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Constitutional challenge over sex offender registries succeeds

Matter may make its way to the Supreme Court of Canada
|Written By Gabrielle Giroday
Constitutional challenge over sex offender registries succeeds
Marshall Swadron says that ‘individual assessments have to be made if a person is found not criminally responsible.’

Judges with the Ontario Court of Appeal have said that a man who was found not criminally responsible for two sexual assault charges and absolutely discharged should not have to comply with the provincial and federal sex offender registries.

The constitutional challenge in G. v. Ontario (Attorney General) centred on whether the man known as “G” should have to comply with both registries.

In the recent ruling, the Court of Appeal held that the man’s rights were violated under s. 15 of the Canadian Charter of Rights and Freedoms, which refers to equality rights.

“In the over 17 years since those events, the appellant has not committed any criminal acts. His mental illness is being effectively treated. He is a high-functioning, contributing member of the community,” said the ruling by Justice David Doherty, with justices Katherine van Rensburg and William Hourigan concurring.

The man had been found not criminally responsible for two charges of sexual assault over incidents that had happened in his family home in 2001, involving his then-wife.

The ruling said that, when the two sexual assaults happened, the man was “in a manic state brought on by bipolar affective disorder” during a period of time where he’d been “drinking heavily.”

In 2002, he was found not criminally responsible on account of a mental disorder for two charges of sexual assault and two other related charges, and he was discharged by the Ontario Review Board. The ruling noted that the “criminal actions were isolated and totally out of character,” as well as being a “direct product of his acute mental disorder.”

Yet, due to provisions in the provincial sex offender registry, which is governed by an act known as Christopher’s Law, and the federal sex offender registry, which is regulated under the Sex Offender Information Registration Act, the man was required “to personally register with the police.” He was also required to share information such as his photo and any change in address, said the ruling.

“Because the appellant was found NCRMD in respect of two sexual assaults, he remains subject to the sex offender registry provisions in Christopher’s Law for the rest of his life. Similar provisions in [the Sex Offender Information Registration Act] also impose a lifetime order,” said the ruling.

The ruling noted that s. 730 of the federal Criminal Code and s. 4 of the federal Criminal Records Act provided “exit ramps” for people found guilty of sexual offences not to be subject to the registries, “leading away from the obligation to comply with the sex offender registries.”

“The appellant and interveners contend that the sex offender registry legislation has a harsher effect on persons found NCRMD who committed designated offences compared with persons who were found guilty of designated offences. They do not argue that the differential treatment is expressly spelled out in the legislation but rather that it is an effect of the legislation,” said the ruling.  

Ultimately, the court ruled that the man’s name be removed from the registries, “because they impose mandatory registration and reporting requirements on persons found NCRMD who have received an absolute discharge, without any possibility for exemption.”

The court ruled the man would not have to comply with the registries going forward.

The justices also ruled the provisions “of no force or effect as applied to persons found NCRMD who have received an absolute discharge,” but they did not make it immediate.

“I would suspend that declaration of invalidity for 12 months,” said the ruling.

Marshall Swadron, one of the lawyers with Swadron Associates who represented the man, says the ruling shows the need for individual assessments of people found not criminally responsible.

“We can’t use stereotypes; there is no typical person found not criminally responsible,” he says.

“As the Supreme Court has found in other contexts, individual assessments have to be made if a person is found not criminally responsible,” he added.

“I think we have to remember that the treatment of persons found not criminally responsible has to be thoughtful,” he says.

He says following the Court of Appeal’s ruling, the province of Ontario made a motion to stay the individual remedy granted to his client. A motion on the matter took place May 3 at the Ontario Court of Appeal, which was ultimately unsuccessful.

Swadron wrote in an email that his client had just received a decision dismissing Ontario’s motion to stay the individual remedy granted to his client pending its application for leave to appeal to the Supreme Court.

“This means that our client is removed from the Ontario registry and, unless leave to appeal is granted by the Supreme Court, will not again be required to comply with either sex offender registry.”

Erin Dann, who acted for the Criminal Lawyers Association, which was an intervener in the case, says the ruling shows that “the continued registration on these sex offender registries actually can have a negative impact on a person’s mental health.”

“[T]he whole point of the NCR system is supposed to be ensuring we both protect the public but also that we treat the individual,” she says.

Cara Zwibel, who acted for the Canadian Civil Liberties Association, which was also an intervener, says the matter was “a really obvious case of injustice.”

“This case, I think, was a really straightforward one from my perspective where you had two groups of people who may have committed the same type of offence, people found guilty and convicted of committing the offence had some opportunities to either not get on the registry in the first place or to get off the registry and people who were found not criminally responsible didn’t have those same opportunities,” says Zwibel, director of the fundamental freedoms program at the CCLA.

The government of Ontario has already said that it had “served and filed a notice of application for leave to appeal to the Supreme Court of Canada.” 

“The Supreme Court has not yet made a decision regarding the application for leave to appeal. As this matter is before the court, it would be inappropriate to comment further,” said Brian Gray, spokesman for the Ontario’s Ministry of the Attorney General.

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