Criminal Law

Legislated 'exit ramps' needed to rectify inequality: Fennel

By Paul Russell, Contributor

A recent decision by the Ontario Court of Appeal calling for the federal and Ontario sex-offender registries to provide “exit ramps” to those found to be not criminally responsible on account of a mental disorder (NCRMD) is a good first step, Toronto criminal lawyer John Fennel tells

“The court decided that people found to be not criminally responsible were being treated unequally under both Christopher's Law and the federal Sex Offender Information Registration Act (SOIRA),” says Fennel, associate with Hicks Adams LLP.

He says people who are not convicted can apply for a record suspension. Those who were found to have committed an offence, but received an absolute discharge, do not have to register at all.

“Both of those groups of people have what the court called an ‘exit ramp’ from the sex-offender registries, yet it is unavailable to people who were found NCRMD,” Fennel says.

The judgment states the court challenge was launched by a man identified as G, who was charged with sexually assaulting his wife while in a manic state. He was found not criminally responsible in June 2002, court document show, with the Ontario Review Board (ORB) granting him an absolute discharge a year later.

He has since led a "law-abiding and productive life,'' according to the decision.

Fennel says that under the terms of Christopher's Law, G was required to register as a sex offender for life.

“People in this situation can’t apply for a record suspension, even when the Ontario Review Board has decided they no longer present a significant risk to the public,” he says.

“Because they have no way to get off the sex offender registry, it means that these people are being treated unequally under the law,” Fennel explains.

In its judgment, the court agreed that this uneven approach could not be justified.

“It is not far-fetched to suggest that, in some cases, the sex offender registry legislation will erect new barriers to the NCRMD person’s continued recovery and reintegration into society ... at the very moment that the individual is declared by the ORB to be no longer subject to the criminal law power," the decision states. "This perpetuates rather than alleviates their systemic disadvantage.”

Fennel notes that both Ottawa and Ontario argued the laws were compliant with the Charter or were otherwise justified in a democratic society.

In its judgment, the appeals court summarized the position of the federal and provincial governments as: “The absence of the ‘exit ramps’ from the sex offender registries described above is necessary to recognize the distinct status of persons found NCRMD within the criminal justice system, and thereby provide them with equality under the law.”

Fennel says the two levels of government “get it exactly backward, as what we need to do is provide people who are declared NCRMD with equality through individualized assessment and treatment, which is not what these registries provide at all.”

In its decision, the court ordered information belonging to the man who brought the case to be deleted immediately from sex-offender registries, and it gave the governments 12 months to fix the offending legislation governing sex-offender registries.

“The legislature has to come up with a way to provide equal treatment for those found NCRMD, and who want off the registries,” says Fennel.

Absolute discharges will probably not happen, he says, “so they need to come up with equivalent exit ramps, like a record suspension or something like a discharge.”

Fennel says a lack of knowledge — and fear — about sex offenders underlies this case.

The court judgment backs that up, as it states that the absence of any “exit ramps” from the registries “reflects an assumption that persons who committed criminal acts with NCRMD do not change, but rather pose the same ongoing and indeterminate risk they posed at the time of the offence. This assumption feeds into the stereotypical notion that persons found NCRMD are inherently and indefinitely dangerous.”

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