Ontario (Attorney General) v. G2020 SCC 38 (38585) appeal from 2019 ONCA 264

“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.”

The SCC (7:2, with separate concurring reasons, and separate dissenting reasons in part) dismissed the appeal.

Justice Karakatsanis wrote as follows (at paras. 6, 70, 93-95, 116, 139, 157, 182-183):”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.

In sum, Christopher’s Law infringes s. 15(1)  of the Charter  by requiring those found NCRMD to comply with the sex offender registry without providing them with opportunities for exemption and removal based on individualized assessment. While the opportunities for exemption and removal that exist for those found guilty involve some kind of individualized assessment, I need not determine the nature or extent of the opportunities that must be provided for those found NCRMD. That is not a determination to be made in the abstract — subject to the requirements of the Charter , the legislature may choose from a range of policy options.

“Remedial principles”, in this sense, are more general than rules and, unlike rules, may conflict and be weighed differently (Roach (2004), at pp. 111‑13, citing R. Dworkin, Taking Rights Seriously (1977)). Articulating the core general principles that structure the exercise of principled remedial discretion will assist in promoting principled, transparent, and consistent approaches to s. 52(1) remedies.

Schachter provided remedial principles of this kind, identifying twin principles of respect for the purposes of the Charter  and respect for the legislature, and thereby guiding the discretion of Canadian courts for nearly three decades. But in the process of applying that approach, this Court has sometimes articulated additional relevant or analogous principles. As I will explain, when legislation violates the Charter , courts have been guided by the following fundamental remedial principles, grounded in the Constitution, in determining the appropriate remedy, applying them at every stage:

  • A. Charter  rights should be safeguarded through effective remedies.
  • B. The public has an interest in the constitutional compliance of legislation.
  • C. The public is entitled to the benefit of legislation.
  • D. Courts and legislatures play different institutional roles.

Safeguarding rights lies at the core of granting Charter  remedies because the Charter  exists to protect rights, freedoms, and inherent dignity; this purpose inheres in the Charter  as a whole (see Vriend, at para. 153; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, at para. 57). The Court’s purposive approach to constitutional remedies ensures that the effective vindication and protection of rights is at the core of the remedies it grants for legislation that violates the Charter  (Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, at p. 104).

In sum, consistent with the principle of constitutional supremacy embodied in s. 52(1) and the importance of safeguarding rights, courts must identify and remedy the full extent of the unconstitutionality by looking at the precise nature and scope of the Charter  violation. To ensure the public retains the benefit of legislation enacted in accordance with our democratic system, remedies of reading down, reading in, and severance, tailored to the breadth of the violation, should be employed when possible so that the constitutional aspects of legislation are preserved (Schachter, at p. 700; Vriend, at paras. 149‑50). To respect the differing roles of courts and legislatures foundational to our constitutional architecture, determining whether to strike down legislation in its entirety or to instead grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that a court can fairly conclude it would have enacted the law as modified by the court. This requires the court to determine whether the law’s overall purpose can be achieved without violating rights. If a tailored remedy can be granted without the court intruding on the role of the legislature, such a remedy will preserve a law’s constitutionally compliant effects along with the benefit that law provides to the public. The rule of law is thus served both by ensuring that legislation complies with the Constitution and by securing the public benefits of laws where possible.

In sum, the effect of a declaration should not be suspended unless the government demonstrates that an immediately effective declaration would endanger a compelling public interest that outweighs the importance of immediate constitutional compliance and an immediately effective remedy for those whose Charter  rights will be violated. The court must consider the impact of such a suspension on rights holders and the public, as well as whether an immediate declaration of invalidity would significantly impair the legislature’s democratic authority to set policy through legislation. The period of suspension, where warranted, should be long enough to give the legislature the amount of time it has demonstrated it requires to carry out its responsibility diligently and effectively, while recognizing that every additional day of rights violations will be a strong counterweight against giving the legislature more time.

Finally, running through this Court’s remedial practice for unconstitutional legislation is respect for the role of the legislature coupled with an understanding of the duties of the judicial role. When determining the form and breadth of remedies, courts will preserve as much of the law as possible to respect the legislature’s policy choices, following its discernible intention when doing so. But courts will not shrink from performing their duty to protect rights through s. 52(1) remedies, determining the full extent of inconsistencies with the Constitution and declaring legislation to be of no force or effect when necessary. Suspensions can be granted when the legislature’s democratic role as policymaker would be so seriously undermined by an immediately effective declaration that it outweighs important countervailing principles. In such circumstances, if an exemption would undermine that role, it will weigh against an individual remedy.

The Court of Appeal granted G an individual exemption from Christopher’s Law. Doherty J.A. concluded that an exemption did not undermine the suspension; it was difficult to envision a constitutionally compliant legislative scheme that would not exempt G from the registry. The exercise of the court’s discretion deserves deference. The ORB, an expert tribunal, determined that G was not at significant risk of committing a serious criminal offence 17 years ago. His record since his release has been spotless and there is no indication that he poses a risk to public safety. An exemption would ensure he receives an effective remedy —nearly six years have passed since he filed his notice of application and his case has been argued in three levels of court. He should not be denied the benefit of his success on the constitutional merits.

The individual exemption to the suspension by definition lasts only as long as the suspension by itself. Whether G will be caught by new legislation, while highly unlikely, will depend on whether he comes within its terms. Courts cannot grant an exemption to legislation that has not yet been enacted, because they cannot predict the outcome of the legislative process.”

Justices Côté and Brown (dissenting in part) wrote as follows (at paras. 218-219, 293-294):

“While we agree with our colleague Karakatsanis J.’s conclusion that Christopher’s Law infringes Mr. G’s Charter  right to equal treatment under the law, we write separately to constitutionally ground the usage of suspended declarations of invalidity in a way our colleague does not. In our view, suspended declarations of invalidity — which allow for the ongoing infringement of Charter  rights — ought to be granted as a measure of last resort, and only to protect the rule of law. Relatedly, we respectfully disagree with our colleague that this Court’s remedial jurisprudence since Schachter v. Canada, [1992] 2 S.C.R. 679, “has come to coalesce around a group of core remedial principles” (Karakatsanis J.’s reasons, at para. 82). To the contrary, our reading of this Court’s jurisprudence reveals none of the principles our colleague identifies. Instead, unmoored from the rule of law, it has produced inconsistent and unprincipled results. A return to first principles is necessary.

Our colleague would also grant Mr. G an individual exemption from the suspended declaration. With respect, doing so here would exceed the institutional competence of this Court and intrude into legislative domain.

In the end, the proliferation of individual exemptions is simply the unfortunate upshot of failing to properly confine the use of suspended declarations (see Karakatsanis J.’s reasons, at para. 146: “it is a court’s decision to grant a suspension that makes the individual remedy necessary”). We would reject our colleague’s post‑hoc solution that “[i]ndividual exemptions can temper any further disincentive caused by suspensions” (para. 148). Rather, the more appropriate response is to closely circumscribe the use of suspended declarations, as mandated by the Constitution. Once suspended declarations are properly limited to the exceptional situations where the rule of law is imperilled, the concern for providing an immediate remedy to the claimant fades.

For all these reasons, we are unable to join our colleague’s reasons, which to us represent an unbridled expansion of judicial discretion, with regard to issuing both suspended declarations and individual exemptions. We agree with our colleague that Christopher’s Law infringes Mr. G’s Charter  right to equal treatment under the law, and that the declaration of invalidity was properly suspended. However, the suspension should be constitutionally grounded in the principle of the rule of law and the threat to public safety that would manifest otherwise. Consistent with Manitoba Reference, at p. 769, we would have invited submissions from the Attorney General of Ontario as to the minimum period necessary for Christopher’s Law to be made constitutionally compliant. In the absence of that evidence, we would simply uphold the 12-month suspension of the declaration of invalidity. Consistent with the limited role of the judiciary vis‑à‑vis the legislature, we would not grant the respondent an individual exemption from that suspension. We would therefore allow the appeal in part.”