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[[Category:Canadian Charter of Rights and Freedoms (Annotated)]] [[Category:Constitutional Law]] [[Category:Animal Control (POA & ACRB)]] {{Citation: | categories = [Canadian Charter of Rights and Freedoms (Annotated)] | shortlink = https://rvt.link/be }} ==R. v. Conway, 2010 SCC 22 (CanLII), [2010] 1 SCR 765<ref name="Conway"/>== [20] <b><u>We do not have one Charter for the courts and another for administrative tribunals</b></u> (<I>Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854</i><ref name="Cooper"/>, per McLachlin J. (in dissent), at para. 70; Dunedin; Douglas College; Martin). <b><u>This truism is reflected in this Court’s recognition that the principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals.</b></u> It is also reflected in the jurisprudence flowing from Mills and the Cuddy Chicks trilogy according to which, <b><u>with rare exceptions</u>, 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.</b> [21] The jurisprudential evolution has resulted in this Court’s acceptance not only of the proposition that expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction, but also that in exercising their statutory discretion, they must comply with the Charter. [22] All of these developments serve to cement the direct relationship between the Charter, its remedial provisions and administrative tribunals. In light of this evolution, it seems to me to be no longer helpful to limit the inquiry to whether a court or tribunal is a court of competent jurisdiction only for the purposes of a particular remedy. The question instead should be institutional: <b>Does this particular tribunal have the jurisdiction to grant Charter remedies generally?</b> <b><u>The result of this question will flow from whether the tribunal has the power to decide questions of law.</b></u> <b>If it does, <u>and if Charter jurisdiction has not been excluded by statute</u>, 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</b> (Cuddy Chicks trilogy; Martin). <b>A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction.</b> 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 (the Mills cases). [23] This approach has the benefit of attributing Charter jurisdiction to the tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether it is a court of competent jurisdiction. It is also an approach which emerges from a review of the three distinct constitutional streams flowing from this Court’s jurisprudence. As the following review shows, this Court has gradually expanded the approach to the scope of the Charter and its relationship with administrative tribunals. These reasons are an attempt to consolidate the results of that expansion. ... [34] More recently, the Court has had two further opportunities to consider the Mills test. In Dunedin, the issue was whether a provincial court judge with jurisdiction under Ontario’s Provincial Offences Act, R.S.O. 1990, c. P.33, was a court of competent jurisdiction for the purpose of ordering costs against the Crown for failure to comply with the Charter. McLachlin C.J., writing for a unanimous Court, again confirmed that applying the Mills test is, first and foremost, a matter of discerning legislative intent. The question in each case is whether the legislature intended to give the court or tribunal the power to apply the Charter: ::<i>[W]here a legislature confers on a court or tribunal a function that involves the determination of matters where Charter rights may be affected, and furnishes it with processes and powers capable of fairly and justly resolving those incidental Charter issues, then it must be inferred, in the absence of a contrary intention, that the legislature intended to empower the tribunal to apply the Charter. [para. 75]</i> ... [44] In the 1997 case of Eaton, the Ontario Special Education Tribunal, acting pursuant to the Education Act, R.S.O. 1990, c. E.2, had ordered that Emily Eaton, a child with cerebral palsy, be placed in a special classroom for students with disabilities. The Eatons alleged discrimination, arguing that their daughter’s education should take place in the mainstream schools. Lamer C.J. wrote brief reasons to clarify what he had said in Slaight: ::<i>[S]tatutory silences should be read down to not authorize breaches of the Charter, unless this cannot be done because such an authorization arises by necessary implication. I developed this principle in the context of administrative tribunals which operate pursuant to broad grants of statutory powers, and which can potentially violate Charter rights. Whatever section of the Act or of Regulation 305, R.R.O. 1990, grants the authority to the Tribunal to place students like Emily Eaton . . . Slaight Communications would require that any open‑ended language in that provision (if there were any) be interpreted so as to not authorize breaches of the Charter. [para. 3]</i> ... [50] La Forest J., writing for the Court on this issue, concluded that the jurisdiction lay with the arbitrator. Under the Industrial Relations Act, the arbitrator had express authority to “provide a final and conclusive settlement of a dispute”. To fulfill this mandate, arbitrators acting under the Act could interpret and apply any statute that regulated employment. This included the Charter. La Forest J. noted that arbitrators were bound by the same Constitution as the courts. Accordingly, if a collective agreement was illegal or unconstitutional, an arbitrator must decline to apply it just as a court would. [51] La Forest J. rejected the College’s argument that the informal arbitration process was unsuited to litigating a Charter issue, concluding that any disadvantages of allowing administrative tribunals to decide constitutional questions were outweighed by the “clear advantages” of granting them this jurisdiction. In his view, such jurisdiction promotes respect for the Constitution because “[t]he citizen, when appearing before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution” (p. 604). Constitutional issues should be raised at an early stage in the context in which they arise, without the claimant having to first resort to an application in superior court, which is more expensive and time-consuming than the administrative process. In addition, a “specialized competence can be of invaluable assistance in constitutional interpretation” (p. 605). Specialized arbitrators and agencies can sift through the facts and quickly compile a record for the benefit of a reviewing court. In this way, the parties (and the reviewing courts) benefit from the arbitrators’ expertise. This practice also allows for all related aspects of a matter to be dealt with by the most appropriate decision maker. As La Forest J. pointed out, “it would be anomalous if tribunals responsible for interpreting the law on the issue were unable to deal with the issue in its entirety, subject to judicial review” (p. 599). ... [53] In rejecting the employer’s argument that the superior court, not the Labour Board, should deal with the constitutional question, and drawing on his reasons in Douglas College, La Forest J.’s “overarching consideration” was that where administrative bodies like the Labour Board have specialized expertise, that expertise makes them the appropriate forum for assessing Charter compliance: ::<i>It is apparent, then, that an expert tribunal of the calibre of the Board can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. In the present case, the experience of the Board is highly relevant to the Charter challenge to its enabling statute, particularly at the s. 1 stage where policy concerns prevail. At the end of the day, the legal process will be better served where the Board makes an initial determination of the jurisdictional issue arising from a constitutional challenge. In such circumstances, the Board not only has the authority but a duty to ascertain the constitutional validity of s. 2(b) of the Labour Relations Act. [Emphasis added; p. 18.]</i> ... <b>[78] The jurisprudential evolution leads to the following two observations: <u>first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them.</u> And <u>secondly, they must act consistently with the Charter and its values when exercising their statutory functions.</u> It strikes me as somewhat unhelpful, therefore, to subject every such tribunal from which a Charter remedy is sought to an inquiry asking whether it is “competent” to grant a particular remedy within the meaning of s. 24(1).</b> ... [103] Remedies granted to redress Charter wrongs are intended to meaningfully vindicate a claimant’s rights and freedoms (<i>Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55;</i><ref name="Doucet-Boudreau"/> <i>Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 30</i><ref name="Khadr"/>). Yet, it is not the case that effective, vindicatory remedies for harm flowing from unconstitutional conduct are available only through separate and distinct Charter applications (<i>R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 2</i><ref name="Nasogaluak"/>). Charter rights can be effectively vindicated through the exercise of statutory powers and processes (Nasogaluak; Dagenais; Okwuobi). In this case, it may well be that the substance of Mr. Conway’s complaint about where his room is located can be fully addressed within the framework of the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If that is what the Board ultimately concludes to be the case, resort to s. 24(1) of the Charter may not add either to the Board’s capacity to address the substance of the complaint or to provide appropriate redress. [104] I would dismiss the appeal. In accordance with the request of the parties, there will be no order for costs. <ref name="Conway">R. v. Conway, 2010 SCC 22 (CanLII), [2010] 1 SCR 765, <https://canlii.ca/t/2b2ds>, retrieved on 2024-03-21</ref> <ref name="Cooper">Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 SCR 854, <https://canlii.ca/t/1fr4w>, retrieved on 2024-03-21</ref> <ref name="Doucet-Boudreau">Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, <https://canlii.ca/t/4nx4>, retrieved on 2024-03-21</ref> <ref name="Khadr">Canada (Prime Minister) v. Khadr, 2010 SCC 3 (CanLII), [2010] 1 SCR 44, <https://canlii.ca/t/27qn6>, retrieved on 2024-03-21</ref> <ref name="Nasogaluak">R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 SCR 206, <https://canlii.ca/t/2848x>, retrieved on 2024-03-21</ref> ==E.S. v. Joannou, 2017 ONCA 655 (CanLII)<ref name="E.S"/>== [1] This appeal raises the following question: does the Consent and Capacity Board (the “Board”) have the jurisdiction to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms? For the reasons that follow, I have concluded that it does not and that the appeal should be dismissed. ... [21] In response to the appellant’s notice of constitutional question, the Board considered whether it had jurisdiction to grant a remedy for the allegedly unlawful injection under s. 24(1) of the Charter. It held that the conclusions of the Divisional Court in <i>Ontario (A.G.) v. Patient (2005), 2005 CanLII 3982 (ON SCDC), 194 O.A.C. 331 (“Jane Patient”)</i><ref name="Patient"/> regarding s. 52(1) jurisdiction were binding and applicable to s. 24(1) jurisdiction. <b><u>The Board followed Jane Patient in ruling that it did not have the power to decide questions of law and, even if it did, the jurisdiction to decide constitutional questions had been clearly withdrawn.</b></u> [22] The Board went on to find that, even if it had the jurisdiction to grant s. 24(1) remedies, it would not grant the remedy sought by the appellant. In the Board’s view, it would not be appropriate or just to rescind a certificate “for a reason that had no nexus with the statutory criteria for involuntary admission”, and it would be contrary to the mandate of the Board to release a patient who continued to present a risk of harm to herself. ... [43] Section 24(1) of the Charter confers on a court of competent jurisdiction the discretion to grant remedies for Charter violations: ::<i>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.</i> [44] Whether the Board has s. 24(1) jurisdiction is the central issue raised by this appeal. As set out above, the Board held that it did not have jurisdiction to grant Charter remedies under s. 24(1), and therefore did not make a finding as to whether the appellant’s s. 7 rights were infringed. ... [49] As the following discussion illustrates, the Board operates under very strict timelines and has narrowly circumscribed jurisdiction. These features inform the Conway analysis I will undertake later in these reasons. ... [57] The remedial powers of the Board are circumscribed by the various statutes. In each case the Board is to carry out a very focussed inquiry, as prescribed by the statute, and there are clearly defined dispositions available to it. [58] In an application for review of a finding of incapacity with respect to treatment, the Board “may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner”: Health Care Consent Act, s. 32(4). ... [61] Section 70.1(1) of the Health Care Consent Act, added after the Divisional Court’s decision in Jane Patient, states that the Board “shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation.” This provision specifically precludes the jurisdiction to find legislation invalid under s. 52(1) of the Constitution Act, 1982. ... [76] In Conway, the Supreme Court of Canada decided to merge these two separate lines of authority. The logic behind merging the two lines was explained by the court, at para. 80: ::<i>If … expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter.</i> [77] In other words, the court reasoned that if there is s. 52(1) jurisdiction, then s. 24(1) jurisdiction should logically follow unless withdrawn, explicitly or by clear implication. In the present case, because s. 52(1) jurisdiction is precluded by statute, that logical flow has been broken. This, in my view, must be accounted for in applying the Conway test to determine the s. 24(1) jurisdiction of the Board. ... <b><u>[82] For the reasons that follow, I have concluded that the legislature clearly intended that s. 24(1) jurisdiction be removed from the Board.</b></u> [83] <b><u>I reach this conclusion in light of the fact that s. 52(1) jurisdiction was removed</b></u>, but also for several other reasons: the strict timelines under which the Board operates; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board’s decisions; and the fact that, in making its decisions, the Board can and does take Charter rights into account. I will address each of these in turn. ... [84] As explained earlier, the statute sets very strict timelines for a Board hearing to begin, the decision to be rendered and the reasons to be issued. These tight timelines are understandable and, indeed, necessary given the nature of the matters that are decided by the Board. In many cases, the Board is dealing with crisis situations where persons have become a danger to themselves or are in need of immediate treatment they do not consider to be necessary. Barring an emergency, treatment is stayed until the final disposition of the review and appeal process. Clearly, delays are contrary to the objective of the legislation in such cases. ... [86] As explained in <i>Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 87</i><ref name="Starson"/>, a principal aim of the Health Care Consent Act is to facilitate treatment for incapable patients. Delay would frustrate that purpose. ... [94] <b><u>The Board’s function is primarily forward-looking and non-adversarial. Nothing in the relevant statutes suggests that the Board is to review and assess prior misconduct.</b></u> For example, s. 41(1) of the Mental Health Act provides that upon an application the Board is to determine whether or not the conditions for involuntary status “continue to be met at the time of the hearing”. The issue is not, therefore, whether the original determination was correctly made but rather whether the patient still meets the conditions. The process is more inquisitorial than fault- or blame-based. [95] Further, if Charter issues are to be decided by the Board, this will frequently require adding parties who are alleged to have participated in a breach of the applicant’s Charter rights. In the present case, it is the physician, Dr. Joannou, who is alleged to have breached the appellant’s Charter rights. If the appellant had sought relief against the hospital, the Public Guardian and Trustee or even the staff who assisted Dr. Joannou in administering the injection, or if Dr. Joannou had sought to attribute blame based on the conduct of any of these, they would likely also have been parties to the proceeding. Adding any party to the proceeding will delay and complicate what is intended to be an expeditious process. ... [96] Appeals from decisions of the Board are to the Superior Court pursuant to an expedited procedure. This further supports a legislative intention to limit the Board to the functions assigned to it by statute and to exclude s. 24(1) Charter jurisdiction. Significantly, on an appeal from the Board under the Health Care Consent Act or Mental Health Act, the Superior Court can receive new or additional evidence as it considers just: Health Care Consent Act s. 80(9); Mental Health Act s. 48(3). This is somewhat akin to the two-stage process discussed in <i>Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22</i><ref name="Tétreault-Gadoury"/>. <b><u>The appeal structure allows a party who appeals a Board decision to introduce additional evidence on the appeal, with the court’s consent. The issues before the Superior Court could potentially be broadened to include alleged Charter breaches and remedies sought.</b></u> [97] If necessary, it is open to an appellant to combine the appeal with an originating application to the Superior Court seeking Charter remedies. <b><u>This ability to rapidly appeal to the Superior Court and introduce fresh evidence is in contrast to the procedure for appealing decisions of the ORB, which was found to have s. 24(1) jurisdiction in Conway.</b></u> An appeal from the ORB is directly to the Court of Appeal, which is not a court of inherent jurisdiction, and the admission of fresh evidence is circumscribed by s. 672.73 of the Criminal Code. <ref name="E.S">E.S. v. Joannou, 2017 ONCA 655 (CanLII), <https://canlii.ca/t/h5h60>, retrieved on 2024-03-21</ref> <ref name="Patient">Ontario (Attorney General) v. Patient, 2005 CanLII 3982 (ON SCDC), <https://canlii.ca/t/1jtdp>, retrieved on 2024-03-21</ref> <ref name="Starson">Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 SCR 722, <https://canlii.ca/t/1g6p9>, retrieved on 2024-03-21</ref> <ref name="Tétreault-Gadoury">Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 SCR 22, <https://canlii.ca/t/1fsl8>, retrieved on 2024-03-21</ref> ==Johnson v. OSPCA, 2013 CarswellOnt 13013 [ACRB Tribunal Decision]<ref name="Johnson"/>== 40 Since the <b><u>Board has found that it has implied authority to decide questions of law and there is no explicit or implied withdrawal of Charter jurisdiction under the Act</b></u>, the Board concludes that <b><u>it has the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate.</b></u> Thus, <b><u>the Board is a court of competent jurisdiction for purposes of s. 24 of the Charter. With this finding of general Charter jurisdiction, the first branch of the Conway test has been met</b></u> ... 42 The structure of a tribunal relates to the compatibility of the tribunal and its processes with the remedy sought under s. 24 of the Charter. <b>According to McLachlin, C.J., depending on the particular remedy at issue, any or all of the following factors may be salient:</b> <u>whether the proceedings are judicial or quasi-judicial</u>, <u>the role of counsel</u>, <u>the applicability of traditional rules of proof and evidence</u>; <u>whether the court or tribunal can issue a summons</u>, <u>whether evidence is offered under oath</u>; <u>the expertise and training of the decision maker</u>, <u>the workload of the court or tribunal</u>, <u>the time constraints it operates under</u>; and <u>its ability to compile an adequate record for a reviewing court</u>. [Dunedin, para. 45] ... 53 In addition to the specifics of this argument, the Board agrees with the general assertion that it does not have the power to set aside a warrant, based on the common law "rule against collateral attack". [R. v. Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.) paras. 13and 116] <b><u>However, the court in Garofoli provided an alternative basis for questioning the validity of a warrant. As Charron, J. explained in R. v. Lising, [2005] 3 S.C.R. 343 (S.C.C.)</b></u>: ::<i>[T]his Court in Garofoli consolidated these hearings, wiping away much of the complexity created by the earlier litigation by using the overriding constitutional nature of the challenge to the admissibility of the evidence as the relevant framework of analysis. In adopting this approach, <b><u>jurisdictional issues were resolved and any court authorized to entertain a Charter challenge has jurisdiction to conduct a full substantive review of the authorization.</b></u> [Pires, para.7]</i> 54 If it is found by the Board that the evidence obtained under a search warrant is the result of an unreasonable search that violates an animal owner's s. 8 rights under the Charter, the Board would have the discretion to exclude the evidence, if its reception would tend to bring the administration of justice into disrepute under s. 24(2) of the Charter. [Garofoli paras. 15 and 118] ... 60 The three avenues of inquiry in the Grant test are: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on the Charter protected interest, and 3) society's interest in the adjudication of the case on the merits. The Board acknowledges that a s. 24(2) analysis can require a comprehensive and complex assessment in light of all relevant circumstances. 61 Due to the its involvement with the relevant facts and surrounding circumstances, <b><u>the Board is in an advantageous position to apply the factors in the Grant test in the context of the Board's function</b></u>. In addition, since, in exercising its dual-mandate of facilitating relief for an animal in distress and protecting the animal owner from arbitrary OSPCA orders and actions, both aspects of which are rooted in the public interest, <b><u>the Board has gained expertise in the type of balancing of factors required by a s. 24(2) analysis, and therefore the remedy of the exclusion of evidence fits in with the Board's statutory framework</b></u>. ... 130 Since the Board has found that the search warrant is facially valid, supported by reasonable grounds, as required by the Act, and was executed in a reasonable manner, the Board concludes that Appellant's rights under s. 8 of the Charter were not infringed by a search of her residence on May 18, 2012. 131 It is therefore not necessary to consider whether the evidence obtained as a result of the search is admissible under s. 24(2) of the Charter and the Board can proceed to a decision on the merits. <ref name="Johnson">Johnson v. OSPCA, 2013 CarswellOnt 13013, <[[File:Johnson v. OSPCA, 2013 CarswellOnt 13013.pdf]]>, <https://rvt.link/d3>, retrieved 2024-09-20</ref> ==References==

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