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Tribunals can apply Charter rights, Supreme Court rules

A landmark Supreme Court of Canada ruling has significantly widened the reach of the Charter of Rights and Freedoms, handing a broad range of administrative tribunals the right to find Charter violations and create legal remedies.

In a 9-0 ruling on Friday, the court said that administrative tribunals - quasi-judicial bodies that hear cases involving everything from labour relations and school boards to human rights - are perfectly capable of applying the Charter in their fields of expertise.

"We do not have one Charter for the courts and another for administrative tribunals," said Madam Justice Rosalie Abella, the architect of the transformation.

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Toronto psychiatric patient Paul Conroy, who has been in involuntary detention in a mental institution for the past 25 years, had asked the Ontario Review Board to order his release and affirm his rights under the Charter. The board rejected his request, and said it did not have jurisdiction to make a ruling under the Charter.

Lawyers involved in the case, in which Mr. Conroy asked the court to declare that the board can interpret the Charter, said that it represents a substantial leap in the evolution of the Charter.

"The possibilities now are kind of endless," said lawyer Joseph Arvay, who represented the British Columbia Review Board in the appeal. "Whether in human rights, employment standards or a whole myriad of other areas, hundreds - or thousands - of these boards have been given a real boost."

Authorities are quietly bracing for a possible deluge of Charter litigation at tribunals. Lawyers who advocated for the legal change said that mental patients, prison inmates and students are among those who can now use these forums to assert such Charter rights as equal treatment under the law, religious freedom, free speech, freedom from unreasonable punishment and the right to life, liberty and security.

Examples of the sort of litigation that could be forthcoming include: psychiatric patients asking to attend religious services outside their hospital; demands by prisoners or psychiatric patients for more humane living conditions, reading materials, free contact with the news media, or special programming that is sensitive to cultural background; and applications to be released from solitary confinement

Joe Wright, a spokesman for the Ontario Review Board, said yesterday that the ORB will meet each Charter challenge individually. "If a situation arises where the clinical seems to conflict with the constitutional, the Supreme Court has now provided for the board to resolve those tensions - whether through a Charter application or its regular process," he said.

Marlys Edwardh, a pioneer in mental health law who represented Mr. Conway, said Friday that the sky is the limit. "I see this as an absolutely huge victory," she said.

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Ms. Edwardh said that the only sad note is that the Supreme Court denied Mr. Conway's request to be granted an absolute discharge from Toronto's CAMH facility. However, her co-counsel, Delmar Doucette and Jessica Orkin, said that they plan to launch Charter litigation to improve the 55-year-old man's living conditions.

"It's quite exciting," Mr. Doucette said. "Many tribunals will have to reassess their jurisdiction now."

Judge Abella said in the ruling that the power of administrative tribunals under the Charter was a mystery when the Charter came into being in 1982.

A long line of decisions developed the law on a piecemeal basis, she said, but the time had arrived to consolidate those decisions and create a broad-based power for tribunals and boards to apply Charter remedies.

"All of these developments serve to cement the direct relationship between the Charter, its remedial provisions and administrative tribunals," she said.

Judge Abella said that the ruling will also enhance access to justice, since many would-be Charter litigants have no hope of undertaking costly litigation in the courts.

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"Over two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals," she said.

Specifically, tribunals and boards will be able to apply S. 24 of the Charter - a pivotal provision within the Charter that empowers judges and adjudicators to issue a wide spectrum of orders or damage awards.

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About the Author
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

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