The Supreme Court of Canada recently recognized the voices and rights of people with mental health or addiction histories in a precedent-setting ruling.
In February 2020, Dr. Ruby Dhand, associate professor in the Faculty of Law, appeared in the country’s top court as part of a legal team on behalf of the Empowerment Council, intervening in a charter challenge.
On Nov. 20, 2020, the Court issued its ruling in Ontario (Attorney General) v. G and held that part of Ontario’s sex-offender registry is discriminatory as it applies to those who have been found not criminally responsible on account of mental disorder for a crime involving a sexual offence.
According to the ruling, the sex-offender registry, known as Christopher’s Law, “perpetuates disadvantage and negative stereotypes about persons with mental illness.” The Supreme Court of Canada found part of Christopher’s Law is unconstitutional, according to section 15 of the Canadian Charter of Rights and Freedoms.
“We were representing people for whom there was no hope of ever getting off the registry. In the ruling, the judges recognized that society and people think, wrongly, that people with mental health or addiction histories are, by nature, dangerous,” says Dhand.
“This ruling has a profound impact on all of those individuals with mental health or addiction histories found not criminally responsible. We are very much committed to working toward systemic change and to recognize the rights of those who are marginalized,” she says.
Dhand is an expert in mental health law and has long advocated for increasing access to justice for people with mental health or addiction histories.
The legal team, led by Anita Szigeti, one of Canada’s leading experts in mental health law, challenged the unilateral application of Christopher’s Law.
All those who committed a sexual offence in Ontario are included on the sex offender registry, which also applied to those who are found not criminally responsible.
“However, individuals who are convicted have an opportunity to be removed from the registry, but those same types of ‘exit ramps’ are not available to people with mental health or addiction histories found not criminally responsible,” explains Dhand. Without this chance, people with mental health or addiction issues experience discrimination according to section 15 of the charter.
“There should be an option of escaping that label, because when you are really working on your road to re-integration, wearing this label impedes your ability to do so.”
Being found not criminally responsible on account of mental disorder legally means that you have been cleared from committing a crime, and by definition it means that in the commission of an offence, the offender had no idea what they were doing, or that what they were doing was wrong.
“The law has built this special stream of ‘not criminally responsible,’ for these clients to get well and to get back into society,” says Dhand, who adds that many of these clients undergo years of treatment, during which time their risk to the public is reassessed on an ongoing basis.
“This ruling advances the section 15 charter-protected equality rights of people with mental health or addiction histories,” explicitly recognizing that “mental health [issues] are not like other illnesses, because they regularly cause people to lose their rights and freedoms in ways that are unimaginable in other health conditions.”
Presenting this charter challenge under section 15 at the Supreme Court of Canada was “life-changing,” says Dhand.
“We are very hopeful this case will result in systemic and transformative change for people with mental health or addiction histories.”
Dr. Ruby Dhand, associate professor
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