ONTARIO (ATTORNEY GENERAL) v. G, 2020 SCC 38

The Supreme Court has unanimously held that part of Ontario’s sex-offender list is biased against individuals with psychiatric illnesses.

G’s first and only case of mental wellbeing took place in 2001. His then-wife was convicted of two counts of sexual harassment. In 2002 he was found not to be “criminally responsible because of mental disorder,” so he didn’t know or understood it’s wrong or the two. It also meant that he had no criminal record of any sort. If anyone found not criminally guilty is a public safety threat, the Ontario Control Board decides. G was not a great risk, it said. In 2003 he was granted an “absolute release.” That indicated that the oversight board did not have to track him. He has never again been convicted of any such offence.

While he was released from the Review Board absolutely, G was placed on the Sexual Offender Register of Ontario. For this reason, he had to report every year to the police. Police could even search him randomly. His name, even though he died, could not be excluded from the registry.

Citizens like G, even though considered not criminally liable, couldn’t break out of the list. At least once a year, no matter what, they had to write to the police. This was valid, as though the discharge was absolute, as did G. That was racist, G contended. It breaks Articles 7 and 15(1), part of the Canadian Constitution, in the Canadian Charter of Rights and Freedoms. Paragraph 7 guarantees the dignity of everyone to live, equality and protection of citizens. Section 15(1) stipulates that all are entitled to fair care.

The Supreme Court judges all decided that the right to fair and non-discrimination care under Article 15 of G was violated. They all point out that many people falsely believe mentally ill people are often dangerous in nature. Most said Section 15 racist of Ontario’s Sexual Crime Offender Registry Statute. The next question is how to correct or “cure” the court would decide that a statute contradicts the Constitution. The majority held in this case, that the Court of Appeal was correct to revoke the Ontario legislation which discriminated against G. The Court of Appeal has stated that Ontario was correct to grant the question a year earlier. The majority of the courts determined whether they would allow governments the time to determine an unjust statute.

The majority also said that G should be removed from the register by the Court of Appeal. The Court of Appeal ruled that while the government had time to make the bill a law, it was correct to exclude him from publishing. This was because G protects the public by unveiling unjust rules, as those who brought good cases of Charter. It should be unusual to give governments time to lay down unjust rules. Since Carter v. Canada (Procurator General) more than five years earlier, the Supreme Court did not.