G. v. Attorney General for Ontario et al.

[Indexed as: G. v. Ontario (Attorney General)]

Ontario Reports 145 O.R. (3d) 161 | 2019 ONCA 264

Court of Appeal for Ontario

Doherty, van Rensburg and Hourigan JJ.A.

April 4, 2019

Case Summary

Charter of Rights and Freedoms — Equality rights

Christopher's Law (Sex Offender Registry) and Sex Offender Information Registration Act unjustifiably violating s. 15(1) of Charter and being of no force or effect to extent that they impose mandatory registration and reporting requirements with no possibility of exemption on persons found not criminally responsible on account of mental disorder who have received absolute discharge from Ontario Review Board — Declaration of invalidity suspended for 12 months — Canadian Charter of Rights and Freedoms, s. 15(1) — Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 — Sex Offender Information Registration Act, S.C. 2004, c. 10.

Charter of Rights and Freedoms — Fundamental justice

Christopher's Law (Sex Offender Registry) and Sex Offender Information Registration Act not violating s. 7 of Charter to extent that they impose mandatory registration and reporting requirements with no possibility of exemption on persons found not criminally responsible on account of mental disorder who have received absolute discharge from Ontario Review Board — Canadian Charter of Rights and Freedoms, s. 7 — Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 — Sex Offender Information Registration Act, S.C. 2004, c. 10.

Facts

The applicant was found not criminally responsible on account of mental disorder ("NCRMD") on charges of sexual assault in 2002. His criminal actions were isolated and totally out of character, and were the direct product of his acute mental disorder. He was absolutely discharged by the Ontario Review Board ("ORB") in 2003 and had not reoffended. The finding that the applicant was NCRMD in respect of sexual offences made him subject to the registration and reporting requirements Christopher's Law (Sex Offender Registry), 2000 and the Sex Offender Information Registration Act ("SOIRA"). He could apply for a termination of the SOIRA order 20 years after being found NCRMD, but would be subject to the Christopher's Law registry provisions for the rest of his life. He applied for a declaration that Christopher's Law and SOIRA violate ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms to the extent that they apply to persons found NCRMD who have received an absolute discharge from the ORB. The application was dismissed. The applicant appealed.

Held

The appeal should be allowed.

The sex offender registration legislation infringed the applicant's right to liberty under s. 7 of the Charter, but did so in a manner that conformed with the principles of fundamental justice. The purpose of the legislation is to assist in the investigation and prevention of sexual offences by providing the police with access to information about the identity and whereabouts of persons who have previously committed sexual offences. Sex offender registry legislation that reaches persons who have committed a designated offence and who pose either some risk of committing a serious crime or a significant risk of committing a non-serious crime is not arbitrary or overbroad. The granting of an absolute discharge to a person found NCRMD in respect of a designated offence does not mean that that person poses no, or even little, risk of committing another designated offence. The determination of risk for absolute discharge purposes under Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46 requires an individualized assessment, as the imposition of state-imposed sanctions, some of them severe, on the liberty of a person found NCRMD are justified only so long as the individual presents a "significant risk" to the safety of the public. The much more modest intrusions on individual liberty imposed by Christopher's Law and SOIRA do not, however, depend on or reflect any finding or prediction as to the risk of reoffending tailored to the individual. Instead, those provisions are predicated on a statistical connection between the commission of a designated offence and the heightened risk of committing another designated offence. The application judge was satisfied, on the evidence before him, that an actuarial connection between the commission of a prior designated offence and the risk of committing a further designated offence continues to exist even after a person who had been found NCRMD receives an absolute discharge. There is a rational connection between the purpose of the impugned legislation and its impact on the liberty interest of persons found NCRMD who have received an absolute discharge.

The impugned provisions violate s. 15(1) of the Charter. Persons who are found guilty of committing a designated offence and who receive a discharge under s. 730 of the Criminal Code are not required to register under Christopher's Law or SOIRA. Section 4 of the Criminal Records Act, R.S.C. 1985, c. C-47 allows most persons who have been convicted of a designated offence to apply for a record suspension either five or ten years after completing their sentence. An offender who receives a record suspension is automatically removed from the provincial sex offender registry and can apply for a termination of his SOIRA order. Neither s. 730 of the Code nor s. 4 of the Criminal Records Act applies to persons who committed a designated offence and were found NCRMD. The absence of any "exit ramp" leading away from the obligation to comply with the sex offender registries for persons who were found NCRMD constitutes differential treatment for the purposes of s. 15(1) of the Charter. That differential treatment is based on the enumerated ground of mental disability. The absence of any "exit ramp" from the sex offender registries (apart from a termination order after 20 years in the case of SOIRA) reflects an assumption that persons who committed criminal acts while NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence. That assumption feeds the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous. The guarantee of substantive equality in 15(1) requires that any NCRMD person who has received an absolute discharge must have the opportunity to demonstrate that the imposition or continuation of a sex offender registry order is not appropriate in that person's circumstances. Neither Christopher's Law nor SOIRA provides that opportunity.

The infringement of s. 15(1) is not justified under s. 1 of the Charter. The public safety objective underlying the sex offender registry legislation is pressing and substantial, and there is a rational connection between that objective and the registration and reporting requirements. However, the impugned provisions do not minimally impair the s. 15(1) rights of NCRMD persons who have been granted an absolute discharge by the ORB. The provisions are of no force or effect as applied to persons found NCRMD who have received an absolute discharge. The declaration of invalidity is suspended for 12 months. That suspension does not apply to the applicant, whose name should be removed from both registries.

Authorities Cited

Cases Followed:

Cases Considered:

Counsel

For the Appellant: Marshall A. Swadron, Sarah M. Latimer, Joanna Weiss

For the Respondent Attorney General for Ontario: S. Zachary Green

For the Respondent Attorney General for Canada: Roy Lee, Andrew Law

For the Intervenor Canadian Civil Liberties Association: Cara Zwibel, Rob De Luca

For the Intervenor Empowerment Council: Anita Szigeti, Andrew Menchynski

For the Intervenor Criminal Lawyers Association: Erin Dann

Judgment

The judgment of the court was delivered by DOHERTY J.A.

I. Overview

[1] The appellant was found not criminally responsible on an account of mental disorder ("NCRMD") on two charges of sexual assault and two related charges in June 2002. He was absolutely discharged by the Ontario Review Board (the "ORB") in August 2003.

[2] The finding that the appellant was NCRMD in respect of sexual offences made him subject to the provincial sex offender registry, which was established in 2001 pursuant to Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. When the federal sex offender registry legislation came into force in December 2004, the appellant also became subject to the provisions in that Act: Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA"). The appellant is required, under both registries, to personally register with the police and provide the information required by the applicable statues and regulations. The appellant must give the police a current photograph and report annually. He must advise the police of any change in the data he has provided, including any change of address. Failure to comply with any of the requirements is an offence potentially punishable by imprisonment.

[3] Because the appellant was found NCRMD in respect of two sexual assaults, he remains subject to the sex offender registry provisions in Christopher's Law for the rest of his life. Similar provisions in SOIRA also impose a lifetime order. However, SOIRA contains provisions allowing the appellant to apply to a court for a termination of the SOIRA order. The appellant can apply for a termination order in 2022, 20 years after he was found NCRMD.

[4] This court has upheld the constitutionality of both the provincial and federal sex offender registries as applied to persons convicted of sexual offences: see R. v. Dyck, 2008 ONCA 309; R. v. Long, 2018 ONCA 282. The appellant does not challenge the constitutionality of the registries as applied to all persons found NCRMD. He does, however, challenge those provisions as they apply to persons found NCRMD who have received an absolute discharge from the ORB.

[5] The appellant, supported by the intervenors, submits that various aspects of both legislative schemes violate the appellant's rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The appellant further submits that the infringements of those constitutional rights cannot be justified under s. 1 of the Charter.

[6] Both the federal and provincial Attorneys General argue that the registries are Charter-compliant. They further contend that if there is a breach of s. 7 or s. 15, those breaches can be justified under s. 1.

[7] The appellant's arguments failed before the application judge. Like the application judge, I would reject the appellant's s. 7 arguments. However, I would hold that aspects of the legislation do violate the appellant's rights under s. 15 of the Charter, and that those violations cannot be justified under s. 1. I would declare the provisions of no force or effect as applied to persons found NCRMD who have received an absolute discharge. I would suspend that declaration of invalidity for 12 months. I would further hold that the suspension of invalidity should not apply to the appellant. His name should be removed from the registries and he should not be subject to those registries in the future.

II. Facts

[8] The appellant was born in 1961. He was a successful student, had a good job and a loving family. Prior to September 2001, he had no history of major mental illness and no criminal record.

[9] In early September 2001, the appellant experienced his first manic episode. A month later, in October 2001, the police charged him with two counts of sexually assaulting his then-wife, one count of unlawfully confining her and one count of harassment. The charges arose out of two incidents that occurred in the family home in late September 2001.

[10] The two incidents occurred while the appellant was in a manic state brought on by bipolar affective disorder. He was also drinking heavily during that period of time. In the course of the incidents, the appellant confined his then-wife in their home, and on one occasion he had sexual intercourse with her, without her consent.

[11] Fortunately, the appellant's former wife was not injured in either incident. A few weeks later, the appellant's wife called the police to help her to keep the appellant out of the family home. The appellant was charged as a result of the police involvement. Although the marriage ended, the appellant's former wife remains supportive.

[12] In June 2002, the appellant was found NCRMD on all charges. The appellant first appeared before the ORB in July 2002 and received a conditional discharge. He lived in the community under the terms of that conditional discharge until August 2003, when the board ordered that the appellant be absolutely discharged. The appellant has not been under the authority of the ORB for 15 years. There is no suggestion that, in those 15 years, the appellant has engaged in criminal activity, much less criminal activity involving sexual misconduct. By all accounts, he lives a law-abiding and productive life.

[13] The application judge quoted from the ORB's disposition granting the appellant an absolute discharge. The ORB's comments bear repeating:

The Board finds unanimously that the accused is not a significant threat to the safety of the public. Although he suffers from a bipolar affective disorder which led to the criminal behaviour evident in the index offences, that mental state is well treated at this time. In the past year Mr. G has engaged in no inappropriate behaviour despite minor fluctuation in mood. He has good insight into his illness and the value of medication. He has remained compliant with treatment recommendations both in the area of pharmacotherapy and psychotherapy and based on the evidence is likely to continue to remain compliant with treatment in the future.

There is simply no evidence to find that the accused is a significant risk to the safety of the public and therefore the Board grants an absolute discharge.

[14] The board's prediction that it was "likely" that the appellant would remain compliant with his treatment regime in the future has been borne out in the 15 years since he was absolutely discharged.

III. The Legislative Schemes

[15] The Ontario sex offender registry came into effect in 2001 with the enactment of Christopher's Law. The federal scheme followed in 2004 with the enactment of SOIRA and amendments to the Criminal Code, R.S.C. 1985, c. C-46. The two schemes are similar, and in practice operate together to a large extent. For example, in Ontario, persons can usually fulfill their reporting obligations under both Acts by a single attendance at the appropriate police station.

[16] Both schemes provide for court orders requiring persons convicted of, or found NCRMD in respect of designated sexual offences to report to the police and provide the information required under the two schemes. The reporting requirements for persons found NCRMD are triggered when the ORB grants a conditional or absolute discharge.

[17] Persons must report annually, and when they change their residence or name. SOIRA also requires persons who are subject to a SOIRA order to notify the police, although not in person, of any plans to be out of the country for more than seven days. Those persons must provide the police with a list of the places they intend to stay while out of Canada.

[18] Persons required to register under both schemes must provide their name, address, date of birth, places and addresses of employment, telephone numbers, vehicle descriptions and licence numbers, and the names and addresses of any educational institutions they attend or volunteer organizations with which they are associated. The police must be notified of any changes in that information.

[19] The information provided under the order is entered in the sex offender registries, along with additional information providing particulars of the relevant offences. Information in the registries is carefully segregated from other police-gathered information. Access is limited. It is an offence to unlawfully disclose any of the information contained in the registries: SOIRA, ss. 16, 17; Christopher's Law, ss. 10, 11(2).

[20] Persons who are subject to an order made under SOIRA or Christopher's Law must comply with the order for a specified period of time, which varies depending on the nature and number of offences. For individuals like the appellant, who are convicted or found NCRMD in respect of more than one sexual offence, the orders made under Christopher's Law and SOIRA apply for life.

[21] Persons who are found guilty of sexual offences but receive a conditional or absolute discharge under s. 730 of the Criminal Code at the time of sentencing are deemed by s. 730(3) not to have been convicted of the offence. Those persons are not required to register under either the provincial or federal schemes. Individuals found NCRMD are not found guilty, and are therefore not eligible for a discharge under s. 730 of the Criminal Code.

[22] As originally enacted, SOIRA provided that persons who were required to register could apply to a judge for an exemption from the registration requirement. To obtain the exemption the offender had to satisfy the court that the impact on her privacy or liberty would be grossly disproportionate to the public interest in requiring registration. In 2011, the Criminal Code was amended to remove the exemption provision from s. 490.012.

[23] The exemption from registration remains a possibility only in limited situations. Only one need be addressed here, since only one could potentially have applied on the facts of this case. If the obligation to register under SOIRA arises by virtue of a conviction or NCRMD finding that predates the coming into force of the legislation on December 15, 2004, a person who is required to register may apply for an exemption pursuant to s. 490.023(2), which provides:

490.023(2) The court shall make an exemption order if it is satisfied that the person has established that the impact of the obligation on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.

[24] Section 490.023(2) applied to the appellant, since his NCRMD finding predated the coming into force of SOIRA. He was entitled to apply for an exemption from registration in the 12-month period after he received notice of the requirement to register in January 2005. He did not apply for an exemption.

[25] If an exemption is granted under s. 490.023(2), the police are obligated to remove all information pertaining to that person from the registry: Criminal Code, s. 490.023(4); SOIRA, s. 15(3)(c).

[26] There is no exemption provision in Christopher's Law.

[27] SOIRA also provides that persons who are required to register may apply for a termination order: Criminal Code, s. 490.026. Someone who is subject to a lifetime order, like the appellant, may apply for a termination order 20 years after he was found NCRMD: s. 490.026(3). If the application is unsuccessful, the person may bring a further termination application five years after the refusal of the initial application: Criminal Code, s. 490.026(5). A person may also apply for a termination order under SOIRA if he has received a record suspension or pardon: Criminal Code, s. 490.026(4). If a termination order is made, the offender's information is removed from the registry.

[28] An application for a termination order is made to a judge. The judge applies the same test that is applied on an application for an exemption order: see Criminal Code, s. 490.027(1).

[29] Christopher's Law does not contain provisions allowing registered persons to apply for a termination order. Section 9.1 of the Act does, however, provide for automatic deletion from the provincial registry if the offender receives a pardon or record suspension in respect of all sexual offences that led to his placement on the registry.

[30] Persons found NCRMD are not convicted of any crime. Consequently, provisions in Christopher's Law or SOIRA that depend on the offender having been granted a pardon or record suspension have no application to persons found NCRMD.

IV. The Evidence on the Application and the Judge's Factual Findings

[31] The applicant's evidence focused on his mental health problems in 2001, his recovery and stabilization after the events of late September 2001, and the many emotional and other problems he claims have flowed from his placement on the sex offender registries and the ongoing reporting requirements imposed on him by Christopher's Law and SOIRA.

[32] The application judge rejected some of the appellant's evidence connecting certain events to his inclusion on the sex offender registries. For example, the application judge did not accept that the appellant's firing in early 2012 had any connection to his name being on the sex offender registries, or that his employer was even aware that the appellant was on the registries. The application judge also found no evidence to support the appellant's belief that Canadian authorities had revealed his status as a registered sex offender to the American authorities, who in turn had denied the appellant access to the United States in September 2011.

[33] The application judge concluded that in some instances the appellant did not distinguish between problems arising from his placement on the sex offender registries and the reporting conditions imposed on him as a result, and problems arising from the fact that he had been found NCRMD in respect of sexual offences. The application judge correctly observed that the nature of the charges against the appellant, the circumstances that led to those charges, his NCRMD finding and the ORB's decisions were all matters of public record. Disclosure of those details and any problems that might flow from that disclosure had nothing to do with the appellant being subject to the requirements of the sex offender registries.

[34] The appellant's long-time treating psychiatrist, Dr. Leslie Kiraly, also gave evidence for the appellant. He outlined his clinical history with the appellant and described the negative impact the requirements under the sex offender registries had on the appellant's mental health.

[35] The application judge was not impressed with some of Dr. Kiraly's evidence. He said:

Dr. Leslie Kiraly is the treating psychiatrist of the applicant and provided an affidavit. Reports he has prepared are attached as exhibits. I have relied on that evidence for Dr. Leslie Kiraly's observations of what transpired. I am not prepared to give any weight to his observations as to the impact registration has had on the applicant.

[36] The application judge viewed Dr. Kiraly as an advocate for the appellant who tailored his answers to assist his patient. The application judge gave examples from Dr. Kiraly's evidence demonstrating that Dr. Kiraly had provided misleading information about relevant events, or had changed his description of the appellant's mental condition depending on the audience for whom Dr. Kiraly's report was intended. The application judge was not prepared to rely on Dr. Kiraly's evidence about the negative impact the registration requirements under the Acts had on the appellant.

[37] Dr. Johann Brink, the head of forensic psychiatry at the University of British Columbia, also gave evidence for the appellant. He had not treated or examined the appellant, but was an acknowledged expert in the assessment, treatment, and reintegration of persons found NCRMD. Dr. Brink's evidence focused on what he saw to be the many burdens placed on persons found NCRMD by the reporting and registration requirements in Christopher's Law and SOIRA. Dr. Brink opined that those requirements posed a significant impediment to the rehabilitation and reintegration into the community of persons like the appellant. Dr. Brink stressed the risk of improper disclosures and the ongoing stigmatization associated with the reporting requirements under both statutes. Dr. Brink also critiqued various aspects of the actuarial evidence advanced by the Attorneys General to show the risk of reoffending posed by persons who were found NCRMD in respect of sexual offences.

[38] The application judge rejected much of Dr. Brink's evidence about the operation of the sex offences registries because Dr. Brink's evidence showed that he did not understand how the registries actually operated. For instance, Dr. Brink was apparently unaware of the measures in place to closely limit access to information contained in the registries, even by police officers.

[39] The evidence offered by the Attorneys General on the application described the operation of the registries and the measures in place to limit access to the information in those registries. The evidence also provided anecdotal information about situations in which the registries had proved useful in effectively investigating sexual offences and apprehending offenders.

[40] The application judge accepted that the registries provided a useful tool to the police. He said:

Making timely and up-to-date information about the identity and whereabouts of individuals who, by their prior actions, are at a higher risk of repeating such actions available to the police improves the ability of law enforcement to react, investigate and prevent such actions and crimes. By expediting these investigations, the registries allow police to more quickly eliminate those that might otherwise be treated as potential suspects.

[41] The risk of recidivism posed by persons who have committed sexual crimes figured prominently in the evidence. The Attorneys General relied on the evidence of Dr. Karl Hanson, a research manager with Public Safety Canada. He is a leading expert on the use of statistical methods to assess the recidivism risks among sexual offenders.

[42] The application judge accepted much of Dr. Hanson's evidence. The application judge drew the following conclusions from Dr. Hanson's evidence:

-- Convicted sexual offenders have sexual recidivism rates of 10 per cent to 15 per cent after five years, and 15 per cent to 20 per cent after ten years.

-- In comparison to non-sexual recidivism, sexual recidivism occurs over a longer period of time. Recidivism for sexual offences is relatively constant over the first five years, and occurs well beyond the first five years.

-- Sexual offenders can be particularly difficult to identify.

[43] The application judge concluded that, based on Dr. Hanson's evidence:

[W]hile it is possible to project the risk of recidivism by relying on actuarial data, there is a measure of uncertainty in the result. What is clear is that there is a risk and it is significant. It is the precise degree of the risk that is uncertain.

[44] The applicability of the actuarial analyses put forward by Dr. Hanson to persons found NCRMD in respect of sexual offences was a matter of considerable controversy before the application judge. Dr. Brink concluded that recidivism rates of persons found NCRMD was lower than the rates applicable to convicted offenders, especially persons with mental disorders who had been convicted of sexual offences.

[45] Dr. Hanson, however, stressed that the comparison for recidivism purposes should not be between persons found NCRMD and persons convicted, but rather between persons found NCRMD and persons who had no prior convictions. Dr. Hanson indicated that when the proper comparison was made, recidivism rates for those found NCRMD was considerably higher than the rates for persons who had no criminal history. According to Dr. Hanson, the data also showed that the risk of recidivism was not extinguished when the ORB granted an absolute discharge. Indeed, one study showed that the risk of reoffending increased when individuals found NCRMD were no longer under Review Board supervision.

[46] Ultimately the application judge accepted Dr. Hanson's conclusion:

[T]here is strong evidence that a history of sexual offending increases the likelihood that an individual will commit another sexual offence in the future. From the perspective of risk assessment, it makes little difference whether the sexual offence results in a criminal conviction or a NCR. Individuals found NCR have criminal recidivism rates that are substantially higher than the rates of spontaneous first-time offending among individuals with no prior criminal history. The well-established recidivism risk factors for general offenders also apply to individuals found NCR.

[47] The application judge observed that Dr. Brink's risk assessment turned on his view of the adequacy of the protections against reoffending provided by the ORB. The application judge described this as a "social determination and not a scientific finding".

V. The Grounds of Appeal

A. The alleged palpable and overriding factual errors

(i) Dr. Kiraly's evidence

[48] The appellant submits that the application judge improperly used Dr. Kiraly's frank acknowledgment that he saw himself as an advocate for the appellant, his patient, to discount virtually all of Dr. Kiraly's evidence. The appellant submits that Dr. Kiraly was a "participant expert", and that the significance of his evidence rested in part on his long-time therapeutic connection with the appellant.

[49] The application judge rejected much of Dr. Kiraly's evidence about the effects of the registries on the appellant's mental health because the cross-examination of Dr. Kiraly showed that he was willing to alter his descriptions and his opinions about the appellant's mental condition to suit what he saw as the appellant's best interests. My reading of the portions of Dr. Kiraly's evidence referred to by the application judge supports the application judge's assessment. I see no misapprehension of Dr. Kiraly's evidence, and I cannot say that the application judge's assessment was unreasonable.

(ii) Dr. Brink's evidence

[50] The appellant submits that the application judge wrongly rejected Dr. Brink's evidence because it did not address the utility of the sex offender registries as an investigative tool. The appellant argues that Dr. Brink was offered as an expert on the impact of the registries on the rehabilitation and reintegration into society of persons who had been found NCRMD and received a discharge. The appellant argues that Dr. Brink properly limited his opinion to topics on which he had the requisite expertise, and that the application judge erred in discounting that evidence because Dr. Brink did not go on and offer opinions on matters on which he had no expertise.

[51] The application judge identified three reasons for rejecting parts of Dr. Brink's evidence. First, he found that his opinions about the negative impact of registries reflected a misunderstanding of the manner in which the registries operated and, in particular, the restrictions placed on access to the registries. The application judge reviewed the hypothetical offered by Dr. Brink and explained that it was premised on fundamental misunderstandings about access to the information in the registries.

[52] Second, the application judge concluded that Dr. Brink's evidence about the negative impact of the registries on persons found NCRMD who had received an absolute discharge failed to distinguish between the impact flowing from the requirements of the sex offender registries and the impact attributable to the events giving rise to the charges and the NCRMD finding. The charges against the appellant, the circumstances of those charges, and the appellant's NCRMD finding are all matters of public record. Any psychological stress and stigma flowing from the charges and the NCRMD finding could not be attributed to the requirements of Christopher's Law or SOIRA.

[53] Third, the application judge rejected the part of Dr. Brink's evidence in which he compared recidivism rates among persons found NCRMD and granted an absolute discharge and other persons convicted of sexual assaults. The application judge accepted Dr. Hanson's evidence that the proper comparison should be between persons who had committed sexual offences and were found NCRMD and persons who had no prior criminal record.

[54] The application judge's analysis of Dr. Brink's evidence and his reasons for rejecting parts of that evidence stay well within the bounds of the evidentiary record. His reasons are supported in the record, and reflect a reasonable assessment of, and preference for, the evidence of Dr. Hanson as it related to the actuarial aspects of the evidence. I would not interfere with that assessment.

(iii) The appellant's evidence

[55] The appellant argues that the application judge was dismissive of his evidence about the impacts of the registries on him, and failed to appreciate that the appellant's evidence had to be understood in light of his history of serious mental illness.

[56] This submission does a disservice to the careful reasons of the application judge. He did not disregard or dismiss the appellant's evidence about his beliefs and fears concerning the negative impact of the sex offender registries on him. It was, however, necessary for the application judge to draw distinctions in his fact-finding between what the appellant believed, and what had actually happened. The appellant maintained that the requirements imposed on him by the sex offender registries interfered in many ways with his day-to-day life. He cited limits on his ability to work and on his ability to travel. It was necessary for the application judge to determine whether any of those limitations actually existed. He concluded that many did not.

[57] For example, the application judge was satisfied on the totality of the evidence that, whatever the appellant might believe, there was no connection between the appellant's firing from his job and his status as registered sex offender. Similarly, the application judge found no basis for the appellant's belief that the American authorities had refused to allow him to enter the country on one occasion because the Canadian authorities had advised them of the appellant's status as a registered sex offender. The application judge's findings were fully supported by the evidence, including the cross-examination of the appellant.

[58] The application judge also addressed the appellant's evidence about his beliefs and fears in the context of considering the impact, if any, of the registration requirements on the appellant's psychological well-being. Psychological integrity is a facet of the right to "security of the person" under s. 7 of the Charter.

[59] The application judge did not find that the appellant did not have certain beliefs about the negative effects of the registries, or the dangers posed by the registration requirements. It was, however, necessary for the application judge, in the context of the s. 7 claim, to determine whether there was any objective basis for those concerns and beliefs. For example, the appellant feared that the registries could be hacked or access gained through some other improper means. However, he offered no evidence of how that could happen. Similarly, he offered nothing to support his belief that he might be improperly arrested simply because he was on the registries. In any event, police misuse of the registries cannot render the legislation creating the registries unconstitutional: R. v. Khawaja, 2012 SCC 69.

[60] The application judge was obliged to consider the basis for the appellant's beliefs and fears. As stated in New Brunswick (Minister of Health and Community Services) v. G. (J.):

For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person's psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

[61] The application judge was required to objectively consider the impact of the registries on the appellant's physiological integrity, and to treat the appellant as a person of "reasonable sensibility". The application judge appreciated the relevance of the appellant's evidence about his beliefs and fears, and correctly evaluated that evidence according to the ratio in G. (J.).

[62] I must also reject the appellant's submission that the application judge erred by taking into account the abundant evidence demonstrating the appellant's rehabilitation and reintegration into the community in the years following his absolute discharge and placement on the registries. That evidence was relevant to the assessment of the appellant's claim that his status as a registered sex offender had profoundly impeded his ability to deal effectively with his mental disorder and fully reintegrate into the community.

[63] Lastly, the application judge found certain parts of the appellant's evidence unhelpful in his s. 7 analysis because, like some of Dr. Brink's evidence, the appellant described negative effects caused by events and circumstances other than those arising out of the requirements imposed by the sex offender registries. For example, the appellant referred to the stresses associated with his fear that others would learn of the nature of the charges and his NCRMD verdict, and judge him negatively as a consequence. While these concerns were no doubt real, they had no connection to either SOIRA or Christopher's Law. For the purposes of s. 7, the claimant must show that the negative effects on an individual's liberty or security of the person have a "sufficient causal connection" to the impugned legislation: see Canada (Attorney General) v. Bedford, 2013 SCC 72.

(iv) The evidence of the appellant's ex-wife

[64] The application judge made no reference to the appellant's ex-wife's evidence. As the respondent Attorney General for Ontario points out, her evidence consisted of a single sentence recording her agreement with the appellant's evidence about the effects of the registries on him.

[65] The absence of any reference by the application judge to this bit of evidence does not justify the conclusion that he failed to consider it. The absence suggests only that the application judge did not regard the evidence as a significant component of the totality of the evidence. That is not an unreasonable assessment.

[66] I find no error in the application judge's assessment of the evidentiary record, or in his factual findings. I accept those findings for the purpose of the constitutional analysis that follows.

B. The constitutional arguments

(i) The section 7 claim

[67] Section 7 declares:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[68] A s. 7 claim has two elements. First, claimants must demonstrate that the impugned legislation or state conduct deprives them of "life", "liberty", or "security of the person". If claimants clear that hurdle, they must show that the state-caused deprivation is inconsistent with the principles of fundamental justice. The concepts of arbitrariness, overbreadth and gross disproportionality have emerged as the principles of fundamental justice most commonly invoked when legislation is challenged: see Bedford.

(a) The scope of the claim

[69] I begin my s. 7 analysis by emphasizing the nature of the s. 7 claim advanced by the appellant. He does not argue that the application of the sex offender registries to all persons found NCRMD in respect of designated offences breaches s. 7, or any other provision in the Charter. The appellant's challenge is more limited. He focuses on a subset of those persons, namely, persons who were found NCRMD in relation to a designated offence and who have received an absolute discharge from the ORB. On the appellant's submissions, the absolute discharge draws the line between those persons found NCRMD who can constitutionally be subjected to the automatic registration and reporting requirements of SOIRA and Christopher's Law, and those who cannot.

[70] The narrow focus of the appellant's s. 7 challenge reflects the ratio of this court's decisions in Dyck and Long. In Dyck, the court examined the constitutionality of Christopher's Law as it applies to convicted offenders. In Long, the court considered whether s. 490.013(2.1) of the Criminal Code, which requires individuals convicted of more than one offence to comply with SOIRA for life, complied with s. 7 of the Charter. Both cases found that the legislation engaged the s. 7 liberty rights of those required to register. Both cases went on, however, to find that the liberty restrictions were consistent with the principles of fundamental justice. The court found no s. 7 breach in either case.

[71] In Dyck and Long, the court determined that the overarching purpose of the sex offender registry legislation was to assist in the investigation and prevention of sexual offences by providing the police with ready access to potentially helpful information about the whereabouts of sex offenders. The court in each case accepted that a person with a prior conviction for a sex offence was more likely than a person who had not been convicted of a sexual offence, to commit a sexual offence. That is, prior offending behaviour was accepted as a reasonable forecaster of one's risk of reoffending.

[72] The court in Dyck and Long rejected the argument that the principles of fundamental justice as applied to the sex offender registries required an individualized assessment of the specific offender's potential future risk of reoffending. Instead, the court concluded that, as the liberty intrusion was modest, the prior commission of a sexual offence was a constitutionally-compliant "reasonable proxy" for the risk of reoffending.

[73] Dr. Hanson's evidence placed persons who had committed designated sexual offences but were found NCRMD at a higher risk of committing further sexual offences than members of the general population with no history of sexual offending. On Dr. Hanson's analysis of the data pertaining to the risk of reoffending, there was no basis to distinguish between persons who had committed a sexual offence and were convicted of that offence, and persons who were found NCRMD in respect of a sexual offence. The application judge accepted that evidence. He was entitled to do so.

[74] Accepting Dr. Hanson's evidence, and setting aside the effect, if any, of the ORB's granting of an absolute discharge on the s. 7 claim, I am satisfied that the principles applied in Dyck and Long apply to persons who were found NCRMD in respect of designated offences. For me the crucial s. 7 question is whether the absolute discharge changes that analysis.

(b) Should Dyck / Long be followed?

[75] Before turning to the effect of the granting of an absolute discharge on the s. 7 analysis as applied to persons found NCRMD, I will address three arguments made by the appellant to support the submission that this court should not follow its prior judgments in Dyck and Long. Contrary to the narrower relief sought by the appellant, these arguments would, if successful, lead to the conclusion that the sex offender registries may be unconstitutional as applied to all persons found NCRMD.

[76] The appellant's first argument focuses exclusively on the analysis in Dyck. He submits that Dyck has been overruled by the Supreme Court of Canada's reasons in Bedford. In addition, the appellant points out that Dyck dealt with a requirement that the offender report for ten years. Here, the appellant is required to report for life.

[77] It is true that Bedford overrules Dyck insofar as Dyck held that "gross disproportionality" was the standard for measuring overbreadth. Bedford makes it clear that overbreadth and gross disproportionality are two distinct principles of fundamental justice. However, nothing in Bedford takes away from the analysis in Dyck of the purpose and effect of Christopher's Law, or the impact of Christopher's Law on individuals' liberty interests. This court applied much of that analysis in Long.

[78] Ultimately, any arguments that Dyck has been overtaken by Bedford do not help the appellant. Long was decided after Bedford and faithfully tracked the s. 7 analysis laid down in Bedford. Long, like this case, involved a lifetime order under SOIRA. Even if one ignored Dyck, the analysis in Long provides equally strong support for the conclusion that the application of the sex offender registries to persons found NCRMD does not violate any principle of fundamental justice.

[79] The appellant's second argument in support of the claim that the analyses in Dyck and Long cannot be applied here rests on the distinction between persons convicted of criminal offences and persons found NCRMD. The individuals challenging the legislation in Long and Dyck were convicted of designated crimes. The appellant was not convicted of anything. He submits that the automatic application of the registration requirements in SOIRA and Christopher's Law to persons found NCRMD is inconsistent with the NCRMD verdict, which recognizes that those persons are not morally culpable and should not be treated as criminals. The appellant further submits that the registration requirements are inconsistent with the recognized need to premise all limitations on the liberty of persons found NCRMD on an individualized assessment of that person's risk and rehabilitative potential.

[80] There is no doubt that persons found NCRMD stand in a dramatically different place than those convicted of a criminal offence. Persons found NCRMD have done nothing wrong in the eyes of the criminal law, and cannot be punished by the state for what they did: Winko v. British Columbia (Forensic Psychiatric Institute).

[81] As fundamental as the distinction between persons found NCRMD and persons convicted is, I do not think it makes the principles set out in Dyck and Long inapplicable to the s. 7 analysis in this case. The registration and reporting requirements in SOIRA and Christopher's Law are not imposed as punishment or treatment. Instead, they are directed at promoting public safety through the creation and maintenance of a databank that facilitates 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, is not required to conform with the principles of fundamental justice. In this sense, sex offender registries are akin to legislation requiring the provision of fingerprints, photographs, or DNA. As the sex offender registries do not constitute punishment or treatment, I do not regard the s. 7 analysis in Winko, which requires an individualized assessment of the offender for the purposes of determining the proper disposition under Part XX.1, as applicable to the imposition of ancillary orders like those contemplated by the sex offender registries.

[82] The appellant's third argument to support his submission that the analysis in Dyck and Long should not be applied here arises out of the nature of the s. 7 breaches alleged in this case. Dyck and Long involved breaches of the offenders' liberty interests only. Here, the appellant submits that the sex offender registry requirements infringed not only his right to liberty, but also his right to security of the person. He contends that the significant psychological trauma he suffered as a consequence of complying with the registry requirements has infringed his security of the person. The appellant argues that, in deciding whether the legislation accords with the principles of fundamental justice, the court must take account of the cumulative effects of the interference on both his liberty and security of the person interests.

[83] It is not readily apparent, at least in respect of arguments about arbitrariness and overbreadth, that it should matter whether the impugned state action impacts on one or more than one of the interests protected by s. 7. Claims of arbitrariness and overbreadth both examine the purpose and effect of the impugned state conduct. A disconnect between the purpose and the effect of impugned legislation may, depending on the nature of that disconnect, support a finding of arbitrariness or overbreadth. It does not seem to me that the arbitrariness or overbreadth analysis is different depending on whether one or more than one of the rights to life, liberty and security of the person are engaged by the challenged legislation.

[84] I need not, however, decide whether a claim that the legislation breaches the appellant's right to security of the person as well as his right to liberty would change the arbitrariness or overbreadth analysis. The application judge considered and rejected the submission that the psychological impact of the registration and reporting requirements were sufficiently serious to constitute an infringement of the appellant's security of the person. In so holding, he applied the approach set down by the Supreme Court in G. (J.), and applied in this court.

[85] The appellant urges this court to approach the psychological impact of compliance with the registries exclusively through the appellant's own eyes. In short, he urges a subjective assessment of the impact of the legislation. He submits that the registration and reporting requirements, which may be modest for some, can be "significant, debilitating, traumatizing, and ultimately destabilizing" for some individuals who live with mental illness.

[86] The entirely subjective approach to psychological harm urged by the appellant is not open in this court in light of G. (J.). Even if it were, I would not adopt such an approach. If the impact of state action on an individual's psychological state were measured exclusively by how that individual perceived the state action, the scope of s. 7 would be virtually unlimited, and the meaning of "security of the person" so broad as to be meaningless. In my view, concerns about the differential impact of the registration and reporting requirements on the appellant because of his mental illness are properly addressed in the s. 15 argument.

(c) The application of the principles from Dyck and Long to this case

[87] As in Dyck and Long, I accept that the sex offender registry legislation infringes the appellant's right to liberty. Further, for the reasons that follow, I conclude that it does so in a manner that conforms with the principles of fundamental justice.

[88] I agree with the respondents' characterization of the appellant's claim as an overbreadth argument. The appellant and intervenors submit that while the application of the sex offender registry legislation to persons found NCRMD serves the public protection purpose animating the legislation, that purpose is not served by applying the legislation to persons found NCRMD who have received an absolute discharge. They argue that, for that subgroup of persons, there is no connection between the impact of the legislation and the purpose of the legislation.

[89] The appellant and intervenors contend that even though an individualized assessment of the risk of reoffending is not a prerequisite to a constitutionally acceptable sex offender registry scheme, an actuarially-based risk assessment cannot stand as a "reasonable proxy" for the risk of reoffending in the face of an individualized assessment made by the ORB and a finding by the ORB that the individual does not pose a significant threat to public safety.

[90] The appellant and intervenors submit that a risk assessment predicated on a single factor -- the prior commission of a sexual offence -- is effectively overtaken by the individualized risk assessment made by the ORB and the finding of the absence of any risk. They maintain that requiring the appellant to continue to comply with the sex offender registry legislation after the ORB has declared that he is not a significant risk goes beyond what is reasonably necessary to achieve the purpose of the sex offender registries.

[91] An overbreadth argument must begin by identifying the purpose of the challenged legislation. The parties agree that the sex offender registries exist to assist in the investigation and prevention of sexual offences by providing the police with access to information about the identity and whereabouts of persons who have previously committed sexual offences.

[92] Having identified the purpose, one turns to the connection between that purpose and the effect of the legislation. Is the ability to investigate and prevent sexual offences enhanced by requiring persons found NCRMD who have received an absolute discharge to continue to register and report under Christopher's Law and SOIRA?

[93] The appellants say the purpose is not served. The inclusion of persons found NCRMD who have received an absolute discharge tends to diminish the effectiveness of the sex offender registries, as it includes in those registries persons who are at no greater risk of reoffending than anyone else.

[94] The respondents say the purpose is served. They rely on the data discussed by Dr. Hanson and his opinion based on such data. He testified that persons who committed designated offences were found NCRMD and received an absolute discharge remain at a higher risk of reoffending compared to the general population. The research upon which he relied also suggests that those under the auspices of the ORB are somewhat less likely to reoffend than persons who have been absolutely discharged.

[95] The position advanced by the appellant and the intervenors overstates the effect of the findings underlying the granting of an absolute discharge by the ORB. The phrase "significant threat to the safety of the public" in s. 672.54 has been interpreted as meaning a significant risk of committing a serious criminal offence. Individuals who are found to pose only a threat of committing a serious criminal offence must receive an absolute discharge under s. 672.54. Similarly, persons who are found to pose a significant threat of committing criminal offences, but not serious criminal offences, must also receive an absolute discharge.

[96] I have no difficulty in concluding that sex offender registry legislation that reaches persons who have committed a designated offence and who pose either some risk of committing a serious crime or a significant risk of committing a non-serious crime has not overshot its purpose. In my view, the granting of an absolute discharge to a person found NCRMD cannot be equated with a finding that a person who was found NCRMD in respect of a designated offence and received an absolute discharge poses no or even little risk of committing another designated offence.

[97] To understand the meaning of an absolute discharge, particularly as it relates to risk of reoffending, one must appreciate the purpose of Part XX.1 of the Criminal Code. Part XX.1 introduced a unique assessment/treatment model into the criminal process for persons found NCRMD. As was eloquently stated in Winko:

[T]he only constitutional basis for the criminal law restricting liberty of an NCR accused is the protection of the public from significant threats to its safety. When the NCR accused ceases to be a significant threat to society, the criminal law loses its authority.

[98] The imposition of state-imposed restrictions, some of them very severe, on the liberty of a person found NCRMD are justified only so long as the individual presents a "significant risk" to the safety of the public. The determination of risk requires an individualized assessment.

[99] The much more modest intrusions on individual liberty imposed by Christopher's Law and SOIRA do not, however, depend on or reflect any finding or prediction as to the risk of reoffending tailored to the individual and the specific circumstances. Instead, those provisions are predicated on a statistical connection between the commission of a designated offence and the heightened risk of committing another designated offence. On Dr. Hanson's evidence, which the application judge accepted, that connection exists for persons found NCRMD who have been absolutely discharged just as it exists for NCRMD persons who have not been discharged, and for persons convicted of designated offences.

[100] Long and Dyck accept that a prior conviction for a designated offence, although a long way from demonstrating that a particular offender will reoffend, is a sufficient proxy for the risk of reoffending so as to constitutionally justify the modest intrusion on individual liberty affected by the registration and reporting requirements of the sex offender registry legislation. The application judge was satisfied, on the evidence he heard, that an actuarial connection between the commission of a prior designated offence and the risk of committing a further designated offence continues to exist even after a person who had been found NCRMD received an absolute discharge. On that evidence, the purpose driving the sex offender registry legislation is served by making the legislation applicable to persons found NCRMD who have received an absolute discharge.

[101] The appellant cannot 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 have received an absolute discharge. The s. 7 claim must fail.

(ii) The section 15 claim

[102] Section 15(1) provides:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[103] The s. 15(1) equality analysis looks first for differential treatment of individuals based on a ground enumerated in s. 15(1), or an analogous ground. The differential treatment may be the consequence of the express terms of the challenged legislation, or it may arise in the impact or effect of facially neutral legislation. Although the Supreme Court of Canada rejected a "mirror comparator group" approach to s. 15(1), the court has consistently recognized that equality is an inherently comparative concept. Therefore, in evaluating a s. 15(1) claim, it may be useful to consider how the law treats individuals in the protected group as compared with individuals who are not part of that group.

[104] The appellant and intervenors contend that the sex offender registry legislation has a harsher effect on persons found NCRMD who committed designated offences compared with persons who were found guilty of designated offences. They do not argue that the differential treatment is expressly spelled out in the legislation, but rather that it is an effect of the legislation.

[105] The appellant and intervenors point to the interaction of the sex offender legislation with s. 730 of the Criminal Code and s. 4 of the Criminal Records Act, R.S.C. 1985, c. C-47 to support their claim that persons found NCRMD are treated more harshly under the sex offender registry legislation.

[106] Section 730 allows a court, upon a finding of guilt, to decline to enter a conviction if satisfied that it is in the accused's best interests and not contrary to the public interest. Persons who receive a discharge under s. 730 are deemed by s. 730(3) not to have been convicted of any offence. Because persons who receive a discharge are not convicted, they are not required to register under Christopher's Law or SOIRA.

[107] Section 730 is not available to persons found NCRMD in respect of a designated offence. The section is unavailable, not because persons found NCRMD cannot meet the criteria for discharge, but because persons found NCRMD are not, in the eyes of the criminal law, guilty of anything and cannot be found guilty. Ironically, the absence of criminal culpability denies the person found NCRMD the opportunity to avoid being placed on the sex offender registries.

[108] Section 4 of the Criminal Records Act operates in combination with the sex offender registries to create a second distinction between persons found guilty of designated offences and persons found NCRMD. Section 4 allows most persons who have been convicted of a designated offence to apply for a record suspension either five or ten years after completing their sentence. An offender who receives a record suspension is automatically removed from the provincial sex offender registry, and can apply for a termination of his SOIRA order.

[109] The criteria governing the granting of a record suspension consider a variety of factors, including the seriousness of the underlying offence and the offender's post-sentence behaviour. There is nothing in the criteria that makes any of them inapplicable to persons found NCRMD. However, because persons found NCRMD are not convicted, they have no criminal record and therefore no basis upon which to apply for a record suspension.

[110] Section 730 of the Criminal Code and s. 4 of the Criminal Records Act, when read with the sex offender registry legislation, provide persons found guilty of designated offences with two "exit ramps" leading away from the obligation to comply with the sex offender registries.

[111] The s. 730 "exit ramp" operates at the time of sentencing and can result in the person who committed a designated offence never being placed on the sex offender registries. The record suspension "exit ramp" becomes available five or ten years after the offender has completed his sentence. This section allows persons to get off of the registries, in part by demonstrating their good conduct during the five or ten years after their sentence was completed.

[112] The remedies provided by s. 730 of the Criminal Code and s. 4 of the Criminal Records Act both require individualized assessments of the claims. The court or the parole board exercise their discretion in determining whether to grant those remedies. That discretion is exercised by applying the specified criteria to the individual circumstances.

[113] A person found NCRMD in respect of exactly the same designated offence as a person found guilty of that offence has no opportunity -- either at the time of disposition, or five or ten years after disposition -- to get out from under the requirements of the sex offender registries. The "exit ramps", or any functional equivalents, are denied to persons found NCRMD, even after they have received an absolute discharge from the ORB.

[114] Neither Christopher's Law nor SOIRA purports to draw any distinction between persons found NCRMD and convicted persons. However, I am satisfied that the effect of the legislation and, in particular, the absence of any "exit ramp" for persons found NCRMD, constitutes differential treatment for the purposes of s. 15(1). Someone like the appellant, who has committed more than one designated offence, can only hope to exit SOIRA by way of a termination order. He is not eligible for that order until 20 years after the NCRMD finding. A person in the appellant's position has no possible exit from the obligations under Christopher's Law. He must comply for the rest of his life.

[115] There is only one legally relevant distinction between persons who were found guilty of designated offences and who are therefore able to access the "exit ramps", and those who were found NCRMD in respect of designated offences and who cannot access those exits. Persons in the latter group suffer from a mental disorder that rendered them incapable of appreciating the nature and quality of their acts, or knowing that those acts were wrong: Criminal Code, s. 16. A mental disorder leading to an NCRMD finding is a mental disability under s. 15(1) of the Charter. Mental disability is an enumerated ground. In my view, 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, is based on the mental illness of those found NCRMD.

[116] Having determined that the sex offender registry legislation draws distinctions based upon mental disability, I turn to whether those distinctions are discriminatory. Not all distinctions drawn by legislation are discriminatory. Indeed, some are essential to achieving substantive equality.

[117] Discriminatory differences are those which perpetuate arbitrary disadvantage by imposing burdens or disadvantages, or withholding benefits and advantages from individuals in the identified group based on their membership in that group. Distinctions based on the grounds enumerated in s. 15(1), including mental disability, are inherently suspect. In this case, that suspicion is confirmed by an examination of the historical record relating to Canada's treatment of the mentally ill in the criminal law context.

[118] The respondents correctly point out that some distinctions, even distinctions based on enumerated grounds, promote equality. They submit that the distinctions between persons who were found NCRMD in respect of designated offences and persons who were found guilty of the same offences, insofar as those distinctions relate to compliance with the sex offender registries, are not discriminatory. Rather, they draw appropriate differences between the treatment of convicted persons and persons found NCRMD. Those differences are said by the respondents to ensure that persons found NCRMD are not treated as criminals, but are instead afforded the full protection and benefit of Part XX.1 of the Criminal Code. According to the respondents, the absence of the "exit ramps" from the sex offender registries described above is necessary to recognize the distinct status of persons found NCRMD within the criminal justice system, and thereby provide them with equality under the law.

[119] The respondents' submission has merit to a point. Discharges under s. 730 of the Criminal Code and record suspensions under the Criminal Records Act cannot have any direct application to persons found NCRMD. Those persons are not criminally culpable. To speak of guilt, as s. 730 does, or record suspensions, as the Criminal Records Act does, is to miss the vital distinction between the non-culpability of persons found NCRMD and the culpability of those found guilty.

[120] I say the respondents' submission has merit only to a point, because while it explains why the specific remedies in s. 730 of the Criminal Code and s. 4 of the Criminal Records Act are inapplicable to persons found NCRMD, it offers no explanation for the failure to provide comparable "exit ramps" out of the sex offender registries for persons found NCRMD. It may be inappropriate to speak of persons found NCRMD as being found guilty or receiving a pardon. That does not, however, explain the failure to provide comparable "exit ramps" out of the sex offender registries for persons found NCRMD. Nor does it mean that it is inappropriate to provide for some form of individualized assessment of the need to place and keep NCRMD persons on the sex offender registries that is comparable to the individualized assessments available under s. 730 of the Criminal Code and s. 4 of the Criminal Records Act for persons who were found guilty.

[121] For example, why is it that persons found NCRMD do not have an opportunity after five or ten years to demonstrate, within terms like those described in s. 4 of the Criminal Records Act, that the interests of justice merit their removal from the sex offender registries? Denying persons found NCRMD that opportunity -- an opportunity available to convicted persons -- does not reflect or promote the actual needs and circumstances of persons found NCRMD. Nor does it advance substantive equality through different treatment. To the contrary, the absence of a comparable opportunity to get off of the sex offender registries undermines the needs and circumstances of at least some persons who have been found NCRMD and received an absolute discharge. The appellant is a case in point.

[122] In my view, the absence of any "exit ramp" from the sex offender registries (apart from a termination order after 20 years in the case of SOIRA) reflects an assumption that persons who committed criminal acts while NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence. This assumption feeds into the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous.

[123] I am unaware of anything in the legislative history of either Christopher's Law or SOIRA that offers any recognition of, much less explanation for, the different treatment afforded persons found NCRMD in respect of designated offences compared to the treatment of persons found guilty of the same offences. It appears that Parliament and the legislature simply assumed that the kind of individualized assessment provided by s. 730 of the Criminal Code and s. 4 of the Criminal Records Act was either unnecessary or inappropriate in the case of persons found NCRMD.

[124] I acknowledge the point made by the respondents that many persons who have committed designated offences will not be good candidates for either a discharge under s. 730 of the Criminal Code or a record suspension under the Criminal Records Act. In fact, some designated offences carry a minimum sentence rendering a discharge unavailable.

[125] This argument does not, however, provide any answer to the s. 15 claim. The right to equality under s. 15(1) does not depend on a head count of those for whom access to equality before the law might provide some practical value. There are persons who commit designated offences that will be good candidates for a discharge or for a record suspension. In fact, on this record, the applicant would appear to have been a very good candidate for a record suspension, had he been found guilty rather than NCRMD. It does not matter, for the purposes of s. 15(1), how many individuals are in a similar position to the appellant.

[126] There is, however, a second and more fundamental way in which the sex offender registry legislation violates the s. 15(1) rights of NCRMD persons who have received an absolute discharge. Section 15(1) guarantees substantive equality. In some situations, substantive equality requires that everyone be treated in the same way. In other situations, substantive equality requires that some people be treated differently to take account of their membership in a group protected by s. 15(1) and the need to recognize and remedy the historical disadvantages suffered by that group.

As the court explained in Winko:

[T]he jurisprudence recognizes that discrimination may arise either from treating an individual differently from others on the basis of group affiliation or from failing to treat the individual differently from others on the basis of group affiliation.

[127] This is a case where s. 15(1) requires that NCRMD persons who receive an absolute discharge be treated differently than other individuals subject to Christopher's Law and SOIRA. In my view, the constitutional guarantee of substantive equality requires that those who have been found NCRMD in respect of designated offences and who have 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. That is, there must be a process by which those persons can challenge the continued application of the sex offender registry legislation to them, having regard to their personal needs, capacities, and circumstances.

[128] In Winko, the court acknowledged that NCRMD persons occupy a special place in the criminal law. Those persons are not culpable for their criminal acts. Any restriction on their liberty as a result of those acts cannot be justified under the usual principles of sentencing, which assume culpability as the justification for state-imposed penalties. Furthermore, those found NCRMD face long-standing and deeply embedded societal prejudices. Those prejudices are exacerbated by the criminal law process. Historically, those prejudices generated stereotypical assumptions about the risk posed by persons found NCRMD, and assumptions about the immutable nature of their mental illnesses. These stereotypes often led to court-imposed sanctions, which had very negative long-term impacts on the liberty and security of persons found NCRMD.

[129] Part XX.1 of the Criminal Code was intended to remove the discriminatory effects of the traditional approach to mental disorder in the criminal context. Two passages from Winko capture the nature of Part XX.1:

Part XX.1 reflected an entirely new approach to the problem of the mentally ill offender, based on a growing appreciation that treating mentally ill offenders like other offenders failed to address properly the interests of either the offenders or the public. The mentally ill offender who is imprisoned and denied treatment is ill served by being punished for an offence for which he or she should not in fairness be held morally responsible. At the same time, the public facing unconditional release of the untreated mentally ill offender was equally ill served. To achieve the twin goals of fair treatment and public safety a new approach was required.

. . . Parliament intended to set up an assessment-treatment system that would identify those NCR accused who posed a significant threat to public safety, and treat those accused appropriately while impinging on their liberty rights as minimally as possible, having regard to the particular circumstances of each case.

[130] The criminal law's mandate as it relates to persons found NCRMD is to assess and treat their mental illness, not to punish. The equal treatment of NCRMD persons within the criminal justice system requires that any exercise of the criminal law power have regard to the impact of that exercise on the offender's mental wellbeing. The criminal law must recognize that NCRMD persons are mentally ill, that there is a need to treat their illness, and that there is a need to protect the public while doing so.

[131] After Winko, it is clear that s. 15 of the Charter demands an individualized assessment of NCRMD persons at both the adjudicative and disposition stages of a criminal proceeding. That individualized treatment, combined with the unique dispositions available to persons found NCRMD, seeks to overcome the stereotyping and prejudice that have marked the treatment of mentally ill offenders while at the same time maximizing the achievement of the twin goals of treatment and public protection.

[132] As set out earlier in these reasons, sex offender registry orders are not properly characterized as treatment or punishment. Dyck and Long both hold that the principles of fundamental justice enshrined in s. 7 do not require an individualized risk assessment before a sex offender registry order can be made or maintained.

[133] Section 15, however, engages different considerations than s. 7. In this case, the second stage of the s. 15(1) inquiry begins by recognizing the long historical record of discrimination in the criminal law against persons with mental disabilities. That long history demands that those found NCRMD be treated differently than persons who are convicted of criminal offences. Treating NCRMD persons fairly means acknowledging their mental illness as the root cause of their criminal conduct, and, to the extent consistent with public safety, seeking to treat and alleviate the adverse effects of that mental disability.

[134] The automatic imposition of long-term sex offender registry orders based on the prior commission of a designated offence by a person found NCRMD not only ignores the fact that the NCRMD person was not culpable in the commission of the crime, it has the real potential to undermine the very progress that led to the absolute discharge by the ORB. It is not far-fetched to suggest that, in some cases, the sex offender registry legislation will erect new barriers to the NCRMD person's continued recovery and reintegration into society -- one of the goals of Part XX.1 of the Criminal Code -- at the very moment that the individual is declared by the ORB to be no longer subject to the criminal law power. Persons found NCRMD go from being treated in an individualized manner that recognizes their mental disability, to being treated in the same generalized fashion as morally culpable offenders, without any regard for their mental disability or their unique status in the eyes of the criminal law. This perpetuates rather than alleviates their systemic disadvantage.

[135] The potentially adverse consequences of the application of the sex offender registry provisions to persons found NCRMD who have received an absolute discharge is apparent on the facts of this case. The ORB decided that the appellant was entitled to an absolute discharge. In the ORB's view, the criminal law no longer had any legitimate claim to exercise authority over the appellant. No one questions the ORB's decision. In hindsight, it appears to have been the correct decision. However, at the very same time as the ORB released the appellant from the authority of the criminal law, Christopher's Law and SOIRA automatically imposed mandatory, lifelong sex offender registry orders on the appellant. Those orders, unlike all of the decisions made by the ORB, were imposed without any consideration of the effect they would have on the appellant's mental health and continued recovery. On this record, those orders had a negative impact on the appellant's mental health.

[136] In my view, s. 15(1) requires that any NCRMD person who has received an absolute discharge must have the opportunity to demonstrate that the imposition of a sex offender registry order or the continuation of that order is not appropriate in the circumstances. The equal treatment of a person found NCRMD who has received an absolute discharge dictates that any further potentially coercive state orders must take into account the NCRMD person's individual circumstances. The NCRMD offender must have an opportunity to address the impact of the order on his mental wellbeing.

[137] I do not suggest that s. 15(1) imposes an obligation on the state to demonstrate that the NCRMD person who has received an absolute discharge poses some personalized risk of reoffending as a condition precedent to his placement on the sex offender registries. Rather, I would hold that the equality command of s. 15(1) dictates that NCRMD persons who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offender registry orders on their mental health and continued recovery. Neither Christopher's Law nor SOIRA provides that opportunity. Consequently, both infringe s. 15(1) of the Charter.

(iii) Does the legislation constitute a reasonable limit on the appellant's section 15 rights?

[138] In the alternative, the respondents argue that any breach of s. 15 is justified under s. 1 of the Charter. To succeed on this argument, the respondents must first demonstrate that the purpose of the legislation is pressing and substantial. Second, they must show that the means chosen to achieve that legislative purpose are proportionate to their impact on Charter rights: R. v. Oakes.

[139] The parties agree that the public safety purpose underlying the sex offender registry legislation is pressing and substantial. The outcome of the s. 1 inquiry turns on the proportionality analysis.

[140] Proportionality is measured against three criteria. First, is the law rationally connected to its objective? Second, does the law impair Charter rights "no more than is necessary to accomplish the objective"? Finally, are the salutary effects of the legislation proportionate to its deleterious effect on Charter rights?

[141] The parties agree that there is a rational connection between requiring all individuals found guilty or NCRMD to register and report under the sex offender registry legislation, and the public safety objective of that legislation. As often happens, the outcome of the proportionality analysis turns on whether Parliament and the legislature have chosen the least drastic means to achieve their objective.

[142] The minimal impairment requirement accepts that legislation is often a response to complex multifaceted problems, which present a variety of possible legislative responses. Courts must afford legislatures a degree of deference and ask whether the legislation is reasonably tailored to the objective.

[143] In my view, existing provisions in both Christopher's Law and SOIRA demonstrate that the legislation is not minimally impairing of rights. The legislative schemes do not limit the s. 15(1) rights of persons found NCRMD who have been absolutely discharged only to the extent that is reasonably necessary to achieve the legislative objective.

[144] Both Christopher's Law and SOIRA provide means by which persons who are found guilty of designated offences can avoid the requirement of being placed on the registries, or can be relieved of their obligations to continue to report under the registries. Those "exit ramps" are discussed in detail above. They turn on the evaluation of factors specific to the individual offender. I take those provisions to clearly indicate that the object of the sex offender registry legislation can be met by a scheme which allows for carefully tailored, individualized exceptions or exemptions from the registration and reporting requirements. In light of the existing exceptions and exemptions for convicted offenders, it simply cannot be said that the object of the legislation requires the mandatory registration and reporting of all persons found to have committed designated offences.

[145] No rationale has been offered to support the exclusion of persons found NCRMD who have received absolute discharges from any possible exemption or exception from the requirements of the sex offender registry legislation. There is no evidence that, while the objective of the legislation is consistent with exceptions and exemptions for persons found guilty, it is somehow undermined by comparable exceptions and exemptions for persons found NCRMD.

[146] The same point is made by reference to the provision in SOIRA dealing with DNA orders. Section 487.051(3) allows for DNA orders in respect of persons found NCRMD in respect of certain identified offences. However, a DNA order can only be made if the criteria in the provision are met. The order is discretionary, and based on the circumstances of the individual case.

[147] DNA orders serve the same public safety objective as sex offender registry orders. Parliament's determination that the public safety objective of the DNA provisions can be met by legislation which provides for some discretion in the making of the order as applied to persons found NCRMD provides a further indication that the mandatory registration and reporting requirements under the sex offender registries goes beyond what is reasonably necessary to achieve the legislative objective.

[148] The respondents have not met the onus of demonstrating that the infringement of the applicant's s. 15(1) right to equality before the law is reasonably necessary to achieve the objective of the sex offender registry legislation. The discriminatory impact of Christopher's Law and SOIRA cannot be justified under s. 1.

(iv) The appropriate remedy

[149] Section 52 of the Constitution Act, 1982 requires the court to declare the provisions of Christopher's Law and SOIRA to be of no force or effect to the extent that they are inconsistent with s. 15 of the Charter. On my analysis, both statutes are inconsistent with s. 15 because they impose mandatory registration and reporting requirements on persons found NCRMD who have received an absolute discharge, without any possibility for exemption. Section 15(1) requires some form of individualized assessment of the need for registration and reporting in respect of persons who have been found NCRMD and received an absolute discharge.

[150] There are several ways in which Parliament and the Ontario legislature could make the sex offender registry legislation compliant with s. 15(1) of the Charter. Those choices engage various policy considerations. There is also a need for a co-ordinated response by the two legislative bodies. The evaluation of those policy considerations and the mechanics of implementing a co-ordinated response are best left to Parliament and the legislature. Further, immediate invalidity would pose a potential danger to public safety. I would suspend the declaration of invalidity for 12 months to allow for the appropriate legislative response.

[151] A suspended declaration of invalidity on its own would leave the appellant without any remedy for the breach of his s. 15(1) rights. He would need to await the legislative response by Parliament and the Ontario legislature. The courts have, in many cases, responded to this apparent injustice by allowing the litigant who brought the claim the advantage of the finding of unconstitutionality, even though the declaration of invalidity is otherwise suspended for some period.

[152] In R. v. Demers, 2004 SCC 46, however, the Supreme Court indicated that a suspended declaration of invalidity under s. 52 of the Constitution Act, 1982 could not be combined with a remedy under s. 24(1) of the Charter exempting the rights-claimant from the legislation. To obtain the exemption the offender had to satisfy the court that the impact on her privacy or liberty would be grossly disproportionate to the public interest in requiring registration. Professor Roach has correctly observed that Demers appears to overstate the language of the seminal remedies case of Schachter. In that case, the court stated that where a declaration of invalidity is suspended, a s. 24(1) remedy "will not often be available".

[153] In my view, the Supreme Court of Canada's jurisprudence since Demers tells against reading that case as imposing an absolute ban on combining a suspended declaration of invalidity with a constitutional exemption under s. 24(1) of the Charter for the rights-claimant. Even if that combination were somehow unavailable, Demers says nothing about the power of the court to issue a qualified declaration of suspended invalidity which exempts the individual before the court from its scope. The court should be able to fashion a meaningful remedy for the rights-claimant.

[154] As outlined above, this is not a case in which the application of the sex offender registry legislation to the appellant after he received an absolute discharge from the ORB would inevitably infringe the appellant's Charter rights. As I read s. 15, it goes no further than to entitle the appellant to an individualized determination of whether he should have to comply with the requirements of the legislation after he has received an absolute discharge.

[155] If this were a case in which I could say no more than the appellant may or may not be entitled to some kind of exemption from the registries depending on the legislative scheme adopted by Parliament and the Ontario legislature, I would not be inclined to make any order beyond a suspended declaration of invalidity. However, as I read this record, it is difficult to envision a constitutionally-compliant legislative scheme that would not result in the appellant being removed from the registries and exempted from the requirement of any further compliance with them.

[156] The appellant's criminal actions were isolated and totally out of character. They were the direct product of his acute mental disorder. In the over 17 years since those events, the appellant has not committed any criminal acts. His mental illness is being effectively treated. He is a high-functioning, contributing member of the community. If one assumed that s. 4 of the Criminal Records Act or s. 730 of the Criminal Code applied to the appellant, one would inevitably come to the view that the public interest favoured a record suspension under the Criminal Records Act, or a discharge under s. 730 of the Criminal Code. There is no societal interest in requiring the appellant to continue to comply with the sex offender registries. I would therefore order that he be removed from the registries, and that he no longer be required to comply with the various obligations set out in the legislation.

VI. Conclusion

[157] I would allow the appeal and set aside the order below. An order may issue declaring that the provisions of Christopher's Law and SOIRA are of no force or effect to the extent that they impose mandatory registration and reporting requirements with no possibility of exemption on persons found NCRMD who have received an absolute discharge. I would suspend that declaration for 12 months. I would further hold, however, that the suspension does not apply to the appellant. He is entitled to an order relieving him from any further compliance with the sex offender registries, and an order deleting his information from those registries.

VII. Costs

[158] The parties should exchange and file written submissions with respect to the costs of the application and the appeal within 30 days of the release of these reasons. Those submissions should not exceed a total of seven pages.

Appeal allowed.

G. v. Ontario (Attorney General), 2019 ONCA 264

Case Summary

G. v. Attorney General for Ontario et al.

Case Summary

Facts

Held

Authorities Cited

Counsel

Judgment

I. Overview

II. Facts

III. The Legislative Schemes

IV. The Evidence on the Application and the Judge's Factual Findings

V. The Grounds of Appeal

A. The alleged palpable and overriding factual errors

(i) Dr. Kiraly's evidence

(ii) Dr. Brink's evidence

(iii) The appellant's evidence

(iv) The evidence of the appellant's ex-wife

B. The constitutional arguments

(i) The section 7 claim

(a) The scope of the claim

(b) Should Dyck / Long be followed?

(c) The application of the principles from Dyck and Long to this case

(ii) The section 15 claim

(iii) Does the legislation constitute a reasonable limit on the appellant's section 15 rights?

(iv) The appropriate remedy

VI. Conclusion

VII. Costs

Cited By (2 cases)

R. v. M.L., 2024 ONCJ 372

R. v. Wasser, 2023 ONCJ 430

Judges

Counsel

Parties

Areas of Law