A.A. v. Thunder Bay District Catholic School Board, 2017 HRTO 1179

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.A., as represented by her Litigation Guardian, M.T.

Applicant

-and-

Thunder Bay District Catholic School Board, Cathy Zanni, J.P. Levesque, The School, Thunder Bay Police Service Board, and Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General

Respondents

INTERIM DECISION

Adjudicator: Jacek Janczur

Date: September 11, 2017

Citation: 2017 HRTO 1179

Indexed as: A.A. v. Thunder Bay District Catholic School Board

WRITTEN SUBMISSIONS

A.A., Applicant

Elysia Petrone Reitberger, Counsel

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of race, colour, ancestry, place of origin, ethnic origin and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application arises from an alleged assault that took place against a child at a specific school in Thunder Bay. I have anonymized the name of the applicant, who is a minor, in accordance with the Tribunal Rule 3.11.1, and I have also exercised my discretion to substitute “The School” for the name of the specific school attended by the applicant in order to minimize the risk of indirectly identifying the applicant.

3After the alleged assault occurred, an investigation was commenced by the Thunder Bay Police Service (“TBPS”). Dan Mitchell (“Mitchell”), a Crown Attorney with the Thunder Bay District, reviewed the file and, the applicant alleges, advised the TBPS that laying a charge would be inappropriate and contrary to Ministry Standards.

4There are numerous parties listed as respondents. On February 22, 2017, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the application only as it pertains to Mitchell. The NOID states that it appears that the application with regard to Mitchell is outside the Tribunal’s jurisdiction because Mitchell is a Crown Attorney. The NOID noted that the Tribunal has found that the actions of prosecutors in the course of carrying out their duties are in most cases not services within the meaning of s. 1 of the Code and are not subject to the Code because of prosecutorial immunity.

5The applicant filed submissions in response to the NOID.

6The applicant is of the view that all conduct that is not protected by the doctrine of prosecutorial discretion is within the jurisdiction of the Tribunal.

7The applicant cites Krieger v Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, in support of this proposition. According to the applicant, the court in Krieger stated that prosecutorial discretion encompasses the following:

a. The discretion whether to bring the prosecution of a charge laid by police;

b. The discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code,…

c. The discretion to accept a guilty plea to a lesser charge;

d. The discretion to withdraw from criminal proceedings altogether…; and

e. The discretion to take control over a private prosecution.

8The applicant contends that what is at issue is the Crown Attorney’s review of the investigation, that this review does not fall into the core elements of prosecutorial discretion enumerated above, and that the review constitutes a “service” within the meaning of the Code.

9The applicant points out that “service” is not a defined term in the Code and that a coroner’s decision about whether to call an inquest into a death has been found to be a “service” to which the Code applies. (See Ontario (Attorney General) v. Ontario (Human Rights Commission), 2007 CanLII 56481).

DECISION

10At issue is whether the alleged decision by Mitchell to advise against laying a charge as a result of the alleged assault is shielded by the doctrine of prosecutorial immunity, or whether the decision was made in such a way as to deprive him of immunity.

11There is no evidentiary record to consider which sets out how the decision was made. The facts as stated by the applicant are that the matter was referred to the Crown by the TBPS who advised against proceeding with charges. At this point I am only deciding whether, on the basis of the unproven facts alleged by the applicant, the allegations against the Crown are plain and obviously beyond the Tribunal’s jurisdiction.

12In Krieger, above, a Crown Attorney had failed to disclose forensic evidence that exculpated the accused in a criminal matter until the preliminary hearing. The Crown Attorney in question became the subject of a complaint to the Law Society. The Crown Attorney sought an order to the effect that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor.

13The Crown Attorney was unsuccessful at trial but that decision was overturned by the Alberta Court of Appeal. The decision of the Court of Appeal was overturned by the Supreme Court, which restored the decision of the trial judge and enumerated the core elements of prosecutorial discretion as stated above.

14In addition to setting out the core elements of prosecutorial discretion in Krieger, above, the Court also stated at para. 47 that

Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought [emphasis mine], continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.

15Krieger, above, makes clear that the decision of a Crown Attorney whether a prosecution should be brought falls within the scope of prosecutorial discretion. The applicant posits a distinction between the decision not to lay a charge, or more accurately the Crown’s advice with respect to that policing decision, which is clearly immune, and the Crown’s review of the file in order to provide that advice.

16In my view, this is a distinction without a difference and cannot be used to deprive Mitchell of immunity. The Crown cannot decide how to give advice about the laying of a charge in a matter referred by the police without reviewing the investigation. The review is an inherent part of the decision-making process with respect to the exercise of discretion involved in giving advice about whether a charge will be laid and cannot be separated or viewed in isolation from it. In my view, it is plain and obvious that the Crown’s role in participating in the screening process with the police and the advice they give at this stage falls squarely within the exercise of prosecutorial discretion discussed by the Supreme Court of Canada in Krieger, above, in relation to whether a prosecution should be brought. There would be little point in advising the police to lay charges if the Crown was of the view the case had no reasonable prospect of conviction.

17In Inward v. Toronto (City), 2010 HRTO 2127 at para. 12, the Tribunal found that unless there were allegations of a Code violation in which a prosecutor had a motive that involved an abuse or perversion of the system of criminal justice, prosecutorial immunity applied. There are no such allegations in this case.

18With respect to applications against crown prosecutors discharging their duties and the question of whether crown prosecutors are providing a “service” within the meaning of the Code, or whether they are shielded by prosecutorial immunity, the Tribunal had this to say at para. 13 of Inward, above:

I make one final comment before concluding my discussion of this issue. The Tribunal has dealt with applications against Crown prosecutors acting in the course of their duties either by finding that they are not providing “services” within the meaning of s. 1 of the Code (Surh, Shane, Theisen) or by finding that the doctrine of prosecutorial immunity applies (Oliphant, Traverse, S.M.). In my view, there is little or no principled or practical difference in these approaches. Both these lines of cases have applied the principle of prosecutorial immunity and the values underlying it, either directly or by finding that the concept of “services” in s. 1 of the Code is limited by this principle. Under both analyses, the point is that the Tribunal has no jurisdiction over actions covered by prosecutorial immunity. In my view, neither approach detracts from or changes the broad definition given to the concept of “services” in cases such as Ontario (Attorney General) v. Ontario Human Rights Commission (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 (Div. Ct.).

19I agree with the reasoning in Inward.

ORDER

20Accordingly, the Application as against Dan Mitchell is dismissed.