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.