Her Majesty the Queen v. Conway [Indexed as: R. v. Conway]

90 O.R. (3d) 335

Court of Appeal for Ontario,

Simmons, Armstrong and Lang JJ.A.

April 29, 2008

Charter of Rights and Freedoms -- Court of competent jurisdiction -- Ontario Review Board not constituting "court of competent jurisdiction" within meaning of s. 24(1) of Charter -- Board not having jurisdiction to grant absolute discharge as remedy under s. 24(1) of Charter for breaches of accused's Charter rights -- Canadian Charter of Rights and Freedoms, s. 24(1).

C had been detained in psychiatric institutions for 24 years since he was found not guilty by reason of insanity on a charge of sexual assault. At his annual review hearing before the Ontario Review Board in 2006, C sought an absolute discharge as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms on the basis that the living and disciplinary conditions under which he was being detained infringed his rights under the Charter. C also sought an absolute discharge on conventional, non-constitutional grounds. The ORB refused to grant an absolute discharge, holding that it was not a court of competent jurisdiction under s. 24(1) of the Charter and that C continued to present a real and substantial danger to the public. C appealed. [page336]

Held, The appeal should be allowed in part.

Per Armstrong J.A. (Simmons J.A. concurring): There was clearly a treatment impasse in C's case, and the ORB did not explicitly address that impasse in its formal disposition order. It should have done so. Although the ORB made several suggestions in terms of dealing with the impasse in its reasons for disposition, it failed to include any related conditions in its formal disposition order. The failure to do so was unreasonable. The matter is remitted to the ORB for a new hearing to consider what conditions, if any, should be imposed in order to break the impasse.

The ORB is not a court of competent jurisdiction within the meaning of s. 24(1) of the Charter as it lacks remedial jurisdiction. First, the ORB lacks the structural competence to engage in the balancing exercise that would be required to grant an absolute discharge as a Charter remedy. Second, Parliament intended the ORB to have only limited remedial access to absolute discharges. Under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, absolute discharges are only available where an accused is not a significant threat to the public. Therefore, to find plenary jurisdiction in the ORB to grant absolute discharges under s. 24(1) of the Charter would frustrate the system established in Part XX.1 of the Code. Third, given the ORB's statutory jurisdiction, Charter jurisdiction to grant absolute discharges is entirely unnecessary. The only circumstance in which a not-criminally- responsible ("NCR") accused would ever need to invoke the Charter to receive an absolute discharge is one in which such a remedy would, in any event, be unavailable. An NCR accused would only ever seek an absolute discharge under the Charter in circumstances where the ORB has first found him to be a significant threat, as the ORB is required by the Code to absolutely discharge any accused who is not dangerous. Given that an absolute discharge in relation to a significantly dangerous accused cannot be an "appropriate and just" remedy under s. 24(1), it is difficult to imagine a scenario whereby the ORB's function could ever be enhanced by recognizing Charter jurisdiction to grant absolute discharges. Finally, Charter jurisdiction would add a significant burden to an already overburdened tribunal, and frustrate the otherwise informal and expeditious nature of ORB hearings.

Per Lang J.A. (dissenting in part): The ORB had the responsibility to impose conditions regarding treatment, and its failure to do so was an error and unreasonable. The ORB's suggestions should be added as conditions of the disposition, and the matter should be referred back to the Board so that it might add any appropriate further conditions.

An absolute discharge was not available as a Charter remedy in the circumstances of this case. Given C's dangerousness, such a remedy would not be "appropriate and just" within the meaning of s. 24(1) of the Charter. However, as a general principle, the ORB is a court of competent jurisdiction within the meaning of s. 24(1) of the Charter. The ORB has jurisdiction over the person, over the subject matter and over the remedy sought. The nature of the remedy sought should not be construed in an unduly narrow manner. It would be overly restrictive to conclude that a tribunal has no jurisdiction to consider a Charter application where the specific remedy requested is not essential for the functioning of the tribunal, but where a related remedy does meet this requirement. In this case, it was open to the court to consider whether the ORB, in keeping with its function, may grant an absolute discharge or may order conditions or make such other orders as are appropriate to remedy a breach of the patient's Charter rights. Some of the Charter breaches raised by C, if proven, raised serious issues. The ORB was in the best position to determine the merits of those allegations and to determine the appropriate remedy, if necessary. [page337]

APPEAL from a decision of the Ontario Review Board dated October 24, 2006.

Cases referred to Mooring v. Canada (National Parole Board), 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75, [1996] S.C.J. No. 10, 132 D.L.R. (4th) 56, 192 N.R. 161, [1996] 3 W.W.R. 305, J.E. 96-353, 70 B.C.A.C. 1, 20 B.C.L.R. (3d) 1, 38 Admin. L.R. (2d) 149, 104 C.C.C. (3d) 97, 45 C.R. (4th) 265, 33 C.R.R. (2d) 189, 29 W.C.B. (2d) 355; R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, 29 D.L.R. (4th) 161, 67 N.R. 241, J.E. 86-709, 16 O.A.C. 81, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1, 21 C.R.R. 76, 17 W.C.B. 41, apld Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 2003 SCC 54, 231 D.L.R. (4th) 385, 310 N.R. 22, J.E. 2003-1843, 217 N.S.R. (2d) 301, 4 Admin. L.R. (4th) 1, 28 C.C.E.L. (3d) 1, 110 C.R.R. (2d) 233, 125 A.C.W.S. (3d) 542, distd Other cases referred to Conway v. Jacques (2002), 2002 CanLII 41558 (ON CA), 59 O.R. (3d) 737, [2002] O.J. No. 2333, 214 D.L.R. (4th) 67, 159 O.A.C. 236, 115 A.C.W.S. (3d) 152 (C.A.) [Leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 341]; Conway v. Jacques, 2005 CanLII 2939 (ON SC), [2005] O.J. No. 400, 250 D.L.R. (4th) 178, [2005] O.T.C. 84, 14 E.T.R. (3d) 263, 136 A.C.W.S. (3d) 1121 (S.C.J.); Manitoba (Attorney General) v. Wiebe, [2004] M.J. No. 247, 2004 MBCA 109, [2005] 2 W.W.R. 707, 187 Man. R. (2d) 181, 62 W.C.B. (2d) 373 (C.A.); Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, 68 W.C.B. (2d) 722, EYB 2006-102437; Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, [2003] S.C.J. No. 34, 2003 SCC 55, 231 D.L.R. (4th) 448, 310 N.R. 122, [2003] 11 W.W.R. 1, J.E. 2003-1847, 187 B.C.A.C. 1, 18 B.C.L.R. (4th) 207, 5 Admin. L.R. (4th) 161, 3 C.E.L.R. (3d) 161, [2003] 4 C.N.L.R. 25, 111 C.R.R. (2d) 292, 125 A.C.W.S. (3d) 369; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 2001 SCC 81, 206 D.L.R. (4th) 444, 279 N.R. 345, J.E. 2002-9, 154 O.A.C. 345, 159 C.C.C. (3d) 321, 47 C.R. (5th) 316, 88 C.R.R. (2d) 189, 51 W.C.B. (2d) 452; R. v. LePage, 2006 CanLII 37775 (ON CA), [2006] O.J. No. 4486, 217 O.A.C. 82, 214 C.C.C. (3d) 105, 71 W.C.B. (2d) 748 (C.A.); R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. v. Sim (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, [2005] O.J. No. 4432, 203 O.A.C. 128, 201 C.C.C. (3d) 482, [2006] 2 C.N.L.R. 298, 67 W.C.B. (2d) 431 (C.A.); Tétrault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22, [1991] S.C.J. No. 41, 81 D.L.R. (4th) 358, 126 N.R. 1, J.E. 91-933, 50 Admin. L.R. 1, 36 C.C.E.L. 117, 91 CLLC Â14,023 at 12207, 4 C.R.R. (2d) 12, 27 A.C.W.S. (3d) 147; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 2(b), (d), 7, 8, 9, 15(1) Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11,ss. 35(1), 52(1) Criminal Code, R.S.C. 1985, c. C-46, Part XX.1, ss. 672.4, (1) [as am.], 672.5(2) [as am.], (3) [as am.], (4) [as am.], (11) [as am.], (12) [as am.], 672.38 [as am.], 672.39 [as am.], 678.41 [as am.], 672.43 [as am.], 672.44(1) [as am.], 672.47 [as am.], 672.52(1) [as am.], (3) [as am.], 672.54 [as am.], 672.56(2) [as am.], 672.72(1) [as am.], 672.81(1) Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, s. 75 Inquiries Act, R.S.C. 1985, c. I-11, s. 4 Workers' Compensation Act, S.N.S. 1994-95, c. 10, s. 10B [as am.] [page338] Rules and regulations referred to Ontario Review Board, Rules of Procedure, Rules 12, 16-21, Canada Gazette, February 2, 2002, Vol. 136, No. 5 Authorities referred to Barret, J., and R. Shandler, Mental Disorder in Canadian Criminal Law, looseleaf (Toronto: Thompson Carswell, 2006) Hogg, P., Constitutional Law of Canada, looseleaf (Scarborough, Ont.: Carswell, 1984)

Paul Conway, in person. Michael Davies, as amicus curiae. Amanda Rubazek, for respondent, Attorney General of Ontario. Janice E. Blackburn, for respondent, The Person in Charge of Centre for Addiction and Mental Health. Stephen J. Moreau, for intervenor, Ontario Review Board.

Introduction

ARMSTRONG J.A. (SIMMONS J.A. concurring): --

[1] In this appeal, this court has the opportunity to consider, for the first time, whether the Ontario Review Board (the "ORB") is a "court of competent jurisdiction" within the meaning of s. 24(1) of the Canadian Charter of Rights and Freedoms.

[2] The appellant, Paul Martin Conway, has been detained in various psychiatric institutions for 24 years since he was found not guilty by reason of insanity on a charge of sexual assault with a weapon on February 27, 1984. He has spent the majority of this time at the maximum security unit at Oak Ridge, Penetanguishine. In August 2005, he was transferred to the Centre for Addiction and Mental Health ("CAMH"), a medium- security facility.

[3] At his annual review hearing before the ORB in the summer and fall of 2006, the appellant applied for an absolute discharge under s. 24(1) of the Charter, claiming, in part, that the living and disciplinary conditions under which he was being detained infringed his rights under ss. 2(b), 2(d), 7, 8, 9 and 15(1). The ORB dismissed the application on the ground that it was not a "court of competent jurisdiction" under s. 24(1) of the Charter.

[4] At the 2006 hearing, the appellant also applied for an absolute discharge on conventional, non-constitutional grounds. This application was dismissed by the ORB on the basis that the appellant posed "a significant threat to the safety of the public". [page339]

[5] Mr. Conway, who appeared before us in person, appeals both findings made by the ORB.

[6] We also had the benefit of submissions from Michael Davies who appeared as amicus curiae. Mr. Davies requested that the appeal be allowed and the matter be referred back to the ORB for a new hearing. Counsel for CAMH and counsel for the Attorney General supported the ORB's decision. Counsel for the ORB restricted his submissions to the Charter issue.

Background

[7] The circumstances of the index offence, adopted by the ORB, are described in the hospital record as follows:

On September 10, 1983 at about 10:20 p.m. Mr. Conway's aunt went to her sister's home. (It is reported by Mr. Conway's mother that he and her sister, who is only 14 months older, had been engaging in consensual sexual activities from a very young age). When she arrived, she found her nephew, Mr. Conway, in the house by himself. He offered some drinks and she accepted. They drank for about 30 minutes and when his aunt went to the kitchen area, he told her that he was intend[ing] to have sexual intercourse with her and that there was nothing that she could do about it. He told her that he had sent everyone away from the house earlier and that he had pre-planned the event. He then grabbed a knife from the countertop and held it to her throat. She tried to get away, managing to run to the front door, but he pulled her back by the hair. He dragged her to the bedroom and told her to take her clothes off. She complied and got undressed and he then told her to lie on the bed. He then got undressed and had sexual intercourse with his aunt. While having intercourse, he was talking in a crazy way about other women. He then forced his aunt to perform fellatio for about two hours and then had intercourse with her again. After this he became very calm and stated that this was just something that he had to do. He then let her get dressed and gave her money for a taxi which she took. At about 3:00 a.m. the following morning the victim noticed a police car and made an official complaint. Mr. Conway was arrested at 5:30 a.m. the same morning.

Apparently, during his childhood and teens the victim of the offence had frequent sexual contact with Mr. Conway. This lasted until Mr. Conway was seventeen when apparently she married and moved away. It was reported by Mr. Conway's mother that he had been behaving in a rather odd way for two months preceding the offence. Mr. Conway's mother reported that he 'doesn't trust anybody, seems to be really paranoid' and had been spending most of his time at her home. She reported that it was as if he did not want to leave her, as if he needed her for security. Mr. Conway's mother reported 'he feels everyone is against him'. He had been talking about doing away with himself and others, including his own family. He had also been complaining about hearing voices in his head and seemed to be indulging in some ritualistic behaviour. Mr. Conway's mother described that he would touch a specific table and would come back and keep touching it and then walk away and come back and touch it again. He also was reported to have a phobia for eating utensils and people and was fearful of the number 13. He also wanted all the calendars in the house taken down. His mother suggested that he seek psychiatric help but Mr. Conway did not feel that would be of assistance. [page340]

Mr. Conway has stated that he does not think that he was mentally ill at the time of the index offence and that he pretended to be mentally ill in order to obtain a verdict of not guilty by reason of insanity. He claims that his lawyer gave him wrong advice.

[8] Amicus curiae provided a summary of certain kinds of inappropriate, antisocial and unlawful behaviour of Mr. Conway -- taken from the hospital report filed at the hearing. The summary includes the following:

-- Mr. Conway is said to "sexualize" his relationship with female staff members: this has included sending cards with sexually explicit messages (1984/85), showing his penis to staff, masturbating in their view, making sexual comments, slapping the cleaner's buttocks (1986/89); making sexual advances to staff (1990/91); making inappropriately affectionate phone calls to staff (1992/93); staring at female staff and invading their personal space (1993/94); making sexually suggestive remarks to female staff and openly fondling his crotch while staring at female staff, kissing the Patient Advocate on the head and speaking to her in inappropriate sexual language (1995/96); appearing sexually aroused around staff (1995/96); displaying his erect penis to visiting volunteers (1996/97); being sexually aggressive with female staff and exposing an erect penis through a hole in his pants (1997/98); making sexually inappropriate comments (1999/2001); becoming fixated on a female patient advocate (2002/03).

-- It is also alleged in the Hospital Report that he sexually harassed female patients (1989/90) and two female patients claimed he had made sexual propositions to them and sexually molested them (1992/93), although no charges appear to have resulted.

-- He is repeatedly described as verbally abusive or verbally aggressive to staff and having frequent "verbal outbursts". On many occasions he has been restrained and secluded because of irritable or explosive behaviour (e.g., 1999/01, 2001/02, 2002/03).

-- He is described as not following the ward rules and being extremely difficult to manage (e.g., 1996/97). One example shows that from the period May 1, 2003 to November 1, 2003, there were 33 episodes of verbal abuse towards co-patients, 42 incidents of verbal abuse towards staff, 35 incidents of sexually inappropriate behaviour ranging from boastful statements about his prowess and magnetism to [page341] blatant sexual harassment and 14 incidents of specific threats of bodily harm to others.

-- There is repeated reference in the Hospital Report to threats of harm (and death) to others, including staff and Mr. Conway's own family members.

-- He has occasionally hoarded urine and faeces in his room (1990/91, 1992/93), and occasionally gone on hunger strikes.

-- He has shown delusional behaviours and paranoia with respect to hospital food.

-- He appears in constant fear of homosexual attacks from male staff members to the point that he has slept underneath his bed rather than on it.

-- He makes repeated threats to report staff to their professional organizations and makes occasional reports to the Ontario Provincial Police.

-- Although allegations of physical assault are significantly less (frequent) than verbal assaults, the Hospital Report does record some physical incidents including "physical threats and assaults" (1986/89) although little or no detail is given with respect to these physical assault allegations.

[9] Over the years, it has become the opinion of the majority of mental health professionals assessing and treating Mr. Conway that antipsychotic medication is a necessary precondition for any successful course of treatment. Nevertheless, he has consistently refused such drug therapy.

[10] As noted above, Mr. Conway has been at the medium security CAMH since August 2005. While at CAMH, his hospital record notes the following behaviour:

-- overly familiar interactions with female staff;

-- extreme homophobic attitudes with a fear of being raped;

-- making threats of reporting staff to various organizations;

-- difficulty with co-patients; and,

-- becoming agitated and on one occasion threatening to hurt anyone who came near him with the cutlery he had in his hand. [page342]

[11] Mr. Conway's attending psychiatrist at CAMH, Dr. Padraig Darby, testified at the ORB hearing. It was Dr. Darby's opinion that Mr. Conway represented a real and substantial danger to the public. Dr. Darby testified that Mr. Conway continues to suffer from a major mental disorder. The ORB summarized Dr. Darby's evidence in respect of Mr. Conway's disruptive behaviour:

Dr. Darby made clear his opinion that over the past year only the structure of the medium secure unit at CAMH has permitted Mr. Conway's verbal assault from becoming physical attacks upon others. The doctor provided several examples of Mr. Conway's extremely disruptive behaviour over the past year at CAMH, all resulting in it becoming necessary to keep Mr. Conway segregated from other patients on a periodic basis . . .

[12] Apart from this rather negative view of Mr. Conway's behaviour, Dr. Darby testified that Mr. Conway appeared to be somewhat better at CAMH than at Oak Ridge. At CAMH, there had been no physical assaults in the past year and no incidents of public masturbation, exhibiting his penis or sexual propositions to female staff. At CAMH, he had started to take an anger management course.

[13] However, taking an overall view of Mr. Conway's condition, Dr. Darby opined that his mental state had not improved since 1984 and, if anything, his condition had deteriorated. Dr. Darby's opinion is that Mr. Conway is in a "therapeutic bind". There is a treatment impasse.

[14] At his previous review hearing in 2005, the treatment impasse emerged as one of the reasons that the ORB transferred Mr. Conway to CAMH. In 2005, the ORB said in its reasons:

Because of his perception of things; because of the impasse which has built up over the years as between himself and many of the people employed at Oak Ridge, some of which impasse was of his own making of course, we are of the unanimous view that he should be transferred once again to a medium secure institution.

[15] The ORB in 2005 concluded its reasons by expressing a hope that some innovative program would be found for Mr. Conway to break the impasse and lead to his release into the community:

We sincerely hope that in the future some innovative program which is tailored to meet his specific needs will be worked out and applied for and to Mr. Conway so that at some point in time, and in the not too distant future at that, he will find himself being released to live once again in the community. He needs to be given hope. Instead he has lost hope and is in a constant state of depression and despair. It is put that an extra effort should be made to create some program specifically tailored to meet his obvious needs so that his hoped for recovery can be achieved. We are also aware of course that any such measures will be to no avail unless Mr. Conway is prepared to cooperate. [page343]

[16] Unfortunately, as of the date of the ORB hearing in the fall of 2006, the hoped-for breakthrough had not yet taken place.

[17] Dr. Ron Langevin, an expert in forensic psychology, testified on behalf of Mr. Conway. It was his opinion that Mr. Conway was a risk to the public and that continued detention at CAMH was the appropriate disposition. It was Dr. Langevin's view that Mr. Conway had experienced significant changes in emotional/personality functioning following a car accident when he was 17 years old. In the accident, he was struck on the right side of his head. Neurophysiological tests suggested right hemisphere deficits of the brain. Dr. Langevin declined to offer a diagnosis for Mr. Conway. However, he was critical of the treatment approach being taken by Dr. Darby and his team. Dr. Langevin recommended, among other things, further neurological testing and a client-centred behavioural approach which would include setting goals, taking sexual abuse counselling and increased family visits. He also recommended referral to a consultant outside the hospital, given Mr. Conway's mistrust of the staff at CAMH.

[18] In its reasons for decision, the ORB described the diagnoses made by various specialists who have attempted to treat Mr. Conway as including Psychotic Disorder NOS (not otherwise specified); Personality Disorder (mixed, with paranoid, borderline and narcissistic features); Query Post- Traumatic Stress Disorder; and Query Paraphilia.

[19] When Mr. Conway testified, he repeated his long-held denial of mental illness and denied that he was a violent person. He refused to discuss antipsychotic medication. He indicated that he was prepared to take anger management counselling and sexual abuse counselling.

[20] Counsel for Mr. Conway, at the ORB, filed a Notice of Constitutional Question in which she alleged that many of Mr. Conway's Charter rights had been violated and sought relief under s. 24(1) by way of an absolute discharge. First, she alleged that the living and disciplinary conditions under which Mr. Conway was being detained violated s. 7. Second, she asserted that this continuing violation of s. 7 had completely undermined Mr. Conway's potential to therapeutically benefit from the continued detention. Finally, she alleged that the continued detention violated Mr. Conway's rights under ss. 2(b), 2(d), 7, 8, 9 and 15(1). At the eight-day hearing before the ORB, a significant amount of time was spent dealing with the Charter application. [page344]

The ORB Decision on the Merits

[21] In dismissing his application for an absolute discharge on non-constitutional grounds, the ORB said:

On the totality of [the] evidence . . . we all agree that Mr. Conway continues to present as a real and substantial danger to the public at this time. That danger lies in his continuing paranoid and delusional ideation. He continues to persist in venting his threats of violent aggression toward others. He continues to physically intimidate others by his physical gesticulations and mannerisms. His clinical condition remains untreated, notwithstanding the attempts by his current team of caregivers at CAMH to treat it. His risk further lies in his high actuarial scores for violent recidivism within a fixed period of time. Even the lowest score obtained by Mr. Conway's psychologist Dr. Langevin, certainly cannot be ignored. Mr. Conway can actually be in our view described at the present time as an egocentric, impulsive bully with a poor to absent ability to control his own behaviour.

We all agree that more probably than not, if released to live in the public domain on any basis, within a very short time, Mr. Conway would find himself in police custody and immediately thereafter in all likelihood back in a mental health hospital facility. He has refused antipsychotic medication. Until the virtual eve of this hearing he has refused hospital offered programs. We therefore conclude on a unanimous basis that sadly the least restrictive disposition to be made with respect to Mr. Conway at the present time is his detention in a medium secure unit of a mental health hospital facility. . . . . .

The hope for Mr. Conway's progress as expressed in last year's reasons has obviously not occurred. On the evidence before us we are not prepared to attach responsibility for that unfortunate failure on either Mr. Conway's hospital team of caregivers, the CAMH hospital police, or the CAMH hospital rules, its hiring practices and certainly not Dr. Darby. It may well be that one or more members of the accused's treating team at the ward level may not have been temperamentally suited to withstand Mr. Conway's incessant harassment and his obstructionistic tactics.

[22] The Board went on to indicate that a renewed treating team might recommend Mr. Conway to participate meaningfully in anger management and sexual assault prevention programs. The ORB also suggested consideration be given to escorted hospital and grounds privileges. Finally, the ORB suggested a thorough investigation on whether Mr. Conway has or has not sustained brain damage resulting from a car accident many years ago.

The ORB Decision on the Charter Application

[23] The Board concluded that it was not a court or tribunal "of competent jurisdiction" to grant a Charter remedy pursuant to s. 24. The ORB relied in part on the judgment of the Supreme [page345] Court of Canada in Mooring v. Canada (National Parole Board), 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75, [1996] S.C.J. No. 10 in which the court held that the National Parole Board did not have jurisdiction to grant a remedy under s. 24(2) of the Charter. The ORB was of the view that its jurisdiction was "analogous to the National Parole Board".

The Appeal

(i) The merits

[24] Amicus curiae alleges that no innovative program tailored to Mr. Conway's circumstances was attempted at CAMH, contrary to the suggestion made in 2005 by the ORB in its reasons for disposition. His position is that Dr. Darby and his colleagues took exactly the same approach as the medical team at Oak Ridge, i.e., no significant progress could be made without antipsychotic medication. The amicus curiae succinctly observed: "different hospital, same impasse".

[25] The amicus curiae submits that the ORB erred in law by failing:

(a) to inquire fully into the failure of the hospital to put in place some innovative program tailored to Mr. Conway's needs;

(b) to consider asking the hospital to review the feasibility of implementing the "plan of intervention" put forward by Dr. Langevin;

(c) to consider including a condition in its disposition requiring a comprehensive review of the diagnosis and treatment so as to develop an integrated treatment approach which considers the current treatment impasse and Mr. Conway's reluctance to become an active participant in his rehabilitation;

(d) to consider whether an independent assessment of Mr. Conway might assist in breaking the impasse.

[26] In the alternative, amicus curiae submits that the ORB's failure to order CAMH to undertake either a review of its current approach to Mr. Conway or to seek an independent assessment is unreasonable.

(ii) The Charter application

[27] Amicus curiae submits that the ORB erred in declining to grant a Charter remedy. He submits that the ORB is a tribunal of competent jurisdiction under s. 24(1) of the Charter and that it is [page346] particularly well placed to grant a remedy for Charter breaches for persons who are classified as not criminally responsible.

[28] It was also observed during oral argument that the ORB's own rules provide for Charter applications.

Analysis

(i) The merits

[29] The main thrust of the submission made by amicus curiae is that the ORB erred in law in failing to inquire fully into the failure of CAMH to put in place some innovative program tailored to Mr. Conway's needs. His other arguments flow from this submission. The alternative submission of amicus curiae is that, in the circumstances of this case, the ORB's disposition is unreasonable.

[30] It is clear from reading the ORB's reasons for decision that it was alive to the treatment impasse and the approach taken by Dr. Darby and his team at CAMH. The Board refused to attribute Mr. Conway's lack of progress since 2005 to his treatment team, suggesting instead that progress was more likely impeded by "Mr. Conway's incessant harassment and his obstructionistic tactics". The ORB adverted to its reasons for decision from 2005, including its expression of "hope that in the future some innovative program which is tailored to meet [Mr. Conway's] specific needs will be worked out . . .". Finally, the ORB, in its reasons, suggested continued anger management counselling for Mr. Conway, escorted hospital and grounds privileges and "a thorough investigation on the issue of whether Mr. Conway has or has not sustained brain damage resulting from . . . [a] car accident that occurred . . . years ago". Unfortunately, as discussed below, these suggestions did not find expression in the ORB's formal disposition.

[31] The ORB did not explicitly address the clear treatment impasse in its formal disposition order. In my view, given the impasse and the 24-year detention, it was incumbent on the Board to do so. Although the ORB made several suggestions in terms of dealing with the impasse in its reasons for disposition, as indicated, it failed to include any related conditions in its formal disposition order. The failure to do so was, in my view, unreasonable.

[32] The power of Review Boards to place conditions in their formal disposition orders was discussed by the Supreme Court of Canada in the following terms in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, at para. 39: [page347]

Although Review Boards may not actually prescribe or impose a particular course of medical treatment for an NCR accused, they still possess the authority to make orders and conditions in a "supervisory" role or capacity with respect to the NCR accused's medical treatment and clinical progress. Review Boards are in effect empowered to make orders and conditions "related to" or "regarding" an NCR accused's medical treatment (or the supervision of such treatment) while in the custody of a provincial hospital; Review Boards also have the power . . . to make such orders and conditions binding on all parties involved, including hospital authorities. . . . [These] ensure that the NCR accused is provided with opportunities for appropriate and effective medical treatment, in order to help reduce the risk to public safety and to facilitate rehabilitation and community reintegration. The scope of this power would arguably include anything short of actually prescribing that treatment be carried out by hospital authorities. It would therefore include the power to require hospital authorities and staff to question and reconsider past or current treatment plans or diagnoses, and explore alternatives which might be more effective and appropriate.

[33] In the present case, the ORB was faced with an NCR accused suffering a clear treatment impasse and the possibility of many further years of involuntary detention beyond the 24 years already passed. On reading the formal disposition order and the reasons that justify it, it appears that the Board overlooked the important role of its order-making power in these circumstances. Mazzei highlights this importance at para. 42:

[I]f there is a treatment "impasse", then a Board's function could not be properly carried out unless it were able to impose conditions to deal with this lack of progress and to seek out more effective treatment opportunities. (Emphasis added)

[34] I would therefore allow the appeal on the merits and remit the matter back to the ORB for a new hearing to consider which conditions, if any, should be imposed in order to break the impasse.

(ii) Does the ORB have Charter jurisdiction?

Background

[35] In considering this question, I am mindful of what Chief Justice McLachlin said concerning the task of a court in interpreting s. 24 of the Charter in R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, at para. 24:

In summary, the task of the court in interpreting s. 24 of the Charter is to achieve a broad, purposive interpretation that facilitates direct access to appropriate and just Charter remedies under ss. 24(1) and (2), while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislatures in prescribing the jurisdiction of courts and tribunals. [page348]

[36] The issue to be addressed is whether the ORB is a "court of competent jurisdiction" for the purposes of s. 24(1) of the Charter which provides:

24(1) 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.

[37] The Supreme Court of Canada has articulated a three- tiered test. A court of competent jurisdiction for Charter purposes is a court or statutory tribunal that has jurisdiction over the person, the subject matter of the proceeding and the remedy sought. See R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, at p. 890 S.C.R. and Mooring, supra, at paras. 22 and 23.

[38] Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46 establishes the jurisdiction of provincial review boards. It is to that parliamentary grant of authority, among other sources, that one must look to determine whether the ORB has been given jurisdiction over the person, the subject matter and the remedy sought.

[39] All parties to this appeal are agreed that the ORB has jurisdiction over the person in this case. The point of departure is on the second and third branches of the three- tiered test -- whether the ORB has jurisdiction over the subject matter and the remedy sought.

Subject matter jurisdiction

[40] The parties disagree on the proper test for subject matter jurisdiction. On the one hand, amicus curiae argues that subject matter jurisdiction exists in this case because Mr. Conway's Charter allegations arise from and directly address factual matters that fall squarely within the ORB's jurisdiction. According to amicus curiae, the ORB's jurisdiction was set out by the Supreme Court of Canada in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), supra, at para. 42, as follows:

The role of a Board is to assess the risk to public safety posed by certain NCR accused persons, to provide opportunities for appropriate and effective medical treatment with a view to controlling and reducing that risk, to work towards the ultimate goal of rehabilitation and reintegration, and to safeguard the liberty interests of the accused in this process.

According to amicus curiae, since all of Mr. Conway's Charter allegations directly address factual matters arising from his treatment, rehabilitation and liberty interests while detained at CAMH, the ORB has subject matter jurisdiction. [page349]

[41] On the other hand, counsel for CAMH and the ORB both cite the Supreme Court's judgment in Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, for the general proposition that the ORB must have express or implied jurisdiction to decide questions of law, in order to have jurisdiction over the subject matter of the proceeding.

[42] In Martin, the appellants, who were claimants under the Nova Scotia Workers' Compensation Act, S.N.S. 1994-95, c. 10 alleged that s. 10B of that Act and certain regulations under the Act infringed s. 15(1) of the Charter. The Supreme Court upheld the Charter challenge and in doing so, said (at para. 3):

Administrative tribunals which have jurisdiction -- whether explicit or implied -- to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision.

[43] Although the Charter application in the case at bar does not, as in Martin, involve an attack on the constitutional validity of the statutory mandate of the tribunal, counsel argued that the reasoning in Martin is equally applicable to assess subject matter jurisdiction.

[44] The jurisdiction of a review board to make dispositions is confined to making one-of-three orders in accordance with s. 672.54 of the Criminal Code which provides:

Dispositions that may be made

672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

[45] What is urged on this court by counsel for CAMH and the ORB is that for the Board to make one of the three orders in s. 672.54 involves no more than a fact-finding exercise which requires a review of the medical and other evidence which is [page350] placed before it. The Board, they say, is not engaged in deciding questions of law, and thus lacks jurisdiction over the subject matter of the Charter claims.

[46] I do not think that the Martin test for determining whether an administrative tribunal has jurisdiction under s. 52(1) of the Constitution Act, 1982 -- to hold a provision of its enabling statute unconstitutional -- can simply be transferred to the analysis arising under s. 24(1). Indeed, the Supreme Court explained its test in Martin in the following terms (at para. 28):

[Where a tribunal is] endowed with the power to consider questions of law relating to a [statutory] provision, that power will normally extend to assessing the constitutional validity of that provision. This is because the consistency of a provision with the Constitution is a question of law arising under that provision.

Mr. Conway does not attack the constitutional validity of any provision in Part XX.1 of the Criminal Code. Instead, he asserts that the conditions under which he has been detained infringe his Charter rights. In my view, where Charter allegations impugn state or administrative action, as opposed to the validity of a statutory provision, the test from Martin is inapplicable.

[47] I find additional support for this view in Tétrault- Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22, [1991] S.C.J. No. 41, where the Supreme Court highlighted the distinction between s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982 (at p. 31 S.C.R.):

I should point out . . . that like Douglas College and Cuddy Chicks, this case does not involve the application of s. 24(1) of the Charter and the consequent need for a determination of whether the tribunal is a "court of competent jurisdiction" within the meaning of that section. In particular, the respondent does not seek . . . any remedy that would require the invocation of s. 24(1). All she is asking is that the Board of Referees disregard s. 31 when calculating the benefits that would otherwise be due her under the Act . . . [I]n the present case it is s. 52(1) of the Constitution Act, 1982 that is being relied upon by the respondent, rather than s. 24(1) of the Charter. (Emphasis added)

[48] Further, in Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, [2003] S.C.J. No. 34, the Supreme Court held that the Martin test dealing with s. 52(1) -- rather than the Mills test under s. 24(1) -- applies to determine whether a tribunal has jurisdiction to apply s. 35(1) of the Constitution Act, 1982 (dealing with aboriginal rights), at paras. 39 and 40:

I am of the view that the approach set out in Martin, in the context of determining a tribunal's power to apply the Charter [to determine the validity of a statutory provision], is also the approach to be taken in determining a tribunal's power to apply s. 35 of the Constitution Act, 1982. The essential question is whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law . . . [page351]

. . . [T]his Court has already recognized that the power to find a statutory provision of no effect, by virtue of s. 52(1) of the Constitution Act, 1982, is distinct from the remedial power to invoke s. 24(1) of the Charter: Tétrault- Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22, at p. 31 . . . [Moreover,] this Court's decisions in Dunedin [R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575] and [R. v.] Hynes [2001 SCC 82, [2001] 3 S.C.R. 623] dealt, in two different contexts, with the same question: Was there a "court of competent jurisdiction" for the purposes of s. 24(1) of the Charter? ... The inquiry in those cases, and prior ones, such as Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, arises from the term 'court of competent jurisdiction' in s. 24(1). The test developed for applying that term should not, in my view, be taken as suggesting that, outside that unique context, there will be lines drawn between the kinds of constitutional questions that a tribunal is able to hear. (Emphasis added)

[49] Although I am somewhat persuaded by amicus curiae that the ORB has subject matter jurisdiction over the Charter claims in this case, it is not necessary for me to reach a definitive conclusion on this issue because of my ultimate finding, discussed below, that the ORB lacks remedial jurisdiction.

Remedial jurisdiction

[50] In my view, the ORB has no jurisdiction to grant the remedy sought here, an absolute discharge. I say this for the following reasons.

[51] First, I find that this conclusion is supported by the reasons for judgment of the majority of the Supreme Court of Canada in Mooring. In that case, Sopinka J. for the majority, said (at para. 24):

Even assuming that the Parole Board has jurisdiction over the party and the subject matter, I am satisfied, on the basis of (i) the structure and function of the Board and (ii) the language of the Board's constituting statute, that it is not empowered to make the order sought.

I take a similar view of the jurisdiction of the ORB to grant the order sought in this case.

[52] In his analysis under the third branch of the Mills test, Sopinka J., as indicated above, adopted a functional and structural approach. He identified several factors in the function and structure of the Parole Board which led him to conclude that the Board did not have the authority to grant the remedy sought -- the exclusion of evidence under s. 24(2) of the Charter.

[53] The functional and structural approach was adopted and refined by Chief Justice McLachlin in 974649 Ontario Inc. The following excerpts from her reasons for judgment provide a useful guideline to this approach [at paras. 35, 44-46]: [page352]

The paramount question remains whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter remedy in issue.... . . . . .

The function of the court or tribunal is an expression of its purpose or mandate. As such, it must be assessed in relation to both the legislative scheme and the broader legal system. First, what is the court or tribunal's function within the legislative scheme? Would jurisdiction to order the remedy sought under s. 24(1) frustrate or enhance this role? How essential is the power to grant the remedy sought to the effective and efficient functioning of the court or tribunal? Second, what is the function of the court or tribunal in the broader legal system? Is it more appropriate that a different forum redress the violation of Charter rights?

The inquiry into the structure of the court or tribunal relates to the compatibility of the institution and its processes with the remedy sought under s. 24. Depending on the particular remedy in issue, any or all of the following factors may be salient: whether the proceedings are judicial or quasi-judicial; the role of counsel; the applicability or otherwise of traditional rules of proof and evidence; whether the court or tribunal can issue subpoenas; whether evidence is offered under oath; the expertise and training of the decision-maker; and the institutional experience of the court or tribunal with the remedy in question: see Mooring, supra, at paras. 25-26. Other relevant considerations may include the workload of the court or tribunal, the time constraints it operates under, its ability to compile an adequate record for a reviewing court, and other such operational factors. The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform its intended function.

Two sources may provide guidance in determining the function and structure of a court or tribunal: the language of the enabling legislation and the history and accepted practice of the institution. The court or tribunal's constituting legislation may clearly describe its function and structure. However, it often may be necessary to consider other factors to fully appreciate the court or tribunal's function, or the strengths and limitations of its processes. Factors like the workload of the court or tribunal, the time constraints it operates under, and its experience and proficiency with a particular remedy, cannot be assessed on the face of the relevant legislation alone; rather, regard must be had to the day-to-day practice of the court or tribunal in question.

[54] The functional and structural analysis leads me to the same conclusion that Sopinka J. reached in Mooring.

[55] While Mooring involved a different tribunal, a different constituting statute, and a different remedy, there are a number of factors present in the case at bar that were also present in Mooring and which led Sopinka J. to conclude that the National Parole Board did not have authority to grant the remedy sought: [page353]

(i) the ORB proceedings are inquisitorial rather than adjudicative;

(ii) the ORB proceedings are non-adversarial;

(iii) none of the parties to ORB proceedings is fixed with the burden of proof;

(iv) the traditional rules of evidence are relaxed;

(v) the evidence is generally not presented under oath; [See Note 1 below] and

(vi) although the chair of the panel has legal training, the majority of panel members do not.

See generally, Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31.

[56] In Mooring, the presence of these structural characteristics in the context of the National Parole Board were relevant because they indicated that "neither the Board itself nor the proceedings in which it engages [were] designed to engage in the balancing of factors that s. 24(2) demands": Mooring, at para. 26. In my view, this reasoning applies equally in the present context. A s. 24(1) remedy is one that is "appropriate and just in the circumstances", and this requires "taking into account the sometimes . . . opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system": Hogg, Constitutional Law of Canada, looseleaf (Scarborough, Ont.: Carswell, 1984), at para. 40-36, citing R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, at para. 69. In the case at bar, the decision to grant the appellant an absolute discharge, to remedy Charter breaches occasioned by his detention as a mentally disordered accused who continues to pose a significant risk to the public, involves the balancing of factors that neither the ORB, nor its proceedings, were designed to address. Therefore, as in Mooring, I find that the ORB lacks the structural competence to engage in the balancing exercise that would be required to grant an absolute discharge as a Charter remedy.

[57] Second, building on this, I also emphasize that Parliament intended for the ORB to have only limited remedial access to absolute discharges. Under s. 672.54 of the Criminal Code, absolute discharges are only available where an accused "is not a significant threat to the safety of the public". Therefore, to find [page354] plenary jurisdiction in the ORB to grant absolute discharges under s. 24(1) of the Charter would "frustrate" the system established in Part XX.1 of the Criminal Code. This strongly suggests that the ORB's function is not compatible with the remedy sought in this case. See, 974649 Ontario Inc., supra, at para. 44.

[58] Third, given the ORB's statutory jurisdiction, Charter jurisdiction to grant absolute discharges is entirely unnecessary. The only circumstance in which an NCR accused would ever need to invoke the Charter to receive an absolute discharge is one in which such a remedy would, in any event, be unavailable. An NCR accused would only ever seek an absolute discharge under the Charter in circumstances where the ORB has first found him or her to be a significant threat; this follows from the fact that the ORB is required by the Criminal Code to absolutely discharge any accused who is not dangerous: see s. 672.54. Given that an absolute discharge in relation to a significantly dangerous accused cannot, in my view, be an "appropriate and just" remedy under s. 24(1), I find it difficult to imagine a scenario whereby the ORB's function could ever be enhanced by recognizing Charter jurisdiction to grant absolute discharges.

[59] Indeed, the jurisdiction granted to the ORB by the Criminal Code also renders Charter jurisdiction unnecessary in many other situations. For example, Mr. Conway alleges Charter breaches concerning the use of unfair seclusion, excessive confinement and inadequate treatment. However, these issues can and should be addressed through the ORB's statutory jurisdiction to supervise Mr. Conway's treatment. As noted above, the ORB has order-making power that it is required to employ in rendering a disposition that is "least onerous and least restrictive" having regard to, inter alia, the "needs of the accused". It is trite law that courts and tribunals should not address constitutional issues where non-constitutional remedies are sufficient.

[60] Finally, in my view, the ORB simply lacks the resources to properly hold remedial jurisdiction under s. 24(1). The Board is required to conduct annual hearings for each accused. According to its counsel, the ORB held 1,454 hearings in 2006 for 1,181 persons. Annual hearings are usually scheduled at the rate of four per day, five days a week. As already noted, Mr. Conway's hearing took eight days. As counsel for the ORB has observed, a significant amount of time was taken up with his Charter application. I note that this observation was not questioned by any other party on appeal. This leads me to question whether ORB Charter jurisdiction would "frustrate the otherwise informal and expeditious nature of its hearings": Barrett and Shandler, Mental Disorder in Canadian Criminal Law, looseleaf (Toronto: Carswell, 2006), at para. 7-18. [page355] I note here that s. 672.5(2) of the Code provides that hearings "may be conducted in as informal a manner as is appropriate in the circumstances".

[61] Although the Criminal Code does not expressly impose on the ORB strict timelines for dispositional decisions, the Board's "accepted practice" -- to use the language of the Supreme Court in 974649 Ontario Inc., at para. 46 -- of conducting four hearings per day suggests to me that Charter jurisdiction would add a significant additional burden to an already overburdened tribunal. Indeed, the experience of the criminal courts with Charter applications is that they significantly prolong trials. This is a legitimate concern. As the Supreme Court instructed in 974649 Ontario Inc., at para. 46:

Factors like the workload of the court or tribunal, the time constraints it operates under, and its experience and proficiency with a particular remedy, cannot be assessed on the face of the relevant legislation alone; rather, regard must be had to the day-to-day practice of the court or tribunal in question. (Emphasis added) In this respect, I think it is of no moment that the ORB's own rules purport to contemplate Charter jurisdiction -- a statutory tribunal simply cannot augment its own limited jurisdiction by promulgating rules.

Disposition

[62] For the above reasons, I would dismiss the appeal in respect of the Charter application and, as already noted, I would allow the appeal in respect of the merits.

[63] LANG J.A. (dissenting in part): -- I have had the opportunity to read the reasons of Armstrong J.A. I take a somewhat different perspective on the merits of the Ontario Review Board's (the "ORB") decision and reach a different conclusion regarding the ORB's jurisdiction under s. 24(1) of the Canadian Charter of Rights and Freedoms.

[64] After decades of cultural shift, Parliament decided that those of us with mental illness who are declared not criminally responsible for otherwise criminal conduct should be detained in hospitals rather than incarcerated in prisons. Those detained are patients, not criminals. They do not stand accused of any crime. They are to be treated for their illness, not punished for their conduct. Many such people have illnesses or conditions that may be difficult, or impossible, to treat. As a consequence, the hospital will be their only home. Their liberty interests are [page356] severely constrained. These are some of the most vulnerable members of society. How society treats them is a measure of our civilization.

[65] I begin mindful that Parliament assigned responsibility for the oversight of the detention and medical treatment of these patients to highly specialized Review Boards, composed of medical and legal experts, as well as lay persons. Parliament specified the interrelated considerations that Review Boards must address. These considerations are "the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused" (s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46). Parliament also provided for a right of appeal of a Review Board's disposition to this court.

[66] With this backdrop in mind, I turn to the issues. Since my view of the merits informs my conclusion that the Review Board is a court of competent jurisdiction for s. 24(1) Charter purposes, I begin with the merits.

1. The Decision on the Merits

[67] The 2006 ORB disposition under appeal ordered Mr. Conway's continued detention. However, the Board attached no conditions regarding Mr. Conway's medical treatment. As I will explain, in my view, it was both an error of law and unreasonable for the Board not to impose conditions in light of the uncontradicted evidence that, despite 24 years of detention, Mr. Conway had received no effective treatment. Accordingly, I would allow the appeal and add conditions to the Board's disposition in line with the "suggestions" made by the Board in its reasons. As well, I would return the matter to the ORB for further consideration of appropriate additional conditions.

(i) What are the Review Board's powers concerning treatment for a NCR person?

[68] Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 206 C.C.C. (3d) 161 is the leading authority on the scope of a Review Board's power to include in its disposition conditions that are binding on the Director of Forensic Psychiatric Services, hospital authorities and treatment teams. The British Columbia Review Board imposed three specific conditions on Mr. Mazzei's disposition. These conditions required (1) a comprehensive global review of Mr. Mazzei's diagnosis for the purpose of developing an integrated treatment approach to break a treatment impasse and to [page357] overcome Mr. Mazzei's reluctance to participate in his rehabilitation; (2) an independent risk assessment based on the refocused treatment plan; and (3) assertive efforts to enrol Mr. Mazzei, an aboriginal, in culturally appropriate treatment programs.

[69] Bastarache J., writing for the Supreme Court of Canada, concluded that these conditions were consistent with the purpose of Part XX.1 of the Code. Referring to Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 135 C.C.C. (3d) 129, Bastarache J. described the purpose of the legislation at para. 9. He explained that the legislation is designed "to create a mechanism by which Review Boards assess and manage the risk to public safety represented by certain NCR accused persons, and craft appropriate disposition orders which protect society and facilitate the medical treatment of the accused, while restricting their liberty as little as possible" (emphasis added).

[70] Bastarache J. held that the authority to include conditions regarding medical treatment was consistent with the legislative structure. The legislation suggests that "Boards should supervise the process of implementing a disposition order or condition", which allows for the provision of opportunities for appropriate medical treatment. Bastarache J. explained that this function of the Review Boards addresses the interrelated nature of the objectives of the legislation at para. 33:

Thus, the role of Review Boards is merely to ensure that opportunities for medical treatment are provided to an NCR accused, where necessary and appropriate, with a view to reducing the level of risk (see Winko, at para 41). Providing opportunities for effective medical treatment furthers the objective of public safety by attempting to reduce the safety risk posed by the NCR accused; it also furthers the objective of safeguarding the accused's liberty interests by working towards community reintegration and the cessation of most if not all restrictions on the accused's liberty. (Emphasis in original)

[71] However, Bastarache J. also explained that, while Review Boards have the power to make conditions "'regarding' or 'supervising' [a NCR patient's] medical treatment", they may not "actually prescribe such treatment or require that it be provided by hospital staff" (para. 30). This is because the prescription or imposition of medical treatment falls within a hospital's authority. Nonetheless, Review Boards have the jurisdiction to require a reconsideration of a treatment plan and an exploration of alternatives for effective treatment (para. 39). This is consistent with the reasoning in Winko that a NCR patient is not a criminal, but an ill person. In Winko, McLachlin J. (as she was then) observed at para. 41: [page358]

The assessment-treatment model introduced by Part XX.1 of the Criminal Code is fairer to the NCR offender than the traditional common law model. The NCR offender is not criminally responsible, but ill. Providing opportunities to receive treatment, not imposing punishment, is the just and appropriate response. (Emphasis added)

[72] In Mazzei, at para. 42, Bastarache J. addressed the importance of a Review Board arriving at an "independent opinion" about a patient's progress and treatment plan. He observed that "a Board's function could not be properly carried out unless it were able to impose conditions to deal with [a] lack of progress [in treatment] and to seek out more effective treatment opportunities". See also Manitoba (Attorney General) v. Wiebe, 2004 MBCA 109, [2004] M.J. No. 247, 187 Man. R. (2d) 181 (C.A.) and R. v. LePage, 2006 CanLII 37775 (ON CA), [2006] O.J. No. 4486, 214 C.C.C. (3d) 105 (C.A.).

[73] In my view, the ORB not only has the jurisdiction to impose conditions regarding treatment, it has the responsibility to do so, in keeping with its mandate to supervise the patient's detention.

(ii) Should the Board have attached conditions regarding Mr. Conway's treatment?

[74] I turn to the application of these principles to Mr. Conway's case. Mr. Conway, who is of both black and aboriginal ancestry, [See Note 2 below] is now 54 years of age. He has been detained in hospital for more than 24 years, since a finding that he was not criminally responsible for a serious sexual assault. During the two months preceding that assault, Mr. Conway had been showing signs of illness by behaving oddly, hearing voices and displaying paranoia. In earlier years, Mr. Conway suffered significant and prolonged sexual abuse by an uncle, which left him in fear of males. Mr. Conway was also involved in a serious car accident, which may have caused brain damage.

[75] Although there apparently have been no acts of physical assault, Mr. Conway's behaviour during his detention has been uncooperative, abusive, demanding, threatening, intimidating, harassing and difficult in the extreme. This has made the responsibilities of his treatment teams frustrating and unpleasant. [page359] Despite all the evidence to the contrary, Mr. Conway denies that he suffers from a major mental disorder. In addition, it is unclear whether his condition stems from problems with his brain circuitry, brain damage, sexual abuse, or some combination of the three. He has refused antipsychotic medication and, for the most part, has refused other medications and recommended therapies.

[76] At his 2005 review hearing, a different panel of the Review Board ordered Mr. Conway transferred from the Oak Ridge Division of the Mental Health Centre, Penetanguishene ("Oak Ridge"), a maximum security facility, to the Centre for Addiction and Mental Health ("CAMH"), a medium-security facility. The purpose of the transfer was to overcome the treatment impasse between Oak Ridge and Mr. Conway. However, the treatment impasse continued at CAMH. This was recognized by the 2006 Review Board, which denied CAMH's request to return Mr. Conway to Oak Ridge.

[77] Unquestionably, both institutions were frustrated, as was the 2006 Review Board, by the lack of progress in Mr. Conway's treatment. The Board's detailed reasons acknowledge the treatment impasse. The reasons also recognize the "continuing thread" of Mr. Conway's "long held preference to receive treatment from a female attending psychiatrist". Also, the 2006 Board's reasons repeatedly referenced Mr. Conway's refusal to accept antipsychotic medication. The Board noted the opinion of Mr. Conway's treating psychiatrist, Dr. Darby, that Mr. Conway's roadmap to mental wellness is uncertain in the continued absence of treatment with antipsychotic medication.

[78] The Board quoted from the hospital report that Mr. Conway consistently appealed findings of incapacity to the provincial Consent and Capacity Board (the "CCB"): see Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A. A reading of the record discloses that, when Mr. Conway has been found incapable of making treatment decisions, he has undertaken lengthy appeals or judicial reviews. [See Note 3 below] However, the Board's reasons are silent regarding the status of the current CCB application regarding Mr. Conway's capacity to consent. It would have been helpful if the matter had been addressed by the Board.

[79] The Board recorded a number of concerns about Mr. Conway, including a caution to Mr. Conway to "conduct himself in a civilized manner". The Board observed that, but for his NCR status, [page360] Mr. Conway's conduct at CAMH amounted to legal criminal harassment. The Board described him as an "egocentric, impulsive bully with a poor to absent ability to control his own behaviour". The Board referred to an "unfair vilification" of his current male psychiatrist and observed that "progress will only become possible provided that Mr. Conway decides to start immediately to permanently and radically alter his current unacceptable clinical behaviour".

[80] This language by the Board raises two concerns, particularly when considered in the context of the Board's defence of Mr. Conway's treatment team. First, it does not explain whether, in the Board's view, Mr. Conway's conduct arises from his brain disorder or whether he is simply an obnoxious individual who, if roundly chastised, will see the light and cooperate in the future, despite 24 years of non- cooperation. For me, the distinction is important since the evidence suggests that Mr. Conway likely cannot control his behaviour without treatment. Second, the language chosen by the Board may exacerbate, albeit unintentionally, the treatment impasse by placing blame and pitting patient against treatment team. Increasing discord between individuals who must work together on a daily basis will likely hinder a resolution of current problems.

[81] Dr. Langevin, a widely recognized psychologist, testified on Mr. Conway's behalf about treatments other than medication. He noted positive signs, including Mr. Conway's expressed agreement to take both an anger management course and to accept sexual abuse group counselling. As well, Mr. Conway testified that he would agree to accept "one-to-one therapy". Dr. Langevin attested to the need for a treatment plan structured by an outside consultant that would assist Mr. Conway with his anxiety, especially his anxiety about males. Input from an independent consultant would also serve to address Mr. Conway's clear antipathy to his male treating psychiatrist and his distrust of CAMH staff. By including positive reinforcements, a plan could encourage Mr. Conway to achieve set goals. Dr. Langevin's recommendations were neither accepted nor rejected by the Board.

[82] The only treatment-related condition referenced by the Board was a general one located in the preamble to the Board's disposition, providing that CAMH create a program for "the detention in custody and rehabilitation of [Mr. Conway]". No conditions provided Mazzei-type guidance regarding treatment. The Board's reasons did contain some "suggestions". These included recommendations for a thorough investigation to determine whether Mr. Conway sustained any brain damage, for a "renewed treating team" and for group therapy. The Board did [page361] not explain why it gave "suggestions" in its reasons instead of attaching conditions to its disposition.

[83] In my view, the Board's failure to impose conditions was in error and unreasonable in light of its mandate to supervise the patient's detention and the lack of progress in Mr. Conway's treatment in the preceding year. It was also incumbent on the Board to specifically consider Dr. Langevin's proposed conditions. If the Board had reason to refuse to attach those conditions regarding treatment to its disposition, it was obliged to explain why. A disposition simply continuing the unsatisfactory status quo did not comply with the Review Board's mandate.

[84] In my view, the Review Board's suggestions should be conditions of its disposition. Accordingly, I would allow Mr. Conway's appeal and add the Board's suggestions as conditions of the disposition. These conditions would require a review of the causes of Mr. Conway's conditions and particularly the possibility of brain damage; appropriate inclusion of Mr. Conway in recommended group treatment; and provision for a renewed treatment team.

[85] Since the ORB did not deal with Dr. Langevin's recommendations, I would also return the matter to the Board to consider those recommendations as conditions of its disposition. As well, I would return the matter so the Board may add any appropriate further conditions regarding Mr. Conway's treatment.

2. Charter Remedies

[86] I turn next to Mr. Conway's Charter application. I agree with Armstrong J.A.'s conclusion that the remedy of an absolute discharge is not available on this record. Given Mr. Conway's dangerousness, such a remedy would not be "appropriate and just" within the meaning of s. 24(1). However, I do not agree with Armstrong J.A.'s conclusion that the ORB is not a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter.

[87] The analysis is guided by the decisions of the Supreme Court of Canada in R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, 26 C.C.C. (3d) 481 and R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, [2001] S.C.J. No. 79, 159 C.C.C. (3d) 321. As well, this court must consider Mooring v. Canada (National Parole Board), 1996 CanLII 254 (SCC), [1996] 1 S.C.R. 75, [1996] S.C.J. No. 10, which concluded that the National Parole Board is not a court of competent jurisdiction. However, Mooring considered s. 24(2) Charter jurisdiction issues, which deals with the exclusion of evidence. This invokes very different considerations in light of the Board's mandate. [page362]

[88] Mills provided a three-tiered test for determining s. 24(1) jurisdiction. The court held that a tribunal must have jurisdiction over (1) the person; (2) the subject matter of the proceeding; and (3) the remedy sought. The ORB's jurisdiction over the person is conceded by the parties to this appeal. The main issues are whether the ORB has jurisdiction over the subject matter and over the remedy sought.

(i) Jurisdiction over the subject matter

[89] I am persuaded that the ORB has jurisdiction over the subject matter, premised in part on the amicus curiae's argument that Mr. Conway's Charter allegations address factual matters arising from the considerations specified in s. 672.54 of the Criminal Code. Specifically, the Charter allegations concern Mr. Conway's treatment, rehabilitation and liberty interests while detained at CAMH. The Board would not have jurisdiction to the extent Mr. Conway's Charter allegations challenge the actual medical treatment prescribed and imposed by hospital authorities. However, in my view, the Board does have jurisdiction over the allegations relating to Mr. Conway's conditions of detention, including conditions regarding treatment.

[90] To the extent it is necessary to do so, I also reject the arguments of CAMH and the ORB invoking Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, including their argument that the ORB's jurisdiction does not extend to making findings of law. Even if the ORB's s. 24(1) Charter jurisdiction depends upon its jurisdiction to decide questions of law, in my view, Parliament's intention to provide this jurisdiction is implicit in at least three ways. First, Review Boards have the jurisdiction to interpret the language of their home statute. Second, s. 672.4(1) of the Criminal Code provides that the Review Board's chairperson must be "a judge of the Federal Court or of a superior, district or county court of a province, or a person who is qualified for appointment to, or has retired from, such a judicial office". It would not be necessary to have such a chairperson unless questions of law formed part of the Board's mandate. Third, Parliament's intention that the ORB make findings of law can be inferred from s. 672.72(1) of the Criminal Code, which provides for a statutory right of appeal to a court of appeal from a Review Board decision. A party may appeal on "any ground of appeal that raises a question of law . . . or of mixed law and fact". Parliament would not have provided for an appeal on a question of law if such questions were not within the ORB's mandate. [page363]

(ii) Jurisdiction over the remedy sought

[91] To discern whether a particular tribunal has the power to grant the remedy sought, McLachlin C.J.C. adopted a "functional and structural approach" at para. 35 of 974649:

This approach answers the question of whether a court or tribunal has the power to issue the remedy sought by focusing on its function and structure. On this view, it is not necessary that the court or tribunal have the power to grant the precise remedy sought or even a remedy of the same "type". Although these factors may weigh heavily in the analysis, they are not determinative. The paramount question remains whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter remedy in issue. If so, it can reasonably be inferred, in the absence of any contrary indication, that the legislature intended the court or tribunal to have this remedy at its disposal when confronted with Charter violations that arise in the course of its proceedings. This approach, as I shall discuss in greater detail, is implicit in Mills and affirmed in [Weber v. Ontario Hydro, [1993] 2 S.C.R. 929] and Mooring. (Emphasis in original)

See also paras. 44-46 of 974649.

[92] Armstrong J.A. and I differ on the result that follows from the application of these principles. In my view, applying the functional and structural approach leads to the conclusion that a Review Board has s. 24(1) remedial Charter jurisdiction over matters within its mandate on a review hearing.

(a) The ORB's function

[93] In addressing the function of the tribunal within its legislative scheme, McLachlin C.J.C. asked whether jurisdiction to order a s. 24(1) Charter remedy would frustrate or enhance the tribunal's role. She also queried how essential the power to grant the remedy would be to the tribunal's essential functioning.

[94] As a preliminary matter, it is my view that the nature of the remedy sought should not be construed in an unduly narrow manner. It would be overly restrictive to conclude that a tribunal has no jurisdiction to consider a Charter application where the specific remedy requested is not essential for the functioning of the tribunal, but where a related remedy does meet this requirement. In this case, it is open to this court to consider whether the Review Board, in keeping with its function, may grant an absolute discharge or may order conditions or may make such other orders that are appropriate to remedy a breach of the patient's Charter rights.

[95] The ORB's purpose is clearly delineated in s. 672.54 of the Criminal Code, which provides that a Review Board must consider "the need to protect the public from dangerous persons, the [page364] mental condition of the [NCR patient], the reintegration of the [patient] into society and the other needs of the [patient]". As described in Winko, if a Review Board determines that the patient represents a threat to public safety, and therefore an absolute discharge is not available, the Board must impose a disposition, with conditions, that is the least onerous and restrictive.

[96] Section 672.54 requires the Board to balance the interests of society to be protected from a dangerous patient against the patient's liberty interests, while promoting the goal of reintegrating a rehabilitated patient into the community. The Board must exercise discretion to achieve a level of safety for society and to promote recovery for the patient. This complex balancing requirement is akin to the balancing of interests required under s. 24(1) of the Charter.

[97] Further, the power to grant a Charter remedy could enhance a Review Board's role by giving it the tools essential to exercise its supervisory mandate regarding medical treatment and the imposition of the least onerous conditions of detention.

[98] McLachlin C.J.C., in 974649, also instructed courts to examine the function of the tribunal in the broader legal system and to inquire whether the tribunal is the appropriate forum to redress a Charter violation. In my view, the Review Board's function is an extremely important component of the broader legal system, particularly in light of its responsibilities to protect society and to provide care for individuals who are ill. The Review Board balances the safety of society against the liberty of the patient in circumstances where the risk posed by the patient cannot be addressed by the civil mental health system. The ORB is ideally situated to perform this task. It brings considerable expertise to its mandate by reason of its statutory composition of mental health professionals, experts in the law and representatives of the public. The strength of this combined expertise provides an exceptionally qualified perspective for a determination of whether a patient's Charter rights have been breached in a detention setting. Indeed, the Review Board is perhaps best situated to make the factual findings that are essential to such an inquiry and to place them in an informed context. If a Review Board exercises s. 24(1) Charter jurisdiction, its reasons would provide the factual basis necessary to ground the legal Charter question. In addition, the legal decision and the appropriate remedy would be subject to review by an appellate court on a standard of correctness. Any legal error by the Board would be corrected on appeal.

[99] McLachlin C.J.C. also observed at para. 82 of 974649 that courts "should not interpret the will of the legislature in such a [page365] way that it results in the effective denial of Charter-mandated relief, in the absence of an unequivocal indication to this effect": see also Martin, at para. 29. While Armstrong J.A.'s reasons do not address the issue of an alternative forum for s. 24(1) Charter challenges, the amicus curiae and the Attorney General suggest the Superior Court would be the appropriate forum. The ORB argues that either the Superior Court at first instance, or this court on appeal, has s. 24(1) Charter jurisdiction.

[100] However, in my view, an NCR patient should not be compelled to make a separate Charter application to a Superior Court when the application could be dealt with at a review hearing. A separate application makes little sense where the Charter issue directly relates to the patient's terms of detention. It would only add an additional and unnecessary hurdle for a person already challenged by mental illness. The reality is that few patients will possess the persistence exhibited by Mr. Conway to pursue Charter breaches into a separate forum. To bifurcate the proceedings as suggested could effectively render a Charter remedy illusory for all but a few tenacious NCR patients. It would also result in a multiplicity of proceedings with added expense and delay, both financial and emotional. In my view, this is a strong reason to conclude that the ORB is the most logical and convenient forum.

(b) The ORB's structure

[101] I turn to comment on the second consideration set out in 974649, the structure of the tribunal.

[102] In my view, the structure of review hearings is consistent with the consideration of s. 24(1) Charter remedies. In 974649, McLachlin C.J.C. recommended consideration of the following factors at para. 45:

. . . whether the proceedings are judicial or quasi-judicial; the role of counsel; the applicability or otherwise of traditional rules of proof and evidence; whether the court or tribunal can issue subpoenas; whether evidence is offered under oath; the expertise and training of the decision-maker; and the institutional experience of the court or tribunal with the remedy in question: see Mooring [cite omitted]. Other relevant considerations may include the workload of the court or tribunal, the time constraints it operates under, its ability to compile an adequate record for a reviewing court, and other such operational factors. The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform its intended function.

[103] The following factors indicate that the Review Board's structure supports its jurisdiction to provide s. 24(1) Charter remedies: [page366]

-- Review hearings are usually conducted on an adjudicative model. Although a Review Board's role is often described as inquisitorial, counsel call witnesses who are examined and cross-examined in the same manner as in a court proceeding (s. 672.5(11) of the Code, Winko at paras. 54-55). The Review Board receives submissions, makes factual determinations and applies the law to its findings of fact to arrive at an appropriate disposition (s. 672.5(11) of the Code, Rules 16-21, Rules of Procedure for the Ontario Review Board published in the February 2, 2002 edition of the Canada Gazette (Vol. 136, No. 5). [See Note 4 below]

-- While s. 672.5(2) of the Criminal Code instructs that a hearing "may be conducted in as informal a manner as is appropriate in the circumstances", this indicates that hearing procedures are flexible and can be tailored to address the inquiry before the Board. In the case of a constitutional application, the Board may seek to conduct the hearing in a more formal, judicial manner.

-- A quorum is three board members. However, panels are usually composed of five members, two of whom have significant legal experience equivalent to that of judges, two of whom have significant mental health expertise, and one of whom is a lay member (ss. 672.38, 672.39, 672.4 and 672.41).

-- The Review Board may designate the Attorney-General as a party, and may afford party status to other persons (ss. 672.5(3) and (4)).

-- The chairperson of the Review Board has powers under the Inquiries Act, R.S.C. 1985, c. I-11 (s. 672.43 of the Code).

-- The chairperson of the Review Board has the power to summon witnesses (s. 672.5(12)).

-- Evidence may be taken under oath (s. 672.43 of the Code and s. 4 of the Inquiries Act). [page367]

-- The Board's procedural rules, published in the Canada Gazette, anticipate Charter applications and require the applicant to state the nature of the constitutional violation and the remedy sought (s. 672.44(1) of the Code, Rule 12, Rules of Procedure for the Ontario Review Board).

-- There is a complete record of the proceedings (s. 672.52(1)).

-- The Board is required to give written reasons in the record of the proceedings (s. 672.52(3)).

-- In review hearings, the Board is not required to meet the tight time constraints imposed on boards such as the Consent and Capacity Board (ss. 672.47 and 672.82 of the Code, s. 75 of the Health Care Consent Act).

-- The parties have the unrestricted right to appeal questions of law, questions of fact and questions of mixed fact and law (s. 672.72(1)).

-- Since review hearings are conducted annually, any burden on the Board to consider factual issues related to alleged Charter breaches would be limited in nature (s. 672.81(1)).

[104] All these factors operate to support the conclusion that the Review Board's structure, like the structure of a court, is suited to a consideration of s. 24(1) Charter issues in review hearings.

[105] These factors demonstrate that the operations of the ORB are manifestly different in nature and kind from those of the National Parole Board considered in Mooring and relied upon by Armstrong J.A. As noted by Sopinka J. in Mooring, at para. 26, the only function of a Parole Board post-suspension hearing is to determine the risk to society of a continued conditional release. Counsel at such a parole hearing play a very limited role. Only at the end of the hearing may counsel address the Parole Board on behalf of the client (para. 25). Parole Boards do not have the power to issues subpoenas and the presiding panel may have no legal training (para. 25). Furthermore, Mooring involved a s. 24(2) question about the Parole Board's jurisdiction to exclude relevant evidence obtained through a Charter breach. The present case under appeal does not raise a s. 24(2) issue. Accordingly, I do not read Mooring as determinative of whether a Review Board can exercise s. 24(1) jurisdiction.

[106] I am not persuaded otherwise by the considerations raised by Armstrong J.A., specifically: the requirement on the [page368] ORB to conduct annual hearings; the Board's resources to take on Charter jurisdiction and Armstrong J.A.'s conclusion that a great deal of time was spent at Mr. Conway's eight-day hearing on the Charter application.

[107] In my view, the statement in the ORB's factum that six days out of the Board's eight-day hearing were devoted to Charter issues does not survive scrutiny. Witnesses were called, examined and cross-examined throughout the hearing. While some questions concerning Charter issues were embedded in the examinations, there was no "separate" Charter hearing. All issues were dealt with together, as they should be. In reality, it appears that the extraordinary length of the hearing was caused by Mr. Conway's extremely troublesome behaviour, resulting in prolonged recesses followed by more intransigent and unacceptably disruptive conduct. This behaviour was described in the ORB's reasons and appears to be unrelated to the Charter issues.

[108] As a practical matter, how would this jurisdiction affect the Board? We were not referred to any evidence to support the position that limited s. 24(1) Charter jurisdiction would disproportionately impede the Board's efficiency. In any event, the Review Board would only consider s. 24(1) applications relevant to its review mandate. It would begin by asking itself whether it has jurisdiction over the remedy sought. At para. 26 of 974649, the Supreme Court of Canada held that any remedial power exercised by the court of competent jurisdiction must be derived explicitly or implicitly from "its enabling legislation". If the Review Board finds jurisdiction, the evidence relevant to the Charter application would likely not significantly differ from the evidence relevant to the merits. The only apparent expansion of the Review Board's workload would be the receipt of submissions on the Charter issue and the completion of additional reasons to reflect its decision. In my view, the additional burden on the Board is not disproportionate, particularly when contrasted with the burden inherent in requiring a detained patient to commence and prosecute a separate application before a Superior Court.

[109] Accordingly, I do not agree with Armstrong J.A.'s implicit conclusion that the ORB is not a "court of competent jurisdiction" within the meaning of s. 24(1) of the Charter. To the contrary, in my view, the function and structure of the Board indicates that Parliament intended it to deal with s. 24(1) Charter issues that it is suited to resolve in review hearings.

[110] I have already indicated that, for obvious reasons, it is not appropriate for the Board to resolve Mr. Conway's alleged Charter breaches by granting an absolute discharge to an individual who is clearly dangerous. [page369]

[111] How then would a Charter remedy operate in the circumstances of this case? Amicus puts forward four alleged breaches. One is apparently frivolous, in that Mr. Conway complains that the staff demand that he use the word "please". On its face, the hospital's requirement for ordinary civility could not amount to a Charter breach. This claim would be summarily disposed of by the Board.

[112] However, the other three alleged breaches, if proven, raise serious issues. Mr. Conway alleges the use of arbitrary seclusion measures upon his transfer to CAMH, confinement for a period longer than seven days without the Board being notified contrary to s. 672.56(2)(b) of the Code, and a failure by the hospital to provide adequate advocacy and treatment resources.

[113] In my view, the Board is in the best position to determine the merits of these three allegations. If the Board concludes that the allegations have merit, and that Mr. Conway was detained in circumstances that were arbitrary or contrary to the hospital's mandate, the Board is in the best position to determine the appropriate remedy, which would presumably be reflected in delineating conditions for Mr. Conway's continued detention. For example, the Board could require the hospital to provide opportunities during Mr. Conway's continued detention for access to both treatment and advocacy. As part of its mandate to order the least onerous and restrictive detention, the Board could also specify conditions to provide guidance surrounding Mr. Conway's future seclusion.

[114] It is difficult to predict the parameters of constitutional applications that the Review Board may receive in the future, or the range of remedies that it may appropriately grant under s. 24(1). In my view, the precise parameters of the Board's Charter jurisdiction are best left to be determined on the basis of the individual circumstances of the case presented.

[115] To conclude, the function and structure of the Board suggests that it can provide an expeditious determination concerning any Charter breaches relating to Mr. Conway's detention and treatment. With the advantage of the Board's perspective on the merits of the allegations and the appropriate remedy, this court would then be in a position to review the correctness of the Board's Charter analysis and the remedy granted by the Board. In my view, requiring the patient to bring these challenges by way of a separate application to the Superior Court would effectively deny his Charter remedies. For these reasons, I would refer the questions of the alleged Charter breaches back to the Board for determination on their merits. [page370]

Disposition

[116] I would allow the appeal and order a hearing of the Board to be held as soon as practicable to consider Dr. Langevin's recommendations, any other appropriate conditions and the alleged Charter breaches.

Appeal allowed in part.

Notes

Note 1: The chairperson of the ORB has the power to require a witness to give evidence under oath, although this power is rarely, if ever, used (s. 672.43).

Note 2: I note that Mr. Conway's aboriginal status was mentioned but not discussed in the Board's reasons. As this court noted in R. v. Sim (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, [2005] O.J. No. 4432, 201 C.C.C. (3d) 482 (C.A.), a Review Board is required to had adequate information about a patient's background, particularly his aboriginal background, where that information would be relevant to the factors the Board is mandated to consider.

Note 3: See for example Conway v. Jacques (2002), 2002 CanLII 41558 (ON CA), 59 O.R. (3d) 737, [2002] O.J. No. 2333 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 341 and Conway v. Jacques, 2005 CanLII 2939 (ON SC), [2005] O.J. No. 400, 250 D.L.R. (4th) 178 (S.C.J.).

Note 4: At para. 46 of 974649, McLachlin C.J.C. stated that a tribunal's function and structure may be gleaned through reference to the language of the enabling legislation and the history and accepted "day-to-day" practice of the institution. Accordingly, I believe it is appropriate to consider the Review Board's Rules of Procedure as a useful indicator of the accepted practices of the Board.