The Supreme Court of Canada’s recent decision in R. v. Conway may significantly affect some administrative tribunals in British Columbia by authorizing them to apply the Canadian Charter of Rights and Freedoms to regulatory proceedings.
The Charter authorizes “courts of competent jurisdiction” to grant remedies for state action breaching the principles guaranteed by the Charter. These principles include fundamental freedoms (such as equality, mobility, association, and speech) as well as protection against conduct such as unreasonable search or seizure and guarantees of certain procedural requirements. Until this decision, administrative tribunals were considered by most not to have the powers to enforce those Charter principles.
The Court in Conway set up a two-step process to determine whether a tribunal has jurisdiction to grant Charter remedies. The first involves asking whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless a legislature has demonstrably intended to withdraw the Charter from the tribunal’s authority, the tribunal has jurisdiction to grant remedies concerning Charter issues.
Whether a particular B.C. administrative tribunal has Charter jurisdiction now depends on the wording of provincial legislation. Sections 44 and 45 of the Province’s Administrative Tribunals Act (ATA) will serve as a bar in many instances to Charter jurisdiction at the first stage of the Conway test. These have been adopted in specific legislation and state:
s. 44(1) The tribunal does not have jurisdiction over constitutional questions.
s. 45 (1) The tribunal does not have jurisdiction over constitutional questions relating to the Charter of Rights and Freedoms.
There has not been any judicial interpretation of the combined effect of Conway and ATA. However, the result may now be that there are three categories of tribunals in British Columbia:
• tribunals with jurisdiction over constitutional questions including Charter issues
• tribunals without jurisdiction over any constitutional questions including Charter issues
• tribunals with limited jurisdiction over constitutional questions, but not Charter issues.
On this basis, tribunals that appear to have acquired or affirmed their Charter jurisdiction by virtue of Conway are: the B.C. Review Board, the Building Code Review Board, the Environmental Appeal Board, the Labour Relations Board, and the Securities Commission.
If that is the case, what remains to be determined is whether individual Charter applications before these bodies meet the second Conway requirement — that the tribunal can grant the particular remedy sought given its statutory scheme. The meaning of that limiting language is yet to be determined.
Why did this fundamental shift occur? On a basic level, it seems that, after nearly 30 years of judges working through the challenges involved in interpreting the purpose and meaning of the Charter (as well as setting out its fundamental principles, scope and limits), the Supreme Court has perceived that it should be available, when applicable, to legal proceedings not presided over by judges. As the Conway decision states: “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.”
This statement reinforces then Justice McLachlin’s words in a 1996 decision, Cooper v. Canada (Human Rights Commission):
The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to all people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.
These are strong words that will appeal to many Canadians who encounter administrative tribunals. For them, the Charter can be a source of protection from unfairness or abuse by regulatory bodies. However, real control over how far this new authority will extend is in the hands of the government. It will be interesting to see whether the Supreme Court’s words come to reality with a legislated increase — or decrease — in tribunal jurisdiction over the Charter.