Sunday, December 18, 2016

Questions and Answers from Selwyn Pieters in Andrew Pfeifer first appearance at Police Disciplinary Hearing

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)
Pieters Law Office
Created December 17, 2016

Human Rights lawyer Selwyn Pieters who represents Councillor Matthew Green at the Police Services Act hearing related to the substantiated OIPRD finding of the April 26th, 2016 carding complaint issued by Councillor Green against Constable Andrew Pfeifer #406 of Hamilton Police Service answers some question in respect to the hearing that commenced in Hamilton, Ontario. See, Selwyn Pieters bio for subject matter expertise.

1. Can you describe where this matter is in the process. 

Constable Andrew Pfeifer of Hamilton Police Service face one count of discreditable conduct in that he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit to the reputation of the Hamilton Police Service by engaging in an unjustified and arbitrarily street check contrary to section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10  of the Police Services Act. This matter has been brought to hearing following an investigation conducted by Independent Police Review Director (the "OIPRD").

  • A hearing officer Deputy Chief Terence Kelly, York Regional Police (Retired), will preside.
  • Brian Duxbury and T. David Marshall are the Prosecutors appointed by the Chief of Police.
  • Bernard Cummins and Ben Jeffries will be representing the Police Constable
  • I am representing Councillor Matthew Green.


The first appearance was on December 15, 2016. A hearing by telephone conference is scheduled for January 31, 2017 to permit counsel for the complainant and police officer to review disclosure and be in a position to set a date for trial.

2. Have the facts been established or is part of your role to draw out the facts?

There were facts established during the investigation that brought the matter to a hearing. However, any facts that are acceptable by the hearing officer can be established by the parties agreeing as to the facts (Agreed Statement of Facts or ASF) or alternatively a full blown hearing on the merits of the charge in the Notice of Hearing in which examination in chief, cross-examinations and re-examinations take place. At this point no facts have been established for the purpose of the hearing as we only made a first appearance. Any established facts are what the Tribunal accepts as credible and trustworthy.
.
3. What would an appropriate outcome look like. In other words, what result is being sought by going through the hearing process?

The prosecutor would be seeking to establish misconduct on the part of the officer.

Mr. Green is a complainant and a witness in the proceeding with standing he is there to ensure that his version of the evidence is found to be credible. As well, on a broader level since this is an officer misconduct complaint that raises racial profiling as an issue, Mr. Green has an interest in ensuring the Hearing Officer adjudicate this case in a manner that recognizes its subtle, pervasive and unconscious nature of racism and that his decision is consistent with human rights principles set out in numerous Court of Appeal decisions.

4. In your estimation, how clear is this case? Is this unquestionably a case of police carding based on race? What challenges, if any, do you anticipate?

This is a case based on the circumstantial evidence.  Importantly however that the only Black City Councillor would have this experience in his own city is illustrative of the fact that a Black person’s status, education, wealth or privilege does not immune him/or her from being targeted, arbitrarily stopped, questioned and sometimes detained by law enforcement officials, particularly police.

We will make the case that this was an unjustified and arbitrary street check and that it based in part on the race of Matthew Green.

5. Is there anything else you would like Hamiltonians to know about this matter or the issue of carding in general?

The “declaration of principles” in section 1 of the Police Services Act, proclaim the importance of the Human Rights Code and Charter in this statutory scheme. One of the enumerated principles of the provision of police services is:


2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

Racial profiling is a serious issue of great concern to the public particularly racialized residents of Ontario, including residents of Hamilton. Regulations come into force in January 2017 that prohibits such action. Hamilton Police Service enacted a policy in December 15, 2016. Statistics shows Blacks are four times as likely to be unjustifiably and arbitrarily stopped by police in Hamilton.

In a case where racial profiling is alleged:
a. There is no need to prove intention or motivation to racially profile;
b. Racial profiling can rarely be proved by direct evidence;
c. Racial profiling will usually be the product of subtle, unconscious beliefs, biases and prejudices;
d. Race need only be a factor in the adverse treatment to constitute racial discrimination;
e. Racial profiling is a systemic practice;
f. Racial profiling is not limited to initial stops;
g. African Canadians may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as being evasive;
h. A person may experience racial profiling based on several overlapping and intersecting aspects of their identity; and
i. The use of abusive language by an individual who has experienced racial profiling at the hands of police cannot justify further differential treatment
See, for example, R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. 161 at paras. 7 to 9;  Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), <http://canlii.ca/t/1pz1n>; Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (CanLII), <http://canlii.ca/t/2608k>; Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), <http://canlii.ca/t/1rgcm>, Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), <http://canlii.ca/t/fz590> and Naraine v. Ford Motor Co. [1996] O.H.R.B.I.D. No. 23 and R. v. Steele, 2015 ONCA 169 (CanLII), <http://canlii.ca/t/ggpng>

Once the police discipline proceeding is engaged, whether by a complaint about officer misconduct by a member of the public, or by an “internally” generated complaint about officer conduct, the Part V PSA proceeding must proceed in accordance with the statute, including situations where the complaint raises a Code issue. The decision-makers at various stages in the PSA Part V process have no power to decline to deal with the Code issue on the basis that another more appropriate forum exists – they are not permitted to decline and defer to some other tribunal.

6. Other issues

It appears that a larger room and venue would be necessary for this hearing. It is a public hearing and I am concerned with the comments reported in the Hamilton Spectator and CBC that HPS Union Boss Client Twolan called the case a "circus" and claimed that Councillor Green is making a spectacle “to further his own political agenda.” See, Samantha Craggs, Police union says Matthew Green creating spectacle over carding complaint CBC Hamilton, December 15, 2016 and Molly Hayes, Police union boss calls Hamilton councillor’s carding case political theatre, Hamilton Spectator, December 15, 2016

I have already written to all concerned stating “I would suggest a venue that is not a police building. Comments like this can poison the atmosphere.”

Obviously, I will have to obtain instructions from the client on motions to be brought including for additional disclosure, change of venue etc.


Resources

CBC Hamilton Report, December 12, 2016

Matthew Green Complaint, April 2016

African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource

Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission

Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)

Ontario Human Rights Commission, eLearning module “Human Rights 101" 


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). Test for Proving racial profiling

Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>


Monday, December 12, 2016

Selwyn Pieters to Represent Councillor Matthew Green at Police Disciplinary Hearing

FOR IMMEDIATE RELEASE


Selwyn Pieters to Represent Councillor Matthew Green at Hearing of 
Constable Andrew Pfeifer Badge # 408


Hamilton, ON – December 12, 2016 – Civil rights lawyer Selwyn Pieters will represent Councillor Matthew Green at the upcoming December 15th Police Services Act hearing related to the substantiated OIPRD finding of the April 26th carding complaint issued by Councillor Green against Constable Andrew Pfeifer of Hamilton Police Service.

“Given the unique structure of the Police Services Act hearing process, I felt it important to retain the nation’s foremost expert on matters related to my complaint. I am grateful to have Mr. Pieters’ counsel throughout this process. I am confident that with his support, the facts of the case will bear out,” says Councillor Matthew Green.

Selwyn Pieters has appeared at all levels of court up to the Supreme Court of Canada. He has been counsel in arguing numerous cases of  racial profiling, including carding, and discriminatory use of force including successfully representing himself, citizens, and police officers before the Human Rights Tribunal of Ontario and other administrative Tribunals. Selwyn is also a member of the Bar of the Republic of Guyana and the Island of Trinidad. See, Selwyn Pieters bio for subject matter expertise.

The Police Services Act Hearing is scheduled for 10:00 am December 15, 2016 at the Hamilton Central Police Station at 155 King William St.

-30-

For Media Inquiries:

Selwyn A. Pieters, B.A.,LL.B., L.E.C.
Email: selwyn@selwynpieters.com
Phone: 1-416-787-5928

Resources

CBC Hamilton Report, December 12, 2016

Matthew Green Complaint, April 2016

African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource

Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission

Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)

Ontario Human Rights Commission, eLearning module “Human Rights 101" 


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). Test for Proving racial profiling

Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>



Sunday, December 11, 2016

Selwyn A. Pieters Subject Matter Expertise: Racial profiling, race & ethnicity, anti-black racism (law enforcement, security, education, law, criminal justice system)

Selwyn A. Pieters

Subject MatterExpertise: Racial profiling, race & ethnicity, anti-black racism (law enforcement, security, education, law, criminal justice system), racial bullying, African-Canadian urban culture and race relations, social  inequality, law enforcement, policing culture in Ontario, Canada; Guyana and Trinidad
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).

Litigation

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Fraser v. Ontario, 2011 SCC 20 and the racial profiling case of Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] S.C.J. No. 39.

Selwyn has also appeared in the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37  (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76 (C.A.) and most recently R. v. Steele 2015 CarswellOnt 3334, 2015 ONCA 169, [2015] O.J. No. 1253 (Ont. C.A.). Leave to the Supreme Court of Canada denied:  R. v. Steele, 2015 CanLII 43092 (SCC) where an allegation of racial profiling was made against a Hamilton Police Officer.

Selwyn argued numerous case of racial profiling in Criminal Courts including: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.) [Carding led to a big gun, drugs and gang case that I successfully litigated in Toronto... Project Threadbare the Judge called it because of the lack of evidence]; 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. 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 has litigated numerous human rights, constitutional and administrative law cases before the Human Rights Tribunal of Ontario, Canadian Human Rights Tribunal, Superior Court of Justice and Federal Court of Canada, the most recent being Roberts v. Toronto Police Services Board, 2016 HRTO 1464 (HRTO). He has appeared in Divisional Court on Judicial Review applications.

M. (R.) was a case involving a youth 14 years old who was arrested four time by Toronto Police all based on racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. He has no convictions yet was targetted, carded, arrested, detained, on several occassions. His case was fiercely litigated by Toronto Police and the reported decisions stand as a monument to the challenges litigants face in litigating racial profiling:
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 settled to the satisfaction of all parties and the terms of settlement reached remain confidential.


Selwyn represented then Toronto Police Inspector David McLeod in a racial profiling case commonly known as the “Gas pump incident” in 2005 – 2006: Toronto Police Association v. Ontario (Civilian Commission on Police Services), 2010 ONSC 246 and most recently Constable Dameian Muirhead of York Regional Police Service who alleged that he was subjected to racism, discrimination, malice, and bias in his own police service.

Selwyn was the successful litigant in the racial profiling/carding 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.)

Lectures, Papers, Symposiums

Pieters, Selwyn and Frank, Rick, Police Bias in a Criminal Investigation – Constitutional and Civil Consequences for Criminal Defense Lawyers and Defendants, at Legal Aid Ontario (LAO) and Innocence Canada symposium entitled “Unravelling the truth: Investigations, Interviews and Confessions” November 30, 2016

Presented a paper at the Ontario Bar Association: Selwyn A. Pieters, "Using Public Interest Remedies to Impact Cultural Change" Online: <http://www.selwynpieters.com/documents/HumaRights_Ontario_PublicInterestRemedies_PietersPaper.pdf> November 02, 2016

Pieters, Selwyn and Frank, Rick, Police Interrogations and The Psychology of False Confessions, at Innocence McGill's 10th Anniversary Conference: online <http://www.selwynpieters.com/documents/Police_Interrogations_and_The_Psychology_of_False_Confessions.pdf>
February 22, 2016

OBA Constitutional, Civil Liberties and Human Rights (CCLHR) program entitled “Hot Headlines in Human Rights - Racial Discrimination and the Legal Profession” September 10, 2013

Street Law Smarts Training Day, Justice for Children and Youth and the Law, November 8th, 2012

"Data Collection, Race, and Criminal Justice in Canada: Building a Firm Foundation for Progress" By Selwyn A. Pieters, B.A., LL.B., L.E.C. and Adrian Roomes, J.D., Critical Race Symposium Osgoode Hall Law School at York University, November 2, 2012

“What role does data collection play in ensuring that police agencies are fulfilling their human rights obligations?” Accessing Justice and Accountability in Policing, Law Enforcement Accountability Project (LEAP), University of Windsor

Presented at the Black Law Students Association of Canada, 19th Annual Conference
Theme: "Partnering for progress and unprecedented possibilities" February 24, 2010 and a CRARR event on racial profiling.

March 19, 2008: University of Windsor Faculty of Law RACIAL PROFILING AND THE LAW - Guest Speakers (Selwyn Pieters and Raj Dhir)

March 15, 2008: SPINLAW 2008 “Solidarity: Law at the Grassroots.” The Jane/Finch CommunityThe Jane-Finch community has long been painted by the media as a centre of violence, gangs, drug busts and other criminal activity, largely committed by racial minorities. This panel hopes to engender discussion on issues affecting the community, and to dispel some of the myths and problematic stereotypes associated with the Jane-Finch neighbourhood. Panelists: Selwyn Pieters, criminal lawyer; Tonika Morgan, community organizer; Dauda Massaquoi, community legal worker at Jane Finch Community Legal Services.

March 04, 2006: The High School Drop Out Rate and the Safe Schools Act: A Panel Discussion with Liz Sandals, MPP Guelph-Wellington, Parliamentary Assistant responsible for the Safe Schools Act Review and Selwyn Pieters, lawyer and activist involved in human and civil rights, working with the community concerning safe schools and racial profiling

February 23 - 26, 2006, Black Law Students' Association of Canada Conference, The Ripple Effect of One Voice; Seminar "Critical Race Practice: Setting Up an Equality Practice" with Donald McLeod, Barrister & Solicitor; Plenary "Black and Aboriginal Racism in the Legal Profession" with Professor Michelle Williams, Dalhousie Law School
January 28, 2006, "Knowing Your Rights" BLING SUMMIT, Bring Love In Not Guns, Black Youth Coalition Against Violence, University of Toronto.

December 09, 2005, Human Rights and Justice Series, Presentation to youths in Malvern, Hoodlinc.

November 29, 2005, Safe Schools Act Review at Holiday Inn

November 23, 2005, presentation to detained youths at the York Detention Centre.

October 11, 2005, CACO meeting with the Mayor David Miller

October 04, 2005, CACO meeting with the Premier of Ontario, Dalton McGinty, Minister of Education, Gerrard Kennedy and the GTA Caucus, to discuss the Safe Schools Act and increasing violence in the Community

September 17, 2005, Better Policing for Toronto, "Controlling and Preventing Racial Profiling", Innis Town Hall, Unversity of Toronto

August 19, 2005, "What Are Your Civic Responsibilities", 33rd Annual National Education & Training Conference, National Black Police Association, with Theodore M. Shaw is Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. (LDF); Anthony R. Rodgers, Edwards Waters University and Hazel A. Wallis, NBPA USA Consultant

August 08, 2005, Career Choices, Tropicana and Malvern Youth Club, with Angela James, Regional Manager, Children and Youth Services and Basil Jardine, Soul Images.

June 04, 2005, "Dealing with Authority/Knowing Your Rights", Malvern in Motion Conference, with Kike Roach - civil lawyer, Roach Schwartz & Associates

April 07, 2005, Deputations, Toronto Police Services Board , "Hate Crimes" and "Race Relations"

March 05, 2005, "Fighting Racial Profiling: Legal strategies and tactics", Law Union of Ontario Annual Conference 2005, with Kike Roach - civil lawyer, Roach Schwartz & Associates and Hadayt Nazami - immigration lawyer, Jackman & Associates

March 05, 2005, "Barriers to Equal Opportunities in Education", Fifth Annual Spinlaw Conference, Bridges and Barricades -- The Roadmap to Domestic Human Rights , with Marie Chen, African Canadian Legal Clinic and Maxwell Nelson, Berkshire Group of Companies

February 03, 2005, oral and submissions to the Standing Committee on Government Operations and Estimates, House of Commons, on Bill C-11 Public Servants Disclosure Protection Act

November 02, 2004, written submissions to Justice Lesage Chair of the Review of the System for Complaints by the Public Regarding the Police was established by the Government of Ontario .

March 20, 2004, Are courts appropriate forums for litigating racial harassment claims? A look at the elusive quest for harassment free and respectful workplaces" (paper and oral presentation), Ryerson University Equity Conference 2004 .

May 30, 2003, Presentation to Ontario Human Rights Commission Racial Profiling Inquiry "Racial Profiling at Canada Customs: Personal and Society's Implications and Measures to Combat this Unlawful Treatment of Canada's Black Population" (paper and oral presentation)

March 08, 2003, The Third Annual SPINLAW Conference, Expanding the Boundaries of Human Rights Litigation - Post 9/11, Racial-Profiling and the impact of the Pieters Settlement (submitted paper)

April 2002, Racial Profiling, Association of Black Law Enforcers (hand-outs)
February 22, 2002, "How to become an legal activist" - Panelists included, Julian Falconer, Barrister and Solicitor; and Pat Case, Equity Advisor, University of Guelph. Moderator: Louise James, Law Student, University of Toronto Law School

January 18, 2001, Trials on Poverty, with Elan Ohayon, Peter Rosenthal & Vilko Zbogar, University of Toronto

March 29, 2000, Affirmative Action & Employment Equity: Case Studies in the Struggle for Racial Justice in Ontario and Michigan with Dr. Chandrakant Shah, Dr. Kin-Yip Chun, Karen Thom, ASSU, University of Toronto.

Media

Print, broadcast, television and social media nationally and internationally.


Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario)
Attorney at Law (Guyana and Trinidad)
Correspondence to:
P.O. Box 518, 31 Adelaide St. E., Toronto, Ont. M5C 2J6
Office
181 University Ave., Suite 2200, Toronto, Ontario, M5H 3M7
Phone (24 hours): 416-787-5928 Fax: 416-787-6145
Chambers: 416-601-6806

Internet : http://www.selwynpieters.com

Friday, October 21, 2016

The Canadian Bar Association : What's New in Employment Remedies and Damages at the Human Rights Tribunal?

On November 02, 2016, I presented a paper at the Ontario Bar Association: Selwyn A. Pieters, "Using Public Interest Remedies to Impact Cultural Change" Online: <http://www.selwynpieters.com/documents/HumaRights_Ontario_PublicInterestRemedies_PietersPaper.pdf> See, bio for subject matter expertise.

Please read, like, share and comment.

Wednesday, October 19, 2016

Digging Down Deep: Racism in the Nova Scotian Legal Profession

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)
Pieters Law Office
Created October 19, 2016

I have been following Lyle Howe's Nova Scotia Barristers' Society hearing which Blair Rhodes reports on via his twitter account @CBCBlairRhodes and through various other means including orders and decisions of the Discipline Panel hearing the case. What is clear is that the NSBS has dug in its heels and is going after Mr. Howe with all of its resources, legal, regulatory and financial. What is also evident, much to his credit, is Lyle Howe is clearly determined to fight this application to strip him of his law licence and he is fighting it with everything he can muster. .

On October 17, 2016 CBC Nova Scotia reported the Disciplinary Hearing as "shaping up to be the longest hearing of its kind in Nova Scotia history. The push is in to try to finish by year's end."

October 17, 2016, was interesting in that two Black Crown Attorneys testified under subpoena. Interestingly enough, the "nigger" word was raised when both attorneys were in the witness box.

Black Crown prosecutor Perry Borden and Black Lawyer Lyle Howe face-off at the hearing in what was described as a tense encounter. Mr. Howe apparently described Borden's presence in the Dartmouth prosecutors' office as being "so quiet he was almost nonexistent." Mr. Borden said Howe's comment made Borden appear to be the "house nigger" of the Public Prosecution Service. One of my colleagues J.H. reminded us that this was "Similar to how Johnny Cochran viewed (at least publicly) Chris  Darden during the OJ trial." 

Alonzo Wright Crown Attorney with Nova Scotia Public Prosecution Service of Canada who is a special prosecutor handling mostly fraud matters testified about racism at Howe's hearing about his experience as an Black man in Nova Scotia in a way that is so real:


1) Wright identified as African Nova Scotian. 
2) Wright says he has experienced racism all his life.
3) Wright says he and teammates were called "niggers" during competitive games in an attempt to get them off their game.
4) Wright says even today he experiences racism: he wears his hair in dreads and gets singled out on occasion. 
5) Wright says as he prosecutes across the province he is frequently the only black man in the courtroom and often in the community. 
6) Wright says when he walks into court, people are often "shocked" to see him sit in the crown side in the courtroom.


This was reported by Blair Rhodes, CBC Journalist based in Halifax, Nova Scotia.

Of course, Mr. Wright's testimony resonated with me because I have been chronicling my own experiences as a Black man with dreadlocks in legal spaces.

In my October 17, 2016 blog post I wrote:


Assumptions, everyday racism and micro-aggression
What evidence was/is there to justify such an assumption that I have no right to 1) be in the Lawyers’ lounge at Peel Law Association: See,  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.) 2) access the door that lawyers use at the Law Society of Upper Canada (See, Alex Robinson, "Lawyer alleges discrimination by LSUC security guard" July 25, 2016 <http://www.lawtimesnews.com/201607255550/headline-news/lawyer-alleges-discrimination-by-lsuc-security-guard>,  LSUC responds to discrimination allegation <http://www.lawtimesnews.com/201608225590/letters-to-the-editor/letter-lsuc-responds-to-discrimination-allegation> and Narrative to application to the Human Rights Tribunal was filed on September 07, 2016) or 3) Even access my office where I have 24 hours access? NONE.
This is why in most cases I boil it down to racial profiling because the assumptions that a Big Black man with Dreadlocks has no right to be in certain legal spaces are covert, insidious, and pervasive. The assumptions, everyday racism and micro-aggression, in most cases, are unintentional attitudes and behaviors that are learned in conditioned in people so that they act event without self-awareness.


This then goes back to the reality that Black people, whether in a profession or not face everyday.

Wright testimony was important because it in some way exposes the lack of diversity in the various facets of the legal profession in Nova Scotia and the difficult conversations that are required to make the profession more welcoming and more diverse.

See, Selwyn Pieters bio for subject matter expertise.

Resources


  • R. v. Howe2014 NSSC 354 (CanLII) — 2014-07-30
    Supreme Court of Nova Scotia — Nova Scotia
    sexual assault — sentence — victim — offender — woman
  • 3.
    R. v. Howe2015 NSCA 84 (CanLII) — 2015-09-04
    Nova Scotia Court of Appeal — Nova Scotia
    honest but mistaken belief — jury — stupefying drug — sexual activity — evidence
    cited by 1 document



Nova Scotia (Public Prosecution Service) v. Howe2016 NSSC 207 (CanLII)— 2016-08-09
Supreme Court of Nova Scotia — Nova Scotia
subpoenas — prosecutorial discretion — ripeness — witnesses — evidence




Monday, October 17, 2016

Racial Profiling of Black Toronto Lawyer by Garda World Security: Confronting Assumptions, everyday racism and micro-aggression

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)
Pieters Law Office
Created October 17, 2016
Updated: October 21, 2016

"When they go low, we go high" Michelle Obama

Midnight Shift ended and I had to confront a Security Guard on His Assumptions

Law is not a 9-5 job. At least not for me.  I do not aspire to a 9-5 job. I am good this way.

Last evening though, the Security Guard from Garda World Security treated me as though I was a stranger in the building I am paying substantial rent for 24 hours access: "You are not allowed in the building", he said.

That would only have validity if that was a determination that he could make but it was not so I continued to the elevator pad, press my floor number and activated my access to the floor with my access card that allowed me on to the elevator and to access the suite where my office is located.

 In my many years of working in the glass towers of downtown Toronto's office buildings, once a person has his/her after hours access card or passes, they are allowed. Even if the person does not have his/her access card and their credentials are in the security system, security can grant them access.

So how and why this security guard would approach me in the manner in which he did is questionable and unprofessional.



Assumptions, everyday racism and micro-aggression

What evidence was/is there to justify such an assumption that I have no right to 1) be in the Lawyers’ lounge at Peel Law Association: See,  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.) 2) access the door that lawyers use at the Law Society of Upper Canada (See, Alex Robinson, "Lawyer alleges discrimination by LSUC security guard" July 25, 2016 <http://www.lawtimesnews.com/201607255550/headline-news/lawyer-alleges-discrimination-by-lsuc-security-guard>,  LSUC responds to discrimination allegation <http://www.lawtimesnews.com/201608225590/letters-to-the-editor/letter-lsuc-responds-to-discrimination-allegation> and Narrative to application to the Human Rights Tribunal was filed on September 07, 2016) or 3) Even access my office where I have 24 hours access? NONE.

This is why in most cases I boil it down to racial profiling because the assumptions that a Big Black man with Dreadlocks has no right to be in certain legal spaces are covert, insidious, and pervasive. The assumptions, everyday racism and micro-aggression, in most cases, are unintentional attitudes and behaviors that are learned in conditioned in people so that they act event without self-awareness.

However, the behavior can be more harmful than the racist who unleashed the direct venom by calling me "nigger apettorney Selwyn Pieters", "Nasty beast", "sickle cell diabetic nigger", "fat greasy nigger". Or those people that articulate "The only way it would belong in the building (Osgoode Hall) is if it was there to clean the toilets." We are not going back there, at least not me. But then you know where you stand.

Of course, in each and every case I had either an access card or an identification card to rebut assumptions The assumptions go to who has the inherent right to occupy certain legal spaces and who do not. As I said over and over and over, I interact mostly with Caucasians. They are the people I work with on a daily basis and my experience embarrasses them as these experiences do not form part of their reality or daily existence.

At the end of my shift I made the decision to challenge the security guard from Garda Security. Note that he had no name tag and did not introduce himself to me. Videotaping it was also a way to show the assumptions on which people operate in certain spaces and the irrational way in which the mind work to determine who belong and who do not.

*The security guard has now been fired.

Friday, October 14, 2016

Selwyn A. Pieters, The U.K. Asylum Determination System Is there a need for it in Canada, 26 IMMLR-ART 197. Immigration Law Reports (Articles). 3rd Series. 

"A good refugee determination system is one that demonstrates a willingness to protect victims of severe individual or systematic human rights abuses as provided for in the Geneva Convention and also people in need of protection as provided for in the ECHR, the Immigration and Refugee Protection Act and the various other international treaties and conventions that concern themselves with the protection of human dignity and fundamental human rights." 

Thursday, August 25, 2016

Selwyn Pieters Reply to Robert Lapper on Racism at the Law Society of Upper Canada

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)
Pieters Law Office
Created August 25, 2016
Updated: September 09, 2016
Updated: December 08, 2016


Update: An application to the Human Rights Tribunal was filed on September 07, 2016, the crux of the application is:
On July 05, 2016, I was racially profiled at the Law Society of Upper Canada (“LSUC”), treated differently from other lawyers and denied access to the door that is normally accessible to lawyers and members of the public alike. I believe that I was subjected to racial profiling in the provision of services in contravention of section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).  
I am discriminated and/or harassed with respect to membership in a vocational association because of race (Black), colour (Black), ancestry (African), ethnic origin (African-Canadian), creed (dreadlocks, perceived rastafarian) in contravention of sections 6 and 9 of the Code.
On August 22, 2016, Robert Lapper, Q.C., Chief Executive Officer  of the regulator of lawyers, The Law Society of Upper Canada, published a letter in the Law Times: LSUC responds to discrimination allegation <http://www.lawtimesnews.com/201608225590/letters-to-the-editor/letter-lsuc-responds-to-discrimination-allegation> (Date accessed: August 25, 2016).

The letter sought to refute my allegations that on July 05, 2016, I was racially profiled at the Law Society of Upper Canada, treated differently from other lawyers and denied access to the door that is normally accessible to lawyers and members of the public alike.

Interrogating Racism and the Standard Operating Procedures (SOP):

Robert Lapper wrote: "The Law Society has standard procedures for all non-staff licensees who seek to enter controlled access areas of the building. Access to these parts of the building is gained through the main reception area of the Law Society. The standard procedures call for security staff to ask licensees to show their Law Society identification card. If this card is expired, security staff will check the Law Society’s database of licensees to confirm the licensee’s status. Once security staff have confirmed the licensee’s status, he or she is permitted entry to those areas of the building."

Mr. Lapper continued: "It is true that some individuals are not stopped at the main entrance. Staff of the Law Society are not subject to the standard procedures outlined above and move frequently through the controlled access doors without interacting with security. Staff of the Law Society are issued staff identification cards and security passes, which they use to gain entry to controlled access areas of the building directly."

He then wrote: "We very much regret that Mr. Pieters was upset by his experience with the Law Society on July 5. However, I am satisfied that standard procedures were followed and there was no discrimination. "

What Occurred in Pieters Case?

1) Pieters is a member in Good Standing at the Law Society of Upper Canada;
2) On July 5, 2016, Pieters took his student to the Society;
3) The guard on duty was shown Pieters LSUC Card;
4) The Guard aggressively demanded that the card be removed from the wallet;
5) The Guard invaded Pieters space and grabbed the card out of his hands;
6) The Guard denied Pieters and his student entry through the door;
7) The Guard never checked LSUC Database to see whether or not Pieters was a lawyer in Good Standing;
8) What concerned me more than anything else is the security guard's conduct was not customer service oriented. He treated me, and the student obseved that and related it to the security supervisor as though "you cannot possibly be a lawyer."
9) A video exist that shows the conduct of the Guard, prior to, during and after the interaction with Pieters.

The Student Witness Independent Account:

"We commenced our tour after entering the main doors. There was a group of people (all Caucasian) ahead of us who passed security without any issues and were admitted via a card controlled door into the wider facility. On approaching that same door, we were met by the security guard on duty who was the same individual who had admitted the group that was ahead of us but did not leave his desk which was a few metres away from the door when attending to them. I stepped back as the guard approached and he began engaging with you. The guard’s comments to you suggested that you could not be a lawyer and he demanded to see your LSUC ID card. From my observation at this point the guard had come very close to you and had invaded your personal space. You then reached into your pocket to get the ID and showed it to him through the clear plastic covering. That did not satisfy the guard and he then asked you to remove the ID completely from the wallet. The guard became impatient and then attempted to grab the wallet and ID closer to him for further inspection. You then informed him that this was inappropriate behaviour and that you were a member in good standing with the Society. After giving him the ID, he then informed you that it had expired and that you needed to renew it before you could enter the wider premises. The guard did not offer to show you where to go for the renewal of the ID. You were obviously familiar with the premises so you knew where to go to renew the ID."

A Breakdown of how discrimination at the Law Society of Upper Canada works:

"Esteemed professionals are careful and discrete. They manage discrimination and harassment to avoid detection, or undue scrutiny.  Preventing any perception of discriminatory practice is the basis of their actions not avoiding the practice itself.  If policies have been violated, they simply adjust their practices to remain under the radar."

In “Race Talk and the Conspiracy of Silence: Understanding and Facilitating Difficult Dialogues on Race” New York: Routledge, 2016, page 90, author Derald Wing Sue made these trite observations: “The existence of institutional racism shields the operation of white privilege through what is called Standard Operating Procedures (SOP), which represents the rules, habits, procedures, and structures of organizations that oppress people of colour while favoring Whites. The SOPs may apply equally to all groups but serve to maintain the status quo.”

In effect, these SOPs are used as masks to hide racism or exclusionary impact or effect. However, as recently observed by the Human Rights Tribunal of Ontario in Briggs v. Toronto Police Services Board, 2016 HRTO 966 (CanLII), "If the police officers involved in the applicant’s stop were not acting in accordance with applicable protocols and training materials, this factor could support an inference of discrimination in this case."

My Rejection of the Comments of the CEO that Standard Operation Procedures were followed

The CEO's comments are duplicitious and quite frankly is an insult to my experience and intelligence, as he knows or ought to have known that the LSUC security guard did not follow the Standard Operation Procedures that he says the LSUC has in place. Is this SOP in writing? When was it formulated? I would like to see that SOP if it is a written document.

As I mentioned in my letter to the CEO, I have no issues with the LSUC Guards doing their jobs but they must interact with lawyers and members of the public with tact and diplomacy.

Other Observations:

After the initial Law Times Article was published: Alex Robinson, "Lawyer alleges discrimination by LSUC security guard" July 25, 2016 <http://www.lawtimesnews.com/201607255550/headline-news/lawyer-alleges-discrimination-by-lsuc-security-guard>, some lawyers approached me telling me they have never had a LSUC identification card. One of those lawyers practised law for over 40 years.

Another was quite incredulous that a "lowly security guard" could have denied me access.

Other lawyers stated that they are admitted through the use of various law associations cards.

Conclusion

I wrote in my letter to the CEO that “The LSUC and its staff have to get it right when dealing with Black people. Treating a Black lawyer in good standing as an imposter is not acceptable.”

Progressive racialized and non-racialized members of the LSUC knows that there is not only racism in the legal profession itself but that racism exist at the LSUC. See, for example, 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.

At the LSUC the attacks on Black lawyers is disciplinary with race as the subtext. 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:


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.
Any form of racism, particularly anti-Black racism will continue to fester and continue to pervade the halls of power when those in authority and with the power to prevent it take a bureaucratic approach that our staff were following procedures, when, as we know in this case, a thorough interrogation of the racism and/or circumstances would show that there were no procedures of the sort and if they were such procedures that the CEO says exist were not followed.

If that is the case, one can conclude that the adverse treatment was linked to discrimination based on race and that racism was a factor in the treatment.


Selwyn Pieters, Subject MatterExpertise: Racial profiling, race & ethnicity, anti-black racism (law enforcement, security, education, law, criminal justice system), racial bullying, African-Canadian urban culture and race relations, social  inequality, law enforcement, policing culture in Ontario, Canada; Guyana and Trinidad