Psychiatric Gating of Sexual Offenders Under Ontario's Mental Health Act: Illegality, Charter Conflicts & Abuse of Process

2005 Canada:

Abstract:
The paper examines psychiatric gating in Canada - i.e. the practice of certifying offenders for involuntary admission into a psychiatric hospital under civil mental health legislation on their impending release from a correctional facility.

The author first argues that the psychiatric gating of sexual offenders does not com- port with the legal requisites or philosophical objectives of civil commitment under Ontario's Mental Health Act. Second, the author argues that psychiatric gating is fraught with possible violations of ss. 7 & 12 of the Charter and constitutes an abuse of process because the practice in effect achieves the same indeterminate detention as designation under the dangerous offender provisions of the Criminal Code without the procedural and substantive safeguards that the courts have deemed necessary for the indeterminate sentences to survive Charter scrutiny.

In making out the arguments the author engages in a detailed discussion of the civil commitment provisions in Ontario with reference to the parallel provisions in other provinces, and explores the limited Canadian jurisprudence on psychiatric gating. ..Source.. by Jose A Hannah-Suarez, Government of Ontario