HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Freda Hussein Dewar

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Leslie Reaume
Date: October 10, 2013
Citation: 2013 HRTO 1716
Indexed as: Dewar v. Ontario (Attorney General)

APPEARANCES

Freda Hussein Dewar, Applicant

Self-represented

1This is an Application filed May 28, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant named as respondents to this Application the “Crown Attorneys Office” and a number of individuals who are Crown Attorneys or Crown Counsel. This Decision arises from both written materials and oral submissions by the applicant on the issue of the Tribunal’s jurisdiction over her allegations. Given my decision on the jurisdictional issue, I have removed the names of the individual Crown Attorneys who were named in the Application.

2The applicant indicated at the commencement of her oral submissions that “Dewar” is her middle name and “Hussein” is her last name. All of her written materials indicate the opposite and as a result, I have chosen not to amend the title of proceedings. The applicant also described to me the various medical issues that she was coping with during the hearing. She requested, and was given as much uninterrupted time as possible to describe the circumstances of her Application and address the jurisdictional issue.

3The Tribunal issued a Notice of Intent to Dismiss dated September 13, 2010 on the basis that the Application appears to be outside the Tribunal’s jurisdiction. The Notice indicated that the respondents are Crown Counsel or Crown Attorneys and that in light of the principle of prosecutorial immunity, it has no jurisdiction to hear applications against the respondents. The Notice cited the Decisions in Oliphant v. Ontario (Attorney General), 2009 HRTO 1902, and S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705.

4This Application was held in abeyance pending the completion of two other related Applications which were administratively closed as incomplete by the Tribunal on April 23, 2013. The Tribunal set a conference call for August 2, 2013 to hear oral submissions from the applicant. The applicant did not attend the call but she contacted the Tribunal the same day to explain her absence. A second date for oral submissions was set for October 7, 2013. The applicant appeared via teleconference and made her submissions.

analysis and decision

5The applicant has filed different versions of her Application and numerous documents, most of which are difficult to comprehend. However, she had the assistance of a lawyer at an early stage in the Application and filed written submissions entitled “Submission on Notice of Intent to Dismiss for Lack of Jurisdiction” which assisted me in understanding and narrowing her allegations. There are two incidents in issue: the first involves her interactions with a Crown Attorney in seeking a variation of a restraining order for a neighbour who had come into conflict with the criminal justice system; the second involves the decision to prosecute her for obstruction of justice for holding herself out as a lawyer in those interactions.

6The applicant vehemently denies that she ever held herself out as a lawyer. She argues that she was assisting a neighbour on the instructions of his lawyer when she was interacting with a Crown Attorney over the variation of the restraining order.

7The applicant self-identifies as a woman of mixed ethnic and racial background who is originally from Guyana. She alleges that on or about April 9, 2009, she went to the Peel Crown Attorney’s Office in the Brampton Courthouse to request a variation of a restraining order for her neighbour. The applicant alleges that she met with a Crown Attorney who allegedly called her an “arab”, asked her why she was working so hard to help “this Black man” (her neighbour) and then asked the applicant if she was sleeping with the man. The applicant alleges that she did not react to the comments. She was given a package of papers to complete with respect to the variation and told that the Crown Attorney would sign the documents.

8The applicant alleges that on or about April 29, 2009, she was arrested by Peel Police at her house and charged with obstruction of justice in relation to her interaction with the Crown Attorney. The applicant alleges that she was accused of being a witness for the neighbour rather than his lawyer or agent. The applicant alleges that she was prosecuted and acquitted of the charges in 2010.

9In the case of Inward v. Toronto (City), 2010 HRTO 2127, the Tribunal summarizes the case law with respect to prosecutorial immunity at paras. 7 to 11, and specifically at para. 9, the Tribunal states:

In 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 [51] 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.

[10] I agree with the reasoning in Inward. In this case the applicant is taking issue with the conduct of prosecutors in the context of Court proceedings. The prosecution which followed the interaction between the applicant and the Crown Attorney is clearly covered by prosecutorial immunity.

[11] The facts of this case are unique. The applicant argues that prosecutorial immunity does not extend so far as to encompass the interaction between the applicant and the Crown Attorney over the variation. In my view, the key issue here is that a prosecution ensued as a result of that interaction. If there had been no prosecution and the comments were made to the applicant in her capacity as an agent, or counsel, or a member of the public, there may have been some basis for the Tribunal to take jurisdiction of her allegations. However, in this case, the interaction between the Crown Attorney and the applicant over the variation is inseparable from the prosecution which followed. For those reasons, I find that the Tribunal has no jurisdiction over the whole of the Application because of the doctrine of prosecutorial immunity.

12Accordingly, the Application is dismissed.