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  • Lewis Waring

Canada (Attorney General) v. G - Anonymous

In Ontario (Attorney General) v G (“G”), a married man had “unlawfully confined” and harassed his wife while he was having a manic episode, the only like one he had ever experienced. He was charged with two counts of sexual assault against his wife in September 2001.

A sexual assault arising from a mental disorder

The following year in June 2002, G was found not criminally responsible on account of mental disorder (“NCRMD”) and “received a conditional discharge” for the sexual assault against his now former spouse. One year later, he received an absolute discharge.

In August 2004, G registered with the Ontario and federal sex offender registry. As required by Christopher’s Law (Sex Offender Registry) (“Christopher’s Law”), named after an 11 year old boy kidnapped and murdered in 1988 by a known sex offender, G appeared in person to report annually.

Christopher’s Law states “those who are either convicted or found not criminally responsible on account of mental disorder (NCRMD) of a sexual offence to physically report to a police station” every year (at least one time) for the first decade since committing the crime.

Fast forward past the incident, G had rehabilitated himself; he had a record of steady employment and he presented as a very “low risk” offender to the public, meaning he was unlikely to re-commit the same crime.

Despite these positive aspects of his remission, and despite being granted an absolute discharge under NCRMD for the sexual assaults he committed, G was still reporting annually as required.

G challenged Christopher’s Law by commencing an application at the Ontario Superior Court of Justice (“the ONSC”). The challenge to Christopher’s Law was on the basis that his inability to be removed from the registry, even though those with absolute discharges but not found NCRMD could be removed, violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”). The ONSC dismissed his application and G appealed.

The Ontario Court of Appeal (“the ONCA”) agreed with the ONSC that no violation to his section 7 Charter rights were infringed but recognized that Christopher’s Law “engages G’s liberty but not his security of the person interest”.

The ONCA allowed the appeal application on the basis that G’s section 15(1) Charter rights were engaged, holding that “the effects of Christopher’s Law distinguish between convicted persons and person’s found NCRMD on the basis of disability”.

The issues in G were whether Christopher’s Law violated section 15(1) of the Charter and if so, whether the infringement was justified under section 1 of the Charter.

The discriminatory nature of Christopher’s Law

According to Section 16 of the Criminal Code (“the Code”), “[n]o person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”. The Supreme Court of Canada (“the Court”) acknowledged that there is general stereotyping of discrimination against people with mental illness that is not experienced by people who do not suffer from the same. The Court in its analysis further acknowledged the social, political, and legal barriers people with mental disabilities have to endure and the consequences of those barriers in G. In particular, the Court noted that, “the prejudicial idea that those with mental illnesses are inherently and perpetually dangerous, along with other stigmatizing, prejudicial notions, has led to profound disadvantage for individuals living with mental illnesses”.

The Court analyzed the disadvantages and differences perpetuated by Christopher’s Law, specifically how it treated people differently based on mental disability. One of the earlier observations acknowledged that Section 730 of the Code sets up a reporting mechanism for sex offenders but notes that “there is no reporting obligation” if you have received a conditional or absolute discharge. In the case of G, he received an absolute discharge and was still reporting as per Christopher’s Law.

Section 9.1 of Christopher’s Law, which states that “a registrant will be removed from the registry upon receiving a free pardon” also does not apply to NCRMD. The Court then took a look at whether the challenged law here was perpetuating discrimination on a particular enumerated ground when working through its section 15(1) analysis. Based on the enumerated ground of mental disability, the Court focused on whether this distinction in treatment imposed a “burden or a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage”.

The Court determined that, based on the combination of the Code and Christopher’s Law, there was an inequality of treatment for those individuals who were found NCRMD. There was a denial of opportunity to those found NCRMD to be exempt from being removed from the registry or be relieved of “obligations to report”. The ability to be removed from the registry or be relieved from the obligations to report annually based on factors such as presenting low-risk offender behaviour was available for persons “found guilty” of offences. Those individuals found NCRMD, on the other hand, were treated differently based solely on mental disability. The stereotype and stigma that is associated with people with mental disability was exacerbated in Christopher’s Law and perpetuated a historic disadvantage surrounding the notion of mental disability. It perpetuated the notion that people with mental disability are “inherently dangerous” and, as a result, it carried with it negative and untrue ideas that those individuals found NCRMD do not have the power to change and further extended a societal common distrust that they cannot be trusted to be safe members of the community.

The Court upheld the invalidity of Christopher’s Law

In conclusion, the Court in G held that Christopher’s Law infringed on G’s Charter right to equal treatment by “requiring those found NCRMD to comply with the sex offender registry without providing them with opportunities for exemption and removal based on individualized assessment”. The Court determined that Christopher’s Law had been properly declared invalid.

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