Friday, June 18, 2010

Administrative Tribunals and the Canadian Charter of Rights

In R. v. Conway, the Supreme Court of Canada set out the test for determining when administrative tribunals can decide issues relating the Canadian Charter of Rights and Freedoms ("Charter") and grant Charter remedies.

In 1984, Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon. Subsequently he was detained in mental health facilities and diagnosed with several mental disorders. Prior to his annual review before the Ontario Review Board, Conway alleged that the mental health centre where he was detained had breached his Charter rights and sought an absolute discharge under s. 24(1) of the Charter. The Board unanimously concluded that Conway 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 Conway remain in the mental heath centre. The Board concluded that it had no jurisdiction to consider Conway’s Charter claims. The Court of Appeal agreed that the Board was not a court of competent jurisdiction for the purpose of granting an absolute discharge under s. 24(1) of the Charter.

The SCC dismissed the appeal from the Court of Appeal and confirmed the principle 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. 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.

The SCC described the following test for determining whether an administrative tribunal can provide a charter remedy. When a Charter remedy is sought from an administrative tribunal, the initial inquiry is whether the tribunal can grant Charter remedies generally. The answer to this question depends on 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 has 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.

Once its determined that the tribunal has Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme; 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 although the SCC held that the Board was a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter it was not capable of granting the remedy requested by the appellant because of the limits on the Board's statutory authority. Resort to s. 24(1) of the Charter could not add to the Board’s capacity to either address the substance of Conway’s complaint or provide appropriate redress.



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