Friday, May 01, 2015

Public trust in Toronto Police Service means that the law must be respected

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law May 01, 2015

Below is an extract from part of a lengthy May 01, 2015 letter that I wrote to the recently appointed Chief of the Toronto Police Service, Mark Saunders, concerning racial profiling, racialized violence and inappropriate use of the Canadian criminal justice system machinery. The quote from R. v. Schertzer, 2015 ONCA 259 is an add on to the letter.
Mr. [X] reported to me the following in respect to his interactions with officers at 31 Division:
i. That he has been stopped and searched in public many times without any reason;
ii. That he was assaulted in the past as well by Toronto Police Officers;
iii. That he does not feel comfortable to walk in his community alone as a result;
iv. That he wants the police harassment of him in his community to stop.
Just for your reminder on May, 30th, 2013, the Black Community Police Consultative Committee (BCPCC) held a town hall meeting at the Christian Centre Church with Toronto Police 31 Division and residents of the Jane-Finch area.  The purpose of this discussion was to identify problems and solutions to improve community safety and the relationship with local police.[1] You were in attendance and said this:

“First and foremost, our primary function within a community is public safety, making sure folks are getting to and from their places safely.  In different areas of the City there are different values, I can go to a different pocket of the city and their primary issue is, my car getting broken into, then I can go to other parts of the City and the big issue is, is my son and daughter ok to walk to school and back?  Two completely different dynamic issues, and so as a police service the way that we try to be successful and addressing the needs is by identifying what is the strongest value for that community? The way that we learn that is by having those conversations with the members of the community, with the consultative communities because they speak to us and let us know what’s going on and they let us know where the relationships are weak and where we can do better.”   

In Toronto in 31 Division of Toronto Police it is no different than Baltimore. Essentially, the troubled police - community interaction in 31 Division is systemic and endemic. A Black police Chief and Black Commander makes no difference when the culture supports racial profiling and racialized violence. I cannot stress enough how deleterious it is to the Toronto Police Service and society as a whole when police officers abuse and misuse their powers. We watched how things unfolded in Baltimore over the past few weeks with the Freddie Gray matter. That is not an unlikely occurrence where the culture of the police service is such that lawless behavior on the part of police officers are shielded and covered up.

Little affects me more than the abuse of power by police officers and when such organizations are tone deaf to the concerns of its citizens. Our Canadian judicial system is inappropriately used with trumped up charges of assault police when your officers abuse citizens rights.....

The Court of Appeal recently reiterated the following in R. v. Schertzer, 2015 ONCA 259:

[132]     Public confidence in the honesty of the police is fundamental to the integrity of the criminal justice system.  As Moldaver J.A. wrote in Schaeffer v. Wood2013 SCC 71 (CanLII) at para. 52, citing Sir Robert Peel:
“‘the police are the public and…the public are the police…  The wisdom of this statement lies in its recognition that public trust in the police is, and always must be, of paramount concern.” 
[133]   Police officers are sworn to uphold the law. In R. v. Feeney2008 ONCA 756 (CanLII)238 C.C.C. (3d) 49, at para. 8, this court endorsed the following passage from R. v. Cusack (1978), 41 C.C.C. (2d) 289 (N.S. S.C.(A.D.))::
[T]he paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust....
The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration..
It is not a crime for a Black man in Jane and Finch to be in and around his neighbourhood. I live in Regent Park and I walk in my neighbourhood any hour of the day and night as that is my prerogative. I trust that you will, in your new role, reinforce to your officers that citizens have rights under  The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the "Charter"); Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”); Police Services Act, R.S.O. 1990, c. P.15 as amended. This is not North Korea.

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.

[1] - The Black Community Police Consultative Committee (BCPCC) Town Hall Meeting, May 30th, 2013; a video of the Town Hall Meeting is available at this web link -