COURT FILE NUMBER: 17-74414

DATE: 2018/08/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOHN DOE

Applicant (Respondent on Motion)

– and –

CANADA (ATTORNEY GENERAL) AND HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO as represented by the ATTORNEY GENERAL OF ONTARIO

Respondents (Moving Parties)

Will Murray and Daniel Tucker-Simmons, Lawyers for the Applicant (Respondent on Motion)

Max Binnie, Lawyer for the Respondents (Moving Parties)

REASONS FOR DECISION

P. E. Roger, J

Introduction

Introduction

1The Attorney General of Canada (referred to in this decision as Canada) brings a motion asking that this application be stayed until a decision is rendered by the Ontario Court of Appeal in another matter called G. v. Attorney General for Ontario et al., 2017 ONSC 6713, [2017] O.J. No. 6355 (referred to in this decision as G). Canada clarified at the start of the hearing of this motion that, at this time, it is not seeking a stay until the final determination of that appeal, but until a decision is made by the Court of Appeal. Canada also indicated that depending on the decision of the Court of Appeal, it may thereafter seek an additional stay of this application.

2John Doe brings this application asking the court for a declaration that requiring him to register with the federal and provincial sex offender registries infringes his rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and that the applicable legislation is therefore of no force and effect with respect to not criminally responsible (NCR) accused who have been absolutely discharged.

3On this motion, Canada argues that this application should be stayed because similar facts, issues, and relief are before the Ontario Court of Appeal in G. G is scheduled to be heard by the Court of Appeal on October 30, 2018, while this application is scheduled to be heard by this court on January 29 and 30, 2019. Canada argues that the substance of this application will therefore be considered by the Court of Appeal in G before this court has the opportunity to do so and that knowing the outcome of the appeal in G will bring clarity, impact the disposition of this application, prevent inconsistent dispositions, and avoid a multiplicity of proceedings.

4In response, John Doe argues a number of points. He argues that he presents an entirely distinct legal argument to that which was and will be advanced in G, and that he presents a more compelling factual scenario. In that regard, considering section 7 of the Charter, John Doe’s arguments include that he does not at this time foresee challenging the statistical evidence that will likely be offered by the witness for Canada (a Dr. Hanson who also testified in G) but that he will rely on Supreme Court jurisprudence to suggest that it is a principle of fundamental justice that the laws of Canada should not presume that someone who is mentally ill is dangerous. He argues that this is substantially different from arguing that the legislation is overbroad or arbitrary. With regards to section 15 of the Charter, he argues that he is not advancing the same argument as in G, including arguments concerning different treatment related to “pardons”. Rather, John Doe argues that by defining him as a sex offender, the legislation further stigmatizes him, as described in his affidavit, and makes his therapeutic process more difficult. This causes him to suffer ongoing prejudice in the form of economic insecurity and continuing infringement of his rights. The alleged differences are fully described in his factum on this motion and in his draft factum on the application, both of which are contained in his motion record. John Doe also argues that he will be in a better position to intervene in G before the Supreme Court, or to join G there, with a factual record resulting from a decision of this court, and therefore he argues that it is expeditious for him to proceed before this court in order to establish his specific factual circumstances. He also argues that a stay will not economize judicial resources and that he will be prejudiced by a stay. On the issue of prejudice, he argues that a stay would effectively prevent him from pursuing this application until G is resolved, that his job security would be at risk, and that the granting of the stay would not prejudice Canada.

Issue

Issue

5The issue on this motion is whether or not, considering all the circumstances of this matter, it is fair and just to grant a stay of John Doe’s application pending a decision by the Court of Appeal in G.

Law and Analysis

6Sections 106, 107 and 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43, are relevant. Essentially, the Courts of Justice Act gives this court the discretionary power to decide whether or not a proceeding should be stayed. When exercising such a discretionary power, the court must consider relevant circumstances to decide what is fair and just.

7This includes, as indicated at section 107, considering whether proceedings before two different courts have a question of law or fact in common. It also includes considering and assessing any resulting prejudice to the parties because how parties will be affected by the exercise of judicial discretion is critical to its proper exercise. The many cases cited by the parties reflect that factors to be considered by the courts in order to act fairly mirror the specific circumstances of each case.

8Further, section 138 of the Courts of Justice Act and many court decisions indicate that, as far as possible, multiplicity of legal proceedings are to be avoided. This serves to prevent inconsistent findings, to protect scarce judicial resources, and to save or limit expenses for the parties. This is particularly true in the present legal climate where parties, lawyers, and judges are urged by the Supreme Court to look for and find innovative ways to deal with cases fairly.

9I find that this application and the appeal pending before the Ontario Court of Appeal in G have questions of law and of fact in common. Even if I accept that John Doe raises different arguments, as outlined in his draft factum on the proposed application, section 107 does not require that proceedings be identical or that arguments be exactly the same; rather, it requires that proceedings have a question of law or fact in common. Commonality does not require that the same phrasing or language be used in both proceedings.

10The Court of Appeal indicated at para. 7 in College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Federation of Ontario Traditional Chinese Medicine Assn., 2015 ONCA 851,[2015] O.J. No. 6452, that it is not open to a party to re-litigate what in substance is the same argument by giving it a different legal label. This is applicable in the context of a stay when considering whether and to what extent two proceedings have questions of law and fact in common. Here, the factual and legal similarities are many and significant and the alleged differences are rather few and minor. I will give some examples.

11The facts are obviously not identical but the key facts are extremely similar between the two matters. Both G and John Doe were found not criminally responsible, granted an absolute discharge, and both were required to register and comply with existing regimes relating to sexual offences. The legal issues are also very similar. Both G and John Doe seek similar declaratory relief arising from alleged breaches of sections 7 and 15 of the Charter. As well, the arguments made in both matters in support of these alleged breaches, although not exactly the same, are mostly in substance quite similar.

12The notice of application in G seeks essentially the same relief as is sought by John Doe in this application and the factum in G before the Ontario Court of Appeal raises similar arguments to those raised by John Doe on this application. For example, G argues that the registry is overbroad and in breach of s. 7. This is not unlike John Doe’s argument that the absence of an individual assessment and an alleged presumption that someone who is mentally ill is dangerous breaches that section. Furthermore, the statistical evidence yet to be received from Dr. Hanson will likely inform the arguments made by John Doe on these points, such that these alleged different arguments are nonetheless connected. Similarly with regards to section 15, arguing, as does G, that persons found not criminally responsible are discriminated against when they are treated in the same manner as convicted criminals is not much dissimilar to John Doe’s arguing that the registry further stigmatizes NCR accused and people with mental disabilities, allegedly reinforcing negative assumptions about their dangerousness.

Prejudice

13Next I consider the issue of prejudice.

14I disagree with John Doe about the alleged importance of a factual record for his effective participation in G. Firstly, at the Court of Appeal level, John Doe decided not to seek to intervene before the Court of Appeal and my decision on this motion can therefore not prejudice him in that regard because the appeal is scheduled to be heard on October 30, 2018, while this application is not scheduled to be heard at first instance until January 29 and 30, 2019. As a result, the constitutional issue in this application will be considered by the Court of Appeal in G before this court has the opportunity to hear John Doe’s application and create some factual record.

15Next, if G proceeds to the Supreme Court, John Doe argues that he will be in a better position to intervene and to advance his arguments if he has generated a factual record from this court. I disagree with this contention because John Doe will or will not be granted intervenor status depending on his ability to demonstrate that he could make a useful contribution without causing injustice to the parties. Therefore, if John Doe is granted leave to intervene, he will be allowed to argue whichever points convinced the court that he could make a useful contribution. Earlier factual findings are not required for intervenors to effectively intervene and, in any event, whatever factual findings might or might not result from this court when John Doe’s application is heard would at best play a minor part in any possible intervention by John Doe in the G matter. As a result, what is indicated at paragraph 42 in Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101, is not a concern.

16Overall, this argument relating to the importance of a factual record is simply too speculative to establish prejudice. For the same reasons, I do not accept the allegations of prejudice made by John Doe resulting from the factual findings made in G; these factual differences are not sufficient to detract from the broad constitutional issues at play, which are common to both matters.

17I also do not accept the argument that John Doe is prejudiced by the delay which might result from a further appeal of G to the Supreme Court. Firstly, the stay at issue on this motion is only until a decision is rendered by the Ontario Court of Appeal and what might happen thereafter is speculative. Moreover, and in any event, John Doe cannot proceed to a faster resolution of his application than can G and, as a result, any period of waiting for a final decision in G can hardly be considered prejudice resulting from the granting of a stay on this motion.

18For the same reasons as those indicated in the four preceding paragraphs, I do not accept that granting this stay will require John Doe to watch impotently while his Charter rights are breached, for years.

19John Doe argues that he is at risk of losing his job should he be randomly or otherwise selected for a security screening. However, no evidence was presented on this point other than a statement by John Doe that he has been advised that this is possible. It is not disputed that this is an unlikely scenario considering that this has not occurred to date and, more importantly, considering that at this time his employer cannot consider these registries for purposes of security clearance. Moreover, independently of the above, John Doe cannot proceed to a final resolution any faster than G and, at this time, the order sought is limited to until a decision is rendered by the Court of Appeal. In any event, this possible risk is remote and too speculative to constitute prejudice that could result from the possible granting of a stay on this motion.

20The arguments by John Doe relating to what may or may not happen after a decision is rendered by the Court of Appeal are all too speculative to constitute prejudice.

21On the other hand, granting the stay that is sought on this motion might completely avoid this application should G’s appeal to the Court of Appeal be successful and not be further appealed. Although the scenarios are many, at worse, a decision by the Court of Appeal in G would at least provide some level of clarity to the parties and to this court should John Doe’s application thereafter proceed before this court. Considering the many possible scenarios, I anticipate more prejudice to the parties if a stay is not granted because this would force the parties to proceed with their timetable (delivering responding affidavits, expert reports, conducting required cross-examinations, preparing factums and arguments) and incur the costs associated with these efforts in circumstances where a decision will not have been rendered by the Court of Appeal in G. This would put the parties in the very uncomfortable position of preparing this Application blindly, not knowing what the Court of Appeal will decide. It would also be awkward for the parties and for the judge hearing this application, on January 29 and 30, 2019, if the Court of Appeal has not rendered a decision in G, and this would likely result in similar delays because the parties would want to return to make further submissions after the Court of Appeal rendered its decision in G. At a minimum, the decision of the Court of Appeal in G should bring some clarity to this Application, helping the parties to prepare and argue effectively. Alternatively, as indicated above and although unlikely, all of these efforts could be wasted should the appeal in G be successful and not be further appealed.

22Balancing the prejudice alleged by John Doe, there appears to be more prejudice resulting if the stay that is sought is not granted. Indeed, I agree that in these circumstances granting the stay will at a minimum bring clarity and focus the parties’ arguments. I also agree that it will prevent inconsistent dispositions, protect scarce judicial resources, save expenses for the parties, and avoid multiplicity of proceedings. As such, it will promote the purposes of section 107, and the general principles of civil litigation to secure the just, most expeditious and least expensive determination of every proceeding on its merits.

23I have considered the many authorities referred to by John Doe and did not find them helpful to my decision. For example, the facts in Grover v. Canada, (2005) 2005 CanLII 63813 (ON SC), 78 O.R. (3d) 126 (SCJ) are different and, in any event, I have considered and balanced how granting or not granting the stay would prejudice all parties.

24If a stay is granted, John Doe asks that it be granted on the condition that John Doe’s employer refrain from consulting the registries for purposes of conducting security clearance screening until the disposition of this application, or otherwise provide some other meaningful guarantee that John Doe’s employment is secure. As indicated earlier, the evidence of any risk to John Doe’s employment is highly speculative, and should it happen John Doe will not be without remedies. Moreover, John Doe cannot proceed to a final resolution of his application prior to G. Consequently, such a condition is not required and is not ordered at this time.

25Considering the circumstances of this case, what is fair and just is to grant the requested stay. As a result, an Order may issue staying this application until a decision is rendered by the Court of Appeal in G. v. Attorney General for Ontario et al.

Costs

26On the issue of costs, Canada is not seeking costs for this motion and, in these circumstances, John Doe is also not seeking costs. Therefore, no costs are ordered for this motion.