Attorney General of Ontario Appellant v. G, 2020 SCC 38

SUPREME COURT OF CANADA Citation: Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629 Appeal Heard: February 20, 2020 Judgment Rendered: November 20, 2020 Docket: 38585 Between: Attorney General of Ontario Appellant and G Respondent - and - Attorney General of Canada, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, David Asper Centre for Constitutional Rights, Empowerment Council and Canadian Mental Health Association, Ontario Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 184) Concurring Reasons: (paras. 185 to 217) Joint Reasons Dissenting in Part: (paras. 218 to 294) Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Martin and Kasirer JJ. concurring) Rowe J. Côté and Brown JJ.

Attorney General of Ontario Appellant v. G Respondent and Attorney General of Canada, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, David Asper Centre for Constitutional Rights, Empowerment Council and Canadian Mental Health Association, Ontario Interveners Indexed as: Ontario (Attorney General) v. G 2020 SCC 38 File No.: 38585. 2020: February 20; 2020: November 20.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Right to equality — Discrimination based on mental or physical disability — Ontario’s sex offender registry regime requiring that individuals either convicted or found not criminally responsible on account of mental disorder (“NCRMD”) of sexual offences have their personal information added to registry and report to police station at least once a year to keep information up to date — Opportunities for exemption from requirements available to individuals found guilty of sexual offences but not to those found NCRMD who have been granted absolute discharge — Whether provincial sex offender registry regime infringes right to equality of such NCRMD individuals — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1 , 15(1) — Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1 .

Constitutional law — Remedy — Declaration of invalidity — Suspension of declaration of invalidity — Individual exemption from suspension — Applicant seeking declaration that Ontario’s sex offender registry regime infringes right to equality of NCRMD individuals who have been granted absolute discharge — Court of Appeal granting declaration of invalidity, suspending declaration for 12 months and exempting applicant from suspension — Proper approach to determining remedy for unconstitutional legislation — Canadian Charter of Rights and Freedoms, s. 24(1) — Constitution Act, 1982, s. 52(1) .

In Ontario, Christopher ’s Law requires those who are either convicted or found not criminally responsible on account of mental disorder (“NCRMD”) of a sexual offence to physically report to a police station to have their personal information added to the province’s sex offender registry. Registrants must continue to report in person at least once a year and every time certain information changes.

Registrants must comply for 10 years if the maximum sentence for the sexual offence they committed is 10 years or less, or for life, if the maximum sentence is greater than 10 years or if they committed more than one sexual offence. There is some opportunity, based on an individualized assessment, for those found guilty of sexual offences to be removed or exempted from the registry or relieved of their reporting obligations. By contrast, no one found NCRMD of sexual offences can ever be removed from the registry or exempted from reporting, even if they have received an absolute discharge from a review board.

In June 2002, G was found NCRMD of two sexual offences. In August 2003, he was absolutely discharged by the Ontario Review Board on the basis that he no longer represented a significant risk to the safety of the public. Despite this discharge, G was placed on the provincial sex offender registry in August 2004, as required by Christopher ’s Law . G brought an application challenging Christopher ’s Law as it applies to persons found NCRMD in respect of sexual offences who have been absolutely discharged.

He argued that the inability of people in his situation to be granted an exemption or be removed from the provincial registry or relieved of reporting requirements, as compared to those found guilty of the same offences, violates ss. 7 and 15(1) of the Charter . The application judge dismissed G’s application, but the Court of Appeal allowed G’s appeal on the basis of his s. 15(1) claim, and concluded that the s. 15(1) breach was not justified under s. 1 of the Charter .

It declared Christopher ’s Law to be of no force or effect as it applies to those found NCRMD who were granted an absolute discharge, suspended the declaration of invalidity for 12 months, and exempted G from that suspension by relieving him of further compliance with the legislation and ordering that his information be deleted from the registry immediately. The Attorney General of Ontario appealed to the Court. Held (Côté and Brown JJ. dissenting in part): The appeal should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.: Christopher ’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter . These discriminatory distinctions cannot be justified in a free and democratic society. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

The first step in determining whether a law infringes s. 15(1) of the Charter asks whether the law, on its face or in its impact,creates a distinction based on enumerated or analogous grounds. In the present case, there are clear distinctions drawn based on theenumerated ground of mental disability. Offenders found guilty of sexual offences can be exempted from having to report and register inthe first place by receiving a discharge in their sentencing hearing.

Convicted registrants can also be removed from the sex offender registryby receiving a free pardon, and can be relieved of the obligation to continue to report upon receipt of a free pardon or record suspension.However, those found NCRMD of the same offences have no such opportunities, even if they have received an absolute discharge.NCRMD individuals are plainly subjected to different treatment. The second step asks whether the challenged law imposes a burden or denies a benefit in a manner that has the effect ofreinforcing, perpetuating or exacerbating disadvantage, including historical disadvantage.

By denying those found NCRMD opportunitiesfor exemption, removal, or relief from the sex offender registry, Christopher’s Law effectively presumes that they are inherently andpermanently dangerous. It considers NCRMD individuals a perpetual threat to the public. Christopher’s Law imposes a burden on peoplefound NCRMD in a manner that violates s. 15(1) in two respects: the law itself invokes prejudicial and stereotypical views about personswith mental illnesses; and the law puts those found NCRMD in a worse position than those found guilty.

Both effects perpetuate thehistorical and enduring disadvantage experienced by persons with mental illnesses. The distinctions drawn by Christopher’s Law are thusdiscriminatory. The burden of establishing that the infringement of s. 15(1) is justified under s. 1 of the Charter belongs to the AttorneyGeneral, on a balance of probabilities. First, there must be a pressing and substantial objective for the infringing measure.

Second, theinfringing measure must not disproportionately interfere with the s. 15(1) right; it must be rationally connected to the objective, the meanschosen must interfere as little as possible with the s. 15(1) right, and the benefits of the infringing measure must outweigh its negativeeffects.

In the present case, the parties agree that the purpose of Christopher’s Law is to assist in the investigation and prevention of sexualoffences, that this purpose is pressing and substantial, and that the limits it places on Charter rights are rationally connected to that purpose.However, Christopher’s Law is not minimally impairing of the s. 15(1) rights of NCRMD individuals. The inclusion of any method ofexempting and removing those found NCRMD from the registry based on individualized assessment would be less impairing. Thus, theAttorney General has not justified the s. 15(1) infringement.

The determination of appropriate remedies for legislation that violates the Charter must follow a principled approach. Section52(1) of the Constitution Act, 1982, provides in absolute terms that laws inconsistent with the Constitution are of no force or effect to theextent of the inconsistency. A general declaration is the means by which courts give full effect to the broad terms of s. 52(1). A court facedwith a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so.

A measure of discretionis inevitable in determining how to respond to an inconsistency between legislation and the Constitution. While s. 52(1) recognizes theprimacy of the Constitution, including the fundamental rights and freedoms of individuals and groups guaranteed by the Charter,fashioning constitutional remedies inevitably implicates other — at times competing — constitutional principles. Courts must strike anappropriate balance between these principles in determining how to give effect to s. 52(1) in a manner that best aligns with Canada’sconstitutional order.

The Court’s leading decision on remedies for laws that violate the Charter, Schachter v. Canada, (SCC),[1992] 2 S.C.R. 679, provides helpful guidance on how to craft a responsive and effective remedy for unconstitutional laws. Schachter setout a general approach to granting remedies. It endorsed remedies tailored to the breadth of rights violations, thereby allowingconstitutionally compliant aspects of unconstitutional legislation to be preserved, and recognized that, in rare circumstances, the effect of adeclaration of invalidity could be suspended for a period of time to protect the public interest.

Schachter also considered how s. 52(1)remedies can be combined with individual remedies for Charter violations, including whether the claimant should receive an individualexemption from a suspension, thereby ensuring that successful claimants can enjoy the immediate benefit of a declaration of invalidity.

By employing and building on Schachter’s guidance in determining the form and breadth of declarations of invalidity,suspending the effect of those declarations, and exempting individuals from suspensions, the Court’s jurisprudence has coalesced around agroup of core remedial principles that structure the exercise of principled remedial discretion and provide the groundwork for meaningfulremedies in different contexts. First, safeguarding rights lies at the core of granting Charter remedies because the Charter exists to protectrights, freedoms, and inherent dignity.

Second, the public has an interest in legislation that is constitutionally compliant. Third, the public isentitled to the benefit of legislation, which individuals rely upon to organize their lives and protect them from harm. Fourth, courts andlegislatures play different institutional roles: the legislature is sovereign in the sense that it has exclusive authority to enact, amend, andrepeal any law as it sees fit, while courts remain guardians of the Constitution and of individuals’ rights under it. These principles provideguidance to courts and encourage them to transparently explain remedial results.

As the language of s. 52(1) directs, the first step in crafting an appropriate remedy is determining the extent of the legislation’sinconsistency with the Constitution. The nature and extent of the Charter violation lays the foundation for the remedial analysis becausethe breadth of the remedy ultimately granted will reflect at least the extent of the breach. The second step is determining the form that adeclaration should take. Remedies other than full declarations of invalidity should be granted when the nature of the violation and theintention of the legislature allows for them.

However, if granted in the wrong circumstances, tailored remedies can intrude on thelegislative sphere. To respect the differing roles of courts and legislatures, determining whether to strike down legislation in its entirety orto grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that it wouldhave enacted the law as modified by the court.

When an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance,the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law, the court may suspend theeffect of the declaration. The power to suspend the effect of a declaration of invalidity arises from accommodation of broader constitutionalconsiderations and is included in the power to declare legislation invalid.

Suspensions of declarations of invalidity should be rare; the effectof a declaration should not be suspended unless the government demonstrates that an immediately effective declaration would endanger acompelling public interest that outweighs the importance of immediate constitutional compliance and an immediately effective remedy forthose whose Charter rights will be violated.

The period of suspension, where warranted, should be long enough to give the legislature theamount of time it requires to carry out its responsibility diligently and effectively, while recognizing that every additional day of rightsviolations will be a strong counterweight against giving the legislature more time. When the effect of a declaration of invalidity is suspended, an individual remedy for the claimant under s. 24(1) of the Charter

in the form of an individual exemption from the suspension will often be appropriate and just. A s. 24(1) remedy should meaningfully vindicate the right of the claimant, conform to the separation of powers, invoke the powers and function of a court, be fair to the party against whom the remedy is ordered, and allow s. 24(1) to evolve to meet the challenges of each case. A court’s approach to s. 24(1) remedies must stay flexible and responsive to the needs of a given case.

The public is well served by encouraging litigation that furthers the public interest by uncovering unconstitutional laws, and claimants invest time and resources to pursue matters in the public interest. Thus, if an exemption is otherwise appropriate and just, claimants should be exempted from suspensions in the absence of compelling reasons not to. In the present case, the declaration of invalidity was properly limited to those who have been found NCRMD of a sexual offence and absolutely discharged.

A tailored remedy was clearly appropriate here, since granting such a remedy better protects the public’s interest in legislation enacted for its benefit, like Christopher ’s Law , and better respects the role of the legislature while also safeguarding Charter rights and realizing the public’s interest in constitutionally compliant legislation. The declaration of invalidity was also properly suspended for a 12-month period.

Although the terms of s. 52(1) and the need to safeguard Charter rights and ensure constitutional compliance of all legislation weigh heavily in favour of an immediately effective declaration, those factors must be balanced against protecting the public’s interest in legislation passed for its benefit. To do so requires considering the nature and extent of both the continued rights violations and the danger to an identified public interest that could flow from an immediate declaration of invalidity. In the instant case, public safety has been identified as the public interest that justifies a suspension.

NCRMD persons are at a statistically higher risk of offending than the general population. Granting an immediate declaration would therefore endanger the public interest in safety to some extent. The registry contributes to public safety by enhancing the ability of police to prevent and investigate sexual offences. Immediately relieving people who may pose some risk of committing sexual offences from the obligation to report or permitting them to seek removal of their information could detract from this enhanced ability. The threat to public safety is therefore meaningful.

However, given that persons found NCRMD who pose the highest demonstrable risk to reoffend are not given absolute discharges, this threat is limited. The other public interest at stake is respect for the legislature: granting an immediate declaration of invalidity could risk compromising the legislature’s ability to fulfil its role and restrict the effectiveness of whatever new version of Christopher ’s Law is eventually enacted.

Balanced against these considerations is the significance of the rights violation that the suspension would temporarily prolong: Christopher ’s Law treats those found NCRMD in accordance with a persistent, demeaning stereotype without providing an opportunity to determine whether they pose sufficient risk. On balance, the combination of these two interests justifies temporarily depriving those affected of the immediate benefit of the declaration. Finally, the exercise of the Court of Appeal’s discretion in granting G an individual exemption from the suspension deserves deference.

G’s record since his release 17 years ago has been spotless and there is no indication that he poses a risk to public safety. An exemption ensures that G receives an effective remedy and is not denied the benefit of his success on the constitutional merits. Per Rowe J.: The appeal should be dismissed. There is agreement with Côté and Brown JJ. regarding s. 15(1) of the Charter , and regarding the general approach to ordering an individual exemption under s. 24(1) from the suspended effect of a declaration of invalidity under s. 52(1) of the Constitution Act, 1982 .

However, there is disagreement on the proper approach to suspending a declaration of invalidity under s. 52(1) . The Court’s approach in Schachter should be reaffirmed. The majority’s principled discretion approach to suspended declarations of invalidity lacks analytic structure, and its four principles are so indeterminate and truistic as to provide no meaningful guidance. This discretionary approach could lead to a continuation of current trends in which declarations of invalidity are suspended in a way that varies with the length of the Chancellor’s foot.

There is no legitimate basis to read remedial discretion into s. 52(1) . The absence of remedial discretion in s. 52(1) is not an oversight, and the inherent jurisdiction of a court is not a sound or sufficient legal basis to depart from the immediate effect of s. 52(1) . The only basis on which a court can order a constitutionally invalid statute to be enforced notwithstanding its illegality is if an immediate declaration of invalidity would offend some other constitutional principle.

Schachter is grounded in a view that suspended declarations are exceptional and should be ordered only where: (1) an immediate declaration of invalidity would pose a potential danger to the public; (2) it would otherwise threaten the rule of law; or (3) the impugned law is underinclusive and the court cannot determine properly whether to cancel or extend its benefits. These categories exemplify circumstances in which countervailing constitutional principles constitute a valid basis to suspend an immediate declaration of invalidity.

While not exhaustive, the Schachter categories should be extended only where an immediate declaration would infringe some constitutional principle. In the case at bar, the declaration of invalidity was suspended on the basis of public safety concerns. However, as the 12-month suspension of the declaration of invalidity ordered by the Court of Appeal has expired, this issue is now moot, as is the issue of the individual exemption order for G. Consequently, there is no cause to decide whether the declaration was properly suspended, or whether the individual exemption was rightly ordered.

Per Côté and Brown JJ. (dissenting in part): There is agreement with the majority that Christopher ’s Law infringes G’s s. 15(1) Charter right to equal treatment, and that the declaration of invalidity was properly suspended for a period of 12 months. However, the suspension of the declaration of invalidity should be grounded solely on the threat to the rule of law that would otherwise manifest, in the present case, in the form of a threat to public safety.

Consistent with the limited role of the judiciary vis-à-vis the legislature, an individual exemption from the suspended declaration of invalidity should not be granted. The appeal should therefore be allowed in part. The section 15(1) issue is easily disposed of. Christopher ’s Law draws a distinction between persons found NCRMD and persons found guilty. That distinction exacerbates pre-existing disadvantage by perpetuating the stereotype that persons with mental illness are inherently dangerous.

Persons found guilty of sexual offences have several exit ramps leading away from the obligation to comply with Christopher ’s Law but persons found NCRMD do not, even where the Ontario Review Board determines that they no longer pose a significant threat to public safety and grants them an absolute discharge. This constitutes differential treatment on the basis of an enumerated ground: mental disability. The proper remedy is to require the legislature to provide persons found NCRMD who have been absolutely discharged with an opportunity for exemption and removal from the Christopher ’s Law registry.

Suspended declarations of invalidity are only warranted when there is a threat to the rule of law, for three principal reasons.First, this was what the Court envisioned in assuming for the first time the power to issue a suspended declaration in Reference re ManitobaLanguage Rights, (SCC), [1985] 1 S.C.R. 721. The Court in Manitoba Reference tightly constrained the use of suspendeddeclarations to situations where they are necessary to preserve the rule of law under conditions of emergency, when it is impossible tocomply with constitutional rights.

Since Manitoba Reference, however, the Court has lost its way and has suspended declarations ofinvalidity almost as a matter of course, often with no justification or attention to the rule of law. Secondly, the Constitution contemplates immediate declarations as the norm, subject only to a rule of law concern. Once it isfound that a statute is inconsistent with the Constitution, s. 52(1) limits the role of courts to declaring a law is of no force or effect.

Whilethe Constitution does not expressly permit courts to suspend a declaration of invalidity, it does provide a means for Parliament andlegislatures to do so in certain cases under s. 33(1). Courts must therefore be judicious, measured and principled when exercising thejudicially created power to suspend a declaration of invalidity. Rights under the Charter may be temporarily judicially displaced by theoperation of a suspended declaration of invalidity only where necessary to preserve the rule of law and to ensure its continuity.

In suchinstances, courts are not fulfilling an impermissible legislative role as they otherwise would be by granting a suspended declaration, but anassuredly judicial role. Thirdly, lessons that follow from Schachter’s jurisprudential progeny show why it is essential to confine judicial discretion.Restraint is imperative because suspending a declaration will often pull a court beyond its institutional competence and capacity, and intothe role of the legislature. As well, courts are ill-equipped to determine the period of time during which a suspended declaration shouldgovern.

Further, allowing an unconstitutional law to remain in force not only withholds the immediate relief to which a successful claimantis expressly entitled under s. 52(1), but also sustains the invalidated law’s capacity to produce harm. Finally, suspended declarations canexacerbate pre-existing disadvantage and discourage rights holders from bringing Charter claims forward in the first place.

If used improperly, suspended declarations can undermine the rule of law they were meant to preserve in two ways: they canlead to uncertainty in the law during the period of suspension; and they can lessen the consequences for lawmakers of enacting laws thatviolate the Charter, which in turn, reduces the incentives for complying with rights when making law.

In the present case, granting an immediate declaration of invalidity would threaten public safety and, therefore, the rule of law,as it would mean that the Christopher’s Law registry would not apply to all persons found NCRMD and who have been granted absolutedischarges by the Ontario Review Board. While Christopher’s Law likely captures persons who do not pose a significant risk ofreoffending, it also captures many who do.

More importantly, it must be remembered that the recidivism risk is that of committing sexualoffences, which are violent crimes that cause profound harm to the most vulnerable members of society. Given that an immediatedeclaration of invalidity would remove persons found NCRMD who are potentially dangerous from the registry, it would create a lacuna inthe regime that would undoubtedly pose a danger to the public and thus threaten the rule of law. If a suspended declaration of invalidity should be rare, then an individual exemption from that suspension must be exceedinglyso.

There is disagreement with the majority that judges are well-suited to conduct an individualized assessment as to whether an exemptionwould endanger public safety. Rather, a helpful consideration in determining whether an individual exemption should be granted is to askwhether an exemption is necessary to prevent irreparable harm to the interests the Charter was designed to protect during the suspension.The case for irreparable harm must be so significant that it overcomes the weighty need to leave the manner of addressing a constitutionalinfringement to the legislature.

Although G has shown that he is entitled to the opportunity for exemption and removal from the registry, this is not one ofthose rare cases where an individual exemption is warranted. A delayed remedy will not deprive G of an effective one, nor preclude himfrom accessing the new opportunity for exemption in whatever form that may take. Further, G will, at most, have to report to the policestation one more time as part of his obligation to report annually, a far cry from irreparable harm.

In G’s case, as in most, crafting anindividual exemption will exceed the competence of the Court and encroach on what is an issue for resolution by the legislature, which is ina far better position to determine what the appropriate mechanism is to provide persons found NCRMD with the opportunity for exemption. Granting G an individual exemption also raises concerns of horizontal unfairness — that is, of treating G better than otherswho are similarly situated.

In a constitutional case involving the validity of a statute of general applicability, a litigant should not be entitledto a better or more immediate constitutional remedy than all other persons similarly situated merely because they brought the case. Cases Cited By Karakatsanis J. Discussed: Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; considered: R. v. Swain, (SCC), [1991] 1 S.C.R. 933; Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; referred to: R. v.Dyck, 2008 ONCA 309, 90 O.R. (3d) 409; R. v. Long, 2018 ONCA 282, 45 C.R. (7th) 98; Winko v.

British Columbia (Forensic PsychiatricInstitute), (SCC), [1999] 2 S.C.R. 625; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Law v.Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497; Andrews v. Law Society of BritishColumbia, (SCC), [1989] 1 S.C.R. 143; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Eldridge v.British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Centrale des syndicats du Québec v. Quebec (AttorneyGeneral), 2018 SCC 18, [2018] 1 S.C.R. 522; Kahkewistahaw First Nation v.

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Quebec Association of Protestant School Boards, (SCC), [1984] 2S.C.R. 66; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Conférence des juges depaix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Canada (Attorney General) v. Chambre desnotaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180; Mounted PoliceAssociation of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Canada (Attorney General) v. Whaling, 2014 SCC20, [2014] 1 S.C.R. 392; R. v.

Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC47, [2009] 3 S.C.R. 208; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component,2009 SCC 31, [2009] 2 S.C.R. 295; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC27, [2007] 2 S.C.R. 391; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1S.C.R. 912; Trociuk v. British Columbia (Attorney General), 2003 SCC 34, [2003] 1 S.C.R. 835; Sauvé v.

Canada (Chief Electoral Officer),2002 SCC 68, [2002] 3 S.C.R. 519; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; R. v.Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; U.F.C.W., Local 1518 v. KMart Canada Ltd., (SCC), [1999] 2 S.C.R.1083; M. v. H., (SCC), [1999] 2 S.C.R. 3; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Libman v. Quebec (Attorney General), (SCC), [1997] 3 S.C.R. 569; R. v. Heywood, (SCC), [1994] 3 S.C.R. 761; Sauvé v. Canada (Attorney General), (SCC), [1993] 2 S.C.R. 438; Kourtessis v.M.N.R., (SCC), [1993] 2 S.C.R. 53; R. v.

Zundel, (SCC), [1992] 2 S.C.R. 731; R. v. Bain, (SCC), [1992] 1 S.C.R. 91; R. v. Wholesale Travel Group Inc., (SCC), [1991] 3 S.C.R. 154; R. v. Sit, (SCC), [1991] 3 S.C.R. 124; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; Tétreault-Gadoury v. Canada (Employment andImmigration Commission), (SCC), [1991] 2 S.C.R. 22; Committee for the Commonwealth of Canada v. Canada, (SCC), [1991] 1 S.C.R. 139; R. v. Arkell, (SCC), [1990] 2 S.C.R. 695; R. v. Martineau, (SCC),[1990] 2 S.C.R. 633; Rocket v.

Royal College of Dental Surgeons of Ontario, (SCC), [1990] 2 S.C.R. 232; Mahe v.Alberta, (SCC), [1990] 1 S.C.R. 342; Edmonton Journal v. Alberta (Attorney General), (SCC), [1989] 2S.C.R. 1326; Black v. Law Society of Alberta, (SCC), [1989] 1 S.C.R. 591; Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712; Devine v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 790; Corporationprofessionnelle des médecins du Québec v. Thibault, (SCC), [1988] 1 S.C.R. 1033; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v. Smith, (SCC), [1987] 1 S.C.R. 1045; Re B.C.

Motor Vehicle Act, (SCC),[1985] 2 S.C.R. 486; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Koo Sze Yiu v.Chief Executive of the HKSAR, [2006] 3 H.K.L.R.D. 455; Air Canada v. British Columbia, (SCC), [1989] 1 S.C.R. 1161;R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Coetzee v. Government of the Republic of South Africa, [1995] ZACC 7, 1995

(4) S.A.631; BVerfG, 2 BvC 62/14, Decision of January 29, 2019 (Germany); Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R.13; Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993); Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995); Thorson v.Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28;Canadian Council of Churches v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236;Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421. By Rowe J.

Applied: Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; considered: Canada (Attorney General) v.Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; referred to: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,[2019] 4 S.C.R. 653; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Law Society of British Columbia v. TrinityWestern University, 2018 SCC 32, [2018] 2 S.C.R. 293; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863; Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; R. v. Swain, (SCC), [1991] 1 S.C.R. 933; R. v.

Morales, (SCC), [1992] 3 S.C.R. 711; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489;Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Ontario (Attorney General) v. G, 2019 SCC 36,[2019] 2 S.C.R. 990. By Côté and Brown JJ. (dissenting in part)

Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30,[2015] 2 S.C.R. 548; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Withler v. Canada (Attorney General), 2011 SCC12, [2011] 1 S.C.R. 396; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Reference re Manitoba Language Rights, (SCC),[1985] 1 S.C.R. 721; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; SaskatchewanFederation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; U.F.C.W., Local 1518 v.

KMart Canada Ltd., (SCC), [1999] 2 S.C.R. 1083; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,[2007] 2 S.C.R. 391; R. v. Guignard, 2002 SCC 14, [2002] 1 S.C.R. 472; Trociuk v. British Columbia (Attorney General), 2003 SCC 34,[2003] 1 S.C.R. 835; Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912; Corbiere v. Canada (Minister of Indianand Northern Affairs), (SCC), [1999] 2 S.C.R. 203; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R.331; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; R. v.

Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3; Quebec(Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17, [2018] 1 S.C.R.464; R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599; Conférence des juges de paix magistrats du Québec v. Quebec (AttorneyGeneral), 2016 SCC 39, [2016] 2 S.C.R. 116; R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602; Canada (Attorney General) v. Whaling, 2014SCC 20, [2014] 1 S.C.R. 392; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013SCC 62, [2013] 3 S.C.R. 733; R. v.

Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; Quebec (Education, Recreation and Sports) v. Nguyen, 2009SCC 47, [2009] 3 S.C.R. 208; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British ColumbiaComponent, 2009 SCC 31, [2009] 2 S.C.R. 295; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; Charkaoui v. Canada (Citizenship andImmigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Chaoulli v.Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; R. v.

Demers, 2004 SCC 46, [2004] 2 S.C.R. 489; Nova Scotia (Workers’Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002]1 S.C.R. 405; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Lavallee, Rackel & Heintz v. Canada(Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; R. v.Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2S.C.R. 1120; M. v.

H., (SCC), [1999] 2 S.C.R. 3; Thomson Newspapers Co. v. Canada (Attorney General), (SCC), [1998] 1 S.C.R. 877; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624; Libmanv. Quebec (Attorney General), (SCC), [1997] 3 S.C.R. 569; Benner v. Canada (Secretary of State), (SCC), [1997] 1 S.C.R. 358; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v.Heywood, (SCC), [1994] 3 S.C.R. 761; Sauvé v.

Canada (Attorney General), (SCC), [1993] 2 S.C.R. 438;Ramsden v. Peterborough (City), (SCC), [1993] 2 S.C.R. 1084; Baron v. Canada, (SCC), [1993] 1S.C.R. 416; R. v. Zundel, (SCC), [1992] 2 S.C.R. 731; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R.295; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121; B.C.G.E.U. v.British Columbia (Attorney General), (SCC), [1988] 2 S.C.R. 214; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145; Attorney General of the Republic v.Mustafa Ibrahim, [1964] Cyprus Law Reports 195; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), (SCC), [1991] 2 S.C.R. 22; Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982); R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; Saumur v. City of Quebec, (SCC), [1953] 2 S.C.R. 299; R. v.Oakes, (SCC), [1986] 1 S.C.R. 103; Reference re Anti-Inflation Act, (SCC), [1976] 2 S.C.R. 373; Carter v.Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13; Scott v. Scott, [1913] A.C. 417; R. v.

Swain, (SCC), [1991]1 S.C.R. 933; Ferguson v. Regional Mental Health Care St. Thomas, 2010 ONCA 810, 271 O.A.C. 104; Kassa (Re), 2019 ONCA 313; R. v.Friesen, 2020 SCC 9, [2020] X S.C.R. XXX; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Doucet-Boudreau v. NovaScotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Peckham (1994), (ON CA), 93 C.C.C. (3d) 443;R. v. Redhead, 2006 ABCA 84, 384 A.R. 206; R. v. R.L., 2007 ONCA 347; R. v. Debidin, 2008 ONCA 868, 94 O.R. (3d) 421; BritishColumbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Canada (Attorney General) v. DowntownEastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524; Miron v. Trudel, (SCC), [1995]2 S.C.R. 418. Statutes and Regulations Cited Bill C-16, Sex Offender Information Registration Act, 3rd Sess., 37th Parl., 2004, s. 20. Canadian Charter of Rights and Freedoms,

preamble, ss. 1, 2, 3, 4, 7 to 15, 24(1), (2), 32(1), 33. Christopher’s Law (Sex Offender Registry), 2000, O. Reg. 69/01, ss. 1.2, 2. Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, ss. 1(1) “offender”, “pardon”, 2, 3, 4(2), 7(1)(a), (b), (c), (4), 8(1)(c),9.1, 10(2), (3), 11. Christopher’s Law (Sex Offender Registry) Amendment Act, 2011, S.O. 2011, c. 8, ss. 1(1), 6. Constitution Act, 1867,

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Part XX.1, 672.1(1), 672.34,672.35, 672.47, 672.54, 672.55, 672.81, 730, 748. Criminal Records Act, R.S.C. 1985, c. C-47, ss. 4, 4.1. Human Rights Act 1998 (U.K.), 1998, c. 42, s. 4(4), (6). Police Services Act, R.S.O. 1990, c. P.15, s. 41(1.1), (1.2).

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APPEAL from a judgment of the Ontario Court of Appeal (Doherty, van Rensburg and Hourigan JJ.A.), 2019 ONCA 264 , 432 C.R.R. (2d) 97, 145 O.R. (3d) 161, 374 C.C.C. (3d) 55, 54 C.R. (7th) 120, [2019] O.J. No. 1683 (QL), 2019 CarswellOnt 4915 (WL Can.), setting aside a decision of Lederer J., 2017 ONSC 6713 , 401 C.R.R. (2d) 297, [2017] O.J. No. 6355 (QL), 2017 CarswellOnt 19307 (WL Can.). Appeal dismissed, Côté and Brown JJ. dissenting in part. S. Zachary Green , for the appellant. Marshall A. Swadron , Joanna H. Weiss and Arooba Shakeel , for the respondent.

Marc Ribeiro and John Provart , for the intervener the Attorney General of Canada. Jill R. Presser and Shakir Rahim , for the intervener the Canadian Civil Liberties Association. Anita Szigeti , Andrew Menchynski , Ruby Dhand and Meaghan McMahon , for the intervener the Empowerment Council. Erin Dann and Michelle Psutka , for the intervener the Criminal Lawyers’ Association (Ontario). Cheryl Milne , for the intervener the David Asper Centre for Constitutional Rights. Adam Goldenberg and Ljiljana Stani ć , for the intervener the Canadian Mental Health Association, Ontario.

The judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ. was delivered by Karakatsanis J. — I. Introduction [ 1 ] People with mental illnesses face persistent stigma and prejudicial treatment in Canadian society, which has imposed profound and widespread social, political, and legal disadvantage on them. In particular, discriminatory perceptions that those with mental illnesses are inherently and indefinitely dangerous persist. These perceptions have served to support some of the most unjust treatment of those with mental illnesses.

As this case demonstrates, such perceptions still find some expression in legislation. [ 2 ]

Section 15 of the Canadian Charter of Rights and Freedoms prevents such discrimination from being given the force of law. This appeal requires the Court to apply the equality guarantee to the manner in which those found not criminally responsible on account of mental disorder (NCRMD) of sexual offences are treated by Ontario’s sex offender registry regime. It also provides an opportunity to set out a consistent set of principles applicable to granting remedies for legislation that violates the Charter . [ 3 ] In Ontario, Christopher’s Law (Sex Offender Registry), 2000 , S.O. 2000, c. 1 ( Christopher ’s Law ), requires those who

are either convicted or found NCRMD of a sexual offence to physically report to a police station to have their personal information added to the province’s sex offender registry. They must continue to report in person at least once a year to keep their information up to date. They must also report every time certain information changes.

Even when individuals are no longer required to report or when they die, information previously gathered about them under the registry is retained. [ 4 ] Those who are found guilty of a sexual offence can be exempted from reporting in the first place by receiving a discharge under s. 730 of the Criminal Code , R.S.C. 1985, c. C-46 , can be removed from the registry upon receipt of a free pardon, and can be exempted from continuing to report upon receipt of either a free pardon or criminal record suspension.

There is therefore some opportunity, based on an individualized assessment, to be exempted from the sex offender registry. By contrast, everyone found NCRMD must report upon discharge by a provincial review board or court, without exception, no one found NCRMD can ever be removed from the registry, and no one found NCRMD can ever be exempted from reporting. This is so even if they have received a discharge from a review board. [ 5 ] G, the respondent, was found NCRMD of two sexual offences and then absolutely discharged by the Ontario Review Board (ORB).

His record in the 19 years since those offences occurred has been spotless. Nevertheless, as Christopher ’s Law currently stands, G will have to report and will be a registered “sex offender” for the rest of his life. His information will remain in the registry even after he passes away. He has no opportunity for removal. [ 6 ] In my view, Christopher ’s Law draws discriminatory distinctions between people found guilty and people found NCRMD of sexual offences on the basis of mental disability, contrary to s. 15(1) of the Charter .

These discriminatory distinctions cannot be justified in a free and democratic society. I would therefore dismiss the appeal and uphold the Court of Appeal’s orders declaring Christopher ’s Law to be of no force or effect as it applies to those found NCRMD and granted an absolute discharge, suspending the declaration of invalidity for 12 months, and exempting G from that suspension by relieving him of further compliance with the legislation and ordering that his information be deleted from the registry immediately. II. Background [ 7 ] In September 2001, G experienced his first and only manic episode.

A month later, he was charged with two counts of sexually assaulting his then-wife, one count of unlawfully confining her, and one count of harassment. The two incidents underlying the charges occurred as a result of that manic episode. [ 8 ] In June 2002, G was found NCRMD. When G appeared before the ORB in July 2002, he received a conditional discharge. In August 2003, the ORB ordered that he be absolutely discharged on the basis that “[t]here is simply no evidence to find that [G] is a significant risk to the safety of the public” ( 2017 ONSC 6713 , 401 C.R.R. (2d) 297, at para. 17 ).

G has not engaged in criminal activity since being absolutely discharged approximately 17 years ago. He has adhered to treatment and his symptoms have been in full remission. He has maintained stable employment and has strong and supportive relationships with his family. [ 9 ] G was placed on the provincial sex offender registry in August 2004, and on the federal registry in January 2005. Since then, G has fully complied with his reporting obligations.

He has reported in person annually as required by Christopher ’s Law and has complied with other requirements imposed by the federal Sex Offender Information Registration Act , S.C. 2004, c. 10 ( SOIRA ). [ 10 ] G brought an application challenging Christopher ’s Law (and the federal registry, which is not at issue in this appeal) as it applies to persons found NCRMD who have bee n absolutely discharged under

Part XX.1 of the Criminal Code in respect of offences giving rise to registration. He took the position that the inability of people in his situation to be granted an exemption or be removed from the registry violates ss. 7 and 15(1) of the Charter . G’s application was dismissed at first instance, but his appeal was allowed in part. A.

Ontario Superior Court of Justice ( 2017 ONSC 6713 , 401 C.R.R. (2d) 297) (Lederer J.) [ 11 ] Relying on the evidence of the government’s expert witness, the application judge found that, although it is not possible to predict the risk of recidivism with certainty using actuarial data, the risk of reoffending for a person found NCRMD is no less than that of an individual found guilty.

He concluded that, from the perspective of risk assessment, it makes little difference whether the sexual offence results in a criminal conviction or a finding of NCRMD, because people who have been found NCRMD have criminal recidivism rates that are substantially higher than the rates of first-time offending among individuals with no criminal history. [ 12 ] Dealing with the s. 7 claim, the application judge accepted that G’s liberty interest is engaged but rejected G’s argument that his security of the person interest is engaged. Relying on the conclusion of the Ontario Court of Appeal in R. v.

Dyck , 2008 ONCA 309 , 90 O.R. (3d) 409, at para. 106 , that the registration and reporting requirements were “quite modest”, the application judge concluded that any deprivation of liberty is in accordance with the principles of fundamental justice. [ 13 ] The application judge also found no violation of s. 15(1). He found that Christopher ’s Law does not distinguish between those found NCRMD and those found guilty of an offence, either on the face of the law or in its impact.

This is because the distinction between those found guilty and those found NCRMD is not found in Christopher ’s Law and because the impact of Christopher ’s Law is “modest”. B. Ontario Court of Appeal ( 2019 ONCA 264 , 145 O.R. (3d) 161) (Doherty, van Rensburg and Hourigan JJ.A.) [ 14 ] On appeal, Doherty J.A. for a unanimous Court of Appeal upheld the application judge’s dismissal of G’s s. 7 argument. He agreed with the application judge that Christopher ’s Law engages G’s liberty interest but not his security of the person interest.

He also agreed that the deprivation of liberty conforms to the principles of fundamental justice, relying on the Court of Appeal’s prior decisions in Dyck and R. v. Long , 2018 ONCA 282 , 45 C.R. (7th) 98. [ 15 ] However, Doherty J.A. allowed the appeal on the basis of G’s s. 15(1) claim. He found that the effects of Christopher ’s Law distinguish between convicted persons and persons found NCRMD on the basis of disability.

Convicted persons, Doherty J.A. reasoned, can access mechanisms that allow them to avoid registration in the first place, to be relieved of reporting requirements, or to be removed from the registry. Persons found NCRMD cannot access comparable “exit ramps”, even once they have been absolutely

discharged. Doherty J.A. concluded that those distinctions are discriminatory because they foster the stereotypical idea that persons foundNCRMD are inherently and perpetually dangerous. [16] Doherty J.A. also concluded that the law violates the s. 15(1) right of those found NCRMD who receive an absolutedischarge by failing to provide them with individualized treatment, citing Winko v. British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625.

Substantive equality, in his view, mandates that those found NCRMD and absolutely dischargedhave some opportunity for individualized assessment as a precondition for being subject to registry obligations. [17] Because the law does not minimally impair equality rights, Doherty J.A. concluded that the s. 15(1) breaches are notjustified under s. 1. There was no evidence the public safety objective of Christopher’s Law would be undermined by extending exemptionsto persons found NCRMD who have been absolutely discharged.

He reasoned that exemptions have already been extended to convictedpersons without apparent damage to this objective. [18] As to remedy, Doherty J.A. suspended the declaration of invalidity for 12 months to allow the legislature to determinethe appropriate response. However, he exempted G from the suspension by ordering that he be immediately removed from and relieved ofobligations under the registry. Doherty J.A. reached the same conclusions with respect to the federal sex offender regime under SOIRA; theAttorney General of Canada did not appeal the decision. III.

Issues [19] The Attorney General of Ontario appeals the order declaring Christopher’s Law to be without force or effect as it appliesto those found NCRMD and absolutely discharged, as well as the order that G be immediately removed from and relieved of his obligationsunder the registry. [20] The following issues, relating to whether the sex offender scheme infringes the rights of those found NCRMD, arise inthis case: A. Does Christopher’s Law violate s. 15(1)? B. If so, is it justified as a reasonable limit under s. 1 of the Charter? C. Does Christopher’s Law violate s. 7? D. What is the appropriate remedy?

Was the declaration of invalidity properly suspended for some period of time? If so, was G properlygranted an individual exemption from that suspension? [21] I begin by outlining the relevant aspects of Christopher’s Law and

Part XX.1 of the Criminal Code, then turn to theissues in this appeal. IV. Christopher’s Law [22] Christopher’s Law establishes a registry containing, among other things, the names, dates of birth, addresses, personaland business phone numbers, employers, descriptions, and photographs of Ontario residents who have been convicted or found NCRMD inrespect of a sexual offence, along with the sexual offence in question (s. 2; Christopher’s Law (Sex Offender Registry), 2000, O. Reg. 69/01(Christopher’s Law Regulation), s. 2). [23] Christopher’s Law imposes three distinct types of burdens on registrants.

First, registrants must comply with initialreporting requirements that, broadly, apply upon release into the community. Second, registrants must continue to report at least once a yearand within seven days of specified events, such as changing their addresses or names. Third, registrants’ information persists in the registry,subject to removal only in the event that a registrant receives a free pardon (s. 9.1; Christopher’s Law Regulation, s. 2(3)).

I explain theseburdens in more detail below. [24] Registrants must present themselves in person at a police station or other designated place to comply with their initialreporting requirements within seven days of release from custody, release on parole, release following absolute or conditional dischargeafter being found NCRMD, and becoming resident in Ontario (s. 3(1); Christopher’s Law Regulation, s. 1.2).

This initial in-personreporting obligation takes 45-60 minutes to complete at a police station. [25] Registrants must present themselves at least once a year to fulfil their ongoing reporting obligations (s. 3(1)(

f) and (g)).They must provide a wide variety of information identified in the regulations, including their name and any present or past aliases, theiraddresses, their personal and business phone numbers, the name of their employers, their photograph, their physical description, theirdriver’s licence number, their licence plate number, the characteristics of the car they regularly use, and the educational institutions inwhich they are enrolled (s. 3(2); Christopher’s Law Regulation, s. 2).

It takes 30-60 minutes to fulfil the annual reporting obligation.Registrants are also required to report every time they change their address, change their name, and become or cease to be an Ontarioresident. [26] Registrants must comply with the reporting obligations for 10 years if the maximum sentence for the sexual offence ofwhich they were convicted or found NCRMD is 10 years or less (s. 7(1)(a)). They must comply for life if the maximum sentence is greaterthan 10 years or if they were convicted or found NCRMD of more than one sexual offence (s. 7(1)(

b) and (c)). [27] There is no reporting obligation for those who receive conditional or absolute discharges under s. 730 of the CriminalCode, because s. 730(3) deems those individuals not to have been convicted of the offence, and s. 3 of Christopher’s Law only capturespersons who have been convicted or found NCRMD of an offence. [28] Under s. 7(4) of Christopher’s Law, a registrant is no longer required to report upon receiving either a free pardon or acriminal record suspension. A free pardon deems the recipient to have never committed the offence of which they were convicted (CriminalCode, s. 748(3)).

A free pardon may be granted either under the Crown’s prerogative of mercy or under s. 748 of the Criminal Code.

Historically, the prerogative of mercy and the free pardon, one of the remedies the prerogative can provide, have been exercised to correctwrongful convictions and to compassionately ameliorate the impacts of convictions (Hinse v. Canada (Attorney General), 2015 SCC 35,[2015] 2 S.C.R. 621, at para. 28; G. T. Trotter, “Justice, Politics and the Royal Prerogative of Mercy: Examining the Self-Defence Review”(2001), 26 Queen’s L.J. 339).

A record suspension is granted by the National Parole Board to those who have been convicted of an offence.Good conduct in the period since the end of imprisonment or probation is among the circumstances to be considered in granting a recordsuspension (Criminal Records Act, R.S.C. 1985, c. C-47, ss. 4 and 4.1). [29] Under s. 9.1 of Christopher’s Law, a registrant will be removed from the registry upon receiving a free pardon. At thetime of G’s registration, s. 9.1 also provided that a registrant would be removed from the registry upon receiving what is now referred to asa record suspension.

However, while a record suspension removes the reporting requirement, it no longer leads to removal from the registry(Christopher’s Law (Sex Offender Registry) Amendment Act, 2011, S.O. 2011, c. 8, ss. 1(1) and 6). Finally, there is no mechanism forremoving registrants’ information upon a successful appeal, nor when they pass away.

Instead, the registrant’s date of death is added to theregistry (Christopher’s Law Regulation, s. 2(1) 10). [30] Information contained in the registry can be disclosed to police forces within and outside Canada for crime preventionand law enforcement purposes, and disclosed publically by a chief of police or designate under certain circumstances (s. 10(2) and (3);Police Services Act, R.S.O. 1990, c.

P.15, s. 41(1.1) and (1.2)). [31] Significantly, Christopher’s Law requires police forces to make reasonable efforts to verify an offender’s address atleast once a year, which may consist of attending at a registrant’s home (s. 4(2)).

It does not set limits on the number of checks that can beconducted for verification purposes and does not require police forces to give registrants notice of verification efforts. [32] Registrants who fail to comply with Christopher’s Law are subject to a maximum fine of $25,000 or up to a year’simprisonment for a first offence and a maximum fine of $25,000 or up to two years’ imprisonment less a day for a subsequent offence (s.11). V. Criminal Code,

Part XX.1 [33]

Part XX.1 of the Criminal Code sets out the “assessment-treatment system” that applies to persons who are exempt fromcriminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16).

Part XX.1 provides for theestablishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMDconditional or absolute discharges under s. 672.54.[1] [34] In Winko, at para. 20, this Court described the purposes of

Part XX.1, a scheme founded on the “twin goals of fairtreatment [for those found NCRMD] and public safety”: . . . the purpose of

Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a newapproach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding]triggers a balanced assessment of the offender’s possible dangerousness and of what treatment-associated measures are required to offsetit. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with

Part XX.1’s goalsof public protection and fairness to the NCR accused. [para. 43] [35] Following a disposition or review hearing, a review board may order an absolute discharge, a conditional discharge, or ahospital detention (s. 672.54). In arriving at a disposition that is “necessary and appropriate in the circumstances”, review boards must takeinto account the safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, andtheir other needs (s. 672.54).

Conditions relating to treatment may only be included in a disposition if the accused consents to the condition(s. 672.55). [36] In general, disposition hearings are held within 45 days of an NCRMD verdict, and disposition review hearings are heldno more than 12 months after the most recent disposition or disposition review hearing (ss. 672.47 and 672.81). [37] The review board must absolutely discharge any person found NCRMD unless it concludes, based on the evidencepresented at the hearing, that the person poses a “significant risk of committing a serious criminal offence” (Winko, at para. 57; see also s.672.54(a)).

If the review board cannot make the required positive finding of significant risk, jurisdiction under

Part XX.1 falls away — thecriminal law cannot legitimately restrain that individual’s liberty any further (Winko, at para. 33). [38] This constitutional imperative, coupled with the individualized review that the review board must undertake at leastannually in every person’s case, illustrate

Part XX.1’s rejection of “invidious” stereotypical notions that persons with mental illnesses areinherently dangerous (Winko, at paras. 35, 47 and 89). Risk cannot be assumed; it must be positively found. And it must be found based onevidence considered within an individualized assessment of a person’s circumstances. VI. Analysis A. Does Christopher’s Law Infringe the Equality Rights of Those Found NCRMD?

(1) General principles [39] The equality guarantee has a powerful remedial purpose (Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, at para. 3; see also Andrews v. Law Society of British Columbia, (SCC),[1989] 1 S.C.R. 143, at p. 171). As Abella J. noted in Quebec (Attorney General) v.

A, 2013 SCC 5, [2013] 1 S.C.R. 61, the “root of s. 15 isour awareness that certain groups have been historically discriminated against, and that the perpetuation of such discrimination should becurtailed” (para. 332) — though, of course, historical discrimination need not be demonstrated for a court to find that a law infringes s.15(1). The equality guarantee seeks to prevent and remedy discrimination against groups subject to social, political, and legal disadvantagein Canadian society (R. v. Swain, (SCC), [1991] 1 S.C.R. 933, at p. 994; see also Eldridge v.

British Columbia (AttorneyGeneral), (SCC), [1997] 3 S.C.R. 624, at para. 54). It expresses a commitment to recognizing the essential, inalienable

equal worth of all persons through the law (Andrews, at p. 171; Eldridge, at para. 54). In Andrews, the launching pad of the Court’s Charterequality jurisprudence, McIntyre J. observed that the “worst oppression will result from discriminatory measures having the force of law”(p. 172). The equality guarantee means that discriminatory laws will have no force at all. [40] The Court asks two questions in determining whether a law infringes s. 15(1). First, does the challenged law, on its faceor in its impact, draw a distinction based on an enumerated or analogous ground?

If a law is facially neutral, it may draw a distinctionindirectly where it has an adverse impact upon members of a protected group. Second, if it does draw a distinction, does it impose “burdensor [deny] a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating . . . disadvantage”, including “historical”disadvantage? (See Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at para. 22, citingKahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20, and Quebec v. A, at paras. 323-24 and 327;see also Quebec v.

A, at para. 332, Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et desservices sociaux, 2018 SCC 17, [2018] 1 S.C.R. 464, at paras. 25-28, and Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3S.C.R. 113, at paras. 27 and 30, per Abella J.) [41] The first step — whether the law creates a distinction based on enumerated or analogous grounds — is not a preliminarymerits test or “an onerous hurdle designed to weed out claims on technical bases” (Quebec v. Alliance, at para. 26).

It is aimed at ensuringthat those who access the protection of s. 15(1) are those it is designed to protect (Alliance, at para. 26).

In cases involving laws that drawdistinctions in their impact, the disproportionate impact on a protected group is enough — the disproportionate impact need not be causedby the protected ground (Fraser, at para. 70). [42] The second step asks whether the challenged law imposes a burden or denies a benefit in a manner that is discriminatory.Importantly, it does not matter to either step of the analysis whether the challenged law created the social, political or legal disadvantage ofprotected groups (Centrale des syndicats, at para. 32, citing Vriend v.

Alberta, (SCC), [1998] 1 S.C.R. 493, at paras. 84and 97; Fraser, at para. 71). If the law reinforces, perpetuates, or exacerbates their disadvantage, it violates the equality guarantee andthereby gives discrimination the force of law. [43] The ultimate issue in s. 15(1) cases is whether the challenged law violates the animating norm of substantive equality(Quebec v. A, at para. 325, citing Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 2; Fraser, at para. 42;R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 14).

Substantive equality focuses both steps of the s. 15(1) analysis on the concrete,material impacts the challenged law has on the claimant and the protected group or groups to which they belong in the context of theiractual circumstances, including historical and present-day social, political, and legal disadvantage.

An appreciation of the role substantiveequality has played in our jurisprudence is necessary to understand why many of the arguments the Attorney General presented to thisCourt must be rejected. [44] This Court’s conception of substantive equality has developed in opposition to formal equality approaches. Formalequality is limited to equality “before the law”, and sees equality as a principle fulfilled by “treating likes alike” (Andrews, at pp. 165-68and 170; Centrale des syndicats, at para. 27). Formalist approaches to equality rights involve a “decontextualized application of objectifiedrules and

definitions” that fails to account for, among others, conditions of material inequality, the concrete impacts that laws have onindividuals and groups, and the manner in which individuals’ choices are embedded in their social and economic surroundings(S. McIntyre, “Answering the Siren Call of Abstract Formalism with the Subjects and Verbs of Domination”, in F. Faraday, M. Denike andM. K. Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality under the Charter (2nd ed. 2009), 99, at p. 105;Fraser, at para. 89; Quebec. v. A, at para. 342, citing M. Young, “Unequal to the Task: ‘Kapp’ing the Substantive Potential of

Section 15”,in S. Rodgers and S. McIntyre, eds., The Supreme Court of Canada and Social Justice: Commitment, Retrenchment or Retreat (2010), 183,at pp. 190-91 and 196). [45] In Andrews, this Court interpreted the Charter’s broadly worded equality rights guarantee as a clear repudiation of theformalism that had dominated under the Canadian Bill of Rights, S.C. 1960, c. 44, whose more limited equality guarantee was renderedineffectual by narrow

interpretation (p. 170). Recognizing that identical treatment may produce inequality and that different treatment maynot always produce inequality, the Court properly highlighted the law’s impact on individual claimants and groups as the mainconsideration (pp. 164-65). [46] Since then, the Court has remained vigilant in its jurisprudence in guarding the s. 15(1) analysis from incursions byformal equality approaches (see Centrale des syndicats, at paras. 25-26; Withler, at para. 43).

To this end, it has eschewed a formalisticanalysis based on “mirror comparator groups” because the search for the “proper” comparator group obscured the oppressive nature ofsome laws (Withler, at para. 2); it has rejected discriminatory intent as a necessary element of discrimination in favour of focusing on alaw’s concrete impacts (Eldridge, at para. 62; Andrews, at p. 173); and it has held fast to the view that the adverse effects of a faciallyneutral law can constitute discrimination contrary to s. 15(1) (Eldridge, at paras. 77-78; Andrews, at p. 173). [47] Emerging from the foundation laid in Andrews, substantive equality concerns itself with historical or current conditionsof disadvantage, products of the persistent systemic discrimination that continues to oppress groups (Fraser, at para. 42).

Substantiveequality demands an approach “that looks at the full context, including the situation of the claimant group and . . . the impact of theimpugned law” on the claimant and the groups to which they belong, recognizing that intersecting group membership tends to amplifydiscriminatory effects (Centrale des syndicats, at para. 27, quoting Withler, at para. 40)

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