Charter Rights

SCC Rules Ontario’s Sex Offender Registry Unconstitutional for Those with Mental Illness

Written on behalf of Affleck & Barrison LLP

The Supreme Court of Canada upheld an Ontario Court of Appeal decision which ruled in favour of a man who was found not criminally responsible for a sexual offence on account of a mental disorder (“NCRMD”) and who was later absolutely discharged. The decision held that he should be relieved of reporting requirements and his name be removed from the provincial sex offender registry.

The Road to the Supreme Court

Mr. G, whose name is unpublished due to a publication ban, was found not criminally responsible of two sexual offence charges against his wife.  As we have previously blogged, these charges occurred as a result of Mr. G’s one and only manic episode that took place in September 2001.

Although the Ontario Review Board granted Mr. G an absolute discharge as he no longer posed a significant risk to the safety of the public, he was still required to register with Ontario’s sex offender registry under Christopher’s Law and to report to provincial authorities for life.  Mr. G was also required to register and report under the federal sex offender registry.

Mr. G brought an application before the court arguing that placing individuals who are found NCRMD and are later absolutely discharged on federal and provincial sex offender registries infringes their rights guaranteed under the CharterThis application was dismissed by the Court.

Mr. G appealed the lower court’s decision to the Ontario Court of Appeal.   The higher court allowed Mr. G’s appeal and concluded that Christopher’s Law be of no force or effect as it applies to those individuals who were found NCRMD and were granted an absolute discharge.  The Attorney General of Ontario appealed this decision to the Supreme Court of Canada.

What is ‘Christopher’s Law’?

The Ontario Sex Offender Registry was established following the abduction and murder of 11-year old Christopher Stephenson by a convicted sex offender.  Following the Coroner’s Inquest, it was recommended that a registry be created for convicted, dangerous, high-risk sexual offenders, requiring them to register with the police in the jurisdiction where the offender resides.

On April 23, 2001, the government of Ontario proclaimed that Christopher’s Law was in effect.  This was the first province to establish a sex offender registry.

Christopher’s Law requires that those in Ontario who are either convicted or found NCRMD of a sexual offence to report to a police station to have their personal information added to the Ontario sex offender registry.  Those who are on the registry musts report in person at least once a year and whenever their personal information changes. 

Based upon an individualized assessment, an individual found guilty of a sexual offence can be removed or exempted from the registry and the reporting requirements.  However, an individual found NCRMD of a sexual offence can never be removed from the registry or exempted from reporting.

Constitutional Implications

According to Christopher’s Law, those that are found NCRMD have no opportunity to be exempted or removed from the sex offender registry or to be relieved of their reporting requirements.  Therefore, it is clear that those found NCRMD are subjected to different treatment simply based upon their mental illness.

One of the functions of section 15(1) of the Charter is to prevent discrimination of those facing stigma and prejudicial treatment due to mental illnesses. 

The Supreme Court dismissed the appeal by the Attorney General of Ontario and agreed with the appeal court that Ontario’s sex offender registry law unconstitutionally prohibits those found NCRMD, but given an absolute discharge, an opportunity to be relieved of the requirements of the registry.

According to Justice Karakatanis, writing on behalf of the majority of the Supreme Court:

In my view, Christopher’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter.  These discriminatory distinctions cannot be justified in a free and democratic society. 

I have no difficulty concluding that the denial of exit ramps to those found NCRMD and discharged is discriminatory.  …

The distinction drawn by Christopher’s Law reinforce and further the stigmatizing idea that those with mental illness are inherently and permanently dangerous, and in so doing, perpetuate the disadvantage they experience.  …

[F]orced compliance with registry requirements, … can also contribute to a “double stigma” for those found NCRMD, as a result of being both “mentally ill” and a “sexual offender”. …

By withholding exit ramps, Christopher’s Law signals that the law considers G a perpetual threat to the public.  That the state will not take its eyes off G suggests that, in the opinion of the law, he will always be dangerous.

According to the Supreme Court decision, Mr. G’s name will remain off of the Ontario registry.  This decision also requires that the Ontario government amend Christopher’s Law in order to comply with the Supreme Court decision.   

We will report in this blog on the government’s response to this recent decision and any amendments made to the legislation as ordered by the Supreme Court of Canada.

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.