Document Type

Article

Publication Date

2024

Source Publication

Anita Szigeti, Ruby Dhand, Deena Bonnet & Justice Jill R. Presser, eds., Canadian Anthology on Mental Health and the Law. LexisNexis, 2024.

Abstract

“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders (DSO). An initial section outlines Part XX.1 of the Code and Winko’s principles of interpretation, which include fair treatment and the utmost dignity of those in forensic detention. That is followed by a discussion that tests the procedural fairness, including qualitative fairness, of ORB proceedings against those Winko, and exposes gaps in the system that undermine the fairness and perceived fairness of ORB hearings. This chapter turns to substantive questions about indefinite forensic detention, expressing doubt about the constitutionality of Part XX.1 and calling for re-consideration of Winko. The advocates the introduction of capping provisions – along the lines of those enacted as part of Part XX.1 but not proclaimed and then repealed – an imperative response to the problem of indefinite detention.

Comments

This article is published in Anita Szigeti, Ruby Dhand, Deena Bonnet & Justice Jill R. Presser, eds., Canadian Anthology on Mental Health and the Law, Copyright (2024) and is available online with the permission of LexisNexis. The publisher specifically prohibits reproduction of this material, in any form, without written consent from LexisNexis.

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