Denied appeal holds good news for Indigenous patients

By John L. Hill

Law360 Canada (October 25, 2023, 11:51 AM EDT) --
John L. Hill
John L. Hill
Ten years ago, Dakota Summers, an Indigenous man, was found not criminally responsible for possessing a weapon dangerous to the public peace, robbery, failure to comply with a probation order and possession of marijuana.

He has been diagnosed with schizophrenia. His cannabis use disorder and stimulant use disorder are in remission while in a closed environment. Summers was frustrated that he had been confined in a Hamilton psychiatric hospital. He wanted out. He went before the Ontario Review Board (ORB) and proposed that he be given an absolute discharge. His release plan was to live with his grandmother in Owen Sound, take his medications and find support in the Indigenous community.

There was a problem. Although grandmother would allow him to reside with her until he could find alternate accommodation, she could not guarantee he would take his medications as required. Indeed, he had pressured family members to state he no longer needed his meds. Summers had a history of non-compliance in that regard.

The ORB determined that Summers continued to be a significant threat. It based its conclusion on the opinions of his treating psychiatrists and hospital team. His past indicated significant psychiatric red flags such as partial treatment response, fluctuations in progress, flaring up of psychiatric symptoms, limited coping skills and irritable and aggressive behaviour.

The ORB believed the lack of insight into his illness and need for medication would lead to his ceasing to take his medications and result in decompensation into a state where he would be prone to commit further criminal acts.

Summers was disappointed with the ORB’s decision. He appealed to the Ontario Court of Appeal on Oct.  23, 2023. The three-judge panel delivered its decision the following day. It upheld the ORB decision, but the reasons provided some very good news for Indigenous patients such as Summers (Summers (Re) 2023 698).

As part of the ORB’s majority decision, it affirmed that Summers’ “connection to his culture is positive, and it seems to be having a beneficial effect.” Further, the ORB decision recognized that in order to apply Gladue principles (R. v. Gladue [1999] 1 S.C.R. 688), a more liberal approach to dealing with the patient’s condition was required. It urged his transfer to accommodation “anywhere in Ontario,” but in this case, most likely Owen Sound, where he could access housing and care options in consultation with appropriate mental health-care professionals in Owen Sound. Being in a community, he trusts and allowing him to call upon those customs, traditions, ceremonies and language will support maintaining stable mental health.

The ORB had recognized that Gladue principles required consideration of the unique circumstances and background of an Indigenousl NCR accused (R. v. Sim 78 O.R.(3d) 183 and Mitchel (Re) 2023 ONCA 229.) However, the Court of Appeal noted that the detention order imposed by the majority of the ORB lacked the requirement that the hospital explore culturally appropriate programs, housing and care. “This represents a material omission,” the Appeal Court declared.

Therefore, the Court of Appeal ordered an amendment to the ORB order requiring the hospital to investigate the availability of culturally appropriate agencies in Owen Sound and Bruce County so that Summers can transition towards a move and eventual discharge into the Owen Sound area.

The reasons for the Appeal Court decision infer that Summers implicitly agrees that reconnection with his ancestral roots is crucial to his re-entry into society. He had accessed a variety of Indigenous supports in Hamilton, enrolled in a residential substance abuse program consisting of Indigenous cultural components and made contact on his own with the Southwest Ontario Aboriginal Health Access Centre. 

Even though Summers would have preferred to be released directly into the community, and his appeal may seem to him as a loss, the case sets an important precedent in dealing with Indigenous people confined on an NCR Order in a health-care centre remote from their Aboriginal communities and supports.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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