Rarotonga, 2010

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THE LATEST WORD

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Canadian Charter of Rights and Freedoms

I've practiced Charter law in past, though it is a complex field so I haven't included it in the Latest Word topics before. This is just a start at it. There is a section on Charter tort law here.

. Criminal Lawyers Assn v Ministry of Public Safety and Security

In Criminal Lawyers Assn v Ministry of Public Safety and Security (Ont CA, 2007) the Court of Appeal held that provisions of Ontario's FIPPA (Freedom of Information and Protection of Privacy Act) legislation that excluded law enforcement records from a general public interest override were a violation of Charter s.2(b). The Charter analysis runs from paras 26-96. The case is important for including within the s.2(b) Charter analysis the obtaining of government information as a subsequent means of enabling freedom of expression with respect to that information.

. R v Conway

On the general question of when an administrative tribunal has Charter jurisdiction, the Supreme Court of Canada in the 2010 case of R v Conway (SCC, 2010) had to decide whether the Ontario Review Board, established under the Criminal Code to decide custodial issues respecting persons declared not criminally responsible ("NCR") by the courts, was a "court of competent jurisdiction" for the purposes of considering Charter law and granting Charter remedies under s.24(1) of the Charter. The court took the oppourtunity to clarify and summarize the law with respect to when any administrative tribunal could apply Charter s.24(1). The court held that the primary question was (similar to that discussed in Tranchemontagne regarding the Human Rights Code) whether the tribunal generally had jurisdiction to decide questions of law. Unless that was expressly restricted by statute, then the tribunal had Charter s.24(1) jurisdiction, but could only grant remedies within it's conventional remedial jurisdiction:
[78] The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions.

.....

[82] Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function ('Dunedin').
The law prior to this was quite similar, though it focussed on requiring that the tribunal have jurisdiction over the parties, the subject-matter, the law, and the remedies sought.


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