Landmark case Supreme Court of Canada case towards Administrative Law, Criminal law, and Constitutional Rights. Conway had argued that his Canadian Charter rights have been infringed by being forced to live in a Mental health Centre without conviction, listing numerous Charter rights. Important to focus on Section 7 and 15, which are rights not to be unreasonable detained and equality, respectively.
Conway sought, upon successful determination of infringement, absolute discharge under Section 24(1), but was denied as he was deemed to be a risk to public safety.
Paul Conway, born 1954, has had a history of sexual abuse from close relatives growing up. During his twenties, Mr. Conway was twice convicted of assault. Once in September 1983, at the age of 29, Paul threatened his aunt at knifepoint and forced her to have sexual intercourse with him repeatedly over the course of a few hours. On February 27, 1984, Mr. Conway was found not guilty by reason of insanity on a charge of sexual assault with a weapon.
Supreme Court Judgement- 1980 (Criminal)
The Judge had stayed his proceedings indefinitely until such time where Cooper was deemed able to "appreciate" the nature of his Crime, and Fitness to stand trial in accordance to Section 16 of the Criminal Code. The word appreciate rather than "know" used to broaden legal, medical considerations bearing on accused's mental state, makes it clear cognition, not the sole criterion. Some have argued it means 'not in control of their Faculties'. However, the Code requires a level of understanding of act which is more than mere knowledge of act taking place, it is a capacity of apprehending nature of the act and its consequences.
Since the Verdict, Mr. Conway has been detained in mental health facilities across Ontario and has been diagnosed with an unspecified psychotic disorder, a mixed personality disorder with paranoid paraphilia.
Ontario Review Board
All patients held in a medical health center's due to court order must undergo an annual review hearing to assess whether the individual should be further detained. This procedure has created the constitutional compliance with not unreasonable detaining someone who has not been convicted of a crime. They generally look at two factors:
- Are they a danger to Public Safety; or
- Are they in danger of themselves.
The ORB decided he was of Public Safety concern and denied his review in 2006, and the Board's view on Conway was "unconvinced that he suffers from a mental illness and was uncured, his treatment required that he have the hope of eventually being integrated into the community.
Prior to his annual review hearing in 2006, Mr. Conway sent a Notice of Constitutional Question to the Board, CAMH, and the Attorneys General of Ontario and Canada, alleging breaches of ss. 2(b), 2(d), 7, 8, 9, 12 and 15(1) of the Charter. He listed the following grounds as the basis of the [page776] claim that his constitutional rights had been violated and that he was therefore entitled to an absolute discharge under s. 24(1).
The Ontario Review Board held that it was not a "court of competent jurisdiction" within the meaning of s.24(1) of the Charter and has no jurisdiction to consider his Charter Claims.
Ontario Court of Appeal
Agreed with the Board, with high degree of deference.
Supreme Court of Canada- 2010 (Administrative Law)
Judgment by Justice Abella held that administrative tribunals with the authority to decide questions of law are courts of competent jurisdiction within the meaning of s. 24(1) of the Charter and can grant Charter remedies in the course of carrying out their statutory mandates. Also, highlighting the fact that the ORB is a specialized tribunal.
The Supreme Court has prevented all Tribunals from denying applicants the right to raise Charter issues. Ultimately saying that tribunals cannot pick and choose what responsibilities they have been granted by Government legislation. The ORB has become a de facto court, and must be adept to all areas of the law as would an ordinary court that would have this original jurisdiction had the tribunal not existed.
R. v. Conway,  1 S.C.R. 765, 2010 SCC 22,  1 R.C.S. 765,  S.C.J. No. 22,  A.C.S. no 22