K.F. v. Dufferin-Peel Catholic District School Board et al, 2008 HRTO 6

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

K. F. by his litigation guardian F. W.-F. Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Dufferin-Peel Catholic District School Board, Herman Viloria and John Lezon, and Peel Regional Police Services Board and Jeff Duffield Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: January 23, 2008 Citation: 2008 HRTO 6 Indexed as: K.F. v. Dufferin-Peel Catholic District School Board et al

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

APPEARANCES

K. F. by his litigation guardian F. W.-F., Complainant Selwyn Pieters, Counsel

Ontario Human Rights Commission Sheena Scott, Counsel

Dufferin-Peel Catholic District School Board, Herman Viloria and John Lezon, Respondents Nadya Tymochenko, Counsel

Peel Regional Police Services Board and Jeff Duffield, Respondents Patricia Murray, Counsel

Introduction

1This Interim Decision pertains to a motion brought by the complainant for a publication ban on his name. A temporary publication ban was ordered at the Initial Conference Call held on January 21, 2008. This decision sets out the reasons for making this Order.

BACKGROUND

2The complaints in this matter were filed on October 16, 2005 and allege that the complainant experienced discrimination because of his race and colour and because of his age and that he also experienced reprisal. The complaints were referred by the Commission to the Tribunal by letter dated December 18, 2007.

3On December 21, 2007, the complainant filed a notice of motion for a publication ban on his name, which the complainant asked be determined on the Initial Conference Call in this case. The Initial Conference Call was held on January 21, 2008 and a temporary publication ban was ordered at that time. The complainant’s motion was consented to by the Commission, was not opposed by the Peel Regional Police Services Board (“Police Services”) and Constable Duffield, and no position on the motion was taken by Dufferin-Peel Catholic District School Board (“School Board”), Mr. Viloria and Mr. Lezon.

4The complainant was a minor at the time of the events giving rise to his complaints. The complainant is alleged to have committed an act on school property, for which the complainant was initially suspended and expelled by the respondent School Board and for which he subsequently was criminally charged by the respondent Police Services. The complainant alleges that the actions of the respondents in relation to these matters constitute discrimination and reprisal.

5Because the complainant was charged as a minor, this is a matter to which the Youth Criminal Justice Act applies. Sub-section 110(1) of the Youth Criminal Justice Act provides as follows:

Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

Section 110 goes on to detail a number of exceptions to this basic prohibition.

6To date, this Tribunal has not had an opportunity to consider the application of sub-section 110(1) of the Youth Criminal Justice Act to its proceedings. In addition, the caselaw is clear that a publication ban cannot simply be issued on consent, as such a ban potentially engages the principle of openness of legal proceedings and the rights of freedom of expression and freedom of the press protected under section 2(b) of The Canadian Charter of Rights and Freedoms. Given the summary nature of an Initial Conference Call in Tribunal proceedings and in view of the parties’ expressed interest in pursuing mediation to try to resolve this matter, I did not consider it appropriate to conduct a full hearing of the complainant’s motion at this time.

7In light of sub-section 110(1) of the Youth Criminal Justice Act and the principles and values underlying that legislation, I granted a temporary publication ban on the complainant’s name which will remain in effect until mediation.

8If mediation is unsuccessful, the temporary publication ban would remain in effect until the parties have had an opportunity to make submissions, as directed by the Tribunal.

ORDER

9For all of the foregoing reasons, the Tribunal makes the following Order:

a. that the complainant’s name shall be substituted with his initials in any communication by or with the Tribunal about this case;

b. that anyone who makes any enquiry about this case shall be informed that there is a temporary publication ban concerning the complainant’s name;

c. that no identifying information shall be provided by the Tribunal about the complainant to anyone other than the parties, their counsel or members of the Tribunal and its staff;

d. that this Order shall remain in effect until further Order of the Tribunal after all parties have been afforded an opportunity to make submissions regarding the complainant’s request for a publication ban.