Thursday, November 15, 2012

Toronto Police Services Board and The Chief of Police Denied Access to Black People at a Meeting to Discuss Racial Profiling and Carding of Black Men

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 14, 2012
As a litigator who is involved in issues of racial profiling in criminal matters, civil matters and human rights applications, naturally I have an interest in the Toronto Police Service and how its policies in this area that touches on the fundamental rights of citizens in this City are shaped.
I attended the Toronto Police Services Board meeting on November 14, 2012, to be met by a wall of police officers who denied total access to persons interested in attending that meeting, most of whom were Black people. The claim the the meeting room was full was proven to be false by Televisions reports that showed empty seats. As well, it is the normal practice to stream the meeting into an overflow room.
The Chair of the Police Services Board Alok Mukerjee and the Chief of Police William Blair are responsible for this disrespectful treatment.
Lets see who were outside: John Sewell, a former mayor could not get in. African Canadian Legal Clinic Lawyer Roger Love could not get.
I could not get into police headquarters to attend this public meeting. Here I am being blocked along with Tidy Francis and Steven Mayers. 
Three Black Deputants could not get in. To add injury to insult one was stopped, carded and denied access. The female Sargeant even recorded his personal information on her cellular telephone - a total violation of what a public meeting is supposedly about open access and possibly a violation of the man's privacy.
In fact even the media was prevented from entering the meeting, it took a lot of time and effort for the Canadian Broadcasting Corporation to gain entry to that public meeting. The Toronto Star also reported on the lock out of citizens who were there to make deputations.
The Toronto Police Services Board and the Toronto Police Service may do well to listen to the voices of the people in this city, once total public trust is lost it is hard to be regain and many countries are experiencing that phenomena with unfortunate results at all levels.
I wrote an email to the Chair and the Chief of Police that follows:
From: Selwyn Pieters
Cc: "Pieters, Selwyn"
Date: Wed, 14 Nov 2012 22:30:02 -0500
Subject: Racially insensitive conduct at Toronto Police Headquarters - November 14, 2012
Good evening,

It was interesting that as a public board with a meeting that was supposedly opened to the public and discussing an issue of importance to BLACK PEOPLE, i.e. racial profiling and carding of our young people, we were denied entry by armed police officers. Please advise whether as Chair of the Police Services Board together with the Chief of Police you directed your officers to deny entry to Black people at this meeting? Even speakers with deputations were denied admission at least until 2:30 p.m. when I left the premises at 40 College Street. A Picture is enclosed with the police officers blocking my entry and that of others the doors to police headquarters.

One of the Deputants a young Black male was forced to produce his id to a female Sargeant, picture enclosed. I as well, as an "Officer of the Court" vouched for his identity, as well as others to no avail. In order words, he was stopped, carded, and denied access. He was one of many who had deputations to make and were turned away.

The unwelcome conduct today at 40 College Street spoke volumes and no words needed to be spoken.

You need to take ownership for this an apologize.

Public meetings such be such and the impediment placed today on lawful access to a meeting that is ordinarily public is unacceptable.

Yours truly,

Selwyn A. Pieters
The Chief of Police explanation that could be found by viewing the Rogers Cable television network recording of that public meeting, unfortunately, did not accord with what took place outside the doors at police headquarters and some explanation is required for the discrepancy.
This is the state of affairs in the City of Toronto. Racial harassment and racial profiling is now the norm for our youth. In a speech to youth workers from the federal, municipal, provincial levels of government and private sector on November 08, 2012, I advised them of the important role they play in combatting racial profiling.
The widespread practice of racial profiling by the Toronto police was documented in a series of articles published in early February 2010 in the Toronto Star. Those articles may be found at Star reporters analyzed police data recorded from 1.5 million contact cards or field information reports on 1.1 million individuals stopped and carded by Toronto police between 2003 and 2008.  The data is from what police call `208 cards’ where police officers record the name, race, age, reason for the stop, time and date, and who the individual is with. Not everyone who is stopped is carded, but the cards record about 200,000 people stopped each year, or about one person every second shift by an officer. Analysis by the Toronto Star shows that black and brown youth are 2.5 times more likely to be stopped than white youth, three times more likely to be charged with a driving offence, and three times more likely to be held in jail rather than released.  Thus the Toronto police do not only engage in racial profiling in respect to those they stop; they also engage in racial profiling in regard to those they detain and those they charge. This is not the first time racial profiling by the Toronto police has been documented.
In October 2002, the Toronto Star published a series of articles alleging racial profiling within the Toronto Police Services based on extensive data they analyzed – over 500,000 incidents over a six year period.[1] In one of its analyses, the Star focused on arrests for simple drug possession (not trafficking) and how arrested individuals of different races were treated. The results? Whites were released on the scene 76.5% of the time, Blacks only 61.8% of the time. For those who were not released immediately, the difference was even more stark: Blacks were kept in jail 15.5% of the time pending a bail hearing, while Whites only 7.3% of the time. Julian Fantino, then Toronto Chief of Police, was quick to respond, "There's no racism...We do not do racial profiling."[2] Craig Bromell who was president of the Toronto Police Association echoed Fantino's beliefs and questioned how the Star had come to its conclusions.[3] Then Toronto Mayor Mel Lastman’s view was typically insightful: “Police only arrest bad guys…I don’t believe the Toronto police engage in racial profiling in any way.”[4]
Often times, the product of that profiling and harassment shows up in Court. In 2011, Mr. Justice Khawly found in one such recent large scale prosecution called “Project Corral” that the prosecution’s case was based on an “Elixir of suspicion, convincing rational human beings that what looks, acts and talks like suspicion magically transforms into evidence.” [5] Regardless of who commits crime there is no justification for law enforcement officers or organizations to use bias, stereotyping, or discrimination against individuals or large demographic groups of people. 
Racial profiling by any police service is unacceptable and all police officials have a responsibility to ensure that they treat people fairly and professionally. To target a particular race of young people for investigative purposes without reasonable and probable grounds places into question the competence of the police service on a policy level and the conduct of the officers on a personal level. "Competent policing, equals public trust."
This is not a Black versus White issue, whether we speak of youth who are Black, Aboriginal, Arabs, Muslim or mixed race, youth workers are at the frontline of persons involved in the receipt of information from young persons who are targeted and harassed by the police. It is therefore important that some measure of training and understanding of the regime of the Human Rights Tribunal be understood and the role youth workers can play as well.
It is a fundamental right of all humans and all Canadian citizens to be treated fairly, equitably and with respect by the very institutions mandated to uphold universal human rights instruments and the Canadian Charter of Rights and Freedoms
By letter of November 23, 2012, Alok Mukherjee regretted the incident occurred. Chief Blair on the other hand shifted the reason for not letter Black people into Police Headquarters blaming it on protestors. Recall it was claimed that space capacity and fire code regulations was the issue at the material date.

[1] Rankin, Jim et al., “Singled out”. The Toronto Star. 19 October 2002.
[2] John Sewell, Police in Canada: The real story (Toronto: James Lorimer & Company Ltd.) at 76
[3] Ibid.
[4] Ibid.
[5] R. v. Agil, Chambers, Fullerton, Jimale and Brown (Ont. CJ. Unreported, July 14, 2011, Khawley J.), p. 8.

Friday, November 09, 2012

Moore v. British Columbia (Education), 2012 SCC 61 the locus classicus case in all jurisdictions in Canada under the various Human Rights legislation on the test for establishing a prima facie case of discrimination

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on November 09, 2012

On November 09, 2012, the Supreme Court of Canada in a 9-0 decision in Frederick Moore on behalf of Jeffrey P. Moore v. Her Majesty the Queen in Right of the Province of British Columbia as represented by the Ministry of Education, et al. 2012 SCC 61 that will serve as the locus classicus case in all jurisdictions in Canada under the various Human Rights legislation on the test for establishing a prima facie case of discrimination, the burden of justification on the respondent, and whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination.
The principles are quite succinctly set out in this decision and will serve to erase all ambiguity that exist between amd amongst various lawyers, adjudicators and Court on the tests to be applied where a discrimination case is brought under the service provision sections of Human Rights Legislation. On the issue of prima facie discrimination: 

[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

 In terms of the the burden of justification on the respondent once discrimination is shown to have occurred, Madam Justice Abella wrote that: 
[49] The next question is whether the District’s conduct was justified. At this stage in the analysis, it must be shown that alternative approaches were investigated (British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), at para. 65). The prima facie discriminatory conduct must also be “reasonably necessary” in order to accomplish a broader goal (Ontario Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at p. 208; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984). In other words, an employer or service provider must show “that it could not have done anything else reasonable or practical to avoid the negative impact on the individual” (Meiorin, at para. 38; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 518-19; Council of Canadians with Disabilities v. VIA Rail Canada Inc., at para. 130).

  In terms of looking whether the respondent claim that I am just doing my job or acting in accordance with policy/practice insulates him/her from a finding of discrimination, the Court provided a helpful analysis: 
[58] …A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systemically on several: Griggs v. Duke Power Co., 401 U.S. 424 (1971). The only difference is quantitative, that is, the number of people disadvantaged by the practice.
[59] In Canadian National Railway Co. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114, this Court first identified ‘systemic discrimination’ by name. It defined it as “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics” (p. 1138). Notably, however, the designation did not change the analysis. The considerations and evidence at play in a group complaint may undoubtedly differ from those in an individual complaint, but the focus is always on whether the complainant has suffered arbitrary adverse effects based on a prohibited ground.
[60] The inquiry is into whether there is discrimination, period. The question in every case is the same: does the practice result in the claimant suffering arbitrary — or unjustified — barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.

This decision is welcome news coming from the highest court in the land given the great debate that arose in Ontario from the decision in the racial profiling in the provision of services case in Pieters et al v. Peel Law Assn. leave to appeal granted at: 2012 CarswellOnt 8616 from the decision of the Divisional Court at 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) that was in stark contrast to the decision of the Court of Appeal in Shaw v. Phipps, 2012 ONCA 155 (C.A.), also racial profiling case.  

In the Pieters case, the Divisional Court stated, at para 14:

…in order to prove a prima fascie case of discrimination, it is not sufficient for a complainant to identify himself or herself as possessing a characteristic that is protected under the Code and then to point to an incident with a negative impact on him or her.

The Divisional Court went on the say that to prove a prima fascie case of discrimination, there must be evidence to support the following findings:
a. A distinction or differential treatment;
b. Arbitrariness based on a prohibited ground;
c. A disadvantage; and
d. A causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.

In Phipps the Tribunal concluded after reviewing the evidence and hearing submissions from the parties, that "the applicant’s colour was a factor in Officer Shaw’s continued suspicion of the applicant and his decision to stop and question the applicant." This was upheld by the Court of Appeal which held that "the adjudicator did not assume discrimination, but drew an inference of discrimination from a number of different pieces of evidence".

The appeal hearing in Pieters takes place at the Ontario Court of Appeal, Courtroom One, on December 18, 2012 at 10:00 a.m.


APPELLANT  Geri R. Sanson – S. Pieters and B. Noble
TRIBUNAL Margaret Leighton – Human Rights Tribunal
INT Anthony D. Griffin – Ontario Human Rights Commission
INT Ranjan K. Agarwal - SALCO
INT Joseph Osuji – Just Society Group
RES Mark J. Freiman - Peel Law Association
RES Lucas E. Lung - Peel Law Association

This information is provided courtesy of the Law Office of Selwyn Pieters, 181 University Ave., Suite 2200, Toronto, Ontario, M5H 3M7 Phone: 416-787-5928 Chambers: 416-601-6806 Fax: 416-787-6145 Email: selwyn @ selwynpieters  com Internet :