Ontario (Attorney General) v. G - Nikolai von Schilling

Ontario (Attorney General) v. G

Introduction

Recently, in the case of Ontario (Attorney General) v. G 1 the Supreme Court was tasked with determining the constitutionality of Christopher’s Law 2 which is responsible for establishing Ontario’s sex offender registry. One of the two main issues in this case, and the one I will be focusing on here, is whether the rules laid out in Christopher’s Law violate the s. 15(1) 3 Charter equality rights of sexual offenders found not criminally responsible on account of mental disorder (NCRMD). In deciding this issue, the Supreme Court runs through the steps of the s. 15(1) Charter challenge and ultimately finds that Chrtistopher’s Law violates his s. 15(1) rights. Before moving on to the substance of the analysis, however, I will sketch out the factual background to this case and detail the legislation under scrutiny.

Background

The respondent in this case is man referred to as G, who in 2001 was charged with two counts of sexual assault, one count of harassment, and one count of unlawful confinement— all against his then-wife. 4 These assaults occurred during G’s “first and only manic episode”, and in June 2002 G was found NCRMD. 5 In July 2002 G was conditionally discharged by the ORB, since they no longer considered him a threat to the public, and for the past seventeen years G has lived peacefully with his symptoms in full remission. 6 However, since 2004 G has been placed on the Ontario sex offender registry, 7 and because he was found NCRMD of more than one sexual offence he will remain there for life. 8

Legislation

To clarify the issues in this case I turn now to a brief examination of Christoper’s Law, according to which an offender is defined as a person “who has been convicted of a sex offence”, 9 or “who has been found not criminally responsible for a sex offence on account of a mental disorder”. 10 An offender under Christopher’s Law must register with the police and will have his or her information stored in the registry for tracking purposes. Further, an offender must make an annual visit to the police, 11 and may be called upon by the police to verify the accuracy of his or her registered address. 12 Lastly, in cases where an offender was found guilty of a sexual crime, that offender can receive a free pardon at which time they will be removed from the registry and all of their information will be deleted. Similarly, if the offender receives a record suspension, usually given for good behaviour since the end of imprisonment, they will no longer have to comply with the annual reporting requirement (but will remain on the registry). 13

Analysis

As we have seen, according to Christopher’s Law an offender who has been found guilty of a sex offence will be removed from the sex offender registry if they receive a free pardon, and will be exempted from the annual reporting requirement if they receive a record suspension. Since both free pardons and record suspensions come out of an individual assessment process, in a certain sense this assessment process can lead to the offender having their profile on the registry deleted (or their reporting requirements waived). Due to the interaction between Christopher’s Law and the Criminal Code, 14 however, there exists no equivalent individual assessment process recognized in Christopher’s Law for offenders found NCRMD to remove themselves from the registry.

In this case G argues that the lack of any individual assessment process for offenders found NCRMD amounts to a violation of his s. 15(1) Charter right to equality. In determining whether this is the case, the Court reiterates that a law infringes s. 15(1): (a) when it draws a distinction based on enumerated 15 or analogous grounds, and (b) when, if it does draw a distinction, this has the effect of reinforcing or exacerbating already existing disadvantages. 16 Applying these steps to the facts in this case, Christopher’s Law clearly draws a distinction between NCRMD offenders and other offenders under the legislation, insofar as the latter has the potential to be removed from the registry while the former does not. 17 Furthermore, this distinction is discriminatory in the way that it reinforces the notion that those with mental illnesses are “inherently and permanently dangerous”. 18 The legislation’s insistence that offenders found NCRMD are dangerous is especially apparent when compared to its allowance for offenders who are guilty of a sexual crime to avoid having to fulfill the annual reporting requirement. 19 In summary, Christopher’s Law violates G’s s. 15(1) rights because it subjects him to the sex offender registry without providing any way to remove himself based on the kind of individual assessment that a guilty offender would be able to exploit. As such, Christopher’s Law ensures that people like G are seen by society as both sex offenders and mentally unstable.

Finally, the Supreme court runs through an Oakes test to determine whether Christopher’s Law can be justified under s. 1: Firstly, it is obvious that the objective of Christopher’s Law is the protection of the public from sexual offenders, and that this qualifies as pressing and substantial. 20 Next, forcing offenders found NCRMD to comply with the regime without any chance of removing themselves can be considered rationally connected to the objective of Christopher’s Law. 21 However, at the minimal impairment stage the Court finds that “the inclusion of any method of exempting and removing those found NCRMD from the registry… would be less impairing of their s. 15(1) rights”. 22 So the extent to which Christopher’s Law infringes on G’s s. 15(1) rights cannot be justified under s. 1 and must be rendered “of no force or effect” according to s. 52(1). 23

Policy

In my analysis so far, I have addressed the first broad issue of this case concerning the violation of G’s s. 15(1) rights. However, the Supreme Court was also faced with a second issue, concerning the scope of the judicial remedial power when a law, or a part of a law, is found to be inconsistent with the Charter. It is not my intention to address this second issue here. Suffice to say, Christopher’s Law has been found to be “of no force or effect” with respect to “all those found NCRMD of a sexual offence who do not have access to exemption and removal mechanisms based on individualized assessment”. 24 Now it falls to the legislature of Ontario to remedy Christopher’s Law so that it is consistent with the Charter. In the remainder of this section I will speculate on how they might achieve this remedy.

To frame this discussion, I recall that G’s s. 15(1) Charter challenge was primarily based in the fact that Christopher’s Law provided opportunities for some (not NCRMD) offenders to be individually assessed on their merits and removed from the sex offender registry. In order to bring NCRMD offenders in line with the opportunities afforded to other offenders under Christopher’s Law, the legislature must base the individual assessments given to NCRMD offenders on the principles for granting free pardons and record suspensions. Although the Criminal Code does not provide a precisely analogous framework within which to affect individual assessments for NCRMD offenders, Part XX.1 25 of the Criminal Code offers a possible starting point. Part XX.1 empowers review boards to assess NCRMD offenders based on concerns such as the “safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, and their other needs assesses” 26 and to issue absolute discharges, conditional discharges, or hospital detentions based on their assessments. 27 With this framework to draw upon, in addition to the individual assessment frameworks in granting free pardons or a record suspensions, I am sure that the legislature can find an equitable solution.

TABLE OF AUTHORITIES

LEGISLATION

Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

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

Criminal Code, RSC 1985, c C-46.

JURISPRUDENCE

Ontario (Attorney General) v G, 2020 SCC 38 [Ontario AG].

ENDNOTES

1 Ontario (Attorney General) v G, 2020 SCC 38 [Ontario AG].

2 Christopher's Law (Sex Offender Registry), SO 2000, c 1 [Christopher’s Law].

3 Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

4 Ontario AG, supra note 1 at para 7.

5 Ibid at para 8.

6 Ibid.

7 Ibid at para 9.

8 Ibid at para 26.

9 Christopher's Law, supra note 2, s 1(1)(a).

10 Christopher's Law, supra note 2, s 1(1)(b).

11 Ontario AG, supra note 1 at para 25.

12 Ibid at para 31.

13 Ibid at para 29.

14 Ibid at para 51.

15 Every individual is equal before and under the law…without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (Charter, supra note 3, s 15(1), emphasis added)

16 Ontario AG note 1 at para 40.

17 Ibid at para 52.

18 Ibid at para 65.

19 Ibid at para 67.

20 Ibid at para 73.

21 Ibid.

22 Ibid at para 74.

23 Charter, supra note 3, s 52(1).

24 Ontario AG, supra note 1 at 168.

25 Criminal Code, RSC 1985, c C-46.

26 Ibid at para 35.

27 Ibid.