Shane v. Cornwall Police Department, 2009 HRTO 2216

Kevin Shane on behalf of Kenneth Shane

Applicant

-and-

Cornwall Police Department, Cornwall Standard Freeholder, Webber Schroeder, Cornwall Superior Court of Justice and Ottawa Court House

Respondents

DECISION

Adjudicator: David A. Wright

Date: December 18, 2009

Citation: 2009 HRTO 2216

Indexed as: Shane v. Cornwall Police Department

1This is an Application under s. 34 (5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). It is brought by Kevin Shane on behalf of his brother, Kenneth Shane. The Application relates to Kenneth Shane’s conviction for manslaughter in the Superior Court of Justice and connected events. It alleges discrimination on the basis of ancestry, disability, and family status. The Application was filed on July 16, 2009, and completed, following a request for missing information, on August 27, 2009.

2The Application takes issue with the conduct of the police, the Crown attorneys, and the judge involved in the criminal trial. It alleges that Kenneth Shane, who has a mental disability, was taken advantage of by the police, not read his rights, interrogated while under the influence of alcohol and medication, and improperly convicted when he wished to change his plea from guilty to not guilty.

3On September 14, 2009, the Tribunal Registrar sent the applicant a letter that read, in relevant part, as follows:

The Tribunal has reviewed your Application. It appears that your Application is outside the Tribunal’s jurisdiction because:

The narrative in your completed Application does not appear to allege discrimination by any of the respondents based upon the marked grounds of ancestry, disability or family status, nor based upon any other ground of discrimination under the Human Rights Code. It therefore does not appear to raise an issue the Tribunal can resolve.

As against the respondents Jason Pilon and Wayne McDermid, the Tribunal has held that a lawyer or representative in legal proceedings representing an adverse party in litigation does not owe Code duties to other parties. Therefore, it appears that this aspect of the Application does not allege discrimination in goods, services, or facilities. You are directed to the Tribunal’s decisions in Cooper v. Pinkofsys, 2008 HRTO 390 and Crawford v. 2176534 Ontario, 2009 HRTO 1028.

As against the respondents Superior Court of Justice, Ottawa Court House and/or and Justice Lynn Ratushny, the Tribunal has held on a number of occasions that “services” within the meaning of the Code does not include the outcome or decision resulting from adjudications by other statutory bodies, including the courts. You are directed to the Tribunal’s decisions in Baird v. Workplace Safety and Insurance Board, 2009 HRTO 99, and Christianson v. Ontario (IPC), 2009 HRTO 203, reconsideration refused, 2009 HRTO 424.

You may wish to review the provisions of the Human Rights Code noted above as well as the Tribunal’s Rules of Procedure and Guides to its processes, all available on the Tribunal’s website at www.hrto.ca, before responding to this Notice. Tribunal decisions are available at www.canlii.org.

You may make written submissions explaining why you believe the Application is in the Tribunal’s jurisdiction and should be decided by the Tribunal. The Tribunal will consider your submissions before deciding whether to dismiss or proceed with your Application as against these respondents.

4On October 17, 2009, Kevin Shane sent the Tribunal materials with a cover letter that stated that he “would like to keep it confidential from the parties involved until we meet”. The Registrar wrote to Mr. Shane advising that under the Tribunal’s Rules, all parties are entitled to copies of the materials in the Tribunal’s file and the Tribunal could not accept the materials under the condition specified. The deadline to respond to the Notice of Intent to Dismiss was extended until November 5, 2009.

5On November 3, 2009, following a request by Mr. Shane based on the illness of some family members, he was granted a further extension to November 19, 2009. No submissions were filed by the deadline.

6On November 24, 2009, by fax, the applicant sent a letter requesting another extension until the middle of January “as we are in the process of retaining a lawyer from Legal Aid”. The letter also stated, “we are under a great deal of stress with a terminally ill sibling”.

7On November 25, 2009, the Tribunal sent the applicant the following letter:

The Tribunal has received your letter dated November 19, 2009, which was faxed to us on November 24, 2009.

In the circumstances, a delay until mid-January would not be appropriate. The Tribunal is prepared to extend the deadline for submissions until three weeks from today: December 16, 2009. Absent extraordinary circumstances, further extensions will not be granted.

In addition to the issues identified in the Tribunal’s previous correspondence, it appears that your Application may also be outside the Tribunal’s jurisdiction because it was filed more than one year after the incident to which it relates. Accordingly, the Tribunal requests that you address, together with the other issues identified, why you believe that the Application was made within one year of the last incident to which it relates and why you submit that any delay was incurred in good faith.

For your assistance, I will summarize all the issues on which the Tribunal asks you to make submissions:

It appears that the Application is outside the Tribunal’s jurisdiction because it was filed more than one year after the incident to which it relates, or the last incident in a series of incidents and you have not demonstrated that any delay was incurred in good faith. Sections 34(1) and (2) of the Human Rights Code read as follows:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

Please explain why you allege that the Application was filed within one year of the incident or last incident in the series, and/or why any delay was incurred in good faith.

The narrative in your completed Application does not appear to allege discrimination by any of the respondents based upon the marked grounds of ancestry, disability or family status, nor based upon any other ground of discrimination under the Human Rights Code. It therefore does not appear to raise an issue the Tribunal can resolve. Please explain why you allege that the respondents have discriminated against you based upon one or more of the listed grounds.
As against the respondents Jason Pilon and Wayne McDermid, the Tribunal has held that a lawyer or representative in legal proceedings representing an adverse party in litigation does not owe Code duties to other parties. Therefore, it appears that this aspect of the Application does not allege discrimination in goods, services, or facilities. You are directed to the Tribunal’s decisions in Cooper v. Pinkofsys, 2008 HRTO 390 and Crawford v. 2176534 Ontario, 2009 HRTO 1028. Please explain why you allege that your allegations against the Crown attorneys raise allegations of discrimination in goods, services and facilities as defined in the Code.
As against the respondents Superior Court of Justice, Ottawa Court House and/or and Justice Lynn Ratushny, the Tribunal has held on a number of occasions that “services” within the meaning of the Code does not include the outcome or decision resulting from adjudications by other statutory bodies, including the courts. You are directed to the Tribunal’s decisions in Baird v. Workplace Safety and Insurance Board [sic], 2009 HRTO 99, and Christianson v. Ontario (IPC), 2009 HRTO 203, reconsideration refused 2009 HRTO 424. Please explain why your allegations regarding the Court’s decision raises allegations of discrimination in goods, services and facilities.

You must file your written submissions by December 16, 2009. If you do not file written submissions the Tribunal will make its decision based only on the information in your Application. You may file your written submissions with the Tribunal by email, fax or mail. Please clearly write your name and this Tribunal File Number [2009-02950-I] on all correspondence and any other documents you file with the Tribunal in respect of this Application.

The Tribunal will send a copy of its decision to you. A copy of your Application, the Tribunal’s decision as well as copies of your submissions and any other correspondence between you and the Tribunal will be sent to the respondents named in your Application.

8Kevin Shane sent submissions to the Tribunal on December 16, 2009. They consist primarily of statements about what he feels is the wrongful conviction of his brother and errors by the judge and lawyers representing him. He suggests that the decision of the Tribunal not to grant further extensions absent exceptional circumstances is an attempt to cover up the actions of the respondents or protect the parties involved. He refers to his efforts to find a lawyer and to stress as a result of family members’ illnesses.

Extension

9The Tribunal is committed to the fair, just and expeditious resolution of matters before it. As a result of the Tribunal’s concerns that this matter was not within its jurisdiction, it issued a Notice of Intent to Dismiss on September 14, 2009 and granted several extensions to that deadline. The issues about which the applicant was directed to make submissions relate to whether the original Application that he filed in July, 2009 is within the power of the Tribunal to decide. As a result of these concerns, the respondents have not yet had the Application delivered to them. It would be inappropriate to allow further extensions because, should the Tribunal find that the Application is within its jurisdiction, further delays could prejudice the ability of the respondents to defend themselves.

10Mr. Shane has been granted several extensions to make the required submissions. I appreciate that he is under stress from difficult personal circumstances and is now seeking a lawyer. In my view, these considerations are outweighed by the fact that the events in question occurred several years ago, and it would not be fair to the respondents to grant further extensions before deciding whether they are required to respond.

Jurisdiction

11I find that as against all respondents other than the Cornwall Police Department, the Application does not raise matters that are within the jurisdiction (power) of the Tribunal to decide. The decision of a judge to convict the applicant of manslaughter is not a “service” to the applicant within the meaning of the Code: see Baird, supra and Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595. Similarly, the actions of Crown attorneys in prosecuting the applicant do not fall under the Code: Cooper, supra and Crawford, supra. The applicant makes no allegations that the Cornwall Standard Freeholder discriminated against the applicant on any grounds in the Code. There are also no allegations of discrimination on any ground in the Code against Webber Schroeder. Accordingly, the Application is dismissed against all respondents other than the Cornwall Police Department.

Cornwall Police Department and Timeliness

12As against the Cornwall Police Department, the Application does appear to allege that officers took advantage of the applicant because of his disability in interrogating him. However, the events alleged appear to have taken place in 2004. Sections 34 (1) and (2) of the Code read as follows:

(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

13While Kevin Shane did not make any submissions on the issue of delay in his December 16 submissions, the initial Application asked the following question “If you are applying more than one year from the last event, please explain why”. The response consists of his explanation of why he believes the trial judge and various lawyers did not behave appropriately. The applicant has provided no reasonable explanation for the five-year delay in bringing the Application against the Cornwall Police Department. Accordingly, I find that the applicant has not shown that the delay was incurred in good faith, and the Application is also dismissed as against the Cornwall Police Department.

ORDER

14The Application is dismissed.

Dated at Toronto, this 18^th^ day of December, 2009.

“Signed by”

David A. Wright

Interim Chair```