Discrimination in Ontario's Sex Offender Registry: Ontario (A.G.) v. G 2020 - Sandra Barkho

Background

In Ontario, matters regarding the Sex Offender Registry are referred to as Christopher's Law. Christopher's Law requires individuals convicted of sexual assault, including those found not criminally responsible on account of mental disorder (NCRMD), to have their personal information added to the sexual offenders registry and report to the police station at least once a year to keep the information up to date. 1 The main issue with this law is that it does not offer any chance of ever being removed from the registry, or exemption from reporting, once found NCRMD of a sexual offence. These opportunities are referred to in this case as "exit ramps" from the registry. In G's case, even when given an absolute discharge by the Ontario Review Board (ORB), he still did not have access to these "exit ramps". However, "those who are found guilty of a sexual offence can be exempted from reporting in the first place by receiving a discharge under s. 730 of the Criminal Code,... 2 can (also) be removed from the registry upon receipt of a free pardon, and can be exempted from continuing to report upon receipt of either a free pardon or criminal record suspension." 3 I think this distinction is prejudicial towards those found NCRMD of sexual assault. By denying individuals found NCRMD any "exit ramps" from the registry suggests that individuals with mental disabilities will always be a danger to society. This case involves policy concerns regarding stigmas around mental disorders as well as constitutional rights protecting individuals from discrimination.

Facts

In Ontario (Attorney General) v. G, G argues that his rights under ss. 7 and 15(1) of the Charter have been breached. Section 7 of the Canadian Charter of Rights and Freedoms (Charter) guarantees "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Section 15 states that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination". 5 If the court finds that a breach of a Charter right has occurred, there is a test called the "section 1" or "Oake's test" to determine whether the infringement could be justified. This test involves examining the law in question to determine whether it has a "pressing and substantial" purpose and whether that purpose is proportional to the limitation of the Charter right. 6

G experienced his first and only manic episode on September 7, 2001 and was charged with two counts of sexual assault that occurred as a result of that manic episode. One count was for unlawfully confining the victim (his then-wife), and one count was for harassment. In June 2002, G was found NCRMD of both sexual offences. G was given an absolute discharge the following year by the ORB by demonstrating that he did not present a significant risk to public safety. However, G was still placed on the provincial sex offender registry in August 2004 and on the federal registry in 2005. G brought an application to challenge Christopher’s Law as it applied to persons found NCRMD of sexual offences who have been absolutely discharged. G argued that Christopher's Law violates his rights under ss. 7 and 15(1) of the Charter. The violation is on the basis that those found NCRMD of sexual assault who have been absolutely discharged are unable to be removed from the registry or exempt from reporting duties, while those found guilty of the same offences do have that ability.

Procedural History

At trial, the judge dismissed G's application on both ss. 7 and 15(1). The Court of Appeal for Ontario allowed G's appeal based on his s. 15(1) claim and found that there was an infringement of his rights. All levels of court, dismissed the s. 7 claim because G's security of the person of interest had not been engaged. The Court of Appeal found that the infringement of s. 15(1) was not justified under s. 1 of the Charter since it did not minimally impair G's rights. The court also mentioned that the concern for public safety would not be undermined by exempting persons found NCRMD since convicted sexual offenders were already given that opportunity. The court found Christopher's Law invalid as it applied to those found NCRMD who have been granted absolute discharge. The declaration of invalidity was suspended for 12 months to give legislature time for a response, but G was exempt from the suspension. The court ordered G to be immediately removed from the registry and relieved of his duties to report to the police. The Attorney General, on behalf of Ontario, appealed to the Supreme Court of Canada (SCC).

Supreme Court of Canada Analysis

The main issues brought up before the SCC were whether Christopher's Law violates ss. 7 and 15(1) of the Charter and whether the violation is justified. Another issue was regarding the appropriate remedy and G's exemption from the 12-month suspension. When analyzing whether the Christopher's Law infringes section 15(1), the court asks whether the law makes a distinction that discriminates against a protected group. This distinction could either be clearly expressed, or even if the law has an indirect negative impact on the protected group. The second question the court asks is whether the law imposes burdens or denies a benefit in a manner that discriminates against a protected group. "If the law reinforces, perpetuates, or exacerbates their disadvantage, it violates the equality guarantee and thereby gives discrimination the force of law." 7

Regarding the first question, The Attorney General (A.G.) argues that Christopher’s Law does not draw a distinction by denying those found NCRMD opportunities for "exit ramps". The A.G. says that the distinctions are drawn by the federal legislation in the Criminal Code, rather than the provincial legislature of Ontario. The SCC rejected this argument. The distinction was not only a result of the federal legislation, but also how Christopher's Law interacts with it by imposing obligations on persons found to be NCRMD. The A.G. argues the second question by saying Christopher’s Law uses actuarial data about risk when including persons found NCRMD in the registry. Therefore, the law does not stereotype or discriminate. The SCC rejects this argument and finds the denial of "exit ramps" for those found NCRMD discriminatory. The court also says that the "relevant question is whether Christopher’s Law imposes burdens or denies benefits in a manner that reinforces, perpetuates, or exacerbates disadvantage". 8 In this case, the court found that there was a distinction made towards those found NCRMD and the impacts of Christopher's Law were discriminatory towards those with mental disabilities.

After an infringement on a Charter right has been established, courts will ask if the infringement is justified under section 1. Here, the SCC asked whether the limits Christopher's Law set on equality rights were reasonable. The burden is on the A.G. to establish that the infringement under s. 15(1) was justified under section 1 of the Charter. In this case, the SCC found that the burden was not met because the infringement of section 15(1) was not minimally impairing the rights.

Commentary

I agree with the SCC's decision in this case because Christopher's Law was clearly discriminatory in its impact towards those found NCRMD of sexual assault. While the law does not express an intention to discriminate against persons found NCRMD, in its effect, it does discriminate. This gap in the law should have been recognized and modified so as to include "exit ramps" for those found NCRMD of sexual assault. I think that individuals found NCRMD should not be faced with stricter restrictions than convicted offenders regarding their ability to be removed from the sexual offenders registry. G argues that "by denying those found NCRMD access to exit ramps, Christopher’s Law effectively presumes that those found NCRMD have no prospect for rehabilitation and accordingly perpetuates disadvantage and negative stereotypes about persons with mental illness." 9 I agree with G's argument because while discrimination against mental disorders may exist in society, it should not be given effect through the law.

Endnotes......................

1 Christopher's Law (Sex Offender Registry), 2000, SO 2000 c 1.

2 Criminal Code, RSC 1985, c C-46, s 730.

3 Ontario (Attorney General) v G, 2020 SCC 38 at para 4 [Ontario v G]

4 Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

5 Ibid at s 15(1).

6 R. v. Oakes, [1986] 1 S.C.R. 103.

7 Ontario v G at para 42.

8 Ibid at para 64.

9 Ibid at para 59.