Starson (Re), 2011 ONCA 169

CITATION: Starson (Re), 2011 ONCA 169

DATE: 20110303

DOCKET: C51696

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

IN THE MATTER OF: Professor Scott Starson a.k.a. Scott Schutzman

Professor Starson, acting in person

Anita Szigeti, as amicus curiae

Holly Loubert, for the Attorney General

Janice E. Blackburn, for the Centre for Addiction and Mental Health

Heard: September 23, 2010

On appeal from the decision of the Ontario Review Board, dated January 15, 2010.

By the Court:

[1] The appellant, Professor Scott Starson, appeals the disposition of the Ontario Review Board (ORB). In that disposition, rather than granting the appellant the conditional or absolute discharge that he sought, the ORB ordered his continued detention at the Centre for Addiction and Mental Health (CAMH or the hospital), albeit with a transfer from medium to minimum security. The ORB’s disposition also provided the appellant with the potential to live in the community in accommodation approved by the person in charge of the hospital.

[2] The appellant had been detained in various mental health facilities since he was found not criminally responsible in November 1998, and had been the subject of numerous ORB reviews and dispositions.

[3] While exceptionally gifted in science, particularly physics, Professor Starson unfortunately suffers from a condition identified as schizoaffective disorder. His disorder is marked by grandiose delusions and auditory hallucinations, which have sometimes resulted in threatening behaviour. Initially, the appellant refused treatment. Later, litigation ensued concerning his capacity to make treatment decisions. In the meantime, the appellant’s condition deteriorated markedly. Finally, the appellant was declared incapable of consenting to treatment in 2005. He was treated with anti-psychotic medication. His condition improved dramatically.

[4] Since that improvement, the appellant has been permitted to live in the community from time to time. However, on each occasion, his illness became unmanageable and he was required to return to hospital. The appellant’s continuing difficulties at the time of the hearing appeared to stem from the hospital’s challenges in finding him the appropriate dosage of the most effective medication with the least side effects.

[5] In this appeal, the appellant initially challenged the Board’s refusal to grant him either a conditional or an absolute discharge. However, at the opening of argument, the appellant abandoned his grounds of appeal regarding a conditional discharge and proceeded only in regard to the Board’s refusal to grant him an absolute discharge. Primarily, the appellant argued that an absolute discharge was the appropriate disposition in fact and in law because he believed that he would soon be presenting lectures and undertaking employment at a U.S. university.

[6] Despite the strength of the appellant’s belief, in our view, based on the circumstances at the time of the hearing in December 2009, the Board reasonably concluded that the appellant presented a “significant threat”. After balancing the twin goals of public safety with fair treatment of the appellant, the Board also reasonably concluded that his continued detention was the “least onerous and least restrictive” disposition available.

[7] The Board provided comprehensive reasons explaining its conclusions, which were supported by the evidence. At the time, even though his medication had been increased, the appellant continued to suffer from delusions. Importantly, the appellant’s delusions were historically the source of his problematic behaviour. In addition, in light of the challenges in finding a therapeutic dosage for the appellant’s symptoms, as well as the failure of the then prescribed medication to have a continuing positive effect, the hospital planned a consultation regarding the appellant’s medication. There were concerns that potential changes in medication could result in the appellant’s destabilization. Accordingly, his reaction would require careful monitoring.

[8] In any event, the appellant’s general condition required monitoring. This was because, even though the appellant had evidenced promising stability since April 2009, he had suffered a brief period of decompensation in October 2009 in reaction to an increase in his restrictions. That decompensation included threatening behaviour. While the appellant appeared to stabilize again in the few weeks prior to the December hearing, he had not done so to the extent of taking full advantage of the grounds and community privileges that were available to him. Given the overall circumstances, there was concern that the appellant’s condition could again suddenly and unpredictably deteriorate.

[9] Thus, there were ample reasons to support the ORB’s disposition of continued detention.

[10] Despite the appellant’s withdrawal of the conditional discharge aspect of his appeal, amicus curiae sought to advance an argument arising from s. 672.55 of the Criminal Code concerning whether a person such as the appellant, who has been found incapable of making treatment decisions under the Health Care Consent Act, S.O. 1996, c. 2, Sched. A, may nonetheless “consent” to a term in that person’s conditional discharge that would require compliance with treatment. As well, amicus curiae sought to pursue an argument concerning the availability of provisions in the Mental Health Act, R.S.O. 1990, c. M. 7 as relevant to the discharge argument.

[11] We declined to hear amicus curiae’s argument on these points for two reasons. First, as we have said, the appellant has abandoned his appeal of the disposition to the extent the ORB refused him a conditional discharge. Second, since the Board concluded that there was no “air of reality” to the appellant’s conditional discharge, it saw no need to evaluate whether the appellant’s “consent to treatment under a conditional discharge order has any meaning in law.” Similarly, the Board saw no need to consider the application of the Mental Health Act provisions. In our view, the proposed legal arguments are not raised on the facts of this case, particularly given the significant body of evidence that supported the appellant’s continued detention at the time of the hearing and the rejection of a discharge as a potential disposition.

[12] That said, during argument, we expressed concern about the apparent delay in proceeding with the appellant’s outstanding medication consultation. In response, counsel for the hospital assured the court that the panel conducting the next ORB review would be presented with the results of the consultation, including recommendations that may permit the appellant’s illness to be managed while he lives in the community. This would provide the next panel with information important for the determination of an appropriate disposition.

[13] In the result, the appeal must be dismissed.

RELEASED: Mar 3, 2011 “K. Feldman J.A.” “KF” “S.E. Lang J.A.” “H.S. LaForme J.A.”