Pierre Louis v. Ottawa Police Services Board, 2010 HRTO 863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carmilo Pierre Louis

Applicant

-and-

Ottawa Police Services Board and Keith Hihnala

Respondents

-and-

Ontario Human Rights Commission

Intervenor

INTERIM DECISION

Adjudicator: David A. Wright

Date: April 20, 2010

Citation: 2010 HRTO 863

Indexed as: Pierre Louis v. Ottawa Police Services Board

WRITTEN SUBMISSIONS BY

Carmilo Pierre Louis, Applicant ) Anne Levesque, Counsel

Ottawa Police Services Board and ) David Patacairk, Counsel

Keith Hihnala, Respondents ) )

Ontario Human Rights Commission, Intervenor ) Cathy Pike, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of race, colour, ethnic origin, and place of origin. Summarized briefly, the applicant alleges that he was arrested, interrogated, searched and detained at a transit station by the individual respondent, a police officer, because of his race.

2The respondents ask that the Application be dismissed on the basis that it is outside the Tribunal’s jurisdiction. They argue that to apply the Code in these circumstances would interfere with the federal Parliament’s power over criminal law and criminal procedure under s. 91(27) of the Constitution Act, 1867, (U.K.) 30 & 31 Victoria, c. 3, since the allegations relate to an arrest and detention pursuant to the federal Criminal Code, R.S.C. 1985, c. C-46, as amended. This Interim Decision determines that issue, on the basis of the parties’ written submissions.

3I note that in previous Interim Decisions, 2009 HRTO 1533 and 2009 HRTO 1988, the applicant was incorrectly identified as Pierre Carmilo. The style of cause and the Tribunal’s records are corrected to reflect his correct name, Carmilo Pierre Louis.

ANALYSIS

4Although the applicant and the Commission have made various policy arguments, I agree with the respondents that the analysis of the issues raised by the respondents requires an application of principles of Canadian federalism. Applying those principles, I find that the Application is within the Tribunal’s jurisdiction.

5The respondents argue that the arrest or detention of a person pursuant to the Criminal Code falls under the power of the federal Parliament over criminal law under s. 91(27) of the Constitution Act, 1867. They submit that the Code, which is provincial legislation, therefore cannot not constitutionally apply to an arrest or detention under the Criminal Code.

6It is useful to begin with some basic constitutional principles, which are helpfully reviewed by the Supreme Court of Canada in Canadian Western Bank v. Alberta, 2007 SCC 22 at paras. 25-32. The analysis of the constitutionality of legislation in relation to the division of powers always begins with an analysis of the “pith and substance” of the legislation being challenged. This involves identifying the “matter” to which the legislation relates, by considering both the purpose of the legislation and the legal effect of the law or certain provisions of that law (Canadian Western Bank at paras. 25-27). If the matter to which the law relates does not fall within the jurisdiction of the legislature that enacted it, the law is unconstitutional.

7However, it is not the case that a provincial law that affects matters outside enumerated powers of the provincial legislature is automatically constitutionally invalid or inapplicable. The Court explained this at paras. 28-30 of Canadian Western Bank, as follows:

The fundamental corollary to this approach to constitutional analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. At this stage of the analysis of constitutionality, the “dominant purpose” of the legislation is still decisive. Its secondary objectives and effects have no impact on its constitutionality: “merely incidental effects will not disturb the constitutionality of an otherwise intra vires law” (Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 23). By “incidental” is meant effects that may be of significant practical importance but are collateral and secondary to the mandate of the enacting legislature: see British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, at para. 28. Such incidental intrusions into matters subject to the other level of government’s authority are proper and to be expected: General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, at p. 670. In Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, by way of further example, and in contrast to the Alberta Banks case already mentioned, the Privy Council upheld the validity of legislation levying a tax on banks, holding that the pith and substance of the legislation was indeed to generate revenue for the province, and its essential purpose was therefore in relation to direct taxation, not banks or banking. See P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at para. 15.5(a).

The “pith and substance” doctrine is founded on the recognition that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government. For example, as Brun and Tremblay point out, it would be impossible for Parliament to make effective laws in relation to copyright without affecting property and civil rights, or for provincial legislatures to make effective laws in relation to civil law matters without incidentally affecting the status of foreign nationals (H. Brun and G. Tremblay, Droit constitutionnel (4th ed. 2002), at p. 451).

Also, some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. Thus the fact that a matter may for one purpose and in one aspect fall within federal jurisdiction does not mean that it cannot, for another purpose and in another aspect, fall within provincial competence: Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 130; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749 (“Bell Canada (1988)”), at p. 765. The double aspect doctrine, as it is known, which applies in the course of a pith and substance analysis, ensures that the policies of the elected legislators of both levels of government are respected. A classic example is that of dangerous driving: Parliament may make laws in relation to the “public order” aspect, and provincial legislatures in relation to its “Property and Civil Rights in the Province” aspect (O’Grady v. Sparling, 1960 CanLII 70 (SCC), [1960] S.C.R. 804). The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question.

8When the “pith and substance” of a law relates to matters within the jurisdiction of the legislature that enacted it, it may nevertheless be inapplicable based on one of two doctrines, interjurisdictional immunity or federal paramountcy. Paramountcy applies where a provincial law is in conflict with or incompatible with federal law. In such cases, the federal law prevails. The doctrine of interjurisdictional immunity provides that in certain circumstances, a law with a pith and substance within the jurisdiction of the legislature that enacted it may not impair, even incidentally, certain matters within the jurisdiction of the other. In Canadian Western Bank, at paras. 33-68, the Court engaged in a lengthy discussion of interjurisdictional immunity, and held that it is a doctrine of “limited application” (para. 33) which must be applied with “restraint” (para. 67). It is because of interjurisdictional immunity that the Code does not apply to employment in federal works and undertakings, which are part of the “core” of the undertaking: see Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749.

9I turn to the respondents’ argument that the Code does not apply to the arrest or detention of the applicant. It is clear, and the respondents do not dispute this, that the prohibition on discrimination with respect to “services” in s. 1 of the Code applies to policing services: see, for example, Nassiah v. Peel Regional Police Services Board, 2007 HRTO 14. It is also evident that, in pith and substance, s. 1 of the Code relates to the matter of property and civil rights in the province, a head of provincial power set out in s. 92(13) of the Constitution Act, 1867. Therefore, the Code can affect matters arising from federal powers, so long as neither the doctrine of paramountcy nor the doctrine of interjurisdictional immunity applies.

10The respondents rely primarily upon Scowby v. Glendinning, 1986 CanLII 30 (SCC), [1986] 2 S.C.R. 226. That case dealt with a provision of the Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 7, that provided for “the right to freedom from arbitrary arrest and detention” and “the right to an immediate judicial determination” of whether detention is legal and notice of the charge. The Court found that the pith and substance of this provision was outside the jurisdiction of the province, since, by “defining the boundaries within which an arrest or detention is authorized” it related to a matter in relation to criminal law or procedure (p. 239). The Court specifically emphasized that a province has jurisdiction to regulate “the civil aspects of unlawful arrest by specifying the consequences attendant upon such arrest” (p. 239).

11Scowby provides that a provision of a provincial human rights code cannot, in pith and substance, determine what is a legal arrest or detention under the Criminal Code. However, that is not the issue in this case since s. 1 of the Code is valid legislation, which, in pith and substance, relates to property and civil rights in the province, but provides for the civil consequences of an arrest based upon a prohibited ground under the Code. Scowby does not suggest that provincial legislation cannot affect arrests or detentions in any circumstances or that the doctrines of paramountcy or interjurisdictional immunity make provincial human rights legislation inapplicable to arrest or detention by police forces whose activities fall under provincial jurisdiction.

12There is also no basis to apply the doctrines of paramountcy or interjurisdictional immunity. I begin with paramountcy. In Canadian Western Bank, at para. 75, the Court held that a party arguing that a provincial law is inapplicable because of paramountcy has the onus:

…to demonstrate that the federal and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law.

13The respondents have not met this onus. Other than the bald assertion that “a factual finding of discrimination could have a profound effect upon the determinations made in other contexts, including federally governed criminal law fora” the respondents have not shown how there is in fact incompatibility. There is no reason to believe that the prohibition on discrimination in the provision of policing services, when applied to arrests or detentions, is in conflict with the Criminal Code or that requiring that the Human Rights Code be respected by police officers on arrest or detention would frustrate the purposes of the Criminal Code. Indeed, Scowby’s finding that a provincial legislature can provide for civil consequences of unlawful arrest or detention leads to the opposite conclusion.

14I turn now to interjurisdictional immunity. In Canadian Western Bank, the Supreme Court made clear that the doctrine of interjurisdictional immunity is limited to situations in which legislation impairs the “basic, minimum and unassailable content” or “core” of a power conferred on the other level of government (paras. 48-50). The respondent makes no arguments other than its reliance on Scowby to suggest that applying the Code in these circumstances triggers this doctrine. In my view, there is no basis upon which to find that the application of the Code to prohibit discrimination on the basis of race in policing services, including upon arrest or detention, impairs the core of the federal power over criminal law and criminal procedure.

15To accept the respondents’ arguments would be an application of paramountcy or interjurisdictional immunity inconsistent with Canadian Western Bank, Scowby, and other jurisprudence. The respondents’ request is dismissed. The Application will be scheduled for hearing.