Sex-offender provision unconstitutional in not criminally responsible cases: court

OTTAWA — The Supreme Court of Canada has affirmed that Ontario’s sex-offender registry regime violates the constitutional rights of people found not criminally responsible for their actions by reason of mental disorder.

The decision came Friday in the case of an Ontario man who was found not criminally responsible in June 2002 for sexually assaulting his then-wife, and other charges, due to a manic episode.

In August 2003, the Ontario Review Board ordered that he be absolutely discharged on grounds that he posed no significant risk to public safety.

Still, he was required to enter his name into the provincial sex-offender registry.

In Ontario, the law requires those who are either convicted of a sexual offence or found not criminally responsible on account of mental disorder to report to a police station to have their personal information added to the registry.

Registrants must report in person annually or when certain information changes.

There is opportunity, on a case-by-case basis, for those found guilty of sexual offences to be removed or even exempted from the registry.

However, someone found not criminally responsible for a sexual offence lacks the same avenues to be removed from the registry or exempted from reporting, even after receiving an absolute discharge from a review board.

The man, whose name is not public, argued the provincial provisions are unconstitutional because they unfairly deny someone found not criminally responsible of a sexual offence the chance to avoid being in the registry — as opposed to those who receive a discharge for the same offence under the Criminal Code.

He was at first unsuccessful in Ontario court but the Court of Appeal ruled the provisions unconstitutional, prompting the provincial attorney general to head to the Supreme Court.

In writing for a majority of the court, Justice Andromache Karakatsanis said the provincial regime draws discriminatory distinctions between people found guilty and people found not criminally responsible for sexual offences on the basis of mental disability.

Karakatsanis agreed with the Court of Appeal’s conclusion that this runs contrary to the equality guarantees in the Charter of Rights and Freedoms.

“These discriminatory distinctions cannot be justified in a free and democratic society.”

This report by The Canadian Press was first published Nov. 20, 2020.

Jim Bronskill, The Canadian Press