Found not criminally responsible, he ended up on Ontario’s sex-offender registry for life

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Found not criminally responsible, he ended up on Ontario’s sex-offender registry for life


That led to criminal charges, including for sexual assault, a diagnosis of bipolar disorder and a finding that he was not criminally responsible for his actions. He was then added to both the Ontario and federal sex-offender registries and has since been subject to rigid reporting requirements that have haunted him for nearly two decades.

All this despite the fact he was given an absolute discharge in 2003 when the Ontario Review Board found, unanimously, that he was not a significant threat to the public and his “mental threat is well treated.”

Even though he was not found guilty of a crime, and even though his mental health problems were under control, Mr. G could not get his name off the registries.

In April, Ontario’s highest court ruled in Mr. G’s case. It found the registries discriminate against people with mental illness by denying them the right to be assessed as individuals and failing to provide pathways for those found not criminally responsible to be removed from the lists — pathways that, were they found guilty, would have been available.

In other words, the court found that the law would have treated him better if he were found guilty

The ruling was seen by advocates as a major victory for people living with mental illness, but Ontario has since sought leave to appeal to the Supreme Court of Canada. It also filed for a stay to the court order that Mr. G should come off its registry.

A judge last week decided in Mr. G’s favour on the stay, ruling against the province’s argument that the “public interest” would “suffer irreparable harm” by removing him from the list. (Ottawa has indicated it will not appeal and did not oppose taking Mr. G off its registry.)

Mr. G must now wait to hear whether the Supreme Court will hear the province’s appeal — but for the first time since 2001, he feels he can finally move on.

His story, he said, is an example of how policing and the justice system are “broken with respect to the mentally ill.” He agreed to share it — via a five-page written response to questions sent by the Star to his lawyers — in order, in part, to help others.

9/11

Today, Mr. G — his name in court records, given to protect his and his family’s privacy — is a middle-aged executive, living in a middle-class Toronto-area neighbourhood with his second wife. He enjoys a good relationship with two adult children from his first marriage. He’s Christian and cherishes his children who, he said, know what he did but have “never questioned me about what happened.”

Mr. G grew up in the suburbs with a Harvard-educated father and a mother who suffered from what the family would go on to understand was an undiagnosed bipolar disorder before she died of cancer.

In 2001, Mr. G was reeling from the sudden death of his father and recovering from an exhausting business trip to South America when, he said, the 9/11 attacks “drove me over the top and into a manic state.”

For about eight months prior to the attacks, he’d been experiencing symptoms of grandiosity and paranoia. He couldn’t sleep. He was spending excessive amounts of money. He was irritable, drinking heavily and had a heightened sex drive.

He had family in the United States, and the attacks, he said, felt like an attack on him as well. He began acting even more erratically. He went on a campaign to buy up a “certain baseball player’s sports cards — driving all over town to find them.”

One day at home, he asked his wife if she wanted to have sex. They had met in university and until then, he said, they had a “normal and loving relationship.” He grabbed her by the arm and started pulling her upstairs to the bedroom. Then he stopped and went downstairs for a cigarette and a beer.

She called police. They came and suggested Mr. G stay downtown for a few days. He left, but later he “decided to go home to apologize.” He said he “ran 22 miles to my house, all the while hearing voices in my head telling me to jump in front of traffic.”

He again asked to have sex and, he said, he “mistook her acquiescence due to fear of upsetting me as agreement.” She did not consent. “I had no insights into how others perceived me at the time,” he said.

“I was afraid that he would become aggressive if I opposed him and therefore complied with his demands,” his ex-wife said about the incident in a 2013 affidavit to support his bid to be removed from the registries.

In the days to come, his wife obtained a restraining order, which he broke. He voluntarily went to a hospital and was diagnosed with bipolar disorder. Then he broke the restraining order again and landed in jail.

In the affidavit, his wife said she called police to enforce the restraining order and they told her they would have to charge him with sexual assault. It was never her intention, she said, to have him charged criminally. “At that time, I was only concerned that G get medical help and that he stay away from our daughters and me until he got better.”

In June 2002, Mr. G was found not criminally responsible for two sex assault charges, forcible confinement and violating the orders.

In her affidavit, his now ex-wife said she believes his mental state “impacted his thoughts and actions when the sexual assaults took place.”

Being in the registries, she wrote, was a “significant hardship for him.”

A sex offender for life

Not long before Mr. G was found not criminally responsible, Ontario passed its sex-offender registry, known as Christopher’s Law for 11-year-old Christopher Stephenson, who in 1988 was kidnapped from a Brampton mall by a repeat child molester, then abused and killed.

In 2003, the Ontario Review Board, which annually reviews every person found not criminally responsible on account of a mental disorder, was satisfied that Mr. G was better. He was released from hospital with conditions, continued to receive treatment and went back to work.

Soon, Mr. G discovered that Christopher’s Law meant he’d be in the Ontario sex registry for life. And in 2004 when the federal act kicked in, he learned he would also be added to that list and have to wait 20 years before he could apply to be removed.

“I was devastated. I was well on my way to dealing with my mental health circumstances and rebuilding when this shock hit,” he said. “I was to be marked for life.”

Mr. G had to regularly report to the parole and bail office. He had to provide physical details of his body parts, report his travel plans — and he travelled up to a dozen times a year for work — and attend an annual check-in. He found it all “punishing psychologically.”

“Every time I report, it takes time to prepare and gather my emotions, which is arduous. I have to prepare for possible negative interactions with some really tough cops,” Mr. G said, adding he would always take his second wife with him “so she can witness the police treatment and keep me safe.”

Before they married, police paid a visit to Mr. G’s home and found his then-girlfriend there alone. He said police spent 20 minutes questioning her about what type of person he was, “then told her that I was a bad person and that she should leave me.” He had already told his future wife about everything.

Despite being a regular traveller to the U.S. for business and family reasons, Mr. G said he was pulled out of an airport lounge by security in 2011 while he was waiting for a flight to attend a conference. He said he was told he could not travel to the U.S. until he got clearance.

“Getting clearance,” he said, involved a two-day, $7,000 phallometric test that measured blood flow to his penis as he was forced to consume sexually explicit and violent audio and video, needing “to press a button continuously to show that you are listening or watching.”

The test was an embarrassment, he said, and the results cleared him to resume travel to the U.S.

The stigma, the laws

The Ontario decision to seek leave to appeal underscores the pervasive attitude that people found not criminally responsible have gotten away with something.

There is little appetite for the government to revisit the laws dealing with sex offenders and those found not criminally responsible, said lawyer Marshall Swadron, who, along with his father Barry Swadron, Joanna Weiss and Sarah Latimer, represented Mr. G. “It seems that, ultimately, they needed the courts to tell them that they had to change the laws,” he said.

Swadron called it a “difficult” case in which both levels of government were determined to defend their registries. You might have expected, he said, that their lawyers would look at Mr. G’s case and say, “‘Maybe there’s a point here,’ but the marching orders they have received is to seek to uphold everything.”

Cara Zwibel, a lawyer with the Canadian Civil Liberties Association, called the Court of Appeal ruling an important victory for people with mental illness, whether they are involved in criminal law or not. “The court did recognize this ongoing stigma and the need to address it,” he said. “I hope it sticks.”

The CCLA, as well as the Empowerment Council and Criminal Lawyers’ Association, were intervenors in the case. Along with Mr. G’s lawyers, they argued that the federal Sex Offender Information Registration Act and Ontario’s Sex Offender Registry — Christopher’s Law — violated Mr. G’s charter rights.

Writing for the three-judge panel in a unanimous decision, Justice David Doherty found that Mr. G’s rights had been violated under Section 15 of the charter, which says that every individual should be equal before and under the law without discrimination, including for mental or physical disability.

Doherty wrote that the absence of “exit ramps” in both registries for those found not criminally responsible — apart from the 20-year wait in the federal registry — “reflects an assumption” that people with mental illnesses “do not change, but 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 (not criminally responsible) are inherently and indefinitely dangerous,” Doherty wrote.

The courts have found that people found not criminally responsible find themselves in special circumstances and face “long-standing and deeply embedded prejudices,” he wrote. “Those prejudices are exacerbated by the criminal law process.”

Doherty called for a co-ordinated response by Ottawa and Ontario to change their laws to comply with the charter, and gave them a year to do so.

Zwibel said she was not surprised the provincial government would, unlike Ottawa, seek to overturn the court’s ruling. “I could see politicians being concerned about being seen as being soft on crime or not taking sexual offences seriously,” she said.

“I think that’s obviously not what’s really going on when you look at what’s happening in this case. But I guess, given the current government, I’m not shocked that they’re not willing to let this one go.”

Losing it all, some advice

Mr. G said it took him five years to get the lawyers he needed to scrub his name from the registries. He said he is pleased for their win as well and hopes the Supreme Court will uphold it.

“For the first time in 16 years, I felt that maybe I could now move on and not have to remember the worst events in my life every time I see a police car or officer in the street,” Mr. G said of the decision.

Mr. G said he is remorseful for his actions while he was ill, but is prepared for those who might doubt his account. “It’s OK,” he said, that period cost him everything, “my first wife, custody of my children, my home, my job, my car, my friends, my church, the organizations I volunteered with — everything.”

Mr. G said he is constantly looking for signs of his illness to make sure he gets help in time and urges anyone who suspects they have bipolar disorder to research the signs and symptoms. “Walk into a hospital and tell them what’s going on,” he said. “Perhaps you can save yourself.”

If you require help with mental illness, there is help out there. The Government of Canada provides a list of resources on its website.

Jim Rankin is a reporter based in Toronto. Follow him on Twitter: @Jleerankin





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