by Jeffrey Wang
The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.
At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.
The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.
The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.” The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles. Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.
In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.” However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.” For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.” Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy. Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.
This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.
The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards. Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation. The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.
Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation. However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.
The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:
“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”
Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.
Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student.
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