R v. Conway

2010 SCC 22
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The accused was found not guilty by reason of insanity on a charge of sexual assault with a weapon in 1983. He was subsequently detained in numerous mental health facilities. Before his annual review hearing in 2006 was held, the accused alleged that the centre in which he was detained had violated his constitutional rights with respect his living conditions. He requested the Ontario Review Board grant him an absolute discharge under section 24(1) of the Canadian Charter of Rights and Freedom. Section 24(1) provides that anyone whose Charter rights or freedoms have been infringed may apply to a “court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

At his review hearing, the Board concluded that the accused posed a significant threat to public safety. Under section 672.54 of the Criminal Code, the Board cannot grant an absolute discharge to a person who poses such a threat. The Board also concluded that it did not have jurisdiction to consider the accused’s Charter claims. The Ontario Court of Appeal upheld the Board’s decision and found that the Board lacked jurisdiction to grant an absolute discharge under section 24(1) because it would frustrate Parliamentary intent.

The central issue is whether the accused was entitled to be granted an absolute discharge by the Board under section 24(1) of the Charter.

The Court found that the Board was not a court of competent jurisdiction that could grant Charter remedies under section 24(1), meaning that the accused was not entitled to the sought remedy. The Court dismissed the appeal.

The Court found that when a particular Charter remedy is sought from an administrative tribunal, there is a threshold question of whether the tribunal can grant Charter remedies generally. A tribunal can generally grant remedies under the Charter if it has been given authority to decide questions of law and has not been excluded from Charter jurisdiction. The Court found that the Board satisfied both of these requirements. The Board is a quasi-judicial body with ongoing supervisory jurisdiction over the treatment assessment, detention and discharge of accused persons found not criminally responsible by reason of mental disorder.

The Court found that the remaining question was whether or not the tribunal had the statutory authority to grant the particular remedy at issue. This involved looking at whether the legislature intended that the remedy fit within the tribunal’s statutory framework. The Court found that the Board had wide latitude in the exercise of its powers, but was statutorily precluded from granting an absolute discharge to an accused found to pose a significant threat to public safety. The Court found that it would be contrary to Parliamentary intent to find that the Board was entitled to grant an absolute discharge under the Charter if a person posed a threat to public safety.

Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, 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…” (para 82)

The Board’s duty to protect public safety, its statutory authority to grant absolute discharges only to non-dangerous NCR patients, and its mandate to assess and treat NCR patients with a view to reintegration rather than recidivism, all point to Parliament’s intent not to permit NCR patients who are dangerous to have access to absolute discharges as a remedy. These factors are determinative in this case and lead to the conclusion that it would not be appropriate and just in Mr. Conway’s current circumstances for the Board to grant him an absolute discharge.” (para 99)

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