G v Ontario: Will the SCC balance the scales for sex offences and NCR accused?

Is it fair and just for people charged with sexual offences and found Not Criminally Responsible by Reason of Mental Disorder (“NCR”) and then later given an absolute discharge to be subject to lifelong requirements to register as sex offenders, even when people found guilty of the same offences are not?

That’s a question the Supreme Court of Canada (“SCC”) will contemplate next year. In the meantime, we have the Ontario Court of Appeal’s (“The Court”, “ONCA”) ruling in G v Ontario (Attorney General), 2019 ONCA 264 [Appeal] to consider while we wait for the SCC’s ruling in that case, in which the Court found that the differential treatment infringes on s 15 Charter rights.

Factual and Procedural Background

In 2001, G was charged, and later tried, with two counts of sexual assault against his wife two occasions during which he was experiencing a manic episode connected to bipolar disorder. His wife was not injured in the assaults, and did not bring forward a criminal complaint regarding the assaults. Instead the police charged G after his wife sought their advice about obtaining a restraining order to keep G out of the matrimonial home while his condition remained unstable (Appeal, paras 8-11).

The trial judge found G to be Not Criminally Responsible (“NCR”) and placed  him under the supervision of the Ontario Review Board (“ORB”) pursuant to ss 672.34 – 672.53 of the Criminal Code of Canada, RSC 1985, c C-46 [Criminal Code]. A finding of NCR is not a finding of guilt and is not a conviction. In July of 2002 the ORB granted G a conditional discharge, after which he lived safely in the community for a year, and in August 2003 the ORB granted him an absolute discharge finding that G was not a significant threat to public safety and that he was likely to remain on his medication to treat his bipolar disorder (Appeal, paras  12-14).

On his discharge, G was required to register with police at least once per year, and any time he changed his residence or his name, and any time he was going to be out of the country for more than seven days (Appeal paras 15-18). Those convicted of sexual offences, as opposed to those found NCR, are not required to register with police if and when they are given conditional or absolute discharges (Appeal para 21).

G brought an application before the Ontario Superior Court (“ONSC”) arguing that being forced to register with police violated his rights to life, liberty and security of the person guaranteed by s 7 of the Charter of Rights and Freedoms [Charter]; and that the differential treatment of accused found to be NCR violated his rights to be free from discrimination on the grounds of his disability, as guaranteed by s 15 of the Charter (G v. Attorney General for Ontario et al, 2017 ONSC 6713 [Application].

The application was dismissed, and G appealed to ONCA.

Legal Background

In Ontario, s 3(1) of Christopher’s Law, 2000, SO 2000, c 1, requires people convicted of certain enumerated sex offences, including sexual assault, as well as those found NCR in regard to the same offences to report in person to police once a year after they are released from custody, as well as to report any name change or change of residence. This information is included in a provincially maintained sex offender registry.  People found guilty or NCR of more than one offence face this requirement for the rest of the their lives. Section 10 of Christopher’s Law mandates that the information in the registry may only be accessed by police in the performance of their lawful duties.

Canada imposes similar conditions nationwide via ss 490.012 to 490.032 of the Criminal Code. In the case of the federal law, however, those such as G subject to the registry requirements may apply to have those requirements lifted and their information removed from the registry after 20 years.

Section 748 of the Criminal Code allows the Crown to grant a pardon to people convicted of an offence, which has the effect of erasing that person’s conviction. Under ss 4(1) and 4.1 of the Criminal Records Act, RSC, 1985, c C-47 [Criminal Records Act] the Parole Board of Canada may grant a suspension of a criminal record on application by an offender after 5 years (summary offences) or 10 years (offences proceeding by indictment) if they are satisfied that such a suspension would “would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.”

On receiving either a pardon or a record suspension, people may apply to have the requirement to register with police terminated and to have their information is expunged from the offender registry under s 490.015 of the Criminal Code. Under ss 7(4) and 9.1 of Christopher’s Law the Ontario registration requirement is lifted and the registration information is expunged automatically on the person providing proof of the pardon or record suspension to police.

Further, under s 730 of the Criminal Code the court may grant a conditional or absolute discharge to any person who pleads guilty or who is found guilty of an offence if they are satisfied that “it considers it to be in the best interests of the accused and not contrary to the public interest. On discharge, the person is deemed to be not guilty of the offence and not subject to either the federal or Ontario sex offender registry requirements.

People guilty of sex offences effectively have three “off-ramps” from the sex offender registry requirements – on sentencing, with a discharge; and later with either a pardon or a record suspension.

Because people found NCR have not been found guilty of an offence, neither the pardon, record suspension, nor discharge provisions of the law apply to them. There are no parallel provisions for people found NCR. Under Ontario law, G was required to participate in the registry scheme for the rest of his life, with a 20-year wait to apply to be relieved of his obligations under the federal law. People found NCR have no off-ramp from the registry requirements.

The Court has twice found Christopher’s Law, broadly applied, to be Charter-compliant – in R v Dyck, 2008 ONCA 309 [Dyck] and in R v Long, 2018 ONCA 282 [Long]. In the latter case, the Court also upheld the constitutionality of the federal registry provisions. In both cases, the Court found that while the provisions did engage offenders’ liberty interests, that infringement was consistent with the principles of fundamental justice (Appeal, para 70).

The Court’s s 7 Analysis

In the Appeal, G’s lawyers argued that Dyck/Long ought not be followed in this case for three reasons.  First,  the prior cases had been about the registry requirements applied to people convicted of sex offences, while there was no guilt established in G’s case AND he had been given an absolute discharge by the ORB (Appeal, para 79). Second, in G’s case, application of the registry provisions engaged both G’s liberty and security of the person interests, while the precedents only addressed liberty interests (Appeal, para 82). Finally, they argued that because the SCC had, in Canada (Attorney General) v. Bedford, 2013 SCC 72 [Bedford], changed the analysis of “principles of fundamental justice” in ways in which Dyck was incompatible (Appeal, para 76).

On the first argument, distinguishing G’s case from previous s 7 cases, the Court acknowledged that people found NCR are not guilty of an offence and that those granted an absolute discharge no longer require mandatory treatment for their mental illness.  Applying provisions, the Court said, that are punitive or that require treatment would fully infringe on G’s s 7 Charter rights. The Court found, however, that the Registry provisions are neither punitive nor a form of treatment, but instead are oriented to promoting public safety by creating a registry that aids in the investigation and prevention of sexual crimes (Appeal, para 81).

On the second argument, regarding security of the person, the Court rejected G’s arguments on the grounds that the specific infringements of his security of the person alleged did not fully meet the standard for engaging G’s personal security interest. The Court here ruled that on the facts adduced in the Application that G had not suffered psychological harms that were objectively attributable to the impugned provision, rather G had a subjective and unreasonable perception that the provisions caused him psychological harm (Appeal, paras 85-86).  In Obiter, as well, the Court found that even if the security interest had been engaged that the analysis around principles of fundamental justice would apply equally to that interest as well as to the liberty interest, that Dyck/Long would still apply (Appeal, paras 82-83).

Finally, the Court rejected G’s third argument on the grounds that Long had been decided after and consistently with Bedford, and that Bedford would not have materially changed the analysis in Dyck and that, in sum, the impugned provisions do not run afoul of s 7 of the Charter (Appeal, paras 76-78, 101).

The Court’s s 15 Analysis

Here, the Court applied a three-part test to determine its findings regarding the impugned provisions’ infringement of G’s rights to be free from discrimination on the basis of disability: 1) is there differential treatment of people found NCR vs convicted offenders; 2) is that treatment based on his mental illness and on stereotypes of that illness; and 3) does that treatment disadvantage G?

The Court here found that the differential treatment was facially apparent, given the bare text of the relevant provisions insofar as convicted offenders are given “exit ramps” from the Registry provisions and individual assessment of their risks to public safety  whereas people found NCR have neither (Appeal, paras 102-114).

The Court further found that this differential treatment is due solely to G’s mental health disability and – referring to evidence lead by G in his Application that people found NCR and given an absolute discharge are less likely to reoffend than people found guilty of sexual offences – found that the differential treatment is indeed rooted in unfair stereotypes (Appeal, paras 115-116, 122).

And finally, the Court found that the lack of an “exit ramp” from the Registry scheme for people was, in fact, an unfair disadvantage (Appeal, paras 120-122)

Turning, then, to the question of whether the Registry scheme can be saved via a s 1 Charter analysis the Court found that while there is a pressing and substantial public purpose to the impugned Registry provisions (Appeal, para 139), on the first branch of the test laid out in R v Oakes, [1986] 1 SCR 103, that their application to people found NCR is disproportionate on the third branch of the Oakes test, in that the provisions are not minimally impairing of G’s s 15 rights (Appeal, paras 142-145). Rather, the Court found, some sort of “exit ramp” with individual risk assessment is required for people found NCR (Appeal, paras 145-148).

Disposition and TheCourt.ca’s Analysis

The Court, in this case, found the Registry provisions applying to people found NCR to be of no force or effect, with that declaration suspended for 12 months ending in April of 2020. In specific regard to G, however, he has been relieved of the requirements imposed by the Registry provisions effective immediately (Appeal, para 157).

It seems abundantly sensible that people who have never been found guilty of an offence and who have been found NCR should face consequences that are no more harsh or onerous than people who have been convicted of those exact same crimes. And it would be surprising if the Crown prevailed on their appeal to the SCC of the Court’s s 15 analysis.

There is, however, an internal logical inconsistency regarding the Court’s s 7 analysis and their s 15 analysis. In short, if the Registry provisions are deemed disproportionate regarding the Oakes test as applied to breaches of s 15, how can they be deemed consistent with the principles of fundamental justice under s 7, in which proportionality is also a key part of the test under Bedford (Appeal, para 77)? This is an inconsistency that we hope the SCC will address.