Mental Health and Public Security - Samantha Harvey
The case of Ontario (Attorney General) v G (“G”) is a complex and interesting case that deals with the issues of discrimination based on mental disability, transparency in judicial decisions, and conflicting rights granted under the Canadian Charter of Rights and Freedoms (“Charter”). This case commentary will focus primarily on the discrimination that individuals found not criminally responsible on account of mental disorder (“NCRMD”) faced due to Ontario’s Christopher’s Law (Sex Offender Registry) “(Christopher’s Law”). This commentary will include a summary of the G majority’s findings with respect to the questions of whether the law violated the accused’s Charter rights, whether the limit was justifiable, and what kind of remedy would be appropriate. This commentary will conclude with a brief critique of an argument made by the Attorney General of Ontario in defence of the discriminatory law that underestimates the effect of stigmatization.
A manic episode leads to criminal charges and discrimination
In 2001, the accused in G experienced his first manic episode and only a month later was charged with two counts of sexual assault. The accused was found NCRMD and received a conditional discharge. A year later, G was granted an absolute discharge as there was no evidence which indicated that he posed a significant risk to the public. Since the assaults in 2001, G has had a clean record, managed his illness, and obtained stable employment.
Christopher’s Law required G to register as a sex offender and complete annual reports for the rest of his life. G’s name would never be removed from the register even after his death. The register is intended to facilitate prevention of sexual offences by tracking prior offenders for investigation purposes. However, G argued that Christopher’s Law violated his Charter rights since it provided opportunities for some people to be exempt from the reporting requirements, but no such chance for anyone found NCRMD.
Defence counsel in G argued that Christopher’s Law violated section 7 and section 15(1) of the Charter. The Supreme Court of Canada (“the Court”) agreed with the lower courts that the complaint regarding section 7—the right to life, liberty, and security of the person—could be dismissed simply because Christopher’s Law did not engage the security of the person. However, the Court went on to find that Christopher’s Law did violate the accused’s section 15(1) Charter rights.
Section 15(1) of the Charter 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.” In order to determine G’s Charter rights had been violated, the court used a two-step test.
(1) Two-Step Test for a Section 15(1) Infringement
The first step utilized by the Court in G was determining whether Christopher’s Law made a distinction based on the enumerated ground of mental disability. The Attorney General argued that the distinction was a result of the individual being found NCRMD, a status created by federal legislation. However, the majority in G found that Christopher’s Law made a distinction based on mental disability that could not be likened to the restrictions that the Criminal Code places on NCRMD individuals.
The second step the Court employed in G was determining whether the distinction drawn imposed a burden or denied a benefit in a manner that had the effect of reinforcing, perpetuating or exacerbating disadvantage. At this step, the Attorney General argued that individuals found NCRMD statistically have a higher rate of recidivism—implying that the apprehension implied by Christropher’s Law was warranted. Further, the Attorney General noted that the law imposed only “modest impacts” on the registrants. As the Court noted in G, review boards make educated and informed decisions about those that receive discharges, and they would not grant a discharge if the individual posed a significant threat to the public. Therefore, the law reinforced, perpetuated, and exacerbated the discriminatory notion that mentally ill individuals cannot be rehabilitated and will forever pose a threat to the community. Without individual assessments proving that the specific NCRMD individual poses a threat to the community, the Court found that a requirement to register and report without exception imposes a burden that exacerbates the disadvantages felt by those found NCRMD.
(2) The Oakes Test
Once the Court had found that Christopher’s Law violated the accused’s section 15(1) Charter rights, they then undertook a very brief analysis of whether the limitation could be justified. The government was required to demonstrate that the infringement of the accused’s section 15(1) Charter rights was justified under section 1 of the Charter on a balance of probabilities. A section 1 analysis requires the application of the Oakes test.
The first step of the Oakes test notes that a justified limitation in a free and democratic society requires that the infringement has a pressing and substantial objective. The Court in G found that the infringing measure concerned the lack of available exemptions for individuals found NCRMD. This measure therefore met the first step as the protection of public safety from potential recidivism was determined to be a pressing and substantial objective.
The second step of the Oakes test is the proportionality test which asks whether the infringement is rationally connected to the objective, whether the means chosen to achieve the objective are as minimally limiting as possible, and whether the benefits of the infringement outweigh the negative effects. In G, the lack of an exemption for NCRMD individuals was found to be rationally connected to the objective, since the requirement to report would aid the courts in investigations and protect the public from harm. However, the law failed to pass the minimal impairment step. The Court in G found that any possibility for individuals found NCRMD to be exempt from the reporting standards would be less impairing. Thus, the Court found that the measure disallowing exemptions for individuals found NCRMD was not a justifiable limitation of the accused’s section 15(1) Charter rights.
(3) The Remedy
Section 52(1) of the Constitution Act, 1982 states that any law which is inconsistent with the Constitution of Canada is, to the extent of the inconsistency, of no force and effect. Typically, a declaration that a law is of no force and effect will be effective immediately. However, on rare occasions a court may opt to suspend the declaration if other significantly important rights are threatened by such a declaration. In G, it was not certain what kind of effects that allowing exemptions for individuals found NCRMD would pose to public security. Thus, the Ontario Court of Appeal (“the ONCA”) had granted a 12-month suspension of the declaration of invalidity to allow for the legislature to determine whether the declaration was an appropriate remedy. The ONCA had also granted an individual remedy for the accused in the meantime. The Court did not interfere with the remedies granted by the lower court.
A further critique of the Attorney General’s argument
In G, the Court unanimously held that Christopher’s Law was an unjustifiable breach of the accused’s section 15(1) Charter rights. For the most part, the majority dealt with the discriminatory law effectively. However, the written decision would have benefitted from a more thorough critique of the Attorney General’s weak argument —that the law only imposed modest impacts on individuals. The argument underestimates the potential stigmatizing effects that accompany the reporting requirements.
Unlike many cases of discrimination, Christopher’s Law appears to be based on a genuine concern for public safety. Unfortunately, the law was informed by untrue, stigmatizing stereotypes about mentally ill individuals. The law paints individuals found NCRMD as presenting an unpredictable, yet constant danger to the public. The Attorney General claims that the law had only modest impacts on registered individuals found NCRMD because it only required occasional reporting comprising of a short form that was quick to complete. However, the Attorney General failed to comprehend that a law that perpetuates stigma may have significant effects on individuals and actually serve to bring about the future it attempts to prevent.
Experiencing stigma has the ability to alter the way that people perceive themselves and their environment. Labelling theory suggests than an individual may begin to internalize stigma and withdraw from conventional society as a result of being formally labelled as an offender. I believe this theory is applicable for individuals found NCRMD of a sexual offence as they experience stigma on two levels. Firstly, an individual accused of a crime is likely to be stigmatized despite being found NCRMD and, secondly, sexual offenders are even more stigmatized due to the nature of their crime.
The Court in G also made it clear that mentally ill individuals have been stigmatized for many years. Thus, the accused was likely to experience stigma from many different sources. The Court found that whether an individual actually experiences stigma or solely perceives that they are being stigmatized, the effect is the same. The frequent reporting, the random home visits, and the fact that the accused’s name would never be removed from the register could serve as a constant reminder that others may view him negatively due to his circumstances.
While a label by itself is not necessarily going to lead to an individual to internalize stigma or adopt maladaptive behaviours, some people will struggle more with the effects of stigma based on their personal psychological processing. Research demonstrates that people with mental health issues who perceive stigmatization may suffer more negative psychological and social outcomes as a result. This includes reduced community integration, poor social interaction, depression, and increased risk-taking behaviours—none of which are conducive to the rehabilitation of an individual found NCRMD. In effect, it is possible that the requirement for individuals found NCRMD to report unnecessarily may increase the likelihood of recidivism. Thus, the effects caused by stigmatization, especially the stigmatization suffered by mentally ill offenders, should not be so easily dismissed as a modest impact.
Unbridled public security may lead to stigma
The protection of public security from identified threats is a commendable goal. However, one must not confuse a potential security risk based on actual assessment and evidence with one based solely on discriminatory stereotypes. Any law that has the ability to stigmatize a group cannot be defined as imposing only “modest impacts.” This argument underestimates the detrimental effects that stigma can have on individuals, especially those with prior mental health issues. The effects of stigma should be given significant consideration and examination in judicial decisions.