R v. Conway (2010): The SCC Clarifies the Relationship between Charter Remedies and Administrative Tribunals
Last week the SCC released its decision in R. v. Conway, 2010 SCC 22. At issue was whether or not the Ontario Review Board (“ORB”) has the authority to grant remedies under s. 24(1) of the Charter. As noted by the SCC, the “wider issue [was] the relationship between the Charter, its remedial provisions and administrative tribunals generally.” The scope of the relationship was measured with a new test (developed in the present case) for determining if an administrative tribunal is a “court of competent jurisdiction” as stated in Charter s. 24(1):
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.
This decision is notable for having presented a consolidation of jurisprudence regarding the relationship between the Charter and administrative tribunals and for the resulting formulation of the “Conway” test.
Background and Facts
In 1983, Mr. Paul Conway was charged with sexual assault with a weapon for repeatedly raping his aunt at knifepoint. He was found not guilty by reason of insanity at trial and has since spent his years in various mental health facilities throughout the province of Ontario. Each year his case has been reviewed before the Ontario Review Board.
In 2006, Mr. Conway claimed breaches of his Charter rights, including ss. 2(b), 2(d), 7, 8, 9, 12 and 15(1), and that he was entitled to an absolute discharge under s. 24(1). In part, he claimed that his Charter rights were violated as a result of poor living conditions, improper treatment, environmental pollution, and “threats of the use of chemical and mechanical restraints.” The Ontario Review Board ruled that it did not have the jurisdiction to consider the Charter claims. The ORB decision was upheld by the Ontario Court of Appeal in R. v. Conway, 2008 ONCA 326. For the purposes of this post, I will comment on the claim to an absolute discharge under s. 24(1) of the Charter.
The Court Conducts a Review of Related Jurisprudence
The SCC unanimously ruled that it was not within the jurisdiction of the ORB to grant an absolute discharge under s. 24(1). Their reasoning involved a review of the evolution of jurisprudence concerning the relationship between the Charter and administrative tribunals, presented as “three distinct constitutional streams“, including the case of Mills v. The Queen,  1 S.C.R. 863 and resulting jurisprudence, Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038 and related cases, and the Cuddy Chicks Trilogy.
In Mills, the SCC enunciated a test for determining if it was within the jurisdiction of an administrative tribunal to provide a remedy under the Charter. From that decision, a court was one of “competent jurisdiction” under the Charter if the court “from which relief is sought has jurisdiction over the parties, the subject matter and the remedy sought.” In the later case of Weber v. Ontario Hydro,  2 S.C.R. 929, the SCC specifically broadened the scope of the term “court” in s. 24(1) to incorporate administrative tribunals. According to the SCC, “applying the Mills test, is, first and foremost, a matter of discerning legislative intent.”
In Slaight, the SCC ruled that “any exercise of statutory discretion must comply with the Charter and its values.” The primary issue was whether or not an adjudicator functioning pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2, was authorized to order an employer to furnish a reference letter for a former employee, its terms specified by the adjudicator. The employer asserted that this was a violation of the right to freedom of expression under Charter s. 2(b). The majority ruled that the violation occurred but was justified under s. 1.
In the Cuddy Chicks Trilogy the courts considered if it was within the jurisdiction of an administrative tribunal to determine the constitutionality of a statutory provision it operated under. The trilogy included the following cases: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board),  2 S.C.R. 5, Douglas/kwantlen faculty assn. v. Douglas college,  3 S.C.R. 570, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission),  2 S.C.R. 22.
In Cuddy Chicks the SCC held that it was within the jurisdiction of the Ontario Labour Relations Board to rule on the constitutionality of the exclusion of agricultural workers from the scope of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A. In Tétreault-Gadoury, the SCC ruled that the Employment and Immigration Commission possessed the authority to decide the constitutionality of a provision in the Unemployment Insurance Act. Finally, Douglas College involved a challenge, under Charter s. 15(1), to the mandatory retirement provisions in a collective agreement. The SCC ruled that it was within the jurisdiction of the labour arbitrator to rule on the constitutionality of a mandatory retirement provision.
In the present case, the “three distinct constitutional streams” referenced above provided the SCC with the framework from which to create a novel test to be used to determine if an administrative tribunal has the jurisdiction to grant Charter remedies.
The Conway Test
According to the SCC, the issue was not whether an administrative tribunal has the jurisdiction to grant a specific Charter remedy but whether it is authorized to grant Charter remedies generally. Furthermore:
[t]he 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… 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… 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 particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function
To clarify, the resulting test can be stated as follows:
- Is the administrative tribunal a court of competent jurisdiction? Yes, if it is both “authorized to decide questions of law” and has not been excluded from Charter jurisdiction by statute.
- Does the administrative tribunal have the statutory authority to grant the particular remedy at issue? Yes, “if the scope and nature of the Board’s statutory mandate and functions” provide the authority to grant a particular remedy. This step involves a determination of legislative intent including delineating the authority provided under the relevant statutory framework (mandate, structure and function).
The Application of the Conway Test in the Present Case
Is the ORB a court of competent jurisdiction?
Is it “authorized to decide questions of law”? Yes, pursuant to Part XX.1, ss. 672.72(1), 672.78(1) & 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 (“CC”).
Has it been excluded from Charter jurisdiction by statute? No.
Does the administrative tribunal in question have the statutory authority to grant the particular remedy at issue?
What is “the scope and nature of the Board’s statutory mandate and functions”? In addition to a review of relevant jurisprudence, per s. 672.54 of the CC the SCC ruled that a review board cannot grant an absolute discharge if the patient is found to be dangerous to the public. According to the SCC:
A finding that the Board is entitled to grant Mr. Conway an absolute discharge despite its conclusion that he is a significant threat to public safety, or to direct CAMH to provide him with a particular treatment, would be a clear contradiction of Parliament’s intent. Given the statutory scheme and the constitutional considerations, the Board cannot grant these remedies to Mr. Conway.
As noted above, the SCC ruled that pursuant to s. 24(1) the ORB is a “court of competent jurisdiction” but that an absolute discharge was not a remedy that could be granted by the ORB under the particular circumstances. In doing this, the SCC formulated a common sense approach to determining if an administrative tribunal has the authority to grant Charter remedies. Ultimately, the Conway decision affirms the application of the Charter to administrative tribunals but limits the scope of available remedies under s. 24(1) to those that have been specifically granted by the legislature.