Conway
Continued From Page 3
law—and whose Charter jurisdiction has not been clearly withdrawn by Parliament or the legislatures — are “courts of competent
jurisdiction” to apply the Charter
to matters within the proper exercise of their statutory functions.
The availability of an appeal
from a board’s decision on a question of law is “indicative of the
board’s power to decide legal
questions,” the court elaborated.
Notably, the court also ruled
that whether a particular board
or tribunal is competent, as a gen-
eral matter, to grant remedies
under s. 24(1) of the Charter is
something to be decided once. It
is no longer a matter to be deter-
mined (potentially differently)
each time a different Charter
remedy is sought.
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nal’s] statutory scheme.”
The Supreme Court dismissed
the appeal of Conway, a man
physically and sexually abused as
a child by close relatives who has
been held in secure mental health
facilities since 1984 when he was
found not guilty by reason of
insanity of repeatedly raping his
aunt. The Supreme Court
affirmed that the Ontario Review
Board, which annually reviews
the status of detainees found not
criminally responsible, could not
give Conway, who remains a ser-
ious threat to public safety, the
absolute discharge and treatment
remedies he sought under s. 24(1)
of the Charter. The court said Par-
liament made clear in the Crim-
inal Code that absolute dischar-
ges are not available to dangerous
detainees. The Code expressly
prohibits the board from pre-
scribing or imposing treatment.
Although the board may not
grant those two remedies, which
are barred under its statutory
scheme, the Supreme Court ruled
that the board is generally a “court
of competent jurisdiction” under
s. 24(1) and may therefore grant
Charter remedies that are consistent with its statutory mandate. The Supreme Court rejected
the board’s position that it did not
have general Charter jurisdiction.
“We feel it’s a victory,”
Edwardh said. “It will add a sig-
nificant amount to both the dis-
cretion the board exercises, and
what values inform it. I also
think it will add a great deal in
terms of remedial tools to the
board if they are confronted with
something that can’t be dealt
with in the ordinary dispositions
they make, and that needs addi-
tional jurisdiction, which can be
the Charter jurisdiction.”
By way of example, she cited a
patient-detainee who might
want to participate in certain
religious activities, or read cer-
tain materials that are barred by
hospital authorities.
She added that under the
Conway analytical scheme some
boards, such as the National Parole Board, may be found in future
to have Charter jurisdiction, notwithstanding previous court
decisions to the contrary.
Counsel for the Ontario
Review Board, Stephen Moreau
of Toronto’s Cavalluzzo Hayes,
said the ruling certainly means
that all provincial review boards
have Charter jurisdiction.
He suggested all boards which
do not have express powers to
decide questions of law and
“who may historically have
felt that their
only role was to
apply the law
and not decide
questions of
law” should
He predicted Conway will spur
further litigation up to the
Supreme Court about the breadth
of boards’ Charter powers (for
example, do review boards
ordering conditional discharges
for not-criminally responsible
detainees have the power to order
governments to supply community housing?). Another issue is the
standard of review to be applied
to tribunals’ findings in constitutional cases.
Simon Fothergill, counsel for
the intervener Attorney General
of Canada told The Lawyers
Weekly “it remains to be seen
whether this results in more tri-
bunals being found to be courts
of competent jurisdiction to
grant Charter remedies.”
He added, “while the court has
clearly modified the Mills test,
the branch of the test that has
usually been determinative of
whether an administrative tribu-
nal has jurisdiction to grant
Charter remedies appears to
remain, i.e., whether the tribunal
can grant the particular remedy
sought, given the relevant statu-
tory scheme. In the words of the
court, ‘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 par-
ticular tribunal.’ ”
Fothergill also highlighted the
court’s observation that tribunals
can vindicate claimants’ Charter
rights by exercising their regular
statutory powers and processes
in accord with Charter values,
without turning to their Charter
jurisdiction.
