R. v. CONWAY - British Columbia Review Board

Charter — If so, whether accused entitled to remedy sought — Criminal Code, R.S.C. 1985, c. C-46,
s. 672.54.
Administrative law — Boards and tribunals — Jurisdiction — Remedial jurisdiction of
administrative tribunals under s. 24(1) of Canadian Charter of Rights and Freedoms — New
approach.
In 1984, C was found not guilty by reason of insanity on a charge of sexual assault with
a weapon. Since the verdict, he has been detained in mental health facilities and diagnosed with
several mental disorders. Prior to his annual review hearing before the Ontario Review Board in
2006, C alleged that the mental health centre where he was being detained had breached his rights
under the Canadian Charter of Rights and Freedoms. He sought an absolute discharge as a remedy
under s. 24(1) of the Charter. The Board unanimously concluded that C was a threat to public
safety, who would, if released, quickly return to police and hospital custody. This made him an
unsuitable candidate for an absolute discharge under s. 672.54(a) of the Criminal Code, which
provides that an absolute discharge is unavailable to any patient who is a “significant threat to the
safety of the public”. The Board therefore ordered that C remain in the mental heath centre. The
Board further concluded that it had no jurisdiction to consider C’s Charter claims. A majority in
the Court of Appeal upheld the Board’s conclusion that it was not a court of competent jurisdiction
for the purpose of granting an absolute discharge under s. 24(1) of the Charter. However, the Court
of Appeal unanimously concluded that it was unreasonable for the Board not to address the
treatment impasse plaguing C’s detention. This issue was remitted back to the Board.