Judicial Review of the Peel Law Association matter - November 22, 2011

The hearing of the Judicial Review Application of the significant and ground-breaking decision in Pieters v. Peel Law Association 2010 HRTO 2411 released on December 03, 2010, by the Human Rights Tribunal of Ontario, will be heard by a three panel bench of Divisional Court in Toronto:

Date: November 22, 2011

Time: 10:00 a.m.

Location: Ontario Divisional Court, Courtroom 3, located at Osgoode Hall, in Toronto.

This  found that the Peel Law Association and its Librarian, Melissa Firth, targeted three Black men, two of whom are lawyers (Brian Noble and Selwyn Pieters) and one of whom is a student (Paul Waldron), for carding in an “aggressive and demanding” manner because of their race and colour, in the Lawyers’ Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008. 

The Tribunal found as fact that the Applicant Firth did not provide a non-discriminatory reason:

[85] ... In the present case, the respondents have failed to provide a credible and rational explanation for why the personal respondent stopped to question the applicants when she did.  The inference I draw from this, as well as all of the surrounding circumstances, is that this decision was, in some measure, because of their race and colour.

[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.

In racial discrimination and racial profiling cases, the Tribunal is entitled to consider whether Ms. Firth provided a reasonable and racially neutral explanation or whether she provided an explanation that lacks credulity and failed to investigate or treating differently similarly situated White individuals:

[89] It is significant, in my view, that the personal respondent did provide an explanation at the time she was questioning the applicants for her actions.  She stated that she knew everyone else in the lounge to be lawyers.  This claim is clearly not true given that Ms. McFadden was not a lawyer and Ms. Reesor, although a lawyer, had never been in the lounge before. 

[90] I have considered whether the personal respondent may have simply relied on this false statement in the heat of the moment, not knowing what to say when challenged by the applicants to explain her decision to question them.   But even if I accept that the applicant relied on this comment in the heat of the moment, it is nonetheless revealing that the personal respondent could not generate a credible non- discriminatory reason for why she was questioning the applicants, for example that she had to resolve the issue of who re-arranged the furniture or that she was in the process of questioning everyone in the lounge she did not know and was beginning with the applicants.  The lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent’s decision to question the applicants was indeed tainted by considerations of their race and colour.

[91]     I have also considered the manner in which the applicant approached and questioned the applicants and whether she subjected them to undue scrutiny. I am mindful of the decision in Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), at para. 134, which states:

        I find the racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also sup-ports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black. (Emphasis in original)

[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

Racism and Racist Images at City Hall in Windsor, Ontario, Canada

HUMAN RIGHTS LAWYER SELWYN PIETERS WAS THREATENED WITH ARREST AT WINDSOR CITY HALL FOR REPORTING RACIST AND HOMOPHOBIC GRAPHIC IN THE PUBLIC BATHROOM AT WINDSOR CITY HALL

A Human Rights Tribunal convened to hear allegations of the pervasive use of the term “nigger” by employees of the Public Works Department of the City of Windsor. The hearing took place in Windsor in its City Hall location at 400 City Hall Square East.

Mr. Alan Shreve, a City of Windsor employee and long time resident of Windsor complained of several incidents in which the offensive slur “Nigger” was used to refer to Black people. He also complained about a KKK incident that occurred during an anti-discrimination training session. Further, he complained of a further incident of racism that occurred a few months after the training session. He is supported by other racial minority employees who also witnessed similar incidents.

The only accessible bathroom to lawyer Selwyn Pieters was on the first floor of City Hall and it was riddled with racist and homophobic remarks and a Nazi sign. Pieters reported the incident to a City Hall reception employee, who refused to get a supervisor or manger for him and then called the police to arrest him for taking pictures. This is a public place that permits and promotes a poisoned atmosphere for Black people. For the City employee to refuse to call her manager and instead call the police reinforces that chilly atmosphere that exist for Black people in the City of Windsor. How could this be acceptable to any citizen?

 

Photographs and a video recording exist of what was observed in the bathroom and part of the conduct of the City Employee in the foyer of City Hall Windsor.

http://www.youtube.com/watch?v=TPOOrAzNLkU

CBC Television: City of Windsor racist, alleges lawyer, October 20, 2011


Windsor Star: City of Windsor staffer alleges workplace racial slurs, October 18, 2011

The hearing continues on December 14, 15, and 16, 2011 in Windsor, Ontario.

Toronto Police Deaths and Injuries in Custody From Juy 31, 2011

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

July 31, 2011 at the Caribana Parade, three people shot, one died, two injured, all from police bullets.

August 1, 2011 a disabled man who is walking with his mother is killed by the police in an encounter that may well be a case of mistaken identity.

August 07, 2011, another police shooting at Pharmacy Avenue and Conroy Avenue.

The Special Investigations Unit (SIU) is a civilian law enforcement agency, independent of the police, however, comprised of mostly retired police officers on its investigative staff, that conducts criminal investigations into circumstances involving police and civilians that have resulted in serious injury, death or allegations of sexual assault. Very rarely are any charges laid against police officers and the standards set by the SIU to lay charges are quite higher than that used to charge civilians.

It would be interesting to see the results of the various investigations into these incidents. However, for some perspective, see: Ombudsman Ontario, Oversight Unseen, 2008.

Johnson Aziga Dangerous Offender Hearing and Designation

By Selwyn A. Pieters
Barrister, Solicitor & Notary Public

Today at the John Sopinka Courthouse, Mr. Justice Lofchik has rendered his decision in R. v. Aziga, 2011 ONSC 4592 and found that Mr. Johnson Aziga should be designated a dangerous offender, thus likely guaranteeing that he would spend the rest of his life in the custody of the state.  Justice Lofchik ruled that in considering any assurances given by Mr. Aziga "I must consider that the offender has a multi-year history of deception." That conduct the Judge ruled “represents a substantial risk to the community.”

On April 04, 2009, Mr. Aziga was found guilty by a jury of first-degree murder in the deaths of two women who died from AIDS-related illnesses. He was also found guilty on 10 counts of aggravated sexual assault and one count of attempted aggravated sexual assault. This case is believed to be the first case in the world where someone has been convicted of murder by HIV.

Mr. Aziga's  dangerous offender hearing commenced May 10, 2011 to determine whether or not he is to be classified as a dangerous offender. Such status results in an indeterminate sentence. Expert evidence was heard from Forensic Psychiatrist Dr. Philip Klassen. He said Mr. Aziga expressed little remorse and blamed his failure to disclose on an "undescended testicle" amongst other things.

A public Health Nurse also gave evidence. Further, some of the victims testified as well as the family of those women who have already passed from AIDS related illness.

Mr. Aziga took the stand at his dangerous offender hearing.

Selwyn Pieters was co-counsel in Aziga's matter from January 24, 2008 to August 05, 2008. My work on the file resuled in three important and significant judicial decisions: See, R. v. Aziga [2008] O.J. No. 2431, 78 W.C.B. (2d) 87 (challenge for cause - HIV Phobia); R. v. Aziga; 2008 CarswellOnt 4300 (allowing him to be unshackled in court) and R. v. Aziga [2008] O.J. No. 3052, 78 W.C.B. (2d) 410 (cruel and unusual treatment and punishment charter challenge).

Outside of Mr. Aziga's own context, the finding of guilt on the murders and his designation as a dangerous offender charts new terrain and certainly should be of interest to HIV harm reduction workers and hiv positive persons - as it is now a precedent that could be used to when the full brunt of the law is unleashed on a person who is HIV positive and failed to inform their partner of his/her status or otherwise failed to take preventative measures - that resulted in the infection of another person.

Aziga Caselaw

• R. v. Aziga, 2008 CanLII 53841 (ON S.C.) — 2008-10-20
  Ontario — Superior Court of Justice
  aggravated sexual assault — compellable — charged — spouse — common law exception
• R. v. Aziga, 2008 CanLII 53125 (ON S.C.) — 2008-10-14
  Ontario — Superior Court of Justice
  adjournments — co-counsel — choice — date — retain
• R. v. Aziga, 2008 CanLII 39612 (ON S.C.) — 2008-08-08
  Ontario — Superior Court of Justice
  hours — funding — preparation — forensic evidence — time
• R. v. Aziga, 2008 CanLII 39222 (ON S.C.) - inmates — medical — protective custody — detention — unit
• R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.)
• R. v. Aziga, 2008 CanLII 29780 (ON S.C.) — 2008-06-18 Ontario — Superior Court of Justice prospective jurors — partiality — recent cases involving criminal transmission — bias — black citizen who was born
• R. v. Aziga, 2006 CanLII 42798 (ON S.C.) — 2006-12-29 Ontario — Superior Court of Justice principle against self-incrimination — infected — unprotected — sexual activity — penetrative
• R. v. Aziga, 2007 CanLII 249 (ON S.C.) — 2007-01-10 Ontario — Superior Court of Justice expert — scientific — evidence — adjournment — defence
• R. v. Aziga, 2007 CanLII 56095 (ON S.C.) — 2007-12-18 Ontario — Superior Court of Justice infected — subtype — sexual — complainants — unprotected
• R. v. Aziga, 2007 CanLII 38 (ON S.C.) — 2007-01-03 Ontario — Superior Court of Justice delay — days — remand — time — defence
• R. v. Aziga, 2006 CanLII 38236 (ON S.C.) — 2006-11-14 Ontario — Superior Court of Justice reliability — dying declaration — hearsay — interview — nodding

Leading Cases In Canada

• R. v. Thornton, (1991), 1 O.R. (3d) 480, [1991] O.J. No. 25 (Ont. C.A.) (QL); affirmed at 1993 CanLII 95 (S.C.C.), (1993), 82 C.C.C. (3d) 530, [1993] S.C.J. No. 62 (S.C.C.) (QL)
• R. v. Cuerrier 1998 CanLII 796 (S.C.C.), (1998), 127 C.C.C. (3d) 1, [1998] S.C.J. No. 64 (S.C.C.) (QL)
• R. v. Williams 2003 SCC 41 (CanLII), 2003 SCC 41, 2003 SCC 41 (CanLII), (2003), 176 C.C.C. (3d) 449, S.C.J. No. 41 (S.C.C.) (QL).
• (1) R. v. Mercer, (1993), 84 C.C.C. (3d) 41, [1993] N.J. No. 198 (C.A.) (QL)
• R. v. Miron 2000 CanLII 4432 (MB P.C.), (2000), 174 Man.R. (2d) 52, [2000] M.J. No. 500 (Man. P.C.) (QL);
• R. v. Smith, 2008 SKCA 61 (CanLII), 2008 SKCA 61, 2008 S.J. No. 283 (QL);
• R. v. Williams, 2006 ONCJ 484 (CanLII), 2006 ONCJ 484, [2006] O.J. No. 5037 (QL);
• R. v. Nduwayo, 2006 BCSC 1972 (CanLII), 2006 BCSC 1972, [2006] B.C.J. No. 3418 (QL);
• R. v. Lamirande, 2006 MBCA 71 (CanLII), 2006 MBCA 71, [2006] M.J. No. 223 (QL);
• R. v. Walkem (2007), 73 W.C.B. (2d) 145, [2007] O.J. No. 186 (Ont. S.C.) (QL).
• R. v. Edwards, 2001 NSSC 80 (CanLII), 2001 NSSC 80, [2001] N.S.J. No. 221 (QL)

Other News Articles

Michael McKiernan "Taxing Aziga case sparks lawyers’ spat" Law Times, July 25, 2011; Defendant seeks another delay, Hamilton Spectator, Oct 1, 2008; Barbara Brown, 'There is simply no right to bite'; Expert says jailhouse isolation of HIV murder suspect isn't breach of charter, Hamilton Spectator, July 26, 2008; Tamsyn Burgmann, Lawyers for HIV-positive man want murder charge thrown out, Canadian Press, Jun 11, 2008. Also Ministry to pay for HIV defence, Hamilton Spectator, January 26, 2008; C. Blatchford, An HIV-positive bureaucrat, two women fatally infected and the 'duty to disclose', October 21, 2008.

Failure of Lawyer Davies Bagambiire to pay rent resulting in eviction is not professional misconduct Law Society Says

By Selwyn A. Pieters
Barrister, Solicitor & Notary Public

Re: Law Society of Upper Canada v. Davies Bagambiire, 2011 ONLSHP 69 (CanLII)

On June 01, 2010, a Notice of Application was issued by the Law Society of Upper Canada alleging seven counts of professional misconduct against Davies Bagambiire, a sole practitioner immigration and refugee lawyer who is practicising criminal law in the singular case of R. v. Aziga. A hearing was held from December 14 - 17, 2010. Mr. Davies Bagambiire's Law Society of Upper Canada hearing was completed with findings of professional misconduct relating to one of his clients T.F. for which he served a one month suspension.

The other counts relating to the conduct of his business at 372 Bay Street in Toronto was dismissed for lack of jurisdiction over a lawyers' failure to pay his rent that resulted in the eviction of him and his sub-tenants. This is how I learn of the eviction from him:

From: daviesbagambiire@bell.blackberry.net [mailto:daviesbagambiire@bell.blackberry.net]

Sent: Tuesday, August 5, 2008 01:36 PMTo: 'Selwyn Pieters'

Subject: Office Issue with LL 

I have a serious issue with the landlord as I told you a few weeks ago. Please send me an email or call me ASAP. I also wanted you to review the Application record for tommorrow before hand. Please call me on my cell (416) 577-3277. db Sent from my BlackBerry® wireless device

My comments reflecting on the LSUC reasons are below:

1) As a complainant in LSUC matters I have no standing. I am a witnesses, that's it.

2) Here Mr. Bagambiire "accumulated approximately $18,000 of arrears in rent for his law office" para 25

3) The lawyer argued that "the Law Society should not be punishing lawyers for their poverty, that the rules were not designed to punish lawyers for being under financial strain and simply not having sufficient money to pay rent." para. 26

4) Zeynep Onen, Director of Professional Regulation at the Law Society, spoke with the Complainant to tell him “it was more a commercial or civil matter rather than an ethical matter.” para 27

5) The LSUC panel concluded that "being in arrears with the payment of office rent did not constitute professional misconduct. To hold otherwise would potentially be to subject a large swath of financially precarious practitioners to disciplinary suspension in economically distraught times." para 28

6) "The Law Society’s allegations set out in Particulars 4 and 5 were not proven. Specifically, the Society failed to prove that the Lawyer’s failure to make monthly rental payments for his office constituted a failure to honour the financial obligations of his practice, contrary to Rule 6.01(2) of the Rules of Professional Conduct. Secondly, the Society failed to prove that the Lawyer acted dishonourably and without integrity contrary to Rule 6.01(1) of the Rules of Professional Conduct, based on failing to notify his sub-tenant, lawyer Selwyn Pieters, that he had not made the monthly rental payments and that this could result in a lockout by the landlord, or by accepting but failing to remit Selwyn Pieters’ sublease payments to the landlord."

Reflections

7) We are all accountable for our actions and inactions as lawyers. Mr. Bagambiire because of my complaint was required to account for his conduct that led to the consequences which it did on August 05, 2008.

8) Bagambiire in the 2011 decision in which this lockout was mentioned was suspended for one month and required to pay restitution of $5000.00 to a client Teresa Figura payable by June 30, 2011.

9) Bagambiire is a repeat offender: See, Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (The Lawyer is suspended for two months, commencing March 1, 2008. Upon return to practice, the Lawyer shall be supervised for a period of two years) and See also, Re Bagambiire Formal Hearing Panel Decision, N.S.B.S. 43, November 15, 1990.

10) As mentioned earlier, in LSUC disciplinary matters, a complainant is not a party. In this case I had nothing to gain or lose here. Anyways, the decision is instructive to other lawyers dealing with persons like the lawyer in this case to simply sue civilly or call in the police when such issues arise. The law society is not the forum.

11) The Law Society Lawyer Andrea Waltman did an excellent job under difficult circumstances, as the Tribunal was inclined from the get go to the views in para 27 of its decision.

12) I wish Mr. Bagambiire well and hope his financial and other affairs are in order. He has been practising law for 25 years. I know him since 1994. I was a client of his in 1995 - 1996. For Mr. Bagambiire to really get into the situation like that without even believing that he had to tell his sub-tenants, particularly me, is puzzling. However, life goes on and on it did with me.

13) I currently practices law in downtown Toronto at Pieters Law Office, Adelaide Place, DBRS Tower,  where about 25 independent lawyers share space and resources in a professional office setting not unlike that of a medium-sized law firm. So quite frankly, despite the stress, frustration and humiliation, that situation caused, and I have not really spoken to many people about it because I was ashamed that I became part of a lockout, like I did something bad, things worked out for the better for me.

14) I am quite happy where I am at and with the people with whom I now share space. That god for his kindness and great mercies.

See also, Michael McKiernan "Taxing Aziga case sparks lawyers’ spat" Law Times, July 25, 2011

http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147488178

 

J.B. and C.F. v. Toronto District School Board

By Selwyn A. Pieters
Lawyer and Notary Public


This is a case discrimination case based on race and racial stereotyping that I have been litigating from December 2005. Six years later the Emery Collegiate case winds its way through the Human Rights Tribunal for Ontario. There has been numerous tactics of TDSB lawyers that generated several decisions in J.B. and C.F. v. Toronto District School Board: 2011 HRTO 1304; 2011 HRTO 1162; 2011 HRTO 994; 2010 HRTO 1228; 2009 HRTO 1030 (CanLII); B. (K.) (Litigation Guardian of) v. Toronto District School Board; 2008 CarswellOnt 455 (SCJ).

Closing arguments were concluded on July 21, 2011 and the decision is reserved. A written decision will be received sometime in the future.

An Adverse Witness Can be Summoned as A Witness by the Other Side in HRTO Proceedings

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

In a significant ruling released on June 15, 2011, J.B. v. Toronto District School Board, 2011 HRTO 1162, the Human Rights Tribunal ruled that a party can summon as witness a Trustee or Director for the other side even if the witness has evidence that is adverse to the interest of the Respondent's Corporation:

[14] The respondent relies primarily on a decision of the Ontario Superior Court in Hearst (Town) v. District School Board Ontario North East, September 11, 2000, [2000] O.J. No. 3419. The respondent states that this case stands for the proposition above, that a trustee, being a member of a corporation, cannot be compelled to give evidence in a manner adverse in interest to the respondents. The respondents state that the witness made it clear from the outset that she was an advocate for the applicants. The respondents also rely upon the fact that the witness filed an internal human rights complaint based on the same facts and retained counsel in that matter who is now counsel for the applicants in these proceedings.

[15] In my view the respondent has over-read the rationale underlying the court’s conclusion in Hearst to some degree. In my view the underlying concern of the Court is that in reality what it was faced with was a trustee taking legal action against the corporation over a decision the corporation had taken. She in effect had become an adversary party in litigation against the corporation of which she was a member. In my view the decision does not stand for the proposition that a trustee can not be compelled by summons to give evidence in support of a party adverse in interest to the corporation of which they are a member. The question remains whether, as the respondent suggests, a member of a corporation can or can not give evidence under a summons “in a manner adverse in interest” to the interests of the corporation.

[22] It is clear from the passage above that the underlying concern with the deponent of the supporting affidavit for the judicial review being a trustee was the appearanceand/or reality of that trustee having a place at both counsel tables and not her potentially giving evidence that would be adverse in interest to the respondent and supportive of the applicants. My conclusion in this regard is strengthened by the court’s accepting without comment that two other witnesses had been summonsed although their personal views on the redistribution issue were not known. More significantly is the manner in which the court discussed how the conflict identified above should be resolved:

What is the best way to resolve this conflict? Is Ms. Brunet absolutely necessary to the applicant? It was not argued that she was. The two grounds given for review were that the Final Report was not based on the factors enunciated in the Regulation and secondly that the Board made its decision on the basis of improper motive. The first ground can be argued on the record. With respect to the second ground, Ms. Brunet's dispute with this Board is longstanding and well documented. At least four newspaper articles were included in this record, showing her criticism of the Board. The questions to be put to the two trustees summoned as witnesses was with respect to retaliatory measures allegedly taken by the Board against Ms. Brunet including redistribution of her electoral area. Counsel for the applicant conceded that Ms. Brunet could be summoned as a witness in these proceedings. [emphasis added]

[23] It seems to me that this passage is a complete answer to the respondent’s position. Hearst does not stand for the proposition that a trustee may not give evidence which is adverse to the position taken by the board of which she or he is a member even where they have a clear personal interest in the outcome. What such a person ought not do, according to Hearst and others of the decisions relied upon by the respondent, is to be a litigant opposed to the board of which they are a member, or participate actively in the case of the party opposed in interest, such as providing the supporting affidavit in an application for judicial review. Such conduct is in violation of the ethical obligation of counsel not to make contact with an adverse party except through their counsel. However even where as in Hearst it was plain that Brunet had been an active participant in the litigation prior to the service of the application, this was not an impediment to the trustee later giving evidence under summons by the applicants.

The witness has been summonsed to give evidence by a party adverse in interest to the respondent Board and is expected to give evidence adverse to the Board’s immediate interests in this proceeding. As previously indicated, the Hearst decision stands for the proposition that this is perfectly acceptable....

The evidence of the witness summoned, however, has to be relevant and material to the matters in dispute to be admissible. This was reiterated in a recent decision D.R. v. Toronto District School Board, 2011 HRTO 1079 in which the Tribunal  on the question of "whether the applicant should be allowed to summons a witness, a former respondent, S. P.?" said no,  "it would not be appropriate to entertain further evidence in this case".

The premise for summoning witnesses for the other side is in most cases of discrimination, it is circumstantial evidence that are relied upon. Most of the evidence is within the knowledge, possession or control of Respondents. Strategically, therefore, it is prudent to determine very early whether or not that person has evidence that is helpful to the ultimate determination of the case. 

Jordan Manners murder trial and Canada's failed witness protection program

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

In trials, as far as accused persons are concerned there are winners and losers. The winners walk out of the prisoners' docks into the waiting arms of love ones. The losers go to jail and for a long time. See, R. v. Simpson - Rowe 2009 CANLII 18884.

In the Jordan Manners murder trial, the two young accused were acquitted by a jury after 12 hours of deliberations. The main issue had to be credibility of the evidence of the Crown's main witnesses, both of whom gave lengthy statements shortly after the events occurred, and both of whom recanted those statements twice. First in the trial that ultimately resulted in a  hung jury and mistrial. Second, in this most recent trial where the accused were acquitted.

The news coverage of this trial and the acquittal is in a frenzied state over what they described as the apparent intimidation of the witnesses.

April 2007 - witness safety in the Jane Creba Case

On December 26, 2005, Richard Steele was on Yonge Street in Toronto, Ontario, in the vicinity of the Eaton Centre. Several persons were charged with offenses ranging from second degree murder to manslaughter as a result of what is now termed “Project Green Apple”, “The Boxing Day Murder Investigation” and the “Creba Shooting”. He was summoned as a Crown witness.

We brought an application before Mr. Justice Nordheimer of the Ontario Superior to quash the subpoena. In denying our application, Justice Nordheimer ruled that "4 I acknowledge that Mr. Steele may be considered by some individuals as a "rat" if he is called as a witness notwithstanding that Mr. Steele has been compelled to attend. The fact that some people hold misguided, indeed I would say perverse, notions of what is involved in being a citizen of this country and the obligations that come with that status is not a proper basis to quash a subpoena. To accede to that submission would be to undermine the very foundation of our justice system." See, R. v. Steele 2007 CarswellOnt 3011 (SCJ).

Mr. Steele was upset with that ruling:

On Tuesday, an angry Steele lost his bid to avoid testifying in the trial of the 10 young men accused in Creba's Boxing Day 2005 shooting. "You don't understand, Your Honour. You are helping them kill me," Steele, 19, told Nordheimer.

See,  Man must testify in Creba case - thestar.com 24 Apr 2007

Consider the case of David Latchana in November 2007

On November 03, 2007, Mr. Latchana, age 23, was murdered outside of an after hours club. He was previously called by the Crown as a witness involving an aggravated assault that including the suspect Jayson Hay who served 18 months imprisonment. Mr. Hay and another first degree murder co-accused in Mr. Latchana's death made a hip hop tape that was prominenetly showcased on Mr. Hay's myspace.com page calling the deceased a "snith" who "put me away". "You came to Court nigga and pointed in my face (named the accused) but when I get home you know your place. I did a year and half ". "Don't let me catch you cause those guns will spark". I will find you after dark, I don't give a fuck man, cause the time is soft. I won't forget this till your time is up." The accused described himself as "EVIL with Twin eagles bullets go through you and the other peoples."

It is clearly the case that Mr. David Latchana met his death because he was considered a snith for responding to a Crown's summons to testify in a previous case against the accused. This has nothing to do with gang membership or the lack thereof. It has to do with the ability or the lack thereof of the state to protect it witnesses that it calls to testify in cases involving violence and threats thereof. Yet when this man was murdered Peel Regional Police was quick to label him a gang member and alleged that an internal gang rift and a "diss" was the motive for the murder when the evidence suggest that being a Crown witness was. As well, the police failed to act on the threats that was on myspace for some considerable time.

The First Manners Trial

Prior to the commencement of the jury trial an application to have the witnesses testify by videoconferencing facility was dismissed by Mr. Justice Nordheimer in  R. v. C.D., 2010 CanLII 22061 on the basis that it violates the fair trial rights of the accused:

[15]      This case is very much of a different kind from those cases.  Here, the individuals regarding whom the prosecution seeks this order are not the subjects of the criminal offence.  They are witnesses to it.  While the individuals here did express some fear of facing the accused, their principal concern as reported by the detectives is a fear of reprisals arising from them being witnesses.  At no point has any of these witnesses said that they are unable to give their evidence if they are required to do so in the presence of the accused.

[16]      If the stated fear is a fear of reprisal arising from the fact that these individuals are going to give evidence in this trial, then it is self-evident that the core fear arises from the fact of being a witness – not from the manner in which the evidence is given.  I do not see how changing the manner in which the individuals give their evidence addresses that central concern.  In other words, the concern as expressed by these individuals arises from the fact of being a witness, not from the form in which their evidence is given.

[17]      In addition, it is difficult to substantiate the concern from an objective point of view.  There have been no threats, real or perceived, against any of these individuals.  There has not been any contact between these individuals and the accused or between these individuals and anyone purporting to act on behalf of the accused. 

As aleady indicated the first trial ended in a hung jury and mistrial, with the crucial witnesses who were students at C.W. Jeffreys Collegiate recanting and causing the judge to be concerned about whether or not they were being intimidated by alleged gang members. See, Judge asks for review of witness statements at Manners murder trial Globaltv 23 Mar 2010 and Mistrial in Jordan Manners case - thestar.com, 26 Mar 2010.

In R. v. J.W., 2010 CanLII 29087  Mr. Justice Nordheimer again had to confront the issue of witnesses and the so-called snitch code:

[19]           As I earlier observed, no convincing explanation is offered by either of these witnesses for the dramatic change in their evidence.  Those facts, coupled with the expressions of fear and other considerations that I earlier mentioned, must inevitably give rise to concerns that these witness have been subjected to some form of intimidation, whether direct or indirect.  Their denials of any such conduct does not serve to fully rebut the common sense inference that arises.  To the contrary, the suggestion that these witnesses may have been threatened or coerced into changing their evidence hangs like a dark cloud over this entire proceeding.

[20]           In saying all of this, I am very conscious of the fact that there is no evidence linking either J.W. or his co-accused to any improper conduct regarding these witnesses.  That fact does not change the reality that they stand as the immediate beneficiaries of this changed evidence, however.  It would certainly not be lost on an outside observer that that is the direct result of these events whether orchestrated by the accused or not

Little, if anything, is known about what the state did to offer these witnesses any semblance of peace of mind, safety and protection. The subjective basis relates to the existence of a fear of death or serious bodily harm and/or psychological harm in the mind of the witnesses. The objective basis requires that there be a valid basis for this fear. The objective basis of their fears were well founded if the Latchana case is anything to go by.

Implications for other cases

What is entirely lost in the May 20, 2011 press coverage is Canada's failed witness protection program and the failure of justice officials to come to grips with the dynamics of communities such as that where Jordan Manners lived and died. See, for example, Co-accused acquitted in shooting death of Jordan Manners - Globe and Mail; With not guilty verdict, family may never know why Jordan Manners died‎ - Vancouver Sun; Mandel: Not guilty verdict tragic, but no surprise‎ - Toronto Sun; Manners verdict leaves questions‎ Toronto Sun - Chris Doucette.


Fundamentally, however, "Witness protection involves understanding the dynamics of the community. The police don’t understand that people are afraid. Instead, they think that people are colluding with the gunmen, and that’s simply not the case." Mike Franklin,U.K.  Commissioner of the Independent Police Complaints Commission (IPCC). See Minutes of the meeting of the Toronto Police Services Board, December 15, 2005.

Who want's to end up being labelled a snitch and murdered like David Latchana was, with the indifference of the state and/or the police? See Murder victim no gang member, family says, Mississauga News, November 12, 2007. The first inclination of the police was to blame the victim for his demise.

Obviously, my comments give years ago fell on deaf ear: "(The Attorney General) needs to come up with some pro-active measures to ensure this tragedy doesn't happen again," Pieters said. "It is clearly the case that Mr. Latchana met his death because he was considered a snitch for responding to a Crown's summons to testify in a previous case. This has nothing to do with gang membership or the lack thereof. It has to do with the ability or the lack thereof of the state to protect its witnesses that it calls to testify in cases involving violence and threats thereof." See, Lawyer calls for government probe into witness protection, Mississauga News, 12 Nov 2007 and Mother claims she's living in fear after her son's murder 13 Nov 2007.

Unless and until the state offers adequate and durable protection to witnesses of serious violent offences including murder, it will not be known whether a witness whose original statement to the police was recanted because of fear or intimidating from gang members or on the other hand, whether the witness was really lying, as to the events that he or she testify to be true.

We can all agree that this poses serious impediments to the administration of justice in Canada and the efficiency or the lack thereof of the system as a whole.

(c) 2011 Selwyn A. Pieters - This blog post is a draft article written for publication. Please feel free to critique it. However, while permission is gioven to cite it, this must be done with proper attribution to the author.

Predictions - Supreme Court of Canada appointments

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

Friday the 13th of May, 2011, came like a thunderbolt to many in the legal community with the announcement by the Chief Justice, Justices Ian Binnie and Louise Charron, both of Ontario, retiring from the Supreme Court of Canada.

There are no shortage of candidates to fill the two spots. I suspect that one of the leading candidates will be Arthur L. Hamilton, longtime lawyer of the Conservative Party of Canada. Justice Binnie was appointed directly from private practice so I can't see too many people complaining if the Prime Minister makes an appointment similarly for the Bar as opposed to the Bench.

Mr. Hamilton stick handled all of the litigation that followed the merger of the Progressive Conservative Party (the PC Party) and the Canadian Reform Conservative Alliance (the Alliance) into a party called the Conservative Party of Canada (the CPC). See, for example, The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383, [2006] 2 F.C.R. 315, (2005) 262 D.L.R. (4th) 532, (2005) 343 N.R. 275, 2005 CarswellNat 3774, 2005 CarswellNat 3775, (2005) 143 A.C.W.S. (3d) 1029 (Fed. C.A.) (2005-11-17) 1v. to S.C.C. dismissed [2006] S.C.C.A. No. 12.

With the advent of the Charter some of our greatest constitutional victories have come from the Supreme Court of Canada. The are left to make the hard decisions that politicians sometime punt their way. In most cases whether we agree of disagree with the decisions they are usually well; reasoned and understandable. I am still licking my wounds after we lost the appeal in Attorney General of Ontario v. Michael J. Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, et al., [2011] S.C.J. 20, 2011 SCC 20.

My belief, regardless of those who dispair over the appointments of judges to the top court is there is a process in place for appointments that militates against tyranny of the majority!!!! Further, its nine judges that determines these cases and our top Court is not polarized as the United Supreme Court into right vs left judges - whose political strips are easily discernable.

That Mr. Harper gets to make two appointments very early into his majority mandate is significant and important. It is likely that he will have four more picks to make. It is, therefore, the task of the legal historians in years to come to determine whether or not his appointments and reshaping of that Court made any difference.

 

The Toronto Police enters the political realm with the blackmail of Jack Layton

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor and Notary Public

The hot topic on facebook, twitter and in the news media is the release of information in relation to the apparent encounter Mr. Jack Layton, Leader of the New Democratic Party, had with a member of the Toronto Police Service at a massage parlor in 1996. The information was leaked in an attempt to blackmail Mr. Layton, who is surging in the polls.

Today I wrote to the Chief of the Police Services Board stating, amongst other things that:

April 30, 2011                           416-808-8082 

Alok Mukherjee

Chair

Toronto Police Services Board

40 College Street 

Toronto, Ontario, M5G 2J3 

Dear Mr. Mukherjee:

Release of information regarding Jack Layton

I was appalled and distressed at the partisanship or the perception thereof of the Toronto Police Service entering the realm of the political sphere by releasing information quoted directly from a police officer’s memobook in the Toronto Sun that appears in the nature of attempting to blackmail a leader of a political party.

….

Disclosing personal information about a person who was not charged with a prostitution related offence challenges the presumption of innocence and stigmatizes the person in a way that is totally unacceptable in a society where the rule of law prevails.

There was no duty to warn in the circumstances here and Jack Layton was unfairly targeted.

Your civilian oversight agency is responsible for setting policy that guides the Toronto Police Service. Without attempting to be personal, this appears to be a failure on the part of the Toronto Police Services Board and the Toronto Police to preserve law enforcement information that should be confidential unless there is lawful authority for its release. Please point me to the authority the made releasing that information about Jack Layton in the public interest.

The conduct in question appears, in my view, to be unlawful.

An investigation should be launched, criminal charges should be laid against the person who improperly released that information and the supervisory officers who failed to ensure that the notebooks of Toronto Police Service, which is properly its property and not that of an officer should be held accountable.

Please confirm that you have a policy in place that is being enforced by the Chief of Police that all memobooks are turned in when it is no longer in use.

The Chief of Police, William Blair responded by email as follows:

From: William.Blair@torontopolice.on.ca [mailto:William.Blair@torontopolice.on.ca]
Sent: Saturday, April 30, 2011 4:56 PM
Subject: Re: Jack Layton

Mr. Pieters.

Today, I made a formal request of the Ontario Provincial Police to conduct a Criminal Breach of Trust Investigation into this matter to determine if any offence has been committed.  They have assigned a Detective Inspector from their Criminal Investigative Branch to head up their investigation.We will of course, cooperate in every way.  It has been reported that the source of the information is a former Toronto Police Officer.

Thank you for your detailed explanation of those sections of the Police Services Act which pertain to the conduct of serving police officers, and to the release of information by a Police Service.  Although of limited relevance in this matter, as the source is apparently not a serving member

of our Service, they remain important.   We do, in fact ensure compliance by those over whom we retain jurisdiction under the Act.

William Blair

Chief of Police

Toronto Police Service

The Chair of the Police Services Board then wrote:

From: Alok.Mukherjee@tpsb.ca [mailto:Alok.Mukherjee@tpsb.ca]
Sent: Saturday, April 30, 2011 5:11 PM
To: William.Blair@torontopolice.on.ca; selwyn
Cc: Lorrie Goldstein; Sam Pazzano
Subject: Re: Jack Layton

Chief,

Thank you for copying me on your reply to Mr Pieters.....

I am satisfied with the response provided by you. I will reply on Monday.

The issue of safe custody of records is a significant one in order to ensure they are not misused. I believe you have already acted appropriately to deal with it.

Chair Mukherjee

The fact remains that the information came from someone who was appointed as a peace officer while employed by the Toronto Police Service.

For the Chief of Police to say that the law on the release of information is of "limited relevance in this matter" goes to the lack of control that organization has over its members and the public release of information. Memobboks are the property of the Toronto Police Service and not the individual member. All memobooks of officers that are no longer in use must be turned over to the service.

The Chief of Police of the Toronto Police Service's response is disappointing but not surprising.

In any event, it should be an independent civilian entity that should be investigating the allegations not the Ontario Provincial Police.

My dialogue with the Toronto Police on the release of information on Jack Layton and the response is quintessential on how broken that organization is and its failure to properly supervise its officers and account for its property.

 Layton confident voters will dismiss massage parlour 'smear campaign', Globe and Mail, April 30, 2011

Ont. cops probe leak after Layton massage story breaks CANOE‎, April 30, 2011

Sun Media uses parlour tricks to feign credibility Rabble

 Police to Investigate Leak of Jack Layton's Massage Parlour Visit suite101, Arthur Weinrib

Law Society of Upper Canada Benchers' Elections

The bencher election is important so vote, let your voices be heard!!!!!!

Make the governing body that regulates lawyer diverse in terms of calls, age, race, sex, sexual orientation, ethnicity and religious background. Make it also diverse in terms of the lawers who serve i.e sole practitioners, government, academics, mid-size firms, large firms. All voices need to be represented and heard.

 

My picks for LSUC Benchers - VOTE LAWYERS!!!!!!:
Mark Sandler
Basil Alexander
Avvy Go
Raj Anand

Constance Backhouse

John (Jack) Braithwaite
Julian Falconer
Dorette Pollard
Beth Symes
Paul Schabas
Dan Guttman
Tracey Wynne
Janet Leiper
Kimberly R. Murray

 

Lawyers as witness: when is a lawyer not a compellable witness

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

Lawyers face the prospect of being summons as witnesses for various reasons including:

1. By the Crown, when an accused is attempting to have a guilty plea struck
2. By a Client, when that client or his/her counsel feels the lawyer or former lawyer has relevant evidence to give on a point in dispute.

The test is always relevant and even if relevant, whether the evidence is necessary.

On the issue of necessity is the solicitor-client privilege that exist or existed between solicitor and client. Clearly without an explicit waiver, such privilege is almost absolute.

In Smith v. Peel Regional Police Services Board, 2011 HRTO 628, the Human Rights Tribunal of Ontario was confronted with that very issue, involving an unrepresented litigant:

[5]               The applicant delivered a summons to her former lawyer compelling him to attend the hearing.  The lawyer applied to the Tribunal to have the summons quashed on the basis that it was not properly served (no conduct money was delivered), that he had no relevant evidence to give, and that any evidence he could give would be protected by solicitor client privilege.  The respondent agreed that the lawyer was not a compellable witness.  The applicant did not respond to the lawyer’s Request to quash the summons.

 [6]               The complainant has not given any indication what evidence she believes her former lawyer could provide in respect of this Application.  She has not responded to the Request to quash the summons, nor indicated that she would waive solicitor client privilege.  In these circumstances, the summons is quashed and the proposed witness need not attend the hearing.

Michael McKinnon v. MSGCS - Settlement Reached after 23 Years of Litigation

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public


After 23 years of litigation before the Human Rights Tribunal for Ontario, Michael McKinnon and the Ministry of the Community Safety and Correctional Services has reached a settlement.


In a short and brief decision on March 24, 2011, the usually, non-plussed, adjudicator, Professor Hubbard wrote:

[1]        Upon being advised that the parties have reached a settlement of all outstanding issues, it is hereby ordered that this proceeding is terminated.

This case was one in which Mr. McKinnon fought the good fight for all of the years. It is also a fight in which the adjudicator now in his 80's was a formidible force that the Ministry had to reckon against.

This is also a case where the Ministry, ill-advisedly, dug its heels in against both Mr. McKinnon and the Tribunal and, in effect, flagrantly twarted the intent and spirt of the Tribunal various orders.


Recently, the Tribunal stated a case of contempt against the Deputy Minister. In writing on that issue I stated:

The penultimate paragraph on which the stated contempt is based does not seem dispositive of the rationale of Professor Hubbard as to why the Deputy Minister Divisional Court should inquire into a stated case of contempt against the Deputy Minister. The Tribunal did not make findings of facts on the credibility of Ralph Agard. It is assumd that he is found to be credible. Problematic and troubling, however, is his admission that he previously misled the Tribunal in his capacity as an Assistant Deputy Minister (ADM). I think one should parce that admission to determine whether it is self-interested, given the former ADM was fired and is in litigation with the Deputy Minister in respect to that termination, particularly over his substantial loss of income, the expenses related to pursuing his lawsuit and any emotional distress, humiliation, loss of respect and esteem, adverse effects upon his personal, social and business life, that resulted from the lost of his job. I guess, from that perspective, upon reflection, I can see how the former ADM would relate to Mr. McKinnon and that is reflected in his answers as cited in para. 185.

Racism, racial profiling, racial harassment and racial stereotyping of Blacks, visible minorities and Aboriginals are not uncommon correctional facilities. And it effect is it creates, entrenches and perpetuates a myth of normality. For the recipient, the result is hurtful and counterproductive. The workplace is also affected, because the public policy in Ontario which “recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and is able to contribute fully to the development and well being of the community  and province”, is replaced by false negative racial stereotypes, and misinforming perceptions by law enforcement “peace officers” who are sworn to uphold the  law.

Mr. McKinnon has the right to a safe and respectful workplace, as all other employees does. Inmates have the right to a safe, harassment free and respectful correctional facility. The issues that arise in the Ministry twarts that. In any event, 

McKinnon v. Ontario (Correctional Services), 2011 HRTO 263 (CanLII) is very rare, ground-breaking and will certainly garner a lot of attention and litigation.For a profile of Jay Hope, see Jay Hope - University of Toronto - Great Past - Great Minds Bio and here. Mr. Hope profile does not indicate a person who would condone or tolerate racism, racial profiling, racial harassment and racial stereotyping of Blacks, visible minorities and Aboriginals, quite the opposite indeed.

I have a great degree of respect for Deputy Minister Hope and Mr. Michael McKinnon and I tip my hat to both of them for successfully resolving this matter!!!!!

RIP Dudley Laws (May 7, 1934 – March 24, 2011)

Dudley Laws died on Thursday 24 March 2011 at 2:47 am .

I moved to Toronto in 1987 as a teenager. Dudley opened my eyes to 
social conditions of inequality and racism in policing in Toronto. As 
a lawyer he placed confidence in me and allowed me to litigate some 
interesting death in custody cases on behalf of the Black Action 
Defence Committee. He most certainly spoke for me with that voice now 
silenced. RIP Dudley Laws.

There will be a wake at Jamaican Canadian Center on Friday April1, 2011 at 6:00 p.m. 

Dudley Laws funeral service will be held on Saturday April 02, 2011 at 10:00 a.m. at the Revivaltime Tabernacle Church 4340 Dufferin St at Finch.  He will be laid to rest at Glenview Memorial Garden Funeral Home 7541 hwy #50 (just north of Steele  Ave) in Woodbridge.  

See the following links to relevant articles on Dudley's Life and Death:

http://www.thestar.com/news/article/961987--james-dudley-laws-stung-and-inspired-a-generation

http://www.dudleylawsday.com/
http://www.dudleylawsday.com/scholarship.html
http://www.sharenews.com/opinion/2011/03/24/dudley-laws-speaks-me#comment-866
http://www.theglobeandmail.com/news/national/toronto/crusading-social-activist-dudley-laws-dies/article1955738/
http://news.nationalpost.com/2011/03/24/remembering-black-rights-activist-dudley-laws/
http://www.citytv.com/toronto/citynews/news/local/article/120942--activist-dudley-laws-dead-at-76
http://www.newstalk1010.com/News/localnews/blogentry.aspx?BlogEntryID=10219302
http://www.thestar.com/news/article/957063--jamaican-community-friends-honour-activist-dudley-laws
http://www.cbc.ca/hereandnowtoronto/episodes/2011/03/24/dudley-laws-remembered/
http://news.ca.msn.com/local/toronto/article.aspx?cp-documentid=28122186
http://www.sharenews.com/opinion/2011/03/24/dudley-laws-%E2%80%93-always-there-community
http://www.thestar.com/news/article/960014--black-activist-dudley-laws-dies-at-age-76
http://www.680news.com/news/local/article/202510--controversial-toronto-activist-dudley-laws-dies-at-age-76