Traverse v. Canadian Embassy in Paris, 2010 HRTO 1663

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Traverse on behalf of Marnix Deloof

Applicant

-and-

Canadian Embassy in Paris, Honourable G.P. Rogers, Honourable J.G. Lebel and Jean-Jacques G. Primeau

Respondents

DECISION

Adjudicator: Naomi Overend

Date: August 11, 2010

Citation: 2010 HRTO 1663

Indexed as: Traverse v. Canadian Embassy in Paris

1The applicant filed this Application on behalf of her partner, Marnix Deloof, on December 11, 2009, under s. 34(5) of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) alleging discrimination in the provision of services because of place of origin and ethnic origin.

2Marnix Deloof is a citizen of Belgium, of Flemish (Dutch) origin. He was working in Canada as a truck driver when he was arrested for impaired driving and driving with a blood alcohol concentration of 80 milligrams in 100 millilitres of blood. He was found guilty at trial before Justice G.P. Rogers. According to the Application, that conviction was overturned on appeal and the matter remitted to a new trial which took place before Justice J.P. Lebel, a judge with the Ontario Court of Justice. He was again convicted when the matter went to trial a second time.

3According to the Application, following his conviction the first time, Deloof was deported back to Belgium. He apparently encountered difficulties returning to Canada for his second trial because of the actions of the Canadian Embassy in Paris. The Application alleges he was ultimately allowed to remain in Canada to attend his trial, but not without some significant difficulties.

4A Notice of Intent to Dismiss was sent on January 26, 2010 indicating that the Application appears to be outside the jurisdiction of the Tribunal because of the nature of the respondents and allegations against them. The Application names the Canadian Embassy in Paris, the two trial judges and crown counsel. Although the applicant has since sent in further information and submissions, none deal directly with the jurisdictional issue raised in the Notice of Intent to Dismiss.

5I find that the Tribunal has no jurisdiction to proceed with the Application against any of the respondents for the reasons set out below.

JUDICIAL IMMUNITY

6Initially, the Application alleged that Deloof was denied the right to a translator at court, even though his English was not fluent. However, in subsequent correspondence, the applicant now alleges that it was Deloof’s own lawyer who failed to request a translator for him. That alleged negligence is being pursued through other avenues.

7The remaining allegation against the two trial judges is that they made unfair rulings against Deloof because he was a citizen of another country. The doctrine of judicial immunity has been applied by this Tribunal to dismiss applications against adjudicators. The rationale for this doctrine is explained by the Tribunal in Cartier v. Nairn, 2009 HRTO 2208 at para. 12 and 13:

The doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of 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.

The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. In Taylor v. Canada (Attorney General), 2000 CanLII 17120 (F.C.A.)… the Federal Court of Appeal held that the Canadian Human Rights Commission and Tribunal lacked jurisdiction over a complaint that a judge of the Ontario Court General Division had discriminated against a courtroom observer who was excluded from the courtroom on the basis of his religious head covering.

8I find that the principle of judicial immunity applies with respect to the two named judges of the Ontario Court of Justice. Accordingly, the Tribunal has no jurisdiction to proceed with the Application as against LeBel J. and Rogers J.

PROSECUTORIAL IMMUNITY

9The Application names the Crown prosecutor for the first trial, Jean-Jacques Primeau, as a respondent. Like the allegations against the two trial court judges, the Application alleges that the prosecutor “wanted to make an example” of Deloof as an outsider to Canada. The narrative attached to the Application specifically asserts that the discrimination arose from the following submission made on sentencing:

There has to be a message sent, however, both to Mr. Deloof and a general deterrent factor should be taken in to consideration as well, but there can be some mitigation in that he’s dealt with these matters in a very, in my submission, a responsible manner in that he was here in October and came back in December at this expense and is offering you his plea his second time around.

10Crown attorneys have an immunity from lawsuits with the narrow exception that an action can be brought for malicious prosecution in what the Supreme Court of Canada has ruled must be “the most exceptional circumstances:” Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para. 51. In light of the principle of prosecutorial immunity, Crown attorneys are not generally liable under the Code for actions in the course of their work. Accordingly, the Tribunal does not have jurisdiction over the respondent Jean-Jacques Primeau.

FEDERAL JURISDICTION

11Prior to serving an application on the named respondent(s), the Tribunal will only dismiss it as being under federal jurisdiction where it is plain and obvious that the matters do not fall within provincial jurisdiction. In this case, the Canadian Embassy in Paris is the responsibility of the Department of Foreign Affairs and International Trade Canada. As part of the federal government, it is plain and obvious that this respondent it is not provincially regulated. Accordingly, the Tribunal has no jurisdiction to proceed with the Application against this respondent.

ORDER

12The Application has named four respondents who, for the reasons specified above, are not within the jurisdiction of this Tribunal. Given this lack of jurisdiction, the Application is dismissed.