COURT OF APPEAL FOR ONTARIO

CITATION: G. v. Ontario (Attorney General), 2019 ONCA 264

DATE: 20190404

DOCKET: C64762

Doherty, van Rensburg and Hourigan JJ.A.

BETWEEN

G.

Applicant (Appellant)

and

Attorney General for Ontario and Attorney General
    for Canada

Respondents (Respondents)

Marshall A. Swadron, Sarah M. Latimer and Joanna Weiss,
    for the appellant

S. Zachary Green, for the respondent, Attorney General
    for Ontario

Roy Lee and Andrew Law, for the respondent, Attorney
    General for Canada

Cara Zwibel and Rob De Luca, for the intervener,
    Canadian Civil Liberties Association

Anita Szigeti and Andrew Menchynski, for the intervener,
    Empowerment Council

Erin Dann, for the intervener, Criminal Lawyers
    Association

Heard: October 30, 2018

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated November 22, 2017, with reasons reported
    at 2017 ONSC 6713.

Doherty J.A.:

I.

OVERVIEW

[1]

The appellant was found not criminally responsible on an account of
    mental disorder (NCRMD) on two charges of sexual assault and two related charges
    in June 2002. He was absolutely discharged by the Ontario Review Board (the ORB)
    in August 2003.

[2]

The finding that the appellant was NCRMD in respect of sexual offences made
    him subject to the provincial sex offender registry, which was established in
    2001 pursuant to
Christophers Law (Sex Offender Registry)
,
2000
,
    S.O. 2000, c. 1. When the federal sex offender registry legislation came into
    force in December 2004, the appellant also became subject to the provisions in
    that Act:
Sex Offender Information Registration Act
, S.C. 2004, c. 10 (
SOIRA

). The appellant is required, under both
    registries, to personally register with the police and provide the information required
    by the applicable statues and regulations. The appellant must give the police a
    current photograph and report annually. He must advise the police of any change
    in the data he has provided, including any change of address. Failure to comply
    with any of the requirements is an offence potentially punishable by
    imprisonment.

[3]

Because the appellant was found NCRMD in respect of two sexual assaults,
    he remains subject to the sex offender registry provisions in
Christophers
    Law
for the rest of his life. Similar provisions in
SOIRA
also
    impose a lifetime order. However,
SOIRA
contains provisions allowing
    the appellant to apply to a court for a termination of the
SOIRA
order.
    The appellant can apply for a termination order in 2022, 20 years after he was
    found NCRMD.

[4]

This court has upheld the constitutionality of both the provincial and federal
    sex offender registries as applied to persons convicted of sexual offences: see
R. v. Dyck
, 2008 ONCA 309, 90 O.R. (3d) 409;
R. v. Long
, 2018
    ONCA 282, 45 C.R. (7th) 98. The appellant does not challenge the constitutionality
    of the registries as applied to all persons found NCRMD. He does, however,
    challenge those provisions as they apply to persons found NCRMD who have
    received an absolute discharge from the ORB.
[1]

[5]

The appellant, supported by the interveners, submits that various
    aspects of both legislative schemes violate the appellants rights under ss. 7
    and 15 of the
Canadian
Charter of Rights and Freedoms
.
[2]
The appellant further submits that the infringements of those constitutional rights
    cannot be justified under s. 1 of the
Charter
.

[6]

Both the Federal and Provincial Attorneys General argue that the
    registries are
Charter-
compliant. They further contend that if there
    is a breach of s. 7 or s. 15, those breaches can be justified under s. 1.

[7]

The appellants arguments failed before the application judge. Like the
    application judge, I would reject the appellants s. 7 arguments. However, I
    would hold that aspects of the legislation do violate the appellants rights
    under s. 15 of the
Charter
,
and that those violations cannot be justified under s. 1. I would declare the
    provisions of no force or effect as applied to persons found NCRMD who have
    received an absolute discharge. I would suspend that declaration of invalidity
    for 12 months. I would further hold that the suspension of invalidity should
    not apply to the appellant. His name should be removed from the registries and
    he should not be subject to those registries in the future.

II.

FACTS

[8]

The appellant was born in 1961. He was a successful student, had a good
    job, and a loving family. Prior to September 2001, he had no history of major mental
    illness and no criminal record.

[9]

In early September 2001, the appellant experienced his first manic
    episode. A month later, in October 2001, the police charged him with two counts
    of sexually assaulting his then-wife, one count of unlawfully confining her,
    and one count of harassment. The charges arose out of two incidents that
    occurred in the family home in late September 2001.

[10]

The two
    incidents occurred while the appellant was in a manic state brought on by bipolar
    affective disorder. He was also drinking heavily during that period of time. In
    the course of the incidents, the appellant confined his then-wife in their home,
    and on one occasion he had sexual intercourse with her, without her consent.

[11]

Fortunately,
    the appellants former wife was not injured in either incident. A few weeks
    later, the appellants wife called the police to help her to keep the appellant
    out of the family home. The appellant was charged as a result of the police
    involvement. Although the marriage ended, the appellants former wife remains supportive.

[12]

In
    June 2002, the appellant was found NCRMD on all charges. The appellant first appeared
    before the ORB in July 2002 and received a conditional discharge. He lived in
    the community under the terms of that conditional discharge until August 2003, when
    the Board ordered that the appellant be absolutely discharged. 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.

[13]

The
    application judge quoted from the ORBs disposition granting the appellant an
    absolute discharge: para. 17. The ORBs comments bear repeating:

The Board finds unanimously that the accused is not a
    significant threat to the safety of the public. Although he suffers from a
    bipolar affective disorder which led to the criminal behaviour evident in the
    index offences, that mental state is well treated at this time. In the past
    year Mr. G has engaged in no inappropriate behaviour despite minor fluctuation
    in mood. He has good insight into his illness and the value of medication. He
    has remained compliant with treatment recommendations both in the area of
    pharmacotherapy and psychotherapy and based on the evidence is likely to
    continue to remain compliant with treatment in the future.

There is simply no evidence to find that the accused is a
    significant risk to the safety of the public and therefore the Board grants an
    absolute discharge.

[14]

The
    Boards prediction that it was likely that the appellant would remain compliant
    with his treatment regime in the future has been borne out in the 15 years
    since he was absolutely discharged.

III.

The Legislative Schemes

[15]

The
    Ontario sex offender registry came into effect in 2001 with the enactment of
Christophers
    Law
. The federal scheme followed in 2004 with the enactment of
SOIRA
and amendments to the
Criminal Code
. The two schemes are similar, and in
    practice operate together to a large extent. For example, in Ontario, persons
    can usually fulfill their reporting obligations under both Acts by a single
    attendance at the appropriate police station.

[16]

Both
    schemes provide for court orders requiring persons convicted of, or found NCRMD
    in respect of designated sexual offences to report to the police and provide
    the information required under the two schemes. The reporting requirements for
    persons found NCRMD are triggered when the ORB grants a conditional or absolute
    discharge.

[17]

Persons
    must report annually, and when they change their residence or name.
SOIRA
also requires persons who are subject to a
SOIRA
order to notify the
    police, although not in person, of any plans to be out of the country for more
    than seven days. Those persons must provide the police with a list of the
    places they intend to stay while out of Canada.

[18]

Persons
    required to register under both schemes must provide their name, address, date
    of birth, places and addresses of employment, telephone numbers, vehicle
    descriptions and license numbers, and the names and addresses of any
    educational institutions they attend or volunteer organizations with which they
    are associated. The police must be notified of any changes in that information.

[19]

The
    information provided under the order is entered in the sex offender registries,
    along with additional information providing particulars of the relevant
    offences. Information in the registries is carefully segregated from other
    police-gathered information. Access is limited. It is an offence to unlawfully
    disclose any of the information contained in the registries:
SOIRA
,
ss. 16, 17;
Christophers Law
,
    ss. 10, 11(2).

[20]

Persons
    who are subject to an order made under
SOIRA
or
Christophers Law
must comply with the order for a specified period of time, which varies depending
    on the nature and number of offences. For individuals like the appellant, who
    are convicted or found NCRMD in respect of more than one sexual offence, the
    orders made under
Christophers Law
and
SOIRA
apply for life.

[21]

Persons
    who are found guilty of sexual offences but receive a conditional or absolute
    discharge under s. 730 of the
Criminal Code
at the time of sentencing
    are deemed by s. 730(3) not to have been convicted of the offence. Those
    persons are not required to register under either the provincial or federal
    schemes. Individuals found NCRMD are not found guilty, and are therefore not
    eligible for a discharge under s. 730 of the
Criminal Code
.

[22]

As
    originally enacted
,
SOIRA
provided that persons who were required to register could apply to a judge for
    an exemption from the registration requirement: see
Criminal Code
,
s. 490.012(4) as it appeared prior to April
    15, 2011. To obtain the exemption the offender had to satisfy the court that
    the impact on her privacy or liberty would be grossly disproportionate to the
    public interest in requiring registration: see
R. v. Redhead
, 2006 ABCA 84, 384 A.R. 206
, leave to
    appeal refd, [2006] S.C.C.A. No. 187. In 2011, the
Criminal Code
was
    amended to remove the exemption provision from s. 490.012:
An Act to Amend
    the Criminal Code and other Acts
, S.C. 2010, c. 17, s. 5;
Long
, at
    paras. 90-93.

[23]

The
    exemption from registration remains a possibility only in limited situations.
    Only one need be addressed here, since only one could potentially have applied
    on the facts of this case.
[3]
If the obligation to register under
SOIRA
arises by virtue of a
    conviction or NCRMD finding that predates the coming into force of the
    legislation on December 15, 2004, a person who is required to register may
    apply for an exemption pursuant to s. 490.023(2), which provides:

The court shall make an exemption order if it is satisfied that
    the person has established that the impact of the obligation on them, including
    on their privacy or liberty, would be grossly disproportionate to the public
    interest in protecting society through the effective prevention or
    investigation of crimes of a sexual nature, to be achieved by the registration
    of information relating to sex offenders under the
Sex Offender Information
    Registration Act
.

[24]

Section
    490.023(2) applied to the appellant, since his NCRMD finding predated the
    coming into force of
SOIRA
. He was entitled to apply for an exemption from
    registration in the 12-month period after he received notice of the requirement
    to register in January 2005. He did not apply for an exemption.
[4]

[25]

If
    an exemption is granted under s. 490.023(2), the police are obligated to remove
    all information pertaining to that person from the registry:
Criminal Code
s. 490.023(4);
SOIRA
, s. 15(3)(c).

[26]

There
    is no exemption provision in
Christophers Law
.

[27]

SOIRA
also provides that persons who are required to register may apply for a
    termination order:
Criminal Code
, s. 490.026. Someone who is subject
    to a lifetime order, like the appellant, may apply for a termination order 20
    years after he was found NCRMD: s. 490.026(3). If the application is
    unsuccessful, the person may bring a further termination application five years
    after the refusal of the initial application:
Criminal Code
, s.
    490.026(5). A person may also apply for a termination order under
SOIRA
if he has received a record suspension or pardon:
Criminal Code
, s.
    490.026(4). If a termination order is made, the offenders information is
    removed from the registry.

[28]

An
    application for a termination order is made to a judge. The judge applies the
    same test that is applied on an application for an exemption order: see
Criminal
    Code
, s. 490.027(1).

[29]

Christophers
    Law
does not contain provisions allowing registered persons to apply for a
    termination order. Section 9.1 of the Act does, however, provide for automatic
    deletion from the provincial registry if the offender receives a pardon or
    record suspension in respect of all sexual offences that led to his placement
    on the registry.

[30]

Persons
    found NCRMD are not convicted of any crime. Consequently, provisions in
Christophers
    Law
or
SOIRA
that depend on the offender having been granted a
    pardon or record suspension have no application to persons found NCRMD.

IV.

The Evidence on the Application and the Judges Factual Findings

[31]

The applicants
    evidence focused on his mental health problems in 2001, his recovery and
    stabilization after the events of late September 2001, and the many emotional
    and other problems he claims have flowed from his placement on the sex offender
    registries and the ongoing reporting requirements imposed on him by
Christophers
    Law
and
SOIRA
.

[32]

The
    application judge rejected some of the appellants evidence connecting certain
    events to his inclusion on the sex offender registries. For example, the
    application judge did not accept that the appellants firing in early 2012 had
    any connection to his name being on the sex offender registries, or that his
    employer was even aware that the appellant was on the registries. The application
    judge also found no evidence to support the appellants belief that Canadian authorities
    had revealed his status as a registered sex offender to the American
    authorities, who in turn had denied the appellant access to the United States
    in September 2011: see paras. 59-62.

[33]

The
    application judge concluded that in some instances the appellant did not
    distinguish between problems arising from his placement on the sex offender
    registries and the reporting conditions imposed on him as a result, and problems
    arising from the fact that he had been found NCRMD in respect of sexual
    offences. The application judge correctly observed that the nature of the charges
    against the appellant, the circumstances that led to those charges, his NCRMD
    finding, and the ORBs decisions were all matters of public record. Disclosure
    of those details and any problems that might flow from that disclosure had
    nothing to do with the appellant being subject to the requirements of the sex
    offender registries: paras. 51-52.

[34]

The
    appellants long-time treating psychiatrist, Dr. Leslie Kiraly, also gave
    evidence for the appellant. He outlined his clinical history with the appellant
    and described the negative impact the requirements under the sex offender
    registries had on the appellants mental health.

[35]

The
    application judge was not impressed with some of Dr. Kiralys evidence. He said,
    at para. 64:

Dr. Leslie Kiraly is the treating psychiatrist of the applicant
    and provided an affidavit. Reports he has prepared are attached as exhibits. I
    have relied on that evidence for Dr. Leslie Kiralys observations of what
    transpired. I am not prepared to give any weight to his observations as to the
    impact registration has had on the applicant.

[36]

The
    application judge viewed Dr. Kiraly as an advocate for the appellant who
    tailored his answers to assist his patient. The application judge gave examples
    from Dr. Kiralys evidence demonstrating that Dr. Kiraly had provided
    misleading information about relevant events, or had changed his description of
    the appellants mental condition depending on the audience for whom Dr. Kiralys
    report was intended. The application judge was not prepared to rely on Dr.
    Kiralys evidence about the negative impact the registration requirements under
    the Acts had on the appellant: paras. 64-67.

[37]

Dr. Johann
    Brink, the head of forensic psychiatry at the University of British Columbia, also
    gave evidence for the appellant. He had not treated or examined the appellant,
    but was an acknowledged expert in the assessment, treatment, and reintegration of
    persons found NCRMD. Dr. Brinks evidence focused on what he saw to be the many
    burdens placed on persons found NCRMD by the reporting and registration requirements
    in
Christophers Law
and
SOIRA
. Dr. Brink opined that those
    requirements posed a significant impediment to the rehabilitation and
    reintegration into the community of persons like the appellant. Dr. Brink
    stressed the risk of improper disclosures and the ongoing stigmatization associated
    with the reporting requirements under both statutes. Dr. Brink also critiqued
    various aspects of the actuarial evidence advanced by the Attorneys General to
    show the risk of reoffending posed by persons who were found NCRMD in respect
    of sexual offences.

[38]

The
    application judge rejected much of Dr. Brinks evidence about the operation of
    the sex offences registries because Dr. Brinks evidence showed that he did not
    understand how the registries actually operated. For instance, Dr. Brink was
    apparently unaware of the measures in place to closely limit access to information
    contained in the registries, even by police officers: paras. 68-72, 74-76, 78.

[39]

The
    evidence offered by the Attorneys General on the application described the
    operation of the registries and the measures in place to limit access to the information
    in those registries. The evidence also provided anecdotal information about
    situations in which the registries had proved useful in effectively investigating
    sexual offences and apprehending offenders.

[40]

The
    application judge accepted that the registries provided a useful tool to the
    police. He said, at para. 179:

Making timely and up-to-date information about the identity and
    whereabouts of individuals who, by their prior actions, are at a higher risk of
    repeating such actions available to the police improves the ability of law
    enforcement to react, investigate and prevent such actions and crimes. By
    expediting these investigations, the registries allow police to more quickly
    eliminate those that might otherwise be treated as potential suspects.

[41]

The
    risk of recidivism posed by persons who have committed sexual crimes figured
    prominently in the evidence. The Attorneys General relied on the evidence of
    Dr. Karl Hanson, a research manager with Public Safety Canada. He is a leading
    expert on the use of statistical methods to assess the recidivism risks among sexual
    offenders.

[42]

The
    application judge accepted much of Dr. Hansons evidence.
[5]
The application judge drew the following conclusions from Dr. Hansons evidence,
    at paras. 97-98:

·

Convicted sexual offenders have sexual recidivism rates of 10% to
    15% after five years, and 15% to 20% after ten years.

·

In comparison to non-sexual recidivism, sexual recidivism occurs
    over a longer period of time. Recidivism for sexual offences is relatively
    constant over the first five years, and occurs well beyond the first five
    years.

·

Sexual offenders can be particularly difficult to identify.

[43]

The
    application judge concluded that, based on Dr. Hansons evidence:

[W]hile it is possible to project the risk of recidivism by
    relying on actuarial data, there is a measure of uncertainty in the result.
    What is clear is that there is a risk and it is significant. It is the precise
    degree of the risk that is uncertain: para. 99.

[44]

The
    applicability of the actuarial analyses put forward by Dr. Hanson to persons
    found NCRMD in respect of sexual offences was a matter of considerable
    controversy before the application judge. Dr. Brink concluded that recidivism
    rates of persons found NCRMD was lower than the rates applicable to convicted offenders,
    especially persons with mental disorders who had been convicted of sexual
    offences.

[45]

Dr.
    Hanson, however, stressed that the comparison for recidivism purposes should
    not be between persons found NCRMD and persons convicted, but rather between
    persons found NCRMD and persons who had no prior convictions: para. 111. Dr.
    Hanson indicated that when the proper comparison was made, recidivism rates for
    those found NCRMD was considerably higher than the rates for persons who had no
    criminal history. According to Dr. Hanson, the data also showed that the risk
    of recidivism was not extinguished when the ORB granted an absolute discharge.
    Indeed, one study showed that the risk of reoffending increased when
    individuals found NCRMD were no longer under Review Board supervision: paras.
    100-105.

[46]

Ultimately
    the application judge accepted Dr. Hansons conclusion:

There is strong evidence that a history of sexual offending
    increases the likelihood that an individual will commit another sexual offence
    in the future. From the perspective of risk assessment, it makes little
    difference whether the sexual offence results in a criminal conviction or a
    NCR. Individuals found NCR have criminal recidivism rates that are
    substantially higher than the rates of spontaneous first-time offending among
    individuals with no prior criminal history. The well-established recidivism
    risk factors for general offenders also apply to individuals found NCR: para.
    112.

[47]

The
    application judge observed that Dr. Brinks risk assessment turned on his view
    of the adequacy of the protections against reoffending provided by the ORB. The
    application judge described this as a social determination and not a
    scientific finding: para. 111.

V.

The Grounds of Appeal

A.

The alleged palpable and overriding factual errors

(i)

Dr. Kiralys Evidence

[48]

The
    appellant submits that the application judge improperly used Dr. Kiralys frank
    acknowledgement that he saw himself as an advocate for the appellant, his
    patient, to discount virtually all of Dr. Kiralys evidence. The appellant
    submits that Dr. Kiraly was a participant expert, and that the significance
    of his evidence rested in part on his long-time therapeutic connection with the
    appellant.

[49]

The
    application judge rejected much of Dr. Kiralys evidence about the effects of
    the registries on the appellants mental health because the cross-examination
    of Dr. Kiraly showed that he was willing to alter his descriptions and his
    opinions about the appellants mental condition to suit what he saw as the
    appellants best interests. My reading of the portions of Dr. Kiralys evidence
    referred to by the application judge supports the application judges
    assessment. I see no misapprehension of Dr. Kiralys evidence, and I cannot say
    that the application judges assessment was unreasonable.

(ii)

Dr. Brinks Evidence

[50]

The
    appellant submits that the application judge wrongly rejected Dr. Brinks
    evidence because it did not address the utility of the sex offender registries
    as an investigative tool. The appellant argues that Dr. Brink was offered as an
    expert on the impact of the registries on the rehabilitation and reintegration
    into society of persons who had been found NCRMD and received a discharge. The appellant
    argues that Dr. Brink properly limited his opinion to topics on which he had
    the requisite expertise, and that the application judge erred in discounting that
    evidence because Dr. Brink did not go on and offer opinions on matters on which
    he had no expertise.

[51]

The
    application judge identified three reasons for rejecting parts of Dr. Brinks
    evidence. First, he found that his opinions about the negative impact of
    registries reflected a misunderstanding of the manner in which the registries
    operated and, in particular, the restrictions placed on access to the
    registries. The application judge reviewed the hypothetical offered by Dr.
    Brink and explained that it was premised on fundamental misunderstandings about
    access to the information in the registries.

[52]

Second,
    the application judge concluded that Dr. Brinks evidence about the negative
    impact of the registries on persons found NCRMD who had received an absolute
    discharge failed to distinguish between the impact flowing from the
    requirements of the sex offender registries and the impact attributable to the
    events giving rise to the charges and the NCRMD finding. The charges against
    the appellant, the circumstances of those charges, and the appellants NCRMD
    finding are all matters of public record. Any psychological stress and stigma
    flowing from the charges and the NCRMD finding could not be attributed to the
    requirements of
Christophers Law
or
SOIRA
: see
Long
,
at para. 147.

[53]

Third,
    the application judge rejected the part of Dr. Brinks evidence in which he
    compared recidivism rates among persons found NCRMD and granted an absolute
    discharge and other persons convicted of sexual assaults. The application judge
    accepted Dr. Hansons evidence that the proper comparison should be between
    persons who had committed sexual offences and were found NCRMD and persons who
    had no prior criminal record.

[54]

The
    application judges analysis of Dr. Brinks evidence and his reasons for
    rejecting parts of that evidence stay well within the bounds of the evidentiary
    record. His reasons are supported in the record, and reflect a reasonable
    assessment of, and preference for, the evidence of Dr. Hanson as it related to
    the actuarial aspects of the evidence. I would not interfere with that
    assessment.

(iii)

The Appellants Evidence

[55]

The
    appellant argues that the application judge was dismissive of his evidence
    about the impacts of the registries on him, and failed to appreciate that the
    appellants evidence had to be understood in light of his history of serious
    mental illness.

[56]

This
    submission does a disservice to the careful reasons of the application judge.
    He did not disregard or dismiss the appellants evidence about his beliefs and
    fears concerning the negative impact of the sex offender registries on him. It
    was, however, necessary for the application judge to draw distinctions in his
    fact-finding between what the appellant believed, and what had actually
    happened. The appellant maintained that the requirements imposed on him by the
    sex offender registries interfered in many ways with his day-to-day life. He
    cited limits on his ability to work and on his ability to travel. It was necessary
    for the application judge to determine whether any of those limitations
    actually existed. He concluded that many did not.

[57]

For
    example, the application judge was satisfied on the totality of the evidence
    that, whatever the appellant might believe, there was no connection between the
    appellants firing from his job and his status as registered sex offender. Similarly,
    the application judge found no basis for the appellants belief that the
    American authorities had refused to allow him to enter the country on one
    occasion because the Canadian authorities had advised them of the appellants
    status as a registered sex offender. The application judges findings were
    fully supported by the evidence, including the cross-examination of the
    appellant.

[58]

The application
    judge also addressed the appellants evidence about his beliefs and fears in
    the context of considering the impact, if any, of the registration requirements
    on the appellants psychological well-being. Psychological integrity is a facet
    of the right to security of the person under s. 7 of the
Charter
.

[59]

The
    application judge did not find that the appellant did not have certain beliefs
    about the negative effects of the registries, or the dangers posed by the
    registration requirements. It was, however, necessary for the application judge,
    in the context of the s. 7 claim, to determine whether there was any objective
    basis for those concerns and beliefs. For example, the appellant feared that
    the registries could be hacked or access gained through some other improper
    means. However, he offered no evidence of how that could happen. Similarly, he
    offered nothing to support his belief that he might be improperly arrested simply
    because he was on the registries. In any event, police misuse of the registries
    cannot render the legislation creating the registries unconstitutional:
R.
    v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 83.

[60]

The
    application judge was obliged to consider the basis for the appellants beliefs
    and fears. As stated in
New Brunswick (Minister of Health and Community
    Services) v. G.(J.)
, [1999] 3 S.C.R. 46, at para. 60:

For a restriction of security of the person to be made out,
    then, the impugned state action must have a serious and profound effect on a
    persons psychological integrity.
The effects of the
    state interference must be assessed objectively, with a view to their impact on
    the psychological integrity of a person of reasonable sensibility.
This need not rise to the
    level of nervous shock or psychiatric illness, but must be greater than
    ordinary stress
or anxiety. [Emphasis added.]

[61]

The application judge was required to objectively consider
    the impact of the registries on the appellants physiological integrity, and to
    treat the appellant as a person of reasonable sensibility. The application
    judge appreciated the relevance of the appellants evidence about his beliefs
    and fears, and correctly evaluated that evidence according to the
ratio
in
G.(J.)
: see also
Blencoe
    v. British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 81; Hamish Stewart,
Fundamental
    Justice: Section 7 of the Canadian Charter of Rights and Freedoms
, (Toronto: Irwin Law Inc., 2012) at pp. 88-90.

[62]

I must also reject the appellants submission that
    the application judge erred
by taking into account the abundant
    evidence demonstrating the appellants rehabilitation and reintegration into
    the community in the years following his absolute discharge and placement on
    the registries. That evidence was relevant to the assessment of the appellants
    claim that his status as a registered sex offender had profoundly impeded his
    ability to deal effectively with his mental disorder and fully reintegrate into
    the community.

[63]

Lastly,
    the application judge found certain parts of the appellants evidence unhelpful
    in his s. 7 analysis because, like some of Dr. Brinks evidence, the appellant
    described negative effects caused by events and circumstances other than those
    arising out of the requirements imposed by the sex offender registries. For
    example, the appellant referred to the stresses associated with his fear that
    others would learn of the nature of the charges and his NCRMD verdict, and
    judge him negatively as a consequence. While these concerns were no doubt real,
    they had no connection to either
SOIRA
or
Christophers Law
:
    see
Long
,
at para. 147.
    For the purposes of s. 7, the claimant must show that the negative effects on
    an individuals liberty or security of the person have a sufficient causal
    connection to the impugned legislation: see
Canada (Attorney General) v.
    Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 74-76.

(iv)

The Evidence of the Appellants Ex-Wife

[64]

The
    application judge made no reference to the appellants ex-wifes evidence. As
    the respondent Attorney General for Ontario points out, her evidence consisted
    of a single sentence recording her agreement with the appellants evidence
    about the effects of the registries on him.

[65]

The
    absence of any reference by the application judge to this bit of evidence does
    not justify the conclusion that he failed to consider it. The absence suggests
    only that the application judge did not regard the evidence as a significant
    component of the totality of the evidence. That is not an unreasonable
    assessment.

[66]

I
    find no error in the application judges assessment of the evidentiary record,
    or in his factual findings. I accept those findings for the purpose of the
    constitutional analysis that follows.

B.

The constitutional arguments

(i)

The Section 7 Claim

[67]

Section
    7 declares:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[68]

A s.
    7 claim has two elements. First, claimants must demonstrate that the impugned
    legislation or state conduct deprives them of life, liberty, or security
    of the person. If claimants clear that hurdle, they must show that the state-caused
    deprivation is inconsistent with the principles of fundamental justice. The
    concepts of arbitrariness, overbreadth, and gross disproportionality have
    emerged as the principles of fundamental justice most commonly invoked when
    legislation is challenged: see
Bedford
, at paras. 93-123;
Long
,
    at paras. 55-57.

(a)

The Scope of the Claim

[69]

I
    begin my s. 7 analysis by emphasizing the nature of the s. 7 claim advanced by
    the appellant. He does not argue that the application of the sex offender
    registries to all persons found NCRMD in respect of designated offences
    breaches s. 7, or any other provision in the
Charter
. The appellants
    challenge is more limited. He focuses on a subset of those persons, namely
    persons who were found NCRMD in relation to a designated offence and who have
    received an absolute discharge from the ORB. On the appellants submissions,
    the absolute discharge draws the line between those persons found NCRMD who can
    constitutionally be subjected to the automatic registration and reporting
    requirements of
SOIRA
and
Christophers Law
, and those who
    cannot.

[70]

The
    narrow focus of the appellants s. 7 challenge reflects the
ratio
of
    this courts decisions in
Dyck
and
Long
. In
Dyck
, the
    court examined the constitutionality of
Christophers Law
as it applies
    to convicted offenders. In
Long
, the court considered whether s.
    490.013(2.1) of the
Criminal Code
, which requires individuals convicted
    of more than one offence to comply with
SOIRA
for life, complied with s.
    7 of the
Charter
. Both cases found that the legislation engaged the s. 7
    liberty rights of those required to register. Both cases went on, however, to
    find that the liberty restrictions were consistent with the principles of
    fundamental justice. The court found no s. 7 breach in either case.

[71]

In
Dyck
and
Long
, the court determined that the overarching purpose of the sex
    offender registry legislation was to assist in the investigation and prevention
    of sexual offences by providing the police with ready access to potentially
    helpful information about the whereabouts of sex offenders:
Long
, at
    para. 102;
Dyck
, at paras. 99, 105. The court in each case accepted that
    a person with a prior conviction for a sex offence was more likely than a
    person who had not been convicted of a sexual offence, to commit a sexual
    offence:
Long
, at paras.131-32;
Dyck
, at para. 100. That is,
    prior offending behaviour was accepted as a reasonable forecaster of ones risk
    of reoffending.

[72]

The
    court in
Dyck
and
Long
rejected the argument that the
    principles of fundamental justice as applied to the sex offender registries
    required an individualized assessment of the specific offenders potential
    future risk of re-offending. Instead, the court concluded that, as the liberty
    intrusion was modest, the prior commission of a sexual offence was a
    constitutionally-compliant reasonable proxy for the risk of reoffending:
Dyck
,
    at paras. 100-105;
Long
, at paras. 125-132, 140.

[73]

Dr.
    Hansons evidence placed persons who had committed designated sexual offences
    but were found NCRMD at a higher risk of committing further sexual offences
    than members of the general population with no history of sexual offending. On
    Dr. Hansons analysis of the data pertaining to the risk of reoffending, there
    was no basis to distinguish between persons who had committed a sexual offence
    and were convicted of that offence, and persons who were found NCRMD in respect
    of a sexual offence. The application judge accepted that evidence. He was
    entitled to do so.

[74]

Accepting
    Dr. Hansons evidence, and setting aside the effect, if any, of the ORBs
    granting of an absolute discharge on the s. 7 claim, I am satisfied that the principles
    applied in
Dyck
and
Long
apply to persons who were found
    NCRMD in respect of designated offences. For me the crucial s. 7 question is
    whether the absolute discharge changes that analysis.

(b)

Should
Dyck
/
Long
Be Followed?

[75]

Before
    turning to the effect of the granting of an absolute discharge on the s. 7
    analysis as applied to persons found NCRMD, I will address three arguments made
    by the appellant to support the submission that this court should not follow
    its prior judgments in
Dyck
and
Long
. Contrary to the
    narrower relief sought by the appellant, these arguments would, if successful, lead
    to the conclusion that the sex offender registries may be unconstitutional as
    applied to all persons found NCRMD.

[76]

The
    appellants first argument focuses exclusively on the analysis in
Dyck
.
    He submits that
Dyck
has been overruled by the Supreme Court of
    Canadas reasons in
Bedford
. In addition, the appellant points out
    that
Dyck
dealt with a requirement that the offender report for 10
    years. Here, the appellant is required to report for life.

[77]

It
    is true that
Bedford
overrules
Dyck
insofar as
Dyck
held that gross disproportionality was the standard for measuring
    overbreadth:
Dyck
, at para. 96.
Bedford
makes it clear that
    overbreadth and gross disproportionality are two distinct principles of
    fundamental justice:
Bedford
, at paras. 114-23; see also
Long
,
    at para. 114. However nothing in
Bedford
takes away from the analysis
    in
Dyck
of the purpose and effect of
Christophers Law
, or the impact of
Christophers Law
on individuals liberty interests
. This
    court applied much of that analysis in
Long
.

[78]

Ultimately,
    any arguments that
Dyck
has been overtaken by
Bedford
do not
    help the appellant.
Long
was decided after
Bedford
and
    faithfully tracked the s. 7 analysis laid down in
Bedford
.
Long
,
    like this case, involved a lifetime order under
SOIRA
. Even if one
    ignored
Dyck
, the analysis in
Long
provides equally strong
    support for the conclusion that the application of the sex offender registries
    to persons found NCRMD does not violate any principle of fundamental justice.

[79]

The
    appellants second argument in support of the claim that the analyses in
Dyck
and
Long
cannot be applied here rests on the distinction between
    persons convicted of criminal offences and persons found NCRMD. The individuals
    challenging the legislation in
Long
and
Dyck
were convicted
    of designated crimes. The appellant was not convicted of anything. He submits
    that the automatic application of the registration requirements in
SOIRA
and
Christophers Law
to persons found NCRMD is inconsistent with the
    NCRMD verdict, which recognizes that those persons are not morally culpable and
    should not be treated as criminals. The appellant further submits that the
    registration requirements are inconsistent with the recognized need to premise
    all limitations on the liberty of persons found NCRMD on an individualized
    assessment of that persons risk and rehabilitative potential.

[80]

There
    is no doubt that persons found NCRMD stand in a dramatically different place
    than those convicted of a criminal offence. Persons found NCRMD have done
    nothing wrong in the eyes of the criminal law, and cannot be punished by the
    state for what they did:
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625, at para. 65.

[81]

As
    fundamental as the distinction between persons found NCRMD and persons
    convicted is, I do not think it makes the principles set out in
Dyck
and
Long
inapplicable to the s. 7 analysis in this case. The
    registration and reporting requirements in
SOIRA
and
Christophers
    Law
are not imposed as punishment or treatment:
Long
, at para. 53;
Dyck
,
    at paras. 79-83;
R. v. Warren
,
    2010 ABCA 133, 477 A.R. 370, at paras. 17-21
. Instead, they are
    directed at promoting public safety through the creation and maintenance of a
    databank that facilitates the effective investigation and prevention of sexual
    crimes. Because of the purpose behind the registries, an individualized
    assessment of risk, though crucial when imposing treatment or punishment, is
    not required to conform with the principles of fundamental justice. In this
    sense, sex offender registries are akin to legislation requiring the provision of
    fingerprints, photographs, or DNA
[6]
:
Dyck
, at para. 123. As the sex offender registries do not constitute
    punishment or treatment, I do not regard the s. 7 analysis in
Winko
,
    which requires an individualized assessment of the offender for the purposes of
    determining the proper disposition under Part XX.1, as applicable to the
    imposition of ancillary orders like those contemplated by the sex offender
    registries.

[82]

The
    appellants third argument to support his submission that the analysis in
Dyck
and
Long
should not be applied here arises out of the nature of the s.
    7 breaches alleged in this case.
Dyck
and
Long
involved
    breaches of the offenders liberty interests only. Here, the appellant submits
    that the sex offender registry requirements infringed not only his right to
    liberty, but also his right to security of the person. He contends that the
    significant psychological trauma he suffered as a consequence of complying with
    the registry requirements has infringed his security of the person. The
    appellant argues that, in deciding whether the legislation accords with the
    principles of fundamental justice, the court must take account of the
    cumulative effects of the interference on both his liberty and security of the
    person interests.

[83]

It
    is not readily apparent, at least in respect of arguments about arbitrariness
    and overbreadth, that it should matter whether the impugned state action impacts
    on one or more than one of the interests protected by s. 7. Claims of
    arbitrariness and overbreadth both examine the purpose and effect of the
    impugned state conduct:
Bedford
, at para. 108. A disconnect between
    the purpose and the effect of impugned legislation may, depending on the nature
    of that disconnect, support a finding of arbitrariness or overbreadth. It does
    not seem to me that the arbitrariness or overbreadth analysis is different
    depending on whether one or more than one of the rights to life, liberty and
    security of the person are engaged by the challenged legislation.

[84]

I
    need not, however, decide whether a claim that the legislation breaches the
    appellants right to security of the person as well as his right to liberty
    would change the arbitrariness or overbreadth analysis. The application judge
    considered and rejected the submission that the psychological impact of the
    registration and reporting requirements were sufficiently serious to constitute
    an infringement of the appellants security of the person. In so holding, he
    applied the approach set down by the Supreme Court in
G.(J.)
, at
    paras. 59-60, and applied in this court: see e.g.
R. v. Donnelly
, 2016
    ONCA 988, 135 O.R. (3d) 336, at para. 109;
R. v. Gowdy
, 2016 ONCA 989,
    135 O.R. (3d) 371, at para. 110.

[85]

The
    appellant urges this court to approach the psychological impact of compliance
    with the registries exclusively through the appellants own eyes. In short, he
    urges a subjective assessment of the impact of the legislation. He submits that
    the registration and reporting requirements, which may be modest for some, can
    be significant, debilitating, traumatizing, and ultimately destabilizing for
    some individuals who live with mental illness.

[86]

The
    entirely subjective approach to psychological harm urged by the appellant is
    not open in this court in light of
G.(J.)
. Even if it were, I would
    not adopt such an approach. If the impact of state action on an individuals
    psychological state were measured exclusively by how that individual perceived the
    state action, the scope of s. 7 would be virtually unlimited, and the meaning
    of security of the person so broad as to be meaningless. In my view, concerns
    about the differential impact of the registration and reporting requirements on
    the appellant because of his mental illness are properly addressed in the s. 15
    argument.

(c)

The Application of the Principles from
Dyck
and
Long
to this Case

[87]

As
    in
Dyck
and
Long
, I accept that the sex offender registry
    legislation infringes the appellants right to liberty. Further, for the
    reasons that follow, I conclude that it does so in a manner that conforms with
    the principles of fundamental justice.

[88]

I
    agree with the respondents characterization of the appellants claim as an
    overbreadth argument. The appellant and interveners submit that while the
    application of the sex offender registry legislation to persons found NCRMD
    serves the public protection purpose animating the legislation, that purpose is
    not served by applying the legislation to persons found NCRMD who have received
    an absolute discharge. They argue that, for that subgroup of persons, there is
    no connection between the impact of the legislation and the purpose of the
    legislation:
Bedford
, at para. 112.

[89]

The
    appellant and interveners contend that even though an individualized assessment
    of the risk of reoffending is not a prerequisite to a constitutionally
    acceptable sex offender registry scheme, an actuarially-based risk assessment
    cannot stand as a reasonable proxy for the risk of reoffending in the face of
    an individualized assessment made by the ORB and a finding by the ORB that the
    individual does not pose a significant threat to public safety.

[90]

The
    appellant and interveners submit that a risk assessment predicated on a single
    factor  the prior commission of a sexual offence  is effectively overtaken by
    the individualized risk assessment made by the ORB and the finding of the
    absence of any risk. They maintain that requiring the appellant to continue to
    comply with the sex offender registry legislation after the ORB has declared
    that he is not a significant risk goes beyond what is reasonably necessary to
    achieve the purpose of the sex offender registries:
R. v.
    Safarzadeh-Markhali
, 2016 SCC 14, [2016] 1 S.C.R. 180, at paras. 50-51;
Carter
    v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, at para.
    85.

[91]

An
    overbreadth argument must begin by identifying the purpose of the challenged
    legislation. The parties agree that the sex offender registries exist to assist
    in the investigation and prevention of sexual offences by providing the police
    with access to information about the identity and whereabouts of persons who
    have previously committed sexual offences:
Long
, at paras. 82-104;
Dyck
,
    at paras. 99-100.

[92]

Having
    identified the purpose, one turns to the connection between that purpose and
    the effect of the legislation. Is the ability to investigate and prevent sexual
    offences enhanced by requiring persons found NCRMD who have received an
    absolute discharge to continue to register and report under
Christophers
    Law
and
SOIRA
?

[93]

The
    appellants say the purpose is not served. The inclusion of persons found NCRMD
    who have received an absolute discharge tends to diminish the effectiveness of
    the sex offender registries, as it includes in those registries persons who are
    at no greater risk of reoffending than anyone else.

[94]

The
    respondents say the purpose is served. They rely on the data discussed by Dr.
    Hanson and his opinion based on such data. He testified that persons who
    committed designated offences were found NCRMD and received an absolute
    discharge remain at a higher risk of reoffending compared to the general
    population. The research upon which he relied also suggests that those under
    the auspices of the ORB are somewhat less likely to reoffend than persons who have
    been absolutely discharged.

[95]

The
    position advanced by the appellant and the interveners overstates the effect of
    the findings underlying the granting of an absolute discharge by the ORB. The
    phrase significant threat to the safety of the public in s. 672.54 has been
    interpreted as meaning a significant risk of committing a serious criminal
    offence:
Winko
, at para. 57;
Carrick (Re)
, 2018 ONCA 752, at
    paras. 17-20. Individuals who are found to pose only a threat of committing a
    serious criminal offence must receive an absolute discharge under s. 672.54.
    Similarly, persons who are found to pose a significant threat of committing
    criminal offences, but not serious criminal offences, must also receive an
    absolute discharge.

[96]

I
    have no difficulty in concluding that sex offender registry legislation that
    reaches persons who have committed a designated offence and who pose either
    some risk of committing a serious crime or a significant risk of committing a non-serious
    crime has not overshot its purpose. In my view, the granting of an absolute
    discharge to a person found NCRMD cannot be equated with a finding that a
    person who was found NCRMD in respect of a designated offence and received an
    absolute discharge poses no or even little risk of committing another
    designated offence.

[97]

To
    understand the meaning of an absolute discharge, particularly as it relates to
    risk of reoffending, one must appreciate the purpose of Part XX.1 of the
Criminal
    Code
. Part XX.1 introduced a unique assessment/treatment model into the
    criminal process for persons found NCRMD. As was eloquently stated in
Winko
,
    at para. 47:

[T]he only constitutional basis for the criminal law
    restricting liberty of an NCR accused is the protection of the public from
    significant threats to its safety. When the NCR accused ceases to be a
    significant threat to society, the criminal law loses its authority.

[98]

The
    imposition of state imposed restrictions, some of them very severe, on the
    liberty of a person found NCRMD are justified only so long as the individual
    presents a significant risk to the safety of the public. The determination of
    risk requires an individualized assessment.

[99]

The
    much more modest intrusions on individual liberty imposed by
Christophers
    Law
and
SOIRA
do not, however, depend on or reflect any finding
    or prediction as to the risk of reoffending tailored to the individual and the
    specific circumstances. Instead, those provisions are predicated on a
    statistical connection between the commission of a designated offence and the heightened
    risk of committing another designated offence. On Dr. Hansons evidence, which
    the application judge accepted, that connection exists for persons found NCRMD
    who have been absolutely discharged just as it exists for NCRMD persons who
    have not been discharged, and for persons convicted of designated offences.

[100]

Long
and
Dyck
accept that a prior conviction for a designated offence, although a long way
    from demonstrating that a particular offender will reoffend, is a sufficient
    proxy for the risk of reoffending so as to constitutionally justify the modest
    intrusion on individual liberty affected by the registration and reporting
    requirements of the sex offender registry legislation. The application judge
    was satisfied, on the evidence he heard, that an actuarial connection between
    the commission of a prior designated offence and the risk of committing a
    further designated offence continues to exist even after a person who had been
    found NCRMD received an absolute discharge. On that evidence, the purpose
    driving the sex offender registry legislation is served by making the
    legislation applicable to persons found NCRMD who have received an absolute
    discharge.

[101]

The appellant cannot
    demonstrate the absence of a rational connection between the purpose of the
    legislation and its impact on the liberty interest of persons found NCRMD who
    have received an absolute discharge. The s. 7 claim must fail.

(ii)

The Section 15 Claim

[102]

Section 15(1)
    provides:

Every individual is equal before and under the law
    and has the right to the equal protection and equal benefit of the law without
    discrimination and in particular, without discrimination based on race,
    national or ethnic origin, colour, religion, sex, age or mental or physical
    disability.

[103]

The s. 15(1) equality
    analysis looks first for differential treatment of individuals based on a
    ground enumerated in s. 15(1), or an analogous ground. The differential
    treatment may be the consequence of the express terms of the challenged
    legislation, or it may arise in the impact or effect of facially neutral
    legislation: see
Winko
, at paras. 77-78;
Kahkewistahaw First
    Nation v. Taypotat
, 2015 SCC 30, [2015] 2 S.C.R. 548, at para. 19;
Withler
    v. Canada (Attorney General)
, 2011 SCC 12, [2011] 1 S.C.R. 396, at paras.
    30-31, 64. Although the Supreme Court of Canada rejected a mirror comparator
    group approach to s. 15(1) in
Withler
, the court has consistently
    recognized that equality is an inherently comparative concept: see
Withler
,
    at paras. 52, 60. Therefore, in evaluating a s. 15(1) claim, it may be useful
    to consider how the law treats individuals in the protected group as compared
    with individuals who are not part of that group:
Withler
, at paras.
    61-65.

[104]

The appellant and
    interveners contend that the sex offender registry legislation has a harsher
    effect on persons found NCRMD who committed designated offences compared with
    persons who were found guilty of designated offences. They do not argue that
    the differential treatment is expressly spelled out in the legislation, but
    rather that it is an effect of the legislation.

[105]

The appellant and
    interveners point to the interaction of the sex offender legislation with s.
    730 of the
Criminal Code
and s. 4 of the
Criminal Records Act
,
    R.S.C., 1985, c. C-47 to support their claim that persons found NCRMD are
    treated more harshly under the sex offender registry legislation.

[106]

Section 730 allows a
    court, upon a finding of guilt, to decline to enter a conviction if satisfied
    that it is in the accuseds best interests and not contrary to the public
    interest. Persons who receive a discharge under s. 730 are deemed by s. 730(3)
    not to have been convicted of any offence. Because persons who receive a
    discharge are not convicted, they are not required to register under
Christophers
    Law
or
SOIRA
.

[107]

Section 730 is not
    available to persons found NCRMD in respect of a designated offence. The
    section is unavailable, not because persons found NCRMD cannot meet the
    criteria for discharge, but because persons found NCRMD are not, in the eyes of
    the criminal law, guilty of anything and cannot be found guilty. Ironically,
    the absence of criminal culpability denies the person found NCRMD the
    opportunity to avoid being placed on the sex offender registries.

[108]

Section 4 of the
Criminal
    Records Act
operates in combination with the sex offender registries to
    create a second distinction between persons found guilty of designated offences
    and persons found NCRMD. Section 4 allows most persons who have been convicted
    of a designated offence to apply for a record suspension either five or ten
    years after completing their sentence. An offender who receives a record
    suspension is automatically removed from the provincial sex offender registry,
    and can apply for a termination of his
SOIRA
order.

[109]

The criteria governing
    the granting of a record suspension consider a variety of factors, including
    the seriousness of the underlying offence and the offenders post-sentence
    behaviour. There is nothing in the criteria that makes any of them inapplicable
    to persons found NCRMD. However, because persons found NCRMD are not convicted,
    they have no criminal record and therefore no basis upon which to apply for a
    record suspension.

[110]

Section 730 of the
Criminal
    Code
and s. 4 of the
Criminal Records Act
, when read with the sex
    offender registry legislation, provide persons found guilty of designated
    offences with two exit ramps leading away from the obligation to comply with
    the sex offender registries.

[111]

The s. 730 exit ramp
    operates at the time of sentencing and can result in the person who committed a
    designated offence never being placed on the sex offender registries. The
    record suspension exit ramp becomes available five or ten years after the
    offender has completed his sentence. This section allows persons to get off of
    the registries, in part by demonstrating their good conduct during the five or
    ten years after their sentence was completed.

[112]

The remedies provided
    by s. 730 of the
Criminal Code
and s. 4 of the
Criminal Records
    Act
both require individualized assessments of the claims. The court or
    the parole board exercise their discretion in determining whether to grant
    those remedies. That discretion is exercised by applying the specified criteria
    to the individual circumstances.

[113]

A person found NCRMD
    in respect of exactly the same designated offence as a person found guilty of
    that offence has no opportunity  either at the time of disposition, or five or
    ten years after disposition  to get out from under the requirements of the sex
    offender registries. The exit ramps, or any functional equivalents, are
    denied to persons found NCRMD, even after they have received an absolute
    discharge from the ORB.

[114]

Neither
Christophers
    Law
nor
SOIRA
purports to draw any distinction between persons
    found NCRMD and convicted persons. However, I am satisfied that the effect of
    the legislation and, in particular, the absence of any exit ramp for persons
    found NCRMD, constitutes differential treatment for the purposes of s. 15(1).
    Someone like the appellant, who has committed more than one designated offence,
    can only hope to exit
SOIRA
by way of a termination order. He is not
    eligible for that order until 20 years after the NCRMD finding. A person in the
    appellants position has no possible exit from the obligations under
Christophers
    Law
. He must comply for the rest of his life.

[115]

There is only one
    legally relevant distinction between persons who were found guilty of
    designated offences and who are therefore able to access the exit ramps, and
    those who were found NCRMD in respect of designated offences and who cannot
    access those exits. Persons in the latter group suffer from a mental disorder
    that rendered them incapable of appreciating the nature and quality of their
    acts, or knowing that those acts were wrong:
Criminal Code
,
s. 16. A mental disorder leading to an
    NCRMD finding is a mental disability under s. 15(1) of the
Charter
.
    Mental disability is an enumerated ground. In my view, the many differences
    between the treatment of persons found NCRMD and the treatment of persons found
    guilty of the same offence, including the differential impact of the sex
    offender registries on those two groups, is based on the mental illness of
    those found NCRMD:
Winko
at para. 78-79.

[116]

Having determined that
    the sex offender registry legislation draws distinctions based upon mental
    disability, I turn to whether those distinctions are discriminatory. Not all
    distinctions drawn by legislation are discriminatory. Indeed, some are
    essential to achieving substantive equality:
Winko
, at paras. 78-81,
    83-85;
Withler
, at para. 39.

[117]

Discriminatory
    differences are those which perpetuate arbitrary disadvantage by imposing
    burdens or disadvantages, or withholding benefits and advantages from
    individuals in the identified group based on their membership in that group:
Taypotat
,
    at para. 20. Distinctions based on the grounds enumerated in s. 15(1),
    including mental disability, are inherently suspect:
Taypotat
, at para. 19;
Quebec (Attorney General) v. Alliance du personnel professional et technique
    de la sant
é et des services sociaux
, 2018 SCC 17, [2018] 1 S.C.R.
    464, at para. 26. In this case, that suspicion is confirmed by an examination
    of the historical record relating to Canadas treatment of the mentally ill in
    the criminal law context: see
R. v. Swain
,
[1991] 1 S.C.R. 933, at para. 39.

[118]

The respondents
    correctly point out that some distinctions, even distinctions based on
    enumerated grounds, promote equality:
Winko
,
at paras. 83-85. They submit that the distinctions
    between persons who were found NCRMD in respect of designated offences and
    persons who were found guilty of the same offences, insofar as those
    distinctions relate to compliance with the sex offender registries, are not
    discriminatory. Rather, they draw appropriate differences between the treatment
    of convicted persons and persons found NCRMD. Those differences are said by the
    respondents to ensure that persons found NCRMD are not treated as criminals,
    but are instead afforded the full protection and benefit of Part XX.1 of the
Criminal
    Code
. According to the respondents, the absence of the exit ramps from
    the sex offender registries described above is necessary to recognize the
    distinct status of persons found NCRMD within the criminal justice system, and thereby
    provide them with equality under the law.

[119]

The respondents
    submission has merit to a point. Discharges under s. 730 of the
Criminal
    Code
and record suspensions under the
Criminal Records Act
cannot
    have any direct application to persons found NCRMD. Those persons are not
    criminally culpable. To speak of guilt, as s. 730 does, or record suspensions,
    as the
Criminal Records Act
does, is to miss the vital distinction
    between the non-culpability of persons found NCRMD and the culpability of those
    found guilty.

[120]

I say the respondents
    submission has merit only to a point, because while it explains why the
    specific remedies in s. 730 of the
Criminal Code
and s. 4 of the
Criminal
    Records Act
are inapplicable to persons found NCRMD, it offers no
    explanation for the failure to provide comparable exit ramps out of the sex
    offender registries for persons found NCRMD. It may be inappropriate to speak
    of persons found NCRMD as being found guilty or receiving a pardon. That does
    not, however, explain the failure to provide comparable exit ramps out of the
    sex offender registries for persons found NCRMD. Nor does it mean that it is
    inappropriate to provide for some form of individualized assessment of the need
    to place and keep NCRMD persons on the sex offender registries that is comparable
    to the individualized assessments available under s. 730 of the
Criminal
    Code
and s. 4 of the
Criminal Records Act
for persons who were
    found guilty.

[121]

For example, why is it
    that persons found NCRMD do not have an opportunity after five or ten years to
    demonstrate, within terms like those described in s. 4 of the
Criminal
    Records Act
,
that the
    interests of justice merit their removal from the sex offender registries?
    Denying persons found NCRMD that opportunity  an opportunity available to
    convicted persons  does not reflect or promote the actual needs and
    circumstances of persons found NCRMD. Nor does it advance substantive equality
    through different treatment. To the contrary, the absence of a comparable
    opportunity to get off of the sex offender registries undermines the needs and
    circumstances of at least some persons who have been found NCRMD and received
    an absolute discharge. The appellant is a case in point.

[122]

In my view, the
    absence of any exit ramp from the sex offender registries (apart from a
    termination order after 20 years in the case of
SOIRA
) reflects an
    assumption that persons who committed criminal acts while NCRMD do not change,
    but rather pose the same ongoing and indeterminate risk they posed at the time
    of the offence. This assumption feeds into the stereotypical notion that persons
    found NCRMD are inherently and indefinitely dangerous: see
Swain
;
Winko
;
    see also
Quebec (Attorney General) v. A
, 2013 SCC 5, [2013] 1 S.C.R. 61,
    at paras. 325-32 (per Abella J., writing for the majority on this point).

[123]

I am unaware of
    anything in the legislative history of either
Christophers Law
or
SOIRA
that offers any recognition of, much less explanation for, the different
    treatment afforded persons found NCRMD in respect of designated offences
    compared to the treatment of persons found guilty of the same offences. It
    appears that Parliament and the Legislature simply assumed that the kind of
    individualized assessment provided by s. 730 of the
Criminal Code
and
    s. 4 of the
Criminal Records Act
was either unnecessary or
    inappropriate in the case of persons found NCRMD.

[124]

I acknowledge the
    point made by the respondents that many persons who have committed designated
    offences will not be good candidates for either a discharge under s. 730 of the
Criminal Code
or a record suspension under the
Criminal Records
    Act
. In fact, some designated offences carry a minimum sentence rendering
    a discharge unavailable: see
Criminal Code
, s. 730(1).

[125]

This argument does
    not, however, provide any answer to the s. 15 claim. The right to equality
    under s. 15(1) does not depend on a head count of those for whom access to
    equality before the law might provide some practical value. There are persons
    who commit designated offences that will be good candidates for a discharge or
    for a record suspension. In fact, on this record, the applicant would appear to
    have been a very good candidate for a record suspension, had he been found
    guilty rather than NCRMD. It does not matter, for the purposes of s. 15(1), how
    many individuals are in a similar position to the appellant.

[126]

There is, however, a
    second and more fundamental way in which the sex offender registry legislation
    violates the s. 15(1) rights of NCRMD persons who have received an absolute
    discharge. Section 15(1) guarantees substantive equality. In some situations,
    substantive equality requires that everyone be treated in the same way. In
    other situations, substantive equality requires that some people be treated
    differently to take account of their membership in a group protected by s.
    15(1) and the need to recognize and remedy the historical disadvantages
    suffered by that group: see
Winko
, at paras. 82-83;
Eaton v. Brant
    County Board of Education
, [1997] 1 S.C.R. 241, at 66-67;
Taypota
t,
    at para. 17. As the Court explained in
Winko
, at para. 82:

The jurisprudence recognizes that discrimination may arise
    either from treating an individual differently from others on the basis of
    group affiliation or from
failing
to treat the individual differently
    from others on the basis of group affiliation. [Emphasis in original.]

[127]

This is a case where
    s. 15(1) requires that NCRMD persons who receive an absolute discharge be
    treated differently than other individuals subject to
Christophers Law
and
SOIRA
. In my view, the constitutional guarantee of substantive equality
    requires that those who have been found NCRMD in respect of designated offences
    and who have received an absolute discharge be afforded access to some form of
    individualized assessment as a precondition to their placement or maintenance
    on a sex offender registry. That is, there must be a process by which those
    persons can challenge the continued application of the sex offender registry
    legislation to them, having regard to their personal needs, capacities, and
    circumstances.

[128]

In
Winko
, the
    court acknowledged that NCRMD persons occupy a special place in the criminal
    law: para. 30. Those persons are not culpable for their criminal acts. Any
    restriction on their liberty as a result of those acts cannot be justified
    under the usual principles of sentencing, which assume culpability as the
    justification for state imposed penalties. Furthermore, those found NCRMD face
    longstanding and deeply embedded societal prejudices. Those prejudices are
    exacerbated by the criminal law process. Historically, those prejudices
    generated stereotypical assumptions about the risk posed by persons found NCRMD,
    and assumptions about the immutable nature of their mental illnesses. These
    stereotypes often led to court-imposed sanctions, which had very negative
    long-term impacts on the liberty and security of persons found NCRMD.

[129]

Part XX.1 of the
Criminal
    Code
was intended to remove the discriminatory effects of the traditional
    approach to mental disorder in the criminal context. Two passages from
Winko
capture the nature of Part XX.1:

Part XX.1 reflected an entirely new approach to the problem of
    the mentally ill offender, based on a growing appreciation that treating
    mentally ill offenders like other offenders failed to address properly the
    interests of either the offenders or the public. The mentally ill offender who
    is imprisoned and denied treatment is ill served by being punished for an
    offence for which he or she should not in fairness be held morally responsible.
    At the same time, the public facing unconditional release of the untreated
    mentally ill offender was equally ill served. To achieve the twin goals of fair
    treatment and public safety a new approach was required. [para. 20]

Parliament intended to set up an assessment-treatment system
    that would identify those NCR accused who posed a significant threat to public
    safety, and treat those accused appropriately while impinging on their liberty
    rights as minimally as possible, having regard to the particular circumstances
    of each case. [para. 16]

[130]

The criminal laws
    mandate as it relates to persons found NCRMD is to assess and treat their
    mental illness, not to punish. The equal treatment of NCRMD persons within the
    criminal justice system requires that any exercise of the criminal law power
    have regard to the impact of that exercise on the offenders mental wellbeing. The
    criminal law must recognize that NCRMD persons are mentally ill, that there is
    a need to treat their illness, and that there is a need to protect the public
    while doing so.

[131]

After
Winko
,
    it is clear that s. 15 of the
Charter
demands an individualized
    assessment of NCRMD persons at both the adjudicative and disposition stages of
    a criminal proceeding. That individualized treatment, combined with the unique
    dispositions available to persons found NCRMD, seeks to overcome the
    stereotyping and prejudice that have marked the treatment of mentally ill
    offenders while at the same time maximizing the achievement of the twin goals
    of treatment and public protection.

[132]

As set out earlier in
    these reasons, sex offender registry orders are not properly characterized as
    treatment or punishment.
Dyck
and
Long
both hold that the
    principles of fundamental justice enshrined in s. 7 do not require an
    individualized risk assessment before a sex offender registry order can be made
    or maintained.

[133]

Section 15, however,
    engages different considerations than s. 7. In this case, the second stage of
    the s. 15(1) inquiry begins by recognizing the long historical record of
    discrimination in the criminal law against persons with mental disabilities:
    see
Taypotat
, at para. 21;
Withler
, at paras. 36-39. That
    long history demands that those found NCRMD be treated differently than persons
    who are convicted of criminal offences. Treating NCRMD persons fairly means
    acknowledging their mental illness as the root cause of their criminal conduct,
    and, to the extent consistent with public safety, seeking to treat and alleviate
    the adverse effects of that mental disability.

[134]

The automatic
    imposition of long-term sex offender registry orders based on the prior
    commission of a designated offence by a person found NCRMD not only ignores the
    fact that the NCRMD person was not culpable in the commission of the crime, it
    has the real potential to undermine the very progress that led to the absolute
    discharge by the ORB. It is not far-fetched to suggest that, in some cases, the
    sex offender registry legislation will erect new barriers to the NCRMD persons
    continued recovery and reintegration into society  one of the goals of Part
    XX.1 of the
Criminal Code

    at the very moment that the individual is declared by the ORB to be no longer
    subject to the criminal law power. Persons found NCRMD go from being treated in
    an individualized manner that recognizes their mental disability, to being
    treated in the same generalized fashion as morally culpable offenders, without
    any regard for their mental disability or their unique status in the eyes of
    the criminal law. This perpetuates rather than alleviates their systemic
    disadvantage.

[135]

The potentially
    adverse consequences of the application of the sex offender registry provisions
    to persons found NCRMD who have received an absolute discharge is apparent on
    the facts of this case. The ORB decided that the appellant was entitled to an
    absolute discharge. In the ORBs view, the criminal law no longer had any
    legitimate claim to exercise authority over the appellant. No one questions the
    ORBs decision. In hindsight, it appears to have been the correct decision.
    However, at the very same time as the ORB released the appellant from the
    authority of the criminal law,
Christophers Law
and
SOIRA
automatically
    imposed mandatory, lifelong sex offender registry orders on the appellant.
    Those orders, unlike all of the decisions made by the ORB, were imposed without
    any consideration of the effect they would have on the appellants mental
    health and continued recovery. On this record, those orders had a negative
    impact on the appellants mental health.

[136]

In my view, s. 15(1)
    requires that any NCRMD person who has received an absolute discharge must have
    the opportunity to demonstrate that the imposition of a sex offender registry
    order or the continuation of that order is not appropriate in the
    circumstances. The equal treatment of a person found NCRMD who has received an
    absolute discharge dictates that any further potentially coercive state orders
    must take into account the NCRMD persons individual circumstances. The NCRMD
    offender must have an opportunity to address the impact of the order on his
    mental wellbeing.

[137]

I do not suggest that
    s. 15(1) imposes an obligation on the state to demonstrate that the NCRMD
    person who has received an absolute discharge poses some personalized risk of
    reoffending as a condition precedent to his placement on the sex offender
    registries. Rather, I would hold that the equality command of s. 15(1) dictates
    that NCRMD persons who have received an absolute discharge must have some
    opportunity to address both their risk of reoffending and the potentially negative
    effects of sex offender registry orders on their mental health and continued
    recovery. Neither
Christophers Law
nor
SOIRA
provides that
    opportunity. Consequently, both infringe s. 15(1) of the
Charter
.

(iii)

Does the Legislation Constitute a Reasonable Limit on
    the Appellants Section 15 Rights?

[138]

In the alternative,
    the respondents argue that any breach of s. 15 is justified under s. 1 of the
Charter
.
    To succeed on this argument, the respondents must first demonstrate that the
    purpose of the legislation is pressing and substantial. Second, they must show
    that the means chosen to achieve that legislative purpose are proportionate to
    their impact on
Charter
rights:
R. v. Oakes
,
[1986] 1 S.C.R. 103, at pp. 138-39;
Carter
,
    at para. 94.

[139]

The parties agree that
    the public safety purpose underlying the sex offender registry legislation is
    pressing and substantial. The outcome of the s. 1 inquiry turns on the
    proportionality analysis.

[140]

Proportionality is
    measured against three criteria. First, is the law rationally connected to its
    objective? Second, does the law impair
Charter
rights no more than is
    necessary to accomplish the objective: Peter W. Hogg,
Constitutional Law
    of Canada
(Toronto: Thomson Reuters,
    2007) (loose-leaf revision 2018-1),
ch. 38 at p. 38-18? Finally,
    are the salutary effects of the legislation proportionate to its deleterious
    effect on
Charter
rights: see
Carter
, at para. 94; Hogg, ch. 38
    at p. 38-18?

[141]

The parties agree that
    there is a rational connection between requiring all individuals found guilty
    or NCRMD to register and report under the sex offender registry legislation,
    and the public safety objective of that legislation. As often happens, the
    outcome of the proportionality analysis turns on whether Parliament and the
    Legislature have chosen the least drastic means to achieve their objective: Hogg,
ch. 38 at pp.
38-36, 38-37.

[142]

The minimal impairment
    requirement accepts that legislation is often a response to complex
    multifaceted problems which present a variety of possible legislative
    responses. Courts must afford legislatures a degree of deference and ask whether
    the legislation is reasonably tailored to the objective:
Carter
, at
    para. 102.

[143]

In my view, existing
    provisions in both
Christophers Law
and
SOIRA
demonstrate that the legislation is not minimally
    impairing of rights.
The legislative schemes do not limit the s.
    15(1) rights of persons found NCRMD who have been absolutely discharged only to
    the extent that is reasonably necessary to achieve the legislative objective.

[144]

Both
Christophers
    Law
and
SOIRA
provide means by which persons who are found guilty
    of designated offences can avoid the requirement of being placed on the
    registries, or can be relieved of their obligations to continue to report under
    the registries. Those exit ramps are discussed in detail above. They turn on
    the evaluation of factors specific to the individual offender. I take those
    provisions to clearly indicate that the object of the sex offender registry legislation
    can be met by a scheme which allows for carefully tailored, individualized
    exceptions or exemptions from the registration and reporting requirements. In
    light of the existing exceptions and exemptions for convicted offenders, it
    simply cannot be said that the object of the legislation requires the mandatory
    registration and reporting of all persons found to have committed designated
    offences.

[145]

No rationale has been
    offered to support the exclusion of persons found NCRMD who have received
    absolute discharges from any possible exemption or exception from the
    requirements of the sex offender registry legislation. There is no evidence
    that, while the objective of the legislation is consistent with exceptions and
    exemptions for persons found guilty, it is somehow undermined by comparable
    exceptions and exemptions for persons found NCRMD.

[146]

The same point is made
    by reference to the provision in
SOIRA
dealing with DNA orders.
    Section 487.051(3) allows for DNA orders in respect of persons found NCRMD in
    respect of certain identified offences. However, a DNA order can only be made if
    the criteria in the provision are met. The order is discretionary, and based on
    the circumstances of the individual case.

[147]

DNA orders serve the
    same public safety objective as sex offender registry orders. Parliaments
    determination that the public safety objective of the DNA provisions can be met
    by legislation which provides for some discretion in the making of the order as
    applied to persons found NCRMD provides a further indication that the mandatory
    registration and reporting requirements under the sex offender registries goes
    beyond what is reasonably necessary to achieve the legislative objective.

[148]

The respondents have
    not met the onus of demonstrating that the infringement of the applicants s.
    15(1) right to equality before the law is reasonably necessary to achieve the
    objective of the sex offender registry legislation. The discriminatory impact
    of
Christophers Law

and
SOIRA
cannot be justified
    under s. 1.

(iv)

The Appropriate Remedy

[149]

Section 52 of the
Constitution
    Act, 1982
requires the court to declare the provisions of
Christophers
    Law
and
SOIRA
to be of no force or effect to the extent that they
    are inconsistent with s. 15 of the
Charter
. On my analysis, both
    statutes are inconsistent with s. 15 because they impose mandatory registration
    and reporting requirements on persons found NCRMD who have received an absolute
    discharge, without any possibility for exemption. Section 15(1) requires some
    form of individualized assessment of the need for registration and reporting in
    respect of persons who have been found NCRMD and received an absolute discharge.

[150]

There are several ways
    in which Parliament and the Ontario legislature could make the sex offender
    registry legislation compliant with s. 15(1) of the
Charter
. Those
    choices engage various policy considerations. There is also a need for a co-ordinated
    response by the two legislative bodies. The evaluation of those policy considerations
    and the mechanics of implementing a co-ordinated response are best left to
    Parliament and the Legislature. Further, immediate invalidity would pose a
    potential danger to public safety: see
Schachter v. Canada
,
[1992] 2 S.C.R. 679, at pp. 715-16. I
    would suspend the declaration of invalidity for twelve months to allow for the
    appropriate legislative response: see
Bedford
,

at paras. 164-169; Kent Roach,
Constitutional Remedies in Canada
(Toronto: Thomson Reuters, 2013)
    (loose-leaf revision 32), ch. 14 at paras. 14.1720-14.1782.

[151]

A suspended
    declaration of invalidity on its own would leave the appellant without any
    remedy for the breach of his s. 15(1) rights. He would need to await the
    legislative response by Parliament and the Ontario legislature. The courts
    have, in many cases, responded to this apparent injustice by allowing the
    litigant who brought the claim the advantage of the finding of
    unconstitutionality, even though the declaration of invalidity is otherwise
    suspended for some period: see Roach, ch. 14 at paras. 14.910-14.934.

[152]

In
R. v. Demers
,
[2004] 2 S.C.R. 489, at paras. 61-63,
    however, the Supreme Court indicated that a suspended declaration of invalidity
    under s. 52 of the
Constitution Act, 1982
could not be combined with a
    remedy under s. 24(1) of the
Charter
exempting the rights-claimant from
    the legislation. Professor Roach has correctly observed that
Demers
appears to overstate the language of the seminal remedies case of
Schachter
,
    at p. 720: Roach, ch. 14 at para. 14-940. In that case, the court stated that
    where a declaration of invalidity is suspended, a s. 24(1) remedy will
    not often be available:
Schachter
, at p. 720.

[153]

In my view, the
    Supreme Court of Canadas jurisprudence since
Demers
tells against
    reading that case as imposing an absolute ban on combining a suspended
    declaration of invalidity with a constitutional exemption under s. 24(1) of the
Charter
for the rights-claimant. Even if that combination were somehow
    unavailable,
Demers
says nothing about the power of the court to issue
    a qualified declaration of suspended invalidity which exempts the individual
    before the court from its scope. The court should be able to fashion a
    meaningful remedy for the rights-claimant.

[154]

As outlined above,
    this is not a case in which the application of the sex offender registry
    legislation to the appellant after he received an absolute discharge from the ORB
    would inevitably infringe the appellants
Charter
rights. As I read s.
    15, it goes no further than to entitle the appellant to an individualized
    determination of whether he should have to comply with the requirements of the
    legislation after he has received an absolute discharge.

[155]

If this were a case in
    which I could say no more than the appellant may or may not be entitled to some
    kind of exemption from the registries depending on the legislative scheme
    adopted by Parliament and the Ontario legislature, I would not be inclined to
    make any order beyond a suspended declaration of invalidity. However, as I read
    this record, it is difficult to envision a constitutionally-compliant legislative
    scheme that would not result in the appellant being removed from the registries
    and exempted from the requirement of any further compliance with them.

[156]

The appellants criminal actions were isolated and totally out of
    character. They were the direct product of his acute mental disorder. In the
    over 17 years since those events, the appellant has not committed any criminal
    acts. His mental illness is being effectively treated. He is a high-functioning,
    contributing member of the community. If one assumed that s. 4 of the
Criminal
    Records Act
or s. 730 of the
Criminal Code
applied to the
    appellant, one would inevitably come to the view that the public interest
    favoured a record suspension under the
Criminal Records Act
, or a
    discharge under s. 730 of the
Criminal Code
. There is no societal
interest in requiring the appellant
    to continue to comply with the sex offender registries. I would therefore order
    that he be removed from the registries, and that he no longer be required to
    comply with the various obligations set out in the legislation.

VI.

CONCLUSION

[157]

I would allow the appeal and set
    aside the order below. An order may issue declaring that the provisions of
Christophers Law
and
SOIRA
are of no force or effect to the
    extent that they impose mandatory registration and reporting requirements with
    no possibility of exemption on persons found NCRMD who have received an
    absolute discharge. I would suspend that declaration for 12 months. I would
    further hold, however, that the suspension does not apply to the appellant. He
    is entitled to an order relieving him from any further compliance with the sex
    offender registries, and an order deleting his information from those
    registries.

VII.

COSTS

[158]

The parties
    should exchange and file written submissions with respect to the costs of the
    application and the appeal within 30 days of the release of these reasons.
    Those submissions should not exceed a total of 7 pages.

Released: DD  APR 04
    2019

Doherty J.A.

I agree K. van Rensburg J.A.

I agree C.W. Hourigan J.A.

[1]

The intervener, Empowerment Council, argues that the
    constitutional infirmities in the legislation apply equally to persons found NCRMD
    who have received a conditional discharge from the ORB. Empowerment Council
    accepts, however, that any order this court might make in this proceeding
    should be limited to persons who have received an absolute discharge from a
    Review Board.

[2]
The intervener, the Criminal Lawyers Association, did not argue that the
    legislation violated s. 7 of the
Charter
.

[3]

The other two situations in which one can apply for an
    exemption order involve offenders convicted outside of Canada, and members of
    the Canadian Forces who were convicted of a designated offence prior to
    September 12, 2008: see
Criminal Code
, s. 490.02905;
National Defence
    Act
, R.S.C. 1985, c. N-5, s. 227.1.

[4]

It is notable that, because the appellant was absolutely
    discharged by the ORB prior to the enactment of
SOIRA
, the legislation
    would have had no application to him except for the fact that he had committed
    the offences in Ontario and he was required to register under
Christophers Law
:
Criminal Code
s.
    490.02(1)(b).

[5]
Dr. Brink disagreed with some of Dr. Hansons statistical analysis
    of rates of recidivism among persons found NCRMD. The application judge was
    alive to the disagreements between Dr. Brink and Dr. Hanson and considered them
    at length both in the body of his reasons and in extensive footnotes.

[6]

Persons found NCRMD in relation to designated offences under
    s. 487.04 are subject to having a DNA order made against them.
However
    the prosecutor must make an application, and the court has the discretion to
    refuse the order after considering the criteria in s.
487.051(3).


COURT OF APPEAL FOR ONTARIO

CITATION: Gefen v. Gaertner, 2019 ONCA 327

DATE: 20190424

DOCKET: M50042 & M50043 (C66016 & C66072)

van Rensburg, Benotto and Harvison Young JJ.A.

IN THE MATTER OF ELIAS GEFEN, deceased

BETWEEN

Henia Gefen in her personal capacity and
as estate trustee of the Estate of Elias Gefen

Plaintiff (Appellant)

and

Arie Gaertner,
    Miller Canfield, Paddock and Stone, LLP,
The Jewish Home for the Aged, Baycrest Hospital,
Baycrest Centre for Geriatric Care,
Yehuda Gefen and
Harry Gefen

Defendants (
Respondent)

AND BETWEEN

Harry
    Gefen

Plaintiff by Counterclaim
    (Respondent)

and

Henia
    Gefen in her personal capacity and as estate trustee
of the Estate of Elias Gefen, Harvey Gefen
, Ashley Gefen,
Dundas-Thickson Properties Ltd., 1393522 Ontario Limited
and 1585708 Ontario Limited

Defendants by Counterclaim (
Appellants
)

AND BETWEEN

Harry Gefen

Third Party Plaintiff (Respondent)

and

Harvey
    Gefen

Third Party Defendant (Appellant)

Gregory Azeff and Stephanie
    De Caria, for the moving party, Ronald Rutman, the Estate Trustee During Litigation
    of the Estate of Elias Gefen

R.B. Moldaver, Q.C., for
    Henia Gefen

Sapna Thakker, for Harvey
    Gefen

A.A. Blumenfeld, for Harry
    Gefen

Heard: March 14, 2019

On appeal from the order of Justice Michael
    A. Penny of the Superior Court of Justice dated September 26, 2018, with
    reasons reported at 2018 ONSC 5698.

COSTS ENDORSEMENT

[1]

On March 14, 2019, this appeal was quashed on motion by the Estate Trustee
    During Litigation (ETDL).

[2]

The parties have exchanged and filed written submissions as to costs.

[3]

Costs of the motion and the appeal are payable to the ETDL by the
    appellant and the respondents to the motion jointly fixed in the amount of $30,000
    inclusive of disbursements and applicable taxes.

K. van Rensburg J.A.

M.L. Benotto J.A.

A. Harvison Young J.A.