A man (“Crockford”) charged with assault of his female domestic partner appealed from the decision of a chambers judge finding that the British Columbia Human Rights Tribunal had no jurisdiction to consider his complaint of discrimination against Crown counsel because Crown counsel provided no “service customarily available to the public” as required under s. 8 of the Human Rights Code.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Gender – Judicial review – Jurisdiction of tribunal – Public interest

British Columbia v. Crockford, [2006] B.C.J. No. 1724, British Columbia Court of Appeal, August 1, 2006, Huddart, Levine and Smith JJ.A.

A chamber’s judge had quashed a preliminary determination of a member of the Human Rights Tribunal who had referred Crockford’s complaint to a hearing. Crockford complained that the Ministry of the Attorney General’s “Policy on the Criminal Justice System Response to Violence Against Women and Children, Part I, Violence Against Women in Relationships”, discriminated against him on the basis of gender.

Crockford was charged with assault at the time when the policy provided guidance to Crown counsel with respect to the charge approval process in cases of spousal assault. In particular, the policy directed that Crown counsel approve charges where there was a substantial likelihood of conviction and a prosecution of the accused was in the public interest, but directed that the decision to charge or continue prosecution should not be governed by the wishes of the victim, and should take account of the fact that the prosecution of such offences was almost invariably in the public interest.

The Court of Appeal held that the Chamber’s Judge erred in narrowing the scope of Crockford’s complaint. Crockford’s submissions to the Human Rights Tribunal included allegations of systemic discrimination and discrimination on an individual basis. The Chamber’s Judge did not address the systemic discrimination complaint.

The Chamber’s Judge correctly determined that the Tribunal could not review the decision to charge Crockford. The exercise of prosecutorial discretion is immune from review under the decision in Krieger v. Law Society of Alberta, 2002 SCC 65. However, the Chamber’s Judge did not apply Krieger to the policymaking functions of Crown counsel and the Attorney General that are outside their prosecutorial functions. According to the Court of Appeal, Krieger does not preclude the review of an interministerial policy created by the Attorney General, Crown counsel and other ministries.

The Chamber’s Judge was correct in determining that the Human Rights Tribunal could not review the Crown’s specific decision to charge Mr. Crockford and therefore, it was not necessary to determine whether the Chamber’s Judge was correct in concluding that the decision to prosecute was not a service customarily available to the public under s. 8 of the Human Rights Code.

The appeal was allowed to the extent of referring Crockford’s complaint of systemic discrimination to the Tribunal to determine whether the Appellant’s complaint of systemic discrimination could proceed despite the prosecutorial immunity that applied to bar his complaint of individual discrimination and further, if that complaint did proceed, whether the creation and implementation of the spousal assault policy could be considered a service that was customarily available to the public under s. 8 of the Human Rights Code. Finally, the Tribunal was to consider whether the complaint of systemic discrimination was moot on the basis that the only relief available would be a declaration that the policy was discriminatory, where such a declaration would serve no useful public purpose given that the policy had been changed in 2003, subsequent to the events giving rise to the appeal.

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