Carmilo v. Ottawa Police Services Board, 2009 HRTO 1988

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Carmilo

Applicant

-and-

Ottawa Police Services Board and Keith Hihnala

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: November 23, 2009

Citation: 2009 HRTO 1988

Indexed as: Carmilo v. Ottawa Police Services Board

1This Interim Decision deals with a Request to Intervene filed by the Ontario Human Rights Commission (the “Commission”) under Rule 11.6 of the Tribunal’s Rules of Procedure and establishes a timetable for receipt of submissions on a Request for Order During Proceedings filed by the respondents.

Background

2The Application alleges discrimination in services because of race, colour, place of origin and ethnic origin in the context of the applicant having been subjected to an interrogation, detention and search by the personal respondent, a police officer employed by the corporate respondent. The respondents filed a Request for Order During Proceedings, seeking the dismissal of the Application on the basis that the Tribunal does not have the jurisdiction to inquire into matters relating to the arrest or detention of persons made under the Criminal Code of Canada, because matters relating to criminal law and criminal procedures are exclusively within the legislative authority of the federal Parliament of Canada. The Commission seeks to intervene only with respect to this discreet legal issue of jurisdiction. The applicant supports the Commission’s Request to Intervene. The respondents do not oppose it.

Decision on the Request to Intervene

3The Commission claims that a decision that the Tribunal lacks jurisdiction to deal with Applications like the present one would close off an important avenue for addressing allegations that the police have engaged in racial profiling.

4The issue of whether the Code has jurisdiction over police services in the context of detentions, searches and interrogations is an important one. Obviously, if the Code does not cover this type of service, then the Tribunal has no jurisdiction. I am satisfied that the Commission’s participation on this jurisdictional issue will be useful to the parties and the Tribunal. Furthermore, the Commission’s intervention would not likely lengthen the proceedings unduly. Given the nature of this legal issue and the potential broader public policy issues involved, in my view, it is appropriate to allow the Commission to intervene on the respondents’ Request to dismiss.

5Accordingly, the style of cause is amended, and the Commission is granted leave to intervene for the purpose of addressing the issue of the jurisdiction of the Code relating to the delivery of services by Ontario police officers when carrying out or conducting interrogations, detentions or arrests pursuant to authority of the Criminal Code.

6The respondents have raised some concerns that the Commission has improperly characterized their Request for Order During Proceedings as one that raises the issue of racial profiling; therefore, they urge an oral hearing to ensure that the term not be improperly used. The applicant’s response to the Request to Intervene states that the Commission is right to characterize his allegations as racial profiling, and the applicant agrees with the Commission that the Request be dealt with in writing. While there may be disagreement amongst the parties with respect to whether the Commission has mischaracterized the jurisdictional issue as involving racial profiling, it is appropriate that parties provide written submissions on the issue of jurisdiction, and, if they feel that racial profiling is relevant to the jurisdictional issue, argument on that point may be included in their written submissions. The Vice-chair or member reviewing the written submissions may decide that oral submissions are also required.

Schedule for Submissions

7Within 14 days of the date of this Interim Decision, the Commission may file written submissions, including any caselaw, addressing the issue of the jurisdiction of the Code relating to the delivery of services by Ontario police officers when carrying out or conducting interrogations, detentions or arrests pursuant to authority of the Criminal Code. The applicant may file a response, if any, within 28 days of the date of this Interim Decision, including any caselaw not previously filed with his Response to the Request for Order During Proceedings. The respondents may file any reply to the submissions of the Commission and applicant within 35 days of the date of this Interim Decision, including any caselaw not previously filed with their Request for Order During Proceedings.

8Following receipt of the submissions, the Tribunal may decide the issue or make further directions as to the hearing of this issue.

9I am not seized of this matter.