• Lewis Waring

The NCRMD Defence - Bob Smith

A judgment of not criminally responsible on account of mental disorder (“NCRMD”) is strictly concerned with the mental state of the accused at the time of the offense. Unfortunately, although the individual’s mental state may improve after the offense, the stigma of the NCRMD judgment can follow them for the remainder of their lives. As we will see shortly, it can lead to a lifetime of restrictions even when research indicates that the rates of recidivism for NCRMD individuals is lower than regular offenders who were convicted and found guilty. While the following case is a step forward in the way NCRMD individuals are treated, there is much work to be done before true equality can be reached between those found NCRMD and regular offenders under our criminal law system.

Ontario (Attorney General) v. G

The Supreme Court of Canada’s (“the Court”) decision in the case of Ontario (Attorney General) v. G (“G”) seems to be a step in the right direction. This is a case where there was a distinction between sexual offenders found NCRMD and regular convicted sex offenders in relation to their registration in the Ontario Sex Offender Registry. While regular offenders had a mechanism to potentially get their information removed from the registry, no one found NCRMD can be removed from the registry. The law creating this distinction in Ontario is Christopher's Law (Sex Offender Registry) (“Christopher’s Law”), which held that those convicted or found NCRMD of a sexual offense must report and have their information added to the province’s sex offender registry, update it once a year, and update it whenever information changes. On the other hand, those who are found guilty of sex offenses can get their information removed in several ways, including by receipt of a free pardon, a criminal record suspension, or a discharge; no such options exist for those found NCRMD. Those found NCRMD “must report upon discharge by a provincial review board or court, without exception, no one found NCRMD can ever be removed from the registry, and no one found NCRMD can ever be exempted from reporting”.

Now, to get a flavor of the intrusive nature of the registry established under Christopher’s Law, note that it contains the names, date of birth, addresses, personal and business numbers, employers, descriptions, and photographs of those found NCRMD. Furthermore, registrants must present themselves physically at police stations once a year for 30-60 minutes as a part of their reporting obligations. Information in the registry can also be disclosed to police forces outside Canada for crime prevention purposes. Finally, Christopher’s Law requires the police to attempt to verify the offender’s address, which can include paying a visit to the registrant’s house. Not only are some of these restrictions humiliating, imagine a police officer dropping by your house while you are having a barbeque with friends to ask if you are the sex offender in the registry. These requirements are a clear restriction of the liberties of these individuals for their entire lives.

The Case

In this case, the claimant, G, who was found NCRMD of two sexual offenses in 2002, was subsequently absolutely discharged and has not had any offense added to his record in the 19 years since. Regardless, thanks to the distinction that Christopher’s Law draws, he must continue to report for the rest of his life and can never be taken off of the Ontario Sex Offender Registry, even after he dies. G, who was in full remission, and admittedly “[not] a significant risk to the safety of the public,” was simply unable to put his manic episode and unstable past behind him thanks to this legislation. On this basis, G brought an application challenging the constitutionality of Christopher’s Law as it related to those found NCRMD and who were absolutely discharged. He argued that Christopher’s Law violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter”).