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SEX OFFENDER REGISTRY - Exemption - Constitutional issues - Canadian Charter of Rights and Freedoms

Monday, January 22, 2018 @ 12:46 PM  

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Application by G to exempt persons found not criminally responsible and who had received an absolute discharge from the obligation to register and report under Christopher's Law and the Sex Offender Information Registration Act (SOIRA). G sought removal of his name from both registries. G had been charged with two counts of sexual assault, forcible confinement and harassment against his wife. G was subsequently diagnosed with acute bipolar affective disorder. In June 2002, G was found not criminally responsible on account of mental disorder (NCR) in respect of the charges and received an absolute discharge. A year later, G was notified that he would be placed on the Ontario Sex Offender Registry for life, without any right of review. In January 2005, in the course of reporting under Christopher’s Law, he was informed that he had been placed on the Federal Sex Offender Registry (SOR). In regard to individuals found NCR who had been absolutely discharged, G sought a declaration that the SOR, the SOIRA and ss. 490.011 to 490.02911 and 490.031 of the Criminal Code were of no force and effect. It was also submitted that Christopher's Law breached G's rights under the Canadian Charter of Rights and Freedoms (Charter). G took the position that the inability of those in his situation to be granted an exemption, a termination order or a pardon breached ss. 7 and 15 of the Charter. The Attorney General of Ontario conceded that Christopher’s Law implicated G’s liberty interest under s. 7 of the Charter. The Attorney General for Canada acknowledged that the SOIRA also placed constraints on G’s liberty rights.

HELD: Application dismissed. Registration and the requirement to report under Christopher's Law and the SOIRA did not amount to a breach of security of the person under s. 7 of the Charter. There was insufficient evidence to demonstrate impacts related to registration caused serious psychological effects to support a breach of G's security of the person. As such, it was not necessary to consider whether G had been deprived of that right in accordance with the principles of fundamental justice. However, as both the Attorneys General had conceded that there had been a breach of G’s liberty, the question of whether G had been deprived of that right in accordance with the principles of fundamental justice had to be addressed. The reasoning in R. v. Dyck, in which the Ontario Court of Appeal held that any restriction of liberty under Christopher's Law was in accordance with fundamental justice, also applied here. It could not be said that the deprivation of liberty resulting from the obligation to register and report to the police had "no rational connection" to the objectives of Christopher's Law and SOIRA. The laws were not arbitrary. The legislation was also not overbroad in relation to persons who had been found NCR. Significant studies demonstrated there was no lesser or different risk of a person found NCR reoffending than there was for an individual found guilty. Those who had been found NCR did present a risk to the general public. That risk was the same as it was for those who had been convicted of sexual crimes. The test for gross disproportionality of the legislation was also not met. The impact of complying with the requirements of the SOIRA was not grossly disproportionate to the purpose of the registry. The registry provided a useful tool for law enforcement officials to investigate and prevent offences of a sexual nature. That G had been granted an absolute discharge did not support a determination that requiring the applicant to register showed the disputed sections of the Criminal Code to be overbroad and grossly disproportionate. In regard to s. 15 of the Charter, the legislation in question did not create a distinction on which to base a claim of discrimination between those found guilty of a crime of a sexual nature and those found NCR. Direct discrimination had not been demonstrated. A disproportionately negative impact of the legislation had also not been shown. There was no evidence supporting any substantive effect or impact, and thus no demonstration of indirect discrimination. The laws in question did not create a distinction based on the enumerated or analogous ground. Further, any distinction created did not perpetuate an arbitrary disadvantage, prejudice or false stereotype. There was no breach of ss. 7 or 15(1) of the Charter and any impairment to the rights of a person found NCR fell within the reasonable limits set by law under s. 1 of the Charter.

G. v. Ontario (Attorney General), [2017] O.J. No. 6355, Ontario Superior Court of Justice, T.R. Lederer J., November 22, 2017. Digest No. TLD-January222018001