What is the test for determining whether a tribunal has the power to issue a Charter remedy?

Ontario, Canada


The following excerpt is from R. v. Conway, 2008 ONCA 326 (CanLII):

To discern whether a particular tribunal has the power to grant the remedy sought, McLachlin C.J.C. adopted a "functional and structural approach" at para. 35 of 974649: 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 v. Ontario Hydro, [1993] 2 S.C.R. 929] and Mooring. (Emphasis in original) See also paras. 44-46 of 974649.

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