Oliphant v. Ontario (Attorney General), 2009 HRTO 1902

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Raymond Oliphant Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of the Attorney General Respondent

DECISION

Adjudicator: Kaye Joachim Date: November 9, 2009 Citation: 2009 HRTO 1902 Indexed as: Oliphant v. Ontario (Attorney General)

WRITTEN SUBMISSIONS BY

Raymond Oliphant, Applicant ) Self-represented Her Majesty the Queen in Right of Ontario ) as represented by the Minister of the ) Connie Vernon, Counsel Attorney General, Respondent )

1This Application was filed June 26, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Her Majesty the Queen in Right of Ontario as represented by the Minister of the Attorney General (the “Ministry”) has raised a jurisdictional challenge to the Tribunal’s power to hear the Application.

The Complaint

2The applicant is a male. He alleges gender bias in the criminal justice system in the following ways. The police, acting on the instruction of the Minister of Justice, investigate allegations of spousal abuse in a gender biased manner. The Ministry has developed policies and directives such as the Domestic Violence Action Plan which is gender biased. The Office of the Crown Attorney maintained the prosecution of various criminal code offences against the applicant because of gender bias.

3Between April 2005 and June 2005, the Windsor police charged the applicant with five counts of sexual assault and three counts of assault based on an information laid by the applicant’s wife. When the applicant’s wife refused to testify at trial, the Assistant Crown Attorney entered into a Peace Bond with the applicant and in return the charges were withdrawn.

Allegations with respect to the police

4The individual decision of police to investigate or lay charges is not attributable to any action on the part of the Ministry and therefore not properly before me. The Ministry cannot command the police to lay charges. The relationship between the Ministry and police is separate and independent. The Ministry is not responsible for monitoring police forces or for the development of directives, guidelines, or policy. Under the Police Services Act, R.S.O. 1990, c. P.15, that responsibility lies with municipal police services boards.

5That leaves two aspects of the applicant’s allegations: the actions of the Crown Attorneys involved in the applicant’s case and the Ministry’s policies with respect to domestic violence.

6The Ministry is responsible for the administration of justice in Ontario and Crown Attorneys are agents of the Ministry for the purposes of the Criminal Code of Canada (s. 10 of the Crown Attorneys Act, R.S.O. 1990, c. C.49). The Ministry submitted that the actions of the Crown Attorneys in the handling of prosecutions is protected by prosecutorial immunity.

Prosecutorial Immunity

7In the case of British Columbia v. Crockford, 2006 BCCA 360, [2006] B.C.J. No. 1724, the British Columbia Court of Appeal considered the question of whether the British Columbia Human Rights Tribunal had the jurisdiction to consider a complaint of discrimination against Crown counsel in its prosecutorial function. The facts of the case are very similar to the present Application. The appellant in Crockford was charged with assault of his female domestic partner. The appellant based his human rights complaint on a policy created by the Ministry of the Attorney General for the purpose of providing guidance to Crown counsel in the area of violence against women and domestic violence. He alleged that the policy was biased against men and that therefore the decisions exercised by Crown counsel, being guided by the policy, were also biased.

8The appellant appealed the findings of the chambers judge that the British Columbia Human Rights Tribunal had no jurisdiction to consider a complaint of discrimination against Crown counsel in its prosecutorial function because of the principle of prosecutorial immunity. The Court of Appeal granted the appeal in part finding that the complaint to the Tribunal included allegations of discrimination both on an individual basis and systemic discrimination with regard to the policy. While the court agreed with the chambers judge that the Tribunal could not review the decision to charge the appellant because of the principles immunizing the exercise of prosecutorial discretion from review, it was open to the Tribunal to consider whether it had jurisdiction over the systemic discrimination allegation based on the policy. The court considered Krieger v. Law Society of Alberta, [2002] 3. S.C.R. 372, the leading case on the issue of prosecutorial discretion in Canada, in concluding that the complaint of individual discrimination could not proceed because of the principle of immunity from review of the exercise of prosecutorial discretion.

9The Court of Appeal recognized that prosecutorial immunity does not extend to all functions of Crown counsel. The Supreme Court defined the core functions of prosecutorial discretion that are immune from review due to constitutional considerations. Their properties are described in Krieger (at paras 46 to 47) and quoted in Crockford (at para 66):

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the [Criminal Code], (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether....; and (e) the discretion to take control of a private prosecution... While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for.

10I find that those aspects of the Application that challenge the individual Assistant Crown Attorney’s discretion to lay charges, maintain the charges and ultimately offer the applicant a Peace Bond, fall within the elements of prosecutorial discretion and cannot be reviewed by the Tribunal.

11The fact that an exemption from prosecutorial immunity has developed for a civil action for malicious prosecution, as stated by the applicant, does not alter my analysis. The concept of prosecutorial immunity is a common law concept and accordingly, only the common law can courts can adopt exemptions to it. I am not satisfied that a statutory agency such as the Tribunal can adopt a human rights exemption to prosecutorial immunity. Accordingly, it is unnecessary to determine whether the prosecutorial function is a service within the meaning of the Code.

Policies of the Attorney General

12The applicant refers to a provincial government document entitled "Domestic Violence Action Plan for Ontario" (the "Plan") and alleges it is a gender biased policy against men and is used to prosecute men in cases of domestic violence. The applicant also alleges that unnamed policies, directives, and legislation have been created by the Attorney General regarding the prosecution of domestic violence cases that are also gender biased against men.

13I have reviewed the Plan and it is not a policy, directive, or guideline for the Attorney General or Crown counsel to follow. The respondent acknowledges Crown counsel receive guidance and direction in respect of domestic violence prosecutions from the Crown Policy Manual, issued by the Attorney General. The Crown Policy Manual contains a two-page policy regarding domestic violence entitled "Spouse/Partner Offences". This provides the overall policy guidance to Crown counsel in prosecution of domestic violence cases. There are a number of Practice Memoranda relating to domestic violence prosecutions. The Practice Memorandum entitled "Spouse/Partner Offences: Miscellaneous Issues" relates to details of the major policy considerations with respect to the prosecution of domestic violence cases. The language of the policy and memorandum is gender neutral.

14To return to the British Columbia case of Crockford, supra, the Court of Appeal held it was open to the Tribunal to consider the question of whether the policy complained of was discriminatorily based. The court referred the appellant's complaint back to the Tribunal to determine the following questions:

(a) whether the appellant's complaint of systemic discrimination may proceed though his complaint of individual discrimination is barred by prosecutorial immunity;

(b) if the complaint of systemic discrimination may proceed, whether the creation and implementation of policy, the basis for the complaint of systemic discrimination, is a service of the Attorney General and Crown counsel that is customarily available to the public;

(c) whether the complaint of systemic discrimination is moot.

15Since the Court of Appeal decision, there have been no reported decisions by the Tribunal in Crockford on the questions set out by the Court. However, in Andrews v. British Columbia (Attorney General) (No. 2) (2007), CHRR Doc. 07-258, BCHRT No. 92, the British Columbia Human Rights Tribunal considered whether it had jurisdiction to consider a complaint of systemic discrimination by the Attorney General as a result of policies developed regarding a community called Bountiful. The Tribunal considered whether the Attorney General's policy-making functions were a service customarily available to the public and whether the complaint of systemic discrimination could proceed in the absence of an individual complaint of discrimination.

16The complainants in Andrews filed a representative complaint in which they alleged that the province discriminated against them and female members of the Bountiful community by creating an effective policy of non-prosecution of polygamy and related child exploitation offences arising in Bountiful.

17In order to come within section 8 of the British Columbia Human Rights Code, the creation of such policies would have to be a service customarily provided to the public by the Attorney General.

18The Tribunal considered whether Crown counsel, in formulating policy, is providing a service. The Tribunal stated:

In my view, however, a bare policy alone, without the application of that policy to a member of the public, cannot be said to be a service customarily available to the public. In the absence of the application of the policy, there is no relationship between the creator of the policy and any member of the public. In the absence of a relationship between the alleged service provider and the person or persons who rights are alleged to have been infringed, there can be no complaint under s. 8.

19The language of the Ontario Code differs from the British Columbia Human Rights Code.

20Section 1 of the Ontario Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

21"Service" is defined in the Code as not including a levy, fee, tax or periodic payment imposed by law.

22Although the Ontario Code does not have a limitation that the service must be “customarily available to the public”, there must be some sort of service relationship between the parties: Cooper v. Pinkofskys, 2008 HRTO 390 at para 10 to 11.

23In my view, it is unnecessary to determine whether in the absence of an application of the Crown Policy on "Spouse/Partner Offences” to the applicant (which cannot be challenged), there is a service relationship between the applicant and the respondent on the facts as set out in the Application.

24If the bare creation of the Crown Policy on "Spouse/Partner Offences” does amount to a service within the meaning of section 1 of the Code, in my view, the applicant does not have any standing to bring the present application. The Crown Policy on "Spouse/Partner Offences” on its face is gender-neutral. If there is discrimination, it must result from an adverse effect or the application of the policy in an uneven way. The Code is framed to require the applicant to claim and establish that a right of his has been infringed. It does not permit an applicant to assert that a policy is discriminatory where the policy does not affect him, or as in this case, he cannot challenge the application of an allegedly discriminatory policy against him because of prosecutorial immunity.

25I recognize that section 34(5) permits a person to make an application on behalf of another person, but that is not what the applicant is attempting to do.

26Under the new Code, only the Ontario Human Rights Commission may initiate applications “in the public interest” and despite the lack of a specific individual impacted by the alleged discrimination. For the foregoing reasons, I find that the Application cannot proceed and is dismissed.