International Law

R. v. Conway

At issue in this appeal was 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. The appellant Conway had been a resident of psychiatric institutions for the past 24 years, since being found not criminally responsible by reason of insanity. Treatment hasn’t improved his condition. He applied for an absolute discharge under s. 24(1) of the Charter for various reasons.

Held, by all three judges that an absolute discharge was not available. The majority, I think, put it best here:

. . . given the ORB?s statutory jurisdiction, Charter jurisdiction to grant absolute discharges is entirely unnecessary. The only circumstance in which an NCR [not criminally responsible] 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.

Dissenting on this point, Lang, J. A. did find the ORB to be a court of competent jurisdiction for purposes of s. 24(1).

Full post as published by Criminal Review on April 29, 2008 (boomark / email).