Starz, Re, 2015 ONCA 318

JurisdictionOntario
JudgeGillese,Lauwers,Speyer
Neutral Citation2015 ONCA 318
Citation2015 ONCA 318,(2015), 334 O.A.C. 218 (CA),334 OAC 218,(2015), 334 OAC 218 (CA),334 O.A.C. 218
Date08 May 2015
CourtCourt of Appeal (Ontario)

Starz, Re (2015), 334 O.A.C. 218 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MY.007

In The Matter Of: Glen Michael Starz

An Appeal under Part XX.1 of the Code

(C57133; C57915; 2015 ONCA 318)

Indexed As: Starz, Re

Ontario Court of Appeal

Gillese and Lauwers, JJ.A., and Speyer, J.(ad hoc)

May 8, 2015.

Summary:

Starz, found not criminally responsible for a 2008 assault on account of mental disorder, was under the jurisdiction of the Ontario Review Board. The Board failed to conduct Starz's 2012 annual review hearing within the 12 month period mandated by s. 672.81(1) of the Criminal Code. Starz brought a Charter application to the Board, alleging that the delay in his annual review violated his s. 7 right to life, liberty and security of the person. Starz sought costs, damages and declaratory relief under s. 24(1). The Board dismissed the application, finding that the delay did not violate s. 7 of the Charter and that it lacked jurisdiction to grant the relief sought under s. 24(1). Starz appealed the Charter decision.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 659

Liberty - Limitations on - Committal of or disposition re accused with mental disorder - [See Criminal Law - Topic 93.83 ].

Civil Rights - Topic 1392

Security of the person - Health care (incl. mental health) - Committal or disposition - [See Criminal Law - Topic 93.83 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 8380.7 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - The Ontario Review Board held that it had no jurisdiction to award damages, costs or declaratory relief under s. 24(1) of the Charter as a remedy for a Charter breach - The Ontario Court of Appeal agreed that such jurisdiction was not supported by the Board's mandate, structure or functions - See paragraphs 88 to 115.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See Civil Rights - Topic 8380.7 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Practice - Topic 8858 ].

Criminal Law - Topic 93.83

General principles - Mental disorder - Dispositions by court or review board - Discharge or detention subject to conditions - Starz was found not criminally responsible for assault on account of mental disorder - An annual review hearing before the Ontario Review Board was scheduled for 74 days after the one year time period mandated by s. 672.81(1) of the Criminal Code expired (hearing actually held 104 days after the one year period expired) - Accordingly, during those 104 days, the previous disposition (conditional discharge with conditions) continued to apply until replaced by a new disposition (conditional discharge with slightly less onerous conditions) - The accused brought a Charter application alleging that the delay in holding his annual hearing violated his s. 7 Charter rights to liberty and security of the person - The Board dismissed the application - The Ontario Court of Appeal held that the Board did not err in finding no Charter violation - Starz's right to liberty and security of the person were not infringed by the delay - Any change in the conditions of Starz's conditional discharge were "minor" - Further, the impact of the delay on his psychological integrity was not sufficiently severe to constitute a restriction on his security of the person - The court also stated that the requirement of an annual review was not a stand-alone principle of fundamental justice - See paragraphs 38 to 87.

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - [See Civil Rights - Topic 8380.7 ].

Criminal Law - Topic 93.94

General principles - Mental disorder - Dispositions by court or review board - Jurisdiction and powers - At issue was the Ontario Review Board's jurisdiction to hear a Charter application separate from an annual review hearing - An annual review hearing and Charter application were scheduled to be heard by the Board on the same date, but the review hearing ran long and the Charter application was scheduled for a later date - The Ontario Court of Appeal held that the Board did not lose jurisdiction to hear the Charter application - First, the Board did not hear the Charter application as a stand-alone application - The Charter application remained part of the review hearing - The Board's issuance of its disposition at the review hearing did not cause it to lose jurisdiction over the Charter application - Further, since the Charter application decision was part of the review hearing, the court had jurisdiction under s. 672.72(1) of the Criminal Code to hear the appeal as the Charter decision was part of the Board's "disposition" flowing from the review hearing - See paragraphs 65 to 70.

Criminal Law - Topic 93.95

General principles - Mental disorder - Dispositions by court or review board - Appeals or judicial review - [See second Criminal Law - Topic 93.94 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - A not criminally responsible accused applied for Charter relief from the Ontario Review Board on the ground that the delay in holding his annual review hearing violated his s. 7 Charter rights - The Board found no Charter violation - The accused appealed - Before the appeal was heard, the accused received an absolute discharge and was no longer under the Board's jurisdiction - The Ontario Court of Appeal held that, assuming that the appeal was now moot, the court should exercise its discretion to hear the appeal where the appeal raised issues of importance for other not criminally responsible accused and the Board - The issues raised were generally evasive of review because review hearings were heard annually - See paragraphs 49 to 54.

Cases Noticed:

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 1].

Chaudry, Re (2015), 334 O.A.C. 200; 2015 ONCA 317, refd to. [para. 8].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 42].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 49].

Mazzei, Re, [2006] 1 S.C.R. 326; 346 N.R. 1; 222 B.C.A.C. 1; 368 W.A.C. 1; 2006 SCC 7, refd to. [para. 53].

Saikaley, Re (2012), 287 O.A.C. 200; 109 O.R.(3d) 262; 2012 ONCA 92, refd to. [para. 65].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 65].

Conway, Re (2012), 295 O.A.C. 88; 111 O.R.(3d) 605; 2012 ONCA 519, refd to. [para. 70].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 76].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201; 2004 SCC 20, refd to. [para. 77].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 80].

Harrison et al. v. Antonopoulos et al., [2002] O.T.C. 987; 62 O.R.(3d) 463 (Sup. Ct.), refd to. [para. 102].

Monks v. ING Insurance Co. of Canada, [2005] O.T.C. 513; 76 O.R.(3d) 146 (Sup. Ct.), refd to. [para. 102].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 106].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 108].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 118].

Runnalls, Re, [2013] O.A.C. Uned. 297; 107 W.C.B.(2d) 582; 2013 ONCA 386, refd to. [para. 123].

Robertson, Re, [2012] O.A.C. Uned. 748; 104 W.C.B.(2d) 702; 2012 ONCA 889, refd to. [para. 127].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.72(1) [para. 67]; sect. 672.81(1) [para. 15].

Authors and Works Noticed:

Fairley, H. Scott, Private Law Remedial Principles and the Charter: Can the Old Dog Wag his New Tail?, in Berryman, Jeffrey, ed., Remedies: Issues and Perspectives (1991), p. 323 [para. 103].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007 Supp.), pp. 40-52, 40-53 [para. 107].

Roach, Kent, Constitutional Remedies (2nd Ed.) (looseleaf), para. 12.370 [para. 103].

Sarna, Lazar, The Law of Declaratory Judgments (3rd Ed. 2007), p. 5 [para. 102, footnote 3].

Counsel:

Glen Michael Starz, appearing in person;

Jill R. Presser and Bernadette Saas, appearing as amicus curiae;

Janice Blackburn, for the respondent, the Person in Charge of the Centre for Addiction and Mental Healt;

G. Choi, for the respondent, the Attorney General of Ontario.

This appeal was heard on December 15-16, 2014, before Gillese and Lauwers, JJ.A., and Speyer, J.(ad hoc), of the Ontario Court of Appeal.

On May 8, 2015, Gillese, J.A., released the following judgment for the Court.

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17 practice notes
  • Table of cases
    • Canada
    • Irwin Books Mental Disorder and the Law. A Primer for Legal and Mental Health Professionals
    • June 24, 2017
    ...255, 260, 290 Solicitor-General v Dougherty, [2012] NZCA 405 ......................................................93 Starz (Re), 2015 ONCA 318 .................................................................................304, 305 Tarasoff v Regents of University of California, 17 Cal 3d......
  • Table of Cases
    • Canada
    • Irwin Books Annotated Ontario Mental Health Statutes - Fifth edition
    • June 28, 2022
    ...[1999] N.J. No 28 ........................................................................................................ 198 Re Starz, 2015 ONCA 318 ............................................................................................................................... 545 Referenc......
  • Canadian Charter of Rights and Freedoms
    • Canada
    • Irwin Books Annotated Ontario Mental Health Statutes - Fifth edition
    • June 28, 2022
    ...person who appears before it. Its jurisdiction does not extend to the kind of systemic, institutional orders sought here.” Re Starz , 2015 ONCA 318 — Starz brought his Charter application in the course of his annual review. The Ontario Review Board (ORB) did not lose jurisdiction over the C......
  • Les impasses theoriques et pratiques du Controle de constitutionnalite canadien.
    • Canada
    • McGill Law Journal Vol. 66 No. 3, March 2021
    • March 1, 2021
    ...No 655 au para 22, 43 Man R (2e) 288 (CA); R v Sarmales, supra note 110 au para 17; Nielsen, supra note 159 aux para 15-16; Starz (Re), 2015 ONCA 318 au para 103. (165) Ravndahl, supra note 163 au para 27. (166) [1895] 25 RCS 69 a la p 73, [1895] SCJ No 75. (167) Voir Gelinas, supra note 38......
  • Request a trial to view additional results
11 cases
  • Campbell (Re), 2018 ONCA 140
    • Canada
    • Court of Appeal (Ontario)
    • February 14, 2018
    ...s. 672.56(2) is likely to arise again. Having been fully argued, the court is well positioned to determine the legal issue: Starz (Re), 2015 ONCA 318, 125 O.R. (3d) 663, at paras. 53-54, leave to appeal refused, [2016] S.C.C.A. No. 459. I agree that mootness should not stand in the way. (c)......
  • Bacanora Minerals Ltd v Orr-Ewing (Estate), 2023 ABCA 139
    • Canada
    • Court of Appeal (Alberta)
    • April 26, 2023
    ...a “formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”: Starz (Re), 2015 ONCA 318 at para 102, leave to appeal to SCC refused, 37259 (26 January 2017); Declaratory Judgments at 6. Put differently, a declaration “confi......
  • E.S. v. Joannou, 2017 ONCA 655
    • Canada
    • Court of Appeal (Ontario)
    • August 17, 2017
    ...is likely that, as with the ORB, the Board would be found not to have the power to grant remedies such as costs or damages: see Re Starz, 2015 ONCA 318, 125 O.R. (3d) 663, and Re Chaudry, 2015 ONCA 317, 125 O.R. (3d) [91] When a tribunal is limited in the type of remedy it can grant pursuan......
  • Bacanora Minerals Ltd v Orr-Ewing (Estate),
    • Canada
    • Court of Appeal (Alberta)
    • April 26, 2023
    ...a “formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs”: Starz (Re), 2015 ONCA 318 at para 102, leave to appeal to SCC refused, 37259 (26 January 2017); Declaratory Judgments at 6. Put differently, a declaration “confi......
  • Request a trial to view additional results
2 firm's commentaries
  • Ontario Court Of Appeal Summaries (May 4 – 8, 2015)
    • Canada
    • Mondaq Canada
    • May 13, 2015
    ...interests, the Hospital would have legitimately expected to have been heard on the matter before the Board decided it. Starz (Re), 2015 ONCA 318 [Gillese and Lauwers JJ.A. and Speyer J. (ad Counsel: G. M. Starz, appearing in person J. R. Presser and B. Saad, appearing as amicus curiae J. Bl......
  • Court Of Appeal Summaries (July 20 To 24, 2020)
    • Canada
    • Mondaq Canada
    • July 31, 2020
    ...S.O. 2002, c. 24, Sched. B., s. 4, 5, 16(1)(a), 16(1)(c), 19(1)(a), Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Starz (Re), 2015 ONCA 318, 125 O.R. (3d) 663, Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, Peikut v. Romoli, 2020 ONCA 26, Alguire v. The Manufacturers......
4 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Mental Disorder and the Law. A Primer for Legal and Mental Health Professionals
    • June 24, 2017
    ...255, 260, 290 Solicitor-General v Dougherty, [2012] NZCA 405 ......................................................93 Starz (Re), 2015 ONCA 318 .................................................................................304, 305 Tarasoff v Regents of University of California, 17 Cal 3d......
  • Table of Cases
    • Canada
    • Irwin Books Annotated Ontario Mental Health Statutes - Fifth edition
    • June 28, 2022
    ...[1999] N.J. No 28 ........................................................................................................ 198 Re Starz, 2015 ONCA 318 ............................................................................................................................... 545 Referenc......
  • Canadian Charter of Rights and Freedoms
    • Canada
    • Irwin Books Annotated Ontario Mental Health Statutes - Fifth edition
    • June 28, 2022
    ...person who appears before it. Its jurisdiction does not extend to the kind of systemic, institutional orders sought here.” Re Starz , 2015 ONCA 318 — Starz brought his Charter application in the course of his annual review. The Ontario Review Board (ORB) did not lose jurisdiction over the C......
  • Les impasses theoriques et pratiques du Controle de constitutionnalite canadien.
    • Canada
    • McGill Law Journal Vol. 66 No. 3, March 2021
    • March 1, 2021
    ...No 655 au para 22, 43 Man R (2e) 288 (CA); R v Sarmales, supra note 110 au para 17; Nielsen, supra note 159 aux para 15-16; Starz (Re), 2015 ONCA 318 au para 103. (165) Ravndahl, supra note 163 au para 27. (166) [1895] 25 RCS 69 a la p 73, [1895] SCJ No 75. (167) Voir Gelinas, supra note 38......

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