BLSAC Conference 2011

This year I attended BLSAC Conference as a panellist on the following subject matter

Racial Discrimination and the effectiveness of the Judicial System: A discussion of human rights tribunals as effective recourse in racial discrimination cases. The pannelist were:

1. Selwyn Pieters, lawyer
2. Sonia Lawrence, Lawyer and Law Professor
3. Royland Moriah, Lawyer
4. Richard Miller, Lawyer, Human Rights Legal Support

I addressed the Pieters v. Peel Law Association case as well as cases such as Shallow v. Toronto Police Services Board and Hamalengwa v. Ontario, as illustrative of lawyers who are championing the issue of equality rights and are not themselves immune from racial discrimination, racial harassment and racial profiling.

Professor Lawrence discussion of the SCC decisions in Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9 was very helpful!!!! She reminded us that one has to be strategic in choosing the right forum to litigate. The majority of the SCC held in that case that "it should be noted that an action in defamation will not always be the appropriate recourse in cases concerning racism or discrimination.  In the instant case, I am of the opinion that it is not the appropriate recourse."

I ran into a few colleagues and friends. I was very pleased to see The Honourable Justice Romain Pitt, of Ontario Superior Court of Justice

 

Human Rights Tribunal of Ontario stated Contempt Case Against Deputy Minister by Selwyn A. Pieters, B.A., LL.B.

In McKinnon v. Ontario (Ministry of Correctional Services) (2001), 39 C.H.R.R. D/308), Professor Hubbard commenced his judgment as follows (in 2001):

Beginning with his human rights complaint of November 29, 1988 (the first of many), the com-plainant, Michael McKinnon, a Canadian of Aboriginal descent, has consistently striven to rid his workplace of the racist behaviour with which, some ten years later, this Board of Inquiry found the Toronto East Detention Centre to have been "redolent ... particularly towards black employees and inmates - which was a matter of considerable concern to the complainant as well, as is made plain by his many documented efforts to have such conduct redressed."  What must now be decided is whether his struggles for that particular outcome have thus far been in vain and, if so, what is to be done. (emphasis added)

 In McKinnon v. Ontario (Ministry of Correctional Services) 2007 CarswellOnt 9187, Professor Hubbard wrote:

144          Counsel for the Complainant submitted that, since "we are urging you to make factual findings regarding" the Deputy Minister, the Tribunal should order that the Minister has ultimate responsibility for the implementation of its orders. She pointed out that the organizational chart for the Ministry places the Minister at the top (Exhibit 80). In her view, moreover, since the Minister acted as the institutional spokesperson in respect of a call for a public inquiry regarding racial slurs and death threats directed at black officers at various Toronto jails, his ultimate responsibility is clear. The public inquiry was called for by David Mitchell, a deputy superintendent at the TEDC, and Charlene Tardiel, a correctional officer at the Mimico Correctional Complex, who were amongst those who received threatening letters. The Minister's response made reference to the orders of this Tribunal, as indicated in the April 7, 2006 news item in the Toronto Sun (Exhibit 196, Tab 3), which reads in part as follows:

... The request [for an inquiry] comes 15 months after another officer received the first of about 20 letters threatening hundreds of black and South Asian officers working at Toronto jails. ... Certain information in the letters led Mitchell's lawyer, Selwyn Pieters, and [Donald] McLeod [Tardiel's lawyer] to believe they come from colleagues. ... Community Safety and Correctional Services Minister Monte Kwinter said yesterday that police and the ministry are investigating the allegations. He said a public inquiry would have to be called by the attorney general once police finish their investigation. Previous complaints to the Ontario Human Rights Commission led to a tribunal that made recommendations to the ministry, with two outside consultants to ensure the recommendations were implemented, Kwinter said. "There are people who have particular biases," he said. "We have to find out who they are and get them out of there."

Ten years from the 2001 judgment (2011), in what appears to be the continued nonplussed irritation of Professor Hubbard, an adjudicator, with the Human Rights Tribunal of Ontario, of the Ministry of Community Safety and Correctional Services' efforts or the lack thereof to maintain a harassment free and respectful workplace, one that would facilitate Michael McKinnon's return to work, the Tribunal on February 08, 2011 has stated a case of contempt against Deputy Minister [JH] (one of the very few African-Canadians to ever be appointed Deputy Minister in Ontario):

[175]   The OED had been established in part to see to the implementation of the board’s orders, and the effectiveness of its work toward that end was of utmost importance to the Complainant. This is reflected in paragraph 40 of his Request, which is as follows:

The Operational Review – Exhibit 40 contains shocking and extremely troubling allegations and findings that were highly relevant to the Tribunal proceedings. Its findings of the state of fear and confusion in the OED raise highly relevant concerns about the OED’s ability to implement orders and address racism. The troubled state of the OED directly affected Mr. McKinnon and Ms. Shaw McKinnon as the staff were not able to implement the Tribunal orders, causing a setback to their implementation for many months, if not indefinitely.

[176]   Mr. [JH]  knew that there were serious problems in the OED even before Dr. Agard was entrusted to give an accounting of the Ministry’s successes and of its good faith endeavours to comply with the board’s orders. Yet this task was placed in Dr. Agard’s hands even while anonymous emails were circulating about racism, cronyism and unacceptable behaviour within the OED itself. During the course of the hearing, the accusations, feelings and beliefs of staff members described in Exhibit 40 were being gathered and unsavoury rumours of misconduct were swirling around the OED and its embattled Assistant Deputy Minister. Dr. Agard was not fired immediately, but he was effectively replaced in many essential functions by a triumvirate of former police officers in a de facto “reorganization” of the OED of which the parties were not advised and had no means to be aware of. Although Exhibit 40 was not disclosed until Mr. [JH]  took the stand, matters had reached the point when on October 1 (four days before he was fired) it was thought advisable to make an oblique and non-judgmental reference to the situation in the OED in order to disclose that change in Dr. Agard’s authority. .....

[182]   One last point I would make regarding the exercise of discretion is a reference to Mr. [JH]’s memorandum of September 15, 2010 addressed to “All Correctional Services Division Staff”.  In the course of that memorandum, Mr. [JH] makes this statement:

Further to my memos of October 2009 and March 2010, where I spoke of the progress we were making on the implementation of these orders and my intention to be in full compliance by July 2010, I am very pleased to announce that following several months of diligent and concerted effort, we have collectively met that goal. The Ministry is now taking the position that we are in compliance with the HRTO orders but for those contingent on the employee’s return to work.

[183]   This memorandum was sent out without any vetting by METRAC, the monitor appointed for the purpose. It was circulated while hearings to determine extremely serious allegations were going on and while a motion to state a case of contempt against the Ministry and Mr. [JH] was pending. Faced with the allegation that this memorandum, too, was shameful, the Ministry’s reply was, in effect, “Well, we simply said that such was the position we are taking, and surely we’re entitled to say that that was how it looked to us.”

[184]   One must pause to consider the actual harm and distress that memorandum caused the McKinnons—consequences that I think any reasonable person would have foreseen. The Correctional Services Staff would not say to themselves: “This is simply the Ministry’s position and it may well be that some monitor (of whose existence they are probably ignorant) might disagree and that perhaps more is needed to be done before the long-suffering McKinnons can return safely to work”. Rather, they would most assuredly think, “What’s wrong with the McKinnons. Everything they asked for has been done. All that remains is for them to return. What are they, a couple of freeloaders?” That memorandum seems calculated (“apt”) to show Mr. McKinnon in a bad light and exacerbate his situation, not improve it.

[185]   Mr. JH’s memorandum is to be contrasted with Dr. Agard’s admissions made under cross examination that he had mislead the board about the successes allegedly achieved, and in the course of which the following exchange with Ms. Hughes occurred (transcript, page 3398):

Q. ... you said in September, it's safe for Michael McKinnon to return to work.

A. I believe, I believe it was at that time. And when I do provide my thinking, I think all of this will become clear.

Q. But you don't think it's safe for him to return now. You couldn't even survive there, right?

A. No, I couldn't -- I, I – my current opinion?

Q. Yes.

A. Is that what you're asking?

Q. Yes.

A. In my professional opinion, I would say no, it's not safe. 

CONCLUSION

[186]   Having concluded that the Complainant has established a prima facie case of conduct falling within s.13(1) of the SPPA, for the reasons set out in the last section, I have decided to exercise my discretion in the matter by requesting the Divisional Court to inquire into whether Deputy Minister [JH] is in contempt of the board’s orders.

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.

The Process Server and the Lawyer

Today I am meeting in the conference room with a client and alas I am buzzed.

The receptionist tells me there is a process server outside wanting to serve me personally. I thought nothing about it. Went out, and there I am served with the Notice of Application for Judicial Review of Peel Law Association and Melissa Firth v. Selwyn Pieters and Brian Noble, 61/11.

The Notice quarrels quite a bit with the Tribunal the most outrageous of which is "The Tribunal unreasonably based its findings of discrimination in a finding of credibility with respect to evidence relating ti irrelevant issues.

Since its a cold night I am *sipping hot chocholate*

Its very rare that Applications for Judicial Review succeeds. Lets see how this one unfolds.

In the meantime, if a junior lawyer with no more than one year of call is interesting in taking this case on for experience, I will gladly retain you, as it was an articling student one month into articling that successfully litigated Pieters v. Peel Law Association, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 2398

The difficulties of cross-cultural identification where the victim, witnesses and accused have cultural and racial difference

In litigation, where the victim, witnesses and accused have cultural and racial difference, identification invariably become significant, particularly where and when they are cross-cultural strangers: R. v. Wright, 2011 CarswellOnt 63, [2011] O.J. No. 76, 2011 ONSC 194 (Ont. S.C.J., Jan 10, 2011), is illustrative of such difficulties. Ms. Robinson is White, Mr. Wright is Black.

Mr. Justice Frank Marrocco made the followig findings based on the evidence of this witness in cross-examination, that I conducted of her:

15     Ms. Robinson made two observations about the unmasked robber on which I intend to comment. I make this observation because a serious inconsistency between Ms. Robinson's description of the robber and Mr. Wright's appearance would have been relevant even though I attached no weight to her in-court identification of Mr. Wright.

16     First, Ms. Robinson said the unmasked robber was a light-skinned black man. Ms. Robinson indicated that she had worked in the entertainment industry as a singer for the last ten years. She said she had some experience with light-skinned, brown-skinned and dark-skinned black people. Pictures of the accused were introduced in evidence in exhibits 9 and 14. No expert evidence was called concerning the accuracy of the description of Mr. Wright as a light-skinned black man. Accordingly, I attach no significance to this observation by Ms. Robinson. I do not believe that it is appropriate for this court to determine, in the absence of evidence, whether it is accurate to describe Mr. Wright as light-skinned.

17     Second, Ms. Robinson said that the unmasked robber had a "chinstrap beard". She said it came around his face thinner than a full beard. Mr. Wright's beard can be seen in exhibits 9 and 14. Ms. Robinson's description of the beard is not inconsistent with the beard shown in those photographic exhibits. Nevertheless, for the reasons which I set out earlier, I attach no weight to her in-court identification of Mr. Wright.

In another case, R. v. Taylor, 2010 ONCJ 396, [2010] O.J. No. 3794, whether the victim as White and the accused Black, Mr. Justice Green observed:

62        The nature of the identification in this case requires me to alert myself to the risks associated with this species of evidence. Eyewitness identification evidence, particularly of cross-cultural or cross-racial strangers in, as here, heated situations with limited windows of observation, are notoriously suspect. As said by the Court of Appeal in R. v. Hanemaayer, 2008 ONCA 580 (Ont. C.A.), at para. 29, "Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions". Eyewitness identification evidence — even standing alone and even where, as here, bottomed on the testimony of a single witness — can ground a legally and factually unassailable finding of guilt. However, appellate courts have repeatedly cautioned jurists of the need for special caution in assessing such evidence: see, e.g., R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.); R. v. Trochym (2007), 216 C.C.C. (3d) 225 (S.C.C.); R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.); R. v. Spatola, [1970] 3 O.R. 74 (Ont. C.A.); R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.); and R. v. A. (F.), [2004] O.J. No. 1119 (Ont. C.A.).

63        Eyewitness identification is particularly dubious where, as here, it includes dock-identification (the pointing out in court of the defendant as the alleged perpetrator) or, in a worst-case scenario, where positive identification occurs for the first time in a courtroom setting. (See, e.g., R. v. A. (F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.) and R. v. Tebo (2003), 175 C.C.C. (3d) 116 (Ont. C.A.). Given the circumstances surrounding Cid's dock-identification of the defendant, and given Cid's own explanation of the factors bearing on the integrity of this identification, as quoted earlier, Crown counsel rightly eschews any reliance on the witness' courtroom identification of the defendant. Her, theory, instead, is that Cid's initial and careful inspection of his assailant and his uninterrupted observation of that man until the point when the man — unquestionably the defendant — is arrested by the police confirms the reliability of his identification. In other words, the continuity of Cid's observation, coupled with his honesty, affords adequate proof of the defendant's commission of the assault.

These observations by Jurists reinforces the responsibility of all participants in the criminal justice system to display cultural competence and to be alert and alive to the difficulties inherent in this species of evidence.

My friend, Leanne O'Donnell, also referred me to a timely article Mark Roth, "Looking across the racial divide: How eyewitness testimony can cause problems" December 26, 2010, Pittsburgh Post.

Black History Month 2011

Its that time of the year again, Black History Month. This is the time of the year where I am over extended with various community engagements, in addition to the usual workload.

I was at the OBHS Brunch, where I caught up with old friends and met new ones. The Honourable Reverend Don Meredith of the Senate in Canada as well as The Honourable Magarett R. Best, of the Ontario Cabinet were present.

These are some upcoming BHM events I commend to your attention

February 8, 2011, at 4:00 p.m. The Law Society of Upper Canada and the Canadian Association of Black Lawyers are pleased to host a panel discussion and reception to celebrate Black pioneers in the legal profession in honour of Black History Month

February 12, 2011 at 12:00 p.m. The Canadian Association of Black Lawyers  will be having its Annual General Meeting of the members at the OBA Conference Centre, 20 Toronto Street, 2nd Floor, Toronto, Ontario.

February 13, 2011, at 12:00 p.m., Jamaican Canadian Association, Annual Boonoonoonos Fundraising Brunch, Arrow Road and Finch Ave. West

February 16, 2011 "Black Out: Who's Missing in Criminal Justice?" 5:30 p.m. Heaslip House, 297 Victoria St. Ryerson University. Info: 416 979 5000 x 6566

February 22, 2011, "Selwyn" 7:00 p.m., National Film Board, Richmond and John Streets, Toronto

February 24, 2011, 20th National BLSAC National Conference, "The Evolution of the Black Law Students Association of Canada: 20 Years Strong" Intercontinental Yorkville Hotel