Pierre Carmilo v. Ottawa Police Services Board and Keith Hihnala, 2009 HRTO 1533

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Carmilo

Applicant

-and-

Ottawa Police Services Board and Keith Hihnala

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: September 23, 2009

Citation: 2009 HRTO 1533

Indexed as: Carmilo v. Ottawa Police Services Board

Written submissions by

Pierre Carmilo, Applicant ) Anne Lévesque, Counsel

City of Ottawa and ) David Patacairk, Counsel

Keith Hinalah, Respondents )

1This Interim Decision deals with a Request for Order During Proceeding filed by the respondents. They request that the Tribunal dismiss the Application on the basis that the Tribunal does not have jurisdiction over the Application.

The Allegations of Discrimination

2The Application alleges discrimination in services because of race, colour, place of origin and ethnic origin. The Application alleges the Ottawa police were looking for a black suspect and, despite not generally matching the description of the suspect other than his colour, the applicant was subjected to interrogation, detention and search by the personal respondent, a police officer employed by the corporate respondent. The applicant was released only when the personal respondent understood that the applicant was not the suspect sought.

Summary of Arguments re: Jurisdiction

3The respondents deny inappropriate behaviour in the context of the detention of the applicant, but further take the position that the matter does not fall within provincial jurisdiction because the personal respondent suspected the applicant of having committed assault contrary to the Criminal Code of Canada. The respondents submit that the Tribunal does not have the jurisdictional capacity to inquire into matters relating to the arrest or detention of persons made under the Criminal Code because matters relating to criminal law and criminal procedures are exclusively within the legislative authority of the federal Parliament of Canada.

4The respondents’ argument relies upon the 1986 Supreme Court of Canada decision in Scowby v. Glendinning, 1986 CanLII 30 (SCC), [1986] 2 S.C.R. 226 which dealt with section 7 of the Saskatchewan Human Rights Code, S.S. 1979, c.S-24.1. Section 7 provided:

Every person and every class of persons shall enjoy the right to freedom from arbitrary arrest or detention, and every person who is arrested or detained shall enjoy the right to an immediate judicial determination of the legality of his detention and to notice of the charges on which he is detained.

5The Supreme Court held that section 7 of Saskatchewan’s Code was constitutionally inapplicable to arrest or detention under the provisions of the criminal law, and therefore could not validly apply to the conduct of the RCMP officers accused of violating human rights under the provincial legislation.

6The respondents further submit that a determination that the Tribunal has no jurisdiction is consistent with several decisions which found that the actions of parties adverse in interest are not subject to Tribunal review. They cite, for example, Cooper v. Pinkofskys, 2008 HRTO 390, where the Tribunal dismissed an Application by a Crown witness against defence counsel who was found to not be providing a service to the adverse witness.

7The applicant opposes the Request. He has provided a letter from a staff person at the Canadian Human Rights Commission which states that his allegations of human rights discrimination against the Ottawa Police falls under provincial jurisdiction, and refers him to this Tribunal.

8The applicant’s main argument is that the actions of the personal respondent must be scrutinized in the context of providing services pursuant to the City of Ottawa Act, 1999, S.O. 1999, c. 14, Sch. E, as amended and the Police Services Act, R.S.O. 1990, c. P.15, as amended. Given that this legislation is provincial, the Tribunal would not be delving into federal matters, and is constitutionally empowered to deal with the Application.

9The applicant further argues that the parties in this case, while adverse in interest, are providing a service, and are not immune from scrutiny by the Tribunal. There is no legislative exemption for police services, and police officers have been held responsible for their conduct in other human rights cases, as well as cases involving tort law.

Dealing with the Request

10Given the nature of this legal issue and the potential broader public policy issues involved, in my view, it is appropriate to provide notice of these proceedings to the Ontario Human Rights Commission so that it has the opportunity to indicate whether it seeks to participate in the hearing of this discrete, jurisdictional legal issue.

11I note that the respondents have indicated that they would like the Tribunal to hold an oral hearing to address this jurisdictional issue. The applicant did not indicate whether he would like the Tribunal to deal with it in writing or orally. The Commission should indicate its position on the manner of proceeding if it seeks to participate.

12If the Commission wishes to participate, it must file its Request to Intervene, and deliver it to the other parties, no later than October 7, 2009. The other parties may file a response to any Commission Request no later than October 22, 2009.

13I am not seized of this matter.