Appeals

Sex Offender Registries Found to Discriminate Against those with Mental Illness

Written on behalf of Affleck & Barrison LLP

The Ontario Court of Appeal was asked to review sex offender registries in Ontario and Canada and assess whether individuals who are found not criminally responsible on account of a mental disorder (“NCRMD”) for a sexual offence should be included on these registries.

The Ontario Court of Appeal, in the case of G. v. Ontario (Attorney General), recently concluded that the sex offender registry schemes discriminate against individuals with a mental illness.

WHAT HAPPENED?

The appellant, G (the name used to protect his identity), is a middle-aged executive who lives in a middle-class GTA neighbourhood with his second wife. 

In 2001, G’s father unexpectedly died, he endured an exhausting business trip to South America and he experienced anguish following the September 11th attacks.  In early September 2001, G began undergoing symptoms of grandiosity, paranoia, difficulty sleeping and irritability.  He began spending excessive amounts of money, drinking heavily and experiencing a heightened sex drive. 

One day, G asked his wife to have sex with him and began pulling her upstairs to their bedroom.  He then stopped for a cigarette and a beer, at which point his wife called the police.  The police arrived and advised G to move out for a few days.  He left, but then returned to apologize to his wife.  G apparently ran 22 miles to return home, while hearing voices telling him to jump in front of traffic.  He asked his wife again to have sex with him and he “mistook her acquiescence due to fear of upsetting me as agreement”.  His wife did not consent. 

G’s wife proceeded to obtain a restraining order.  G voluntarily went to a hospital and was diagnosed with a bipolar disorder.  G then proceeded to break the restraining order and was put in jail.   Prior to these incidents, G had no history of mental illness and no criminal record.

In June 2002, G was found NCRMD for two sexual offences against his wife, forcible confinement and violating the restraining order.  He appeared before the Ontario Review Board in July 2002 and received a conditional discharge and was allowed to live in the community under certain conditions.

In August 2003, G received an absolute discharge from the Ontario Review Board, while he continued to receive treatment, take medication and return to work.  He learned at this time that he would be on Ontario’s sex registry for life and would be added to the federal sex registry (where he could apply for removal after 20 years).

G was required to report to the parole and bail office regularly, provide physical details of his body parts, report all travel plans, and attend an annual check-in.  He described these requirements as “punishing psychologically”.

G stated:

Every time I report, it takes time to prepare and gather my emotions, which is arduous.  I have to prepare for possible negative interactions with some really tough cops.

G maintains that during the last 15 years he has remained law-abiding, and the fact that he has continued to be listed on the sex offender registry causes him significant angst and stress.

G’s ex-wife’s affidavit set out that G’s mental health “impacted his thoughts and actions when the sexual assaults took place”.  She believes that being on the sex offender registries was a “significant hardship for him”.

THE ONTARIO COURT OF APPEAL DECISION

The Ontario sex offender registry was established in 2001 pursuant to Christopher’s Law.  In December 2004, the federal sex offender registry became law pursuant to the Sex Offender Information Registration Act (“SOIRA”).

G’s lawyers, along with lawyers for the Canadian Civil Liberties Association, the Empowerment Council and the Criminal Lawyer’s Association, argued that the federal SOIRA and Ontario’s Sex Offender Registry violate G’s rights under the Canadian Charter of Rights and Freedoms.

Justice David Doherty, writing for the unanimous three-judge panel, agreed that G’s rights had been violated under section 15 of the Charter, which state that every individual should be equal before and under the law without discrimination, including for mental or physical disability.

Justice Doherty wrote:

the absence of any “exit ramp” from the sex offender registries (apart from a termination order after 20 years in the case of SOIRA) reflects an assumption that persons who committed criminal acts while NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence.  This assumption feeds into the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous.

Justice Doherty went on to state:

I hold that the equality command of s. 15(1) dictates that NCRMD persons who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offender registry orders on their mental health and continued recovery.

The Court of Appeal concluded that the provisions of Christopher’s Law and the SOIRA are of no force or effect as they impose mandatory registration and reporting requirements with no possibility of exemption on persons found NCRMD who have received an absolute discharge. 

The Court ordered that the declaration of invalidity of both Christopher’s Law and the SOIRA be suspended for twelve months to allow for Parliament to provide an appropriate legislative response.  Furthermore, it was ordered that G be removed from the sex offender registries and that he was no longer required to comply with the obligations as set out in the infringing legislation.

We will continue to keep on top of any changes to the sex offender registries in both Ontario and Canada and will report in this blog the government’s legislative response to the Ontario Court of Appeal’s latest decision.

If you have any questions regarding charges that have been laid against you or your legal rights, please contact the knowledgeable criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  For your convenience, we offer a 24-hour telephone service to protect your rights and to ensure that you have access to justice.