On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“). Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals.
Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute.
In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy. The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy. The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament.
After reviewing the jurisprudence surrounding the application of s. 24 to administrative tribunals, the Supreme Court of Canada articulated a two-part test to determine whether an administrative tribunal has the jurisdiction to issue a particular s. 24 remedy. The two parts are:
- Does the administrative tribunal has explicit or implicit jurisdiction to decide questions of law? If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, then the tribunal is a court of competent jurisdiction which can consider and apply the Charter – including its remedies – when resolving the matters properly before it.
- Can the tribunal grant the particular remedy sought, given the relevant statutory scheme? In analyzing this, what will 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 factors include the tribunal’s statutory mandate, its structure, and its function.
Applying this test in Conway, the Supreme Court of Canada found that the Board was a quasi-judicial body that was authorized to decide questions of law, and that there was nothing to conclude that Parliament intended to withdraw Charter jurisdiction from the scope of the Board’s mandate. However, the Court also found that the Criminal Code precluded the Board from granting an absolute discharge, and that the Board therefore could not grant one as part of a s. 24 Charter remedy.
The question that arises is to what extend can either the Immigration and Refugee Board or immigration officers issue Charter remedies?
Regarding the Immigration and Refugee Board, section 162 of the Immigration and Refugee Protection Act states that:
Sole and exclusive jurisdiction
162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
As the IRB has jurisdiction to hear questions of law, it meets the first part of the Conway test. Regarding whether the tribunal could grant a particular remedy, this would depends on what type of remedy was being sought, and the relevant circumstances.
Raman v. Canada (Minister of Citizenship and Immigration),  4 F.C. 140, meanwhile, dealt with the issue of whether an immigration officer, had the authority to reopen a prior decision. The Federal Court of Appeal found that it did not. The court noted that:
Counsel for the appellant cites the Kaur case in support of an argument that section 7 of the Charter operates to allow the jurisdiction to reopen this decision. I do not think that Kaur, which deals with the powers of an immigration adjudicator, is applicable to this context. There are three reasons for this. First, immigration adjudicators have wide-ranging powers under the Act, which are not possessed by senior immigration officers, including “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction” that arise in proceedings before them. In contrast, senior immigration officers have no jurisdiction to answer legal or constitutional questions and are expressly deprived by the Act of jurisdiction to reopen a decision to remove a person from Canada. In this case, the appellant seeks to have the senior immigration officer reconsider the decision on the ground that certain legal rights, such as the denial of natural justice, warrant vacating that decision in order to allow the appellant to make a claim for Convention refugee status. This is precisely the kind of legal consideration which is not open to the senior immigration officer. Rehearing and reconsideration by senior immigration officers may only be ordered by courts pursuant to judicial review.
Given this finding, immigration officers appear unable to make s. 24 Charter remedies. However, pursuant to the Federal Court’s decision in Gwala v. Canada (Minister of Citizenship and Immigration),  3 F.C., where a decision of an immigration officer is being judicially reviewed, then the Federal Court may grant Charter remedies. However, while the Federal Court can issue a s. 24 Charter remedy, it cannot issue a ruling that ultimately trumps the Minister’s discretion: i.e. making a determination that should be left to the immigration officer / board: Sing v. Canada (Minister of Citizenship and Immigration), 2006 FC 473. It is for this reason that the general disposition of a judicial review is to send a matter back to a different immigration officer.