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)
Prepared for 2013 OBA Constitutional and Human
Rights Law September 10th Dinner Program
Thank you for inviting me to speak. I was asked to
speak on the litigation before the Human Rights Tribunal in Pieters v. Peel Law Assn and Mellissa Firth
2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O) so my remarks are mainly restricted to the
first level decision of the adjudicator, which has subsequently been upheld by
the Court of Appeal for Ontario.
The
Encounter at the Library
That a confrontation of sorts between myself, Mr.
Noble, Mr. Walrond and Ms. Firth happened at the Lounge of the Peel Law
Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008,
is without a doubt.
Myself, Mr. Noble and Mr. Waldron were at the
Brampton Courthouse representing K.F., a Black youth who had filed a racial
profiling complaint with the HRTO and was now before Mr. Justice Blacklock with
an Application to access records to be used in the Human Rights Tribunal
hearing [K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.)]. Also present at the hearing of the Application were Raj Dhir and Monmi
Goswami representing the Ontario Human Rights Commission, Laurie Ann Reesor and
Elizabeth McPhadden representing the Peel Regional Police, and Nicola Simons
representing the Dufferin Peel Catholic District School Board. With the
exception of Kate Sturdy, an OHRC legal Assistant, the participants to the
hearing retreated to the lawyers’ lounge of the Courthouse to await recall by
His Honour.
That myself, Mr. Noble and Mr. Waldron were entitled
to be in the lawyers’ lounge is also without question. Both myself and Mr.
Noble were lawyers at the material time and Mr. Walrond was a student-at-law
whom I employed. Ms. Firth was the law librarian and stated that it was her duty
to police the space and bar access to paralegals and members of the public.
Human rights complaints were filed by Mr. Noble and
I and heard before the Tribunal in 2009, which in terms of processing time was extremely
fast.
At issue before the Tribunal was what precisely
occurred during the incident at the lounge and whether or not it amounted to impermissible
racial profiling.
The
Hearing at the HRTO
At the hearing I was represented by my articling
student, Mary Auxi-Guio. The PLA was represented by Andrew Pinto. Mr. Noble self
represented.
“4 The hearing took place over three days and
involved 12 witnesses including ten who testified that they witnessed the May
16 incident between the applicants and the personal respondent. It is
noteworthy that these ten witnesses (eight were eyewitnesses and two heard
parts of what tran-spired) provided differing versions of the incident.”[1]
The Tribunal very early on considered the core functions of the administrator:
[20] I had before me
the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board
of Directors’ meeting. This one page policy states that the lounge is for
the use of members in good standing of the Law Society of Upper Canada.
Of note, the Policy also specifically states that:
The
Librarian/Administrator retains the discretion, on a daily basis, to permit or
deny access to the Lawyers’ Lounge within the spirit of the policy.
The
Librarian/Administrator retains the discretion, on a daily basis, to permit or
deny access to the Library.[2]
Peel Law Association policy provides that:
LAWYERS: DO NOT BRING CLIENTS OR OTHER
MEMBERS OF THE PUBLIC INTO THE LOUNGE, ROBING ROOMS OR LIBRARY
THIS SPACE IS FOR LAWYERS ONLY
Ms. Firth had the right to deny access to unauthorized persons. Lawyers
and students, however, were authorized to be in that space. The manner in which
Ms. Firth exercised her authority was the critical issue.
The Tribunal set the scene:
12 The lounge was not busy at
the time of the incident with perhaps a total of twenty persons present. The
applicants were seated in an area of the lounge just outside the doors to the
library. Mr. Pieters was in a chair talking on the telephone to his assistant,
Michael Roberts. Mr. Noble and Mr. Waldron were on a sofa perpendicular to
where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters, Mr.
Waldron closest to the library door. The sofa was against a frosted glass
half-wall that divided the kitchenette from the lounge. Ms. Trotter was in the
kitchenette. Mr. Dhir and Ms. Goswami were at a worktable approximately 15 feet
away from the applicants. Ms. McFadden and Ms. Reesor were seated further away
in the lounge.[3]
The Tribunal recognized that this was a difficult incident because the
lawyers had the right to be there and the Librarian had a job to do.
[62] This was clearly an emotional and
dramatic incident and one that quickly escalated into confrontation. It was certainly an emotional experience for
the applicants and the personal respondent, all of whom testified to how they
were surprised, distressed and upset by what they felt occurred. It was a dramatic event for those who
witnessed it, most of whom spoke about the charged and confrontational nature
of what they saw or heard and the resulting confusion when a number of the
witnesses subsequently became involved.[4]
Findings
of Fact and Credibility
On the issue of the initial encounter and Ms. Firth’s demand for identification from myself, Mr. Noble and Mr. Walrond, the Tribunal found that:
- Ms. Firth, without
identifying who she was, first approached Pieters - who was on the
telephone; Pieters verbally identified himself as a lawyer (at paras. 64,
67);
- Ms. Firth in an
aggressive and demanding manner requested to see his identification (at
paras. 77, 84); Pieters showed the identification (at para. 72);
- Pieters also told his
assistant Roberts, to whom he was speaking on the telephone that he was
being racially profiled (at paras. 65, 74);
- Ms. Firth then
attempted to grab Pieters wallet; Pieters told her not to touch his
wallet; (at para. 71)
- Ms. Firth despite the
claim that she was intimidated by Pieters, frozen and considered it rude
to leave him, did move on to check the identification of Noble and
Walrond (at para. 67);
- Mr. Dhir and Ms.
Goswani approached with their identification and she did not look at it (at
para. 50);
- Ms. Reesor also had
her identification ready and Ms. Firth did not look at it;
- Ms. Firth was
demanding and aggressive in her approach (at para. 74);
- The evidence of
Bonnie Racz and Mellissa Firth on the initial interaction were either
vague or at odds with the evidence of the other witnesses on important
points (at paras. 69 -72).
Ms. Firth had an opportunity to look at the identification of the other
unknown persons in the lounge and chose to focus her attention on the three
Black men, Pieters, Noble and Waldron,
precisely because she consciously or unconsciously believe that they
were out of place.
The White non-lawyer female ("agent") in the Robing Room
Ms. Bonnie Racz, a lawyer and Director of the Peel Law Association, went
into the library area shortly after leaving the female robbing room – she had just asked “an attractive caucasian woman
who was very nicely dressed” to leave the robing room. The woman was not a
lawyer, she "said she was someone's agent. She would not say who she was
acting as agent for" and “Ms. Racz explained that the robbing room was off
limit to non-lawyers”.
The Tribunal considered the evidence that:
i.
Ms. Firth’s purpose for leaving the library was to head to the robing
room at the behest of Ms. Racz; and
ii.
that she diverted her attention to myself and my group (at para. 84).
Ms. Firth's aggressive and demanding demeanour
The Tribunal found that Ms. Firth adopted an aggressive and demanding
demeanour in dealing with myself and my party:
iii.
when Ms. Firth first approached me, she actually interrupted my telephone
conversation to demand I identify myself;
iv.
she did not accept my word that I
was a lawyer;
v.
she then demanded my identification, which I promptly produced; and
vi.
she attempted to grab my wallet.
The evidence as cited by the Tribunal in paragraphs 39, 40, 41, 42, 43,
44, 46, 47, 48, 49, and 51 is ample to support the finding that:
[77] ....the manner in which the personal respondent asked her questions
and interacted with the applicants was aggressive and demanding. Mr. Dhir and Ms. Goswami both testified as to
the aggressive and blunt way in which they felt the personal respondent
interacted with the applicants. It is
clear that the applicants found the personal respondent’s questions and the way
in which they were asked abrupt and offensive.
I accept the applicants’ evidence that they found their overall
experience with the personal respondent to be demeaning.[5]
The
Evidence of Laurie Reesor – The “Announcement”
Partway through the hearing I was frightened by the evidence of one of
my colleagues, which totally contradicted my memory of the events:
[61] Ms. Reesor
testified that she had not been in the lounge before. She
recalls two persons coming into the lounge and one of them announcing to the
room (not to any particular group) that they would be checking
identification. She believed that it
was these two persons who then approached the applicants with the one who had
made the announcement interacting with Mr. Pieters (emphasis added).[6]
The Tribunal disregarded this testimony. In addressing Ms. Reesor's evidence, the
Tribunal found that:
[79] I find that the personal respondent did not
intend to generally check identifications in the room. It is true Ms. Reesor testified that she
recalled a general announcement to that effect when the personal respondent and
Ms. Racz first came into the lounge, but I heard no other evidence to support
this contention. The personal respondent did not state that
this was her intention (emphasis
added).[7]
Findings of Racial Profiling based on reasonable inferences from the
evidence
The Tribunal considered the explanation offered by Ms. Firth and found
Ms. Firth failed to provide a credible non-discriminatory reason for stopping
and questioning myself, Mr. Noble and Mr. Waldron. It also found her testimony
on a significant point to be lacking in credibility, a finding it was entitled
to make:
[86] The respondents
contended that the personal applicant spoke directly to Mr. Noble and Mr.
Waldron and not Mr. Pieters because he was on the telephone and that the
personal respondent recognized him from previous visits to the lounge. The respondents submitted that by seeking to
confirm the identity of only two of the three Black men in the lounge, the
personal respondent could not have been racially stereotyping or profiling
Black men by assuming that Black men present in the lounge were not
lawyers. This argument fails. I find, as
noted earlier, that the personal respondent was questioning all three men as to
their right to be in the lounge. That
the personal respondent disputed the fact that she challenged all three men as
to their right to be in the lounge is a significant issue for me. It undermines the general credibility of her
explanations for why she chose to question the applicants.
The Tribunal also linked the robing room incident with the stop and
carding at the door and found that:
88 … the respondents argued
that the personal respondent routinely questioned unknown persons in the lounge
and that such questioning fell within her regular job duties. I accept this to
be true. However, the issue for me is
why, on this particular occasion, the personal respondent stopped at all to
question the applicants. The evidence was that the personal respondent was on
her way with Ms. Racz to speak to a person in the robing room whom Ms. Racz did
not recognize and was concerned enough to come and ask the personal respondent
to confirm her identification. The personal respondent never did provide an
explanation for why she chose to stop under these specific circumstances to
question the applicants and Mr. Waldron. (emphasis added).[8]
The Tribunal was therefore entitled to, as it did, scrutinize the
interaction in question and conclude that:
[92] I have already
found that the personal respondent questioned the applicants in an aggressive
and challenging manner. I further note
that she interrupted Mr. Pieters while he was on the telephone and, it appears,
did not introduce herself to the applicants and Mr. Waldron. From all the evidence, including the personal
respondent’s testimony of how she generally carried out this function, I
conclude that the way in which the personal respondent approached the
applicants and 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, and I am prepared to draw the
inference that the way in which she interacted with the applicants was tainted
by consideration of their race and colour.
That said, I accept that the personal respondent’s contention that her
regular practice is to ask for identification from individuals even when they
are identified by someone else as admissible and so her repeated requests for
identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a
greater degree of scrutiny.[9]
In
the Tribunal’s view, which had been my view and the view of the other Applicant
all along, this was a clear case of racial profiling and discrimination.
The Award
The Tribunal awarded myself and Mr. Noble $2,000.00
respectively “for the
injury to their dignity, feelings and self-respect arising out of the
infringement of the Code”.[10] It must be noted that
this award was at the very low end of the scale for awards in such cases. The
Tribunal ruled that the discrimination in this case was at the less serious end
of the spectrum due to, among other things, it being a single incident, the
fact that the Applicants were ultimately not denied access to the lounge, and
the fact that the incident did not affect our ability to practice law.[11]
Implications
for the Legal Profession and the Law on Discrimination
Now that the Peel Law Association has determined that it will not seek leave to appeal the Court of Appeal decision which upheld the HRTO’s ruling, the positive findings in this case are significant to lawyers and their conduct in interactions with other lawyers.
The Law Society’s Rules of Professional Conduct governing the conduct of lawyers has both specific and general application. Some of the rules are designed to address specific circumstances while others are designed to have a more general application as not every conceivable situation can be specifically stipulated in the rules. Rule 5.04 however is specific to advocating in a multicultural society.[12] Had the Rules of Professional Conduct been observed in this case, I may not have been standing before you today discussing this matter.
The lawyer also has a duty to society and in the public interest to
respect the dignity and worth of every person and to operate their practice in
a manner that complies with the OntarioHuman Rights Code.[13] This is
important because of the many reports and cases supporting the view that there
is systemic racial discrimination in the legal profession and the justice
system more broadly.[14]
There are also, of course, wider implications for the law on discrimination in Ontario, especially in the wake of the recent Court of Appeal decision. While my colleagues on the panel will speak more about these developments, I will state broadly that it is clear that it is now easier to “call a spade a spade” when it comes to racial discrimination, and more difficult for those who would engage in discrimination and profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour.
Finally, this case speaks to the huge
importance and relevance of the various Human Rights Tribunal regimes across
Canada. Years ago, it would not have been possible for someone like me to air
this grievance in a public forum, unless it was possible to frame it in terms
of a tort. Now, however, incidents of racial discrimination like this one can
be brought out into the open and dealt with. This leads to a more transparent
and inclusive society. In Campbell v.Jones 2002 NSCA 128, Justice Roscoe of the Nova Scotia Court of Appeal
ruled that in situations where there are serious Canadian Charter of Rights and Freedoms and human rights violations
the victim has the right and an obligation "to cry out loud and long
against their transgressors in the public forum and -- in the case of children
and others less capable of articulation of the issues -- to have their advocates
cry out on their behalf." Human Rights Tribunals provide an avenue more
accessible than any other to do just that.
Decisions online
Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII) (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII) (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, (2013), 306 O.A.C. 314, [2013] 116 O.R. (3d) 312 (CanLII) (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204 (Cronk, Juriansz and Pepall JJ.A.)
Press Coverage
Canadian Underwriter, Court rules in favour of RSA and broker after liability client demands payment for defence costs; National Post "Dreadlock discrimination real: black lawyer’s human rights appeal told" November 19, 2012, Toronto Sun "Discrimination case tough to establish", Michele Mandel ,Toronto Sun, November 19, 2012 and Law Times, Lawyer’s racial profiling case argued at appeal court, by Yamri Taddese, December 31, 2012;
********
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). A significant portion of Selwyn's work involves representation of
persons in human rights, civil and criminal litigation matters in the Federal
and Provincial Courts and the Human Rights Tribunal of Ontario.
Selwyn
has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy
v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v.
Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.),
the Federal Court of Appeal in The Honourable Sinclair Stevens v. The
Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and
Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser,
et al., 2011 SCC 20. He represented Correctional Manager Mariann
Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste
v. Ontario Public Service Employees Union, 2012 HRTO 1393 at the HRTO;
Civil Rights lawyer Charles Roach in the Oath case of Roach et al. v.
Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a
constitutional challenge to the oath in the Citizenship Act.
Selwyn
also acted as co-counsel with C. Nigel Hughes for the families of three
deceased persons killed during a civil demonstration in Linden, Guyana, at the
Linden Commission of Inquiry. Selwyn is
the litigant in the recent human rights case of Peel Law Association v.
Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, [2013] O.J. No. 2695.
[1] Pieters v. Peel
Law Assn and Mellissa Firth, 2010 CarswellOnt 9354, 2010 HRTO 2411,
[2010] O.H.R.T.D. No. 239 (H.R.T.O) at para. 4.
[3] Pieters at para. 12.
[4] Pieters at para. 62.
[5] Pieters at para. 77.
[6] Pieters at para. 61.
[7] Pieters at para. 79.
[8] Pieters at para. 88.
[9] Pieters at para. 92.
[10] Pieters at para. 102.
[11] Pieters at paras.
100-101.
[12] 5.04 (1) A lawyer has a special responsibility to respect the
requirements of human rights laws in
force in Ontario and, specifically, to honour the obligation not to
discriminate on the grounds of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex,
sexual orientation, age, record of offences (as defined in the Ontario Human
Rights Code), marital status, family status, or disability with respect to
professional employment of other lawyers, articled students, or any other
person or in professional dealings with other licensees or any other person.
[14] Canadian Bar Association, Racial
Equality in the Canadian Legal Profession, (Ottawa: Canadian Bar
Association, 1998); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability: Report
of the Canadian Bar Association Task Force on Gender Equality in the Legal
Profession (Ottawa: Canadian Bar Association, 1993); R. v. R.D.S. (1997), (1997) 118 C.C.C. (3d) 353.
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