Inward v. Toronto (City), 2010 HRTO 2127

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Inward

Applicant

-and-

Director of Prosecutions, City of Toronto, Director of Court Services, City of Toronto, and Tamara Irwin

Respondents

-and-

Philomen Wright

Intervenor

DECISION

Adjudicator: David A. Wright

Date: October 21, 2010

Citation: 2010 HRTO 2127

Indexed as: Inward v. Toronto (City)

APPEARANCES

Laura Inward, Applicant ) Natasha Persaud, ) Counsel

Director of Prosecutions, City of Toronto, ) Naomi Calla, Director of Court Services, City of Toronto, ) Counsel and Tamara Irwin, Respondents )

Justice of the Peace Philomen Wright, Intervenor ) Anita Lyon, ) Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). It relates to the applicant's attendance before a Justice of the Peace presiding in the Ontario Court of Justice. The Court is operated by the respondent City of Toronto and Ms. Irwin was the prosecutor of the alleged offence under the Provincial Offences Act, R.S.O. 1990, c. P.33.

2The applicant alleges that both the prosecutor and the Justice of the Peace did not permit her to present her case with her 7 ½ week old son present. She alleges that by suggesting or requiring that she return without her child when speaking to the applicant about the plea and the court list, the respondent Irwin discriminated against her on the basis of sex and family status.

3The respondents argue that the Application is outside the Tribunal's jurisdiction. They state that the Application does not relate to "services" as defined in s. 1 of the Code, that the actions of the prosecutor are not subject to review under the Code because of the principle of prosecutorial immunity, and that the Director of Court Services is not responsible for the actions of the presiding Justice of the Peace.

4Although the applicant accepts that the Application cannot proceed against the Justice of the Peace because of the principle of judicial immunity, she asserts that the municipal prosecutor was providing a service within the meaning of the Code in prosecuting the offence and that the alleged actions do not fall within the scope of prosecutorial immunity. She argues that the respondent Directors are responsible for the policies under which municipal courts operate and should be respondents in order for a proper remedial order to be made.

DECISION

5I find that the Tribunal does not have jurisdiction over this Application. The prosecutor and the Director of Prosecutions are protected from liability under the Code by the principle of prosecutorial immunity. There is no basis to find the Director of Court Services liable for the alleged events.

PARTIES

6The Application was originally filed against Her Majesty the Queen in Right of Ontario as Represented by the Ministry of the Attorney General and the prosecutor. In a previous Interim Decision, 2009 HRTO 690, the Tribunal granted the applicant's request to add the Director of Prosecutions and the Director of Court Services as respondents, and gave notice to the Justice of the Peace as an affected person. On consent of the parties, the Ministry of the Attorney General was removed as a respondent and the Justice of the Peace was granted intervenor status.

analysis

Prosecutorial Immunity

7The Tribunal has held on various occasions that the actions of prosecutors in the course of carrying out their duties are not "services" within the meaning of s. 1 of the Code or are not subject to the Code because of prosecutorial immunity: see Surh v. Toronto (City), 2009 HRTO 1700; Theisen v. Ontario (Attorney General), 2009 HRTO 1781; Oliphant v. Ontario (Attorney General), 2009 HRTO 1902; Shane v. Cornwall Police Department, 2009 HRTO 2216; Traverse v. Canadian Embassy in Paris, 2010 HRTO 1663; and S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705.

8The applicant argues that prosecutorial immunity does not apply in this case. She submits that the alleged interaction with the prosecutor occurred when her actions in prosecuting the merits of the case had not even begun: the prosecutor was reviewing the docket and entering a plea. The applicant argues that prosecutorial immunity applies only to the core elements of prosecutorial discretion, set out as follows in Krieger v. Law Society of Alberta, 2002 SCC 65 at paras. 46-47:

Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the *Criminal Code*, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 1975 CanLII 1357 (NB CA), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 1989 CanLII 4780 (SK CA), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.

9In my view, however, prosecutorial immunity is not limited to the core elements of prosecutorial discretion as set out in Krieger. Prosecutorial discretion relates to the Attorney General's independence in making prosecutorial decisions, and provides that certain prosecutorial decisions are immune from judicial review: Krieger, supra at paras. 48-49; Miazga v. Kvello Estate, 2009 SCC 31 at para. 35. Prosecutorial immunity protects prosecutors from civil liability for their actions in the course of their duties: see Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170. While actions that fall within the core of prosecutorial discretion are certainly immune from Code and other civil proceedings (see British Columbia v. Crockford, 2006 BCCA 260 and Theisen, supra) it does not follow, in my view, that prosecutorial immunity is limited to those actions at the core of prosecutorial discretion. In fact, prosecutorial immunity is a broad concept that protects the actions of a prosecutor from leading to civil liability in all but the most exceptional circumstances.

10Prior to the Supreme Court of Canada's decision in Nelles, prosecutors had absolute immunity from civil suit, including for malicious prosecution. In that case, the Court held that prosecutorial immunity does not extend to malicious prosecution, which requires proof of an improper motive. However, the Court was careful to state that its decision did not lead to liability of prosecutors for errors of judgment or negligence: see Nelles, supra at p. 199.

11The Supreme Court has made clear since Nelles that prosecutorial immunity remains broad, and that while there is no longer absolute immunity, prosecutors are protected from nearly all civil liability. In Proulx v. Quebec (Attorney General), 2001 SCC 66, the Court stated, at para. 4:

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor's judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.

This was reiterated in Miazga, supra at para. 50, where the Court held that "the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals".

12Accordingly, in my view, unless there are allegations of a Code violation in which the prosecutor had "a motive that involved an abuse or perversion of the system of criminal justice for ends it was not designed to serve" (Nelles at p. 199), prosecutorial immunity applies. This flows from the reasoning of the Supreme Court in Nelles, Proulx, and Miazga. In this case, there is no suggestion that the prosecutor's actions were motivated by malice or abuse of the system criminal justice. Accordingly, I find that the prosecutor is protected by prosecutorial immunity and the Tribunal has no jurisdiction over the Application as against her or the Director of Prosecutions.

13I make one final comment before concluding my discussion of this issue. The Tribunal has dealt with applications against Crown prosecutors acting in the course of their duties either by finding that they are not providing "services" within the meaning of s. 1 of the Code (Surh, Shane, Theisen) or by finding that the doctrine of prosecutorial immunity applies (Oliphant, Traverse, S.M.). In my view, there is little or no principled or practical difference in these approaches. Both these lines of cases have applied the principle of prosecutorial immunity and the values underlying it, either directly or by finding that the concept of "services" in s. 1 of the Code is limited by this principle. Under both analyses, the point is that the Tribunal has no jurisdiction over actions covered by prosecutorial immunity. In my view, neither approach detracts from or changes the broad definition given to the concept of "services" in cases such as Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 (Div. Ct.).

Claim Against the Director of Court Services

14The applicant states that the Director of Court Services

...was added as a Respondent to this matter as one of the remedies that the Applicant is seeking is the creation and implementation of a human rights policy that address [sic] the rights of breastfeeding women specifically and accommodation principles generally.

She does not dispute that the Justice of the Peace is covered by the principle of judicial immunity nor assert that the Director has violated the Code.

15As the applicant does not assert that the Director of Court Services is liable for any violation of the Code, and I have found that the claim against the other respondents is outside the Tribunal's jurisdiction because of the principle of prosecutorial immunity, there is no basis for the Application to continue as against the Director of Court Services. I make no comment on the issue of whether an application can proceed against a respondent who has not allegedly violated the Code, for the purpose of having that respondent implement a remedy.

ORDER

16The Application is dismissed.