Court of Appeal for Ontario

Citation: Schutzman (Re), 2012 ONCA 229 Date: 2012-04-11 Docket: C54180

Before: Goudge, Feldman and Blair JJ.A.

In the Matter of: Scott J. Schutzman (a.k.a. Professor Starson)

An appeal under Part XX.1 of the Criminal Code

Counsel: Scott J. Schutzman (a.k.a. Professor Starson), appearing in person Anita Szigeti, amicus curiae Holly Loubert, for the respondent Janice Blackburn, person in charge of Centre for Addiction and Mental Health

Heard: March 30, 2012

On appeal against the disposition of the Ontario Review Board dated April 7, 2011.

Endorsement

[1] In our view, the conclusion reached by the Board that Professor Starson remained a significant threat to the safety of the public was entirely reasonable given the evidence before it. The order it made as a consequence is also reasonable.

[2] Amicus argues that the Board erred in saying nothing in its reasons to explain its rejection of a conditional discharge. That would have been a less restrictive outcome than the order made.

[3] We do not agree that this omission constitutes reversible error. The reasons of the Board describe the outcome it did reach. The evidence before it was that there was no air of reality to a disposition of a conditional discharge. Hence the trigger in R. v. Breitweiser, 2009 ONCA 784 was not met.

[4] The discussion at the hearing clearly shows that the Board was alive to the possibility of a conditional discharge. Viewed functionally and in that context, the Board’s reasons are sufficient to allow the necessary inference that a conditional discharge was rejected as not sufficiently protecting the public. This argument must therefore be dismissed.

[5] We would add however, that in our view, it would have been better if the Board’s reasons had more explicitly explained why a conditional discharge was rejected. In a case like this, where a less restrictive outcome is fully discussed at the hearing but not ordered, the person concerned should be able to understand clearly from the reasons themselves why it was rejected. That is what best maintains public confidence in the justice system.

"S.T. Goudge J.A."

"K. Feldman J.A."

"R.A. Blair J.A."