R v Conway, 2010 SCC 22 (11 June 2010)
The Supreme Court of Canada has held that 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. It has further confirmed that 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.
Paul Conway is a 56 year old man who, at the age of 30, was found not guilty of sexual assault with a weapon by reason of insanity. Since that verdict, Mr Conway has been detained in mental health facilities across Ontario and been diagnosed with a number of mental disorders.
At his annual review hearing by the Ontario Review Board in 2006, Mr Conway argued that there had been little regard for his living conditions in detention and this was negatively impacting on his mental and physical health. He further argued that his treatment and conditions of detention infringed his rights to liberty, safety, dignity and security of person under the Canadian Charter of Rights and Freedoms and that these violations resulted in him not being able to benefit therapeutically from the mental facility.
On this basis, Mr Conway sought an absolute discharge under s 24(1) of the Canadian Charter which provides:
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.
Following the review hearing, the Review Board found Mr Conway was still a threat to public safety who, if released, would quickly return to police and hospital custody and was, as such, not a suitable candidate for an absolute discharge.
In ordering Mr Conway to remain in detention, the Review Board did not consider whether any of Mr Conway's Canadian Charter rights had been breached as it did not consider it had jurisdiction to consider those claims.
Mr Conway appealed the Review Board's decision.
The Supreme Court of Canada unanimously held that the Review Board was a court of competent jurisdiction under the Canadian Charter and could grant remedies under s 24(1). According to the Court:
administrative tribunals with the authority to decide questions of law and whose Charter jurisdiction has not been clearly withdrawn have the corresponding authority — and duty — to consider and apply the Constitution, including the Charter, when answering those legal questions.
The Court stated that Canada does not have one Charter for the courts and another for administrative tribunals. Instead, it is recognised there are practical advantages and constitutional bases for allowing Canadians to assert their Canadian Charter rights in the most accessible forum available, without the need for dividing proceedings between superior courts and administrative tribunals. In this regard, the Court stated that:
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
In exercising their statutory discretion, tribunals must both comply with the Canadian Charter and play a primary role in the determination of Canadian Charter issues falling within their specialised jurisdiction.
Accordingly, when a remedy is sought from an administrative tribunal under s 24(1), the first inquiry is whether the tribunal can grant Canadian Charter remedies generally. To do this, it is necessary to begin by determining whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, the tribunal is a court of competent jurisdiction and can consider and apply the Canadian Charter when resolving matters properly before it (unless it is clear that the legislature intended to exclude the Canadian Charter from the tribunal's jurisdiction).
In Mr Conway's case, the Review Board is a quasi-judicial body which is unquestionably authorised to decide questions of law for two reasons: (1) it operates as a specialised statutory tribunal with ongoing supervisory jurisdiction over persons found not criminally responsible; and (2) its decisions may be appealed on questions of law and fact thereby indicating it has power to decide legal questions. Accordingly, the Review Board is a court of competent jurisdiction which can grant Canadian Charter remedies generally.
The second inquiry, once this threshold question has been answered in favour of Canadian Charter jurisdiction, is whether the tribunal can grant the particular remedy sought in light of the relevant statutory scheme. This requires a consideration of legislative intent.
In Mr Conway's case, it would be inconsistent with Parliament's intent if the Review Board was entitled to grant Mr Conway an absolute discharge despite its view he was dangerous to society. This is because the Review Board is obliged to protect public safety and its statutory authority to grant absolute discharges only extends to non-dangerous not criminally responsible patients. Therefore, despite being a court of competent jurisdiction generally, the Board in this case could not grant the remedy sought by Mr Conway.
Relevance to the Victorian Charter
This decision supports the conclusion that administrative tribunals, such as VCAT, have jurisdiction to hear and determine Victorian Charter issues that properly arise in a matter: see also Director of Housing v Sudi  VCAT 328. If this was not the case, there would be anomalous situation where a tribunal responsible for interpreting the law on the issue was unable to deal with the issue in its entirety, which is impractical, inappropriate and inconsistent with the interests of access to, and the administration of, justice.
The decision is at http://www.canlii.org/en/ca/scc/doc/2010/2010scc22/2010scc22.html.
Susanna Kirpichnikov is a lawyer with Lander & Rogers