Federal Court Decisions

Date: 19971215

Docket: T-1412-96

BETWEEN:

     MICHAEL TAYLOR,

     Applicant,

     - and -

     ATTORNEY GENERAL OF CANADA,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

[1]      This application is for the judicial review of the May 16, 1996 decision of the Canadian Human Rights Commission ("the Commission") wherein the Commission determined that it had no jurisdiction to hear the merits of the instant case.

[2]      The applicant's complaint to the Commission dealt with an allegation of discrimination based on religion in the use of the facility of a public courtroom. This allegation stems from the ruling of Mr. Justice Whealy of the Ontario Court (General Division) in the course of the criminal trial of the accused Dudley Laws in 1993. During this trial, the judge directed that several spectators leave the courtroom unless they removed their "kufi", allegedly a "muslim religious headcovering". The applicant Michael Taylor was one of the persons removed from the courtroom as a result of the directive.

[3]      On November 18 and December 17, 1993, counsel for the applicant, who was also counsel for the accused, filed a motion before judge Whealy asking him to allow those wearing the headcoverings in question to wear them in the courtroom. On November 22, 1993, the judge made a first ruling setting the dress protocol required in a court over which he presides. He said inter alia that "Highly visible, but silent, groups in support of some outcome of the case will be requested to reduce their visibility by the removal of signs, pennants, other intrusive indicia, or to leave. A court is not a cheering section, even a silent one".

[4]      He added that "headdress in court will only be permitted if it is an article of faith demanded by that well established and recognizable religious community". The learned judge made a further ruling following a second application by counsel for the applicant on the same matter. He essentially repeated the same protocol which he delivered earlier and denied the counsel's application.

[5]      As a result of these rulings, counsel for the applicant complained to the Canadian Judicial Council which ruled that "The in-court conduct of a judge is not immune from scrutiny by the Council in appropriate circumstances, but rulings made by judges in the independent discharge of their judicial function are best left with the appeal courts". The Executive Director of the Canadian Judicial Council in her letter of January 23, 1995, also added that "The question of the judge's jurisdiction to make the impugned order in this case, however, will be considered by the Court of Appeal, and this Council defers to that forum in the first instance". Counsel for the applicant did not appeal the two rulings aforementioned but appealed the conviction of the accused Dudley Laws. That appeal has not as yet been completed.

[6]      Thereafter, the applicant complained before the Ontario Human Rights Commission which determined that it had no jurisdiction to entertain the matter since the judges of the Ontario Court (General Division) are appointed by the Federal Government and that therefore the applicable statute would be the Canadian Human Rights Act ("the Act").

[7]      Consequently, the applicant complained before the Commission which decided pursuant to paragraph 41(1)(c) of the Act that "the complaint is beyond the jurisdiction of the Commission". The decision of the Commission was released to the applicant by letter of the Secretary to the Commission dated May 16, 1996, which did not explicit why the Commission did not have jurisdiction. However, in a previous letter dated April 18, 1996, the A/Director of Complaints and Investigations of the Commission provided the following rationale for the Commission's decision, as follows:

The basis for the Commission's decision is that each time a judge is given responsibility, the judge exercises this responsibility "in his/her official capacity as a representative of the court" unless otherwise stipulated. (Re: Rainville (1982) 2 R.C.S. 518) Additionally, it is a common law principle applicable to all judges of superior courts that they have the advantage of absolute immunity. As a result of this absolute immunity, they are protected from civil suits. As the respondent could raise his absolute immunity as being within the limits of his jurisdiction when the alleged events occurred, the Commission has no jurisdiction to deal with this complaint.

[8]      Therefore, the sole issue to be resolved in the instant application for judicial review is whether the Commission made a reviewable error in holding that it was without jurisdiction under subsection 41(c) of the Act to hear the applicant's complaint. First, it must be determined what test does apply when dealing with questions pertaining to the jurisdiction of the Commission. In the light of this court's decision in Canada v. Bouvier¹ the standard of review must be "correctness". The more precise question therefore is whether the Commission was correct in holding that a judge's immunity prevented it from having jurisdiction in the present matter.

[9]      In Sirros v. Moore², Lord Denning stated that "Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him". Lord Denning continued as follows, at p. 784:

What is the test on which the judges of the superior courts are thus immune from liability for damages even though they are acting without jurisdiction? Several expressions are to be found. A judge of a superior court is not liable for anything done by him while he is "acting as a judge", or "doing a judicial act" or "acting judicially" or "in the execution of his office" or "quatenus a judge". What do all these mean? They are much wider than the expression "when he is acting within his jurisdiction". I think each of the expressions means that a judge of a superior court is protected when he is acting in the bona fide exercise of his office and under the belief that he has jurisdiction, though he may be mistaken in that belief and may not in truth have any jurisdiction. No matter that his mistake is not one of fact but of law, nevertheless he is protected if he in good faith believes that he has jurisdiction to do what he does.

(my emphasis)

[10]      Earlier in his judgment, at p. 739, Lord Denning illustrated this principle of judicial immunity in these colourful terms:

If the person underlying this immunity is to ensure "that they may be free in thought and independent in judgment", it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: "If I do this, shall I be liable in damages?"

[11]      In a more recent decision, Morier and Boily v. Rivard³, the Supreme Court of Canada dealt with the immunity of superior court judges. After reviewing the jurisprudence in the matter, the Court quoted Halsbury's Laws of England⁴. It referred more particulary to paragraph 210, as follows:

210. Extent of protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra-judicial or alien to the judicial duty of the defendant: and, therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected.

[12]      It is common ground in the instant case that judge Whealy acted in the course of duty and, therefore, could not be subjected to an action in damages. However, counsel for the applicant submits that such immunity would not extend to cover criminal acts performed by the judge in court nor would protect a judge from transgressions against the Act: a judge may not violate the Act with impunity.

[13]      As a first step, the applicant must show that the subject-matter of his complaint constitutes a "discriminatory practice" within the meanings of sections 5 to 14 of the Act. Only where there is a discriminatory practice within the meanings of those sections can a basis be found for a complaint pursuant to Part III of the Act, which sets out the procedure in the handling of human rights complaints. The discriminatory practices covered by these sections are acts of discrimination in relation to the provision of goods and services, commercial premises, residential accommodation, employment, wages, employee organizations, publication of discriminatory notices, hate messages and harassment.

[14]      Counsel for the applicant relies on section 5 of the Act which stipulates that it is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public, to deny access to such facilities to any individual on a prohibited ground of discrimination. The section is described in the margins as "Denial of good, service, facility or accommodation". Even if that provision, which appears to be directed to commercial premises, were deemed by extension to apply to a courtroom, it could hardly be said to encompass the conduct of a judge in that courtroom.

[15]      I believe that Part II of the Judges Act⁵, entitled "Canadian Judicial Council", is more to the point. Section 63 deals with "Inquiries concerning Judges" and section 65 entitled "Report and Recommendations" provides that the Council may report its conclusions to the Minister of Justice where in the opinion of the Council the judge against whom the complaint was lodged has been guilty of misconduct. In her letter aforementioned of January 23, 1995, the Executive Director of the Canadian Judicial Council wrote as follows:

As you know, Mr. Justice Whealy considered the particular circumstances indicated, at the very beginning of what was expected to be a difficult trial, that it was necessary for him to assert his authority to ensure order in his courtroom. It is not possible at this time, and outside the ambience of that particular courtroom, to decide whether the decision of Mr. Justice Whealy was right or not. For that reason, it is unlikely that a single ruling in a single case would be considered conduct deserving a recommendation for removal.

[16]      But the Canadian Judicial Council did not rule out the possibility of dealing with the matter. It merely said that it would "take any further steps in this matter at this time" but that meanwhile the Canadian Judicial Council would "defer" to the Ontario Court of Appeal, awaiting its decision.

[17]      In the light of the Supreme Court of Canada decision in Robichaud v. Canada (Treasury Board)⁶, it is clear that the Act must be so interpreted as to advance the broad policy considerations underlying its purpose which is to give effect to the principle that every individual should have an equal opportunity to live his life without being hindered by discriminatory practices. One should also be mindful of the caveat that statutes should not be "approached in a niggardly fashion" but in a manner befitting the special nature of the legislation. In the words of La Forest J. (at p. 90), "the rights enunciated in the Act must be given full recognition and effect consistent with the dictates of the Interpretation Act that statutes must be given such fair, large and liberal interpretation as will best ensure the attainment of their objects".

[18]      Nevertheless, I cannot find that the Commission was incorrect in holding that it was beyond its jurisdiction to deal with a complaint about a judge who enunciated and applied specific criteria to ensure the proper decorum in his courtroom. The issue before me is not to find whether there was discrimination but to decide whether the Commission was correct in holding that it had no jurisdiction to deal with the complaint in view of the long established principle of judicial immunity. In my view, the Commission made a correct decision.

[19]      Consequently, the application is dismissed but, under the circumstances, without costs.

    

     Judge

OTTAWA, ONTARIO

December 15, 1997

__________________

¹      [1996] F.C.J. No. 623 (TD).

²      (1974), 3 All E.R. 776, 781 (C.A.).

³      [1985] 2 S.C.R. 716 (S.C.C.).

⁴      4th ed., vol. 1, 1973, at pp. 197, et seq.

⁵      1985, c. J-1, as amended by s.c. 1992, c. 51, ss. 26, 27.

⁶      [1987] 2 S.C.R. 84.