Is it constitutional to maintain registration of an individual found not criminally responsible by reason of mental disorder (“NCRMD”) on the sex offender registry, when that person is given an absolute discharge by the Ontario Review Board? Maybe!
First, a little refresher on some legal concepts and terms:
Sex Offender Registries
When an Ontarian is found guilty of a sexual offence, they are registered as a sex offender in the provincial registry, established in 2001 pursuant to Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, as well as the federal registry (called SOIRA), established in 2004 pursuant to Sex Offender Information Registration Act, S.C. 2004, c. 10
An individual who is found not criminally responsible (by reason of mental disorder) is sent to a mental health institution, rather than jail. What does it mean to be “not criminally responsible”? It means that there although the person did the wrongful act that comprises the physical components of a crime (the “actus reus”), the intention or knowledge of wrongdoing is absent. Without the mental requirement that constitutes part of a crime (the “mens rea”), there was no “crime”.
Ontario Review Board (ORB)
One of the roles of the ORB is to review the mental health of persons who have been committed to mental health facilities following a finding of NCRMD. During the review, the ORB has the authority to make a number of different findings or orders. One such order can be the imposition of an absolute discharge.
After a finding of NCRMD, there are three dispositions available to the ORB. One is an order that the person be kept in the jurisdiction of the hospital for treatment if they pose a substantial risk of harm. The second disposition is a conditional discharge. This means the person is no longer under the “care” of the hospital, and is free to live as they please with conditions. Finally, an absolute discharge can be granted, and the individual is free to live life in the way they see fit.
G. v. Ontario (Attorney General), 2019 ONCA 264
In 2001, the appellant was charged with two counts of sexual assault and two counts of forcible confinement. He first experienced a manic episode while watching the 9/11 terrorist attacks on television. His mental health declined sharply and shortly, and he assaulted his wife.
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.
Even though he was found NCRMD, because the charges were of a sexual nature, the Appellant had to register with the provincial registry. He was then also forced to register under the federal registry, when that law came into force in December 2004.
Under both registries, the Appellant was obliged to personally register with the police and provide the information required by the applicable statues and regulations. He had to give the police a current photograph and report annually. He was also obliged to advise the police of any change in the data he had provided, including any change of address. Failure to comply with any of these requirements is an offence potentially punishable by imprisonment.
The provincial registry is for life. The federal registry, SOIRA, is also for life, but also permits an application to remove oneself from the registry so long as 20 years has passed since the conviction.
The constitutionality of the sex registries has been challenged, but the Supreme Court of Canada (SCC) found that the registries are valid.
What is different about this case is that it represents the first time an individual, who was found NCRMD for sexual offences but later given an absolute discharge by the ORB, challenges the constitutionality of the sex registries.
The appellant argued that his continued registration, after an absolute discharge, violates his rights under sections 7 and 15 of the Charter of Rights and Freedoms. Section 7 of the Charter guarantees the right to life, liberty, and security of person. Section 15 guarantees equal protection under the law, meaning that one cannot be discriminated against.
The Ontario Court of Appeal agreed that the registration violated the Appellant’s section 15 rights (but did not violate his section 7 rights). When courts find that a law does infringe a person’s constitutional rights, the court must then ask themselves if the infringement of the person’s rights is nonetheless justified under law – typically for public policy reasons, i.e., “the greater good.”
In this case, the Ontario Court of Appeal found that the Appellant’s rights under section 15 were violated and that the violation was not justified. They found the law to be invalid, meaning it has no force or effect.
Therefore, anyone finding themselves in the same situation as the Appellant can potentially be removed from the sex registries. I say potentially because the Court suspended the declaration of invalidity for 12 months. By doing so, the Court gives Parliament a 12-month buffer to react to this ruling, if they decide to do so.
On September 26, 2019, the Supreme Court of Canada accepted the Attorney General’s application to appeal the Ontario Court of Appeal’s decision. Between this appeal (which will be heard at the Supreme Court sometime next year) and the 12-month buffer, the matter is not settled.
If you struggle with mental health and are facing criminal charges, the team of lawyers at DeMelo Law is ready to help. Please contact us.