S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705

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 and Rob Hagerman

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: August 17, 2010

Citation: 2010 HRTO 1705

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

WRITTEN SUBMISSIONS BY

S.M. on behalf of G.M., Applicant ) On her own behalf

Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Community ) Safety and Correctional Services on behalf of ) Indira Sawh, Counsel the Ontario Provincial Police, Janice Mulcock ) and Rob Hagerman, Respondents )

Lynn Bradley and Ronald Laliberté ) Sara Blake, Counsel

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 her 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 (the “Detectives”) 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 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 on Police Complaints (“OCCPC”).

6In a previous Interim Decision, 2010 HRTO 1198, the Tribunal requested submissions from the applicant about how the Application could continue against the Crown attorney respondents in light of the principle of prosecutorial immunity and whether they provide a “service” within the meaning of the Code. The applicant has provided written submissions on this issue, as well as the deferral issue. The Crown attorney respondents submitted correspondence dated June 29, 2010, and copied to the other parties, indicating that the applicant’s husband has been committed to stand trial and an Indictment has been filed in the Superior Court of Justice.

Proceeding against the Crown attorney respondents

7In her written submissions, the applicant stresses the serious injustice and discrimination that occurred towards her husband as the respondents accepted information from the alleged victim without obtaining information from her husband, herself, or others. She submits that the Crown attorney respondents are not immune from the Application just as former politicians and royalty are not immune from prosecution.

8In Oliphant v. Ontario (Attorney General), 2009 HRTO 1902, this Tribunal determined that it did not have the jurisdiction to hear an application in which an applicant alleged gender bias in the criminal justice system by the Office of the Crown attorney and others. The applicant alleged that the Office of the Crown attorney maintained the prosecution of various Criminal Code offences against him because of gender bias and specifically charges of assault and sexual assaults based on information laid by the applicant’s wife. When the applicant’s wife refused to testify at trial, the Assistant Crown attorney entered into a Peace Bond with the applicant and in return the charges were withdrawn.

9This Tribunal dismissed that application. In doing so, it considered the principle of prosecutorial immunity in relation to the Crown attorneys and the role they played in the applicant’s case. At para. 10, the Tribunal stated:

I find that those aspects of the Application that challenge the individual Assistant Crown attorney’s discretion to lay charges, maintain the charges and ultimately offer the applicant a Peace Bond, fall within the elements of prosecutorial discretion and cannot be reviewed by the Tribunal.

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 the “the most exceptional circumstances”: Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at para 51, as cited in Traverse v. Canadian Embassy in Paris, 2010 HRTO 1663 at para 10. 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 Crown attorney respondents and it is unnecessary to determine whether the prosecutorial function is a service within the meaning of the Code. As such, the allegations against the Crown attorney respondents are dismissed, they are removed as respondents and the style of cause amended accordingly.

Deferring the Application

11The applicant requests the Tribunal not to defer the Application. The applicant submits that the OPP and Detectives Mulock and Hagerman failed to properly investigate the applicant’s husband prior to his arrest and the investigation that they did conduct was while the applicant’s husband was heavily medicated.

12In all the circumstances, it appears to the Tribunal that it may be appropriate to defer consideration of the Application, pending completion of the criminal proceeding, against the OPP and Detectives Mulock and Hagerman.

13The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

14The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, where the applicant or the respondent was the party who was criminally charged. See Miller v. Bernard, 2010 HRTO 1488 and Hadley v. J.A.C.S. Cartage, 2010 HRTO 516.

15In this case, there are ongoing criminal proceedings in which the applicant’s husband has been charged. There is a publication ban in the criminal proceedings, which prevents the respondents from elaborating about the criminal charges and from fully responding to the allegations in the Application. Allowing the applicant, who is married to the accused in the criminal proceeding, to access these records in the Tribunal proceedings would potentially jeopardize the criminal proceedings.

16Accordingly, the Tribunal orders the deferral of the Application pending conclusion of the criminal proceeding against the applicant’s husband. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded. If the complaint before the OCCPC is still outstanding at that point, the Tribunal will hear submissions from the parties on whether the Application should still be deferred on that basis.

17I am not seized of this matter.