Sex Offender Registries That Discriminate Against Those With Mental…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Ontario’s highest court handed advocates a significant victory today, finding that the sex offender registration schemes in both Ontario and Canada discriminate against individuals with a mental illness.

In G. v. Ontario (Attorney General), the Ontario Court of Appeal was asked to look at the provincial and federal sex offender registries and consider whether it is appropriate that those registries include individuals found “not criminally responsible” of sexual offences as a result of a mental disorder (“NCR accused”). The evidence before the Court showed that while a person found guilty of a sexual offence has multiple “exit ramps” to avoid registration or get off the sex offender registry, it is much more difficult for an NCR accused to do so – they have far fewer “exit ramps” available to them.

The facts in the case were compelling: the appellant, G, was convicted of two sexual offences in respect of his wife at the time. The charges arose out of incidents that occurred when G was in a manic state brought on by bipolar affective disorder. Prior to the incidents, G had no history of mental illness and no criminal record, and while his wife involved the police at the time to ensure her safety, she was generally supportive of G and understood his acts were a result of his mental illness. After the Court’s finding that G was not criminally responsible, he lived in the community under terms dictated by the Ontario Review Board (ORB). He was later absolutely discharged and had been continuing to receive treatment and take medication. As the Court of Appeal noted “The appellant has not been under the authority of the ORB for 15 years. There is no suggestion that, in those 15 years, the appellant has engaged in criminal activity, much less criminal activity involving sexual misconduct. By all accounts, he lives a law-abiding and productive life.” For the appellant, his status on the sex offender registries was a source of significant stress and concern.

In 1991, Canada’s Parliament reformed our criminal law to recognize the unique needs and circumstances of people who commit criminal offences as a result of a mental disorder. The law replaced indefinite detention with treatment and established a system of provincial expert review boards to consider the appropriate disposition for an NCR accused, including whether and when they could be “absolutely discharged” and no longer under the criminal law’s jurisdiction. The approach recognizes that those who commit offences as a result of mental illness are not morally culpable and that their need for treatment must figure prominently in any decisions that affect their liberty. Several years later in 2000, Ontario’s government enacted its sex offender registration law (Christopher’s Law) and the federal government followed suit in 2004. Both of these laws require registration of individuals who have committed certain sexual offences, regardless of whether they were convicted after being found guilty, or found not criminally responsible. Significantly, those found guilty may be absolutely discharged by the sentencing judge, in which case there is no conviction and no requirement to register (the first “exit ramp”). Further, even those convicted may be able to apply for a pardon or record suspension and get off the registry earlier than would otherwise be possible (the second “exit ramp”). Neither of these avenues is open to an NCR accused. In fact, even after an NCR accused has been absolutely discharged by the Review Board, they may remain on the registry for many years, or for the rest of their lives. The Appellant, CCLA and other interveners argued in this case that this amounts to discrimination and should be struck down. Fortunately, the Court of Appeal agreed.  

The Court recognized that despite the important goals of sex offender registration legislation, there was no explanation for why those found guilty fared better than those found NCR. The key difference between the two groups was a mental illness or disability, a prohibited ground of discrimination under s. 15(1) of the Charter. As a result, the Court found that the registration schemes are unconstitutional as applied to NCR accused who have been absolutely discharged by a Review Board. However, in what has become a far too common practice, the Court suspended the declaration of invalidity for twelve months to allow the two governments to determine how to address the issue. CCLA will keep monitoring this issue.   

 

You can read ONCA’s decision here and our factum here

CCLA at the Supreme Court: A Momentous Bail Decision…

Christine Mainville, LL.B., LL.M.
Partner
Henein Hutchison LLP

 

 

In R. v. Myers, the Supreme Court was tasked with interpreting a somewhat obscure Criminal Code provision dealing with review of pre-trial detention. The case has up until now received scant attention in the press or in the legal community. And yet, in its unanimous decision siding with the CCLA’s position, the Supreme Court may well have released a new Jordan, shaking up the bail system in profound ways. And thankfully so, given the lamentable state of pre-trial custody across the country.

Myers clarifies how to properly interpret s. 525 of the Criminal Code, a provision that gives accused persons detained pending trial an automatic review of their detention after 90 days. The provision has been inconsistently applied across the country. In most provinces, the “90-day bail review” generally took the form of a perfunctory check-in with the court, or was not even held at all based on an interpretation of the provision requiring the person in custody to first show that the delay in arriving to trial was unreasonable. The Supreme Court was asked to adopt such a “two-step” approach, placing a threshold onus on the accused. It rejected it.

The CCLA argued that no preliminary threshold needed to be met before reviewing whether a person’s detention remained justified. Parliament had already set out that threshold in express terms: 90 days. We made the case that the question the court needed to answer on a s. 525 review was whether, after having detained a person who is presumed innocent in a custodial setting for three months, we were still justified in withholding their liberty? The CCLA submitted that s. 525 was part of Parliament’s solution to the problem of induced guilty pleas: the longer a person spends in custody awaiting trial, the more likely they are to plead guilty. It also afforded a mean to prevent accused persons from spending more time in pre-trial custody than they would serve their sentence in the event of a conviction. Ninety days had to be understood as the point in time chosen by Parliament for a meaningful re-assessment of whether the pre-trial detention continued to be justified.

On behalf of a unanimous court, Chief Justice Wagner endorsed all of these arguments, explicitly quoting CCLA’s submission that “today, as before, three months is a long time for a person who is presumed innocent to be held in jail awaiting trial”. Ninety-day bail reviews are therefore intended to be mandatory and automatic – and need to be brought promptly by the institution with custody of the accused. The question that the judge must answer at a s. 525 hearing is whether the continued detention of the accused in custody is justified, within the meaning of s. 515(10). In determining whether the detention remains justified, the judge should consider the time that has elapsed — or is anticipated to elapse prior to trial — and, importantly, the proportionality of the detention.

The Court also took the opportunity to comment on problems affecting the bail system generally, stating that “delays in routine bail and detention matters are a manifestation of the culture of complacency denounced by this Court in Jordan, and must be addressed.” It made clear that release “at the earliest opportunity and in the least onerous manner” is the rule – pre-trial detention being the exception. This case is an important step towards correcting a broken bail system.

CCLA at the Supreme Court: when can the police…

Teddy Weinstein
Articling Fellow
tweinstein@ccla.org

 

 

How far can police officers go when initiating a “protective” arrest? Can innocent protestors be arrested even when they’ve done nothing wrong? Can the police make an arrest to try to prevent a potential breach of the peace? These questions and more are what’s at stake in the Fleming v Ontario appeal, being heard today at the Supreme Court of Canada.

Randy Fleming was arrested on May 24, 2009 in Caledonia, Ontario by 7 Ontario Police Officers. He was alone and engaged in a peaceful political protest, when he was forced off of a public road and onto private property. His arrest was ostensibly made on the basis of a common law police power that does not appear in the Criminal Code or any other statute; to arrest a person in order to prevent an “apprehended breach of the peace.” A breach of the peace can be harm or threat of harm to a person or property. “Apprehended breach” simply means that the police officer only needs to be reasonably sure there that a breach of the peace may occur.

In this case, the police were concerned that Indigenous protesters occupying the land that Mr. Fleming walked onto might resort to violence. During this “protective” arrest, Fleming was permanently injured by the officers.

The “ancillary powers” doctrine, according to the Ontario Court of Appeal, made Mr. Fleming’s arrest legal, even though he was not currently committing or even suspected of committing a crime. Ancillary powers are new police powers that can be created by judges at common law, based on an old British case. While using ancillary powers can be justified (for example, the police investigating apparent domestic violence after a 911 call for assistance is abruptly disconnected) the use of the power should be subject to rigorous Charter analysis. Especially in cases like Mr. Fleming’s, where the power is used to suppress lawful free speech.

CCLA is troubled by granting ill-defined, common law police powers that allow the police to deprive people of their fundamental Charter rights to liberty, security of the person, and freedom from arbitrary detention. We are intervening to make sure that they are appropriately limited.

Ancillary common law powers of the police have been used to justify more than just preventative arrests. Warrantless searches, spontaneous road blocks and detention of pedestrians for the purpose of investigation, all fall within the ancillary powers doctrine. The power to arrest for apprehended breach of the peace requires special attention, as it is used against persons who have neither committed an offence nor threatened to do so. It is also resistant to review since, unlike an arrest where charges are laid, the circumstances that give rise to the detention almost never come before a court.

Mr. Fleming’s case is exceptional, then, as it provides a rare opportunity for the highest court in Canada to rule definitively on the limits of the power to arrest for apprehended breach of the peace. The immense societal cost to our freedom of expression that stems from this ill-defined, uncodified police power may finally be appropriately curtailed if the Court requires a rigorous Charter analysis.

CCLA has taken the position that the exercise of ancillary powers by police should be subject to a Charter analysis as proposed by Supreme Court Justices Binnie, LeBel and Fish in their concurring reasons in Clayton, decided in 2007. Without a more robust test in place, the ancillary powers have been used to justify a number of incidents of police misconduct, including during the G20.

CCLA will also ask the court to clarify that when an arrest for apprehended breach of the peace is made, the arrestee should be released immediately, as soon as the risk of the breach of the peace has passed. Prolonged detention simply cannot be justified in these circumstances.

CCLA’s intervention in Fleming is part of our ongoing work to fight for your rights to be free from overbearing police powers, and to protect the rights to free expression and peaceful assembly. We thank our counsel Sean Dewart, Adrienne Lei and Mathieu Belanger for representing us pro bono, and look forward to seeing how the Court addresses the important issues this case raises.

The Good, the Bad and the Ugly of the…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

 

It was a bad day for equality but a good day for teachers, when Ontario’s Divisional Court dismissed the application brought by CCLA and Becky McFarlane challenging the government’s decision to repeal the 2015 sex education curriculum and replace it with content from 1998. We intend to continue the fight and will be seeking to appeal the decision.

The good news is that the Court provided clear and unequivocal confirmation that teachers can teach about topics contained in the 2015 curriculum that are absent from the interim version that is currently in place. The missing content relates primarily to issues around consent, sexual orientation, family status and gender identity. Despite the government’s tough talk when the interim curriculum was first released – and their decision to institute a snitch line and encourage parents to report on teachers where they had “concerns” – the position of the government in Court was much different. As the judgment makes clear, the Minister’s lawyer confirmed that “as long as a teacher meets the learning objectives set out for that grade in the 2010 Curriculum, a teacher may address topics that go beyond those expressly set out in the 2010 Curriculum to meet the needs of a given class or student. Those topics include the topics in the 2015 Curriculum that are not found in the 2010 Curriculum.”

This was a significant concession for the government to make, and it certainly upset some of those who were so opposed to the 2015 content and supportive of the government’s decision to send the province’s kids back to the 1990s. Indeed, the President of the Elementary Teachers’ Federation of Ontario (ETFO) said that the concession made the case “a victory for ETFO and others”. ETFO had also challenged the government’s decision, albeit on grounds different from the CCLA.

The bad news? For students and parents, today’s decision is so disappointing.  It means that a transgender student may sit in a classroom and hear nothing of themselves reflected in the lesson. It means that a student with a queer mom, like Becky’s daughter, may hear nothing about queer families. What teachers may do is different from what they must do, and that is the importance of a provincial curriculum document. It sets the baseline, and CCLA’s argument has always been that, regardless of what happens in classrooms, the provincial government’s decision to remove content from the curriculum sends a message loud and clear. The message is one of exclusion and inequality. The ugliness of today’s decision is that it does nothing to disabuse Ontarians of that message. We will have to hope that the Court of Appeal will take up the call.

No remedy and no right – SCC strikes a…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

The Supreme Court’s decision today in R. v. Bird is a disappointing – even devastating loss – for Canadians who care about freedom and justice and who believe that a right without a remedy, is no right at all. The decision demonstrates a Court that is out of touch with the realities faced by individuals who are incarcerated or who are beginning the hard work of reintegrating into society after serving a jail sentence.

As recently reported on our blog, R. v. Bird considers whether a man can be imprisoned for failing to follow an apparently unconstitutional order and, in particular, whether he can be precluded from even challenging the order because he failed to do so at the time it was imposed. Mr. Bird was released from prison after serving his sentence, pursuant to a long-term supervision order (LTSO). One of the conditions was that he reside at a “community correctional centre”. In essence, Mr. Bird was released from jail – to another jail. He breached the condition that he reside in the community correctional centre (he left) and sought to challenge it when he was charged with the breach.

The majority of the Court held today that Mr. Bird is barred from challenging the order during the trial for its breach because, in effect, he failed to challenge it “the right way” when it was initially imposed.

The majority decision favours form over substance and ignores the enormous hurdles that exist for offenders who wish to challenge aspects of their LTSOs, and other orders imposed by the Parole Board and Correctional Services. The majority’s big concern is that individuals will “breach first, challenge later”, so they try to point out the ways in which Mr. Bird could have challenged the residency condition earlier. The majority suggests that Mr. Bird could have written to the Parole Board asking them to vary the condition – even though it is the Parole Board itself that imposed the condition. It also states that he could have challenged the decision by seeking judicial review at the Federal Court, but recognizes that this may not have provided an effective remedy (given how long it can take to get matters heard before the Court, the conditions he challenged might have been met and expired by the time it was heard). Finally, the Court says that Mr. Bird could have brought an application for habeas corpus in a provincial superior court, and seems to suggest this is a simple and quick remedy that a self-represented individual can easily manage. In each instance, the Court seems to drastically underestimate the difficulties associated with initiating these procedures, particularly if you are being held in custody with significant restrictions on your liberty.

The concurring judges disagreed, finding that Mr. Bird should not be barred from raising constitutional arguments simply because he didn’t challenge the residency condition through “one of the three imperfect avenues” on which the majority relies. The concurring judges are particularly concerned because breaching a condition of an LTSO could result in up to ten years in prison. However, while the concurring judges would have allowed Mr. Bird to challenge the residency requirement, it would also have held that the condition did not violate his s. 7 Charter right to life, liberty, and security of the person. This pyrrhic victory for Mr. Bird is a second devastating blow since he and other offenders are told that when your jail sentence is over, you may still have to stay in jail. Anyway you slice it, Mr. Bird gets the very short end of the stick – and possibly a long jail sentence.

It is important that courts guard against being used in an abusive way – and the “breach first, challenge later” concern is a genuine one. But in this case, with respect, the majority of the Court stuck its collective head in the sand, and ignored the challenges faced by those who are incarcerated or just beginning to reintegrate into their communities. Rather than facilitating reintegration, the decision sets released offenders further back, and we are all worse off as a result.

 

You can read the judgement here and our factum here