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Appeal by G from the dismissal of his application for a declaration that those provisions of Christopher’s Law and the Sex Offender Information Registration Act that applied to persons found not criminally responsible due to mental disorder (NCRMD) and who had received an absolute discharge from the Review Board breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The appellant was found NCRMD on charges of sexual assault. He was absolutely discharged by the Review Board. The NCRMD finding for sexual offences made him subject to the provincial and federal sex offender registry legislation. The orders made under the legislation applied to him for life.

HELD: Appeal allowed. Aspects of the legislation violated the appellant’s rights under s. 15 of the Charter but not s. 7. The sex offender registry legislation infringed the appellant’s right to liberty but did so in a manner that conformed with the principles of fundamental justice. The appellant could not demonstrate the absence of a rational connection between the purpose of the legislation and its impact on the liberty interest of persons found NCRMD who had received an absolute discharge. While persons found NCRMD stood in a dramatically different place than those convicted of a criminal offence, the sex offender registration and reporting requirements were not imposed as punishment or treatment but directed at promoting public safety through the creation and maintenance of a databank that facilitated the effective investigation and prevention of sexual crimes. Because of the purpose behind the registries, an individualized assessment of risk, though crucial when imposing treatment or punishment, was not required to conform with the principles of fundamental justice. The legislation breached s. 15(1) of the Charter. A person found NCRMD in respect of the same designated offence as a person found guilty of that offence had no opportunity to get out from under the requirements of the sex offender registries by discharges under s. 730 of the Criminal Code or record suspensions under the Criminal Records Act. These exit ramps or any functional equivalents were denied to persons found NCRMD, even after they have received an absolute discharge from the Board. The absence of any exit ramp for persons found NCRMD, constituted differential treatment for the purposes of s. 15(1). The many differences between the treatment of persons found NCRMD and the treatment of persons found guilty of the same offence, including the differential impact of the sex offender registries on those two groups, was based on the mental illness of those found NCRMD and reflected an assumption that persons who committed criminal acts while NCRMD did not change but posed the same ongoing and indeterminate risk they posed at the time of the offence. The constitutional guarantee of substantive equality required that those who had been found NCRMD in respect of designated offences and who had received an absolute discharge be afforded access to some form of individualized assessment as a precondition to their placement or maintenance on a sex offender registry. There must be a process by which those persons could challenge the continued application of the sex offender registry legislation to them, having regard to their personal needs, capacities, and circumstances. The legislation demonstrated that it was not minimally impairing of rights. The object of the sex offender registry legislation could be met by a scheme which allowed for carefully tailored, individualized exceptions or exemptions from the registration and reporting requirements. The respondents did not meet the onus of demonstrating that the infringement of the applicant’s s. 15(1) right to equality before the law was reasonably necessary to achieve the objective of the sex offender registry legislation. The discriminatory impact of the legislation could not be justified under s. 1.

G. v. Ontario (Attorney General), [2019] O.J. No. 1683, Ontario Court of Appeal, D.H. Doherty, K.M. van Rensburg and C.W. Hourigan JJ.A., April 4, 2019. Digest No. TLD-April292019014