Supreme Court of Canada rules that Ontario sex offender registry law unconstitutionally discriminates on the basis of mental disability
In Ontario (Attorney General) v. G, 2020 SCC 38, the Supreme Court of Canada considered the constitutionality of Christopher’s Law, which requires individuals who are convicted or found not criminally responsible on account of mental disorder (“NCRMD”) of a sexual offence to register with Ontario’s sex offender registry and report in person on an ongoing basis. Offenders who have been found guilty may, in certain cases, be removed or exempted from the registry, or exempted from the reporting requirements. By contrast, individuals found NCRMD could never be removed or exempted from the registry, or relieved of their obligations—even if, like Mr. G in this case—they had received an absolute discharge from a review board. The Court held unanimously that Christopher’s Law drew discriminatory distinctions between individuals found guilty and individuals found NCRMD of sexual offences, contravening the right to equality in section 15(1) of the Charter of Rights and Freedoms in a manner that was not reasonable and demonstrably justified under section 1.
The Court divided on the principles that govern when it is appropriate to suspend a declaration of constitutional invalidity, and when it is appropriate to grant an individual exemption from such a suspension. The majority of the Court highlighted that the Court’s jurisprudence, building on the guidance in in Schacter v. Canada,  2 SCR 679, had coalesced around a group of core remedial principles that structured the exercise of principled remedial discretion under section 52(1). In identifying these principles, the Court provided important guidance on the determination of constitutional remedies under the Charter. The majority affirmed the Court of Appeal’s 12-month suspension of the declaration of invalidity, on the basis of the meaningful albeit limited threat to public safety posed by immediately relieving persons found NCRMD and granted an absolute discharge from the requirement to register, and so as to provide the legislature sufficient time to enact compliant legislation. The majority further upheld the Court of Appeal’s decision to exempt Mr. G from the suspended declaration of invalidity.
Justice Rowe, in concurring reasons, disagreed with the majority on the proper approach to suspending a declaration of invalidity, arguing that that there was no basis to read remedial discretion into section 52(1) and that the Court should return to its approach in Schacter v. Canada. Justices Côté and Brown, dissenting in part, held that a suspended declaration of invalidity should be rare, and was not appropriate in in Mr. G’s case.
The Ontario Division of the Canadian Mental Health Association (the “CMHA Ontario”) intervened in the appeal in the Supreme Court of Canada. CMHA Ontario proposed a framework for considering “combined effect” discrimination claims under section 15(1) of the Charter, in which the impugned law does not on its face create a distinction but, in conjunction with other laws, has the combined effect of doing so. This is a matter of particular importance to individuals experiencing mental illness, and especially those who come into contact with the criminal justice system. Such individuals’ lives are significantly affected by overlapping and intersecting legislative and regulatory frameworks at both the federal and provincial levels. CMHA Ontario argued that the Court should recognize this reality in deciding Mr. G’s Charter claim.
The Court did so. It recognized unanimously that Christopher’s Law draws discriminatory distinctions that “flow from the manner in which [the Ontario law] interacts with federal legislation”, and that “[t]he combined effect of multiple statutes is particularly important for those with mental illnesses, as their lives are often regulated by what the intervener, the [CMHA], calls a ‘complex web of statutes and regulations.’”
Adam Goldenberg, and Ljiljana Stanić represented CMHA Ontario as intervener on appeal at the Supreme Court of Canada.
Ontario (Attorney General) v. G, 2020 SCC 38
Date of Decision: November 20, 2020