Court of Appeal for Ontario

Date: 2024-10-23 Docket: COA-24-CR-0448

Before: van Rensburg, Miller and Gomery JJ.A.

In the Matter of: Dakota Summers

An Appeal Under Part XX.1 of the Code

Counsel: Anita Szigeti, for the appellant Anjali Rajan, for the respondent, Attorney General of Ontario

Heard: October 9, 2024

On appeal from the disposition of the Ontario Review Board dated March 11, 2024, with reasons dated April 2, 2024.

Reasons for Decision

[1] The appellant, Mr. Summers, appeals from the disposition of the Ontario Review Board (the “Board”), dated March 11, 2024, which ordered that he remain detained in custody in the Forensic Psychiatry Program at St. Joseph’s Healthcare Hamilton (“St. Joseph’s”).

[2] In 2013, Mr. Summers was found not criminally responsible by reason of mental disorder (“NCR”) on charges of possession of a weapon for a purpose dangerous to the public peace, robbery, possession of a controlled substance, and failure to comply with a probation order. He has been under the supervision of the Board ever since. He has a significant psychiatric history, with symptoms of aggression and psychosis, which has resulted in multiple hospital admissions. His current diagnoses are schizophrenia, cannabis use disorder (in remission in a controlled environment), and stimulant use disorder (in remission in a controlled environment). As of the date of his last annual review, the Board described his condition as follows:

Mr. Summers is currently exhibiting symptoms of psychosis that are resistant to treatment. His persecutory delusions involve a belief that the treatment team is working against him, and he perceives unfair and arbitrary confinement within the forensic system. Additionally, he holds the conviction that his prescribed medication lacks efficacy for his condition. Persistent delusions of control manifest in his belief that external entities residing within him manipulate bodily functions, including waste elimination. At times, he reports these entities speak through him and alleges experiencing sexual assault, and details incidents that suggest tactile hallucinations.

[3] Mr. Summers is a member of the Chippewas of Nawash and his immediate family lives in Owen Sound. The social work team at St. Joseph’s has been very industrious in introducing Mr. Summers to Indigenous supports and programming in Hamilton, in coordination with Mr. Summers’ aunt. The social work team also facilitated a series of extended visits to Owen Sound to enable Mr. Summers to connect with services and supports, and to spend time with his family and community. During these visits, Mr. Summers resided at the homes of each of his grandmothers and his mother, who were all coached in the need to observe Mr. Summers taking his medication, to ensure he adhered to his schedule, and to ensure he stayed at their homes for the requisite period.

[4] The visits in 2023 were initially great successes. On the fourth visit, however, Mr. Summers failed to check in with St. Joseph’s, and did not answer calls from St. Joseph’s to his cell phone. He also failed to attend appointments at an injection clinic (and so did not receive his medication that day) and at the Southwest Ontario Aboriginal Health Access Centre, and he did not return to his mother’s house at night. No one informed St. Joseph’s of these missed appointments and absences, despite an obligation to do so.

[5] The social work team from St. Joseph’s was finally able to reach Mr. Summers’ step-grandmother the next day. She informed them that she had been told by Mr. Summers’ mother that he had been found unconscious at a friend’s house. He was revived at hospital with naloxone, tested positive for cannabis, fentanyl, cocaine, and methamphetamine, and was admitted to the ICU. The next day, after he appeared to be responding to internal stimuli, and did not return on time after leaving the premises to smoke, he was placed on a Form 1.

[6] On Mr. Summers’ return to St. Joseph’s, his passes were suspended. He denied experiencing mental disorder, refused to take his oral medication, and said that he had not taken it for weeks. He decreased his involvement with the Hamilton Regional Indian Centre. The Board held a restriction of liberty hearing and determined that St. Joseph’s had acted appropriately in increasing the restrictions on Mr. Summers, as he would have otherwise likely escaped from hospital, used drugs, experienced an increase in psychotic symptoms, and reacted violently to people around him.

[7] Mr. Summers’ current disposition provides that he be allowed to reside in approved accommodation in the community in any area in Ontario where his cultural needs can be appropriately met. The purpose of this provision was to provide Mr. Summers with a path to return from Hamilton to Owen Sound. The Board accepted that living in Owen Sound, in an appropriate setting, could be therapeutically beneficial. Owen Sound is where Mr. Summers lived prior to his first detention in 2013, is where many of his family members still live, and is 56 km south of the Cape Croker Reserve in Bruce County where he was born.

Issues on Appeal

[8] Mr. Summers appeals the disposition on the bases that:

The Board erred in finding that he remained a significant threat of serious harm to others;
The Board erred in not finding that a conditional discharge would be the least onerous and restrictive disposition necessary to protect the public; and
The Board erred in its application of Gladue [1] principles.

The appellant poses a significant risk of serious harm to others

[9] We are not persuaded that there is any basis to interfere with the Board’s conclusion that Mr. Summers continues to pose a significant threat to others. The Board found that Mr. Summers’ psychotic illness is treatment resistant, and that his substance use disorder correlates with “medication non-adherence, deterioration in his mental state, agitation and increased risk of unpredictable aggression towards others”.

[10] We do not agree with the submission that the risk is merely speculative. The fact that Mr. Summers has not had any recent violent encounters, other than lunging at his treating psychiatrist when being told his privileges would not be reinstated, is not determinative. He has been in a highly controlled setting where he has been required to take medication. It is true that when he eloped in Owen Sound and consumed street drugs he did not have any violent encounters. But this episode does not undermine the reasoning of his treating psychiatrist, which the Board accepted. The fact is that Mr. Summers inadvertently suffered an apparent overdose of opioids, which resulted in losing consciousness. Had he consumed only cocaine, as he said he intended, his treating psychiatrist expected the result would have been aggressive behaviour towards others with unpredictable consequences.

A detention order is the least onerous and restrictive disposition

[11] We do not agree that the Board erred in finding that detention, with the privileges specified, is the least onerous and restrictive disposition. The treatment team has been working to find a way for Mr. Summers to live in the community in Owen Sound. But Mr. Summers will require significant structure and accountability to ensure he abstains from recreational drug use, continues to take his medication, and engages with community supports. Given the housing options available to Mr. Summers, this level of structure and accountability is not currently available in Owen Sound.

[12] The appellant argues that all necessary supports would be available in Owen Sound through the services of an Assertive Community Treatment (“ACT”) team. The first step must be to secure accommodation in Owen Sound, and the rest can follow. One of Mr. Summers’ grandmothers remains willing to host him for a few weeks until appropriate housing can be found.

[13] There are multiple problems with the proposal. First, the evidence before the Board was that there is no appropriate housing available in Owen Sound, given Mr. Summers’ current needs. Second, even if there were appropriate housing available in the near future, the Board reasonably rejected the submission that either of Mr. Summers’ grandmothers could adequately supervise him in the interim. Third, his counsel conceded at the appeal hearing that an ACT team in Owen Sound would not be available to assist until he has permanent housing in the community.

[14] The disastrous end to Mr. Summers’ last visit to Owen Sound – where no one who was under an obligation to advise the hospital that he had absconded and was not receiving medication did so – provided ample support for the Board’s conclusion.

Gladue principles were respected

[15] Mr. Summers argues that although the Board appropriately noted the principles they were required to apply, they failed in their stated obligation to use “a different method of analysis” to guard against wrongful discrimination against Indigenous persons in the forensic justice system.

[16] We do not agree. The Board noted that the social work team at St. Joseph’s, particularly Ms. George, had worked heroically alongside Mr. Summers’ family to engage Mr. Summers with Indigenous cultural supports and to enable him to participate in the Indigenous community life available in Hamilton.

[17] Counsel argues that this is not sufficient, and what is really required is not the opportunity to participate in Indigenous practices such as smudging and sweat lodges, or to engage with elders in Hamilton, but to participate in the life of his particular community in Owen Sound. Moreover, counsel argues that the Board’s disposition has been no different than if Mr. Summers were not Indigenous.

[18] We do not agree that the Board erred. The proper application of Gladue principles will not always lead to a different disposition as compared to a non-Indigenous person. What is required is that the Board be alert – at each stage of the analysis – to the potential to overlook “the unique circumstances of aboriginal NCR accused and ensure that it has adequate information in relation to the aboriginal background of an NCR accused to enable the ORB to assess the reintegration of the accused into society and the accused’s other needs …”: R. v. Sim (2005), 78 O.R. (3d) 183 (C.A.), at para. 29. The Board, in this case, did exactly that. It noted the exemplary efforts of the social work team at St. Joseph’s to engage Mr. Summers with culturally appropriate supports, with the goal of eventually returning him to live in the community in Owen Sound. The fact that such a move was judged to be inadvisable at this time because of the risk to the public Mr. Summers would present, particularly given the paucity of acceptable housing options, is not a manifestation of a failure to abide by Gladue principles.