S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.M. on behalf of G.M.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services on behalf of the Ontario Provincial Police, Janice Mulcock, Rob Hagerman, Lynn Bradley and Ronald Laliberté

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: May 27, 2010

Citation: 2010 HRTO 1198

Indexed as: S.M. v. Ontario (Community Safety and Correctional Services)

1This Application is brought under section 34(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 24, 2009, by S.M. on behalf of her husband, G.M. There is a publication ban issued in respect of criminal proceedings which are connected with the issues in dispute and, for that reason, I have anonymized the name of the applicant and his spouse.

2The Application alleges that G.M. was falsely arrested and incarcerated. As a result of his incarceration, G.M. was denied his medications, use of his cane, and was forced to kneel, which aggravated his disabilities. The applicant alleges this amounted to discrimination on the basis of disability and reprisal. Although a social ground was not marked off, it appears that the social ground is goods, services and facilities.

3The Ontario Provincial Police (“OPP”) and Detectives Mulock and Hagerman filed a Response. The personal respondents Lynn Bradley and Ronald Laliberté are Crown Attorneys (the “Crown Attorney respondents”) and filed a separate Response. Both Responses assert that the publication ban with respect to G.M.’s criminal proceedings prevents the respondents from fully responding to and producing documentation about the Application.

4The Crown Attorney respondents request that the Tribunal dismiss the Application because the criminal proceedings will, in their submission, appropriately deal with the substance of the Application. The Crown Attorney respondents also submit that they were not providing “services” as required by the Code and that they are judicially immune from these proceedings.

5The OPP and the Detectives also filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal defer the Application in light of the outstanding criminal proceeding and because of an outstanding complaint to the Ontario Civilian Commission (“OCC”) on Police Complaints.

6The applicant wrote to the Tribunal on March 21, 2010, in response to the respondents’ submissions. The applicant also filed a Response to the Request for an Order opposing the request to defer on the basis that the facts of the criminal proceeding and the OCC complaint are different from the allegations before the Tribunal. The Crown Attorney respondents did not file a Response to the RFOP and the time for doing so has now passed.

Proceeding against the Crown Attorney respondents

7The Tribunal does not have a general power to evaluate relationships between individuals, nor does it act as an appellate body for criminal matters. It hears applications that allege violations of the Code.

8Under section 1, 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.

9It is not apparent from any of the applicant’s allegations how the Crown Attorney respondents provided a good, service or facility to the applicant. In view of the material before it, the Tribunal requests the applicant’s submissions on the issue of the jurisdiction to hear her Application as against the Crown Attorney respondents. The applicant should explain how her Application raises matters which the Tribunal has the power to decide. In particular, the applicant should explain how the alleged actions of the Crown Attorney respondents amount to discrimination in the provision of a good, service or facility. The applicant’s submissions should be sent to the respondents’ counsel and filed with the Tribunal within 30 days of receiving this decision. The applicant may want to review the Tribunal’s caselaw, which is found on www.canlii.org, including, but not limited to, Oliphant v. Ontario (Attorney General), 2009 HRTO 1902, Belso v. York Region Police, 2009 HRTO 757, and Theisen v. Ontario (Attorney General), 2009 HRTO 1781 in which the Tribunal has found that applications not proceed against Crown Attorneys and judicial officials because of prosecutorial immunity and/or they do not provide a “service” within the meaning of the Code.

10Following receipt of the applicant’s submissions, the Tribunal will consider whether to dismiss or proceed with the Application as against the Crown Attorney respondents, and will consider the OPP and Detectives’ request to defer the Application pending completion of the criminal proceeding against G.M.

11I am not seized of this matter.