Asper Centre intervention influences SCC on suspended declarations

by Jeffrey Wang, 3L

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

Read the full post at the Asper Centre blog