A man (“Conway”) who had been found not guilty by reason of insanity on a charge of sexual assault with a weapon was unsuccessful in his attempt to have the Ontario Review Board grant him an absolute discharge as a s.24(1) Charter remedy

Administrative law – Decisions of administrative tribunals – Review Board – Mental health facility – Treatment plans – Review Board authority –  Remedies – Charter relief – Availability – Boards and tribunals – Jurisdiction to grant Charter remedies – Prisons – Inmates not criminally responsible for their crimes – Public safety – Statutory provisions – Criminal Code – Judicial review – Jurisdiction of  tribunal – Charter of Rights and Freedoms

R v. Conway, [2010] S.C.J. No. 22, 2010 SCC 22, Supreme Court of Canada, June 11, 2010, McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

In 1984, Conway was found not guilty by reason of insanity for the charge of sexual assault with a weapon. Thereafter, Conway was detained in various Ontario mental health facilities. He had been diagnosed with an unspecified psychotic disorder, a mixed personality disorder with paranoid, borderline and narcissistic features as well as potential post traumatic stress disorder and potential paraphilia. In 2005, Conway was detained at the Penetanguishene Mental Health Centre’s maximum security unit. He had a mandatory annual review hearing before the Ontario Review Board where they ordered his transfer from Penetanguishene to Toronto’s Centre for Addiction and Mental Health (“CAMH”), a medium security facility.

Prior to his 2006 annual review hearing, Conway sent a Notice of Constitutional Question to the Board, CAMH and the Attorneys General of Ontario and Canada, alleging that various of his Charter rights had been violated. He sought an absolute discharge as a remedy under s.24(1) of the Charter. Conway argued that his living conditions were having a negative impact on his mental and physical health and itemized several failures to respect his rights including interruptions of his telephone calls by staff, construction noise, fumes and dust near his living area, unfair differential treatment by staff, and general failure to provide for his needs.

The Review Board held an eight day hearing in 2006 and unanimously concluded that Conway remained a threat to public safety who would, if released, quickly return to police and hospital custody. He was therefore found to be unsuitable for an absolute discharge under the Criminal Code of Canada which, at s.672.54(a) makes an absolute discharge unavailable to any patient who is a “significant threat to the safety of the public.”

The Board ordered Conway to remain at CAMH and suggested a “renewed treating team” for Conway including enrolment in anger management and sexual assault prevention programs.

The Board concluded that it did not have Charter jurisdiction due to its statutory structure and function, its own past rulings, and those of other Review Boards denying s.24(1) Charter jurisdiction.

Conway appealed to the Ontario Court of Appeal, which held that an absolute discharge was not available as a remedy for Conway under s.24(1). The Ontario Court of Appeal held that an absolute discharge was not available because of the finding that Conway was a significant threat to the public. The Court also held that the Board was not a court of competent jurisdiction pursuant to the tests set out in Mills v. The Queen, [1986] 1 S.C.R. 863. The Court of Appeal held that the Review Board lacked jurisdiction over the particular remedy that was sought. The Court of Appeal also concluded that the Board should have made a formal Order setting out the treatment plan conditions and that issue was remitted back to the Board.

Conway appealed to the Supreme Court of Canada.

The Supreme Court overturned the decision of the Ontario Court of Appeal on the issue of whether the Board was a court of competent jurisdiction under s.24(1). S.24(1) reads “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.”

The Court found that administrative tribunals with the authority to apply the law, generally, have the jurisdiction to apply the Charter to issues arising in the proper exercise of their statutory authority. “We do not have one Charter for the courts and another for administrative tribunals.”

The question was whether the Tribunal had jurisdiction to grant Charter remedies in general, rather than a question relating to a particular remedy. and whether the Tribunal had the power to decide questions of law. In this instance, the Review Board was held to have the authority to decide questions of law. The Board was established under the Criminal Code as a specialized statutory tribunal, charged with ongoing supervisory jurisdiction over the treatment assessment attention and discharge of accused persons who had been found not criminally responsible by reason of mental disorder (“NCR”). The Board was  a court of competent jurisdiction. The Criminal Code contains extensive language leading to a conclusion that the Board has the power to decide legal questions.

Parliament has not withdrawn the Board’s Charter jurisdiction through any legislation, and accordingly the Board is also entitled to decide Charter questions arising in the course of its proceedings.

The Court considered whether the remedy sought by Conway, and in particular the absolute discharge, were among the remedies that Parliament had anticipated would fit within the Review Board’s statutory scheme and held that the Review Board was responsible for reconciling “twin goals” of public protection and treating NCR patients fairly and appropriately. Public protection should be accomplished while minimizing incursions on  patients’ liberty. If the Board, upon reviewing the evidence, decides that a patient is not a significant threat to public safety, it must direct that the patient be discharged absolutely. However, if the patient is determined to be a significant threat to public safety, an absolute discharge is not a statutorily available disposition according to the decision in Wink v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 and s.672.54 of the Criminal Code.

The Board must use its legislation to supervise the treatment and detention of dangerous NCR patients in a way that is compliant with the Charter, and has broad powers to attach creative conditions to discharge and detention orders for those patients.

In this case, it was determined that it would not be appropriate and just in Mr. Conway’s current circumstances for the Board to grant him an absolute discharge and therefore his appeal was dismissed.

The Criminal Code was also found to prohibit any ability by the Board to prescribe or impose treatment; doing so was also inconsistent with the constitutional division of powers. Treatment decisions should be left to the provincial health authorities pursuant to provincial laws governing the provision of medical services.

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