Saturday, April 11, 2015

Flawed Analysis on the Racism as an Exceptional Circumstance in Hamalengwa v. LSUC

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 April 11, 2015

In Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187 (CanLII), there were very serious finding of misconduct against Dr. Munyonzwe Hamalengwa, a very prominent lawyer in Ontario, in respect to over-billing the Ministry of the Attorney General / Legal Aid Ontario for the high profile murder case R. v. Wills. The penalty phase of Dr. Hamalengwa's case has now been completed and it is ordered that his licence to practice law in Ontario be revoked effective May 31, 2015: Law Society of Upper Canada v Hamalengwa, 2015 ONLSTH 57 (CanLII). The penalty of revocation is proportionate having regard to how the law society treated with similar cases in the past. Had the panel found that exceptional circumstances existed in this case it is likely that Dr. Hamalengwa would have been given permission to surrender his licence or be suspended for a very substantial period. The analysis on racism as an exceptional circumstance that the hearing panel used though is flawed and so is its decision on penalty.

In assessing penalty, the Hearing Panel, reviewed a number of authorities or case-law and distilled certain principles from those cases.

At Paragraph 20, the Hearing Panel wrote:
[20]        The panel extracted from the case law and formulated the following principles:
a)               If there was an overbilling to the MAG or LAO involving fraudulent or dishonest behaviour, the presumptive penalty is revocation of a lawyer’s or a paralegal’s licence.
b)               If there are “exceptional circumstances,” as a mitigating factor, the panel has the discretion to impose a penalty less than revocation.
c)               The case law does not fully define the meaning of “exceptional circumstances.”
d)               Psychiatric and/or psychological and/or medical evidence, duress or financial desperation may be “exceptional circumstances” if this evidence establishes a causal connection or a direct nexus between the lawyer’s or paralegal’s misconduct and the mitigating factor(s).
e)               The category of “exceptional circumstances” is not closed or exhaustive and is not fully defined in the precedents.
f)               The evidence of “exceptional circumstances” must provide an explanation for his or her conduct which is believable to the panel.
g)               Racism may be “exceptional circumstances” resulting in mitigation in the penalty if there was some causal connection or direct nexus between the lawyer’s or paralegal’s misconduct and the racism.
At paragraph 21, the Panel summarized Counsel's arguments on exceptional circumstances as follows "[21]        Ms. Freeman and Mr. Adler generally agreed with these legal principles.  But, Ms. Freeman did not agree that there was a causal connection or a direct nexus between racism and the Lawyer’s misconduct."

The Hearing Panel summarized Dr. Hamalengwa's counsel arguments of racism as an exceptional circumstance as follows:
[22]        Mr. Adler asserted that Mr. Wills was a racist.  In his “Written Submissions On Penalty” at para. 73, he wrote, “[h]ere was a lawyer who was racially taunted by his own client.”  And in para. 74, he wrote that the Lawyer suffered “racial abuse at the hands of” Mr. Wills.
[23]        The Lawyer was keenly aware of racism in his life.  In para. 81, Mr. Adler wrote, “[h]e refuses to accept racial slights whenever he believes that he sees them or experiences them.”  The panel agrees with Mr. Adler’s description of the Lawyer’s acute awareness of racism.
[24]        The panel concludes that given the Lawyer’s acute awareness of racism, if Mr. Wills was a racist, or made racist taunts or the Lawyer suffered racial abuse at the hands of Mr. Wills, in his evidence the Lawyer would have stated that Mr. Wills was a racist. But, in his evidence in June 2014, the Lawyer did not say, or even suggest, that Mr. Wills was a racist.
It was publicly reported that Mr. Wills "regularly insulted even a succession of his own lawyers, for instance describing his fifth, Munyonzwe Hamalengwa, a black man born in Zambia, as "a pompous nigger, an uppity fall-down nigger" - though never within Mr. Hamalengwa's earshot." See, for example, Christie Blatchford, The remarkable Mr. Wills, The Globe and Mail, October 31, 2007.

If that is the case what does this Hearing Panel mean when it says "if Mr. Wills was a racist, or made racist taunts or the Lawyer suffered racial abuse at the hands of Mr. Wills, in his evidence the Lawyer would have stated that Mr. Wills was a racist." The Penalty phase was to consider exceptional circumstance, in which case, such evidence is certainly admissible.

It then wrote at paragraph 26:
[26]        The panel concludes that Mr. Wills treated everyone badly.  The panel concludes that there was no evidence suggesting a connection between or among Mr. Wills’ conduct, Mr. Wills’ racism (which did not exist), the Lawyer as a black man and the Lawyer’s overbilling.  There was no medical or psychiatric or psychological evidence explaining why the Lawyer overbilled the MAG.
In assessing the issue of whether racism can be an exceptional circumstance the panel wrote:
"[29]        The panel concludes that racism may be "exceptional circumstances" in mitigation when a panel assesses penalty.  The panel concludes that there was no evidence establishing or linking a causal connection or a nexus between or among the Lawyer's overbilling and the alleged racism by Mr. Wills, the LSUC and/or the MAG.  The panel also concludes that the alleged racism does not explain nor mitigate the Lawyer's overbilling."
The Hearing Panel got the test wrong. Clearly wrong. That is not the test in Ontario. It is not the test in any common law jurisdiction in Canada.

In 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(Ont. C.A.), 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 connection" or causal link instead holding that:
[54]   The Court did not indicate from where it derived this test.  The term "causal nexus" does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test.  The test is not one that human rights tribunals have traditionally applied. (...)
[59]      While the word “nexus” is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a “connection” between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a “factor” in the adverse treatment. 
[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. 
[61]      I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case (…)
This issue of causal link, causal connection or causal nexus was also recently argued on January 23, 2015 at the Supreme Court of Canada in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (decision reserved), as that is a requirement to prove discrimination under the civil law of Quebec.

As I observed when I appeared in the Supreme Court of Canada this past January:
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)
So to the extent that that the hearing panel required a "causal connection" or a "direct nexus" between racism and the misconduct in question and that  formed part of the panel's analysis, its holding is an error in law and goes contrary to the holding of the Court of Appeal in Pietersm supra.

In any event, in Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3, a case that involved professional misconduct findings against McSween by a Law Society of Upper Canada hearing panel, in concurring reasons, adjudicators Clayton C. Ruby and Constance Backhouse examined McSween's personal background, antecedents, training and the nature of discrimination and wrote the following, which though lengthy deserve quoting liberally:

[5]               Mr. McSween is a 65-year-old Canadian of Afro-Caribbean descent.  He was born into extreme poverty in Trinidad and Tobago on May 7, 1945, and came to Canada in 1967.  He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba.  Mr. McSween worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario.  At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario.  In 1976 he began a PhD at the University of Toronto. He did not finish for health and financial reasons. He testified that he now intends to finish and has only one chapter of his thesis left to complete.
[6]               In September 1997, at the age of 52, Mr. McSween started law school at the University of Western Ontario and graduated in 2000.  Despite applying for approximately 100 articling positions, Mr. McSween was unsuccessful in obtaining a position.  He instead became Chief Operating Officer of Caribana, a position for which he never received payment.  Mr. McSween eventually obtained an articling position.  He testified that although he wished to learn real estate during his articles, his principal did not allow this. 
[7]               After passing the bar admission course and being called to the bar in 2003, at the age of 58, Mr. McSween again had difficulty finding employment and applied to approximately 50 law firms.  In August or September of 2004, he started as a sole practitioner and real estate solicitor.
[36]           Mr. McSween testified that his articling experience left him wholly unprepared for practice, that he did not learn real estate as he wished and that, although he had a good relationship with his principal, he mostly performed non-legal tasks during his training.  Because of his difficulties finding employment after being called to the bar in 2003, he decided to start his own practice.  He contacted known real estate lawyers to discuss setting up a practice, and yet the only person who offered to help him was Ms. French.  He testified that the real estate bar did not seem supportive of his efforts.  He was thrust upon her because she was from the Caribbean community and, like him, a Seventh Day Adventist.....
[45]           The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people.  Indeed, judicial notice of systemic racism in Ontario has been accepted since R. v. Parks, supra in which the Ontario Court of Appeal took judicial notice of systemic anti-black racism in Canadian society.  The Court also acknowledged, at paras. 366-369, the devastating results of such acute disadvantage for black persons: unemployment, poverty, and denial of opportunity, the exact circumstances that are alleged by Mr. McSween in the current appeal.
[57]           A connection between systemic inequality and the particular offence and the offender had not been shown.  The Court did find, however, that such evidence may be relevant in other cases, as the academic and governmental reports respecting African Canadians “chronicle a history of poverty; discrimination in education, the media, employment and housing; and over-representation in the criminal justice system and in prisons.” See ibid at para. 17 and para. 30.  This is such a case.  The appropriate connection was made by Mr. McSween in his evidence.

3.         Racism in the Context of Law 
[68]           In 1999, the Working Group on Racial Equality in the Legal Profession of the Canadian Bar Association published Racial Equality in the Canadian Legal Profession.  The report examines racism in the legal profession and reveals that students from racialized communities have fewer opportunities to secure articling positions and first jobs. They do not benefit from the same articling experience as their non-racialized colleagues who are introduced to clients, assist more senior lawyers on important cases, and who conduct research on a broader range of files.  There is no evidence to suggest that circumstances have changed for the better; in particular, articling opportunities have diminished.  See: Working Group on Racial Equality in the Legal Profession, Racial Equality in the Canadian Legal Profession (Canadian Bar Association: Ottawa, 1999). 
[69]           More recently, in 2004, the Law Society commissioned a study entitled Diversity and Change: The Contemporary Legal Profession in Ontario.  This report attempted to establish a baseline for tracking diversity and equity in the Ontario legal profession.  It found that, when surveyed, lawyers of racialized communities are more likely to reveal that they were denied opportunities to take responsibility for cases because of client objections, and they also were more often subject to inappropriate comments by judges and other lawyers.  See: Kay, F. M.  et al. Diversity and Change: The Contemporary Legal Profession in Ontario (A report to the Law Society of Upper Canada) (Queen’s University: Kingston, 2004). 
[70]           It is reasonable to infer that as a group, Afro-Caribbean Canadian lawyers are economically and professionally disadvantaged when compared with their colleagues, and that many face diminished opportunity as alleged in this case by Mr. McSween.
[72]           The research into Canadian legal history shows that systemic racism has had a substantial impact on the legal profession.  It demonstrates that ideas of legal “professionalism” have been used to exercise power and exclusion based on gender, class, religion, and race.  The first minority individuals who sought admission to the legal profession faced significant barriers.  Those who succeeded in obtaining entry found that those barriers continued to impact upon their careers when they attempted to practise.  Significantly, an increased risk of disbarment was one such barrier for racialized lawyers. 
[73]           It would be misguided to be aware of this history and yet ignore its contemporary incarnations simply because the legal profession has today become much more diverse.  The legal profession has made no concerted effort to rid itself of the racism inherent in the practice.  As the evidence in this case illustrates, racialized lawyers continue to face barriers not experienced by their colleagues.

In Law Society of Upper Canada v. Terence John Robinson, 2013 ONLSAP 18 following from the principles in McSween, an appeal panel observed that:
[78]           In our view, McSween supports the proposition that systemic racism and discrimination which explains or provides context to why a licensee engaged in misconduct or conduct unbecoming is relevant. This is not unique to Aboriginal licensees. What is unique are the systemic and background factors that affect Aboriginal people, including Aboriginal lawyers and how these factors have affected them.
The Panel in Law Society of Upper Canada v Hamalengwa, 2015 ONLSTH 57 failed miserably in fact when it speak to "Mr. Wills’ racism (which did not exist)" in conflict with evidence that existed and in law by using a test that has no place in human rights law or in any analysis of the role of racism in misconduct.

As noted in Naraine v. Ford Motor Company [1996] O.H.R.B.I.D. No. 23: "It is sobering to reflect upon research compiled by anthropologists such as Frances Henry (an expert witness in this case) which concludes that racialized groups have found provincial human rights legislation almost totally irrelevant in reducing day-to-day discriminatory practices: see Frances Henry The Caribbean Diaspora in Toronto: Learning to Live with Racism (Toronto: University of Toronto Press, 1994)...."

Copyright © 2015 Selwyn Pieters. All rights reserved. Please use citation if using or relying on my analysis.

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  and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); 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.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (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(Ont. C.A.).

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.

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