R. v. Conway , 2010 SCC 22 ; [2010] 1 S.C.R. 765, R. v. Conway, 2010 SCC 22, 2010 SCC 22 (2010)

Docket Number:32662
 
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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...

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