Tuesday, July 28, 2015

Walter Rodney Commission of Inquiry - Rebuttal to the Claim of Pre-mature termination of the Commission

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)
Created July 27, 2015

The Walter Rodney Commission of Inquiry has three Commissioners: Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad).

The Commission’s mandate established by its terms of reference is:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

Walter Rodney Commission of Inquiry - Arguments of Various Counsel

Basil Williams and Selwyn A. Pieters, Written Submissions of the People's National Congress, July 23, 2015
Selwyn A. Pieters and Brian M. Clarke, Written submissions of the Guyana Trades Union Congress, July 24, 2015
Andrew Pilgrim, Q.C., Closing argument of the Immediate family, July 24, 2015
Keith Scotland, Closing Argument of Donald Rodney, July 24, 2015

Mr. Pieters: Thank you very much. Selwyn Pieters for the People’s National Congress [PNC]. By way of Extraordinary Gazette dated 8th July, 2015, under the signature of Lieutenant Colonel Joseph Harmon, Minister of State, the life of the Commission was extended for the final time to 30th November, 2015. That is the date specified by the President, by which the Commission shall render its report, findings and recommendations to the President within that specified period.
It is our submission that the Commission, whose life has been extended to 30th November, has not been terminated prematurely.

Mr. Chairman, the position that we take is that nothing precludes written hearing for those issues to which the Salmon letter pertain. It is our position and the other parties may disagree, but certainly questions can be submitted in writing. The persons to whom the information is sought can submit affidavit evidence and the parties can be given an opportunity to file additional written submissions or supplementary written submissions - if that is necessary. Mr. Chairman, for that proposition I relied on a case called Vale v. Sun Life Assurance Co. of Canada [1998] O.J. No. 6466, 40 O.R. (3d) 347, per Cullity J.
Mr. Chairman: Just spell it for the purposes of the records.
Mr. Pieters: V-a-l-e vs S-u-n-l-i-f-e A-s-s-u-r-a-n-c-e Company of Canada. That was a reported decision, 1988, for the OR which is “Ontario Reports”, the third edition, 347. Mr. Chairman, my friend, Mr. Pilgrim, and rightfully so, spoke about the audi alteram partem rule  and certainly we do not disagree that in administrative proceedings nemo judex in causa sua) and other audi alteram partem exist and certainly in the case of …
Mr. Chairman: I think for the purposes of the listening public, you should try to avoid the Latin tides and if you use them, you should explain what they mean.
Mr. Pieters: Certainly Mr. Chairman. The two terms speak to issues of fairness and issues of impartiality, so they speak to those two concepts. In a case called Marks vs Minister of Home Affairs, 35 West Indian Report, at page 134, that decision cited a case called Kanda vs the Government of Malaya, 1962 AC322, in which Lord Denning, given the judgment of the Privy Council said this:
“The rule against bias is one thing.  The right to be heard is another.  Those two rules are the essential characteristics of what is often called natural justice.  They are the twin pillars supporting it.  The Romans put them in the two maxims: nemo judex in causa sua: and audi alterem partem.  They have recently been put in the two words, impartiality and fairness.  But they are separate concepts and are governed by separate considerations...   If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.  He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them...   the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
Mr. Chairman, I say that because the fact is, the questions and evidence that Robert Corbin, for example, was required to answer have been crystallised since November, 2014, when Lieutenant Sydney James testified. We say that no plausible explanation has been offered on why a Salmon letter was not issued to him shortly thereafter. His name was serialised in the media by the consultant of the Commission, Shaun Michael Samaroo in an article called “Corbin delivered guns to the House of Israel” in the Guyana Chronicle on 3rd June, 2014. We understand the concerns that Mr. Pilgrim has raised in respect to the three business days’ notice, to which these Salmon letters were issued, but we say that no explanation has been given to us as to why the Salmon letter would not have been issued to Robert Corbin, shortly after Lieutenant Colonel James testified in November, 2014.
Mr. Chairman: Perhaps you will allow me to interrupt you just to say that, the usual practice in commissions is that, towards the end, one sends out their Salmon letters, otherwise the same person may have to get three or four, so one really determines who the persons are that merit Salmon letters when the evidence is really at an end. That would have been premature to send out one at that point. It is really not in keeping with the standard practice, but I have taken note of what you said. Please proceed.
Mr. Pieters: In respect to Norman Mclean and “Skip” Roberts, we understand that “Skip” Roberts was here for a certain period and his evidence was not taken. We also understand as well that the evidence for “Skip” Roberts would have been crystallized in January, 2015, and the same applies in respect to him that there is no explanation as to why he was not issued his Salmon letter previously. So, the PNC’s position, therefore, is that enough time has been allocated to the Commission to wrap up its proceedings, including obtaining evidence from witnesses issued Salmon letters without personal appearance. Such witnesses, as I indicated before in my submissions, can give their evidence by way of affidavit and counsel can submit written questions to those witnesses and supplementary written submissions, arising out of any evidence that becomes available, can be made. There is therefore no breach of legitimate expectation, as Mr. Pilgrim submits and no breach of natural justice of the Rodney’s family are asserted. Therefore, we submit that any request for petition to the President should be disallowed, since, indeed, one has until 30th November, 2015, to complete their mandate. Those would be my respectful submissions.
Mr. Chairman: Thank you very much, Sir. I regard your suggestion with respect to responses, by way of affidavit from those who have not yet testified, as worthy of serious consideration by the Commission. It is a question to some extent of resources as well, but it is certainly not an idea not worthy of serious considerations, so thanks very much for your submissions, Sir.

Thursday, July 23, 2015

Supreme Court of Canada Releases Significant Decision on Proving Discrimination based on Race/Ethnicity (CDPDJ AND LATIF V. BOMBARDIER)

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)
Created July 23, 2015

“Discrimination can take a variety of forms. Although some of them are easy to identify, others are less obvious, such as those that result from unconscious prejudices and stereotypes or from standards that are neutral on their face but have adverse effects on certain persons. The Charter of human rights and freedoms, CQLR, c. C‑12 (“Charter”), prohibits the various forms of discrimination and creates a remedy for victims of discrimination.”  Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. 2015 SCC 39, para. 1.

The Supreme Court has release its decision in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. 2015 SCC 39 a case of racial/ethnic discrimination in employment that will have national ramifications for all discrimination cases. The significant issue of importance to human rights practitioners and litigants is "whether Court of Appeal erred in requiring proof of causal connection between ethnic origin and exclusion?" In other word, do the modified "causal" which is imported from the Civil Code makes it virtually impossible to prove discrimiantion by importing a standard that has no place in human rights law?

The facts in this case revolves around a Canadian pilot of Pakistani background, Mr. Javed Latif, who in 2004 was offered a job to pilot Bombardier Challenger aircrafts and was denied training (which took place in Quebec, Canada and Texas, U.S.A) by Bombardier due his being listed as a security threat by U.S. authorities. (In order to access training under a U.S. Federal Aviation Authority license, he had to pass a security check required by the U.S. government’s Alien Flight Students Program given that part of the training was to be offered in the U.S.).

As a result, Mr. Latif was denied employment and had problems finding work as a pilot. He filed a complaint of ethnic discrimination with the Quebec Human Rights and Youth Rights Commission, which upheld his case and brought it before the Human Rights Tribunal. In 2009, the Tribunal ruled in his favour and ordered Bombardier to pay him $385,000 in damages and to cease using U.S. national security screening criteria when dealing with Canadian applications for a pilot training license.

Bombardier appealed the ruling to the Quebec Court of Appeal, which quashed the Tribunal's decision in the fall of 2013. The Human Rights Commission obtained leave to appeal the Court of Appeal decision to the Supreme Court, seeking the latter’s clarification on a number of issues.

One of these issues is whether the Quebec Court of Appeal erred in requiring proof of a “causal connection” between the prohibited ground of ethnic origin and the discrimination experienced by the victim. Canadian jurisprudence on discrimination usually merely requires evidence that a prohibited ground, such as race or gender, was one of the factors in a discriminatory action or practice; this is a lower threshold to prove discrimination than that of “causal connection”.

In 2013, the Ontario Court of Appeal rejected a similar test in the ground-breaking racial profiling case of 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.). In that case, which involved the racial profiling of two Black lawyers (one of whom was prominent human rights lawyer Selwyn Pieters) and a student, two of whom had dreadlocks,  the Ontario Court unanimously maintained a more liberal position and ruled against the lower Court’s requirement of a “causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.”

As the only Quebec intervener in the Bombardier case, Center for Research-Action on Race Relations (CRARR) called for a “consistent, uniform and unequivocal evidentiary requirement for assessing discrimination claims … to guide all equality-seeking individuals and groups as well as all courts and tribunals in Quebec (and) in the rest of Canada.”

In upholding the decision of the Court of Appeal, the Supreme Court of Canada cited with approval Mr. Justice Juriansz's reasoning in Peel Law Association v. Pieters as well as the reasoning in Moore v. British Columbia (Education), 2012 SCC 61 (SCC), as the appropriate test required to prove discrimination:
[49]                          In a recent decision concerning the Human Rights Code, R.S.O. 1990, c. H.19, the Ontario Court of Appeal found that it is preferable to use the terms commonly used by the courts in dealing with discrimination, such as “connection” and “factor”: Peel Law Assn. v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 80, at para. 59. In that court’s opinion, the use of the modifier “causal” elevates the test beyond what is required, since human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate or of direct causes: para. 60. We agree with the Ontario Court of Appeal’s reasoning on this point. Moreover, this Court used the term “factor” in a recent decision concerning British Columbia’s human rights code: Moore, at para. 33.
 [50]                          It is more appropriate to use the terms “connection” and “factor” in relation to discrimination, especially since the expression “lien causal” has a specific meaning in the civil law of Quebec. In civil liability matters, the plaintiff must establish on a balance of probabilities that there is a causal relationship between the defendant’s fault and the injury suffered by the plaintiff: J.‑C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at para. 158. The Quebec courts have defined this causal relationship as requiring that the damage be a logical, direct and immediate consequence of the fault. This rule therefore means that the cause must have a [translation] “close” relationship with the injury suffered by the victim: J.‑L. Baudouin, P. Deslauriers and B. Moore, La responsabilité civile (8th ed. 2014), at para. 1‑683.
[51]                          A close relationship is not required in a discrimination case under the Charter, however. To hold otherwise would be to disregard the fact that, since there may be many different reasons for a defendant’s acts, proof of such a relationship could impose too heavy a burden on the plaintiff. Some of those reasons may, of course, provide a justification for the defendant’s acts, but the burden is on the defendant to prove this. It is therefore neither appropriate nor accurate to use the expression “causal connection” in the discrimination context.
 [52]                          In short, as regards the second element of prima facie discrimination, the plaintiff has the burden of showing that there is a connection between a prohibited ground of discrimination and the distinction, exclusion or preference of which he or she complains or, in other words, that the ground in question was a factor in the distinction, exclusion or preference. Finally, it should be noted that the list of prohibited grounds in s. 10 of the Charter is exhaustive, unlike the one in the Canadian Charter : City of Montréal, at para. 69.

On the issue of social context evidence, the Supreme Court of Canada held that:

 It cannot be presumed solely on the basis of a social context of discrimination against a group that a specific decision against a member of that group is necessarily based on a prohibited ground under the Charter. In practice, this would amount to reversing the burden of proof in discrimination matters. Evidence of discrimination, even if it is circumstantial, must be tangibly related to the impugned decision or conduct. As a result, it was not open to the Tribunal in this case to conclude that B’s decision constituted prima facie discrimination under the Charter. The conclusion in this case does not mean that a company can blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability under the Charter. This conclusion flows from the fact that there is simply no evidence of a connection between a prohibited ground and the foreign decision in question.
This again was emphasized in Pieters as well:
[121]   In this case, I am not persuaded that any unfairness resulted from the Vice-Chair’s reference to Nassiah. The reference did not affect his disposition of what I regard to be the main issue in the case—whether the appellants’ race and colour were factors in their selection for questioning. At most they played a minor role in his finding that their race and colour were factors in the manner in which they were questioned. After referring to Nassiah, the Vice-Chair was careful to point out he had “already” made findings about the manner in which the librarian had questioned the appellants. The librarian had “interrupted [the first appellant] while he was on the telephone and, it appears, did not introduce herself to the applicants and [the articling student]”. Furthermore, “[f]rom all the evidence, including the personal respondent's testimony of how she generally carried out this function”, the Vice-Chair concluded that “the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge”. These findings of fact relate to the particular encounter in this case; they are not based on generalizations drawn from social science.

Unfortunately for Mr. Latif the Court held that he had not discharged the legal burden of proving discrimination on a balance of probabilities, and that a prohibited ground of discrimination is one factor involved in the decisions or actions on the part of the employer that are alleged to constitute a violation of the Quebec's Charter.

Mr. Selwyn Pieters, co-counsel for CRARR, and CRARR's Executive Director Fo Niemi will be available for comment on the Supreme Court decision.
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Information: Selwyn Pieters: (416) 787-5928
Fo Niemi: (416) 808-6119