Selwyn Pieters Litigation Year in Review 2019

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 25, 2019

Remembering 2019:  This was an interesting litigation year with highs, lows, speed bumps, pot holes (pun intended) and in-betweens. 

I litigated in at least 10 practice areas, delved into a new area of Securities Litigation and was an Expert in two international law matters originating from Guyana. The truth of the matter is that the cases litigated are mostly test case and fundamentally impacts society. Significantly, some of them were done pro-bono, particularly since Legal Aid or other funding were hard to come by, and some litigants cannot afford the costs of hiring a lawyer and the fees and disbursements associated with challenging the actions or omissions of public authorities particularly the police.

Overall it was a very busy year, with some significant victories. 2020 will mark my 15^th year since I was called to the Ontario Bar.

Constitutional and Public law

Langenfeld v. Toronto Police Services Board et al., 2019 CarswellOnt 14511, 2019 ONCA 716, 309 A.C.W.S. (3d) 506, 437 D.L.R. (4th) 614, 55 Admin. L.R. (6th) 322, 58 C.C.L.T. (4th) 27 (ONCA). This application involves the right of individuals to attend public meetings of the Toronto Police Services Board (“TPSB”), held in the second floor auditorium of Police Headquarters in Toronto, without submitting to a search carried out with neither a warrant nor reasonable and probable grounds. The Ontario Superior Court of Justice declared that the practice of searching visitors to Police Headquarters prior to entry in the absence of a warrant or reasonable and probable grounds, as it applies to individuals wishing to attend public meetings of the TPSB, infringes s. 2(b) of the Charter and is not justified under s. 1 of the Charter because the infringement is not prescribed by law. The Court of Appeal agreed with the Superior Court that a search as a condition of entry to Police Headquarters infringed the s.2 (b) rights of individuals wishing to attend the TPSB meetings. On the s. 1 analysis, it held that the infringement was justified, as it was prescribed by law and was a reasonable limit on the s. 2(b) right. Therefore, it allowed the appeal of the Chief of Police, set aside the application judge’s order, and dismissed Mr. Langenfeld’s application. An application for leave to appeal was filed in the Supreme Court of Canada. As an aside, the reach of the Langenfeld decsions was recently explained in Canadian Broadcasting Corporation v. Ferrier 2019 ONCA 1025

I was co-counsel for Rocco Achampong in Toronto (City) v. Ontario (Attorney General) (C65861) where Justice Edward Belobaba of Ontario Superior Court of Justice overturned Bill 5, Better Local Government Act that dramatically changed the composition of City Counsel mid-way through the 2018 municipal elections. See, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 stay granted Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761. The appeal was heard on the merit by a five member panel of the Court of Appeal and the Court in a majority decision overturned the decision of the Superior Court and restored the status quo in favor of cutting City Council. See,Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732. Mr. Achampong did not participate in the appeal. The City of Toronto has applied for leave to appeal to the Supreme Court. It is likely that we will intervene if leave is granted.

I provided an expert affidavit in Reid v. Speaker  Charrandass and AG which was cited by the Chief Justice of Guyana in her decision, that was upheld by the Caribbean Court of Justice in CharrandasPersaud v Compton Herbert Reid, Dr Barton Scotland, The Attorney General,Bharrat Jagdeo, Joseph Harmon & Guyana Elections Commission [2019] CCJ 10 (AJ). See also, High Court asked to quash no-confidence motion; says Charrandas Persaud was Canadian since 1998 - Demerara Waves Online News Guyana, January 04, 2019

Education Law/ Civil Litigation

Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 82, 2019 CarswellOnt 1562 (ONCA) cost order Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 185, 2019 CarswellOnt 3247 (ONCA) leave to appeal denied University of Western Ontario Board of Governors v. Simon Lam, 2019 CanLII 64826 (SCC). In this case the Court of Appeal determined that a University Student can sue for a breach of contract. The Court looked at what was signed when the student agreed to attend that university, which would contain the terms of the contract arguably and the graduate student handbook, and determined that there was an arguable case to litigate. This matter now proceeds to a trial. Another of my colleagues is handling the trial.

W.H. v. Toronto School of Theology The Student sought to appeal the termination of his registration in the Doctor of Theology Program (Program). Minutes of Settlement waived Student’s appeal rights. The Chair asked for written submissions from the parties as to whether the Academic Appeals Committee (AAC) had jurisdiction to hear the appeal. University of Toronto Academic Appeal Tribunal dismissed case holding that it has no jurisdiction.

Police Law (hybrid Human Rights)

Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180, 2019 CarswellOnt 65 (S.C.J.) stay of judgement pending appeal Stanley v. Office of the Independent Police Review Director 2019 CarswellOnt 13600 (ONCA). I have completed the appeal on the merits of Stanley v. OIPRD at the Ontario Court of Appeal. The decision is reserved. Essentially the Divisional Court rejected the proposition that OIPRD and a police service can have backroom conversations on substantive matters without the complainant being notified and held that “[28] As is emphasized by the name of the decision-maker, the Director of the Office of Independent Police Review was obliged to conduct an independent investigation and reach an independent decision. This independence is central to the OIPRD’s role in providing a public complaints system against police officers in Ontario: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824 (CanLII) (Div. Ct.), at para. 49. Here, in circumstances which belie the independence of the OIPRD, the Director had undisclosed discussions with the TPS about changing his decision and, ultimately, he did change his decision.  These undisclosed communications give rise, at least, to an appearance of unfairness and compromise the independence of the Director.”

Aiken v. Ottawa Police Services Board 2019 CarswellOnt 9212, 2019 HRTO 934 (HRTO). In this case the parties sought a determination of the “data collection question” of the public interest remedy contained in the Consent and Agreement dated July 23, 2010.  The agreement was reached between the Parties and the Human Rights Commission (the “Commission”) by way of a settlement of the underlying complaint. The Commission is no longer a party to the proceedings.  The Applicant, Chad Aiken, sought an interpretation that reflects his right (and that of other persons in Ottawa) to equal treatment with respect to policing by the Ottawa Police Services (the “OPS”) without discrimination based on race.  In seeking this interpretation, the Applicant maintains its position that the data collection should be sufficiently encompassing to determine whether there is an overrepresentation of Afro-Canadians in police scrutiny. The Tribunal opined on the “critical secondary work” that is needed when data reveals a problem. It urged that “data collection is just a first step, albeit a significant one, in addressing racial disproportionalities arising from policing practices.” The HRTO strongly urged the police service to take the next steps in the process – “to identify to the best of its ability what is causing or contributing to these disparities through conducting further research, and then based on the research findings, to develop and implement specific strategies to reduce and hopefully eliminate these disparities.” paras 130, 132. The Tribunal felt that Ottawa Police went way beyond what was called for in the 2012 Memorandum of Settlement and agreement.

I currently sit on four technical tables convened by the Ministry of the Solicitor General to create standards for the implementation of the Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c. 1.

I also attended community meetings in Regent Park on collecting statistics and the roll out of the new neighborhood policing model. 

Securities Law / Quasi Criminal

R. v. W. W. 2019 CarswellOnt 18822 (O.C.J.) - On January 21, 2019, Mr. W. pleaded guilty to one count of trading in securities while prohibited contrary to s. 122(1)(c) of the Ontario Securities Act. The OSC Prosecutors were seeking 12 months as a joint position, 15 to 16 months as an open position, 2 years less a day on conviction after trial, and two years probation, in any event, on terms that would prohibit Mr. W. from working in securities or any related businesses. Justice Malcolm McLeod of the Ontario Court of Justice was not convinced that a higher sentence was required as there was no fraud involved, it was not a boiler room scam and neither was there any investor losses. Reviewing existing caselaw, Justice McLeod found that harsher sentences were usually reserved for offenders facing similar charges in cases involving boiler room scams and significant investor losses. The court made it clear that no such factors were present in Mr. Weber’s case and such absence of ordinarily aggravating factors cannot be used to drive up the sentence. Taking guidance from existing precedents, Justice McLeod refused to accept the OSC’s arguments for a higher sentence in the range of 15-18 months. Mr. W. was sentenced to a 90-days intermittent sentence to be served on weekends and two years probation. OSC has appealed the sentence and a hearing of the appeal has been set for May 25, 2020.

R. v. W.W. 2019 CarswellOnt 14097 (O.C.J.) Mr. W. brought an application to strike his guilty plea on the basis that it was not voluntary, informed and unequivocal. The motion to strike the guilty plea was dismissed. The matter thereafter proceeded to the sentencing phase.

Criminal Law

R. v. M.B. 2019 CarswellOnt 10207 (O.C.J.). M.B. was a residential support worker employed at children’s residence that housed individuals with developmental, emotional, psychiatric and behavioural challenges. She was alleged to have assaulted 11-year old complainant on six occasions.  A third-party record application was filed. Records were produced for review by judge, who concluded that some of records were likely relevant. Copies of were produced. Record was not to be used in any other proceeding except with authorization of court order. M.B. matter proceeded to trial and she was acquitted of all charges.

R. v. B.L. (O.C.J.). Mr. L. was charged with six counts of assault, one count of assault with a weapon and one count of utter threat to cause death. He pled guilty to two counts of assault and was given a conditional discharge with probation. The Crown sought a DNA Order for this secondary designated offence. Submissions were made that the state’s interest in obtaining the offender’s DNA profile is premised on the serious nature of both primary and secondary designated offences making the order one that will advance the state’s objectives of:[1]

a)     deterring potential repeat offenders (i.e. specific deterrence);

b)     promoting the safety of the community;

c)     detecting/identifying/prosecuting the offence upon re-offending;

d)     assisting in the solving of "cold" crimes;

e)     streamline investigations; and

f)      protecting the innocent by eliminating suspects and exonerating the wrongfully convicted.

Mr. Justice Stephen Brown accepted and adopted my written submissions: "I have read Mr. Pieters' very thorough written submissions on this matter and they are set out in paragraph 28 to 39 on his written submissions which I am going to file…. And I adopt them in their entirety.". The Crown’s request for an Order to collect Mr. B.L. DNA was denied.

Human Rights Law

Khan v. Ontario (Community Safety and Correctional Services) 2019 HRTO 357, 2019 CarswellOnt 2769 (HRTO). In this case, the applicant filed an Application alleging discrimination because of race, colour, ancestry, ethnic origin, disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, among other things the applicant alleges that the respondents have discriminated and reprised against her in how hours at the workplace have been scheduled.   In addition to filing this Application, the applicant filed a grievance with her union regarding the way in which hours are scheduled. The grievance alleges that there is favouritism in the awarding of overtime hours. She seeks “full redress”. The Tribunal deferred the matter. The applicant subsequently withdrew her grievances and the matter is proceeding through the HRTO processes.

2015-20752-I; 2015-20753-I; 2015-20754-I Stanley v. Toronto Police Services Board.  The applicant filed three Applications, one on behalf of each of her three sons (the “claimants”). In the Applications, she alleged that the respondents discriminated against the claimants because of race, colour, ancestry, place of origin, ethnic origin and age contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The Application arose out of a raid of the applicant’s home carried out by Toronto Police officers in April 2014. The Applicant alleged that the officers’ conduct was fuelled by stereotypical assumptions about young black males and their propensity to commit criminal offences and to act violently. In addition to filing the Applications, the applicant filed a complaint to the OIPRD alleging misconduct on the part of the police officers involved in the raid. See, above section on Police law. This Human Rights matter came before the Tribunal in 2019 and has now been completed.

HRTO File 2019-37512-I - S.A. by litigation guardian A. A. v TPSB, et al. This case revolves around the encounter between a group of racialized youths in Regent Park and Toronto Police Officers who followed them over several blocks and then pretextually ticketed them at a traffic light (crossing on a red light) to collect intelligence in 51 Division. A human Rights complaint was filed in June 2019 This case will be a test on how far the Human Rights Tribunal is willing to go to make orders dealing with Walking Whilst Black situations. A youtube video of part of the encounter is available.

HRTO File 2018-33829-I JC v The Regional Municipality of Peel Police Services Board et al involves a complaint filed by a Black youth concerning his experience with Peel Police. On August 25, 2017, in Brampton, Ontario, J.C. was arrested by Peel Police and criminally charged for assaulting a police officer.  Those criminal charges were later withdrawn.  At the time of his arrest, J.C. was a young person under the Youth Criminal Justice Act, S.C. 2002, C.1 (“YCJA”).  He subsequently commenced an application (“Human Rights Application”) before the Human Rights Tribunal of Ontario (“HRTO”) alleging that the Peel Regional Police Services Board, Jennifer Evans, David Oxley, Jarrett Curtis, Alexander Scott-Krawczyk and Gary Mackin (collectively, “Peel Police”) discriminated against J.C. on numerous grounds including race.  A Judge of the Ontario Court of Justice recently granted an Order with respect to the use the parties can make of the file in the criminal proceedings. The matter is likely to be heavily litigated in 2020.

Harrower v. Ontario 2019 CarswellOnt 14680 (HRTO) – The applicant suffers from Arthrogryposis Multiplex Congenita (AMC), a congenital joint contracture condition, as well as several other conditions including Chronic Obstructive Pulmonary Disorder (COPD) and Celiac Disease. In addition to his disabilities and illnesses, of which he needs immediate and urgent relief of his symptoms, Ken has limited funds making the OCS system unreasonable and flawed. As a result of his COPD condition, Ken is unable to smoke cannabis and must either eat cannabis in edible form or eat raw cannabis itself. Given his disabilities, he is unable to work full-time, making him reliant on the Ontario Disability Support Program where he receives very limited funds that do not adequately cover his day-to-day expenses. Ken has a prescription for medical cannabis under Access to Cannabis for Medical Purposes Regulation. Ken filed a Human Rights challenge against The Attorney General of Ontario, The Office of the Premier of Ontario and The Toronto Police Service citing that the current cannabis retail system launched by the Government of Ontario –  the Ontario Cannabis Store (OCS) – is flawed and discriminatory against people with disabilities and limited financial means.  Tribunal directed combined summary/preliminary hearing.  Tribunal would determine whether complaint had reasonable prospect of succeeding. Parties could make submissions regarding whether complaint should be dismissed on basis medical cannabis was unconnected to jurisdiction of Ontario.

2017-28096-I Walkes v. Reids Heritage Homes the Tribunal heard evidence on whether an expert affidavit from J David Hulchanski, PhD will be accepted into evidence and the expert qualified to provide evidence in this housing discrimination case. Dr. Hulchanski posited that “Given that the Black population of the region Fergus is part of is 526,000 (5.8% of the GGH, Table 1) researchers are correct to wonder what are the odds of an exceptionally small Black population of Fergus occurring and maintaining itself ‘naturally,’ and for so long (as of 2016), given the extensive ethnocultural diversity of the Toronto region, and much of Ontario and Canada? How is it that Fergus with 20,400 people, 8,150 households, in a county that has 3,300 Black residents, has a Black population of 100? These facts, given that they are from 2016, would alert most researchers to consider residential discrimination, in the form of racial steering and racial exclusion, as part of the explanation.” The decision in respect to this discrete issue is reserved.

In the international law arena, I was engaged as a local expert for the World Bank Group’s Women, Business and the Law project in their Violence against Women survey for Guyana. My contribution was reported in the Law Times, Canadian lawyer helps with World Bank project on women and the law, October 21, 2019. 

Licencing / Professional Regulation

11724 v. Director, Child, Youth and Family Services Act 2019 CarswellOnt 2389, 2019 CanLII 29112 (ON LAT). The appellant operated a children’s residence in Ottawa, Ontario. It appealed the respondent’s Proposal to Revoke a Licence (the Proposal) pursuant to s. 236(1) and s. 264(2) of the Child, Youth and Family Services Act, 2017. This decision dealt with a request to seal part of the hearing and its records. The Tribunal considered the openness principle as set out in Toronto Star v. AG Ontario, 2018 ONSC 2586 (ONSC). The appellants voluntarily surrendered their licence. Two days of evidence was heard in Ottawa.

Inquests

Ekamba, Re 2019 CarswellOnt 9640. Mr. Ekamba was fatally shot by Peel Regional Police officers who were responding to a complaint. During the incident, a stray police bullet struck Ms. Susan Zreik, who had not been involved and was in her apartment. Ms. Zreik was transported to hospital, underwent surgery for the bullet wound, and survived the injury. Mr. Ekamba’s death was investigated by the Special Investigations Unit. At the conclusion of its investigation, the SIU did not lay criminal charges against the involved officers. One of the main issues in the inquest is the intersection of race and mental health and what role it had in this case. The Inquest has been scheduled for three weeks commencing May 11, 2020. I will be counsel for Black Action Defence Committee.

Cannabis Law

This was a busy year litigating cannabis cases on many fronts. The advocacy was in the Courts and on the streets. Toronto Police Services conducted major operations resulting in the arrest and prosecution of hundreds of young bud tenders.

Toronto Police Service Drug Squad launched Project Buffet in which charges were laid of conspire to commit an indictable offence: to wit, distribution of cannabis, contrary to subsection 10(1) of the Cannabis Act, thereby committing an offence contrary to subsection 465(1)(c) of the Criminal Code and Possession of property obtained by crime: to wit, currency derived from drug trafficking, contrary to section 354(1) of the Criminal Code against numerous persons. On some days I was running bail hearing for 15 persons held for show cause hearings. These matters are making their way through the Courts.

Sale or distribution by non-authorized cannabis retailer or permitted by landlord (ss.6, 7, 13 and 23 of the CCA). For charges od sale of cannabis under s. 6 of the CCA, Ontario Attorney General disposed of over 100 cases with the use of fines of $500.00 and stays of some of the charges. The City of Toronto prosecution asked for $1000.00 and one-year probation, for the budtenders.

Concrete blocks were used to shutter dispensaries. In one instance which prompted a hasty change in the law, I forced the City of Toronto By-law enforcement to re-open a location in which a tenant was locked out of his unit.

The law was amended to remove the provision where a building remained open if residential tenants resided on the property. We litigated the change of the legislation in Brodie v. Attorney General of Ontario, 2019 ONSC 5735. Unfortunately, the application judge did not allow interim access to the premises pending the determination of the constitutional issues.

Law enforcement inclusive of the police engaged in aggressive enforcement in relation to cannabis under the governing federal and provincial statutes, namely, the Criminal Code, Cannabis Act and the Cannabis Control Act, 2017 (CCA) which came into force on October 17, 2018 in Ontario.

The unlicensed cannabis market has and continue to meet a demand unmet by the current regulatory regime. In this regard, there because intense enforcement action by the City of Toronto and Toronto Police to shut down the unlicensed.

The Cannabis Retail Store Allocation Lottery became a farce and has been the subject of litigation. 104 Harbord Street, the location of a series of raids, actually won one of the spots in the lottery.

The Province recently announced that the laws will be amended to open the markets. In the meantime, hundreds of criminal matters and CCA matters are clogging up the Court’s dockets and wasting precious judicial, public and private resources because of a series of costly missteps on the part of the government and regulators.

I have won two different awards in 2019 for my work on law reform and advocacy in this area.

Cases will be litigated in 2020 on the Constitutional, human rights, criminal/quasi criminal and administrative law front on the cannabis files. It will be interesting to see how the judiciary wrestle with these matters.

---

[1] R. v. F.(P.R.), 2001 CarswellOnt 4566 (C.A.),  at paras 17-18.

Contemptuous Immigration and Refugee Board of 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 October 31, 2019

The Law Society Tribunal (Ontario) was forced to take the unusual step of stating a case of contempt against the non-compliant Federal Immigration and Refugee Board of Canada (IRB) to the Ontario's Divisional Court. See, Law Society of Ontario v. Odeleye, 2019 ONLSTH 135 <http://canlii.ca/t/j30nw>

The war between the two Tribunals centers around an order for the IRB to produce relevant file evidence to the Law Society for vetting and redaction so that it can determine what is to be disclosed to the parties to a misconduct proceedings. Law Society of Ontario v. Odeleye, 2019 ONLSTH 42 (CanLII), <http://canlii.ca/t/hz48z>

That process is governed by the Common Law process set out by the Supreme Court of Canada in R. v. O’Connor (1995), [1996] 2 W.W.R. 153, [1995] 4 S.C.R. 411 , 130 D.L.R. (4th) 235 (S.C.C.). If the Tribunal is satisfied that the records are likely relevant, the Tribunal should decide based on the inspection of the records, whether, and to what extent the records should be produced.

Factors to consider in determining whether to order production include the following:

a) The extent to which the record is necessary for the accused to make full answer and defence;

b) The probative value of the record in question;

c) The nature and extent of the reasonable expectation of privacy vested in that record;

d) Whether production of the record would be premised upon any discriminatory belief or bias, and,

e) The potential prejudice to the complainant’s dignity, privacy or security of the person.

The Law Society Tribunal ultimately  agreed with the Lawyer "that the IRB should produce to us complete copies of the records the IRB has already produced in part."

The IRB refused to cooperate and comply with the Tribunal's order and did not sought judicial review of the decision. It then remained silent in the face of the Tribunal's order:

"The tenor of Ms. Jennifer Harnum’s submissions and the animus that the IRB has shown for our adjudicative processes and procedures are concerning.... The IRB’s contempt for our process is surprising, coming as it does from a federal administrative tribunal that has the same or similar obligations of procedural fairness as we have. The IRB’s conduct has been as baffling to us as it has been frustrating" wrote Law Society Adjudicator Thomas G. Conway.

'In our view, the IRB’s breach of our order will have a serious deleterious effect on the fairness of the adjudication of this application if the breach is not remedied."

Adjudicator Conway concluded " For the reasons stated, we have concluded on the facts of this case that we should exercise our discretion under s. 13(1) of the SPPA by asking the Divisional Court to inquire into whether the IRB is in contempt of our orders for production of records."

I agree with the steps taken by the Law Society Tribunal in this case. Its orders must be complied with and it is remarkable and significant that a Federal Tribunal sought to ignore or otherwise not comply with the orders to produce relevant documents required to ensure that the public interest is protected. After all the Tribunal has to determine in this case whether or not the lawyer misconducted himself in three refugee proceedings. It would be an injustice to the parties if relevant evidence held by a third party is not produced. 

Doug Ford will provide enhanced funding for TAVIS

Ontario Progressive Conservative Leader Doug Ford's speech on policing: if he becomes Premier of Ontario in June 2018 he will pump more money into The Toronto Anti-Violence Intervention Strategy (TAVIS). Tavis was a unit that collected personal information on mostly Black and Brown males. It was feared and hated for criminalizing a community based on racial stereotypes.

International Day for the Elimination of Racial Discrimination 2018

International Day for the Elimination of Racial Discrimination: Racial Minorities, particularly Blacks, have little to nothing to cheer about or celebrate.

Racial Profiling is rampant. We are still faces at the bottom of the well.

In Canada and the United States, racist rallies that were a thing of the past has publicly emerged and politics is moving to the far right.

Black kids are still profiled in school as requiring special education or having some form of exceptionality.

Black kids and their parents are increasingly stressed by Children Aid Societies and Black kids are more likely to be taken into care, sometimes for the least infractions or allegations.

Prisons are overpopulated with Black men who should be in Universities. The criminal justice system remains systemically racist.

Black men are in distress numbers are disproportionately arrested, charged, assaulted, seriously injured or killed by police in the United States, Ontario, Canada, Guyana, the United Kingdom,  and Trinidad. Extra-judicial killing by state agents that are troubling but justice for the victims remain illusory.

Whether its dressed as implicit bias, implicit racism, systemic racism, institutionalized racism or personal racism: it is racism.

Our justice system participants still don't get it on what is racial profiling.

Consumer racial profiling remains prevalent.

Black people are excluded in large numbers from corporate Canada's boardrooms and large law firms. One can still count the numbers because they are so low.

Discrimination in employment, whether it is in the public service or private sector remains the second highest grounds for applications under the Human Rights Code.

Access to justice remains illusory. On March 21, 2000, I wrote:

For those of us who are true, committed anti-racist, we must continue to fight against all of the evils of racism which evident within our society. We are not the first to fight this battle. We do not want the next generation to have to fight this battle again.
March 21 is a time for us to re-dedicate and re-commit ourselves to fight any and all social injustices that isn't beneficial to the society in which we were brought up [and in which some of us has adopted as our home].
Our continued fight has reinforced the meaning of moral courage, humility and integrity. We hope that the Government of Canada, the Government of Ontario and the Ontario Human Rights Commission can learn the meaning of moral courage, humility and integrity from us.

The truth hurts but it must be told.

While I remain hopeful. I have little to celebrate in 2018.

March 21, 2018
Selwyn A. Pieters
Barrister, Solicitor & Notary Public
of the Bars of Guyana, Trinidad and Ontario.

Racism targets York University Osgoode Hall Law School

February 22, 2001
Courtesy of the Toronto Star

Racism targets York law school
Black students look for justice after hate letters
Nicholas Keung
STAFF REPORTER
Toronto police are investigating three incidents targeting black law students at York University in the past few weeks.
Some time between Feb. 8 and 10, a photo on the Black Law Students Association's bulletin board in the basement of York's Osgoode Hall Law School was defaced. The eye of one of the pictured women was poked with a pin.
Last Thursday and Monday, two black female law students received hate letters on campus with newspaper clippings attached about crimes involving people of colour and a message that said, ``It disgusts me to see you at Osgoode.''
Two hate crime investigators met with about 40 of the students - along with associate dean Shelley Gavigan and campus security officials - in a closed meeting yesterday to discuss the issues.
``This is a cowardly, despicable act,'' said Sue-Lynn Noel, president of the black students group and one of the women who received the letters.
``People are worried. We look around in our classes and the person sitting next to us could be the one who's responsible for it.''
Law student Selwyn Pieters agreed. ``It has certainly created a hostile and poisoned learning environment for me as well as others.''
Detective Constable Samuel Samm refused to reveal the evidence but said he believed the incidents were related and might have been committed by the same individual. No suspect has been identified.
``The letters were all hate propaganda, trying to demean and degrade the (black) community. Hate crime incidents against black people tend to heat up during the Black History Month,'' he said.
Police are trying to track down the source of the letters through postmarks and fingerprints on the two white business envelopes.
``We regret that these incidents happened,'' Gavigan said.
``We are a law school that has the most diverse student body. Diversity is our strength and these students are part of our excellence.''

Le petit Fils caché du Président de la République Cameroun

Closing arguments in Commission of Inquiry re plot to assassinate Guyana President David Granger

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)
Posted on August  21, 2017
Updated November 06, 2017

The Commission of Inquiry to inquire into the persons, places, time, circumstances and events by and through which allegations and reports came to be made of an intention or a plan to assassinate the President of the Co-operative Republic of Guyana has completed it hearing and the Report prepared by Paul E. Slowe was presented to the President of Guyana and made public.

Terms of Reference, Paul Slowe COI

The Commission of Inquiry had 12 sittings and concluded its public hearings on Friday August 18, 2017

Paul Slowe, Sole Commissioner
James A. Bond, was Commission Counsel
Ian N. Chang, S.C. and Brandan Glasford represented the Guyana Police Force
Glenn Hanoman represented Seelall Persaud, D.S.M.
Selwyn Pieters represented Travis Chase
Christopher Ram represented Imran Khan

Commission of Inquiry - Oral and Written Submissions

Written Argument Prepared by Selwyn Pieters on behalf of HGP Nightly News TV. Journalist Travis Chase

Written Argument of Ian N. Chang, S.C. Counsel for the Guyana Police Force submissions at the Paul Slowe COI

Written Reply Submission to Guyana Police Counsel Ian N. Chang Prepared by Selwyn Pieters on behalf of HGP Nightly News TV Journalist Travis Chase

McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 242 A.C.W.S. (3d) 772, 376 D.L.R. (4th) 258 (ONCA)

R. v. Peter Kemble (1990) 1 WLR 1111, [1990] 3 All E.R. 116 (H.L.)

R. v. Nasogaluak, [2010] 1 SCR 206, 2010 SCC 6, 315 DLR (4th) 193; 19 Alta LR (5th) 1; 474 AR 88; 251 CCC (3d) 293; 72 CR (6th) 1; 398 NR 107; AZ-50609170; [2010] CarswellAlta 268; EYB 2010-169818; JE 2010-403; [2010] SCJ No 6 (QL)

R. v. Neil, [2002] 3 SCR 631, 2002 SCC 70, 218 DLR (4th) 671; [2003] 2 WWR 591; 317 AR 73; 6 Alta LR (4th) 1; 168 CCC (3d) 321; 6 CR (6th) 1; 294 NR 201; [2002] CarswellAlta 1301; JE 2002-2002; [2002] SCJ No 72 (QL); 284 WAC 73; 55 WCB (2d) 36

EVIDENCE

David Ramnarine Evidence

Seelall Persaud Evidence

Wendell Blanhum Evidence

Mitchell Caesar Evidence

Andriff Gillard Evidence


Resources / Media

COI into alleged assassination plot… Lawyers argue over powers to grant bail, credibility of report, as inquiry concludes Kaieteur News August 19, 2017

Granger assassination plot inquiry: Lawyers differ over Police Commissioner Persaud’s involvement while on leave Demerara Waves August 18, 2017

CoI winds up …Lawyer rips police handling of assassination plot
Guyana Chronicle, August 19, 2017

CoI Chairman shoots down Blanhum's request to challenge Ramnarine News Room Guyana August 15, 2017

Lawyers clash over bail, Top Cop 'interference' | Guyana Times August 19, 2017

Bail was justified - Guyana Chronicle August 01, 2017

Businessman denies offering GYD$ millions to kill President Granger Demerara Waves August 1, 2017

Assassination plot : Motion to remove Chang as police attorney fails Guyana Chronicle, August 1, 2017

Assassination plot: TV news anchor says cops covering up matter  Guyana Chronicle, July 28, 2017

Cross-examination of Seelall Persaud, the Commissioner of the Guyana Police Force, on note-taking

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 3, 2017

The Commission of Inquiry comprising Mr. Paul Slowe, DSM was issued on the 11th day of July, 2017, to-
1. inquire into the persons, places, time, circumstances and events by and through which allegations and reports came to be made of an intention or a plan to assassinate the President of the Co-operative Republic of Guyana;
2. investigate and review the full range of the Guyana Police Force’s actions and responses to the reports and the extent to which such actions were conducted or executed with due diligence;
3. determine whether any person and, in particular, officers of the Guyana Police Force had information before and after reports were made of the plan to assassinate the President and whether any such officers communicated that information to a superior authority;
4. record and report on what official action was taken on the basis of the information received and whether there was due diligence by the officers of the Guyana Police Force in the investigation of the plan to assassinate the President;
5. review all actions taken by the Guyana Police Force and examine whether there was evidence failure, neglect or omission to thoroughly and properly investigate the intention or plan to assassinate the President and determine whether such failure or omission was intentional;
6. determine the blameworthiness for failure or neglect of officers or persons involved in the investigation and recommend action to be taken against persons found to be blameworthy;
7. recommend steps that can be taken in order to prevent the recurrence of such incident and can be deemed appropriate by the Commissioner; and 
8. identify systemic issues, if any, in the Guyana Police Force’s competence to investigate matters of this nature.

This is part of my Cross-examination of Seelall Persaud, the Commissioner of the Guyana Police Force, on note-taking and record keeping. Read and form your own opinion:

Mr. Pieters: I am Selwyn Pieters I represent the interest of a young reporter Mr. Travis Chase who is also in the Courtroom and I have some questions for you.
Mr. Persaud: Sure.
Mr. Pieters: Now Mr. Commissioner I understand that you were, sworn in as a Police Officer on October 15 1984.
Mr. Persaud: That is correct.
Mr. Pieters: And you are an internationally trained officer as well in terms of experience and education?
Mr. Persaud: That is correct.
Mr. Pieters: And that you went to Harvard University?
Mr. Persaud: That is correct.
Mr. Pieters: What did you do at Harvard University?
Mr. Persaud: A course executive education in National and International Security.
Mr. Pieters: And have you had training as well in other police organisations?
Mr. Persaud:Yes,  I did the FBI National Academy  at the FBI Academy in Virginia USA, and I did Senior Investigating in Officers Course by the Scottish Police I did several drug investigation course by many conducted by many countries around the world
.......
Mr. Pieters: When did you become aware that Mr. Chase recorded an interview with Mr. Gillard?
Mr. Persaud: I heard about an interview being aired sometime maybe shortly after he
…
Mr. Pieters: When was that?
Mr. Persaud: I can't recall.
Mr. Pieters: Who advised you?
Mr. Persaud: I can't recall either.
....
Mr. Pieters: Yes, I appreciate that, but let me ask you this Mr. Commissioner do you have a pocket book?
Mr. Persaud: No.
Mr. Pieters: How do you record entries of issues that are brought to your attention by Officers?
Mr. Persaud: Its filtered if there is a need to record I do record.
....
Mr. Pieters: Right, well who records, if you don't take a contemporaneous recording which is what your job is as a policeman, you are a policeman regardless if you are a Commissioner or Constable, right?
Mr. Persaud: Yes.
Mr. Pieters: And you are supposed to take contemporaneous notes, aren't you?
Mr. Persaud: On matters that are investigating on matters of interest, yes.
Mr. Pieters: And matters that are brought to your attention in your office as a police officer isn't that the case?
Mr. Persaud: No it's not the case.
.....
Mr. Pieters: Did you take any notes in respect to these matters touching in the assassination plot against the President of the Cooperative Republic of Guyana?
Mr. Persaud: No I didn't.
Mr. Pieters: Why didn't you take notes?
Mr. Persaud: It was not necessary.
Mr. Pieters: I am going to suggest to you that it was.
Mr. Persaud: I am going to continue to say that it was not.
Mr. Pieters: I am going to suggest to you that it was neglect of duty for you not to take notes of an important issues such as this.
Mr. Persaud: I will totally deny that.
Mr. Pieters: Would you said that you know the date when you were advised that Mr. Chase did an interview with Gillard?
Mr. Persaud: No, it was of no interest to me.
Mr. Pieters: It was of no interest to you and we gone get to that.
Mr. Persaud: Yes
...
Mr. Pieters: Let me finish my question, that‟s the problem as a professional
policeman, you testified to the panel that you have no way of making contemporaneous
notes…
Mr. Persaud: That is true unless I find it necessary.
Mr. Pieters: Well let us deal with that.
Mr. Persaud: Yes.
Mr. Pieters: Contemporaneous notes is an aide-memoire... taking notes is an aide-memoire, it aids your memory, and it helps you…
Mr. Persaud:...I don't disagree with you…
....
Mr. Pieters: It is called an aide memoir, but it also assists you when you testify in
court.
Mr. Persaud: But I didn‟t know that it would have been called to testify on this, had I known that then from day one I would have probably made notes.
Mr. Pieters:(inaudible)
Mr. Persaud: No, I make notes when it's necessary, I didn't find it necessary.
Mr. Pieters: But where is your is your memo book?
Mr. Persaud: I have a personal diary.
Mr. Pieters: Where is your personal diary?
Mr. Persaud: It‟s in the office.
Mr. Pieters: You came to court today, you don‟t think you should have brought it?
Mr. Persaud: No.
Mr. Pieters: If that is what you use to recollect your memory.
Mr. Persaud: I am saying that I didn't write anything in relation to this matter in the diary.
Mr. Pieters: You didn't write anything on this matter, so I will suggest this to you didn't write anything on this matter Mr. Persaud because you thought that all the officers would have covered up for you and exclude you from the whole sequence, that I why you didn't make notes.
Mr. Persaud: I totally deny that I don't know of any commissioner of Police that went to any court and gives evidence of any investigation that the police force conducted during his tenure as commissioner.
Mr. Pieters: That is what I suggest to you, and I will make some suggestions to you…
Mr. Pieters: And you ordered that Gillard be sent on bail as well.
Mr. Persaud: I never knew Gillard was arrested.
Mr. Pieters: You did know…
Mr. Persaud: Until this inquiry.
Mr. Pieters: Well that shows how in tune you are with the police force that you
manage.
....
Mr. Pieters: And when would you have briefed Mr. Ramnarine prior to your leave
in…I think it was the end of February you went on leave.
Mr. Persaud: It is normally done in the week before I proceeded.
Mr. Pieters: Would you have memoed him?
Mr. Persaud: Well no, there were oral briefs.
Mr. Pieters: They were oral briefs, there was no note taker taking notes?
Mr. Persaud: No.
Mr. Pieters: And were you taking notes during the meeting with what you said to
Ramnarine?
Mr. Persaud: No.
Mr. Pieters: And is Ramnarine taking notes of what you are saying to him?
Mr. Persaud: I don‟t know.
Mr. Pieters: Well you were at the meeting tell the panel.
Mr. Persaud: I did see him writing I don‟t know if he was taking notes or writing
something else, I never review.
Mr. Pieters: So the change over of command is quite an ad-hoc matter…

Andriff Gillard on the corruption in the system of Justice in Guyana.

A female in Crises warranted the Emergency Task Force and not MCIT

BADC Closing Arguments - Andrew Loku Inquest (notes)

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 June 26, 2017

I want to thank you, members of the jury for taking the time to be here for a case that is of great importance to our communities and taking time out of your lives to be the jury in this case.

Sir Robert Peel stated that "The police are the public and the public are the police." So that if we break this down in a multi-cultural, multi-ethnic, and multi-racial society it means that the police must have experientially interacted with citizens including Black men and women and persons with mental health exceptionalities."

"One of the Black Action Defence Committee (BADC) Directors reminded me at lunch today that we are on one ship so that if we sink you will too.

The Relationship between police and black community must be look at holistically. If relationship continues to be strained and steps aren’t taken to ameliorate that relationship, no one is safe in this city. Black lives matter. Our lives matters.

Constable Doyle testified that he had a Black partner but never had experience interacting with Black men. You heard the evidence of Professor Nicholas Rule where he spoke of the implicit bias and the shift of perception of Black men from "happy go lucky to Black men to being stereotyped as being angry and aggressive."

Implicit bias affects all of us. 35% of all fatal shootings, at least, are black men. This has led to a fear of the police in our communities. So our fear of police is not irrational. There is disparity in policing and how we are policed. That goes to recommendation with respect to compiling of statistics. We want official statistics. We want use of Force form to be amended to document race of person, and mental health issues. Race, gender, ethnicity of anyone killed or seriously hurt. Dr. Rule spoke of being collect and analyze data on implicit bias of individual officers from recruitment to advancement through the service. He also speak of tracking this data on a systemic level. Dr. Kwame McKenzie also spoke of the important of statistics in respect to the institutional racism including the use of force. So for both experts the collection of statistics are important.

We all worked collaboratively to come up with slate. Also join recommendations of Across Boundaries, that speak about intersectionality of mental health and anti-black racism. Some people would want you to believe that racism has nothing to do with this case. Race and mental health is at the core of what this case is about. We are not taking colour blind approach to this case. Race has something to do with it. That’s why this room was filled when Constable Doyle testified. Our community wanted to hear from him. W e are disappointed that the officers said they wouldn’t change anything they did in that same situation.

We have had inquests before where jury recommended tasers. You have seen the evidence that each Toronto Police officer has a gun, three magazines of ammo (15 rounds each). We're arming them for war, not peace.

You job is very important and I echo what Mr. Morton said, it is the most important thing you will do to make recommendations to governments, agencies and the police sop that lives are saved, deaths are prevented.

See also Dr. Carlise ruling on racism

Andrew Loku Inquest - Anti-Black racism and Mental Health are Live Issues.

Cross-examination of Nicholas Rule on Racial Bias in Judgments of Physical Size and Formidability

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 June 12, 2017

On June 12, 2017, at the Andrew Loku Inquest I crossed examined Professor Nicholas Rule on an article he coauthored: Wilson, J. P., Hugenberg, K., & Rule, N. O Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat. Journal of Personality and Social Psychology.Advance online publication. http://dx.doi.org/10.1037/pspi0000092

--- E x T R A C T ---

NICHOLAS RULE

CROSS-EXAMINATION BY MR. SELWYN PIETERS:

          Q.   Good afternoon, Dr. Rule.

A.   Good afternoon.

          Q.   I am Selwyn Pieters.  I represent the Black Action Defence Committee.  Now, you spoke about implicit bias as perceiving or having Black men stereotyped as angry and aggressive.

A.   I did.  Yes.

          Q.   And you spoke about the shift of Black men being happy go lucky or Black people being perceived as happy-go-lucky people.

A.   That’s right.

          Q.   Right.  This angry and aggressive posture that comes from implicit bias, would you say that that is something that infects society as a whole?

A.   It certainly affects society as a whole, yes.

          Q.   Then so if that is the case, then the fear of a Black man is based on implicit thought processes rather than objective fear, would you agree?

A.   I would agree.

          Q.   You mentioned a shopping mall example with respect to a wallet and a gun.  You recall that?

A.   I do.

          Q.   And you mentioned that it is likely that the perception would be the Black person having the gun?

A.   That’s what the studies have shown, yes.

          Q.   Right.  So, if that situation is replicated in real life in a shopping mall where a White man has a gun and the Black man has the wallet, would it be the case, taking what you said or say -- the association of black with crime is and implicit association of Black people with crime -- that the Black person would be at risk of violence from the police or a negative reaction?

A.   You mean as opposed to the White person --

          Q.   Yes.

A.   -- with the gun?  I don’t know that it would necessarily go that far, actually.  So I think that it would be more likely that the presence of an actual gun would be a more salient stimulus to draw attention.  So I -- it is -- the studies do show that people are more likely to mistake the wallet for a gun in the hands of Black person and that they’re then faster to make a shoot decision, but it doesn’t necessarily mean that they would mistake a gun for a wallet per se in the case of a White person.

          Q.   Very well.  You’re familiar with the Diallo situation in the U.S. where a Black man was shot taking a wallet out of his pocket?

A.   I am.

          Q.   Very well.  You mentioned, you spoke about implicit bias and then you spoke about implicit racism.

A.   That’s right.

          Q.   Define implicit racism for us.

A.   Implicit racism would be beliefs about a group defined by its race that are held implicitly and are of negative valence against that group.

          Q.   Very well.  Now ---

A.   If I can -- I would say implicit racism is a specific type of implicit bias.

          Q.   But it’s racism nonetheless?

A.   That’s right.  Yes.

          Q.   Right.  Would you say it’s possible for Toronto Police to compile social science data on implicit bias in relation to individual officers from the time they join the force and as they progress through the force?

A.   It is certainly possible for us to measure implicit associations held by a particular individual and to track those for changes over time.

          Q.   What about systemically within the organization?

A.   Within the organization you would need to make those individual assessments and then you could perhaps aggregate them to say that, you know, a given group of individuals is more prone towards a particular level of bias.  Though, I don’t know that that would necessarily constitute the same idea as an institutionally endorsed or a reiterated notion.

          Q.   I’m going to put some propositions to you and you can tell me whether you agree or whether you disagree or you can explain it.

A.   Sure.

          Q.   I’m going to suggest to that the perpetuation or the perpetration of implicit bias is a form of violence based on what you described today in respect to how Black men are perceived and treated.  

A.   It would depend on the way that one defines violence.  If one defines violence as a physical behaviour then I would not agree.  If one defines violence as, you know, including aggressive thoughts, that might be possible.  However, I might still disagree, actually, because I think in that case they would need to be conscious thoughts for them to be considered violent.

          Q.   Yes.  But if someone has implicit thoughts of violence against someone, are you saying that that would be excused?

A.   No.  I don’t think that one would necessarily have implicit thoughts of violence.  So, the nature of the way that, you know, a human would think about violence or particular actions wouldn’t necessarily be at an implicit level.  Those would have to occur somewhat more explicitly.  The implicit level would simply be the associations between two concepts, so it’s a -- it’s a much more basic thing.  But to actually consider a violent act, or any behaviour of that sort, would require a -- an either explicit or semi-explicit level, I think.

          Q.   I take it from your testimony, you can agree, disagree or explain it, that this implicit bias that you spoke about and that you researched and wrote about, it perpetrates oppression against a specific race and that’s Black people.

A.   I think I could agree with that.

          Q.   I also take it from your study and what you said today that the relationship between discrimination on the basis -- there is a relationship between discrimination on the basis of race and implicit bias?

A.   There is and that would be implicit racism.

          Q.   And that there is a relationship between prejudice, stereotyping, discrimination and implicit bias?

A.   There certainly is, yes.

          Q.   And that discriminatory attitudes and implicit bias are mutually exclusive?  Or they go -- sorry, not mutually exclusive.  They go hand in hand?

A.   Yes.  But not in a bidirectional manner.  So, as I said earlier, implicit bias would be present when there are discriminatory attitudes, but implicit bias can be present without discriminatory attitudes as well.

          Q.   You said something here and I’m going to put something to you and you can tell me what your position is.  You said we favour people who look like us in very important ways. 

A.   That’s right.

          Q.   So, I’m going to put this to you: Colour blindness and excuses are the means by which the dominant group maintains its position.  I can put it differently.

THE CORONER:  Perhaps if you did rephrase it might be easier for the witness. 

BY MR. PIETERS:

          Q.   If what you said today in evidence is true and this implicit bias has its most virulent or its most devastating impact on Black people, let’s say in Canada or in Toronto, then we can’t really boil down implicit bias or any of these things in a colour-blind way.

A.   Well, what I can say about colour blindness is that it’s typically regarded as an ineffective strategy for dealing with race relations.  Colour blindness typically -- so the idea of colour blindness is the notion that if we ignore differences between groups -- in this case racial groups, groups defined by colour differences, typically -- that there won’t be problems.  That if we just, you know, if we don’t see the differences then there aren’t issues to discuss.  The data have clearly shown that that is not effective but rather it masks the underlying issues.  But rather an approach that acknowledges differences and discusses those differences is more effective for ameliorating any discrepancies that are based on those differences.

THE CORONER:  Mr. Pieters, a time warning.  You have two minutes.

MR. PIETERS:  Very well.  I’m going to finish way before then, Dr. Carlisle.

THE CORONER:  Anything you can do to help.

BY MR. PIETERS:

          Q.   What effect does denial from a systemic level, for example, a president of a police association denying that police act on implicit biases, have on managing that association or managing its members in dealing with issues of implicit bias or racism?

A.   I think that that would likely be problematic.  I think any time that -- if we’re truly discussing denial as a concept whereby one knows one thing but does not wish to accept it, as denial is often used in the psychological literature, then that wouldn’t be -- that is not a productive step towards making any kind of change.  It’s important that one acknowledges a phenomenon before one can potentially even deal with.

          Q.   What would be your recommendation to the jury for a police service to confront this issue and deal with it?

A.   That’s a very big question.  I think that, you know, if there are differences in the way that suspects are being treating on the basis of their race, then certainly an examination is required to understand why this is occurring, how it’s occurring and then steps would need to be taken.  If it’s determined that this is based on implicit biases, that is associations or expectations that people from one racial group are more prone to criminal behaviour than another, then some of the training exercises that we discussed earlier today might be appropriate for attempting to correct those biases.

          Q.   Than you, Dr. Carlisle.  Thank you, Dr. Rule.

A.   Thank you. 

THE CORONER:  Thank you, Mr. Pieters.

See also, Wendy Gillis, Black men perceived as more threatening, expert tells Andrew Loku inquest, Toronto Star, June 12, 2017