HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Melo
Applicant
-and-
Barrie Police Services Board and Ministry of the Attorney General
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Melo v. Barrie Police Services Board
WRITTEN SUBMISSIONS
Paul Melo, Applicant
William Doodnauth, Counsel
Barrie Police Services Board, Respondent
Glenn Christie, Counsel
Ministry of the Attorney General, Respondent
Anita Lyon, Counsel
Introduction
1This Application alleges discrimination with respect to services because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The proper names of the respondents, as set out by the respective counsel for the respondents, are reflected in the style of cause.
2When it filed its Response, the Barrie Police Services Board (the “Barrie Police”) asked that the Application against it be dismissed on the basis of delay. The Ministry of the Attorney General (“Ministry”) asked that the Tribunal dismiss the allegations against it on the basis of prosecutorial immunity. These Responses were shared with the applicant, who filed his Reply on December 18, 2012.
decision and analysis
Allegations against the Ministry of the Attorney General
3The applicant was charged with assault against his ex-girlfriend. In the period immediately after he was charged, he attempted to have his ex-girlfriend charged for what he alleges was an earlier assault by her on him. When the Barrie Police did not lay charges, the applicant pursued private charges against her on July 28, 2011.
4The applicant states that he attended court with respect to the private charges on September 8, 2011 and December 14, 2011. On the second date, the crown withdrew the charges against the applicant’s ex-girlfriend. The applicant alleges that this was for discriminatory reasons relating to his gender.
5The Ministry agrees that the applicant attended court on those two occasions and that the Crown Attorney assigned to his matter on December 14, 2011 withdrew the charges, as was its right, although it takes the position that it did so on the basis of the applicant’s credibility and reliability. It is not necessary, however, to determine this factual issue.
6In paragraph 25 and 26 of Schedule A to its Response, the Ministry made the following submissions:
The Crown Attorney is carrying out his or her duties when a decision is made to withdraw charges. This decision is an exercise of prosecutorial discretion.
An exercise of prosecutorial discretion is not subject to the Human Rights Code because of prosecutorial immunity.
7The applicant did not make any submissions on prosecutorial immunity in his Reply, but rather made further submissions concerning what he considers the inappropriateness of the Crown Attorney’s conduct both in this case and historically.
8The Tribunal has found that principle of prosecutorial immunity deprives it of any jurisdiction to hear applications against Crown Attorneys or Crown Counsel when the allegations relate to the exercise of their prosecutorial discretion: see Oliphant v. Ontario (Attorney General), 2009 HRTO 1902; S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705.
9In light of this jurisprudence, the Application against the Ministry must be dismissed as being outside this Tribunal’s jurisdiction.
Allegations against the Barrie Police Services Board
10The Barrie Police allege that the allegations against it are untimely and should be dismissed. Section 34 of the Code states, in part:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
11As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why he did not pursue his rights under the Code in a timely manner.
12The applicant filed his Application with this Tribunal on October 2, 2012. The Application appears to be about the decision of the Barrie Police to file charges against him and its refusal to file charges against his ex-girlfriend. The parties are in agreement that these decisions were made in the latter part of July 2011, more than 14 months before this Application was filed.
13The respondent submits that any allegations that are alleged to have occurred after this period do not constitute discrimination and cannot be seen as part of a series of incidents. The three allegations that reportedly occurred within the one-year limitation period are as follows:
On October 21, 2011, a detective with the Barrie Police called the applicant and asked him when the assault by the ex-girlfriend took place, which the applicant answered;
On November 4, 2011, the applicant phoned the head of the Domestic Assault Unit with the Barrie Police, to complain about the conduct of the detective, but the person he spoke to seemed “uninterested;” and
On May 3, 2012, another detective with the Barrie Police sat beside the applicant “during his testimony” and told the applicant how strong he thought the testimony of the applicant’s ex-girlfriend had been.
14On their face, none of the above allegations constitute an allegation of discriminatory conduct and, therefore, cannot be seen as part of a “series of incidents.” The fact that the applicant continued to have interactions with the Barrie Police after his arrest and the failure to charge his ex-girlfriend is not sufficient to make what would otherwise be an untimely allegation timely.
15The applicant submits that the “given the circumstances of having to deal with his own criminal charge and other related litigation that the acquittal of the charges on May 3, 2012 should constitute the appropriate date for the calculation of the limitation period.” This submission is inconsistent with the Code, which states that the calculation of the limitation period commences with the last incident of discrimination. The applicant does not argue that his acquittal was a discriminatory act.
16The applicant submits, in the alternative, that the delay in filing his Application was incurred in good faith given the above. However, this Tribunal has held that being involved in other litigation does not constitute a good faith reason for not pursuing an Application. See Abutalib v. Toronto Police Services Board, 2010 HRTO 1697.
17There was nothing to prevent the applicant from filing a human rights Application even while defending himself on the criminal charge and bringing the separate charge against his ex-girlfriend. Indeed, in addition to being involved in the respective criminal charges, the applicant also indicates in his Application that in the fall of 2011 (i.e., well within the one-year limitation period) he instituted civil proceedings against his ex-girlfriend.
18For the above reasons, I find that the applicant has not met his onus in demonstrating that the delay was incurred in good faith. Accordingly, it is not necessary for me to address the issue of prejudice to the Barrie Police. The allegations against the Barrie Police are untimely and, therefore, outside the jurisdiction of this Tribunal.
order
19This Application is dismissed.
Dated at Toronto, this 10^th^ day of January, 2013.
“Signed by”
Naomi Overend
Vice-chair