Ontario (Attorney General) v. G, 2020 SCC 38– Constitutional law — Charter of Rights — Right to equality

On appeal from a judgment of the Ontario Court of Appeal (2019 ONCA 264) setting aside a decision of Lederer J. (2017 ONSC 6713).

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.

Held (7-2): The appeal should be dismissed.

Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Martin and Kasirer JJ.:

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. The remedy granted by the Court of Appeal was appropriate, and its orders should be upheld.

The first step in determining whether a law infringes s. 15(1) of the Charter asks whether the law, on its face or in its impact, creates a distinction based on enumerated or analogous grounds. In the present case, there are clear distinctions drawn based on the enumerated ground of mental disability. Offenders found guilty of sexual offences can be exempted from having to report and register in the first place by receiving a discharge in their sentencing hearing. Convicted registrants can also be removed from the sex offender registry by receiving a free pardon, and can be relieved of the obligation to continue to report upon receipt of a free pardon or record suspension. However, those found NCRMD of the same offences have no such opportunities, even if they have received an absolute discharge. NCRMD individuals are plainly subjected to different treatment.

The second step asks whether the challenged law imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including historical disadvantage. By denying those found NCRMD opportunities for exemption, removal, or relief from the sex offender registry, Christopher’s Law effectively presumes that they are inherently and permanently dangerous. It considers NCRMD individuals a perpetual threat to the public. Christopher’s Law imposes a burden on people found NCRMD in a manner that violates s. 15(1) in two respects: the law itself invokes prejudicial and stereotypical views about persons with mental illnesses; and the law puts those found NCRMD in a worse position than those found guilty. Both effects perpetuate the historical and enduring disadvantage experienced by persons with mental illnesses. The distinctions drawn by Christopher’s Law are thus discriminatory.

The burden of establishing that the infringement of s. 15(1) is justified under s. 1 of the Charter belongs to the Attorney General, on a balance of probabilities. First, there must be a pressing and substantial objective for the infringing measure. Second, the infringing measure must not disproportionately interfere with the s. 15(1) right; it must be rationally connected to the objective, the means chosen must interfere as little as possible with the s. 15(1) right, and the benefits of the infringing measure must outweigh its negative effects. In the present case, the parties agree that the purpose of Christopher’s Law is to assist in the investigation and prevention of sexual offences, that this purpose is pressing and substantial, and that the limits it places on Charter rights are rationally connected to that purpose. However, Christopher’s Law is not minimally impairing of the s. 15(1) rights of NCRMD individuals. The inclusion of any method of exempting and removing those found NCRMD from the registry based on individualized assessment would be less impairing. Thus, the Attorney General has not justified the s. 15(1) infringement.

The determination of appropriate remedies for legislation that violates the Charter must follow a principled approach. Section 52(1) of the Constitution Act, 1982, provides in absolute terms that laws inconsistent with the Constitution are of no force or effect to the extent of the inconsistency. A general declaration is the means by which courts give full effect to the broad terms of s. 52(1). A court faced with a constitutional challenge to a law must determine to what extent it is unconstitutional and declare it to be so. A measure of discretion is inevitable in determining how to respond to an inconsistency between legislation and the Constitution. While s. 52(1) recognizes the primacy of the Constitution, including the fundamental rights and freedoms of individuals and groups guaranteed by the Charter, fashioning constitutional remedies inevitably implicates other — at times competing — constitutional principles. Courts must strike an appropriate balance between these principles in determining how to give effect to s. 52(1) in a manner that best aligns with Canada’s constitutional order.

The Court’s leading decision on remedies for laws that violate the Charter, Schachter v. Canada, [1992] 2 S.C.R. 679, provides helpful guidance on how to craft a responsive and effective remedy for unconstitutional laws. Schachter set out a general approach to granting remedies. It endorsed remedies tailored to the breadth of rights violations, thereby allowing constitutionally compliant aspects of unconstitutional legislation to be preserved, and recognized that, in rare circumstances, the effect of a declaration of invalidity could be suspended for a period of time to protect the public interest. Schachter also considered how s. 52(1) remedies can be combined with individual remedies for Charter violations, including whether the claimant should receive an individual exemption from a suspension, thereby ensuring that successful claimants can enjoy the immediate benefit of a declaration of invalidity.

By employing and building on Schachter’s guidance in determining the form and breadth of declarations of invalidity, suspending the effect of those declarations, and exempting individuals from suspensions, the Court’s jurisprudence has coalesced around a group of core remedial principles that structure the exercise of principled remedial discretion and provide the groundwork for meaningful remedies in different contexts. First, safeguarding rights lies at the core of granting Charter remedies because the Charter exists to protect rights, freedoms, and inherent dignity. Second, the public has an interest in legislation that is constitutionally compliant. Third, the public is entitled to the benefit of legislation, which individuals rely upon to organize their lives and protect them from harm. Fourth, courts and legislatures play different institutional roles: the legislature is sovereign in the sense that it has exclusive authority to enact, amend, and repeal any law as it sees fit, while courts remain guardians of the Constitution and of individuals’ rights under it. These principles provide guidance to courts and encourage them to transparently explain remedial results.

As the language of s. 52(1) directs, the first step in crafting an appropriate remedy is determining the extent of the legislation’s inconsistency with the Constitution. The nature and extent of the Charter violation lays the foundation for the remedial analysis because the breadth of the remedy ultimately granted will reflect at least the extent of the breach. The second step is determining the form that a declaration should take. Remedies other than full declarations of invalidity should be granted when the nature of the violation and the intention of the legislature allows for them. However, if granted in the wrong circumstances, tailored remedies can intrude on the legislative sphere. To respect the differing roles of courts and legislatures, determining whether to strike down legislation in its entirety or to grant a tailored remedy of reading in, reading down, or severance, depends on whether the legislature’s intention was such that it would have enacted the law as modified by the court.

When an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law, the court may suspend the effect of the declaration. The power to suspend the effect of a declaration of invalidity arises from accommodation of broader constitutional considerations and is included in the power to declare legislation invalid. Suspensions of declarations of invalidity should be rare; 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 period of suspension, where warranted, should be long enough to give the legislature the amount of time 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.

When the effect of a declaration of invalidity is suspended, an individual remedy for the claimant under s. 24(1) of the Charter in the form of an individual exemption from the suspension will often be appropriate and just. A s. 24(1) remedy should meaningfully vindicate the right of the claimant, conform to the separation of powers, invoke the powers and function of a court, be fair to the party against whom the remedy is ordered, and allow s. 24(1) to evolve to meet the challenges of each case. A court’s approach to s. 24(1) remedies must stay flexible and responsive to the needs of a given case. The public is well served by encouraging litigation that furthers the public interest by uncovering unconstitutional laws, and claimants invest time and resources to pursue matters in the public interest. Thus, if an exemption is otherwise appropriate and just, claimants should be exempted from suspensions in the absence of compelling reasons not to.

In the present case, the declaration of invalidity was properly limited to those who have been found NCRMD of a sexual offence and absolutely discharged. A tailored remedy was clearly appropriate here, since granting such a remedy better protects the public’s interest in legislation enacted for its benefit, like Christopher’s Law, and better respects the role of the legislature while also safeguarding Charter rights and realizing the public’s interest in constitutionally compliant legislation.

The declaration of invalidity was also properly suspended for a 12 month period. Although the terms of s. 52(1) and the need to safeguard Charter rights and ensure constitutional compliance of all legislation weigh heavily in favour of an immediately effective declaration, those factors must be balanced against protecting the public’s interest in legislation passed for its benefit. To do so requires considering the nature and extent of both the continued rights violations and the danger to an identified public interest that could flow from an immediate declaration of invalidity.

In the instant case, public safety has been identified as the public interest that justifies a suspension. NCRMD persons are at a statistically higher risk of offending than the general population. Granting an immediate declaration would therefore endanger the public interest in safety to some extent. The registry contributes to public safety by enhancing the ability of police to prevent and investigate sexual offences. Immediately relieving people who may pose some risk of committing sexual offences from the obligation to report or permitting them to seek removal of their information could detract from this enhanced ability. The threat to public safety is therefore meaningful. However, given that persons found NCRMD who pose the highest demonstrable risk to reoffend are not given absolute discharges, this threat is limited. The other public interest at stake is respect for the legislature: granting an immediate declaration of invalidity could risk compromising the legislature’s ability to fulfil its role and restrict the effectiveness of whatever new version of Christopher’s Law is eventually enacted. Balanced against these considerations is the significance of the rights violation that the suspension would temporarily prolong: Christopher’s Law treats those found NCRMD in accordance with a persistent, demeaning stereotype without providing an opportunity to determine whether they pose sufficient risk. On balance, the combination of these two interests justifies temporarily depriving those affected of the immediate benefit of the declaration.

Finally, the exercise of the Court of Appeal’s discretion in granting G an individual exemption from the suspension deserves deference. Deciding whether to make an exemption order in respect of a person subject to the sex offender registry involves determining whether the impact of compliance on that person would be grossly disproportionate to the public interest in protecting society. G’s record since his release 17 years ago has been spotless and there is no indication that he poses a risk to public safety. An exemption ensures that G receives an effective remedy and is not denied the benefit of his success on the constitutional merits.

Per Rowe J.:

The appeal should be dismissed. There is agreement with Côté and Brown JJ. regarding s. 15(1) of the Charter, and regarding the general approach to ordering an individual exemption under s. 24(1) from the suspended effect of a declaration of invalidity under s. 52(1) of the Constitution Act, 1982. However, there is disagreement on the proper approach to suspending a declaration of invalidity under s. 52(1). The Court’s approach in Schachter should be reaffirmed.

The majority’s principled discretion approach to suspended declarations of invalidity lacks analytic structure, and its four principles are so indeterminate and truistic as to provide no meaningful guidance. This discretionary approach could lead to a continuation of current trends in which declarations of invalidity are suspended in a way that varies with the length of the Chancellor’s foot. There is no legitimate basis to read remedial discretion into s. 52(1). The absence of remedial discretion in s. 52(1) is not an oversight, and the inherent jurisdiction of a court is not a sound or sufficient legal basis to depart from the immediate effect of s. 52(1). The only basis on which a court can order a constitutionally invalid statute to be enforced notwithstanding its illegality is if an immediate declaration of invalidity would offend some other constitutional principle.

Schachter is grounded in a view that suspended declarations are exceptional and should be ordered only where: (1) an immediate declaration of invalidity would pose a potential danger to the public; (2) it would otherwise threaten the rule of law; or (3) the impugned law is underinclusive and the court cannot determine properly whether to cancel or extend its benefits. These categories exemplify circumstances in which countervailing constitutional principles constitute a valid basis to suspend an immediate declaration of invalidity. While not exhaustive, the Schachter categories should be extended only where an immediate declaration would infringe some constitutional principle.

In the case at bar, the declaration of invalidity was suspended on the basis of public safety concerns. However, as the 12 month suspension of the declaration of invalidity ordered by the Court of Appeal has expired, this issue is now moot, as is the issue of the individual exemption order for G. Consequently, there is no cause to decide whether the declaration was properly suspended, or whether the individual exemption was rightly ordered.

Per Côté and Brown JJ. (dissenting in part):

There is agreement with the majority that Christopher’s Law infringes G’s s. 15(1) Charter right to equal treatment, and that the declaration of invalidity was properly suspended for a period of 12 months. However, the suspension of the declaration of invalidity should be grounded solely on the threat to the rule of law that would otherwise manifest, in the present case, in the form of a threat to public safety. Consistent with the limited role of the judiciary vis à vis the legislature, an individual exemption from the suspended declaration of invalidity should not be granted. The appeal should therefore be allowed in part.

The section 15(1) issue is easily disposed of. Christopher’s Law draws a distinction between persons found NCRMD and persons found guilty. That distinction exacerbates pre existing disadvantage by perpetuating the stereotype that persons with mental illness are inherently dangerous. Persons found guilty of sexual offences have several exit ramps leading away from the obligation to comply with Christopher’s Law but persons found NCRMD do not, even where the Ontario Review Board determines that they no longer pose a significant threat to public safety and grants them an absolute discharge. This constitutes differential treatment on the basis of an enumerated ground: mental disability. The proper remedy is to require the legislature to provide persons found NCRMD who have been absolutely discharged with an opportunity for exemption and removal from the Christopher’s Law registry.

Suspended declarations of invalidity are only warranted when there is a threat to the rule of law, for three principal reasons. First, this was what the Court envisioned in assuming for the first time the power to issue a suspended declaration in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. The Court in Manitoba Reference tightly constrained the use of suspended declarations to situations where they are necessary to preserve the rule of law under conditions of emergency, when it is impossible to comply with constitutional rights. Since Manitoba Reference, however, the Court has lost its way and has suspended declarations of invalidity almost as a matter of course, often with no justification or attention to the rule of law.

Secondly, the Constitution contemplates immediate declarations as the norm, subject only to a rule of law concern. Once it is found that a statute is inconsistent with the Constitution, s. 52(1) limits the role of courts to declaring a law is of no force or effect. While the Constitution does not expressly permit courts to suspend a declaration of invalidity, it does provide a means for Parliament and legislatures to do so in certain cases under s. 33(1). Courts must therefore be judicious, measured and principled when exercising the judicially created power to suspend a declaration of invalidity. Rights under the Charter may be temporarily judicially displaced by the operation of a suspended declaration of invalidity only where necessary to preserve the rule of law and to ensure its continuity. In such instances, courts are not fulfilling an impermissible legislative role as they otherwise would be by granting a suspended declaration, but an assuredly judicial role.

Thirdly, lessons that follow from Schachter’s jurisprudential progeny show why it is essential to confine judicial discretion. Restraint is imperative because suspending a declaration will often pull a court beyond its institutional competence and capacity, and into the role of the legislature. As well, courts are ill equipped to determine the period of time during which a suspended declaration should govern. Further, allowing an unconstitutional law to remain in force not only withholds the immediate relief to which a successful claimant is expressly entitled under s. 52(1), but also sustains the invalidated law’s capacity to produce harm. Finally, suspended declarations can exacerbate pre existing disadvantage and discourage rights holders from bringing Charter claims forward in the first place.

If used improperly, suspended declarations can undermine the rule of law they were meant to preserve in two ways: they can lead to uncertainty in the law during the period of suspension; and they can lessen the consequences for lawmakers of enacting laws that violate the Charter, which in turn, reduces the incentives for complying with rights when making law.

In the present case, granting an immediate declaration of invalidity would threaten public safety and, therefore, the rule of law, as it would mean that the Christopher’s Law registry would not apply to all persons found NCRMD and who have been granted absolute discharges by the Ontario Review Board. While Christopher’s Law likely captures persons who do not pose a significant risk of reoffending, it also captures many who do. More importantly, it must be remembered that the recidivism risk is that of committing sexual offences, which are violent crimes that cause profound harm to the most vulnerable members of society. Given that an immediate declaration of invalidity would remove persons found NCRMD who are potentially dangerous from the registry, it would create a lacuna in the regime that would undoubtedly pose a danger to the public and thus threaten the rule of law.

If a suspended declaration of invalidity should be rare, then an individual exemption from that suspension must be exceedingly so. There is disagreement with the majority that judges are well suited to conduct an individualized assessment as to whether an exemption would endanger public safety. Rather, a helpful consideration in determining whether an individual exemption should be granted is to ask whether an exemption is necessary to prevent irreparable harm to the interests the Charter was designed to protect during the suspension. The case for irreparable harm must be so significant that it overcomes the weighty need to leave the manner of addressing a constitutional infringement to the legislature.

Although G has shown that he is entitled to the opportunity for exemption and removal from the registry, this is not one of those rare cases where an individual exemption is warranted. A delayed remedy will not deprive G of an effective one, nor preclude him from accessing the new opportunity for exemption in whatever form that may take. Further, G will, at most, have to report to the police station one more time as part of his obligation to report annually, a far cry from irreparable harm. In G’s case, as in most, crafting an individual exemption will exceed the competence of the Court and encroach on what is an issue for resolution by the legislature, which is in a far better position to determine what the appropriate mechanism is to provide persons found NCRMD with the opportunity for exemption.

Granting G an individual exemption also raises concerns of horizontal unfairness — that is, of treating G better than others who are similarly situated. In a constitutional case involving the validity of a statute of general applicability, a litigant should not be entitled to a better or more immediate constitutional remedy than all other persons similarly situated merely because they brought the case.

Reasons for judgment: Karakatsanis J. (Wagner C.J. and Abella, Moldaver, Martin and Kasirer JJ. concurring)

Conccuring Reasons: Rowe J.

Joint Reasons Dissenting in part: Côté and Brown JJ.

Neutral Citation: 2020 SCC 38

Docket Number: 38585