R. v. CONWAY - British Columbia Review Board

[64] Gonthier J., writing for a unanimous Court, expressly rejected the 1996 ratio in
Cooper, particularly insofar as it distinguished between limited and general questions of law and
insofar as it suggested that an adjudicative function was a prerequisite for a tribunal’s constitutional
jurisdiction. He also expressly rejected Lamer C.J.’s contention that the Cuddy Chicks trilogy was
inconsistent with the separation of powers and Parliamentary democracy.
[65] Instead, Gonthier J. affirmed and synthesized the main principles emerging from
the trilogy. The first was the principle of constitutional supremacy, which provides that any law
that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect.
No government actor can apply an unconstitutional law, he observed, and, subject to an express
contrary intention, a government agency given statutory authority to consider questions of law is
presumed to have the jurisdiction to assess related constitutional questions.
[66] As a further corollary, Gonthier J. echoed the views expressed over the years by
McLachlin J., Major J., La Forest J., and McIntyre J. confirming that “Canadians should be entitled
to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum
available, without the need for parallel proceedings before the courts”. Explaining that this
“accessibility concern” was “particularly pressing given that many administrative tribunals have
exclusive initial jurisdiction over disputes relating to their enabling legislation”, Gonthier J.
concluded that “forcing litigants to refer Charter issues to the courts would result in costly and timeconsuming
bifurcation of proceedings” (para. 29).