The Ontario government accepts the need for change to the involuntary detention procedures of the Mental Health Act

March 6, 2015

*Content posted to the blog represents the views of the author only and not those of Health Law in Canada, its Board members or affiliates or IHPME*

Stethoscope inside a glass circle with blue backgroundThe case of P.S. v Ontario, 2014 ONCA 900 was a landmark decision by Justice Sharpe where the Constitutional validity of involuntary detention provisions under the Ontario Mental Health Act (MHA) were challenged.

P.S. was sentenced to 45 months imprisonment for the sexual assault of a minor. After the completion of his sentence, he was deemed by the Consent and Capacity Board to be a risk to society and thus transferred to the Waypoint Centre’s maximum security facility. Most of these involuntary detentions last less than one month, but P.S. has been held at this facility for over 19 years. A two-word loophole in section 20(4)(b)(iii) of the MHA provides the authority for such long-term detainment;

“An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility… (b) for not more than… (iii) three additional months under a third or subsequent certificate of renewal, that is completed and filed with the officer in charge by the attending physician [emphasis added].”

This provision led Justice Sharpe to declare that P.S.’s section 7 right to liberty under the Canadian Charter had been infringed and that there should be a six-month limit on detentions, especially considering that the MHA does not possess sufficient procedural powers to ensure that individuals detained for longer periods of time will be appropriately cared for. The Consent and Capacity Board, composed largely of mental health professionals, repeatedly recommended that P.S. be transferred to a lower security facility more appropriate for the treatment of his condition. However, because the Board did not have the authority to demand his transfer and the other facilities would not accept him, he remains in the maximum security section of the Waypoint Centre.

Justice Sharpe also declared P.S.’s rights under s.15 of the Charter, the right not to be discriminated against, was infringed. P.S. is deaf and was not provided the appropriate communicative assistance required to treat his condition. As Justice Sharpe stated, “[h]ad efforts been made to accommodate him immediately following his committal in 1996 by providing interpretation services during therapeutic, educational and recreational programming, his well-being and overall rehabilitative prospects might have been markedly different.”

Due to these breaches, the court declared that the words “or subsequent” in s20(4)(b)(iii) of the MHA are of no force or effect. However, they’ve suspended this declaration of invalidity for 12 months in order to allow the legislature time to appropriately amend the provision. Since the deadline to appeal this decision passed last week with no word from the provincial government, it is likely that Justice Sharpe’s ruling will be implemented.

As of February 28th, the Ministry of Health and Long-Term Care is reviewing the options available to respond to the court’s decision and plan their next steps.

Leane Lardner
Managing Editor – Communications