Clark v. Ministry of Attorney General, 2024 BCHRT 246
Date Issued: August 21, 2024
File: CS-004492Indexed as: Clark v. Ministry of Attorney General, 2024 BCHRT 246
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Allan Clark
COMPLAINANT
AND:
Allan Clark v. His Majesty the King in Right of the Province of British Columbia as represented by Ministry of Attorney General of British Columbia
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On his own behalf: Allan Clark
Counsel for the Respondent: Joni Worton
I INTRODUCTION
[1] On June 16, 2021, Allan Clark filed a complaint of discrimination in services based on Indigenous identity, race, physical and mental disability, gender identity or expression and sexual orientation contrary to s. 8 of the Human Rights Code[Code], against His Majesty the King in Right of the Province of British Columbia as represented by Ministry of Attorney General of British Columbia [the AG].
[2] The issue before me with respect to timeliness is whether to accept the complaint against the AG. I make no findings regarding the merits of this complaint.
[3] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.
II BACKGROUND TO COMPLAINT
[4] Mr. Clark’s complaint form states he is a gay First Nations Indigenous male with anxiety, post-traumatic stress disorder and mobility issues.
[5] Mr. Clark’s complaint is related to various actions of Crown prosecutors [Crown] working for the AG.
[6] In 2010, Mr. Clark alleges a Crown issued arrest warrants in a “personal attack” against him. He further alleges the Crown opposed his release on bail, which resulted in him being held in custody awaiting trial. Mr. Clark alleges the Crown refused to acknowledge evidence he provided that indicated he was elsewhere at the time when the alleged crime took place. He further alleges the Crown dropped the charges after he spent three months in jail awaiting trial. Finally, Mr. Clark alleges the Crown took no action to charge those who wrongfully accused him. He believes the Crown “took her personal feelings and racism out on me”. He believes that Crown neglected her duties for reasons related to discrimination and systemic racism.
[7] In 2011, Mr. Clark states he was arrested and held overnight following a complaint by a downstairs neighbour. He alleges the court subsequently issued a protection order against him based on “meager pathetic and unsubstantiated evidence”. Mr. Clark alleges he chose to fight the order, and after several court appearances the Crown stayed the proceedings. He states that the Crown had “their oppressive and racist thumb on My life for another year with the threat of coming after me again”.
[8] Mr. Clark does not report any other incidents involving the AG and left the province in December 2012.
III ANALYSIS AND DECISION
[9] Section 22 of the Codeprovides:
(1) A complaint must be filed within one year of the alleged contravention.
(2) If a continuing contravention is alleged in a complaint, the complaint must be filed within one year of the last alleged instance of the contravention.
(3) If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that:
(a) it is in the public interest to accept the complaint, and
(b) no substantial prejudice will result to any person because of the delay.
[10] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit
[11] The complaint was filed on June 16, 2021. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after June 16, 2020.
[12] The latest allegations of discrimination in this case occurred in 2010 and 2011. As such, the complaint is late-filed and I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[13] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns, 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [Mzite] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mziteat para. 55.
[14] I have first considered the length of delay in filing. As noted above, the allegations of discrimination in this case occurred in 2010 and 2011. As such, the complaint allegations were more than 8 years late filed, which is an extreme delay, and absent truly extraordinary circumstances, a respondent should not be expected to answer allegations of discrimination so long after the fact: Prasad v. The College of Physicians and Surgeons of British Columbia, 2004 BCHRT 21, at para. 15.
[15] Mr. Clark provided several reasons for his delay in filing. First, he believes his complaint can continue because there are no statutes of limitations on First Nations human rights.
[16] I appreciate Mr. Clark’s view that his human rights in relation to alleged allegations of discrimination are not subject to BC’s Code, as an Indigenous person. I acknowledge that the Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights [EOV Report] at page 14 found that for a human rights framework and process to have legitimacy with Indigenous Peoples, it cannot further the denial and exclusion of Indigenous laws. Article 40 of the United Nations Declaration of the Rights of Indigenous Peoples [UNDRIP] calls for “effective remedies for all infringements of their individual and collective rights” with consideration of “the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.” However, Mr. Clark has not pointed to any specific Indigenous custom, tradition, rule or legal system for me to consider in relation to the timeliness of his complaint.
[17] I am also aware that the EOV Report observed at page 39 that Indigenous people surveyed often cited the time limit for bringing complaints before the Tribunal as an issue. In some cases, people reported that they experienced trauma (linked to intergenerational Indian Residential School or child welfare issues) which prevented them from filing on time. The EOV Report’s recommendation 15.2 states the Tribunal should assess time extension requests with a trauma-informed lens and consider any circumstances Indigenous applicants raise tied to Indigenous traditions or ways of approaching conflict (such as attempts at relationship repair or restoration).
[18] While my time limit decision in this case is subject to the authority found in the Code, I have tried to render it with a trauma-informed lens. Here, Mr. Clark has not raised any circumstances tied to Indigenous tradition or ways of approaching conflict that explain his delay in filing.
[19] Second, Mr. Clark has argued his delay in filing is related to him being unaware of his rights. Ignorance of the Code, or the time required to become aware of one’s rights, is generally not an acceptable reason, on its own, for the delay in filing: Rashead v. Vereschagin (No. 2), 2006 BCHRT 74 at para. 12; Ferrier v. BCAA, 2009 BCHRT 412 at para. 31. In this case, Mr. Clark has not provided any information suggesting he should be exempt from the application of this general rule. On the contrary, his information indicates that he was able to seek a legal remedy in other forums prior to making this complaint. This included Mr. Clark making two successful settlement claims in class actions related to his childhood traumas.
[20] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mziteat paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mziteat para. 67.
[21] Mr. Clark is seeking justice to prevent further systemic racism and discrimination against Indigenous persons accessing the justice system. He states the system is run and governed predominantly by white people, imposing their crimes and racism against Indigenous people.Mr. Clark submits that he was never offered a Native Court, Indigenous lawyer or jury of his peers. He argues his Indigeneity was used against him in the court system. Mr. Clark believes racism is deeply entrenched within the justice system and attached numerous links to articles outlining the racism First Nations face when involved with the justice system.
[22] The AG submits that prosecutorial immunity applies in this case. Here, prosecutorial discretion refers to the use of those powers that constitute the core of the AG’s office and are protected from influence of improper political and other vitiating factors by the principle of independence: Krieger v. Law Society of Alberta, [2002] 3 SCR 372 [Kreiger] at para. 43.
[23] The AG notes that in Kreiger, some core elements of prosecutorial discretion include: the discretion whether to bring a prosecution of a charge laid by police; the discretion to enter a stay of proceeding in either a private or public prosecution and the discretion to accept a guilty plea to a lesser charge, the discretion to withdraw from criminal proceedings altogether and the discretion to take control of a private prosecution. The AG states it is these sorts of prosecutorial decisions that are immunized from review, Kreiger at para. 46.
[24] The AG submits that complaints of individual discrimination related to individual prosecutions cannot proceed because of the principle of immunity from review of the exercise of prosecutorial discretion. Therefore, the Tribunal cannot consider a claim of personal discrimination when criminal charges are brought against a person: British Columbia v. Crockford , 2006 BCCA 360 [Crockford] at para. 60.
[25] The AG argues Mr. Clark’s allegations mirror those decisions that encompass core elements of prosecutorial discretion and are therefore immune from review by the Tribunal. Although Mr. Clark alleges systemic discrimination in the Complaint, the AG submits that as the Complaint is related to his prosecutions in BC, it is in fact an individual complaint of personal discrimination. The AG argues these were discrete interactions between Mr. Clark and those involved in his prosecutions. For the AG, this case does not involve any allegations of systemic discrimination in relation to a particular policy, procedure, practice, or guideline that Mr. Clark claims amount to systemic discrimination against a group .
[26] In this case, I am not satisfied that the issue of prosecutorial discretion is one limited to an individual complaint of personal discrimination. I find the Complaint includes allegations of systemic discrimination, which is novel and unique such that it attracts some public interest in allowing it to proceed late filed. In reaching this conclusion, I note that more recent authorities have considered prosecutorial discretion in the context of claims of systemic discrimination by Indigenous accused. In R. v. Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, the SCC determined that an exception to prosecutorial discretion is abuse of process. Abuse of process includes: “Crown decisions motivated by prejudice against Aboriginal persons”: para. 50. It appears to me that Mr. Clark is alleging that Crown was motivated by racism in approving the charges, opposing his release at a bail hearing, and refusing to acknowledge his evidence while he was in custody. He ties Crown’s alleged conduct to “systemic racism”. As such, I find the public interest is attracted in allowing this complaint to proceed as it contains a novel and unique issue.
[27] Ultimately, the filing delay in this case is extreme, and that strongly weighs against the public interest: Mohammed v. BC Ministry of Children and Family Development (No. 2) , 2017 BCHRT 159, at para. 33. The reasons Mr. Clark has provided for the delay are not sufficient to overcome the strong weight against such a dated complaint. Finally, Mr. Clark’s complaint is not so novel and unique as to warrant an extraordinary extension of the Tribunal’s time limit for filing a complaint: LeMoine v. B. C. (Ministry of Public Safety and Solicitor General) , 2009 BCHRT 163, at para. 32.
[28] For these reasons, I do not find that it is in the public interest to accept the late-filed complaint, and I need not address the issue of whether substantial prejudice would result. However, in the circumstances of this case, where the delay is excessive, I am prepared to presume there would be substantial prejudice to the AG: LeMoine, at para. 34.
IV Conclusion
[29] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member