Name of Case: R. v. Conway

Date of Decision: June 11, 2010

Supreme Court Panel: Chief Justice Beverley McLachlin, Justices Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Rosalie Abella, Louise Charron, Marshall Rothstein and Thomas Cromwell

Judgment under Appeal: Judgment of the Ontario Court of Appeal dated April 29, 2008

Facts: In 1984, Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon. He was detained in mental health facilities and diagnosed with several mental disorders. At an annual review hearing before the Ontario Review Board in 2006, Conway alleged that the mental health centre where he was being detained had breached his rights under the Canadian Charter of Rights and Freedoms. Among other remedies, he sought an absolute discharge under s.24(1) of the Charter.

Case History: The Review Board unanimously concluded that it had no jurisdiction to consider Conway's Charter claims. The Board also rejected Conway's non-constitutional grounds for seeking a discharge, finding that he was a threat to public safety and therefore an unsuitable candidate for an absolute discharge under the relevant provisions of the Criminal Code.

The Ontario Court of Appeal allowed Conway's appeal on the non-constitutional issues, holding that the Board's failure to invoke its order-making power to deal with the treatment impasse affecting Conway warranted a new hearing to consider which conditions should be imposed to break the impasse. On the constitutional question, a majority of the Court upheld the Board's conclusion that it was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s.24(1) of the Charter.

Issue(s): (i) What is the remedial jurisdiction of the Ontario Review Board under s.24(1) of the Charter? (ii) More generally, what is the relationship between the Charter, its remedial provisions and administrative tribunals?

Supreme Court's Decision (9-0): The appeal was dismissed. Regulatory tribunals that are empowered to decide questions of law have the same jurisdiction as the courts to apply the Charter and may order remedies they deem appropriate as long as they are not excluded by the tribunal's governing legislation. In this case, while the Ontario Review Board was a "court of competent jurisdiction" for the purpose of granting remedies pursuant to s.24(1) of the Charter, the Board's statutory authority did not permit it to grant a Charter-based remedy of absolute discharge.

Reasons: Writing for a nine-member Court, Justice Rosalie Abella began her analysis of s.24(1) Charter jurisprudence by observing that "[w]e do not have one Charter for the courts and another for administrative tribunals." "This truism," she explained, "is reflected in this Court's recognition that the principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. It is also reflected in the jurisprudence flowing from Mills and the Cuddy Chicks trilogy according to which, with rare exceptions, administrative tribunals with the authority to apply the law have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions."

"In light of this evolution," Abella noted, "it seems … no longer helpful to limit the inquiry to whether a court or tribunal is a court of competent jurisdiction only for the purposes of a particular remedy. The question instead should be institutional: does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law. If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate."

"This approach," Abella argued, "has the benefit of attributing Charter jurisdiction to the tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether it is a court of competent jurisdiction."

Following the "jurisprudential evolution," Abella wrote, "leads to … two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions." Accordingly, in Abella's view, it is "somewhat unhelpful … to subject every such tribunal from which a Charter remedy is sought to an inquiry asking whether it is 'competent' to grant a particular remedy within the meaning of s.24(1)..." Further, "[o]ver two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals.... The denial of early access to remedies is a denial of an appropriate and just remedy.... And a scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal's specialized statutory jurisdiction."

Thus, "[i]f, as in the Cuddy Chicks trilogy, expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s.52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s.24(1) of the Charter."

In summary, Abella held that "when a remedy is sought from an administrative tribunal under s.24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal's jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter – and Charter remedies – when resolving the matters properly before it. Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function."

Lancaster Reference: For analysis of the Supreme Court of Canada's decision, see Lancaster's Headlines, posted June 29, 2010.

Full text of the decision: Read the full text of the Supreme Court of Canada's decision in R. v. Conway.