The Supreme Court of Canada has ruled in favour of an Ontario man found not criminally responsible (NCR) for a sexual offence in 2002 who was later absolutely discharged and sought to have his name kept off a sex offender registry.
Mr. G, whose name is being withheld because of a publication ban, was found not criminally responsible for two counts of sexual assault and other offences against his wife.
In 2003, the Ontario Review Board gave Mr. G an absolute discharge, but he still had to register with the provincial sex offender registry under what’s known as Christopher’s Law and report to provincial authorities for life.
He was also required to register and report under the federal sex offender registry.
Mr. G took legal action in 2014 by arguing the application of the federal and provincial sex offender registries to people found not criminally responsible who are then granted an absolute discharge infringes their rights to life, liberty, security and equality guaranteed by the Charter of Rights and Freedoms.
In 2017, the Ontario Superior Court of Justice dismissed Mr. G’s application, but the Ontario Court of Appeal unanimously allowed his appeal in 2019 and concluded both the provincial and federal sex offender registries infringed his charter rights. Mr. G’s name was removed from the federal and provincial registries.
Friday’s 7-2 decision means Mr. G’s name will stay off the Ontario registry and the provincial government will have to amend Christopher’s Law to bring it into constitutional compliance.
While the federal government did not appeal, it supported the attorney general of Ontario’s pursuit to overturn the decision with the view that it requires the public to bear a greater risk of sexual offences.
The governments argued the registry is not meant to punish, but rather to promote public safety through the creation of a database of individuals at higher risk of committing designated offences. They also highlighted evidence accepted by the application judge that people found not criminally responsible represent a higher risk of recidivism for sexual offences than the general population.
In an email statement to CBC News, a spokesperson for Ontario’s Ministry of the Attorney General said the province is reviewing the top court’s ruling.
“We are disappointed that the Supreme Court of Canada dismissed Ontario’s appeal in this matter,” wrote the ministry’s spokesperson.
No ‘exit ramps’ for people found NCR
But Toronto-based lawyer Erin Dann, who represented the Criminal Lawyers’ Association as an intervener in the case, said the provincial law treats people who have been found not criminally responsible by reason of a mental disorder for a sexual offence more harshly than those who have been convicted and given a conditional discharge or an absolute discharge at sentencing.
Under Christopher’s Law, those people never go on the sex offender registry.
If they are convicted, pardoned or given a record suspension, they can come off the list. Meanwhile, people who are found not criminally responsible are automatically placed on the registry.
“While people who have been convicted and found guilty have some exit ramps, as the Court of Appeal called them, people who are found NCR do not,” Dann said.
“We’re certainly not arguing — and the Court of Appeal didn’t find — that someone who is found NCR should never be placed on a sex offender registry or that they can’t stay on the registry for life, if that’s appropriate. All we’re saying is that there has to be some means where there’s an assessment of whether it’s necessary and appropriate to keep them on the registry.”
By denying exit ramps, Justice Andromache Karakatsanis said Christopher’s Law presumes that those found not criminally responsible have no prospect for rehabilitation and perpetuates disadvantages and negative stereotypes about people with mental illness.
Mr. G, who has bipolar disorder, had his first and only manic episode following the terror attacks of Sept. 11, 2001.
His lawyers say Mr. G’s actions were isolated, totally out of character and a direct result of his acute mental disorder, which is being effectively treated.
They also say the victim of the offence, his former spouse, is supportive of him.
If Mr. G lost at the high court, it would have been disappointing for all people who live with mental illnesses, said Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association.
“There’s no evidence to suggest that this kind of change [to the sex offender registry] would create a greater risk, would hamper the police from doing their job,” Zwibel said.
“This is really a question of equality and justice for people who the criminal law has recognized are not responsible for the actions that they took when they were suffering from a mental illness.”