SCC rules Ontario’s sex offender registry law is discriminatory under section 15 of Charter

Individuals who are NCR not necessarily more dangerous nor less capable of rehabilitation: majority

SCC rules Ontario’s sex offender registry law is discriminatory under section 15 of Charter
Marshall Swadron of Swadron Associates in Toronto represented the successful respondent in the case.

Ontario’s sex offender registry law is discriminatory under s. 15 of the Charter to those individuals found not criminally responsible (NCR) for crimes they have committed, the Supreme Court of Canada ruled today.

In a 7/2 decision in Ontario (Attorney General) v. G, the Supreme Court upheld an Ontario Court of Appeal ruling that the rights of the respondent, who was found not criminally responsible on account of mental disorder (NCRMD) for sexually assaulting his then wife in 2001, had had his section 15 right to be treated equally and without discrimination breached, since remedies for those convicted of crimes were not available to those deemed to be NCRMD.

Justice Andromache Karakatsanis, writing for the majority, wrote that, contrary to popular opinion, individuals charged with crimes and who are found to be NCRMD are not necessarily more dangerous nor less capable of rehabilitation.

“That the state will not take its eyes off G suggests that, in the opinion of the law, he will always be dangerous,” Justice Karakatsanis wrote.

“The [Ontario] Attorney General’s argument that government’s intention not to stereotype is relevant to the s. 15(1)  analysis betrays a profound misunderstanding of equality rights — which protect substantive equality,” she continued.

“It’s a case about substantive equality as opposed to formal equality,” says Marshall Swadron, a partner in Swadron Associates in Toronto, who represented the respondent in the case.

“Ontario argued its laws treated everyone the same way,” but the court found that “the impact of the laws was just as important as what the laws said, or the distinctions that the laws drew.”

In Ontario, those convicted or found NCRMD of a sexual offence must report to a police station to have their personal information added to the province’s sex offender registry. Registrants must continue to report in person at least once a year and every time certain information changes. Based on an individualized assessment, those found guilty of sexual offences may be removed or exempted from the registry, or relieved of their reporting obligations. However, no one found NCRMD of sexual offences can ever be removed from the registry or exempted from reporting, even if they have received an absolute discharge from a review board.

The respondent, G, was therefore not permitted to have his name removed from Ontario’s sexual offenders registry and had to continue to report to police even after his absolute discharge by the Ontario Review Board in 2003. He sought a declaration that Ontario’s sex offender registry regime infringed on his right to equality, under s. 15(1) of the Charter, for NCRMD individuals who have been granted an absolute discharge.

 “The law thus imposes a burden on people found NCRMD in a manner that violates the norm of substantive equality in two respects,” wrote Justice Karakatsanis for the majority; “the law itself invokes prejudicial and stereotypical views about persons with mental illnesses, feeding harmful stigma; and the law puts those found NCRMD in a worse position than those found guilty. Both effects perpetuate the historical and enduring disadvantage experienced by persons with mental illnesses. [ … ]

“By withholding exit ramps, Christopher’s Law signals that the law considers G a perpetual threat to the public.”

On appeal from the trial court, the Court of Appeal for Ontario declared Christopher’s Law to be of no force or effect as it applies to those found NCRMD who were granted an absolute discharge, suspended the declaration of invalidity for 12 months, and exempted G from that suspension by relieving him of further compliance with the legislation and ordering that his information be deleted from the registry immediately. The Attorney General of Ontario appealed to the Supreme Court.

The Supreme Court also held that, in finding that Christopher’s Law violated s. 15(1) of the Charter, it was not necessary to consider the respondent’s claim that his s. 7 Charter rights were also violated.

It further noted that a s. 7  challenge to the federal sex offender registry is currently before the courts, namely in R. v. Ndhlovu, 2020 ABCA 307.

Justice Malcolm Rowe, in concurring reasons, agreed that Christopher’s Law was discriminatory but disagreed with how suspensions of a declaration of invalidity might be allowed in different cases.

Justices Suzanne Côté and Russell Brown, in partial dissent, agreed with the majority on the section 15 inequality issue and that Christopher’s Law is discriminatory, but in their view it was not proper for Ontario’s Court of Appeal to grant an individual exemption for G. That should be done rarely, the minority found.

Today’s decision “affirms what the [Ontario] Court of Appeal found, which is by treating offenders with mental disorders, who have been found NCR, more harshly than convicted sex offenders, that Christopher’s Law was a violation of section 15,” says Erin Dann of Embry Dann LLP in Toronto, who was counsel for the intervener Criminal Lawyers’ Association (Ontario).

 “We’re very pleased to see the Supreme Court remedying that, and recognizing the historical prejudice and disadvantage faced by individuals with mental disorders in our society.”

Today’s Supreme Court ruling opens the door to others in similar situations to apply to have their names removed from the sexual offenders registry.

“We are disappointed that the Supreme Court of Canada dismissed Ontario’s appeal in this matter,” a spokesman for Ontario’s Ministry of the Attorney General told Canadian Lawyer in an email, and said the ministry was reviewing the Supreme Court’s decision.

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