Steele v. Ontario (Minister of Community Safety and Correctional Services), 2010 HRTO 1428

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Steele

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services

Respondent

INTERIM DECISION

Adjudicator: Faisal Bhabha

Date: June 29, 2010

Citation: 2010 HRTO 1428

Indexed as: Steele v. Ontario (Minister of Community Safety and Correctional Services)

WRITTEN SUBMISSIONS BY

Richard Steele, Applicant ) Selwyn Pieters, Counsel

Ontario (Ministry of Community ) Jinan Kubursi, Counsel

Safety and Correctional Services) . )

Respondent )

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin resulting from the applicant’s treatment while in detention at Maplehurst Correctional Centre (“Maplehurst”).

2A number of preliminary issues were raised on the first day of hearing on April 12, 2010. In an Interim Decision, 2010 HRTO 1019, dated May 6, 2010, the Tribunal dealt with most of those preliminary issues.

3This Interim Decision deals with a jurisdictional objection raised by the respondent. The Tribunal sought written submissions from the parties as to whether the Application should be partially dismissed to the extent that it relates to a decision arising out of a Correctional Services misconduct hearing. For reasons that follow, I find that it is not appropriate at this stage to dismiss the allegations in question.

FACTS

4The Application contains numerous allegations of individual and systemic discrimination, and condonation of discrimination, on the basis of race. A component of the applicant’s allegations relate to the exercise of the Maplehurst Superintendent’s power to investigate and remedy inmate misconduct. The applicant alleges that he was “subjected to excessive periods of close confinement by prison guards and authorities who are racist and regard [him] as a danger to them and the prison environment”. “Close confinement” is generally served in a segregation cell and is therefore synonymous with “solitary confinement”. The applicant claims that the punishments were “grossly unjust and unfair”. He argues that his “misconduct” should have been properly considered within the context of “deplorable racial harassment and discrimination” he alleges he experienced in his living unit.

5Furthermore, the applicant argues that the administrators of Maplehurst “were not responsive to race issues”. He alleges that he received “excessive and harsh” disciplinary treatment, including being “severly beaten at the jail by Correctional Staff, being placed in solitary segregation for 29 days, transferred to Central North Correctional Centre…and placed in segregation there.” The applicant alleges that the allegedly discriminatory punishment for misconduct was consistent with a systemic problem of racially-determined patterns of discipline, alleging that “…White inmates were not placed in segregation or otherwise punished for calling the Black inmates ‘nigger’… [or] when they engage in, instigate, or participated in fights and brawls with Black inmates.”

6It appears the applicant was subjected to misconduct charges on three occasions. The first occurred on October 30, 2008, when it is alleged the applicant refused an order of an officer, threw some of the contents of his lunch tray on the floor, refused to clean it up and told the officer that it was his job. The applicant received seven days of close confinement, and loss of all privileges. On November 30, 2008, the applicant again was alleged to have refused an order of an officer arising out of a dispute about his mail and receipt of books he was expecting. The officer claimed the applicant had become irate and accused the receptionist of racism. The applicant received a penalty of seven days of close confinement, and loss of all privileges.

7The most serious misconduct incident arose in February 2009, when the applicant was charged with “creating or inciting a disturbance likely to endanger the security of the institution”. The facts of the incident remain contested, but it is clear that a “Code Blue” was issued in response to acts involving the applicant and other inmates in his unit. The Code Blue initiated an emergency response, which led to a “lock-down”. The applicant was found to have initiated a confrontation with another inmate, causing the disturbance. He received a penalty of 29 days of close confinement, with a loss of all privileges. This is the pivotal incident underlying the applicant’s claim of systemic racism in the handling of misconduct at Maplehurst.

8The applicant sought review of the misconduct decision by the Assistant Deputy Minister of Adult Institutional Services, who upheld the decision.

POSITION OF THE PARTIES

9The respondent argues that the misconduct charges against the applicant fell within the statutory decision-making function of the Superintendent of the Maplehurst institution and are therefore not a “service” within the meaning of the Code. Accordingly, the respondent submits that the Tribunal has no jurisdiction to inquire into facts surrounding the incidents described above or to determine any potential Code implications arising from those incidents.

10The Superintendent, or his/her delegate, is a statutory decision-maker empowered by the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (the “Act”) and Regulation 778 (the “Reg”), to adjudicate an allegation of inmate misconduct. The Reg. defines inmate misconduct and prescribes the process for the determination of an allegation of misconduct. It provides that the Superintendent shall decide the allegation of misconduct. An inmate may seek a review of the Superintendent’s decision by the Minister or delegate.

11The respondent submits that the applicant had full access to the statutory process established under the Act and Reg. He availed himself of his right of statutory review, and had the further option to seek judicial review, which he did not do.

12The respondent relies on a long line of cases, beginning with Baird v. WSIAT, 2009 HRTO 99, to support its argument that the decision of the Superintendent in exercising statutory decision-making power is not a “service” within the meaning of section 1 of the Code. The following is an oft-quoted passage from Baird:

While a statutory decision-making process is a “service” for the purposes of the Code, there are elements of that process that are not encompassed by the Code’s meaning of “service”, such as the decision itself. The content, reasons and result contained in a decision of a statutory decision-maker cannot be understood to be part of the “service” a statutory Tribunal is providing to the public.

13The applicant argues that the grounds for internal review are limited, and that while the Superintendent exercises powers created by statute, the process is essentially an internal administrative one. He cited a recent Superior Court criminal sentencing decision in which the judge, in obiter, characterized the process for investigating allegations of misconduct as follows: “…the procedure for determining responsibility for such conduct is perfunctory at best and unfair at worst, usually giving the accused little or no opportunity to mount a defence.” See R. v. Downey and Thompson, 2010 ONSC 1531 at para. 35.

ANALYSIS AND DECISION

14The interpretation of the term “service” has created some recent uncertainty about the scope of the jurisdiction of the Tribunal. What is clear is that there are identifiable, established principles in the jurisprudence to be applied to the facts of this case.

Established Principles

15In Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765 at paras. 21-35, and Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712 at para. 21, the Tribunal has summarized both long-standing jurisprudential statements about the applicability of the Code, as well as the recent case law since 2008 addressing the issue. It is not necessary for me to further summarize or cite all of the relevant case law.

16The important principles to take from the established jurisprudence are first, that human rights legislation and policies are to be given a broad policy-based and liberal interpretation. See Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27, [2000] 1 S.C.R. 665 and B. v. Ontario (Human Rights Commission), [2002] 3 S.C.R. 407), at para. 44. Secondly, not all statutory powers of decisions are exempt from the Code. See Ontario (Human Rights Commission) v. Ontario (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 (Ont. CA); Braithwaite v. Ontario (Attorney General) No. 1, 2005 HRTO 32; upheld 2007 CanLII 56481 (ON SCDC), [2007] O.J. No. 4978 (QL); Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32; Hudler v. London (City), (1997), 1997 CanLII 24809 (ON HRT), 31 C.H.R.R. D/500.

17In Baird, supra, the Tribunal affirmed that “a statutory decision-making process is a ‘service’ for the purposes of the Code…”. It went on to recognize, however, that elements of that process are not part of the service, namely the “content, reasons and result” contained in the decision. The principle is not that all decisions of statutory decision-makers are exempt from the applicability of the Code. On the contrary, the assumption is that the administrative process is a “service” unless a principled reason can be demonstrated for exempting it. As cases since Baird have clarified, only decisions that are “adjudicative” in nature will be exempt, whether by virtue of the doctrine of adjudicative immunity, Dopelhamer, supra, or by a tailored interpretation of the meaning of “services”. See Christianson v. Social Benefits Tribunal, 2009 HRTO 886.

18The respondent urged me to reject the Dopelhamer approach, on the basis that adjudicative immunity is not applicable to the facts of this case, and to prefer the Tribunal's approach in Ballieram. I disagree for a number of reasons. First, I accept the Tribunal’s analysis in Dopelhamer as sound and applicable to the facts of this case. Secondly, I disagree that Ballieram is directly applicable to this case. The legislative scheme addressed in Ballieram, described by the Tribunal at para. 43 in that Decision as a “robust system of internal appeals resulting in a final appeal before a quasi-judicial tribunal”, is in no way analogous to the statutory scheme at issue in this case.

19In any event, I am persuaded that the general principles I take from Ballieram are harmonious with the application of a Dopelhamer analysis to the facts of this case. It seems to me there is jurisprudential clarity on the kinds of factors to assess when determining whether a particular decision is beyond Code review. For this reason, I am of view that the approaches reflected in the case law, though divergent conceptually, can be unified in doctrinal application. It is not, however, my endeavour to elucidate a general framework that would apply beyond the facts of this case.

20In Dopelhamer, supra, at para. 35 the Tribunal cautioned against importing “category-based restrictions into the scope of the term ‘services’.” I agree with this concern. The focus of the enquiry into whether the decision of a statutory decision-maker should be considered a service, in my opinion, should not be on the source of the decision-maker’s power, but rather on who the decision-maker is and what the decision-maker does. A categorical approach which holds that all statutory decision making power is immune from the Code goes too far, and is inconsistent with established jurisprudence. See, for example, Braithwaite, supra. Rather, a functional approach to the question is preferable. Such approach looks to the nature and qualities of the decision maker at issue.

21In Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, the Tribunal provided an instructive manner of approaching this question. The Tribunal held that where someone exercising a statutory power of decision adjudicates third-party interests, the Code should not apply to the “content, reasons and result” of the decision itself. Where, however, the decision-maker is in the position of conferring a benefit—in other words, deciding whether to provide a statutory benefit that the decision-maker itself has the power to confer—then there is no good reason to extend immunity from the Code.

22In the light of the above case law, I accept the principle that the Code does not apply to decision making that is truly adjudicative. I understand the “adjudicative” function to mean that the decision maker is “fair, impartial and independent”. See Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at para. 78. The doctrine of judicial immunity prohibits legal proceedings against “judicial actors” that challenge their actions as adjudicators or decision-makers. The reason for this protection is to safeguard judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences. See Cartier v. Nairn, 2009 HRTO 2208 at para. 12.

23Whether the doctrine of adjudicative (or quasi-judicial) immunity is applied to the facts of this case, what is clear, as the Tribunal explained in Ballieram at para. 27, is that “(W)hile the legal analysis has varied, the Tribunal has been consistent in refusing to exercise the functions of a reviewing court and serve as a forum for review of the reasons and contents of another adjudicator’s decision....” Safeguarding the independence of the decision-maker is the central rationale and function of limiting the scope of the application of the Code.

Application of General Principles to the Case at Hand

24It is necessary now to turn specifically to the decision making at issue in this case to determine how the established principles apply to the facts of this case. The question turns on the nature of the decision of the Superintendent’s delegate and whether the “content, reasons and result” of that decision are immune from the application of the Code.

25Section 20(1) of the Act establishes the role and responsibility of the Superintendent:

The Minister shall, for each correctional institution, designate one or more superintendents of the institution.

Responsibility for administration

(1.1) The superintendent shall be responsible for the administration of the correctional institution.

26Section 2 of the Reg. made pursuant to the Act provides a more detailed summary of the Superintendent’s role and responsibilities:

2.(1) The Superintendent of a correctional institution is responsible for the management of the institution and for the care, health, discipline, safety and custody of the inmates under the Superintendent’s authority, and, without limiting the generality of the foregoing, the Superintendent shall,

(a) supervise the admission and release of each inmate from the institution;

(b) supervise the recording, guarding and disposition of inmate property;

(c) conduct reviews in discipline cases;

(d) supervise the admission and conduct of persons visiting the institution; and

(e) supervise the searches conducted on inmates and employees.

(2) The Superintendent shall,

(a) administer the institution in accordance with the Act, the regulations and any instructions issued from time to time by the Minister to the Superintendent;

(b) issue to the employees of the institution such directions as may be necessary to fulfil the responsibilities of a Superintendent;

(c) establish administrative procedures to be followed on the admission, discharge, escape, illness or death of an inmate and on the assignment of employees’ and inmates’ duties; and

(d) ensure that inmates are informed of their duties and privileges while in the care and custody of the Superintendent. (3) The Superintendent shall forward immediately to the proper authority an application of an inmate for,

(a) appeal;

(b) a writ of habeas corpus or an order in the nature of mandamus;

(c) parole; or

(d) a transfer under the Transfer of Offenders Act (Canada).

27Pursuant to section 29(1)(3), the Superintendent has exclusive jurisdiction over inmate misconduct. Allegations of misconduct are handled, according to section 31, as follows:

31. (1) Where an inmate is alleged to have committed a misconduct, the Superintendent shall decide, as soon as possible, whether or not the inmate committed the misconduct. (2) Before making a decision under subsection (1), the Superintendent shall ensure that the inmate is notified of the allegation and is given an opportunity for an interview, which shall be held not later than ten days after the day on which the alleged offence became known to the Superintendent, to discuss the allegation with the Superintendent. (3) At the interview with the Superintendent, the inmate is entitled to present arguments and explanations to dispute the allegation and to question the person or persons making the allegation as well as any other witnesses to the incident.

(4) The Superintendent may permit any person, including an interpreter, to attend the interview and assist in any manner that the Superintendent considers appropriate. (5) The Superintendent may, during an interview held under subsection (2), adjourn the interview, but no such adjournment shall be for more than three clear days, except with the consent of the inmate. (6) The Superintendent shall inform the inmate within two days after the day of the interview concerning the Superintendent’s decision, the reasons for the decision and the penalty imposed, if any. (7) Where the inmate does not notify the Superintendent within one day of receiving notification of the allegation under subsection (2) that the inmate wishes an interview with the Superintendent, the Superintendent may decide the matter and shall inform the inmate of the decision, the reasons for the decision and the penalty imposed, if any. (8) After making the decision under subsection (6) or (7), the Superintendent shall make a record of the case noting the nature of the allegation, the arguments and explanations presented by the inmate, if any, and the decision, reasons and penalty imposed by the Superintendent in the case.

(9) Where an inmate who is alleged to have committed a misconduct is absent from the institution, a reasonable attempt to notify the inmate shall constitute sufficient notice for the purpose of this section.

28The Reg. provides a limited opportunity for review of a decision of the Superintendent by the Minister.

29While the Superintendent for each institution performs numerous duties, the overriding function of that office is, as the Act establishes, the administration of the institution. Part of administering the institution involves receiving, investigating and deciding issues of inmate misconduct. While the Superintendent (or a delegate) plays the role of investigator and has the power to make decisions arising out of the allegations and investigation of inmate misconduct, the nature of the Superintendent’s role and function remains that of the chief administrator of the institution. Not unlike a school principal, whose authority and powers are conferred by statute and who is empowered to make decisions, including disciplinary decisions, the Superintendent’s exercise of statutory powers of decision cannot be said to be of a “quasi-judicial” nature.

30In my view, applying the factors described above to the facts of this case, it is evident that the decisions at issue were executed by a Corrections administrator within the context of his overall responsibilities as the chief administrator of the correctional institution, and without the necessary degree of independence. Because the Superintendent’s function is overwhelmingly administrative rather than adjudicative, I am unable to accept the respondent’s submission that the misconduct decision is immune from Code review.

31My conclusion is therefore that the decisions at issue are “services” within the meaning of the Code and are not protected by any common law doctrine of immunity.

32Accordingly, the respondent’s Request for partial dismissal of the Application is denied.