Nunavut Review Board lacks jurisdiction to compel out-of-territory hospitals to admit NCR accused

The Nunavut Review Board (NRB) has decided it does not have the jurisdiction to compel an out-of-territory psychiatric hospital to take a not-criminally-responsible (NCR) accused, despite Nunavut lacking a secure psychiatric facility which can house its own.

George Nookiguak wanted to be transferred to a hospital near Ottawa, which has a large Inuit community and active cultural presence. That hospital, the Brockville Mental Health Centre, objected, and argued the NRB lacked the jurisdiction to overrule it. The NRB agreed and ordered he be sent to a facility in Whitby, Ont.

The ruling leaves Nunavut’s NCR accused without a choice but to rely on the “kindness of strangers,” says Anita Szigeti, lawyer for the accused Nookiguak and an expert in mental health and the law.

“What if there's no hospital outside Nunavut that voluntarily agrees? ... Then the Nunavut Review Board is useless. Like it literally is a toothless tiger. It's nugatory. It cannot fulfill its function.”

The main legal question which arose in the case was whether the NRB operates in a different context from other review boards, says Philippe Plourde, deputy chief federal prosecutor for the Public Prosecution Service of Canada.

The NRB’s jurisdiction to compel hospitals outside of Nunavut to admit Nunavummiut NCR accused was “extensively addressed” in the case, he says.

“Factually, one of the main concerns of the parties and of the Board is to ensure that the facilities are able to offer culturally sensitive services and programs that are tailored to Nunavut Inuit culture,” he says.

In 2012 in Iqaluit, George Nookiguak stabbed a man in the back, puncturing his lung. He was later found NCR on account of mental disorder for charges of aggravated assault and breach of undertaking. The NRB ordered Nookiguak detained at Waypoint Centre for Mental Health Care in Penetanguishene, Ont. He was later found guilty of assaulting two Waypoint staff members and served 18 months at the Toronto South Detention Centre and the St. Lawrence Valley Correctional and Treatment Centre, in Brockville, Ont., before being returned to Waypoint.

By 2020, as the NRB was hearing the review of his disposition, Nookiguak’s treatment with the medication clozapine had achieved “significant and sustained clinical progress,” said the NRB’s ruling. His clinical team believed he could be moved to a medium-security facility. They recommended he be moved to the Brockville Mental Health Centre, but Brockville opposed the transfer. Brockville argued they could not accommodate Nookiguak because of COVID, which also prevented him accessing Inuit services in Ottawa. Brockville also said that without its consent, the NRB lacked the jurisdiction to compel it to accept Nookiguak.

Brockville is about an hour south of Ottawa, which has the culturally specific supports Inuit NCR accused need for community reintegration, says Szigeti. There are local, Inuit-specific mental health service providers and addiction and mental health-residential treatment. Because Ottawa has a large Inuit community, there are cultural events, access to an Inuktitut-speaking community and access to traditional foods.

In June 2021, the Nunavut Government confirmed that the Ontario Shores Centre for Mental Health Sciences, in Whitby, Ont., would accept Nookiguak’s transfer.

The NRB said it was not required to decide on the jurisdictional issue, having found the “necessary and appropriate” disposition was to transfer Nookiguak to Ontario Shores. The parties requested, however, the NRB address the issue, which, the NRB said, would likely arise again in the future.

Szigeti argued that when the Criminal Code was drafted, it gave every province and territory the ability to designate a hospital for the detention of NCR accused. But Nunavut does not have a hospital capable of detaining them. “I say it’s a legislative oversight,” she says. The Code must be read as saying that where the jurisdiction has no hospital in which it can detain its NCR accused, it must have the ability to order them detained in a hospital designated for this purpose in another jurisdiction, she says.

But the NRB said that Parliament included a method of interprovincial/territorial transfer in s. 672.86(1), which allows an NCR accused to be detained in another province or territory if both attorneys general and the receiving review board agree. Given the inclusion of this provision, there is no gap in the legislation, found the NRB.

But under such a transfer, Nookiguak would be moved from the NRB’s to the Ontario Review Board’s jurisdiction. “The problem is that the Nunavut Review Board has cultural sensitivity because they deal with Nunavut Inuit accused every day. They know what their needs are,” says Szigeti. The Ontario Review Board does not have the same familiarity, she says.

“We would be adding further to his problems and his cultural alienation.”

“The Review Board has the obligation to decide the most appropriate and necessary placement, the least onerous and least restrictive,” says Szigeti. “And they have to be able to do that, whether people are prepared to agree or not. Otherwise, the Inuit Nunavummiut NCR accused are relying on the kindness of strangers. Who is prepared to have them? That can't be what the Criminal Code contemplated in setting up these tribunals.”