





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 ORBs 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 appellants 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 appellants continuing difficulties at
    the time of the hearing appeared to stem from the hospitals 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 Boards 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 Boards 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 appellants 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 appellants delusions were
    historically the source of his problematic behaviour.  In addition, in light of the challenges in
    finding a therapeutic dosage for the appellants symptoms, as well as the
    failure of the then prescribed medication to have a continuing positive effect,
    the hospital planned a consultation regarding the appellants medication.  There were concerns that potential changes in
    medication could result in the appellants destabilization.  Accordingly, his reaction would require careful
    monitoring.

[8]

In any event, the appellants 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 appellants condition could again suddenly and unpredictably
    deteriorate.

[9]

Thus, there were ample reasons to support the
    ORBs disposition of continued detention.

[10]

Despite the appellants 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 persons 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 curiaes
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 appellants
    conditional discharge, it saw no need to evaluate whether the appellants
    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
    appellants 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 appellants 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 appellants 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.


