Sunday, November 17, 2013

Black Action Defence Committee v. Bill Blair and Toronto Police Services Board



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 17, 2013
Updated June 20, 2014

This week marks the filing of a Statement of Claim that purports to launch a Class Proceeding against the Toronto Police Service Board and the Chief of Police pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 14.05(3)(g.1).

A civil action in the form of a class action lawsuit and/or Charter application is long overdue. 

In Toronto the crime rate is very low, particularly for violent crimes. In eleven months for 2013 we have less than 52 homicides. There is absolutely no justification that could be rationally sustained for Toronto Police carding and mapping entire communities of young men between the ages of 15 to 24 who are Black and Brown except that race, colour, class and privilege are operating. It is apparent that the majority of the people carded, or stopped and frisked (under the pretext of "Officer Safety") are not connected to any organized crime activities; not involved in any gang related activities; not connected to the drug and/or the gun trade and do not have a criminal record. How then can such a practice be endorsed by the powers that be including the Ontario Human Rights Commission? Such a practice makes the persons subject to it victims of racial profiling. Racial profiling offends against a person's equality right as it allows Toronto Police officers to deliberately subject him/her to differential and unequal treatment without sufficient evidentiary basis.

The factual matrix of the cases profiled by the Toronto Star goes to the core of racial profiling, racial stereotyping and racism. Toronto Police Service has failed to correct most police racial misconduct that requires training, supervision and accountability. The Toronto Police Services Board has failed to do what is necessary to prevent this type of misconduct from occurring in the future.

I am concerned about this practice that continues unabated but unfortunately there has not been much litigation on the issue and few positive decisions supporting victims of the practice: See, Maynard v. Toronto Police Services Board, 2012 HRTO 1220. The quantum in Maynard was the highest awarded by the HRTO in a substantiated racial profiling case: Nassiah v. Peel Police Services Board, 2007 HRTO 14 ($20,000), Phipps v. Toronto Police Services Board, 2009 HRTO 1604, 2009 HRTO 1604 ($10,000); Abbott v. Toronto Police Services Board, 2010 HRTO 1314 ($5,000); Pieters and Noble v. Peel Law Association, 2010 HRTO 2411($2000.00 each). And, without a lithany of litigation this carding issue will continue. In New York City a judge recently rule carding to be unconstitutional and awarded damages. I wonder when such litigation will be prosecuted with vigour here.


In the SOC issued on November 16, 2013, BADC seeks the following remedies:
1. The Plaintiff, THE BLACK ACTION DEFENSE COMMITTEE (BADC), claims as against the Defendants both jointly and severally:

a) General damages against the Defendants in the amount of $50 million for racial profiling (and carding), which is a violation of his constitutional rights of the class of persons represented by the Plaintiff pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”); and the Ontario Human Rights Code.
b) The Plaintiff and potential class members claim the following:
c) An Order certifying the proceeding as a class proceeding and appointing the Plaintiff BADC as Representative Plaintiff.
d) A Declaration that the Defendants have breached sections 7, 9 and 15 of the Charter, which are the constitutional rights of the Plaintiff and any class members and all African-Canadians and other “colourful” minorities.
e) An Order requiring the Defendants to comply with their obligations under sections 7, 9 and 15 of the Charter; the Ontario Human Rights Code and the Police Services Act as well as relevant provisions of numerous international human rights conventions and instruments and declarations.
f) An Order requiring the Defendants to desist from engaging in and condoning racial profiling against the Plaintiff and all class members and against all African-Canadians and other “colourful” minorities.
g) An Order requiring the Defendant Bill Blair and all Toronto Police officers, to read the following books: David Tanovich, The Colour of Justice: Policing Race in Canada; Carol Tator and Frances Henry, Racial Profiling in Canada: Challenging the Myth of ‘A Few Bad Apples’; Meekes, Driving While Black; Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling and the Ontario Commission on Systemic Racism in the Ontario Criminal Justice Report and the Toronto Star articles dealing with carding and racial profiling published in 2002, 2010 and 2013.
h) An Order requiring the Defendants to discipline all their officers who engage in racial profiling and carding.
i) A Declaration that racial profiling is a criminal offence.
j) Punitive damages in the amount of $10 million dollars.
k) Exemplary damages in the amount of $5 million dollars.
l) An Order requiring the Defendants to implement systemic remedies responsive to the needs of the entire class that has been profiled or are prone to be racially profiled.
m) Pre-judgment and post-judgment interest on the above amounts in accordance with the Court of Justice Act;
n) A clear and unequivocal written apology from the Defendants to the Plaintiff and all African-Canadians for their being targets and victims of racial profiling and carding; and
o) Such further and other relief as this Honourable Court deems just.

Counsel for the Black Action Defence Committee is Dr. Munyonzwe Hamalengwa.

Unfortunately, the statement of claim appear to be hastily drafted, not properly constructed and some of the remedies sought here would more likely to be able to be asserted in the context of an Application. It is unlikely that it will be certified as a significant portion of the pleadings appears to be a knock off of the unsuccessful claim in Hamalengwa v. Bentley, 2011 ONSC 4145. 

In Hamalengwa, Mr. Hamalengwa sought the following remedies:


1. The plaintiff Munyonzwe Hamalengwa claims: 

a) General damages against all defendants in the amount of $1.00 (One Dollar) for racial profiling, which is a violation of his constitutional rights pursuant to the Canadian Charter of Rights and Freedoms; 
b) The Plaintiff and potential class members claim the following:
c) An Order certifying the proceeding as a class proceeding and appointing the Plaintiff Munyonzwe Hamalengwa as representative Plaintiff.
d) A declaration that the defendants have breached sections 7 and 15 of the Charter Rights of the Plaintiff and any prospective class members and all African-Canadians and other “colourful” minorities.
e) An Order requiring the defendants to comply with their obligations under sections 7 and 15 of the Charter.
f) An Order requiring the defendants to desist from engaging in  and condoning racial profiling against the Plaintiff and any prospective class members and against all African-Canadians and other “colourful” minorities.
g) An Order requiring defendants Bentley, Thompson, Fairburn, Blair, Fantino and Marin to read the following books: David Tanovich, The Colour of Justice: Policing Race in Canada ; Carol Tator and Frances Henry, Racial Profiling in Canada: Challenging the Myth of ‘A Few Bad Apples’  Meekes, Driving While Black, Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling
h) An Order requiring the Government of Canada and the Government of Ontario to enact legislation prohibiting racial profiling.
i) A declaration that racial profiling is a criminal offence.
j) An Order that defendants Chris Bentley, The Ministry of the Attorney General, Thompson and Fairburn pay the Plaintiff all the monies in the amount of $100,000.00 he is owed as a result of representing Richard Wills and as previously billed plus applicable taxes.
k) An order requiring the defendants Chris Bentley, The Ministry of the Attorney General, Thompson, Fairburn and Marin to provide reasons why white lawyers Borenstein (as he then was before he became Justice Borenstein) and Wasser and an amicus were not recommended for assessment of their accounts in the Richard Wills case.
l) An Order requiring that in conformity with sections 15 and 24(1) of the Charter, Borenstein, Wasser and an amicus be assessed as has happened with the Plaintiff.
m) An Order postponing any assessment of the Plaintiff until the Statement of Claim and the constitutional issues and remedies proposed have been disposed of.
n) Punitive damages in the amount of $1.00 (One Dollar); 
o) Exemplary damages in the amount of $1.00 (One Dollar; 
p) An Order that there be no costs given the importance of the case and the severe negative impact of racial profiling on the Plaintiff  and all African-Canadians; 
q) Pre-judgment and post-judgment interest on the above amounts in accordance with the Court of Justice Act; 
r) A clear and unequivocal written apology from the defendants to the Plaintiff and all African-Canadians for their being targets and victims of racial profiling; 
s) Such further and other relief as this Honourable Court deems just.

The most blatant deficiency in the claim is the lack of individual plaintiffs who have been carded and/or racially profiled, have a common narrated story that is representative of the experience of those African Canadian youth whose story were most recently was profiled by the Toronto Star in September 2013, as it did in 2012 and 2010 and who can show he/she or they have suffered palpable damages or injuries. See the cases of  Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158, Cloud v. Canada (Attorney General), (2004), 73 O.R. (3d) 401 at 411 (C.A.) and Abdool v. Anaheim Management Ltd.(1995), 31 C.P.C. (3d) 197. See also Ramdath v. George Brown College, 2012 ONSC 6173 - this case illustrates what is required to succeed in a class action.

In any event, and having regard to the large group of young men between the ages of 15 to 24 who are Black and are victims of racial profiling, there is enough of a critical mass to constitute a large enough group to qualify for certification in a class action. Why were there not directly affected young men sought out as potential plaintiffs?

It is unlikely that the Black Action Defence Committee would be found to be a representative of a class to proceed to certification: See, Magill v. Expedia, Inc., 2013 ONSC 683. It is also likely that the pleadings would be found to be too broad as it lacks any individual narratives. 

Litigating such cases against Toronto Police Service or any other police service is expensive, time consuming and unpredictable.  Given the import of commencing such an action, I would think it through and possibly amend it before the pleadings close. BADC could be at risk of significant costs: McCraken v. CNR, 2012 ONSC 6838. 

In other developments the human rights application before the Human Rights Tribunal for Ontario was dismissed. See, Black Action Defense Committee v. Toronto Police Services Board, 2014 HRTO 907. The Tribunal wrote in its decision that Counsel for the BADC made the following submissions in response to a Notice of Intent to Dismiss (NOID):
[4]           The applicant responded with very brief submissions, advising: “BADC is withdrawing as an organization from participating in a class action law suit in other forums as individual human representative plaintiffs are replacing BADC. Thus BADC will only now be involved in the claim at the HRTO and nowhere else.” The applicant also filed a revised Application form, which somewhat confusingly continued to refer to the existence of an ongoing civil action based on the same facts of the Application. The narrative describing the allegedly discriminatory events stated only, “A general practice complained of against the respondents is attached. This is a class action law suit that will [be] comprise[d] of many individuals and their individual stories will be filed later.” However, no attachment was included.

The Tribunal also reiterated that it usually dismiss human rights applications where there exist concurrent civil actions:
[11]        In the present case there can be no dispute that the applicant has commenced a civil suit in which it is seeking damages for the identical violations of the Code which are raised in this Application. Accordingly this Application must be dismissed pursuant to section 34(11) of the Code. In light of my finding, it is unnecessary to deal with the additional issues raised in the Case Assessment Direction.
See also, Toronto Star story on this civil action.

********

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 131652013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn most recently litigated the racial profiling case of:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349
M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

In the criminal law realm some of the cases Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.


Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana. 

6 comments:

CourageB said...

I read your views but I think you should assist the BADC to litigate this issue based on your wisdom and legal experience.

Kingsley P. Gilliam said...

Thank you Selwyn for your insightful analysis of the case law relating to Police racial profiling,and the merits of these type of cases as shown by the various dispositions of individual law suits.
The irony of these dispositions, is that counsels are always wel paid for their work and the victims loos their money paid on legal fees while the perpritrators continue their discriminatory practices.

BADC believes that filing this law suit will provide an opportunity for the Victims of these nefarious practices of racial profiling/carding will not have to risk losing their savings and their homes to fight individual law suits but would be able to sign on to the BADC led Class action Law suit and have their case considered.
The benefit of this class action law suit is also to provide an opportunity for theover 350 Black Lawyers in Ontario to Give Back to the community by pooling their legal talents and skills to contribute to the successsful litigation of these cases.
Much mor prestiege and respect can be derived by supporting the billegered Black Community in these two Class Actions initiated by BADC on behalf of the entire Black Community including lawyers and judges,than for them to watch their legal guns fight against their individual and communal interest.
As the attornies For York (Montreal Forum) learne that litigated the Difining human rights case in Canadian law Christy Vs York in 1940 learnt, that not only plaintiff Christy had no rights in Canada, but they themselves had the same level of rights as Mr. Christy did.

When the community succeeds ,individuals thrive. As Winston Churchill was quoted in response to King George VI when he requested Churchill to exclude Lord Beaver Brook from his war cabinet: " it is better to have him on the inside pissing out than on the outside pissing in".
BADC will welcome your hard work and dedication and experties as we move forward with thes and several other Class Action Law suits.

Biggar said...
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Biggar said...
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Biggar said...

Although I am not making these comments in my capacity as Chair, I should point out that I am the Chair of the Board of the Human Rights Legal Support Centre and that the Centre is working with the Law Union of Ontario in an effort to file an application with the HRTO in relation to police carding practices.

I have read Selwyn's comments about BADC v. Bill Blair and TPSB and I agree with Selwyn about just how important it is for Black communities to attack racial profiling through every means at our disposal. But I sincerely believe that we also have to attack these matters by mobilizing the best and most able resources at our disposal.

Class actions are exceedingly complex matters and a class action of this sort (fought against respondents with relatively limitless resources) should only be pursued by counsel with an advanced experience in such matters. I worry very much that because of the way in which the BADC civil claim is being pursued, should they be unsuccessful, significant costs could be levied against the plaintiffs.

I only found Selwyn's blogged comments today, after reading the Toronto Star piece indicating that as well as a civil suit an application has been filed, against the same parties, with the HRTO. It appears that the HRTO application is in the nature of a "class action". My concern is that neither the Ontario Human Rights Code nor the HRTO rules speak to the possibility of "class actions" being raised before the Tribunal. In addition and of equal importance, in these matters, people are not permitted to ride two horses at once. In other words, you may not be able to file a civil suit seeking remedies for violations of the Charter and an application before the HRTO seeking essentially the same remedies, under the Human Rights Code. Rules like this prevent a multiplicity of proceedings being commenced and save precious resources.

Given the relative sped of the process, I imagine that the HRTO matter will be addressed first. It is likely that, in the face of a preexisting civil claim, and the "class actions" problem the HRTO application may be dismissed (I suppose that the application could be amended to include a named group applicant but why the screw-up in the first place?)

Unfortunately, I do not agree with the previous writers, CourageB or Kingsley Gilliam. There are already so many problems with the processing of these matters that the thing to do is not to support them but for BADC to withdraw them and to work with others more knowledgeable about the human rights or civil law process. Personally, I think that pursuing the human rights process makes sense.



Best regards,

Pat Case

selwyn.pieters said...

Well said Pat. I am still perplexed. What would Charles Roach and Dudley Laws have done? Laws and Roach would have encouraged BADC "to work with others more knowledgeable about the human rights or civil law process." The missteps are costly and embarassing.
SP