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8 C.H.R.R. ND/1 (1987)

handle is hein.journals/chhr8 and id is 1 raw text is: CANADIAN HUMAN RIGHTS REPORTER NEW DEVELOPMENTS Volume 8, C.H.R.R. January 1987 CASES OF NOTE Provincially Constituted Board Lacks Jurisdiction to Inquire Into Complaints Against RCMP Officers The majority of the Supreme Court of Canada has allowed an appeal by six Royal Canadian Mounted Police officers from a decision of the Saskatchewan Court of Appeal which found that a human rights board of inquiry has jurisdiction to hear a complaint that the officers violated section 7 of the Sas- katchewan Human Rights Code by arbitrarily arrest- ing and detaining four Saskatchewan residents. The R.C.M.P. officers arrested a man in a hunting cabin for assaulting .a conservation officer and then ordered the other occupants from the cabin, without dressing and hands on their heads, and told them to lie on the ground. After half an hour in the sub-zero weather the complainants were told to get up one at a time, asked their names and addresses, and told to go back into the cabin. A complaint of arbitrary arrest and detention, contrary to section 7 of the Sas- katchewan Human Rights Code was made to the Sas- katchewan Human Rights Commission. The Com- mission investigated, and proposed a settlement. When the officers did not respond, a board of inquiry was established to adjudicate the complaint. The Commission took the position that although the force was subject to federal regulation its individual officers were subject to the provisions of the Saskatchewan Human Rights Code. An order of prohibition granted the officers by the Court of Queen's Bench was quashed on appeal. At issue here is whether a board of inquiry can validly conduct an inquiry into a com- plaint filed against R.C.M.P. officers under a provin- cial code of human rights. In its majority decision, the Court found that sec- tion 7 of the Saskatchewan Human Rights Code is in- operative because arbitrary arrest is an issue of criminal law and criminal law lies exclusively in fed- eral jurisdiction. Section 7 of the Saskatchewan Hu- man Rights Code goes beyond regulating the civil consequence of unlawful arrest because it purports to define the boundaries of an authorized arrest. . In a dissenting opinion, three members of, the Court, Dickson, Wilson, and La Forest JJ, found that section 7 is a valid legislative provision, and a human rights board of inquiry can validly conduct an inquiry into a complaint against R.C.M.P. officers which al- leges arbitrary arrest and detention. Section 7 does not interfere with the criminal law definition of unlawful arrest, and since the Sas- katchewan Human Rights Code provision is con- sistent with the criminal law, it can deal with the civil aspects of an unlawful arrest since it is within the jurisdiction of the provinces to address human rights issues of dignity and equality. In addition, the minority of the Court finds that this was not an attempt by the Human Rights Commission to inquire into the administration and management of a federal police force, but rather an inquiry into thd conduct of individual police officers who are subject to provincial law in the same way as other citizens. (See Decision 589) Preference for Hiring Male Nursing Attendant is BFOQ An Alberta Board of Inquiry has found that the Lamont Auxiliary Hospital's expressed preference for hiring a male into a temporary nursing attendant posi- tion was not a violation of the Individal's Rights Protection Act because being male was' a bona fide occupational qualification for the position:- Anne McKale applied for a temporafy nursing at- tendant position after working for the Lamont Auxil- iary Hospital in full-time, part-time and casual posi- tions from 1981 to 1985. A male applicant with no experience as a nursing attendant was given the posi- tion. The Board of Inquiry found that the Hospital re- quired a complement of male staff to attend those male residents who objected to intimate care, like bathing, being provided by a female attendant. The Board found that the Hospital's responsibility to pro- vide the care that best meets the residents' needs justi- fies preferring males for some of the nursing attendant positions. (See Decision 586) ND/1

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