CMHA Ontario framework for considering “combined effect” claims under s. 15 of the Charter adopted by the Supreme Court of Canada

Date Closed

November 20, 2020

Lead Office

Toronto

On November 20, 2020, 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. Offenders who have been found guilty may be removed or exempted, but those who are found NCRMD never can be, even if (like Mr. G in this case) they have received an absolute discharge from a review board.

The Court held unanimously that this was discriminatory, that it contravened the right to equality in section 15(1) of the Charter of Rights and Freedoms, and that the limit on the right 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. In doing so, the majority provided important guidance on constitutional remedies under the Charter.

The Ontario Division of the Canadian Mental Health Association (the “CMHA”) intervened in the appeal in the Supreme Court of Canada. The CMHA 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. The CMHA 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’” (at para. 51).

CMHA Ontario is a non-profit, charitable organization committed to making mental health possible for all.

McCarthy Tétrault LLP advised the CMHA as an intervener in the Supreme Court of Canada, with a team led by Adam Goldenberg that included Ljiljana Stanic.

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