Research Paper Number

52/2016

PS v Ontario: Rethinking the Role of the Charter in Civil Commitment

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2016

Keywords

Mentally ill--Commitment and detention; Capacity and disability; Mentally ill--Civil rights; Mental health laws; Ontario

Abstract

In PS v Ontario, the Ontario Court of Appeal held that section 7 of the Charter requires that persons who are civilly committed for six months or more must have access to a meaningful review process that has jurisdiction over the conditions of their detention. In this paper, the authors argue that this decision has broad implications for provincial civil commitment regimes across the country. In particular, the fact that the court analogized to the Criminal Code Review Board jurisprudence opens the door to a fuller recognition of the profound deprivation of liberty that is involved in all civil commitments. This may require an expanded role for civil review tribunals, including Charter jurisdiction. The decision, and Ontario’s legislative response to PS, also leave open the pressing question of the scope of liberty interests guaranteed by section 7 for those who are civilly committed for shorter periods of time. The authors conclude that this decision should trigger a reconsideration of civil commitment review processes across the country for all persons detained in psychiatric facilities.

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