R. v. CONWAY - British Columbia Review Board

information that was irrelevant, unreliable or inaccurate. Accordingly, the Board had the jurisdiction
to exclude evidence and it therefore met the third Mills criterion. Major J. expressly disagreed with
Sopinka J.’s conclusion that the doctrine of procedural fairness provided sufficient protection of
constitutional rights in the context of the Board’s proceedings.
[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:
[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]
[35] This approach “promotes direct and early access to Charter remedies in forums
competent to issue such relief” (para. 75). Applying it to the issue before her, McLachlin C.J.
concluded that both the structure and function of the provincial offences court supported the view
that it could and should apply the Charter. Looking first to function, McLachlin C.J. concluded that
the provincial offences court’s role as a quasi-criminal court of first instance weighed strongly in
favour of expansive remedial jurisdiction under s. 24 of the Charter. Such jurisdiction would
promote the resolution of Charter issues in the forum best situated to resolve them: