R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 SCR 575

R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81

Her Majesty The Queen in Right of Ontario                                                 Appellant

v.

974649 Ontario Inc. c.o.b. as Dunedin Construction (1992)

and Bob Hoy

          Respondents

and

The Attorney General of Canada,

the Attorney General of British Columbia,

the Attorney General for Alberta and

the Criminal Lawyers’ Association of Ontario                                             Interveners

Indexed as:  R. v. 974649 Ontario Inc.

Neutral citation: 2001 SCC 81.

File No.:  27084.

2000:  December 6; 2001:  December 6.

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for ontario

Constitutional law -- Charter of Rights  -- Court of competent jurisdiction -- Provincial offences courts -- Whether justice of the peace acting under provincial offences legislation has power to order costs against Crown for Charter  breach -- Canadian Charter of Rights and Freedoms, s. 24(1)  -- Provincial Offences Act, R.S.O. 1990, c. P.33.

The respondents were charged under the Ontario Occupational Health and Safety Act with failing to comply with safety requirements on a construction project.  The respondents requested that the appellant Crown disclose, among other items, a copy of the Prosecution Approval Form.  The Crown twice refused to disclose the form on the ground that it was protected by solicitor-client privilege.  A justice of the peace acting as a trial justice under the Provincial Offences Act (“POA”) held that the Crown’s failure to disclose this form amounted to a violation of the respondents’ rights under the Canadian Charter of Rights and Freedoms .  The justice of the peace ordered the Crown to disclose the form and to pay the costs of the respondents’ disclosure motion.  The Crown disclosed the form, but successfully applied to the Ontario Court (General Division) to have the order for costs quashed on the basis that a provincial offences court is not a “court of competent jurisdiction” to direct such an order under s. 24(1)  of the Charter .  The Court of Appeal held that a justice operating under the POA does have the power to issue such an order and allowed the appeal.  It remanded the case to the General Division to determine whether in the circumstances of the case he erred in granting costs.

Held:  The appeal should be dismissed.  A justice of the peace presiding at a trial under the POA has power to order legal costs against the Crown for a Charter  breach.

If a government action is inconsistent with the Charter, s. 24  provides remedies for the inconsistency.  Section 24(1)  permits a “court of competent jurisdiction” to provide “such remedy as the court considers appropriate and just in the circumstances”.  A “court of competent jurisdiction” is one that possesses (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy.  The court should interpret s. 24  of the Charter   to facilitate direct access to appropriate and just Charter  remedies, while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislatures in prescribing the jurisdiction of courts and tribunals.

A legislative grant of remedial power under s. 24  may be either express or implied.  A “functional and structural” approach to determining whether a tribunal is competent to grant Charter  remedies under s. 24(2)  accords with the approach to discerning the implied powers of statutory bodies; with the test established for determining whether a tribunal has jurisdiction to consider Charter  issues under s. 52(1)  of the Constitution Act, 1982 ; and with the principles underlying s. 24 .  It strikes a balance between meaningful access to Charter  relief and deference to the role of the legislatures, and promotes direct and early access to Charter  remedies in forums competent to issue such relief.  At the same time, Parliament and the legislatures, subject to constitutional constraints, may expressly or impliedly withhold the power to grant any or all Charter  remedies.  Whether Parliament or a legislature intended to exclude a particular remedial power is determined by reference to the function the legislature has asked the tribunal to perform and the powers and processes with which it has furnished it.

Applying this approach to the POA suggests that provincial offences courts have power to award costs under s. 24(1) . As quasi-criminal courts, they are the preferred forum, in terms of information, for issuing Charter  remedies in cases before them, particularly where the Charter  violation relates to the conduct of the trial.  The legislature has given them a full complement of criminal law remedies to fill gaps in statutory jurisdiction, and to ensure that the remedy that ultimately flows is in fact both appropriate and just.  Costs awards to discipline untimely disclosure are integrally connected to the function of the provincial offences court as a quasi-criminal trial court.  Fracturing the availability of Charter  remedies between provincial offences courts and superior courts could, in some circumstances, effectively deny the accused access to a remedy and a court of competent jurisdiction.  The provincial offences court has detailed procedural rules, and abides by the standard rules of evidence.  Judicial independence is required of justices of the peace.  They receive legal training.  The court’s rulings are subject to appellate review, and there can be interveners on this appeal. Various considerations suggest that the fashioning of costs orders as a Charter  remedy may be safely entrusted to provincial offences courts.

In sum, the function and structure of the POA indicate that the legislature intended the POA court to deal with Charter  issues incidental to its process that it is suited to resolve.  POA justices may thus be assumed, absent a contrary indication, to possess the power to order payment of legal costs by the Crown as a remedy for Charter  violations arising from untimely disclosure.

Cases Cited

Followed:  Mills v. The Queen, [1986] 1 S.C.R. 863; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; referred to:  R. v. Mardave Construction (1990) Ltd., Ont. Ct. (Prov. Div.), January 10, 1994; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447; Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Doyle v. The Queen, [1977] 1 S.C.R. 597; R. v. Pang (1994), 95 C.C.C. (3d) 60; Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807; Symes v. Canada,  [1993] 4 S.C.R. 695; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1989] 2 F.C. 245; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722; National Energy Board Act  (Can.) (Re), [1986] 3 F.C. 275; Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Ouellette, [1980] 1 S.C.R. 568; R. v. Pawlowski (1993), 12 O.R. (3d) 709; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Regan (1999), 137 C.C.C. (3d) 449; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; R. v. Jedynack (1994), 16 O.R. (3d) 612; R. v. Dodson (1999), 70 C.R.R. (2d) 65; R. v. Robinson (1999), 142 C.C.C. (3d) 303; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 24 .

Constitution Act, 1982, s. 52 .

Interpretation Act, R.S.O. 1990, c. I.11, s. 4.

Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 2(1), 90.

Rules of the Court of Appeal in Appeals Under the Provincial Offences Act, O. Reg.721/94, Rule 21(1).

Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200.

Authors Cited

Drinkwalter, W. Douglas, and J. Douglas Ewart.  Ontario Provincial Offences Procedure.  Toronto: Carswell, 1980.

Halsbury’s Laws of England, vol. 44(1), 4th ed. (reissue).  By Lord Hailsham of St. Marylebone.  London: Butterworths, 1995.

Hogg, Peter W.  Constitutional Law of Canada, vol. 2, loose-leaf ed.  Scarborough, Ont.: Carswell, 1997 (updated 2000, release 1).

Macaulay, Robert W., and James L. H. Sprague.  Practice and Procedure Before Administrative Tribunals, vols. 3 and 4.  Toronto: Carswell, 1988 (loose-leaf updated 2001, release 1).

APPEAL from a judgment of the Ontario Court of Appeal (1998), 42 O.R. (3d) 354, 166 D.L.R. (4th) 593, 114 O.A.C. 258, 130 C.C.C. (3d) 1, 39 C.C.E.L. (2d) 1, 58 C.R.R. (2d) 1, [1998] O.J. No. 4735 (QL), allowing the appellant’s appeal from a judgment of the Ontario Court (General Division) (1995), 25 O.R. (3d) 420, 101 C.C.C. (3d) 48, [1995] O.J. No. 2330 (QL), granting the appellant’s application for judicial review.  Appeal dismissed.

Hart Schwartz and Line Forestier, for the appellant.

Norman A. Keith and Rebecca K. Saturley, for the respondents.

Nancy L. Irving and Peter De Freitas, for the intervener the Attorney General of Canada.

George H. Copley, Q.C., for the intervener the Attorney General of British Colombia.

Written submissions only by James A. Bowron, for the intervener the Attorney General for Alberta.

Kent Roach, for the intervener the Criminal Lawyers’ Association of Ontario.

The judgment of the Court was delivered by

The Chief Justice –

I.  Introduction

1                                          This appeal raises the issue of whether a provincial court justice acting under the Ontario Provincial Offences Act, R.S.O. 1990, c. P.33 (“POA”), has the power to order costs against the Crown for failure to comply with the Canadian Charter of Rights and Freedoms .  While on its face a matter of procedure, the issue is of importance.  To the extent that it is difficult or impossible to obtain remedies for Charter  breaches, the Charter  ceases to be an effective instrument for maintaining the rights of Canadians.

2                                          The respondents were charged under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, with failing to comply with safety requirements on a construction project.  The prosecution proceeded.  The respondents requested that the Crown disclose, among other items, a copy of the Prosecution Approval Form.  This form is routinely prepared by Ministry of Labour inspectors when deciding whether to lay charges under the Occupational Health and Safety Act.  The Crown twice refused to disclose the form on the ground that it was protected by solicitor-client privilege.  A justice of the peace acting as a trial justice under the POA held that the Crown’s failure to disclose this form amounted to a violation of the respondents’ rights under the Charter .

3                                          The justice of the peace ordered the Crown to disclose the form and to pay the costs of the respondents’ disclosure motion.  The Crown disclosed the form, but successfully applied to have the order for costs quashed on the basis that a provincial offences court is not a “court of competent jurisdiction” to direct such an order under s. 24(1)  of the Charter .  The Ontario Court of Appeal held that a justice operating under the POA does have the power to issue such an order and allowed the appeal.  The Crown appeals that order to this Court. 

4                                          I conclude that a trial justice acting under the Ontario POA has power to order legal costs against the Crown for a Charter  breach. 

II.  Constitutional and Statutory Provisions

5                                   Section 24  of the Charter  provides as follows:

24. (1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

6                                   Section 90 of the Provincial Offences Act, R.S.O. 1990, c. P.33, provides as follows:

90. (1) The validity of any proceeding is not affected by,

(a) any irregularity or defect in the substance or form of the summons, warrant, offence notice, parking infraction notice, undertaking to appear or recognizance; or

(b)any variance between the charge set out in the summons, warrant, parking infraction notice, offence notice, undertaking to appear or recognizance and the charge set out in the information or certificate.

(2) Where it appears to the court that the defendant has been misled by any irregularity, defect or variance mentioned in subsection (1), the court may adjourn the hearing and may make such order as the court considers appropriate, including an order under section 60 for the payment of costs.

III.  Judgments

A.  Ontario Court (Provincial Division) (March 23, 1995)

7                                   Justice of the peace Harris found that the Crown had failed in its duty of disclosure by withholding the requested Prosecution Approval Form, but refused to stay the proceedings or quash the charges.  Instead, he ordered production of the document to the respondents and  awarded costs in the amount of $2000.  In reaching this conclusion, he relied on R. v. Mardave Construction (1990) Ltd., Ont. Ct. (Prov. Div.), January 10, 1994, which held that the disclosure of the Prosecution Approval Form by the Ministry of Labour is an essential element of the Crown’s duty of full and complete disclosure. 

B. Ontario Court (General Division) (1995), 25 O.R. (3d) 420

8                                   McRae J. of the Ontario Court (General Division) quashed this order on the ground that a provincial offences court does not have jurisdiction under s. 24(1)  of the Charter  to award costs against the Crown for violations of an accused’s Charter  rights.  Citing Mills v. The Queen, [1986] 1 S.C.R. 863, McRae J. held that a POA trial court could constitute a “court of competent jurisdiction” to issue such an award under s. 24(1)  only if it enjoyed jurisdiction over the person, jurisdiction over the offence or subject matter, and power to grant the remedy sought.  Since the first two elements of this test were clearly satisfied, his analysis addressed the final issue of whether a trial justice operating under the POA is empowered, independently of the Charter , to issue an award of costs.

9                                   McRae J. concluded that the POA does not confer jurisdiction to award legal fees; in fact, he observed that the history and structure of the POA evinced a clear legislative intention to preclude such awards.  Further, he concluded that the Provincial Division, as a statutory court, has no inherent or additional jurisdiction with respect to the award of costs against the Crown in provincial offences proceedings.  Absent statutory or inherent jurisdiction to order costs under the POA, McRae J. held that such jurisdiction could not flow under s. 24(1) .  In this regard, he distinguished a series of cases where such jurisdiction was found in provincial courts operating under the Criminal Code, R.S.C. 1985, c. C-46 , noting that these cases involved the expansion of existing statutory authority to order costs against the Crown.  Since the provincial offences court lacked this original jurisdiction, it could not constitute a “court of competent jurisdiction” to order the remedy sought in this case.

C.  Ontario Court of Appeal (1998), 42 O.R. (3d) 354

10                               The Ontario Court of Appeal, per O’Connor J.A., allowed the appeal on the basis that s. 90(2) of the POA empowers a provincial offences court to order costs against the Crown, albeit in limited circumstances, and that this sufficed to establish jurisdiction under s. 24(1)  to make an award of costs for a Charter  breach. 

11                               O’Connor J.A. noted that the discretion conferred by s. 90(2) on POA justices to “make such order as the court considers appropriate” is exceedingly broad on its face.  Moreover, he found nothing in the language or scheme of s. 90(2), or the POA as a whole, that indicated an intention to limit or restrict the ordinary meaning of this provision.  Consequently, he concluded at p. 360  that  s. 90(2), unlike the other costs provisions in the POA, “confers a broad and general power that includes, but ... is not limited to, ordering the payment of witness costs”.  This power extends to the award of legal costs against the Crown where the court is satisfied that the defendant has been misled by certain procedural irregularities, as set out under s. 90(1).

12                               The remaining question was whether this narrow remedial jurisdiction under the POA satisfies the requirement of “power to grant the remedy sought” necessary to constitute a court of competent jurisdiction under s. 24(1) .  O’Connor J.A. concluded that it did.  Even a narrowly prescribed authority to issue a remedy, in his opinion, suffices to enable the court to make the same type of remedial order for a Charter  breach.  Where, as here, a court has the power to make the type of order sought (i.e. for legal costs) independently of the Charter , even in very limited circumstances, it also has the power to make the same order for a Charter  breach under s. 24(1) .  Having concluded that justice of the peace Harris had jurisdiction to make the costs award for the Charter  breach, the Court of Appeal remanded the case to the General Division to determine whether in the circumstances of the case he erred in granting costs.

IV.  Issue

13                               The sole issue is whether a trial justice acting under the Ontario Provincial Offences Act has the power to award costs for a Charter  breach. 

V.  Analysis

14                               The Charter  guarantees the fundamental rights and freedoms of all Canadians.  It does this through two kinds of provisions.  The first are provisions describing the rights and freedoms guaranteed.  The second are provisions providing remedies or sanctions for breaches of these rights.  If a law is inconsistent with the Charter , s. 52  of the Constitution Act, 1982  provides that it is invalid to the extent of the inconsistency.  On the other hand, if a government action is inconsistent with the Charter, s. 24  provides remedies for the inconsistency.  If the violation produced evidence that the Crown seeks to use against the accused, s. 24(2)  provides that the court must exclude the evidence if its admission would bring the administration of justice into disrepute.  In other cases, s. 24(1)  permits a “court of competent jurisdiction” to provide “such remedy as the court considers appropriate and just in the circumstances”.  If a remedy is to be had in the instant case, it must issue under s. 24(1) .

15                               The essential issue is whether the trial justice who ordered the Crown to pay costs is a “court of competent jurisdiction” under s. 24(1)  to make such an award.  This Court has considered the attributes of a “court of competent jurisdiction” on a number of occasions, commencing with its seminal decision in Mills, supra.  In that case, Lamer J. (as he then was), with whom all agreed on this point, defined a “court of competent jurisdiction” as one that possesses (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy (p. 890).  Subsequent decisions of this Court have affirmed this three-tiered test for identifying the courts and tribunals competent to issue Charter  remedies under s. 24 : Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.  Only where a court or tribunal possesses all three attributes is it considered a “court of competent jurisdiction” for the purpose of ordering the desired Charter  relief under s. 24 .

16                               In the present case, the jurisdiction of the provincial offences court over the parties and the subject matter is uncontested.  The dispute between the parties centres on the third and final attribute of a court of competent jurisdiction: the power to grant the remedy sought.  In determining whether the POA justice in this case possessed the “power to grant the remedy sought”, namely legal costs, we are guided by the principles set out in  previous decisions, and the approach these decisions mandate to interpreting s. 24  of the Charter . 

A.  Section 24: Principles of Interpretation

17                               In interpreting the phrase “court of competent jurisdiction”, we must keep in mind four related propositions.  These propositions have informed the Court’s approach to s. 24 since it first considered this provision in Mills.

18                               First, s. 24(1), like all Charter  provisions, commands a broad and purposive interpretation.  This section forms a vital part of the Charter , and must be construed generously, in a manner that best ensures the attainment of its objects: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344; Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134.  Moreover, it is remedial, and hence benefits from the general rule of statutory interpretation that accords remedial statutes a “large and liberal” interpretation: British Columbia Development Corp. v. Friedmann, [1984] 2 S.C.R. 447, at p. 458; Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32, at para. 21.  Finally, and most importantly, the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter  rights.  In Mills, McIntyre J. observed at p. 965 that “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”.  This broad remedial mandate for s. 24(1)  should not be frustrated by a “[n]arrow and technical” reading of the provision (see Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 366).

19                               The second proposition flows from the first: s. 24 must be interpreted in a way that achieves its purpose of upholding Charter  rights by providing effective remedies for their breach.  If the Court’s past decisions concerning s. 24(1)  can be reduced to a single theme, it is that s. 24(1)  must be interpreted in a manner that provides a full, effective and meaningful remedy for Charter  violations: Mills, supra, at pp. 881-82 (per Lamer J.), p. 953 (per McIntyre J.); Mooring, supra, at paras. 50-52 (per Major J.).  As Lamer J. observed in Mills, s. 24(1) “establishes the right to a remedy as the foundation stone for the effective enforcement of Charter  rights” (p. 881).  Through the provision of an enforcement mechanism, s. 24(1)  “above all else ensures that the Charter  will be a vibrant and vigorous instrument for the protection of the rights and freedoms of Canadians” (p. 881).

20                               Section 24(1)’s interpretation necessarily resonates across all Charter  rights, since a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.  From the outset, this Court has characterized the purpose of s. 24(1)  as the provision of a “direct remedy” (Mills, supra, p. 953, per McIntyre J.).  As Lamer J. stated in Mills, “[a] remedy must be easily available and constitutional rights should not be ‘smothered in procedural delays and difficulties’” (p. 882).  Anything less would undermine the role of s. 24(1)  as a cornerstone upon which the rights and freedoms guaranteed by the Charter  are founded, and a critical means by which they are realized and preserved.

21                               The third proposition guiding the interpretation of s. 24 is that subs. (1) and (2)  must be read together to create a harmonious interpretation.  The conjunction of the two subsections, one dealing with remedies in general and the other dealing with exclusion of evidence that would bring the administration of justice into disrepute, suggests that both are concerned with providing remedies for Charter  breaches.  Moreover, the remedies under each of the two subsections are confined to “court[s] of competent jurisdiction”.  Thus this phrase must be interpreted in a way that produces just and workable results for both the grant of general remedies and the exclusion of evidence in particular.

22                               The final proposition is that s. 24 should not be read so broadly that it endows courts and tribunals with powers that they were never intended to exercise.  The jurisdictions of Canada’s various courts and tribunals are fixed by Parliament and the legislatures, not by judges: Mills, supra, at p. 952 (per McIntyre J.). It is Parliament or the legislature that determines if a court or tribunal is a “court of competent jurisdiction”: Weber, supra, at para. 65.  Legislative intention is the guiding light in identifying courts of competent jurisdiction. 

23                               As McIntyre J. cautioned in Mills, supra, at p. 953, the Charter  was not intended to “turn the Canadian legal system upside down”.  The task facing the court is to interpret s. 24(1)  in a manner that provides direct access to Charter  remedies while respecting, so far as possible, “the existing jurisdictional scheme of the courts”: Mills, at p. 953 (per McIntyre J.); see also the comments of La Forest J. (at p. 971) and Lamer J. (at p. 882) in the same case; and Weber, supra, at para. 63.  The framers of the Charter  did not intend to erase the constitutional distinctions between different types of courts, nor to intrude on legislative powers more than necessary to achieve the aims of the Charter .

24                               In summary, the task of the court in interpreting s. 24  of the Charter  is to achieve a broad, purposive interpretation that facilitates direct access to appropriate and just Charter  remedies under ss. 24(1)  and (2) , while respecting the structure and practice of the existing court system and the exclusive role of Parliament and the legislatures in prescribing the jurisdiction of courts and tribunals.  With these guiding principles in mind, I return to the question at the heart of this appeal: when does a court or tribunal possess “power to grant the remedy sought”, such that it satisfies the final branch of the Mills test of a court of competent jurisdiction?

B.  When Does a Court or Tribunal Have the “Power to Grant the Remedy Sought”?

25                               Whether a court or tribunal enjoys the “power to grant the remedy sought” is, first and foremost, a matter of discerning the intention of Parliament or the Legislature.  The governing question in every case is whether the legislator endowed the court or tribunal with the power to pronounce on Charter  rights and to grant the remedy sought for the breach of these rights. 

26                               Section 24 does not confer jurisdiction on any court or tribunal; rather, the power of the tribunal to grant the remedy sought must emanate from a source other than the Charter  itself: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 222.  Where, as here, the tribunal in question is a creature of statute, this power must derive from its enabling legislation.  It is a fundamental principle that statutory bodies may perform only those tasks assigned to them by Parliament or one of the provincial legislatures, and in performing those tasks they have at their disposal only those powers granted to them expressly or impliedly: Doyle v. The Queen, [1977] 1 S.C.R. 597, at p. 602; R. W. Macaulay and J. L. H. Sprague, Practice and Procedure Before Administrative Tribunals (loose-leaf), vol. 3, at pp. 23-17 et seq.  The enactment of the Charter  did not alter this fundamental tenet: it remains the role of Parliament and the legislatures, and not the judiciary, to assign jurisdiction to the various courts and tribunals comprising our legal system.

27                               A legislative grant of remedial power under s. 24  may be either express or implied.  It is express, for example, where the court or tribunal’s constituting legislation explicitly authorizes the order sought as a remedy for Charter  violations.  Since the majority of existing courts and tribunals originated before the advent of the Charter , however, express conferral of authority is likely to prove rare.  The more common scenario, and the one presented by the case at bar, arises where the court or tribunal’s enabling legislation is silent on the issue of its remedial jurisdiction under the Charter .  In such cases, the grant of “power to grant the remedy sought” under s. 24 , if it exists, must be implied.

28                               When is it appropriate to infer a legislative intention to empower a tribunal or court to grant the desired Charter  relief?  This question has elicited divergent responses in the lower courts and in the parties’ submissions.  Three competing approaches can be articulated.  For the purposes of this discussion, they can be identified as the literal approach, the “type of” approach, and the functional and structural approach.

29                               The literal approach is the most restrictive.  It would recognize jurisdiction in a tribunal to issue a remedy under s. 24  only where that tribunal enjoys inherent or express statutory jurisdiction to grant the Charter  remedy in question.  Absent inherent jurisdiction to issue a Charter  remedy, it could be found only where spelled out expressly in the tribunal’s enabling legislation.  This approach would  virtually confine the power to grant Charter  remedies under s. 24  to courts of inherent jurisdiction, since few if any statutory tribunals are endowed with express powers to grant Charter  remedies.  On this approach, the answer to the question of whether the trial justice in this case could make a costs order under s. 24(1)  would clearly be no.  The difficulty with this approach is that it arguably runs counter to the broad remedial purpose of s. 24 .  Moreover, it renders s. 24(1)  redundant.  The Crown concedes that this approach to defining “power to grant the remedy sought” is overly restrictive. 

30                               The “type of” approach interprets the requirement of “power to grant the remedy sought” less restrictively, as requiring only that the tribunal have the authority to issue the “type of” remedy sought, independently of the Charter .  On this view, a tribunal can issue the same “type of” remedies under s. 24(1)  that it is empowered to issue under statute.

31                               The Ontario Court of Appeal adopted this approach in the present case.  O’Connor J.A., for the Court of Appeal, held that statutory authority to grant a particular remedy, even if its exercise is confined to very limited circumstances, is sufficient to empower the court to order the same type of remedy under s. 24(1).  Having found that s. 90(2) of the POA confers the authority to order legal costs against the Crown, albeit in circumstances limited to addressing procedural irregularities, he concluded that the provincial offences court could order a costs award under s. 24(1)  as a remedy for non-disclosure.  The Alberta Court of Appeal adopted the same approach to defining the power to grant the remedy sought in R. v. Pang (1994), 95 C.C.C. (3d) 60.

32                               This approach has much to recommend it.  Intuitively, tribunals should be able to grant Charter  remedies similar to those they grant in other contexts.  Yet it, too, is not without difficulty.  The most obvious difficulty lies in defining  remedial powers of like  “type”.  How closely must the statutory remedy resemble the Charter  remedy sought?  For example, the respondents argue that witness costs and legal costs are the same “type of” remedy, and that authority under the POA to order the former translates into jurisdiction under s. 24(1)  to order the latter.  Both of the courts below rejected this submission on the ground that these are distinct, rather than analogous, remedies.

33                               Similar problems arise from the treatment of statutory limits placed on the court’s authority to issue the remedy sought.  O’Connor J.A. treated such limits as irrelevant; once statutory authority for a remedy is found, even if limited to prescribed circumstances, general Charter  jurisdiction to issue a like remedy follows. Legislative conferral of narrow jurisdiction may thus have the effect of conferring much broader Charter  jurisdiction.  The Crown objects, contending that statutory restrictions imposed on the court’s power to issue a remedy should equally restrict its jurisdiction to issue that remedy under the Charter .  These difficulties, while perhaps not insurmountable, suggest that the apparent clarity and simplicity of the “type of approach” belie considerable uncertainty.

34                               A second concern with the “type of” approach is that it fails to examine whether the court or tribunal’s process and powers make it an appropriate forum for resolving the Charter  issues in question.  Instead, the “type of” approach mechanically transforms all statutory remedies at a tribunal’s disposal into Charter  remedies.  As a result, it risks burdening a tribunal with applications for Charter  remedies that it is not designed – by virtue of its function, expertise, mandate and process – to fashion, simply because one can point to narrow and carefully circumscribed authority to grant these remedies in its constituent statute.  Conversely, this approach could deprive a tribunal of a Charter  remedy that is manifestly integral to the purpose it serves, simply on the basis that Parliament or the legislatures did not see the need to provide this remedy under statute to address non-Charter  issues.  In sum, the “type of” approach, while attempting to discern legislative intent from the statutory powers conferred upon the tribunal, risks neglecting the larger picture of whether the Charter  jurisdiction sought will ultimately advance or frustrate the purpose and mandate of the tribunal.  Yet, it is this very issue, in my view, that is of paramount concern when determining legislative intent.

35                               This concern leads to the third possible approach to defining “power to grant the remedy sought”.  This approach answers the question of whether a court or tribunal has the power to issue the remedy sought by focusing on its function and structure.  On this view, it is not necessary that the court or tribunal have the power to grant the precise remedy sought or even a remedy of the same “type”.  Although these factors may weigh heavily in the analysis, they are not determinative.  The paramount question remains whether the court or tribunal, by virtue of its function and structure, is an appropriate forum for ordering the Charter  remedy in issue.  If so, it can reasonably be inferred, in the absence of any contrary indication, that the legislature intended the court or tribunal to have this remedy at its disposal when confronted with Charter  violations that arise in the course of its proceedings.  This approach, as I shall discuss in greater detail, is implicit in Mills and affirmed in Weber and Mooring. 

36                               Parliament and the provincial legislatures premise legislation on the fact that courts and tribunals operate within a legal system governed by the constitutional rights and norms entrenched by the Charter .  The “functional and structural” approach reflects this premiss.  It rests on the theory that where Parliament or a legislature confers on a court or tribunal a function that engages Charter  issues, and furnishes it with procedures and processes capable of fairly and justly resolving these incidental Charter  issues, then it must be presumed that the legislature intended the court or tribunal to exercise this power.

37                               This approach may require some elaboration, particularly as it relates to courts and tribunals constituted prior to the Charter ’s enactment.  The relevant provisions of the POA, for example, predate the Charter .  This is likely true of the vast majority of statutes currently governing the operation of courts and tribunals across the nation.  Clearly, the remedial jurisdiction of these bodies under s. 24  of the Charter  could not have entered the contemplation of Parliament or the legislatures at the time these statutes were enacted.  Consequently, it might be argued that pre-Charter  legislation can never evince an implied intention to empower a tribunal to issue Charter  remedies. 

38                               This argument, however, rests on an overly narrow view of legislative intention.  The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day.  Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances.  Instead, we recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, at p. 814; see also Interpretation Act, R.S.O. 1990, c. I.11, s. 4.  Preserving the original intention of Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments, sensitive to evolving social and material realities.  While the courts strive ultimately to give effect to legislative intention, the will of the legislature must be interpreted in light of prevailing, rather than historical, circumstances: see, for example, Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 727-29 (per Iacobucci J.), and pp. 793-94 (per L’Heureux-Dubé J., dissenting); Tataryn, supra, at pp. 814-15.   

39                               It follows that the remedial powers of courts and tribunals – even those that antedate the Charter  – must be interpreted in light of the Charter ’s enactment.  The enactment of the Charter  was undoubtedly a watershed event in our legal history and tradition – it added a “new dimension to the Canadian legal system” (Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, at p. 600), ushering in a new regime of constitutional rights and remedies.  The Charter  guaranteed new rights to individuals against government authority; accordingly, “[i]t should not be a matter for surprise that individuals claiming to have such rights assert them before agencies created to provide a speedy determination of their rights in relation to governmental authority”: Douglas College, supra, at p. 600 (per La Forest J., quoting Desjardins J.A. from Tétreault‑Gadoury v. Canada (Canada Employment and Immigration Commission), [1989] 2 F.C. 245 (C.A.), at p. 279).  In other words, the Charter ’s enactment necessarily embroiled numerous courts and tribunals in the new regime of Charter  rights and remedies.  The statutory powers of these bodies must be interpreted in light of this profound shift in the landscape of Canadian law.

40                               The Charter  itself provides insight into how the powers of pre-existing courts and tribunals should be approached.  In this regard, I note that the Charter ’s enactment is an expression not only of Parliament’s will, but also of that of the respective provincial legislatures by adoption.  The common intention was to integrate the new regime of Charter  rights and remedies into the existing jurisdictional scheme: Mills, supra, at p. 953 (per McIntyre J.).  As La Forest J. observed in Mills, at p. 971, the Charter ’s enactment did not mandate “the wholesale invention of a parallel system for the administration of Charter  rights over and above the machinery already available for the administration of justice”.  Instead, the framers of the Charter  intended aggrieved parties to have recourse to a remedy from existing courts and tribunals.

41                               To this end, s. 24  identifies a “court of competent jurisdiction” as the appropriate venue for Charter  relief.  This formula clearly draws from the courts and tribunals comprising our legal system at the time of the Charter ’s enactment, and enlists them in the implementation of Charter  rights and remedies.  No additional legislative “stamp of approval” is contemplated.  Indeed, the operation of the Charter  as the “supreme law of the land” would be wholly frustrated if its application were deferred until the legislatures revisited each pre-Charter  court or tribunal to confer the necessary jurisdiction to grant Charter  remedies.  Moreover, forcing these courts and tribunals to function as if the Charter  were never enacted, even where their operation squarely implicates Charter  rights and freedoms, risks seriously (and unnecessarily) compromising their effective functioning.  It may also impact the quality of justice rendered at the end of the day.

42                               In my view, the “functional and structural” approach is more consistent with the original intention of Parliament or the legislature in establishing the tribunal (albeit interpreted in light of the Charter ’s enactment) and the aspirations of the Charter  itself.  Where the Charter ’s enactment implicated a court or tribunal in new constitutional issues, it should be presumed that the legislature intended the court or tribunal to resolve these issues where it is suited to do so by virtue of its function and structure.  It is only in this manner that the purpose of the Charter  – and the mandates of those courts and tribunals that predate its enactment – can be meaningfully realized.

43                               The content of the “functional and structural” approach may also require elaboration.  Framed broadly, this test asks whether the court or tribunal in question is suited to grant the remedy sought under s. 24  in light of its function and structure. The assessment is contextual.  The factors relevant to the inquiry and the weight they carry will vary with the particular circumstances at hand.  Nonetheless, it is possible to catalogue some of the considerations captured under the general headings of “function” and “structure”. 

44                               The function of the court or tribunal is an expression of its purpose or mandate.  As such, it must be assessed in relation to both the legislative scheme and the broader legal system.  First, what is the court or tribunal’s function within the legislative scheme?  Would jurisdiction to order the remedy sought under s. 24(1) frustrate or enhance this role?  How essential is the power to grant the remedy sought to the effective and efficient functioning of the court or tribunal?  Second, what is the function of the court or tribunal in the broader legal system?  Is it more appropriate that a different forum redress the violation of Charter  rights? 

45                               The inquiry into the structure of the court or tribunal relates to the compatibility of the institution and its processes with the remedy sought under s. 24 .  Depending on the particular remedy in issue, any or all of the following factors may be salient: whether the proceedings are judicial or quasi-judicial; the role of counsel; the applicability or otherwise of traditional rules of proof and evidence; whether the court or tribunal can issue subpoenas; whether evidence is offered under oath; the expertise and training of the decision-maker; and the institutional experience of the court or tribunal with the remedy in question: see Mooring, supra, at paras. 25-26.  Other relevant considerations may include the workload of the court or tribunal, the time constraints it operates under, its ability to compile an adequate record for a reviewing court, and other such operational factors.  The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24  in a just, fair and consistent manner without impeding its ability to perform its intended function.

46                               Two sources may provide guidance in determining the function and structure of a court or tribunal: the language of the enabling legislation and the history and accepted practice of the institution.  The court or tribunal’s constituting legislation may clearly describe its function and structure.  However, it often may be necessary to consider other factors to fully appreciate the court or tribunal’s function, or the strengths and limitations of its processes.  Factors like  the workload of the court or tribunal, the time constraints it operates under, and its experience and proficiency with a particular remedy, cannot be assessed on the face of the relevant legislation alone; rather, regard must be had to the day-to-day practice of the court or tribunal in question.

47                               Having outlined the “functional and structural” approach to defining the third element of the Mills test, the power to grant the remedy sought, I turn to the considerations that support it.  First, this approach is consistent with the authorities.  Second, it is consistent with the Court’s approach to discerning legislative intent in other contexts, such as the authority of a tribunal to consider the constitutionality of its enabling legislation under s. 52  of the Constitution Act, 1982 .  Finally, and most importantly, it comports with the foundational principles animating s. 24 .  I will discuss each of these reasons in turn.

(1)     Consistency with the Authorities

48                               The previous decisions of this Court regarding s. 24(1) support a functional and structural approach to determining whether a court or tribunal has the “power to grant the remedy sought” as required by the third branch of the Mills test.  Although not always expressed in these terms, considerations of function and structure are central to the Court’s analysis in each of these previous cases.

49                               In Mills, the Court considered whether a preliminary inquiry judge or justice is a court of competent jurisdiction for the purposes of entering a stay of proceedings as a remedy for the violation of an accused’s right under s. 11 (b) of the Charter  to trial within a reasonable time.  McIntyre J., speaking for a unanimous Court on this point, held that a preliminary inquiry judge or justice is not a court of competent jurisdiction for this purpose.  In reaching this conclusion, he emphasized the specialized function performed by the preliminary inquiry judge in the criminal process, and the incompatibility of this function with the remedy sought (at pp. 954-55):

After all the evidence has been taken, he may commit the accused for trial if, in his opinion, the evidence is sufficient, or discharge the accused if, in his opinion, upon the whole of the evidence no sufficient case is made out to put the accused on trial.  He has no jurisdiction to acquit or convict, nor to impose a penalty, nor to give a remedy.  He is given no jurisdiction which would permit him to hear and determine the question of whether or not a Charter  right has been infringed or denied.  He is, therefore, not a court of competent jurisdiction under s. 24(1)  of the Charter . . . .  I might add at this stage that it would be a strange result indeed if the preliminary hearing magistrate could be said to have the jurisdiction to give a remedy, such as a stay under s. 24(1) , and thus bring the proceedings to a halt before they have started and this in a process from which there is no appeal.

50                               Although this holding disposed of the specific issue on appeal in Mills, McIntyre, Lamer and La Forest JJ. proceeded to consider the availability of Charter  remedies in the criminal process more generally, both at the preliminary inquiry and at trial.  Here functional and structural concerns dominated.  McIntyre, Lamer and La Forest JJ., in defining the remedial jurisdiction of criminal courts under s. 24(1) , were predominantly concerned with identifying the arsenal of remedies that would best fulfil the function of the provincial criminal court, as a court of first instance, without straining its competence as an institution.

51                               In this regard, the function of statutory criminal courts in the broader criminal justice system was a paramount consideration.  As McIntyre J. observed, “most of the criminal work at first instance is done in these courts, therefore most of the applications for a remedy under s. 24(1)  of the Charter  will be made to them” (p. 955).  He emphasized the need for complete resolution, wherever possible,  at the trial level, where the court is best situated to rule on Charter  issues arising before it and to fashion appropriate and just remedies.  This role, in his opinion, demanded an expansive remedial jurisdiction for statutory criminal courts under s. 24(1) , unconstrained by the lesser array of remedies they might enjoy under statute.  In his words, “[a] claim for a remedy under s. 24(1)  arising in the course of the trial will fall within the jurisdiction of these courts as a necessary incident of the trial process” (p. 955).  He contemplated resort to the superior court of the province for a Charter  remedy only where prerogative relief is sought.

52                               The only limit McIntyre J. placed on a statutory criminal court’s “power to grant the remedy sought” under s. 24(1)  was that imposed by the constitutional division of powers: “[s]uch remedies must remain . . . within the ambit of criminal powers” (p. 955).  One finds no requirement in McIntyre J.’s reasons that the statute under which the court is acting expressly authorize the remedy sought, or empower the court to order remedies of the same “type”.  Rather, the emphasis is on creative and complete resolution at the trial level.  To this end, he contemplated the widest possible discretion in provincial trial  judges to fashion appropriate and just remedies, circumscribed only by the requirement that these remedies fall within the criminal sphere.  It is in this manner that the function of the court, as a criminal court of first instance, is best fulfilled.

53                               Lamer J. arrived at the same conclusion.  In his view, a criminal trial court, whether of statutory or inherent jurisdiction, is empowered to grant any criminal law remedy under s. 24(1) .  He expressly rejected the proposition that statutory trial courts are confined to the remedies assigned to them by statute, at least in the absence of clear legislative intent (at pp. 886-87):

I do not see the need, once the distinction between criminal and other remedies is made, for making a further distinction within the criminal law system between trial judges dependent upon the trial court in which they sit.  Since they already have the jurisdiction to make a final complete determination of the trial, they already have a plenitude of criminal law remedies available, such as adjournment, bail, ordering disclosure, excluding evidence, entering stays.

Again, the emphasis is not on the remedies that criminal courts “already have . . . available”, but rather on the remedies that will best promote the function of the criminal trial court in our system of criminal justice. 

54                               In determining the range of remedies available to criminal trial courts under s. 24(1) , Lamer J. was motivated primarily by the concern that these courts not venture into the types of remedies which by their own process (or structure) they are not properly equipped to fashion.  He considered two opposing interpretations of s. 24(1)  in the heart of his argument.  The first is the proposition that a criminal court with jurisdiction over both the subject matter and the parties enjoys full jurisdiction to grant any appropriate and just remedy, including “civil remedies in addition to those remedies that are traditionally within their jurisdiction” (p. 885).  The second proposition would “extend to any judge having jurisdiction over the person and the subject matter jurisdiction to grant any criminal law remedy” (p. 886 (emphasis added)). 

55                               Lamer J. approached this matter as a choice between alternatives – permitting criminal trial judges to draw from the full range of remedies, including civil remedies, in addressing Charter  violations or, alternatively, restricting the scope of available remedies to the criminal domain.  Neither approach evinces concern with whether the court has a particular remedial power under statute, or pursuant to its inherent jurisdiction.

56                               Lamer J. endorsed the second approach for criminal trial judges; that is, he concluded that once jurisdiction over the person and subject matter is established, a criminal court is empowered to grant any criminal law remedy.  This conclusion was compelled by the structural limitations of the criminal trial process (at p. 886):

[D]esirable as might be a system whereby a person could get from the judge he or she is before a plenitude of remedies [i.e. including civil remedies], this approach has to be defeated by the fundamental differences as between the civil and criminal process....  [I]t will be difficult to afford the alleged violators, susceptible to pay damages or to be the object of some injunction, a fair hearing within the criminal justice process, whilst guaranteeing the accused all traditional safeguards.  Furthermore, the criminal courts are not staffed and equipped to cope with such types of determinations.

Thus, Lamer J. concluded that the function performed by criminal trial courts mandates an expansive remedial jurisdiction under the Charter , circumscribed only by the boundaries of the court’s expertise and procedures, which coincided with the boundaries of the criminal law.

57                               La Forest J.’s reasons in Mills are also consistent with the functional and structural approach to defining “power to grant the remedy sought”.  Like Lamer and McIntyre JJ., he expressed a preference for complete resolution of Charter  issues at the trial level, stating, at p. 972, that the “trial court will ordinarily be the appropriate court to grant the remedy”.  He contemplated an exception to this general principle only for exigent circumstances, such as where a trial court has not been set at the time the remedy is required, or where the trial court itself is implicated in the breach of the Charter  right.  This language suggests that apart from such exceptional circumstances, provincially appointed criminal courts are courts of competent jurisdiction to issue remedies under s. 24 .  He imposes only one limitation on this remedial jurisdiction: “civil remedies should await action in a civil court” (p. 971).

58                               Functional and structural considerations also dominated the Court’s comments on the powers of preliminary inquiry judges to exclude evidence on Charter  grounds.  A minority, led by Lamer J., would have recognized this power, on the basis that excluding inadmissible evidence, including on Charter  grounds, is central to the preliminary inquiry’s function: determining whether there is sufficient admissible evidence to put the accused on trial.  McIntyre and La Forest JJ., writing for the majority view, held that preliminary inquiry judges cannot exclude evidence under s. 24(2) .  In arriving at this result, they emphasized the limited screening function of the preliminary inquiry and the difficulty of making, at a preliminary stage, the s. 24(2)  determination of whether in “all the circumstances” admission of evidence obtained in breach of the Charter  would bring the administration of justice into disrepute (at pp. 970-71, per La Forest J.).

59                               In summary, the reasons of McIntyre, Lamer and La Forest JJ. in Mills were unanimous in emphasizing that the power of courts to issue Charter  remedies turns on the function and structure of these courts.  In effect, a judge sitting on a criminal trial, by reason of the function he or she is discharging, has the power to grant Charter  remedies incidental to that trial.  To this end, the judge may draw from the full ambit of criminal law remedies in fashioning an appropriate and just response to a Charter  violation.  This approach facilitates the function of the trial court, by promoting complete resolution of Charter  issues at the trial level and allowing the court significant flexibility in fashioning remedies to meet the precise circumstances of the case at bar.  At the same time, it heeds the structural limits of the criminal trial process, by confining the courts’ remedial powers to the criminal sphere.

60                               Subsequent jurisprudence affirms this functional and structural approach.  Since Mills, two judgments of this Court have dealt with “court of competent jurisdiction” under s. 24 : Weber, supra, and Mooring, supra.  Both cases focused on the remedial jurisdiction of administrative tribunals under s. 24 .  In Weber, the Court addressed the question of whether a labour arbitrator is a court of competent jurisdiction under s. 24(1)  for the purposes of awarding damages for a Charter  breach.  In Mooring, the Court considered whether the National Parole Board could exclude Charter -offending evidence as a court of competent jurisdiction under s. 24 .  In both cases, the jurisdiction of the tribunal over the person and subject matter was established; the critical issue was whether the tribunal enjoyed the power to grant the remedy sought.  This jurisdiction was found in the labour arbitrator in Weber, but not in the Parole Board in Mooring. 

61                               In Weber, a labour arbitrator was found to be a court of competent jurisdiction under s. 24(1)  to award damages primarily because the Board’s constituent statute authorized it to make an award of this type. The statute conferred on the Board the mandate, function and structure to make damage awards.  While the reasons do not use the language of function and structure, the decision may be seen as turning on the fact that the legislature had equipped the tribunal to make damage awards generally and therefore must have intended this power to extend to Charter -based claims.  In short, the Board was by function and structure equipped to grant the remedy sought.

62                               It is in Mooring, supra, that the language of function and structure first emerges in express form.  Moving beyond the  “type of” remedy language of Weber, Sopinka J., for the majority, engaged in a detailed analysis of the “structure and function” of the Board (at para. 24) in assessing whether the Board had the “power to grant the remedy sought”.  A number of aspects of the Board’s structure, in his opinion, weighed against its competency to exclude relevant evidence as a Charter  remedy (at para. 26):

[T]he Parole Board does not hear and assess evidence, but instead acts on information.  The Parole Board acts in an inquisitorial capacity without contending parties – the state’s interests are not represented by counsel, and the parolee is not faced with a formal “case to meet”.  From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s. 24(2) demands. [Emphasis added.]

63                               Similarly, Sopinka J. found that the function of the Board – assessing the risk posed to society by parolees – counseled against finding jurisdiction to exclude relevant evidence.  These factors, combined with the lack of statutory authority to exclude relevant evidence, led Sopinka J. to the conclusion that the Board did not have jurisdiction over the remedy sought.  Major J. (McLachlin J. concurring) dissented, but did not suggest that the function of the Board and its suitability to hear Charter  matters were not determinative.

64                               In Mooring and Weber, the language of the statutes creating and empowering the tribunals played a more prominent role than was evident in Mills.  As discussed, a court or tribunal’s enabling legislation will often prove invaluable in discerning legislative intent.  The history and accepted practice of the institution may also provide insight.  In some circumstances, one source may provide more guidance than the other.  In Mills, for example, the function of criminal trial courts, and the structural limits of their procedures and processes, were accepted by the Court as largely self-evident, without need to resort to the precise language of their governing statutes.  Since all criminal courts are uniformly competent to grant criminal law remedies, there is no virtue in making further distinctions based on the source of the court’s jurisdiction; in the words of Lamer J., there is no principled basis “for making a further distinction within the criminal law system between trial judges dependent upon the trial court in which they sit” (p. 886).

65                               By contrast, in assessing the remedial jurisdiction of administrative tribunals in Weber and Mooring, the Court emphasized the tribunals’ statutory authority to issue remedies of the type sought.  This focus on statutory authority in assessing power to grant the remedy sought makes eminent sense in the administrative context.  Administrative tribunals, unlike criminal courts, do not share substantially uniform structures and functions.  Their structures and functions are as diverse as the roles they perform in Canadian society.  Administrative tribunals vary widely in virtually every aspect – experience, expertise, structure, function, resources and mandate: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at pp. 634-35; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, at para. 117.  It follows that courts must carefully consider an administrative tribunal’s constituent statute to determine its intended function and structure.

66                               A significant factor in this analysis will be the nature of the tribunal’s power to grant remedies under statute.  Statutory authority to grant a particular remedy, or the lack thereof, is a telling indication of the tribunal’s level of experience and expertise with that type of remedy, and possibly the compatibility of this remedy with its function.  These are all compelling factors in answering the central question of whether the legislature can be taken to have intended the tribunal to determine Charter  rights and award the remedy sought for breaches of those rights. In general, the stronger the nexus between the tribunal’s statutory jurisdiction to grant remedies, on one hand, and the remedial jurisdiction sought under s. 24  on the other, the more compelling the inference that the tribunal is competent to issue the desired Charter  relief.

67                               However, statutory authority to grant the type of remedy sought will not always prove conclusive; it is merely one of a number of factors to be considered in discerning the structure and function of the tribunal, as a means of determining the intention of Parliament or the legislature.  Another critical factor may be the presence or absence of safeguards necessary to permit the tribunal to give fair and informed decisions on Charter  rights and award remedies for their breach.  As discussed, these considerations led the majority of the Court in Mooring to hold that the Parole Board lacked the jurisdiction over the remedy sought (the exclusion of improperly obtained evidence under s. 24(2) ), and therefore was not a court of competent jurisdiction under s. 24 .

68                               In summary, the jurisprudence of this Court on s. 24(1)  demonstrates a dominant concern with discerning legislative intent in light of the tribunal’s function and the practical limits imposed by its structure.  At heart, this is a functional and structural analysis.  This approach found its clearest expression in the reasons of Sopinka J. in Mooring, but it also animated the dissenting opinion in that case, as well as the previous decisions of this Court in Weber and Mills.

(2)   Consistency with the Approach to Discerning Legislative Intent in Other Contexts

69                               The “functional and structural” approach to determining whether a tribunal is competent to grant Charter  remedies under s. 24(2)  accords with the general approach to discerning the implied powers of statutory bodies, and the test established by this Court for determining whether a tribunal has jurisdiction to consider Charter  issues under s. 52(1)  of the Constitution Act, 1982 .

70                               It is well established that a statutory body enjoys not only the powers expressly conferred upon it, but also by implication all powers that are reasonably necessary to accomplish its mandate: Halsbury’s Laws of England (4th ed. 1995), vol. 44(1), at para. 1335.  In other words, the powers of a statutory court or tribunal extend beyond the express language of its enabling legislation to the powers necessary to perform its intended functions: Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722.

71                               Consequently, the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant the remedy sought.  Such implied powers are found only where they are required as a matter of practical necessity for the court or tribunal to accomplish its purpose: National Energy Board Act  (Can.) (Re), [1986] 3 F.C. 275 (C.A.).  While these powers need not be absolutely necessary for the court or tribunal to realize the objects of its statute, they must be necessary to effectively and efficiently carry out its purpose:  Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601 (C.A.); Bell Canada, supra; Macaulay and Sprague, supra, vol. 4, at p. 29-2.  This emphasis on the function of a court or tribunal, in discerning the powers with which the legislature impliedly endowed it, accords with the functional and structural approach to the Mills test set out above.

72                               Not surprisingly, the Court has adopted a similar approach to determining whether an administrative tribunal has jurisdiction to consider the constitutional validity of its constituent statute under s. 52(1) .  This analysis rests on the proposition that statutory bodies can only derive the authority to consider Charter  issues from Parliament or the legislatures.  It lies entirely within the discretion of Parliament or the legislatures to confer this authority upon a tribunal or, conversely, to withhold this jurisdiction: Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22.  Consequently, the question in every case is “whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter ”: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, at pp. 14-15.

73                               Where such an intention is not stated expressly, it may be implied from the structure of the tribunal’s enabling legislation, the powers conferred on the tribunal, the functions it performs and the overall context in which it operates under the legislation: Tétreault‑Gadoury (S.C.C.), supra; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.  This is, in essence, a functional and structural analysis.

(3)   Consistency with Section 24 

74                               Finally, the functional and structural approach to assessing a court or tribunal’s power to grant the remedy sought comports with the principles underscoring s. 24 .  As set out earlier, the task of the court in interpreting s. 24  of the Charter  is to achieve a liberal, purposive approach that promotes direct access to appropriate and just Charter  remedies under s. 24(1)  and (2) , while respecting the structure and practice of the existing court system and the exclusive role of the legislative branch in prescribing the jurisdiction of courts and tribunals.  The proper approach to s. 24  cannot be so restrictive that it unnecessarily impedes direct access to Charter  remedies in a competent forum, nor can it be overly relaxed, to the extent that courts and tribunals may find themselves burdened with applications for Charter  relief that the legislature never intended – or equipped –  them to entertain.

75                               The functional and structural approach strikes this balance between meaningful access to Charter  relief and deference to the role of the legislatures.  It rests on the theory that where a legislature confers on a court or tribunal a function that involves the determination of matters where Charter  rights may be affected, and furnishes it with processes and powers capable of fairly and justly resolving those incidental Charter  issues, then it must be inferred, in the absence of a contrary intention, that the legislature intended to empower the tribunal to apply the Charter .  This approach promotes direct and early access to Charter  remedies in forums competent to issue such relief.  At the same time, the jurisdiction of courts and tribunals ultimately remains a matter of legislative intention. Parliament and the legislatures remain master over the powers the tribunals they create possess.  Subject to constitutional constraints, they may withhold the power to grant any or all Charter  remedies.  They may indicate such exclusion either expressly, or by implication, such as where they do not properly equip the tribunal to hear and decide Charter  rights and remedies.  Whether Parliament or the legislature intended to exclude a particular remedial power is determined by reference to the function the legislature has asked the tribunal to perform and the powers and processes with which it has furnished it.

C.  Application

76                               The issue before us is whether a justice sitting under the POA can find that the Crown, by failing to disclose documents, is in breach of the Charter  and order it to pay costs under s. 24(1) .  The resolution of this issue hinges on whether a provincial offences court is a “court of competent jurisdiction” under s. 24(1)  for the purposes of ordering a costs award for a Charter  violation.  The first two elements of the tripartite Mills test for identifying a “court of competent jurisdiction” – jurisdiction over the parties and the subject matter – are clearly satisfied on the facts of this appeal.  The sole issue is whether the provincial offences court satisfies the third and final element of the Mills test: power to grant the remedy sought. 

77                               All parties agree that the POA does not expressly confer upon the provincial court the jurisdiction to award legal costs as a Charter  remedy.  The remaining question, then, is whether such an intention is implied by the function and structure of the provincial offences court.  I have reached the conclusion, upon consideration of these factors, that the provincial offences court is an appropriate forum for the just resolution of this Charter  issue, and that the legislature, having sufficiently equipped this court to fashion a costs remedy in these circumstances, intended it to exercise this power to address violations of the Charter  that arise in the course of its proceedings. 

(1)   The Function of the Provincial Offences Court

78                               The function of a provincial court operating under the POA is to try provincial offences.  While the majority of these offences involve minor regulatory infractions, they also concern important matters like environmental protection and, as here, workplace health and safety.  These offences carry penalties ranging from significant fines to terms of imprisonment.  The public and penal nature of such prosecutions suggests they are more criminal than civil in nature: see W. D. Drinkwalter and J. D. Ewart, Ontario Provincial Offences Procedure (1980), at pp. 4-7.  Provincial offences courts are, for practical purposes, quasi-criminal courts, determining guilt and innocence and imposing commensurate criminal penalties.

79                               This brings the provincial offences court within the ambit of Mills.  As discussed, this Court in Mills envisioned a front-line role for statutory criminal courts in dispensing Charter  remedies, with the superior courts occupying a complete and concurrent, but primarily residual role in proceedings not originating before them.  Indeed, a superior court is compelled to decline jurisdiction to issue Charter  relief, unless “it is more suited than the trial court to assess and grant the remedy that is just and appropriate”: R. v. Rahey, [1987] 1 S.C.R. 588, at p. 603; P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 37-24.  Provincial offences courts, like other criminal trial courts, are the preferred forum for issuing Charter  remedies in the cases originating before them, where they will have the “fullest account of the facts available” (Mills, at p. 971, per La Forest J.).  This is particularly true where the Charter  violation relates to the conduct of the trial: R. v. O’Connor, [1995] 4 S.C.R. 411.  This role commends a full complement of criminal law remedies at the disposal of provincial offences courts.  This broad remedial jurisdiction is necessary to prevent frequent resort to superior courts to fill gaps in statutory jurisdiction, and to ensure that the remedy that ultimately flows is in fact both appropriate and just. 

80                               Costs awards to discipline untimely disclosure are integrally connected to the function of the provincial offences court as a quasi-criminal trial court.  Costs awards have a long history as a traditional criminal law remedy.  Although sparingly used prior to the advent of the Charter , superior courts have always possessed the inherent jurisdiction to award costs against the Crown: R. v. Ouellette, [1980] 1 S.C.R. 568; R. v. Pawlowski (1993), 12 O.R. (3d) 709 (C.A.), at p. 712.  In recent years, costs awards have attained more prominence as an effective remedy in criminal cases; in particular, they have assumed a vital role in enforcing the standards of disclosure established by this Court in R. v. Stinchcombe, [1991] 3 S.C.R. 326.  See, for example: Pawlowski, supra;  Pang, supra; R. v. Regan (1999), 137 C.C.C. (3d) 449 (N.S.C.A.).

81                               Such awards, while not without a compensatory element, are integrally connected to the court’s control of its trial process, and intended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure.  Deprived of this remedy, a provincial offences court may be confined to two extreme options for relief – a stay of proceedings or a mere adjournment – neither of which may be appropriate and just in the circumstances.  Since untimely pre-trial disclosure will rarely merit a stay of proceedings when the court can protect the fairness of the trial with a disclosure order (O’Connor, supra, at paras. 75-83; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paras. 90-92), denying the provincial offences court the jurisdiction to issue a costs award may deprive it of the only effective remedy to control its process and recognize the harm incurred, even in cases involving unjustified and flagrant disregard for the accused’s rights.  In these circumstances, the issuance of a costs award is a quintessential example of “the development of imaginative and  innovative remedies when just and appropriate” that Lamer J. identified as essential to the meaningful enforcement of Charter  rights through the s. 24  guarantee (Mills, supra, at p. 887).

82                               Further, fracturing the availability of Charter  remedies between provincial offences courts and superior courts could, in some circumstances, effectively deny the accused access to a remedy and a court of competent jurisdiction.  It may be unrealistic to expect criminal accused, who often rely on legal aid to mount a defence against the state, to bring a separate action in the provincial superior court to recover the costs arising from the breach of their Charter  rights.  This option, while available in theory, may far too often prove illusory in practice.  While some delay or inconvenience may be an inevitable result of balancing access to Charter  relief with the practice and structure of the existing legal system, the Court should not interpret the will of the legislature in such a way that it results in the effective denial of Charter -mandated relief, in the absence of an unequivocal indication to this effect.

83                               The Crown contends that recognizing the jurisdiction in provincial offences courts to order costs for Charter  breaches would undermine the specialized function of these courts.  It argues that the emphasis of the POA is on the expedient adjudication of regulatory offences.  Since many of these offences involve minor traffic, liquor or municipal by-law infractions with nominal fines, the Crown contends that the framers did not intend to burden these processes with the additional complication and delay of assessing costs awards.  The prejudice in these proceedings is less than in criminal proceedings, it is argued, and full legal costs are not required to ameliorate any prejudice that arises from Charter  violations.

84                               It is true that the provincial offences court performs a specialized function that is distinct, in some respects, from that of a traditional criminal court.  The purpose of the POA, as set out in s. 2(1), is to establish a procedure for the prosecution of provincial offences “that reflects the distinction between provincial offences and criminal offences”.  However, as discussed, this distinction is not between criminal and non-criminal offences, but rather between criminal and quasi-criminal offences.  The proceedings remain penal in nature.  And while many of the prosecutions under the POA may indeed involve minor regulatory infractions, claims for Charter  relief will generally arise from prosecutions that involve significant fines and the possibility of imprisonment.  In these cases, the distinction between provincial courts operating under the Criminal Code  and the POA is far less material.  The maximum sentence faced by the individual respondent in the instant case – a $25,000 fine and/or 12 months imprisonment – exceeds the penalties generally levied for a number of summary conviction offences. 

85                               Further, the Crown concedes that legal costs in criminal and regulatory matters are an exceptional or remarkable event.  It is consequently difficult to see how empowering the provincial offences court to order this remedy as an exceptional tool, in the comparatively few instances when Charter  breaches would arise before it, imperils the expedient operation of these courts.        

86                               Nor will recognizing the jurisdiction in provincial offences courts to issue costs awards as a Charter  remedy risk turning the Canadian legal system “upside down”.  By ensuring that the remedies available to the provincial offences court fall within its competency as an institution to issue, meaningful access to Charter  relief is promoted with minimal disruption to the existing jurisdictional scheme.  There is little reason to believe that awarding costs will strain the work habits, resources or expertise of provincial offences courts; in fact, experience to this point suggests otherwise.  

87                               Neither is there any indication that the Crown will be subjected to such awards unfairly or arbitrarily.  Crown counsel is not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion.  Rather, the developing jurisprudence uniformly restricts such awards, at a minimum, to circumstances of a marked and unacceptable departure from the reasonable standards expected of the prosecution.  I fail to see how the provision of an expedient remedy in such cases, from a trial court that is not only competent but also ideally situated to make such an assessment, risks disrupting the existing system of justice. 

88                               Indeed, a failure to recognize this jurisdiction may arguably result in far more disruption of the administration of justice, by requiring resort to another forum to obtain an appropriate and just remedy, with all the attendant delays, expense and  inconvenience.  Most importantly, it may, as a matter of practical reality, deprive an accused of an appropriate and just remedy for even flagrant violations of his or her Charter  rights, and thus render illusory both these guaranteed protections and the promise of their enforcement. 

89                               In summary, the provincial offences court’s role as a quasi-criminal court of first instance weighs strongly in favour of an expansive remedial jurisdiction under s. 24  to promote complete resolution of Charter  issues in the forum best situated to resolve them.  In this light, authority to discipline egregious incidents of non-disclosure through awards of legal costs is consistent with – and would enhance – the role performed by these courts in the administration of criminal justice. 

(2)     The Structure of the Provincial Offences Court

90                               The same features that characterize the provincial offences court as a quasi-criminal court also commend it as an appropriate forum for assessing costs awards for Charter  breaches arising from non-disclosure.  There is no appreciable difference between criminal and quasi-criminal courts in terms of the structural limits of their proceedings.  A court in which a justice presides over the trial of a provincial offence under the POA is clearly structured as a traditional “court”.  Iacobucci J., dissenting in Weber, supra, noted the salient characteristics of a “court”: “the rules of procedure and evidence, the independence and legal training of its judges, the possibility of hearing from a third party intervener such as an Attorney General or an amicus curiae” (p. 942).  A provincial offences court trying an offence under the POA satisfies this description.  It has its own detailed procedural rules (Rules of the Ontario Court (Provincial Division) in Provincial Offences Proceedings, R.R.O. 1990, Reg. 200), and abides by the standard rules of evidence.  Judicial independence is required of justices of the peace.  They receive legal training.  The court’s rulings are subject to appellate review, and there can be interveners on this appeal (Rules of the Court of Appeal in Appeals Under the Provincial Offences Act, Reg. 721/94, Rule 21(1)).  In sum, it is a judicial process in an adversarial forum governed by the traditional rules of evidence.

91                               The Crown alleges that a number of structural deficiencies in POA proceedings impair the ability of provincial offences courts to justly and fairly order costs awards under s. 24(1) .  It notes that the POA lacks a formal method of tariff calculation and makes no provision for the enforcement of costs orders once levied.  In sum, the Crown argues that recognizing a jurisdiction in provincial offences courts to order payment of legal costs under s. 24(1)  would cast these courts into waters in which they are not properly equipped to tread.

92                               I do not share this concern.  Issues of notice and computation of costs have not proven unmanageable for provincial courts.  Further, trial and appellate courts are  developing guidelines to govern when such awards are appropriate and just, curbing the potential for arbitrary or unfair awards: Pawlowski, supra; Pang, supra; R. v. Jedynack (1994), 16 O.R. (3d) 612 (Gen. Div.); R. v. Dodson (1999), 70 C.R.R. (2d) 65 (Ont. C.A.), at p. 73; R. v. Robinson (1999), 142 C.C.C. (3d) 303 (Alta. C.A.).  Finally, since costs awards are only issued against the Crown, complex collection mechanisms and contempt procedures are unnecessary.  These considerations suggest that the fashioning of costs orders as a Charter  remedy may be safely entrusted to provincial offences courts.

(3)     Conclusions on Power to Grant the Remedy Sought in the Instant Case

93                               As a quasi-criminal trial court, POA justices may be assumed, absent a contrary indication, to possess the power to order payment of legal costs by the Crown as a remedy for Charter  violations arising from untimely disclosure.  This power may be inferred from their quasi-criminal function and structure.  As with other criminal trial courts, the role of the provincial offences court in the broader legal system, and particularly its role as a court of first instance, provide the most valuable insight into the powers the legislature intended it to exercise.  It is not necessary to engage in a searching examination of the constituent statute to issue the same “type of” remedy in the non-Charter  context. 

94                               The language of the POA, however, cannot be ignored.  If it indicates that the legislature did not intend the provincial offences courts to issue costs orders as a Charter  remedy, then these courts are not so empowered.  This brings us to the Crown’s argument that the legislature confined the power of POA justices to grant costs (and, even then, only witness costs) to specific procedural breaches and that this indicates an intention not to permit them to grant Charter  remedies for costs in matters other than those prescribed by the POA. 

95                               I cannot accept this argument.  Given all the elements in this case that point to the power to make the order sought under s. 24 , I find it difficult to infer a contrary intention from the fact that the statute does not confer on the court a general right to award legal costs.  The legislature gave the court functions destined to attract Charter  issues.  These functions by their nature are likely to bring the tribunal into the domain of Charter  rights.  They necessarily implicate matters covered by the Charter , including fair trial rights and remedies for violations of these rights.  It is therefore reasonable to assume that the legislature intended the POA court to deal with those Charter  issues incidental to its process that it is suited to resolve, by virtue of its function and structure. 

96                               In criminal proceedings, incidental Charter  issues are routinely resolved at the trial stage without recourse to other proceedings, a procedure repeatedly endorsed by this Court as desirable:  Mills, supra; Rahey, supra; R. v. Garofoli, [1990] 2 S.C.R. 1421; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53.  It is logical to assume that the Ontario Legislature intended the POA to operate in tandem with the Charter , rather than to negate the Charter ’s application.  Rather than inferring that the legislature intended to narrow the operation of the Charter  with its silence on the issue of the provincial offences court’s jurisdiction under s. 24 , the more reasonable inference is that it intended to supplement the court’s work with the incidental Charter  remedies that it is suited to issue.

97                               Consequently, I conclude that the provincial offences court enjoys the necessary power to grant the remedy sought in the present case, and is thus a “court of competent jurisdiction” within the meaning of s. 24(1) .  In my opinion, this result represents an appropriate and principled integration of the procedural regime established by the legislature and the constitutional regime established by the Charter .

VI.  Conclusion

98                               I would dismiss the appeal and remit the matter to the Superior Court of Justice for determination of whether the trial justice erred in finding the conduct of the prosecution warranted an order for legal costs on the facts of the case.  The respondents should have their costs here and below.

Appeal dismissed with costs.

Solicitor for the appellant:  The Ministry of the Attorney General, Toronto.

Solicitors for the respondents:  Donahue Ernst & Young LLP, Toronto.

Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener the Attorney General for Alberta: The Department of Justice, Edmonton.

Solicitor for the intervener the Criminal Lawyers’ Association of Ontario:  The Criminal Lawyers’ Association of Ontario, Toronto.