HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carmilo Pierre Louis
Applicant
-and-
Ottawa Police Services Board and Keith Hinalah
Respondents
-and-
Ontario Human Rights Commission
Intervenor
RECONSIDERATION DECISION
Adjudicator: David A. Wright
Indexed as: Pierre Louis v. Ottawa Police Services Board
WRITTEN SUBMISSIONS BY
Ottawa Police Services Board and ) David Patacairk, Counsel Keith Hinalah, Respondents ) )
1The respondent seeks reconsideration of the Tribunal’s finding that it has jurisdiction in this matter. See 2010 HRTO 863. Rules 26.1 and 26.5 govern this request and read as follows:
26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days from the date of the decision.
26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
2The respondent argues that the Interim Decision is inconsistent with the Supreme Court of Canada’s decision in Scowby v. Glendinning, 1986 CanLII 30 (SCC), [1986] 2 S.C.R. 226 (“Scowby”) and that it is in the public interest that the decision be revisited.
3I am prepared to assume, without deciding, that the Interim Decision “disposes of one or all of the central issues…as between the parties” and is therefore final within the meaning of Rule 26.5 and properly the subject of a reconsideration request. See Sigrist v. London District Catholic School Board, 2008 HRTO 34 at para. 41.
4There is, however, no merit to the argument that the Tribunal’s Interim Decision is in conflict with Scowby. The respondent’s submissions do not take into account that the pith and substance of a law is determined, in Canadian constitutional law, by looking at the provision, in general, without reference to the specific context in which the law is being applied. The provision found unconstitutional in Scowby dealt only with arrests and detentions, purporting to define when they were authorized. Therefore, in “pith and substance” it related to criminal law and procedure and was unconstitutional.
5Section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) however, is general legislation that governs the provision of services of all types in Ontario, and prohibits discrimination in the provision of those services. It is, in pith and substance, legislation that falls under the province’s power under s. 92(13) of the Constitutional Act, 1867, over property and civil rights. It falls under this category, among other reasons, because it governs the provision of commercial and other services within the province, matters that are frequently the subject of provincial legislation under this head of power. Legislation that is, in pith and substance within a province’s jurisdiction may “affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional”: Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 28. It is this principle that the respondent’s submissions ignore.
6The respondent suggests, at para. 10 of its reconsideration submissions, that the Tribunal was incorrect to find that s. 1 of the Code is a law that, in pith and substance, relates to property and civil rights, relying on Scowby. This submission is incorrect because it conflates the situation where a law is in pith and substance outside the province’s jurisdiction (Scowby, where the provision specifically aimed at the regulation of arrest and detention) with this situation (where s. 1 of the Code addresses the provision of services in general and affects arrest and detention). In such circumstances, the law is valid and will apply unless the doctrines of paramountcy or interjurisdictional immunity apply. As the Court explained in Scowby at para. 8:
.. a province’s jurisdiction to affirmatively protect a human right or liberty must depend upon the human rights provision’s independent validity under one of the heads of s. 92… Should the root of the human rights legislation under challenge be within the territory of pure criminal law, and not in a valid provincial legislative object, it is beyond the powers of the provincial legislature.
7Scowby does not find that either doctrine prevents validly enacted provincial law from providing for civil remedies for arrests or detentions by police in which prohibited grounds are a factor. At paras. 12-14 of the Interim Decision, the Tribunal found that these doctrines do not apply and the respondent has not argued that this analysis is incorrect other than through its misplaced reliance on Scowby.
8Indeed, as the Tribunal pointed out in the Interim Decision, the Supreme Court’s reasoning in Scowby supports the conclusion that the doctrines do not apply, since the case notes that provincial legislation can validly provide for the civil consequences of arrest or detention. The respondents take issue with this portion of the Interim Decision, noting that “the standards which are applied to determine the lawfulness of an arrest or detention are in fact the federal Criminal Code standards found in ss. 25 and 495...” The Tribunal’s reference to this portion of Scowby was not to suggest that the Code is general legislation providing for the civil consequences of unlawful arrest or detention, but to make clear that Scowby was about the pith and substance doctrine, not interjurisdictional immunity or paramountcy. For the Tribunal to find s. 1 of the Code inapplicable because of these Criminal Code provisions, it would have to apply the doctrine of paramountcy. This would require the respondents to show that it is impossible for a police officer to comply with both s. 1 of the Code and ss. 25 and 495 of the Criminal Code, or that the application of the Code would frustrate the purpose of these Criminal Code sections. They have not done so.
9The bottom line is that the respondent’s submissions blur different constitutional doctrines: they take the Supreme Court’s findings in a pith and substance case involving a very different legislative provision and attempt to apply them to a circumstance where there is a validly enacted provincial law that affects federal powers. If the respondent were correct that Scowby applies directly, the result would not be that s. 1 of the Code does not apply to the circumstances of this case, but rather that s. 1 of the Code is unconstitutional and cannot be applied in any case. That is not, of course, what the respondent asks for; it wants the Tribunal to find that “the application of the Code to criminal arrests and detentions is ultra vires” (para. 19 of the reconsideration submissions).
10I find that the Tribunal’s Decision is not inconsistent with Scowby and the Request for Reconsideration is dismissed.
Dated at Toronto, this 17th day of June, 2010.
”signed by”______________
David A. Wright
Interim Chair