24. (1) Enforcement of guaranteed rights and freedoms - 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) Exclusion of evidence bringing administration of justice into disrepute - 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.

Re Mitchell and The Queen - (1983) 42 O.R. (2d) 481 (H.C.)

- On an application for a writ of habeas corpus ad subjiciendum with certiorari in aid or relief pursuant to s.24(1) of the Charter it was held, following Re Cardinal and Oswald and The Queen (1982), 67 C.C.C. (2d) 252 (B.C.C.A.) and R. v. Miller (1982), 70 C.C.C. (2d) 129 (Ont. C.A.) and R. v. Cadeddu (1983) 4 C.C.C. (3d) 97 (Ont. H.C.), that the court had jurisdiction to grant habeas corpus ad subjiciendum with certiorari in aid and that therefore, because the court had jurisdiction to deal with the matter independent of the Charter, the court was a "court of competent jurisdiction" to grant a remedy under s.24(1) of the Charter.

    After considering the issue of dangerousness, the court concluded on the evidence that the applicant's continued detention was illegal and contrary to s.12 of the Charter and held that the granting of habeas corpus was an appropriate remedy in order to affect the applicant's release as soon as possible.

Dempsey v The Queen - Unreported, November 17, 1986, No. T-1133-86 (FCTD)

- The regime for mandatory supervision is not unconstitutional and does not run afoul of ss7 and 15 of the Charter. The test for determining whether or not there has been a violation of s15 of the Charter which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, resides in "the similar treatment of people who are similarly situated". Simply because federal prisoners are subject to mandatory supervision whereas provincial prisoners are not does not result in a violation of s15 of the Charter. The plaintiff failed to demonstrate that federal inmates are at all similarly situated with provincial inmates who have been adjudged to serve terms of imprisonment of less than two years.

Collin v Lussier - [1983] 1 FC 218 (TD)

- In circumstances where the court found a transfer to be disguised punishment due to a prisoner's activities as a prisoner legal affairs worker which had become embarrassing to the prison administration and where the prisoner also suffered from medical problems the court in addition to quashing the decision found a violation of his right to security of his person under s7 of the Charter and in addition to quashing the transfer and ordering his retransfer of his previous institution, awarded damages in the amount of $18,000.00 including $7,500.00 in exemplary damages.

Lussier v Collin - Unreported, December 12, 1984, No. A-294-83 (FCA)

- On appeal it was held that that portion of the judgment finding an infringement of the prisoner's right to the security of his person, pursuant to s7 of the Charter was unfounded and without evidentiary basis. It was held that in any event, even if the prisoner was entitled to claim damages, he could not do so by means of an application as opposed to an action. Even if s24(1) allows a claim for damages, it does not allow such a claim to be advanced without regard to the usual rules of procedure when such claims are put forward. The portion of the judgment awarding damages was quashed. The remainder of the judgment was left in- tact as being of no further practical interest in the circumstances.

Lasalle v The Disciplinary Tribunal of Leclerc Institute et al - (1983), 37 CA (3d) 145, 5 Admin LA 23 (FCTD)

- This section is not in itself authority for awarding damages to a person who was found to have been treated unfairly and in the result has had certain disciplinary convictions and an involuntary transfer quashed on a motion for certiorari and mandamus. Such damages, if any, can only be sought in a court of competent jurisdiction from parties subject to the jurisdiction of such court and in appropriate proceedings brought in that court.

Re Mason and The Queen - (1983) 7 CCC (3d) 141, 35 CR (3d) 393 (Ont HC)

- On an application for habeas corpus with certiorari in aid on grounds of a violation of s7 of the Charter in mandatory supervision revocation proceedings the court granted a remedy pursuant to this section and s709 of the Code quashing the revocation that had occurred in violation of s7, ordering that the prisoner remain in custody and further ordering a new hearing before three different members of the Board at the first reasonable opportunity.

Levesque v AG Canada et al - Unreported, November 26,1985, No. T -2354-85 (FCTD)

- This section is so worded as to enable a court to issue a writ of mandamus against the Crown. The Charter has not only altered existing law, but has also overturned it and the Crown is subject to the provisions of the Charter in the same way as any other individual. The rule of Crown immunity in relation to mandamus derived from common law is no longer applicable in light of provisions of this section and the fact that the Charter is the supreme law of Canada.

R v Greenwood - Unreported, February 11,1986, No. CC851712, Vancouver (BC Co Ct)

- An application under s24(1) of the Charter to exclude evidence upon the trial of the drug offence was dismissed. The search had taken place under s18(1) of the BC Correctional Centre Rules and Regulations. A male guard had instructed two female officers to search a visitor to a prisoner because the guard had reason to believe that the prisoner had received contraband from a visitor on a prior occasion. The original instruction to search the prisoner and the initial search by the two female guards was conducted in a reasonable manner and by a reasonable method. While the search continued after it was no longer necessary, assuming the search to amount to a violation of the visitor's s8 rights, the court was not persuaded that the admission of the evidence which was obtained on the search prior to the continuing of the search when it was unnecessary, would bring the administration of justice into disrepute. There was no atmosphere of violence, nor any flagrant abuse or violation of the visitor's rights and the officers were acting under statutory authority to search a person who had voluntarily chosen to enter the secured area of the correctional centre.

R v Smith - (1988) 68 CR (3d) 92 (Ont HC)

- At a parole suspension hearing before the Ontario Provincial Parole Board, the applicant requested an adjournment to consult counsel and to arrange for representation before the Board. This request was denied and the applicant's parole revocation confirmed. The applicant sought habeas corpus with certiorari in aid to quash the decision and secure his release.

    At the hearing before the court, it was not contested that there ought to have been an adjournment at the parole hearing and that the applicant ought to have been afforded access to counsel. The respondent had already offered the applicant a hearing with counsel before a reconstituted Board but the applicant had declined to accept that offer. At issue was the appropriate remedy to be awarded by the court.

    The court found that there is no right to counsel in such circumstances before the Parole Board at common law, relying upon Howarth v National Parole Board [1976] SCR 453, 3 NR 391 (SCC) and Fraser v Mudge [1975] 3 All ER 78 (CA).

    However, the court found that s7 of the Charter provides the rights in such circumstances such as a right to an in-person hearing (Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont HC)); to minimum notice of the allegations against the inmate (Re Latham and Solicitor-General of Canada (1984) 12 CCC (3d) 9 (FCTD)); and most importantly, the right to counsel at hearings involving parole revocation (Kennedy v National Parole Service [sic], unreported, August 12, 1985, FCTD, at p12; and Re Latham, supra, at p20).

    It was held that the Ontario Provincial Parole Board had violated the applicant's s7 Charter rights and committed an important procedural error. However, the court declined to set the applicant at liberty holding that a determination of the merits of the parole revocation should properly take place before the Parole Board. Notwithstanding prevailing legal authority that the warrant of suspension is spent upon the further decision of the Board to revoke and notwithstanding that this court's decision to quash the revocation would therefore normally result in the applicant being put at liberty, nevertheless, the court, using s24 of the Charter ordered that the applicant remain in custody pending a re-hearing to be held expeditiously before a different panel of the Board.

Okeynan v Warden of Prince Albert Penitentiary - Unreported, March 25,1988, No. T-, 261-88 (FCTD)

- In quashing on certiorari a National Parole Board detention order on the grounds that the applicant was not given sufficient, specific details of the allegations contained in written reports to enable him to defend himself, Strayer, J reaffirmed earlier decisions of the court (Latham and Cadieux) in holding that a hearing by the National Parole Board which can affect the amount of time a convicted person actually serves in prison affects his "liberty" and thus it must be conducted in accordance with the "principles of fundamental justice" as required by s7 of the Canadian Charter of Rights and Freedoms.

    The failure of the Board to record the hearing as required by s16.2 of the Parole Regulations did not automatically nullify the decision of the Board but was quite relevant to the exercise of judicial review of such a decision because the absence of a record makes it difficult for the court to determine whether or not the application had a fair hearing. A failure to provide the information necessary to the exercise of judicial review may, particularly where Charter s7 rights are involved, further justify judicial intervention under s24 of the Charter. A new hearing was ordered.

Gamble v The Queen - [1988] 2 SCR 595(SCC)

- For a detailed annotation of the use of s24(1) in conjunction with an application for habeas corpus under s10 of the Charter, see the judgment of Wilson, J and detailed annotation under s10, infra.

Nichols v The Queen - Unreported, September 14, 1989, No. A 890477, New Westminster (BCSC) (Butterworths No. 32659)

- Nichols and his co-accused Gamble were convicted of first degree murder. The crime took place in March 1976 but they were not indicted until August 1976. In July 1976 the murder provisions in the Criminal Code were repealed and the new legislation classified murder as either first degree or second degree. They were tried under the new provisions rather than those which were in place when the offence was committed.

    In 1982 Gamble brought an application for habeas corpus and an order pursuant to s24(1) of the Charter declaring that she was eligible for parole, and was ultimately successful in the Supreme Court of Canada (Gamble v The Queen [1988] 2 SCR 595). The basis of Gamble's application was that had she been tried under the legislation in force at the time of the offence she might have been eligible for parole after serving 10 years, as opposed to the 25-year minimum imposed on first degree murder after the 1976 amendments. The Supreme Court of Canada agreed with her that there was an ongoing violation of her s7 Charter right and ordered the Parole Board to consider her for parole.

    Nichols sought to rely on the Gamble precedent but was unsuccessful. Mr. Justice Paris distinguished the two cases by determining that the focus of Madame Justice Wilson's decision in Gamble was that the legislation Gamble was tried under made it possible to find a person guilty (pp9-10):

...on a less stringent basis than that necessary for a conviction of murder punishable by death, which would have required a finding that she caused or assisted in causing the death of the victim by her own act. The obvious prejudice to her lay in that, on the evidence in the case, the jury might well have found her not guilty of murder punishable by death but guilty only of murder punishable by life imprisonment. The latter would have resulted in a sentence of life imprisonment with ineligibility for parole for a period of ten to twenty years.

    Nichols, however, was the person who shot the victim. Had he been tried under the old law in force the penalty would have been death. That sentence then would have been commuted to life imprisonment without eligibility for parole for 25 years pursuant to amending legislation. Paris, J concluded that Nichols' (p10):

...present custodial status (which, the Court has ruled in the Gamble case, the Charter can be applied to non-retrospectively as distinct from the validity of the trial proceedings per se) is exactly the same as if he had been tried for and convicted of murder punishable by death, the law in place when the offence was committed.

    Therefore, as Nichols' present custodial status and (p11):

...his present Charter rights are not affected in any way by the defect in his trial for the offence which he committed in 1976. There is no present, ongoing violation of his Charter rights, no ongoing deprivation of a residual liberty interest that the Supreme Court of Canada ruled existed in the Gamble case.

R v Stewart - Unreported, October 10, 1990, No. 8903-0693 (Alta CA) (Butterworths No. A-10797)

- The appellant sought an order in the nature of habeas corpus with certiorari in aid urging that his rights under s7 of, the Charter were breached by his continued Imprisonment following his conviction for first degree murder. The offence was committed before the proclamation of the Criminal Law Amendment Act (No.2) which was proclaimed between his first and second trials. Section 27 of that legislation contained transitional provisions relating to the charges faced by the appellant. A new indictment, which complied with these provisions, was preferred against the appellant and the appellant was convicted after the trial that followed. He was sentenced to life imprisonment without eligibility for parole for 25 years.

    This was a potentially more severe punishment under the new law than he would have faced under the law as it stood at the time of the offence. Had he been convicted at his first trial he would have been liable to imprisonment for life with parole ineligibility for a period of between 10 and 20 years depending on the judge's order. After his second trial, he faced parole ineligibility for 25 years unless he succeeded, after serving 15 years, in an application for judicial review of the period of parole ineligibility under s745 of the Criminal Code.

    The issue was whether Stewart had been correctly tried and convicted according to the law as it stood at the time such that there would be nothing requiring relief or whether he had been improperly tried and convicted such that relief was permissible. The Alberta CA agreed with the trial judge and distinguished Gamble in which the SCC held that the wrong law was applied at the trial. In this case, Stewart was tried in compliance with the transitional provisions and was thus tried and convicted under the "proper law" but not under the law in force at the time the offence was committed. The Court concluded that Gamble cannot be taken to have laid down a principle that Charter relief must be granted in all pre-Charter cases where an accused is not tried under the law in force at the time the offence was committed. The principle certainly applies where "the proper law" was "the law in force at the time the offence was committed". However, it does not apply where an accused was tried in pre-Charter days in accordance with a law requiring his trial under a provision different than that in force when the offence was committed. If that were not so, the decision in Gamble would effectively overrule, without explicitly saying so, those cases in the Supreme Court of Canada forbidding a retrospective application of the Charter. Gamble does not hold that Charter relief is to be granted whenever the law applied was not that in force at the time the offence was committed, even though the law was properly applied and the offender was properly convicted and sentenced.

Latham v The Queen - (1990) 39 Admin LR 197 (Sask CA)

- Latham sought habeas corpus with certiorari in aid to review a National Parole Board decision denying him parole. Relying on Dumas v Leclerc Institution [1986J 2 SCR 159, 30 CCC (3d) 129 (SCC) and Howarth v National Parole Board [1976J 1 SCR 453, 18 CCC (2d) 385 (SCC), the Saskatchewan Court of Appeal held that provincial courts have no jurisdiction to review judgments of the National Parole Board. The court further said it would be inappropriate to consider granting a remedy under s24(1) of the Charter as was done in R v Gamble [1988J 2 SCR 595, 45 CCC (3d) 204 (SCC), as Latham had not exercised his right of review in the Federal Court.

R v Vaillancourt - (1989) 49 CCC (3d) 544 (Ont CA)

- At the conclusion of Vaillancourt's 15-year review application, the jury decided that his period of parole ineligibility should not be reduced from the 25-year statutory minimum. Vaillancourt sought leave to appeal this decision, however, the Court of Appeal quashed the leave application.

    After ruling that there was no provision in the Criminal Code that permitted an appeal from a decision made under s745, the Ontario Court of Appeal stated that s24(1) of the Charter does not create a right to appeal.

    Mr. Justice Brooke concluded that (p553):

...this result is unfortunate. The significance of the relief available under s745 to both the community and the person who has served 15 years in prison to have the period of parole ineligibility reduced or eliminated should not be lost through errors that can occur and are the sort of problems that this court customarily deals with.

Hanna v Matsqui Institution Disciplinary Court - (1990) 10 WCB (2d) 432 (FCTD)

- The court held that an application for an order pursuant to s24(1) of the Charter stating that legislation is invalid should be classified as a declaration and be commenced by way of an action. However, following R v Big M Drug Mart [1985] 1 SCR 295 (SCC) and Zwarich v AG Canada [1987] 3 FC 253 (FCA), Mr. Justice Teitelbaum agreed that an Independent Chairperson has jurisdiction to determine if legislation is contrary to the Charter, and of no force or effect under s52 of the Constitution Act.

Re Gough and National Parole Board - Unreported, October 3, 1990, No. T -2439-90 (FCTD) (Butterworths No. 34845)

- The applicant had been on parole for five and one half years when he was apprehended and his parole revoked as a result of a complaint made to the Correctional Service office. The complaints alleged that he had committed acts of sexual assault which involved the use of illegal drugs and that there had been acts of coercion towards a number of adult females. No information was given to the applicant as to the precise or even approximate dates or places or times when the alleged acts took place, nor were the names of the alleged victims given. The issue was whether the prisoner had been given sufficient information with respect to the allegations in order to satisfy the requirements of s7 of the Charter and whether the rules of fundamental justice were complied with. The court found that in this case there was no doubt that insufficient disclosure was made and that it was abundantly clear that both the common law principles of natural justice, which require a person to know the case against him, and the s7 Charter requirements of fundamental justice had not been met.

    The Board argued that the non-disclosure was justified by subs 17(5) of the Parole Regulations. But s17(5) of the Parole Regulations does not control the applicant's Charter rights -it is the other way around. As s7 of the Charter was not complied with can the non-compliance be justified pursuant to s1 of the Charter? A process that allows an individual in the applicant's position to be deprived of liberty on the basis of allegations which it is impossible for him to answer because he is not given enough detail with respect thereto and the withholding of that information is not subject to review by any court or other body independent of the Board, can not be said to be "a reasonable limit".

    The applicant argued that at the very least the Court should review the confidential documents in an in camera hearing for the purpose of ascertaining the validity of the Board's assertion. This, it was argued, would give the applicant at least some assurance that the Board's judgment was not spurious or arbitrary. The Board's position was that there is no jurisdiction in the Court to require that the confidential information be brought before the Court as part of the application for certiorari and mandamus. That information is not under review because it is not part of the record. The Court did not find it necessary to decide whether the confidential information forms part of the record because it felt s24(1) of the Charter, which gives the applicant "such remedy as the Court considers appropriate and just in the circumstances" could be relied upon to enable it to call for the filing of the confidential documents.

    The Court offered the Board a choice of orders: (1) an in camera hearing at which the Board would be given the opportunity to substantiate its reasons for refusing to disclose; and, (2) an order quashing the Board's decision and ordering a rehearing on the condition that further information be supplied to the applicant.

Re Gough and National Parole Board - Unreported, October 29, 1990, No. A-827-90 (FCA)

- The Board appealed the order of the Trial Division ordering the confidential information considered by the Board at a hearing which cancelled the Respondent's parole, be produced and disclosed to the Respondent's counsel and be subject of an in camera hearing for the purpose of enabling the Board to present specific evidence as, to why non- disclosure of the information in question is justified. Neither party questions that the trial judge had discretion to adjourn the hearing to permit the Board to add to the evidence in support of its s1 justification, but the Board argues that the Court has no power to coerce it to produce particular evidence in support of that justification. It argues that the Court's function is to decide whether a s1 justification has been made out, not to compel a party to produce the evidence with the Court considers may be necessary to make it out.

    While the court sympathized with the trial judge not wishing to take the responsibility for putting a parolee back on the street when she knows that there may be good, but undivulged, reason why that would be unwise, that misconceives the Court's responsibility. It is the responsibility of the Parole Board both to take the parolee off the street and to justify that decision in the context of the parolee's constitutional rights. If it fails to justify the decision, when challenged, it is the Court's responsibility to give effect to the parolee's constitutional rights. An order requiring the party that has been found to have infringed the constitutional rights of another to produce evidence that may establish that the infringement was justified, cannot, by any reasonable stretch of language or imagination, be held to be a remedy, appropriate and just in the circumstances, granted to the aggrieved party. It is for the party required to justify the infringement, not the Court, to determine what evidence it is prepared to present in justification. Since the, order made is not a remedy authorized by s24(1) of the Charter, the learned trial judge was without jurisdiction to make it. The appeal was allowed and the matter referred back to the trial judge for a resumption of the hearing.

R v Rodney - Unreported, May 15, 1991, No. CC910259, Vancouver Registry (BCSC) (Butterworths No. 35639)

- Self incriminating evidence obtained during are illegal interception of a prisoner's telephone calls should not be admitted as evidence at trial because its admission would make the trial unfair and bring the administration of justice into disrepute. See annotation under s8 of the Charter.

Attorney General of Canada v Daniels - Unreported, June 6, 1991, No. 5038 (Sask CA)

- See detailed annotation of main issues on appeal under s731 of the Criminal Code and 5515 and 16 of the Penitentiary Act.

    A collateral issue arose as to whether or not the Attorney General of Canada had standing to appeal a decision made at the time of sentencing but involving Charter issues and declaring sections of federal legislation to be of no force and effect in particular circumstances. The Court found it inconceivable that such a right should not exist in an instance where items of federal legislation have been declared inoperative. The Court concluded that a right to appeal could be found in s8 of the Constitutional Questions Act ASS 1978 cC-29 as well as by s6 of the Court of Appeal Act RSS 1978 cC-42. Furthermore, if no express statutory right existed, there is an inferred right of appeal. Following the reasoning in Beare v The Queen [1987] 4 WWA 309 (Alta CA) the powers conferred on courts by s24(1) of the Charter can only be exercised if, in the absence of a statutory right of appeal, a person whose rights have been infringed can look to appeal to correct the error made by a court of competent jurisdiction in the making of a final, rather than an interlocutory, order.