R. v. CONWAY - British Columbia Review Board

Charter. Again, only the third step of the Mills test was considered, and again the tension on display
in Weber and Mooring was exhibited. McLachlin C.J., for the majority, reiterated the principles set
out in Dunedin and explained that in all cases the question is
whether Parliament or the legislature intended to empower the court or tribunal to make
rulings on Charter violations that arise incidentally to their proceedings, and to grant
the remedy sought as a remedy for such violations. [para. 26]
She went on to conclude that a preliminary inquiry court was not a court of competent jurisdiction
for the purpose of excluding evidence under s. 24(2). A preliminary inquiry’s primary function was,
in her view, to determine whether the Crown has sufficient evidence to warrant committing the
accused to trial. Empowering a preliminary inquiry judge to exclude evidence under the Charter
would jeopardize the inquiry’s expeditious nature. The criminal trial courts were better suited to
the task of determining whether to exclude evidence.
[39] Major J., writing in dissent for four judges, agreed that only the third step of the
Mills test was at issue but disagreed with the majority as to the result. He noted that preliminary
inquiry judges were authorized to exclude evidence under the common law confessions rule. It was
not, therefore, supportable by “logic or efficiency to permit a preliminary inquiry justice to
determine the admissibility of statements for common law purposes, but not for Charter purposes,
when it is recognized that preliminary inquiry justices are armed with all the facts. Parliament could
not have intended such waste” (para. 96). Accordingly, in his view, a preliminary inquiry judge was
competent to exclude evidence under s. 24(2).
[40] This review of Mills’ progeny gives rise to three observations. First, this Court has