R. v. Conway

R. v. Conway
Collection
Supreme Court Judgments
Date
2010-06-11
Neutral citation
2010 SCC 22
Report
[2010] 1 SCR 765
Case number
32662
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Administrative law
Constitutional law
Criminal law
Notes
SCC Case Information: 32662
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765
Date: 20100611
Docket: 32662
Between:
Paul Conway
Appellant
and
Her Majesty The Queen and Person in charge of the
Centre for Addiction and Mental Health
Respondents
‑ and ‑
Attorney General of Canada, Ontario Review Board,
Mental Health Legal Committee and Mental Health Legal
Advocacy Coalition, British Columbia Review Board,
Criminal Lawyers’ Association and David Asper Centre for
Constitutional Rights, and Community Legal Assistance Society
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 104)
Abella J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)
______________________________
R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765
Paul Conway Appellant
v.
Her Majesty The Queen and Person in charge of the
Centre for Addiction and Mental Health Respondents
and
Attorney General of Canada, Ontario Review Board,
Mental Health Legal Committee and Mental Health Legal
Advocacy Coalition, British Columbia Review Board,
Criminal Lawyers’ Association and David Asper Centre for
Constitutional Rights, and Community Legal Assistance Society Interveners
Indexed as: R. v. Conway
2010 SCC 22
File No.: 32662.
2009: October 22; 2010: June 11.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Remedies — Accused not criminally responsible by reason of mental disorder detained in mental health facility — Accused alleging violations of his constitutional rights and seeking absolute discharge as remedy under s. 24(1) of Canadian Charter of Rights and Freedoms — Accused also seeking as remedy order directing mental health facility to provide him with particular treatment — Whether Review Board has jurisdiction to grant remedies under s. 24(1) of Charter — If so, whether accused entitled to remedies sought — Criminal Code, R.S.C. 1985, c. C‑46, ss. 672.54 , 672.55 .
Constitutional law — Charter of Rights — Remedies — Court of competent jurisdiction — Remedial jurisdiction of administrative tribunals under s. 24(1) of Canadian Charter of Rights and Freedoms — New approach.
Criminal law — Mental disorder — Review Board — Remedial jurisdiction under Canadian Charter of Rights and Freedoms — Accused not criminally responsible by reason of mental disorder detained in mental health facility — Accused alleging violations of his constitutional rights and seeking absolute discharge as remedy under s. 24(1) of Canadian Charter of Rights and Freedoms at his disposition hearing before Review Board — Board concluding accused was a threat to public safety and not entitled to absolute discharge under Criminal Code — Whether Review Board has jurisdiction to grant absolute discharge as remedy under s. 24(1) of Charter — If so, whether accused entitled to remedy sought — Criminal Code, R.S.C. 1985, c. C‑46, s. 672.54 .
Administrative law — Boards and tribunals — Jurisdiction — Remedial jurisdiction of administrative tribunals under s. 24(1) of Canadian Charter of Rights and Freedoms — New approach.
In 1984, C was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Since the verdict, he has been detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review hearing before the Ontario Review Board in 2006, C alleged that the mental health centre where he was being detained had breached his rights under the Canadian Charter of Rights and Freedoms . He sought an absolute discharge as a remedy under s. 24(1) of the Charter . The Board unanimously concluded that C was a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under s. 672.54 (a) of the Criminal Code , which provides that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public”. The Board therefore ordered that C remain in the mental health centre. The Board further concluded that it had no jurisdiction to consider C’s Charter claims. A majority in the Court of Appeal 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 . However, the Court of Appeal unanimously concluded that it was unreasonable for the Board not to address the treatment impasse plaguing C’s detention. This issue was remitted back to the Board.
Before this Court, the issue is whether the Ontario Review Board has jurisdiction to grant remedies under s. 24(1) of the Charter . C has requested, in addition to an absolute discharge, remedies dealing with his conditions of detention: an order directing the mental health centre to provide him with access to psychotherapy and an order prohibiting the centre from housing him near a construction site.
Held: The appeal should be dismissed.
When the Charter was proclaimed, its relationship with administrative tribunals was a blank slate. However, various dimensions of the relationship quickly found their way to this Court. The first wave of relevant cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R. 863. The Mills cases established that a court or administrative tribunal was a “court of competent jurisdiction” under s. 24(1) of the Charter if it had jurisdiction over the person, the subject matter, and the remedy sought. The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. The Slaight cases established that any exercise of statutory discretion is subject to the Charter and its values. The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The cases flowing from this trilogy, which deal with s. 52(1) of the Constitution Act, 1982 , established that specialized tribunals with both the expertise and the authority to decide questions of law are in the best position to hear and decide the constitutionality of their statutory provisions.
This evolution of the case law over the last 25 years has cemented the direct relationship between the Charter , its remedial provisions and administrative tribunals. It confirms that we do not have one Charter for the courts and another for administrative tribunals and that, 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. The evolution also confirms that expert tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.
Moreover, the jurisprudential evolution affirms the practical advantages and the 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. Any scheme favouring bifurcation is, in fact, 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.
A merger of the three distinct constitutional streams flowing from this Court’s administrative law jurisprudence calls for a new approach that consolidates this Court’s gradual expansion of the scope of the Charter and its relationship with administrative tribunals. When a Charter remedy is sought from an administrative tribunal, the initial inquiry should be whether the tribunal can grant Charter remedies generally. The answer to this question flows from whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal’s authority, 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. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter . This approach has the benefit of attributing Charter jurisdiction to a tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether the tribunal is a court of competent jurisdiction.
Once the initial inquiry has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent, namely, 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 include the tribunal’s statutory mandate and function.
In this case, C seeks certain Charter remedies from the Board. The first inquiry, therefore, is whether the Board is a court of competent jurisdiction under s. 24(1) . The answer to this question depends on whether the Board is authorized to decide questions of law. The Board is a quasi‑judicial body with significant authority over a vulnerable population. It operates under Part XX.1 of the Criminal Code as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of NCR patients: accused who have been found not criminally responsible by reason of mental disorder. Part XX.1 of the Criminal Code provides that any party to a review board hearing may appeal the board’s disposition on a question of law, fact or mixed fact and law. The Code also authorizes appellate courts to overturn a review board’s disposition if it was based on a wrong decision on a question of law. This statutory language is indicative of the Board’s authority to decide questions of law. Given this conclusion, and since Parliament has not excluded the Charter from the Board’s mandate, it follows that the Board is a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter .
The next question is whether the remedies sought are the kinds of remedies which would fit within the Board’s statutory scheme. This requires consideration of the scope and nature of the Board’s statutory mandate and functions. The review board regime is intended to reconcile the “twin goals” of protecting the public from dangerous offenders and treating NCR patients fairly and appropriately. Based on the Board’s duty to protect public safety, its statutory authority to grant absolute discharges only to non‑dangerous NCR patients, and its mandate to assess and treat NCR patients with a view to reintegration rather than recidivism, it is clear that Parliament intended that dangerous NCR patients have no access to absolute discharges. C cannot, therefore, obtain an absolute discharge from the Board. The same is true of C’s request for a treatment order. Allowing the Board to prescribe or impose treatment is expressly prohibited by s. 672.55 of the Criminal Code . Finally, neither the validity of C’s complaint about the location of his room nor, obviously, the propriety of his request for an order prohibiting the mental health centre from housing him near a construction site, have been considered by the Board. It may well be that the substance of C’s complaint can be fully addressed within the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If so, resort to s. 24(1) of the Charter may not add to the Board’s capacity to either address the substance of C’s complaint or provide appropriate redress.
Cases Cited
Considered: Mills v. The Queen, [1986] 1 S.C.R. 863; Carter v. The Queen, [1986] 1 S.C.R. 981; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326; referred to: Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Smith, [1989] 2 S.C.R. 1120; R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Menard, 2008 BCCA 521, 240 C.C.C. (3d) 1; British Columbia (Director of Child, Family & Community Service) v. L. (T.), 2009 BCPC 293, 73 R.F.L. (6th) 455, aff’d 2010 BCSC 105 (CanLII); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Multani v. Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Société des Acadiens et Acadiennes du Nouveau‑Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188; Roncarelli v. Duplessis, [1959] S.C.R. 121; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v. Swain, [1991] 1 S.C.R. 933; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2 (b), (d), 7 , 8 , 9 , 12 , 15(1) , 24 .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C. 1985, c. C‑46 , Part XX.1, ss. 672.4(1) , 672.38(1) , 672.39 , 672.54 , 672.55 , 672.72(1) , 672.78(1) , 672.81(1) , 672.83(1) .
Authors Cited
Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Justice and the Solicitor General, No. 7, 3rd Sess., 34th Parl., October 9, 1991.
Latimer, Jeff, and Austin Lawrence. Research Report: The Review Board Systems in Canada: Overview of Results from the Mentally Disordered Accused Data Collection Study. Ottawa: Department of Justice Canada, Research and Statistics, January 2006.
Lokan, Andrew K., and Christopher M. Dassios. Constitutional Litigation in Canada. Toronto: Thomson/Carswell, 2006.
APPEAL from a judgment of the Ontario Court of Appeal (Simmons, Armstrong and Lang JJ.A.), 2008 ONCA 326, 90 O.R. (3d) 335, 293 D.L.R. (4th) 729, 235 O.A.C. 341, 231 C.C.C. (3d) 429, 169 C.R.R. (2d) 314, [2008] O.J. No. 1588 (QL), 2008 CarswellOnt 2352, allowing in part an appeal from a decision of the Ontario Review Board. Appeal dismissed.
Marlys A. Edwardh, Delmar Doucette, Jessica Orkin and Michael Davies, for the appellant.
Hart M. Schwartz and Amanda Rubaszek, for the respondent Her Majesty the Queen.
Janice E. Blackburn and Ioana Bala, for the respondent the Person in charge of the Centre for Addiction and Mental Health.
Simon Fothergill, for the intervener the Attorney General of Canada.
Stephen J. Moreau and Elichai Shaffir, for the intervener the Ontario Review Board.
Paul Burstein and Anita Szigeti, for the interveners the Mental Health Legal Committee and the Mental Health Legal Advocacy Coalition.
Joseph J. Arvay, Q.C., Mark G. Underhill and Alison Latimer, for the intervener the British Columbia Review Board.
Cheryl Milne, for the interveners the Criminal Lawyers’ Association and the David Asper Centre for Constitutional Rights.
David W. Mossop, Q.C., and Diane Nielsen, for the intervener the Community Legal Assistance Society.
The judgment of the Court was delivered by
[1] Abella J. — The specific issue in this appeal is the remedial jurisdiction of the Ontario Review Board under s. 24(1) of the Canadian Charter of Rights and Freedoms . The wider issue is the relationship between the Charter , its remedial provisions and administrative tribunals generally.
[2] There are two provisions in the Charter dealing with remedies: s. 24(1) and s. 24(2) . Section 24(1) states that anyone whose Charter rights or freedoms have been infringed or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute. A constitutional remedy is also available under s. 52(1) of the Constitution Act, 1982 , which states that the Constitution is the supreme law of Canada, and that any law inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect.
[3] When the Charter was proclaimed in 1982, its relationship with administrative tribunals was a tabula rasa. It was not long, however, before various dimensions of the relationship found their way to this Court.
[4] The first relevant wave of cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R. 863. The philosophical legacy of Mills was in its conclusion that for the purposes of s. 24(1) of the Charter , a “court of competent jurisdiction” was a “court” with jurisdiction over the person, the subject matter, and the remedy sought. For the next 25 years, this three-part test served as the grid for determining whether a court or administrative tribunal was a “court of competent jurisdiction” under s. 24(1) of the Charter (Carter v. The Queen, [1986] 1 S.C.R. 981; Argentina v. Mellino, [1987] 1 S.C.R. 536; United States v. Allard, [1987] 1 S.C.R. 564; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Smith, [1989] 2 S.C.R. 1120; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 (“Dunedin”); R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623; R. v. Menard, 2008 BCCA 521, 240 C.C.C. (3d) 1; British Columbia (Director of Child, Family & Community Service) v. L. (T.), 2009 BCPC 293, 73 R.F.L. (6th) 455, aff’d 2010 BCSC 105 (CanLII)).
[5] The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. Although Slaight did not — and does not — offer any direct guidance on what constitutes a “court of competent jurisdiction”, its legacy was in its conclusion that any exercise of statutory discretion is subject to the Charter and its values (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 875; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 53-56; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 38-40; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, at para. 22; Société des Acadiens et Acadiennes du Nouveau‑Brunswick Inc. v. Canada, 2008 SCC 15, [2008] 1 S.C.R. 383, at paras. 20-24).
[6] The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The legacy of these cases — the Cuddy Chicks trilogy — is in their conclusion that specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates (Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585; Quebec (Attorney General) v. Quebec (Human Rights Tribunal), 2004 SCC 40, [2004] 2 S.C.R. 223; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257).
[7] The impact of these three jurisprudential waves has been to confine constitutional issues for administrative tribunals to three discrete universes. It seems to me that after 25 years of parallel evolution, it is time to consider whether the universes can appropriately be merged.
Background
[8] Paul Conway is 56 years old. As a child, he was physically and sexually abused by close relatives. During his twenties, Mr. Conway was twice convicted of assault.
[9] In September 1983, at the age of 29, Mr. Conway threatened his aunt at knife point and forced her to have sexual intercourse with him repeatedly over the course of a few hours. On February 27, 1984, Mr. Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon.
[10] Since the verdict, Mr. Conway has been detained in mental health facilities across Ontario, primarily the Penetanguishene Mental Health Centre’s maximum security unit. He has been diagnosed with an unspecified psychotic disorder, a mixed personality disorder with paranoid, borderline and narcissistic features, potential post traumatic stress disorder and potential paraphilia.
[11] In 2005, following Mr. Conway’s mandatory annual review hearing before the Ontario Review Board, the Board transferred Mr. Conway from Penetanguishene to Toronto’s Centre for Addiction and Mental Health (“CAMH”), a medium security facility. The Board observed that although Mr. Conway was “unconvinced that he suffers from a mental illness” and was “uncured”, his treatment required that he have hope of eventually being integrated into the community.
[12] Prior to his annual review hearing in 2006, Mr. Conway sent a Notice of Constitutional Question to the Board, CAMH, and the Attorneys General of Ontario and Canada, alleging breaches of ss. 2 (b), 2 (d), 7 , 8 , 9 , 12 and 15(1) of the Charter . He listed the following grounds as the basis of the claim that his constitutional rights had been violated and that he was therefore entitled to an absolute discharge under s. 24(1) :
Mr. Conway states that there is little regard for the living conditions under which he is detained and that these factors have a negative impact on his mental and physical health. These conditions include:
a. Construction noise, fumes and dust associated with the renovation of the unit directly below him which affect his peace, tranquillity and convalescence;
b. Failure to respect his rights, individuality, and expressions of same;
c. Interruptions by staff of his telephone calls and unnecessary and improper implementation of call restrictions including when he is speaking with legal counsel;
d. Unfair treatment by staff which manifests in differential treatment towards him compared with other NCR accused individuals detained on the unit; and
e. Failure to provide for his needs and advocacy for his expressed needs;
. . .
Mr. Conway is currently incarcerated and is subject to infringements on his liberty, safety, dignity and security of his person without due process of the law, including:
a) environmental pollution;
b) noise pollution;
c) arbitrary actions by staff;
d) threats of attack and attacks by inpatients;
e) hostility by staff against him;
f) threats of the use of chemical and mechanical restraints;
g) failure to provide emotional counselling for the abuse suffered by Mr. Conway as a child (including emotional, physical, sexual and domestic abuse) which is the real source of Mr. Conway’s mental health problems and emotional distress;
h) failure to provide an environment which allows him to feel safe on a daily basis;
i) failure to provide an environment where the Rule of Law prevails;
j) failure to provide an environment where Mr. Conway is afforded procedural fairness in respect of any restriction of his liberties;
k) failure to provide an environment which is free of racism;
l) failure to provide [an] environment which is cross-culturally sensitive; and
m) such other and further infringements and violations as counsel may advise and the Board may permit;
These violations on Mr. Conway’s rights have affected Mr. Conway such that he no longer can benefit therapeutically from the environment.
[13] After an eight-day hearing, the five-member panel of the Ontario Review Board unanimously concluded that Mr. Conway was “an egocentric, impulsive bully with a poor to absent ability to control his own behaviour”, had continued paranoid and delusional ideation, and had a persistent habit of threatening and intimidating others, high actuarial scores for violent recidivism and an untreated clinical condition.
[14] He was consequently found to be a threat to public safety, who would, if released, quickly return to police and hospital custody. This made him an unsuitable candidate for an absolute discharge under the statute, which states that an absolute discharge is unavailable to any patient who is a “significant threat to the safety of the public” (Criminal Code, R.S.C. 1985, c. C-46, s. 672.54 ). Accordingly, Mr. Conway was ordered to remain at CAMH. The Board suggested, but did not formally order, that CAMH establish a “renewed treating team” for Mr. Conway, enrol him in anger management and sexual assault prevention programs, and investigate whether he had sustained brain damage in a car accident more than 30 years ago.
[15] As for Mr. Conway’s application for a remedy under s. 24(1) of the Charter , the Board concluded that it had no Charter jurisdiction in light of its statutory structure and function, its own past rulings, and those of other Canadian review boards denying s. 24(1) jurisdiction. It therefore had no jurisdiction to consider Mr. Conway’s Charter claims.
[16] Mr. Conway appealed to the Ontario Court of Appeal, which unanimously found that an absolute discharge was not an available remedy for Mr. Conway under s. 24(1) (2008 ONCA 326, 90 O.R. (3d) 335). Armstrong J.A. for the majority concluded that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a remedy to a patient who, like Mr. Conway, was a significant threat to the public, would frustrate Parliamentary intent. The Board was therefore not a court of competent jurisdiction pursuant to the test set out in Mills since it lacked jurisdiction over the particular remedy sought. Lang J.A. agreed that an absolute discharge was unavailable to Mr. Conway, but she was of the view that the Board was competent to make other orders that would be appropriate remedies for a breach of a patient’s Charter rights.
[17] Notably, the Court of Appeal also unanimously concluded that it was unreasonable for the Board not to make a formal order setting out conditions addressing the treatment impasse plaguing Mr. Conway’s detention. This issue was remitted back to the Board.
[18] This Court, in order to decide whether Mr. Conway is entitled to the Charter remedies he is seeking, must first determine whether the Ontario Review Board is a court of competent jurisdiction which can grant Charter remedies under s. 24(1) . In accordance with the new approach developed in these reasons, I am of the view that it is. On the other hand, I am not persuaded that Mr. Conway is entitled to the particular Charter remedies he seeks and would therefore dismiss the appeal.
Analysis
[19] Section 24(1) states:
Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[20] We do not have one Charter for the courts and another for administrative tribunals (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, per McLachlin J. (in dissent), at para. 70; Dunedin; Douglas College; Martin). This truism 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.
[21] The jurisprudential evolution has resulted in this Court’s acceptance not only of the proposition that expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction, but also that in exercising their statutory discretion, they must comply with the Charter .
[22] All of these developments serve to cement the direct relationship between the Charter , its remedial provisions and administrative tribunals. In light of this evolution, it seems to me to be 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 (Cuddy Chicks trilogy; Martin). A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction. The tribunal must then decide, given this jurisdiction, whether it can grant the particular remedy sought based on its statutory mandate. The answer to this question will depend on legislative intent, as discerned from the tribunal’s statutory mandate (the Mills cases).
[23] This approach 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. It is also an approach which emerges from a review of the three distinct constitutional streams flowing from this Court’s jurisprudence. As the following review shows, this Court has gradually expanded the approach to the scope of the Charter and its relationship with administrative tribunals. These reasons are an attempt to consolidate the results of that expansion.
The Mills Cases
[24] In Mills, it was decided that relief is available under s. 24(1) of the Charter if the “court” from which relief is sought has jurisdiction over the parties, the subject matter and the remedy sought. Since 1986, the Mills test has been consistently applied to determine whether courts and tribunals acting under specific statutory schemes are courts of competent jurisdiction to grant particular remedies under s. 24(1) .
[25] The early cases considered the remedial jurisdiction of statutory and superior courts. In Mills and Carter, this Court held that a provincial court judge sitting as a preliminary inquiry court was not a court of competent jurisdiction for the purpose of ordering a stay of proceedings for an alleged s. 11(b) violation. The following year, this Court concluded that extradition judges had the same institutional features as preliminary inquiry judges, and could therefore not order a stay in the event of a Charter breach (Mellino; Allard). Further, in Mellino, the Court observed that since extradition proceedings were reviewable by superior courts by way of habeas corpus, those superior courts were the courts of competent jurisdiction to grant a stay under s. 24(1) , not the extradition judge.
[26] In 1988, in Gamble, the Court held that a superior court in the province where an individual is in custody is a court of competent jurisdiction to hear an application for habeas corpus, stating:
Where the courts of Ontario have jurisdiction over the subject matter and the person, it seems to me that they may, under the broad provisions of s. 24(1) of the Charter , grant such relief as it is within their jurisdiction to grant and as they consider appropriate and just in the circumstances. [p. 631]
[27] In 1995, in Weber, the Court expanded the scope of the Mills inquiry to cover administrative tribunals. The issue was whether a labour arbitrator appointed under the Labour Relations Act, R.S.O. 1990, c. L.2, was a court of competent jurisdiction for the purpose of granting damages and a declaration under s. 24(1) in relation to disputes which in their essential character arose out of the collective agreement between the parties. Weber had sought relief for what he alleged were breaches of ss. 7 and 8 of the Charter committed by his employer, Ontario Hydro, who had gathered surveillance evidence about him during his extended sick leave. The Court had to determine whether Weber was required to raise his Charter claims before a labour arbitrator or before the superior court.
[28] For the majority, McLachlin J. rejected an approach that would bifurcate the proceedings between the arbitrator and the courts. In her view, the “essential character” of Weber’s claim was unfair treatment by the employer. The collective agreement expressly stated that the grievance procedure applied to “[a]ny allegation that an employee has been subjected to unfair treatment”. Weber’s Charter claims were therefore found to be within the arbitrator’s exclusive jurisdiction:
[W]hile the informal processes of such tribunals might not be entirely suited to dealing with constitutional issues, clear advantages to the practice exist. Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way. The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues. A specialized tribunal can quickly sift the facts and compile a record for the reviewing court. And the specialized competence of the tribunal may provide assistance to the reviewing court.
. . .
. . . it is not the name of the tribunal that determines the matter, but its powers. . . . The practical import of fitting Charter remedies into the existing system of tribunals, as McIntyre J. notes [in Mills], is that litigants have “direct” access to Charter remedies in the tribunal charged with deciding their case. [paras. 60 and 65]
[29] Foreshadowing the debate that is before us in this case, Iacobucci J. in dissent, expressed the view that the arbitrator was neither a “court” nor of “competent jurisdiction” for the purpose of granting Charter remedies under s. 24(1) . In his view, Weber was entitled to seek labour remedies from the arbitrator, but not those under the Charter .
[30] The Weber “exclusive jurisdiction model” enunciated by McLachlin J., which directed that an administrative tribunal should decide all matters whose essential character falls within the tribunal’s specialized statutory jurisdiction, is now a well-established principle of administrative law (Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185; Quebec (Human Rights Tribunal); Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146; Okwuobi; Andrew K. Lokan and Christopher M. Dassios, Constitutional Litigation in Canada (2006), at p. 4-15).
[31] The next year, this Court decided Mooring. The issue was whether the National Parole Board was a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter . Sopinka J., writing for the majority, considered only the third step of the Mills test since he found it to be determinative. In his view, it followed from the Parole Board’s structure and function, as well as the language of its enabling statute, that the Board could not exclude evidence under s. 24(2) of the Charter . Pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 , the Board was not bound by the traditional rules of evidence and was obliged to consider all available, relevant information when rendering its decisions. The ability to exclude evidence would have been, in Sopinka J.’s view, inconsistent with the intent and specific provisions of the Parole Board’s statutory scheme. Since the Mills test was ultimately a means of discerning Parliamentary intent, this inconsistency precluded the Board from being a court of competent jurisdiction for the purpose of granting the particular remedy sought. Sopinka J. concluded instead that the Parole Board’s “duty of fairness” obligations offered sufficient protection to those appearing before the Board.
[32] Major J. (McLachlin J. concurring), in a vigorous dissent, criticized the majority’s implicit resurrection of the idea, rejected in Weber, that only courts could be “courts of competent jurisdiction” for the purpose of s. 24(1) . Major J. was of the view that the policy considerations animating the Court’s reasoning under s. 52 in the Cuddy Chicks trilogy applied equally in cases arising under s. 24(1) . He felt that “[o]f primary importance is the ability of the citizen to rely upon and assert Charter rights in a direct manner in the normal procedural context in which the issue arises” (para. 61). As he explained:
There is no reason in principle wh