Maula v. Ontario (Attorney General), 2011 HRTO 1256

Human Rights Tribunal of Ontario

B E T W E E N:

Aziz Maula Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General Respondent

decision

Adjudicator: Ian R. Mackenzie Date: June 30, 2011 Citation: 2011 HRTO 1256 Indexed as: Maula v. Ontario (Attorney General)

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of race, colour and ethnic origin.

2The applicant, Aziz Maula, alleges discrimination arising out of a prosecution under the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). In his Application, he stated that when he attended his court hearing there was no interpreter available. His agent requested that the charge under the HTA be withdrawn and the crown prosecutor refused to do so. The applicant alleged that the charges of other individuals were withdrawn when the interpreter did not show up. The applicant provided a transcript of the proceeding under the HTA. His agent asked the Justice of the Peace to dismiss the charges and the Justice of the Peace declined to do so. The Justice of the Peace then ordered an adjournment and the hearing was rescheduled.

3The Tribunal sent a Notice of Intent to Dismiss the Application to the applicant on March 29, 2011. The Notice stated that it appeared that the Application was outside of the Tribunal’s jurisdiction because: i) the respondent is a judge and the Tribunal has no jurisdiction to hear applications against courts because of judicial immunity; and ii) the applicant appears to be challenging the decision of an adjudicative process.

4The applicant made submissions on these two issues on April 27, 2011. He stated that his Application was not in relation to the Justice of the Peace. He stated that he was alleging that he had been discriminated against “in the court procedure and process”.

5A Case Assessment Direction was sent to the applicant on May 11, 2011. The applicant was asked for his submissions on prosecutorial immunity and was referred to the decision of the Tribunal in Oliphant v. Ontario (Attorney General), 2009 HRTO 1902.

6In his submissions of June 8, 2011, he stated that “the behaviour of the prosecutor was discriminatory”. He also objected to the Tribunal raising case law on its own initiative.

Decision

7The Tribunal is required to examine an Application to determine if it is within the Tribunal’s jurisdiction. If it appears on the face of the Application that there are valid concerns about the jurisdiction to hear the matter, the Tribunal has the authority to seek submissions from the applicant and to determine if proceeding with the Application is warranted.

8I find that the Tribunal does not have jurisdiction over this Application.

9It was not clear in the Application if the applicant was alleging that the refusal by the Justice of the Peace to dismiss the charges against him was discriminatory. In his submissions, he stated that his Application was not directed at the Justice of the Peace but at the “court process and procedure”. It is still not clear if he is alleging that the failure of the Justice of the Peace to dismiss the charges against him (a “court process”) was discriminatory. In any event, the actions of the Justice of the Peace are clearly protected by judicial immunity: Koita v. Toronto Police Services Board [2000] O.J. 407 (ON S.C.), aff’d [2001] O.J. 3461 (Div. Ct.).

10The Tribunal has held 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 and are not subject to the Code because of prosecutorial immunity: see the recent discussion in Inward v. Toronto (City), 2010 HRTO 2127.

11The discretion of a crown prosecutor to withdraw a charge is one of the core elements of prosecutorial discretion: Krieger v. Law Society of Alberta, 2002 SCC 65, at paras. 46-47.

12The applicant is clearly alleging that the decision of the crown prosecutor not to withdraw the charges against him was discriminatory.

13Accordingly, the Tribunal has no jurisdiction over the Application.

Order

14The Application is dismissed.