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,