Winn v. Canada ( Attorney General )
T-1404-93
Joyal J.
2/9/94
12 pp.
Application for judicial review of Attorney General's refusal to consent to prosecute National Research Council (NRC) for alleged offences under Canadian Human Rights Act, s. 59, or for order requiring Attorney General to apply to Federal Court for appointment of judicially supervised and impartial person to give decision to grant or refuse consent -- S. 59 making it offence to take retaliatory action against anyone filing complaint with Canadian Human Rights Commission -- S. 60(4) providing no criminal proceedings may be instituted without consent of Attorney General -- Human Rights Tribunal finding NRC, through some employees, engaging in discriminatory practices against plaintiff Dr. Chander P. Grover, research scientist, on grounds of race, colour, national origin -- During hearings before Tribunal, NRC issuing six-month lay-off, but rescinding it after two weeks -- Tribunal finding such acts retaliatory -- On advice of outside counsel Attorney General refusing to consent to prosecution -- RCMP investigation disclosing insufficient evidence to gain conviction -- Application dismissed -- While courts should not avoid responsibilities as guardians of rule of law whenever faced with impugned decision where some illegality alleged, should be loathe to extend supervisory role over matters of law, as outlined in Federal Court Act, s. 18, or assume interventionist posture wherever fault found, regardless of how trivial or inconsequential to substance of impugned decision -- Courts must submerge own opinion as to wrongness of decision especially in matters where statutory discretion exercised on purely administrative basis -- To do otherwise undermining authority of Parliament, which has delegated power to make decisions to individuals and boards -- Principle of judicial restraint all the more applicable when decision purely discretionary and statute not providing any directions or limitations as to when, how and to what extent discretion should be exercised -- Applicant's case might have persuasive strength on political or policy grounds, but court wrong forum to entertain it -- Traditional role of Attorney General to decide in his exclusive discretion any matter relating to criminal prosecutions -- In this field only accountable to Parliament, not to court of law -- Doctrine of prosecutorial discretion restated in R. v. T. (V.), [1992] 1 S.C.R. 749 -- S.C.C. clearly indicating Attorney General exercising broad discretion in deciding to prosecute or not, and that such decision "particularly ill-suited to judicial review" -- Such discretion not affront to principles of fundamental justice under Charter -- If statute giving to Attorney General discretion to consent or refuse consent to prosecution, seeming conflict or bias must give way to need to have statute respected and discretionary function exercised -- Absent clear and unmistakeable evidence of abuse of powers and privileges given to Attorney General, decision of that nature not reviewable by courts -- No distinction between prosecutorial discretion and consent to prosecution -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2, 7, 59, 60(4).