The Supreme Court of Canada will deliver a ruling today in a case about whether someone found not criminally responsible (NCR) for a sexual offence who is later absolutely discharged should be required to register with a sex offender registry.
Mr. G, whose name is being withheld due to a publication ban, was found not criminally responsible in 2002 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.
While the federal government did not appeal, it is supporting 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 argue 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 highlight 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.
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 and sexual offence more harshly than those who have been found guilty and convicted of a sexual offence.
If they are given a conditional discharge or an absolute discharge at sentencing, Dann said, people who are found guilty and convicted of a sexual offence never go on the sex offender registry under Christopher’s Law.
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.”
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 loses at the high court, Cara Zwibel, director of fundamental freedoms with the Canadian Civil Liberties Association, said it would be disappointing for all people who live with mental illnesses
“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.”