Saturday, January 24, 2015


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 January 24, 2015

On Friday January 23, 2015, a mild Winter day in the National Capital Region of Canada, the  racial profiling case of Mr. Latif was argued at the Supreme Court of Canada. This was the first time in the Supreme Court's history that it was hearing a case of racial profiling. The Court heard legal arguments from the Appellants, Respondents and several interveners including the Center for Research-Action on Race Relations, the Canadian Human Rights Commission, the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association, and the South Asian Legal Clinic of Ontario. It has reserved its decision and shall issue a written decision sometime in the future.

Representing the interest of the Center for Research-Action on Race Relations were Selwyn A. Pieters and Aymar Missikala. Fo Niemi the Executive Director was present in Court.

Significant to this case is the need for a clear and consistent test for victims and respondents, and for a harmonized and coherent national approach for discrimination. The two questions in issue that require an affirmative answer:
1) Does the requirement of a “causal link” between a challenged discriminatory act or practice and a prohibited ground of discrimination, especially discrimination based on race or ethnicity, effectively constitute the requirement of proving an intent to discriminate and direct discrimination?

L-R  Preet K. Bell, Ranjan K. Agarwal, Selwyn A. Pieters,  Faisal
Bhabha, Khalid M. Elgazzar, Faisal Mirza, Aymar Missikala
2) Is the requirement of such a “causal link” inconsistent with prevailing contemporary standards of evidence of discrimination in Canada whereby it is only necessary to prove that a prohibited ground of discrimination is a factor in the challenge act or practice?

There was strong showing of Black, Muslim, Arab and South Asian Lawyers that appeared before the seven member bench of Judges to ensure that a large, liberal and purposive approach to the test for a prima facie case is upheld by the Court.

In the Factum of the Center for Research-Action on Race Relations we set out an overview of the Latif v. Bombardier Inc. (Bombardier Aerospace Training Center) case as follows:
Javed Latif is a naturalized Canadian citizen of Pakistani origin and Muslim. He retains his dual citizenship. He has been a pilot with both American and Canadian licenses for over 25 years. In 2004, he applied to Bombardier for a pilot training program that would allow him to operate a Challenger 604 aircraft. Bombardier’s Aerospace Training Center has two training facilities, one located in Montreal and the other, in Dallas, Texas. Despite his previous training in the U.S., Mr. Latif was denied security clearance by U.S. authorities this time, which denied him training by the U.S. Federal Aviation Agency, on the grounds that he constituted a national security threat. Mr. Latif could not appeal the denial as there was no procedure for non-U.S.citizens and was therefore denied training by Bombardier under his Canadian pilot’s license as he was also considered as a threat to aviation in Canada.
He filed a complaint with the Commission des droits de la personne et des droits de la jeunesse for discrimination in employment based on ethnic or national origin.  The Commission brought the case before the Quebec Human Rights Tribunal which ruled that there was a prima facie case of discrimination as Bombardier’s denial of Mr. Latif’s application relied solely on U.S. authorities’ national security-based decision and in part, on business considerations, including the possible revocation of its U.S. training certification, and one particular manager’s opinion.  The Tribunal ordered compensation for lost salaries, moral and punitive damages, and the cessation of the company’s discriminatory practice. 
Bombardier appealed to the Court of Appeal, which struck down the Tribunal decision on several grounds.[1] The Court found no clear evidence of differential treatment directed at Mr. Latif since Bombardier relied on official and legitimate information from U.S. authorities to reach its decision.  The Court also ruled that while there was no need to establish an intent to discriminate, a “causal link” (“lien causal”) between the challenged exclusionary practice and a prohibited ground of discrimination is an “essential ingredient to a conclusion of discrimination”[2], which was not made in this case.[3]  More specifically, the Court noted that the U.S. security clearance applies to all non-U.S. citizens and did not “specifically target” Arabs and Muslims.[4] In the Court’s opinion, the Tribunal erred by relying on circumstantial evidence of discrimination or racial profiling, because the evidence in the case did not include facts that are “serious, precise and concordant”, as required by Quebec civil law.[5] In fact, the Court clearly states that evidence can not result from suspicions or speculations[6] and that the expert testimony in support of the plaintiffs’ claim lacked “pertinence and probative value.”  In other words, the circumstantial evidence to allow for an inference of discrimination and profiling in this case does not hold.[7]

[1] Bombardier inc. c. Latif, 2011 QCCA 1611 (CanLII)
[2] At para. 98 and 100.
[3] At para. 103 and 142.
[4] At para. 125.
[5] At para. 141 and 142.
[6] At para. 106.
[7] At para. 139.

As an applicant in the Peel Law Association v. Pieters, 2013 ONCA 396 I was uniquely situated to argue issues that arose from that case and provide an insider-outsider view on the issue of racial profiling and its interpretative principles. En effet, Me Pieters, étant unilingue anglais, est celui qui a plaidé la cause dans l’affaire Peel Law Association de la Cour d’appel de l’Ontario.  Cet arrêt est éminemment pertinent puisqu’il provient de la plus haute Cour de l’Ontario d’une part, et d’autre part, il est en contradiction  flagrante avec l’arrêt de la Cour d’appel du Québec dans la présente affaire ayant mené les parties devant la Cour suprême.  En effet, les deux arrêts édictent une norme différente en matière de fardeau de preuve de discrimination.  Tandis que la Cour d’appel de l’Ontario estime qu’il suffit à une victime de prouver que l’un des motifs interdits a été un facteur dans l’acte reproché pour qu’il y ait discrimination, la Cour d’appel du Québec exige un lien de causalité entre le motif et l’acte reproché.  Me Pieters sera le mieux placé pour expliquer la perspective de la Cour d’appel de l’Ontario dans une province de tradition de Common Law et dans la langue qu’il maîtrise.

My oral arguments to a seven member panel of the Supreme Court of Canada on behalf of the Center for Research-Action on Race Relations were very to the point in relation to the issue of why the use of causal nexus has no place in human rights law.

Thank you Chief Justice and Justices for allowing us to orally present today on the very important matter to human rights litigants nationally.

The Center for Research-Action on Race Relations (CRARR) supports the arguments made by the Appellant and other intervenors in this case of the need for a clear and consistent test for victims and respondents in Human rights matters, and for a harmonized and coherent national approach for discrimination.

In Peel Law Association  v. Pieters, a racial profiling case involving two Black lawyers and a student, two of whom had dreadlocks, the Court of Appeal reject the requirement of a “causal nexus” or causal link instead holding that:
 [60]   I do not think it acceptable, however, to attach the modifier "causal" to "nexus".  Doing so seems to me to elevate the test beyond what the law requires.  The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause." 
In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employé de L'Hopital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4 at para. 181, Justice Abella was interpreting section 10 of the Quebec Charter and found only a link was necessary.

We respectfully submit that the requirement of a “causal link” between a challenged discriminatory act or practice and a prohibited ground of discrimination, especially discrimination based on race or ethnicity, effectively constitute the requirement of proving an intent to discriminate and direct discrimination.

The requirement of such a “causal link” is inconsistent with prevailing contemporary burden of proof in discrimination in Canada whereby it is only necessary to prove that a prohibited ground of discrimination is a factor in the challenge act or practice  (O’Malley v. Simpson-Sears, [1985] 2 SCR 536 at 28; Saskatchewan HRC v. Whatcott [2013] 1 SCR 467 at 54; Moore v. British Columbia [2012] 3 SCR 360 at 33).

It is our position that given the fact that discrimination, especially racism and racial profiling is subconscious, sometimes indirect and sometimes systemic,“so far as possible [human rights legislation whose object is to remedy discrimination must] be interpreted in a congruent manner": Ontario (Human Rights Commission) v. Ontario (1994), 19 O.R. (3d) 387 (ON CA)

Thank you. My colleague Aymar Missikala will continue the arguments on behalf of CRARR.

Part of Mr. Missikala's arguments touched on the thin line between the restrictive “causal link” and intent and direct discrimination that effectively creates a double burden of proving the causal nexus first between the “act of exclusion and the prohibited ground,” and then between said act and the damage.

Mr. Missikala also addressed the Court on the compelling goal to create a more perfect harmony between the two dominant legal cultures in Canada in order to provide more effective and equal protection to victims of race and other discrimination, be they in Quebec or in the rest of Canada.

“It is a rare opportunity for the Supreme Court, and for our country as a whole, to address racial profiling and discrimination in this decade. We are very honored and grateful to have as co-counsel Mr. Selwyn Pieters, who has made significant contributions to the advancement of racial equality in our Canadian justice system and beyond,” said CRARR's Executive Director Fo Niemi.

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).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, 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. 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 13165, 2013 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 has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 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 provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

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 has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

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.

No comments: