Administrative law – Prisons – Inmates Not Criminally Responsible for their crimes – Transfer of inmates – Public safety – Decisions of administrative tribunals – Review Board – Evidenciary issues – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter
R v. Starson,  O.J. No. 941, Ontario Court of Appeal, March 10, 2004, Rosenberg, Moldaver and Simmons JJ.A.
Starson’s interaction with the criminal justice system, involving convictions for uttering threats and making harassing phone calls, was coincident with the formal onset of his schizoaffective disorder for which he refused treatment. His right to refuse treatment was confirmed by the Supreme Court of Canada at  1 S.C.R. 722. No further attempts were made to treat Starson if he was not consenting.
Starson was transferred from a maximum security unit to a medium security unit at the Royal Ottawa Hospital, where he showed some improvement. His treating psychiatrist, Dr. Bradford, attributed the improvement to the less structured setting in which Starson did not feel the need to become threatening as often because fewer restrictions were placed on him. Dr. Bradford testified before the Board that Starson still posed a risk in the community due to his serious mental illness which was associated with a higher risk of physical violence.
The Board reviewed viva voce and documentary evidence and found that Starson was at substantial risk for threatening and aggressive behaviour if strict controls were not kept in place. The least onerous disposition was held to be continuing detention at the medium security level, but with increased directly supervised access to the community and hospital grounds.
At the Board’s review Starson declined to be represented by counsel, and so the Board appointed counsel as amicus curiae (“Mr. Davies”) with Starson’s consent. Ms. Szigeti, amicus curiae on the appeal, argued that the Board had inappropriately limited the scope of Mr. Davies’s cross‑examination of Dr. Bradford by indicating that he should not revisit the areas already explored by Starson himself. The Court held that this direction did not unduly limit the scope of cross‑examination, and cited the transcript length of 30 pages by Mr. Davies and 16 pages by Starson as support.
The role of the Board as described in Winko v. British Columbia (Forensic Psychiatric Institute),  2 S.C.R. 625 was referred to as follows:
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 the decision. (para. 14)
The assistance provided by Mr. Davies was held to fall under this reasoning.
Ms. Szigeti also pointed out that Starson had asked to call a witness by teleconference before the Board. The Court held that there was no indication given as to what relevant evidence this individual would give, and so the Board’s decision not to hear this evidence was appropriate.
The Court of Appeal held that a fair hearing before the Board had been given to Starson.
The Court reviewed the Board’s decision regarding Starson’s dangerousness on the standard of reasonableness simpliciter pursuant to the decision in R v. Owen,  1 S.C.R. 779, given that there was no error in law or allegation of miscarriage of justice. The Board’s decision was upheld, and the Court noted that harm to society could constitute psychological harm pursuant to the case of Winko, supra.
On the issue of whether the disposition was the least onerous one, the Court again upheld the Board’s finding, holding that it was, as mandated in the R v. Owen decision, “within a reasonable range of outcomes”. The appeal was dismissed.
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