HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Alexandre De Bousquet Applicant
-and-
Her Majesty the Queen in Right of Ontario, Anthony-Louis Bruno and Ryan Michael De Faria Respondents
DECISION
Adjudicator: Geneviève Debané Date: May 22, 2013 Citation: 2013 HRTO 885 Indexed as: De Bousquet v. Her Majesty the Queen in Right of Ontario
APPEARANCES
Jean-Alexandre De Bousquet, Applicant Self-represented
1On February 12, 2013 the applicant filed an Application (2013-13590-I) 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 because of disability and ethnic origin. The applicant explains that he was a defendant in a regulatory prosecution in which Mr. Bruno and Mr. De Faria were prosecutors representing the Crown. In the Application the applicant alleges the following discriminatory conduct by the respondents, including:
a. In Court his request for a hearing in French and an interpreter were opposed by the individual respondents on the basis that his English is good enough;
b. The Crown refused his request that the disclosure be sent to him in French;
c. The individual respondents opposed his motion to the Court that an amicus curiae be appointed because he could not represent himself;
d. The applicant had no choice but to plead guilty because of the individual respondents’ discriminatory conduct; and
e. The individual respondents refused to take the applicant’s disabilities into consideration when it made submissions to the Court on the issue of the appropriate penalty which should be imposed on the applicant.
2On February 15, 2013 the applicant filed a second Application (2013-13697-I) alleging discrimination with respect to services because of disability and reprisal. Though this Application fails to name any respondent the applicant alleges in the Application that on December 10, 2012 he advised Mr. Bruno that he filed a complaint against him at the Tribunal. On January 7, 2013, Mr. Bruno then opposed the applicant’s motion with respect to the payment of the fine for purposes of pursuing an appeal. The Applicant believes that this position was taken without considering the applicant’s disabilities and as a reprisal under the Code. The applicant also takes the position that Mr. Bruno is in a conflict of interest and can no longer represent the Crown in Court.
3On March 12, 2013, the Tribunal issued a Case Assessment Direction which directed the applicant to make submissions on whether the Applications fall within the jurisdiction of the Tribunal, including the issue of “prosecutorial immunity”.
4For the reasons that follow both Applications are dismissed.
DECISION
5In 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.
6I agree with the reasoning in Inward. Having reviewed the Applications, it appears that the applicant is taking issue with the conduct of the prosecutors during the Court proceedings. Individuals who represent the Crown in criminal court proceedings are required to act in the public interest in making decisions that go to the core elements of prosecutorial discretion and in decisions made as Crown counsel in court proceedings. There is no obligation for the Crown to consent to any motions and the applicant can fully canvass any issue of how a Crown comports himself or herself in a court proceeding with the presiding justice. As noted in paragraph 47 of Krieger, it is the role of the Court who has the inherent jurisdiction to control its own process to adjudicate the disputes between the applicant and the Crown in the context of that proceeding. I note that it is unknown whether the applicant was ultimately successful in any of his motions, and it is not the role of this Tribunal to review any of those decisions.
7The positions taken by the Crown with respect to the motions brought by the applicant fall within the core of prosecutorial immunity. The applicant cannot use this process in an attempt to relitigate those issues or remove Crown counsel in a Court proceeding. This is exactly the reason why the Crown benefits from prosecutorial immunity.
8The Applications are dismissed.
Dated at Toronto, this 22nd day of May, 2013.
“Signed by”
Geneviève Debané Vice-chair