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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights - Constitutional law - Remedy - Administrative law - Boards and tribunals - Jurisdiction - Court of competent jurisdiction - Whether a review board acting under the authority of Part XX.1 of the Criminal Code is a “court of competent jurisdiction” pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, in respect of Charter issues incidental to its statutory mandate and function.

Paul 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 in 1984. He 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, a medium-security facility in Toronto. At his annual review hearing before the Ontario Review Board in the summer and fall of 2006, Mr. Conway 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. At the 2006 hearing, the Appellant also applied for an absolute discharge on conventional, non-constitutional grounds, pursuant to the Criminal Code. This application was dismissed by the ORB on the basis that the Appellant posed “a significant threat to the safety of the public”. Mr. Conway appealed both findings made by the ORB to the Ontario Court of Appeal.

The Ontario Court of Appeal dismissed the appeal in respect of the Charter application, finding the ORB was not a “court of competent jurisdiction” for the purposes of s. 24(1). The Ontario Court of Appeal allowed the appeal on the merits and remitted the matter back to the ORB for a new hearing to consider what conditions on Mr. Conway’s continued detention should be imposed.