Administrative Tribunals Applying the Charter: Not Just a Holy Grail for Courts

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1 + Administrative Tribunals Applying the Charter: Not Just a Holy Grail for Courts A. Wayne MacKay, C.M., Q.C. Professor of Law, Dalhousie University Schulich School of Law *The author gratefully acknowledges the excellent assistance of third year law student Victoria Young in preparing this PowerPoint Presentation

2 + Outline 1. Introduction 2. The Emergence of Administrative Boards as Constitutional Decision-Makers (a) Superior Courts and the Constitution (b) Federalism Issues (c) Charter Issues (d) Exclusive Claims (e) Aboriginal Issues 3. Judicial Review of Administrative Decisions on the Constitution and the Elusive Standards of Review: The School Context (a) Judicial Review Generally (b) Recent Changes in Judicial Review 4. Constitutional Remedies 5. Conclusion

3 + The Emergence of Administrative Boards as Constitutional Decision-Makers A. Superior Courts and the Constitution Case Name Paul L Anglais (1983) Northern Telecom (1983) Ratio -A pure or naked constitutional question can be raised in a superior court, even if the main statutory yjurisdiction is elsewhere -STATUTE CANNOT TAKE AWAY CORE S. 96 JURISDICTION A court will have statutory yjurisdiction to hear a constitutional challenge when the court has statutory jurisdiction to hear the case quite apart from its constitutional aspects

4 + B. Federalism Issues -Board CAN sometimes be the first to rule on a constitutional matter -BUT boards CANNOT be the last one to rule on a constitutional matter (as these issues are ALWAYS reviewable on jurisdictional grounds) - Naked constitutional questions CANNOT be reviewed for administrative bodies or by inferior courts

5 + C. Charter Issues

6 Case Name Charter continued Ratio Cuddy Chicks -Jurisdiction to consider Charter issues can be (1991) express or implied by the tribunal s enabling statute -Broad approach to constitutional jurisdiction Cooper -Majority takes narrow approach (1996) -Dissent: The Charter is not some holy grail which only judicial initiates of the superior courts may touch Martin -Reversal of Cooper majority (rearticulates (2003) Cooper dissent) -When a tribunal has jurisdiction over law, it has presumptive jurisdiction over constitutional issues

7 Charter again Jurisdiction over law presumes jurisdiction over constitution

8 D. Exclusive Claims Case Name Weber (1995) Okwuobi v. Lester B. Pearson School Board (2005) Ratio -Tribunal has exclusive jurisdiction to decide incidental Charter claims -Arbitrator as court of competent jurisdiction -Exclusive original jurisdiction at administrative level *Potential conflict of these 2 cases with L Anglais (which stated that a litigant can always raise constitutional questions in superior courts)

9 E. Aboriginal Issues Case Name Paul v. BC (Forest Appeals Commission) (2003) Ratio When a tribunal has jurisdiction over law, it is also empowered to consider Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982

10 + 3. Judicial Review of Administrative Decisions on the Constitution and the Elusive Standards of Review: The School Context A. Judicial Review Generally Case Name Pushpanatha n (1998) Ratio -Pragmatic and functional approach: statutory interpretation requires the weighing of several different factors, none of which alone are dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision -Factors: (1) presence/absence of privative clause (2) expertise of tribunal (3) purpose of the Act as a whole and the provision in particular (4) nature of the problem

11 + B. Recent Changes in Judicial Review Case Name Ratio Dunsmuir v. New -Sets out the current test for judicial review Brunswick -The new test pushes away from formalism (2008) and moves towards fairness, reasonableness, and legality -Patent unreasonableness is eliminated and only reasonableness and correctness now exist as the applicable standards of review -Reasonableness: review with deference does not mean more intrusive and rigorous judicial review, respect for legislative choice -Correctness: no deference to administrative reasoning

12 + Recent changes continued Case Name Khosa (2009) Ratio -Issue: applicability of common law principles of judicial review (as set out in Dunsmuir) to the exercise of statutorily mandated judicial review -Statute trumps common law -BUT, legislated standards of review are to be interpreted with common law principles in mind

13 + 4. Constitutional Remedies S. 52(1) Constitution Act, 1982: (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. S. 24 of Charter: 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. -A s. 52 tribunal cannot strike down a challenged law it can only not apply a challenged law -A s. 24 tribunal cannot go beyond statutory remedies it cannot introduce new Charter remedies

14 + Constitutional Remedies Case Name Ratio Conway -Issue: whether the tribunal has jurisdiction to deal (2010) with the Charter generally -Separates jurisdiction over merits and remedy Ward -Sets out the test for quantifying damages under 24(1) (2010) -Test: A) is there a Charter violation? B) is this an appropriate and just remedy? 1. Does the awarding of damages serve appropriate p function as Charter remedy? -> Factors: compensation, vindication of right, deterrence 2. Are there countervailing factors put forward by the state to say that even if one of the factors is satisfied, it would not be appropriate to grant damages?

15 +

16 Conway Facts: 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 (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 health 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. Before this Court, the issue is whether the Ontario Review Board has jurisdiction to grant remedies under s. 24(1) of the Charter. C has requested, in addition to an absolute discharge, remedies dealing with his conditions of detention: an order directing the mental health centre to provide him with access to psychotherapy and an order prohibiting the centre from housing him near a construction site. Held: The appeal should be dismissed. When the Charter was proclaimed, its relationship with administrative tribunals was a blank slate. However, various dimensions of the relationship quickly found their way to this Court. The first wave of relevant cases started in 1986 with Mills v. The Queen, [1986] 1 S.C.R The Mills cases established that a court or administrative tribunal was a court of competent jurisdiction under s. 24(1) of the Charter if it had jurisdiction over the person, the subject matter, and the remedy sought. The second wave started in 1989 with Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R The Slaight cases established that any exercise of statutory discretion is subject to the Charter and its values. The third and final wave started in 1990 with Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, followed in 1991 by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and TétreaultGadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The cases flowing from this trilogy, which deal with s. 52(1) of the Constitution Act, 1982, established that specialized tribunals with both the expertise and the authority to decide questions of law are in the best position to hear and decide the constitutionality of their statutory provisions. This evolution of the case law over the last 25 years has cemented the direct relationship between the Charter, its remedial provisions and administrative tribunals. It confirms that we do not have one Charter for the courts and another for administrative tribunals and that, with rare exceptions, administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions. The evolution also confirms that expert tribunals should play a primary role in determining Charter issues that fall within their

17 specialized jurisdiction and that in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values. Moreover, the jurisprudential evolution affirms the practical advantages and the constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals. Any scheme favouring bifurcation is, in fact, inconsistent with the wellestablished principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal s specialized statutory jurisdiction. A merger of the three distinct constitutional streams flowing from this Court s administrative law jurisprudence calls for a new approach that consolidates this Court s gradual expansion of the scope of the Charter and its relationship with administrative tribunals. When a Charter remedy is sought from an administrative tribunal, the initial inquiry should be whether the tribunal can grant Charter remedies generally. The answer to this question flows from whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the legislature has clearly demonstrated its intent to withdraw the Charter from the tribunal s authority, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. The tribunal is, in other words, a court of competent jurisdiction under s. 24(1) of the Charter. This approach has the benefit of attributing Charter jurisdiction to a tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether the tribunal is a court of competent jurisdiction. Once the initial inquiry has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought given its statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent, namely, whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal s statutory mandate and function. In this case, C seeks certain Charter remedies from the Board. The first inquiry, therefore, is whether the Board is a court of competent jurisdiction under s. 24(1). The answer to this question depends on whether the Board is authorized to decide questions of law. The Board is a quasijudicial body with significant authority over a vulnerable population. It operates under Part XX.1 of the Criminal Code as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of NCR patients: accused who have been found not criminally responsible by reason of mental disorder. Part XX.1 of the Criminal Code provides that any party to a review board hearing may appeal the board s disposition on a question of law, fact or mixed fact and law. The Code also authorizes appellate courts to overturn a review board s disposition if it was based on a wrong decision on a question of law. This statutory language is indicative of the Board s authority to decide questions of law. Given this conclusion, and since Parliament has not excluded the Charter from the Board s mandate, it follows that the Board is a court of competent jurisdiction for the purpose of granting remedies under s. 24(1) of the Charter. The next question is whether the remedies sought are the kinds of remedies which would fit within the Board s statutory scheme. This requires consideration of the scope

18 and nature of the Board s statutory mandate and functions. The review board regime is intended to reconcile the twin goals of protecting the public from dangerous offenders and treating NCR patients fairly and appropriately. Based on the Board s duty to protect public safety, its statutory authority to grant absolute discharges only to nondangerous NCR patients, and its mandate to assess and treat NCR patients with a view to reintegration rather than recidivism, it is clear that Parliament intended that dangerous NCR patients have no access to absolute discharges. C cannot, therefore, obtain an absolute discharge from the Board. The same is true of C s request for a treatment order. Allowing the Board to prescribe or impose treatment is expressly prohibited by s of the Criminal Code. Finally, neither the validity of C s complaint about the location of his room nor, obviously, the propriety of his request for an order prohibiting the mental health centre from housing him near a construction site, have been considered by the Board. It may well be that the substance of C s complaint can be fully addressed within the Board s statutory mandate and the exercise of its discretion in accordance with Charter values. If so, resort to s. 24(1) of the Charter may not add to the Board s capacity to either address the substance of C s complaint or provide appropriate redress. Ward Facts: During a ceremony in Vancouver, the city police department received information that an unknown individual intended to throw a pie at the Prime Minister who was in attendance. Based on his appearance, police officers mistakenly identified W as the would-be pie-thrower, chased him down and handcuffed him. W, who loudly protested his detention and created a disturbance, was arrested for breach of the peace and taken to the police lockup. Upon his arrival, the corrections officers conducted a strip search. While W was at the lockup, police officers impounded his car for the purpose of searching it once a search warrant had been obtained. The detectives subsequently determined that they did not have grounds to obtain the required search warrant or evidence to charge W for attempted assault. W was released approximately 4.5 hours after his arrest. He brought an action in tort and for breach of his rights guaranteed by the Canadian Charter of Rights and Freedoms against several parties, including the Province and the City. Held: The appeal should be allowed in part. The language of s. 24(1) is broad enough to include the remedy of constitutional damages for breach of a claimant s Charter rights if such remedy is found to be appropriate and just in the circumstances of a particular case. The first step in the inquiry is to establish that a Charter right has been breached; the second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. Once the claimant has established that damages are functionally justified, the state has the opportunity to demonstrate, at the third step, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. Countervailing considerations include the existence of alternative remedies. Claimants need not show that they have exhausted all other recourses. Rather, it is for the state to show that other remedies including private law remedies or another Charter remedy are available in the particular case that will sufficiently address the Charter breach. Concern for effective governance may also negate the appropriateness of s. 24(1) damages. In some situations, the state

19 may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. If the state fails to negate that the award is appropriate and just, the final step is to assess the quantum of the damages. To be appropriate and just, an award of damages must represent a meaningful response to the seriousness of the breach and the objectives of s. 24(1) damages. Where the objective of compensation is engaged, the concern is to restore the claimant to the position he or she would have been in had the breach not been committed. With the objectives of vindication and deterrence, the appropriate determination is an exercise in rationality and proportionality. Generally, the more egregious the breach and the more serious the repercussions on the claimant, the higher the award for vindication or deterrence will be. In the end, s. 24(1) damages must be fair to both the claimant and the state. In considering what is fair to both, a court may take into account the public interest in good governance, the danger of deterring governments from undertaking beneficial new policies and programs, and the need to avoid diverting large sums of funds from public programs to private interests. Damages under s. 24(1) should also not duplicate damages awarded under private law causes of action, such as tort, where compensation of personal loss is at issue. Here, damages were properly awarded for the strip search of W. This search violated his s. 8 Charter rights and compensation is required, in this case, to functionally fulfill the objects of constitutional damages. Strip searches are inherently humiliating and degrading and the Charter breach significantly impacted on W s person and rights. The correction officers conduct which caused the breach was also serious. Minimum sensitivity to Charter concerns within the context of the particular situation would have shown the search to be unnecessary and violative. Combined with the police conduct, the impingement on W also engages the objects of vindication of the right and deterrence of future breaches. The state did not establish countervailing factors and damages should be awarded for the breach. Considering the seriousness of the injury and the finding that the corrections officers actions were not intentional, malicious, highhanded or oppressive, the trial judge s $5,000 damage award was appropriate. With respect to the seizure of the car, W has not established that damages under s. 24(1) are appropriate and just from a functional perspective. The object of compensation is not engaged as W did not suffer any injury as a result of the seizure. Nor are the objects of vindication of the right and deterrence of future breaches compelling. While the seizure was wrong, it was not of a serious nature. A declaration under s. 24(1) that the vehicle seizure violated W s right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures.

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