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CONSTITUTIONAL ISSUES - Equality rights - Grounds of discrimination - Remedies for denial of rights

Friday, November 20, 2020 @ 1:37 PM  

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Appeal by the Attorney General of Ontario from a judgment of the Ontario Court of Appeal that declared Christopher’s Law to be of no force of effect as it applied to individuals found not criminally responsible on account of mental disorder (NCRMD) who had been granted an absolute discharge. Christopher’s Law required those convicted or found NCRMD of a sexual offence to report to a police station to have their personal information added to the province’s sex offender registry and to report annually to update their information. No one found NCRMD could ever be removed from the registry or exempted from reporting, even if they received a discharge from a review board. In 2002, G, the respondent, was found NCRMD of two sexual offences that occurred while G experienced his first and only manic episode. In 2003, he received an absolute discharge by the Ontario Review Board. G was placed on the provincial sex offender registry in 2004. G had not engaged in criminal activity since being absolutely discharged. He had adhered to treatment and his symptoms had been in full remission. G brought an application challenging Christopher’s Law as it applied to persons found NCRMD who had been absolutely discharged. The application judge found no violation of ss. 7 and 15(1) of the Charter and dismissed G’s application. The Court of Appeal upheld the application judge’s finding that there was no s. 7 violation but allowed the appeal on the basis of G’s s. 15(1) claim. It suspended its declaration of invalidity for 12 months to allow the legislature to determine the appropriate response but exempted G from the suspension by ordering that he be immediately removed from and relieved of obligations under the registry.

HELD: Appeal dismissed. Christopher’s Law drew 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. It was determinative that those found NCRMD had no opportunity to be exempted from initial registration, removed from the registry or relieved of the obligation to report while opportunities for exemption, removal and relief were available to those found guilty of the same offences. The distinctions arose because of the NCRMD regime. The distinctions drawn by Christopher’s Law reinforced the stigmatizing idea that those with mental illness were inherently and permanently dangerous and perpetuated the disadvantage they experienced. The discriminatory distinctions could not be justified in a free and democratic society. Christopher’s Law did not minimally impair the s. 15(1) rights of those found NCRMD of a sexual offence who had been absolutely discharged. The declaration of invalidity was properly limited to those who had been found NCRMD of a sexual offence and absolutely discharged. Tailored remedies that addressed the precise constitutional flaw permitted the court to safeguard the constitutional rights of all those affected and preserved the constitutional aspects of the law. The effect of a declaration should not be suspended unless the government demonstrated that an immediately effective declaration would endanger a compelling public interest that outweighed the importance of immediate constitutional compliance and an immediately effective remedy for those whose Charter rights would be violated. In this case, the declaration of invalidity was properly suspended for 12 months, since granting an immediate declaration would endanger the public interest in safety and could risk compromising the legislature’s ability to fulfil its role and restrict the effectiveness of the new version of Christopher’s Law eventually enacted. There was no set rule against combining s. 24(1) and s. 52(1) remedies. Where the effect of a declaration was suspended, an individual remedy for the claimant would often be appropriate. The Court of Appeal’s discretion in granting G an individual exemption from the suspension deserved deference. Since G’s record since his release had been spotless, there was no indication he posed a risk to public safety.

Ontario (Attorney General) v. G, [2020] S.C.J. No. 38, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., November 20, 2020. Digest No. TLD-November162020011-SCC