Ioana Bala

The appellant, a native Serbian speaker diagnosed with schizophrenia, was found incapable of consenting to treatment.

At his Consent and Capacity Board hearing, he requested an adjournment to allow his Serbian-speaking lawyer to attend.

The Board granted a brief adjournment and directed the Public Guardian and Trustee to appoint counsel.

The appointed counsel did not speak Serbian and the appellant explicitly rejected her services.

However, appointed counsel failed to inform the Board of this rejection, and the hearing proceeded with the Board mistakenly believing the appellant was represented.

The Board confirmed the incapacity finding, and the Superior Court dismissed the appeal.

The Court of Appeal allowed the appeal, holding for the first time that an ineffective assistance of counsel claim is available on appeal from a Board capacity decision.

The Court found that appointed counsel's failure to disclose her lack of authority to act caused a miscarriage of justice by depriving the appellant of adjudicative fairness.

A new hearing was ordered.

The appellant, who was found not criminally responsible by reason of mental disorder and detained in a mental health facility, sought an absolute discharge and treatment orders as remedies under s. 24(1) of the Charter.

The Supreme Court of Canada established a new approach for determining whether an administrative tribunal is a court of competent jurisdiction under s. 24(1).

The Court held that the Ontario Review Board has the jurisdiction to grant Charter remedies because it has the authority to decide questions of law.

However, the Court dismissed the appeal, finding that the specific remedies sought by the appellant—an absolute discharge for a dangerous patient and a treatment order—were expressly precluded by the Board's statutory scheme under the Criminal Code.