless when review hearings are required to be held every 12 months in any event.

[10] In the result, the appeal from the disposition of the Board is dismissed but the Board is ordered to convene forthwith the early review hearing requested in September and, in any event, within 30 days of the release of these reasons.

Signed: "Winkler C.J.O."

"Doherty J.A."

"K. Feldman J.A."