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.
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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.

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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