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), <>; Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (CanLII), <>; Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), <>, Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), <> and Naraine v. Ford Motor Co. [1996] O.H.R.B.I.D. No. 23 and R. v. Steele, 2015 ONCA 169 (CanLII), <>

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.


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), <>

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