Criminal Law

SCC to rule if sex offender registry unfair to mentally ill

By Tony Poland, AdvocateDaily.com Associate Editor

Sex offenders who have been found not criminally responsible on account of a mental disorder (NCRMD), and received an absolute discharge from the Ontario Review Board (ORB), may soon be permitted to have themselves removed from sex offender registries, says Toronto criminal lawyer John Fennel.

Fennel, an associate with Hicks Adams LLP, says the issue is expected to be heard by the Supreme Court of Canada (SCC) in the spring.

In a decision released in April, the Ontario Court of Appeal (OCA) called for the federal and Ontario sex-offender registries to provide “exit ramps” for those found NCRMD, he says. The high court has announced it will hear an appeal of that ruling.

“I suspect that what’s going to happen is that the Supreme Court is going to uphold the decision in this case and in a pretty summary manner,” Fennel tells AdvocateDaily.com. “I’ll be very surprised if the Court of Appeal ruling is not upheld.”

The OCA challenge was launched by a man charged with sexually assaulting his wife while in a manic state brought on by bipolar affective disorder.

He was found not criminally responsible in June 2002, and the ORB granted him an absolute discharge a year later, according to court documents, noting the man has since led a “law-abiding and productive life.”

The court also heard from the man’s psychiatrist, who “described the negative impact the requirements under the sex offender registries had on the appellant’s mental health.”

In its ruling, the appeal court gave the Ontario and federal governments 12 months to make changes to the legislation governing sex-offender registries.

Fennel, who is not involved in the case and comments generally, says as the law stands now, people found not criminally responsible are being treated unfairly under Christopher’s Law and the federal Sex Offender Information Registration Act (SOIRA).

“It’s an oversight in the drafting of the legislation,” he says.

Fennel explains that those 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.

However, under Christopher’s Law, the man at the centre of the OCA case was required to register as a sex offender for life without the ability to apply for a record suspension, even after the ORB granted him an absolute discharge.

“The Court of Appeal told the legislature it has to address this,” Fennel says. “That’s the situation that the legislature is in. They need to fix it, or the Supreme Court will fix it for them.

“People in this situation who have been absolutely discharged from the ORB should be able to apply to get their names off the registry because anyone who receives a conditional discharge for a criminal sentence after a finding of guilty does not have to register at all. That's what the Court of Appeal saw unequal treatment under the law."

He says confirmation of the OCA decision by the SCC will right an injustice in the system.

“It will mean that people who have been found not criminally responsible and have gone through the Ontario Review Board and have been discharged will be able to get their names removed from SOIRA,” Fennel says. “Because they are no longer deemed to be a significant threat, we can stop wasting resources tracking them and can focus our resources on the people we should be tracking.”

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