Question Period Note: AG Ontario v G (Nov 20, 2020 SCC decision on constitutionality of Ontario sex offender registry)

On November 20, the Supreme Court of Canada will issue its decision on the constitutionality of Ontario's sex-offender registry.

• Sex offender registries assist police in investigating and preventing sex crimes.
• This case is about a very small number of individuals, namely those found “not criminally responsible” on account of mental disorder for sex offences, who subsequently receive an absolute discharge from a provincial review board because they no longer pose a “significant threat to the safety of the public.”
• While the SCC case only directly involves Ontario’s sex offender registry law (Christopher’s Law); Canada’s laws (Sex Offender Information Registration Act and Criminal Code) are very similar and we will be assessing the decision to determine any impact on the federal law.
• Canada intervened in the SCC on legal issues related to s. 7 of the Charter and constitutional remedies.

The Supreme Court of Canada (SCC) will issue a decision on the constitutionality of Ontario’s sex offender registry legislation on November 20, 2020. Although the constitutionality of the federal sex offender registry will not be addressed by the SCC in this case, Ontario’s registry and Canada’s registry have traditionally worked in lock-step, and therefore any decision that impacts Ontario’s registry will very likely have a similar impact on the federal registry.
G, the appellant, was found not criminally responsible on account of mental disorder (NCR) for sex offences. He was absolutely discharged by the Ontario Review Board, but was required to report for life as a sex offender under both federal law (the Sex Offender Information Registration Act (SOIRA) and Criminal Code) and Ontario law (Christopher’s Law). Sex offender registries are designed to assist law enforcement in investigation and preventing sex crimes.
G sought declarations that the application of these statutes to individuals found NCR violated s. 7 and 15 of the Charter of Rights and Freedoms.
The Ontario Court of Appeal (ONCA) found the provisions consistent with s. 7. However, it found the laws to breach s. 15 as having a discriminatory impact on NCR individuals based on mental disability. The laws failed to provide NCR individuals with any means of being removed from the registries, like those available to non-NCR persons found guilty of the same offences (i.e., a record suspension or a discharge under the Criminal Code).
Canada did not appeal the ONCA’s s. 15 ruling on the federal legislation. However, Ontario appealed the ONCA’s decision in relation to the validity of the provincial law to the SCC. Canada intervened in the appeal on two grounds: (1) in support of the findings of the ONCA on the s. 7 issue; and (2) to make submissions on constitutional remedies.
In its SCC intervention, Canada argued that Ontario’s legislation only infringes liberty in a minor way, and does not infringe security of the person. Canada further argued that it is not arbitrary, over broad or disproportionate to rely on the higher actuarial risk of recidivism of all sex offenders (including those found NCR) to justify inclusion in the registry without an individualized assessment of their risk.
Canada will consider the Court’s decision in assessing the broader implications for the federal sex offender registry.

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