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Charter - s.24(1) Remedies. Canada v. Boloh 1(a)
In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considered declarations, in contrast with mandamus injunctions, as a Charter remedy:[58] For the benefit of future cases, the remedy granted by the Federal Court deserves comment. Here too, the Federal Court erred in law.
[59] The Federal Court said it was granting declarations. The relevant portions of its judgment are as follows:2. It is hereby declared that the Applicants are entitled as soon as reasonably possible to the Respondents making formal requests to [the Autonomous Administration of North and East Syria] that [the Autonomous Administration of North and East Syria] allow the voluntary repatriation of the Canadian men held in the prisons run by [the Autonomous Administration of North and East Syria’s] military wing the [Syrian Democratic Forces].
3. It is hereby declared that the Applicants are entitled to be provided by the Respondents with passports or emergency travel documents as soon as they are required after [the Autonomous Administration of North and East Syria] agrees to allow the Applicants to be repatriated to Canada.
4. It is hereby declared that the Applicants are entitled [to] appointment by the Respondents of a representative(s) or delegates(s) to attend within [the Autonomous Administration of North and East Syria] controlled territory or as otherwise agreed as soon as possible after [the Autonomous Administration of North and East Syria] agrees to hand over the Applicants for the repatriation to Canada. [60] Declarations are supposed to be declarations of rights held by those seeking them. But, in reality, what the Federal Court awarded were not declarations. They were disguised mandatory orders or disguised mandamus remedies against the Government of Canada.
[61] The established legal prerequisites for administrative law remedies cannot be avoided simply by applying a different label to the remedy, such as "“declaration”": Schmidt at paras. 21-22; Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737. Instead, the court must determine the essential character and real essence of the remedy being sought: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at paras. 49-50. Once that is done, the court must first identify the legal prerequisites for it. Only then can it decide whether it is able to grant the remedy and, if so, whether it should.
[62] The essential character and real essence of the remedy the Federal Court awarded was the imposition of mandatory obligations upon the Government of Canada, something akin to mandamus. The Federal Court said that the Government of Canada "“must make a formal request”" for the repatriation of the respondents (at para. 155), must provide appropriate travel documents to the respondents (at para. 145) and "“must appoint”" a delegate or a Government of Canada official to travel to Syria to deal with the handover of the respondents (at para. 161). These matters had to be done "“as soon as reasonably possible”" (at para. 160), meaning forthwith.
[63] However, mandatory obligations or mandamus cannot be imposed without first determining whether their exacting legal prerequisites are met: for a statement of these prerequisites, see, e.g., Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93 at para. 14, citing, among other authorities, Apotex v. Canada (Attorney General), 1994 CanLII 47 (SCC), [1994] 3 S.C.R. 1100, 29 Admin LR (2d) 1, aff’g 1993 CanLII 3004 (FCA), [1994] 1 F.C. 742, 18 Admin LR (2d) 122 (C.A.) at 767-768 F.C. Here, the prerequisites were not met.
[64] Further, in granting mandatory remedies in this area, courts must proceed with caution. The Government of Canada is entitled to consider possible dangers and other considerations such as foreign relations, international affairs and national security, and their judgments on such matters deserve a wide margin of appreciation and deference: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 56; Khadr (2010) at para. 37.
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[68] To the extent that the Court’s declaratory remedy was not just a mandamus order but was intended to be made under subsection 24(1) of the Charter as an "“appropriate and just”" remedy, many of the same considerations apply. For example, remedies under subsection 24(1) of the Charter must be granted with due respect for the proper roles of the judiciary and the executive, and the legal and practical limits of the judicial role: Doucet-Boudreau at paras 56-57. . R. v. Babos
In R. v. Babos (SCC, 2014) the Supreme Court of Canada states the SOR for a Charter s.24(1) remedy:[48] The standard of review for a remedy ordered under s. 24(1) of the Charter is well established. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice” (Bellusci, at para. 19; Regan, at para. 117; Tobiass, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51). . 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.
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[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.
. Shortt (Re)
In Shortt (Re) (Ont CA, 2020) the Court of Appeal considered a NCR (non-criminally responsible) case that took a first step at obtaining what can be called a 'housing funding' remedy:[1] The appellant, Wesley Shortt, has been detained in forensic custody since March 7, 2007 after he was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. He is currently detained at St. Joseph’s Healthcare Hamilton (“Hospital”). Since at least 2014, the Ontario Review Board (“Board”) has repeatedly held that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is eligible to live in the community of Southern Ontario in accommodation approved by the Person in Charge.
[2] Mr. Shortt is eligible to live in a community residential setting if appropriate supports are provided. If this happens, his detention in forensic custody would not be necessary for public safety, nor would it advance any of the factors in s. 672.54 of the Criminal Code.
[3] Unfortunately, this component of the Board’s dispositions for Mr. Shortt, consistent for the last six years, has not been implemented. While the Hospital continues to support Mr. Shortt’s integration into a community residential setting, he has not been integrated into a community setting because, despite its best efforts, the Hospital has been unable to locate a suitable setting or to obtain meaningful information from the Government of Ontario as to when such a setting might become available.
[4] To break this impasse, Mr. Shortt applied for relief under the Canadian Charter of Rights and Freedoms at his annual review hearing. He argued that his continued detention in forensic custody violated s. 7 of the Charter. If successful on this argument, he sought a prospective remedy under s. 24(1) of the Charter, namely, state funding for suitable supportive housing as described by his treatment team at the Hospital.
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[76] The remedy sought by Mr. Shortt in his Charter application is: “An order allowing the application, releasing the Applicant from the Hospital, and directing the Attorney General to fund appropriate community housing for the Applicant forthwith.”
[77] At the appeal hearing, in response to a question, the appellant acknowledged that an order that the Government (not necessarily the Attorney General) provide community housing with appropriate supports to Mr. Shortt (without mentioning “funding”) in a timely fashion (not “forthwith”) would be appropriate.
[78] I regard this as a fair response. Accordingly, in the highly unusual circumstances of this case, where for six years the Hospital has deemed Mr. Shortt capable of living in the community yet been unable to obtain any meaningful information about why no community setting has been made available to him, it is time for an order. I am inclined to make an order with two components.
[79] First, it is almost 14 months since the Board’s last evaluation of Mr. Shortt. At the appeal hearing, the court was informed that his next annual review is scheduled for November 24, 2020. In my view, the review should take place. In the Board’s last review, based on “the joint submission of the parties”, the Board “found that Mr. Shortt continues to represent a significant threat to the safety of the public” but also that he was eligible “to live in the community of Southern Ontario in accommodation approved by the person in charge.” This has been the Board’s consistent assessment for several years.
[80] Accordingly, in the interests of public safety and fairness to Mr. Shortt, at this stage it is appropriate for the Board to conduct its next annual review and determine whether this longstanding privilege, to be extended at the direction of the Person in Charge, remains an appropriate aspect of the disposition.
[81] Second, the Government must be ready at the next annual review to address the precise location in the community where Mr. Shortt can be placed no later than the end of 2020, provided of course that the Person in Charge of the Hospital deems that setting appropriate. This will require the Attorney General and the MCCSS to work closely together. At this juncture, that is entirely appropriate.
[82] This is an exceptional case. For six years running, the Board has deemed Mr. Shortt capable of living in the community at the discretion of the Person in Charge of the Hospital. For six years running, the Hospital has deemed Mr. Shortt capable of living in the community. The difficulty is that, despite its best efforts, the Hospital has not been able to determine why an appropriate residential setting has not been made available for Mr. Shortt or even when one may be made available. As a result, Mr. Shortt has been languishing in the Hospital and his condition is starting to deteriorate, a development that stands as the antithesis to one of the ultimate purposes of the NCR scheme, to work safely toward the reintegration of NCR accused back into society.
[83] It is against this very unusual backdrop that Mr. Shortt’s liberty has been violated, and not in accordance with the principles of fundamental justice. Provided the Board determines that his condition continues to warrant the possibility of community living with support, the Government must respond immediately and meaningfully to this pressing need for implementation. The Government’s role at the next annual review hearing must be to identify precise implementation, not to contest it.
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