Gabriel Landry v. Ontario Provincial Police, 2015 HRTO 278

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gabriel Landry

Applicant

-and-

Ontario Provincial Police, Darren Miller, Rob Shillinglaw,

Jeff Dagg and Terri Regimbal

Respondents

INTERIM DECISION

Adjudicator: Eli Fellman

Date: March 9, 2015

Citation: 2015 HRTO 278

Indexed as: Landry v. Ontario Provincial Police ______________________________________________________________________

WRITTEN SUBMISSIONS

Gabriel Eugene Landry, Applicant

Self-represented

Terri Regimbal, Respondent

Rina Li, 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 applicant alleges that the respondents failed to charge his doctor with sexual assault because the applicant is male and his doctor was “an elite” of the local community. The respondents are the police service, individual police officers and Ms Regimbal, who is a Crown Attorney.

2On December 18, 2014, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the application against the personal respondent Ms Regimbal on the basis that the actions of a Crown Attorney taken in the course of her duties are in most cases not “services” within the meaning of section 1 of the Code and, further, are not subject to the Code because of prosecutorial immunity. The NOID referred the parties to the Tribunal decision of Inward v. Toronto (City), 2010 HRTO 2127, and directed the applicant to provide written submissions in response to the NOID.

3The applicant opposes the dismissal. He assert that the personal respondent lost prosecutorial immunity because her actions in this case were proven to be partial, she failed to disclose that she personally knew his doctor and she used to sit on the Board of Directors of a local victims services organisation with his doctor’s spouse.

ANALYSIS

4As noted in the NOID, the leading Tribunal decision respecting the prosecutorial immunity is Inward. At paragraphs 7 through 10 the Tribunal found as follows:

The Tribunal has held on various occasions 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 or are not subject to the Code because of prosecutorial immunity: see Surh v. Toronto (City), 2009 HRTO 1700; Theisen v. Ontario (Attorney General), 2009 HRTO 1781; Oliphant v. Ontario (Attorney General), 2009 HRTO 1902; Shane v. Cornwall Police Department, 2009 HRTO 2216; Traverse v. Canadian Embassy in Paris, 2010 HRTO 1663; and S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705.

Prior to the Supreme Court of Canada’s decision in Nelles, prosecutors had absolute immunity from civil suit, including for malicious prosecution. In that case, the Court held that prosecutorial immunity does not extend to malicious prosecution, which requires proof of an improper motive. However, the Court was careful to state that its decision did not lead to liability of prosecutors for errors of judgment or negligence: see Nelles, supra at p. 199.

The Supreme Court has made clear since Nelles that prosecutorial immunity remains broad, and that while there is no longer absolute immunity, prosecutors are protected from nearly all civil liability. In Proulx v. Quebec (Attorney General), 2001 SCC 66 , the Court stated, at para. 4:

Under our criminal justice system, prosecutors are vested with extensive discretion and decision-making authority to carry out their functions. Given the importance of this role to the administration of justice, courts should be very slow indeed to second-guess a prosecutor’s judgment calls when assessing Crown liability for prosecutorial misconduct. Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, affirmed unequivocally the public interest in setting the threshold for such liability very high, so as to deter all but the most serious claims against the prosecuting authorities, and to ensure that Crown liability is engaged in only the most exceptional circumstances.

This was reiterated in Miazga, supra at para. 50, where the Court held that “the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys can properly pursue their professional goals”.

Accordingly, in my view, unless there are allegations of a Code violation in which the prosecutor had “a motive that involved an abuse or perversion of the system of criminal justice for ends it was not designed to serve” (Nelles at p. 199), prosecutorial immunity applies. This flows from the reasoning of the Supreme Court in Nelles, Proulx, and Miazga. . .

5Inward has been followed in a number of subsequent Tribunal decisions dealing with prosecutorial immunity: Tait v. Crown Attorney, County of Renfrew, 2011 HRTO 2068; De Bousquet v. Her Majesty the Queen in Right of Ontario, 2013 HRTO 885; Maula v. Ontario (Attorney General), 2011 HRTO 1256; Dewar v. Ontario (Attorney General), 2013 HRTO 1716; and Fortin-Girard v. Monteith Correctional Facility, 2013 HRTO 1748.

6The Supreme Court in Krieger v. Law Society of Alberta, 2002 SCC 65 at paras. 46-47, stated that the discretion of a crown prosecutor whether to bring the prosecution of a charge laid by police is one of the core elements of prosecutorial discretion.

7I agree with the reasoning in Inward. The applicant is taking issue with the decision of the crown prosecutor not to proceed with criminal charges against his doctor. This decision falls squarely within a prosecutor’s core duties, and is therefore covered by prosecutorial immunity.

8The grounds for possible revocation of prosecutorial immunity identified by the Supreme Court in decisions such as Nelles, Proulx, and Miazga are not present here.

9I note that the applicant does not allege that the personal respondent Ms Regimbal had any type of significant or ongoing relationship with his doctor. In a smaller community such as the one in the present case, it is not unusual for many residents to be acquainted with the local medical doctors. The mere fact that she was acquainted with the applicant’s doctor or his doctor’s spouse is insufficient to establish that she had a motive that involved an abuse or perversion of the system of criminal justice for ends it was not designed to serve. I also note that in her Response, the personal respondent Ms Regimbal details how her legal opinion that there were no reasonable and probable grounds for laying criminal charges against the applicant’s doctor was reviewed by the senior prosecutor for Northern Ontario, who concurred with her assessment.

10Therefore, I am satisfied that Ms Regimbal’s decisions fall within the core of prosecutorial immunity and therefore the Application cannot proceed as against her.

ORDER

11The Application is dismissed as against Terri Regimbal. The Application will continue as against the other named respondents and mediation is scheduled for April 22, 2015.