Selwyn: 2014

Saturday, December 27, 2014

Review of my more important, challenging and interesting cases in 2014

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 December 27, 2014
Updated on December 29, 2014

This is a review of my year of litigation. In 2014 my journey through litigation took my through several practice areas including education law, human rights, police law, criminal law, civil litigation, administrative, constitutional and public law. I won some, I lost some, I resolved some and other cases were litigated on principles so that whether lost or won, the important issue was the principle and standing up for justice.

Constitutional and Public law

I was involved as co-counsel at the Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 242 A.C.W.S. (3d) 772, 27 Imm. L.R. (4th) 216, 376 D.L.R. (4th) 258 affirming McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 290 C.R.R. (2d) 332, 20 Imm. L.R. (4th) 121, 117 O.R. (3d) 353, 2013 ONSC 5895, E.M. Morgan J. (Ont. S.C.J.). See also Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 3521 (ON S.C.). Leave to Appeal has been sought at the Supreme Court of Canada. The applicants' position are the Oath to the Queen in the Citizenship Act violates sections 2(a) and (b) Charter of Rights and Freedoms and cannot be saved by section 1.

Leave to Appeal was granted by the Ontario Court of Appeal in the case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2014 ONSC 2169 (Div. Ct.) and Taylor-Baptiste v. Ontario Public Service Employees Union et al, 2014 ONSC 5218 (costs). Counsel at the Court of Appeal and Divisional Court are Ranjan Agarwal and Amanda McLaughlin of Bennet Jones. At the Human Rights Tribunal I represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO.

Human Rights Law

On October 16, 2014, Mr. Justice Wagner of the Supreme Court of Canada granted the Center for Research-Action on Race Relations leave to intervene in Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (Quebec) (Civil) (By Leave). This case has interesting parallels to Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695. I am co-counsel with a Quebec Lawyer Aymar Missikala. In our written arguments we take the position that:

18 . Since the Ontario Court of Appeal in Pieters expressly repudiates the unacceptable notion of a "causal nexus" in proving discrimination and profiling, CRARR submits that the Supreme Court has a historic opportunity, with this appeal, to end the more formalistic and restrictive civilist "causal link" test as retained by the Court of Appeal of Quebec that directly reverts to the rejected and rigid intent-based conception of discrimination.

19. The objective is not to set in motion a collision between the Quebec Civil Code and Quebec's civilist tradition with the constantly evolving dimensions of the Canadian Charter of Rights and Freedoms and the common-Iaw tradition on equality in particular, but rather to create a more perfect harmony between the two dominant legal cultures in Canada in order to provide more effective and equal protection to victims of race and other discrimination, be they in Quebec or in the rest of Canada, and be they French-speaking or English-speaking.

Oral arguments are being heard on January 23, 2015.

Another significant case litigated in 2014 was an employment discrimination case Patterson v. Toronto District School Board. This was an application that alleged discrimination in employment on the basis of age, race, ancestry, colour and association with a person identified by a Code ground. The applicant has also alleged that he experienced reprisal or the threat of reprisal. The case generated several reported decisions including:

Patterson v. Toronto District School Board, 2014 HRTO 635 (Series of events)

Patterson v. Toronto District School Board, 2014 CarswellOnt 713 (Recording hearing)

Patterson v. Toronto District School Board, 2014 CarswellOnt 454, 2014 HRTO 66 (Productions - Disclosure of documents)

Patterson v. Toronto District School Board, 2014 CarswellOnt 446 (further - disclosure)

Patterson v. Toronto District School Board, 2014 CarswellOnt 238 (the Request sought statistical data: with respect to the racial makeup of the senior management levels of the respondent Board; the number of Black Principals in the Qualified Applicant Pool and the racial makeup of the “Senior Team”. In addition the applicant seeks particulars of some element of the respondents’ response.)

Patterson v. Toronto District School Board, 2014 CarswellOnt 83 - (witnesses - will-say)

I have completed hearings on the merits in Lewis v. Toronto Transit Commission. Mr. Lewis, an African-Canadian male, filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination with respect to employment because of race, colour, place of origin and reprisal. The decision is reserved.

Police Law (hybrid Human Rights)

In Afzal v. Regional Municipality of Peel Police Services Board 2014 CarswellOnt 10803, 2014 HRTO 1200, [2014] O.H.R.T.D. No. 1210. The applicant who was self-represented filed an Application under s. 34 of the Human Rights Code, alleging discrimination with respect to employment because of race, colour, place or origin, ethnic origin. He leter retained counsel to assist him with the process. At that point better pleading were drafted and amendments were opposed by the organizational and personal respondents. The Tribunal Ruled that "[15] Having considered these factors, I grant the applicant’s request to amend the Application but only in part. At the outset, I note that the applicant’s request to amend his Application was made at an early stage of proceedings. Although the respondents have each filed Responses, no hearing has been scheduled and no disclosure has yet been made. This factor would generally weigh in favour of granting the applicant’s amendment request." I was able to provide better pleadings for a police officer who alleged that he has been subjected to discrimination and/or retaliation by Supervisors. See also, Afzal and Peel (Regional Municipality) Police Services Board, Re 2014 CarswellOnt 9011.

Emms v. Waterloo Police Services Board - Tribunal File: 2013-14928-I - This was an application where a police officer alleged discrimination against her in employment on the basis of sex and disability contrary to sections 5(1), 7(2), 7(3)(a), (b), and 9 of the Human Rights Code. The application also alleged that the employer took retaliatory action against her in contravention of section 8 of the Code.

I also had the opportunity to litigate Clarke, Clarke and McDonald v HMQ (CSCS) - Tribunal File Nos. 2013-15247-I, 2013-15248-I, 2013-15496-I. This was an application alleging racial profiling in the provision of services by the Ontario Provincial Police.

I appeared before the Toronto Police Services Board in two cases: The first involved a recommendation by the Chief of Police to revoke the Special Constable Status of a Toronto Community Housing Corporation Officer. I was successful in having the Board reject the recommendation of the Chief of Police. The second involved representing a probationary constable who the Chief of Police recommended that his appointment be terminated. The Board accepted the recommendation of the Chief of Police.

Criminal Law

I am involved in drugs, guns and gang case "Project Rx". In that case over 70 persons were arrested by police officers in a joint forces operation. It is still in the early stages of its movement through the Courts.

I represented a young person in a reported matter: R. v. C.(K.) 2014 CarswellOnt 11887, 2014 ONCJ 445, [2014] O.J. No. 4183, 115 W.C.B. (2d) 418 this is a case where a Youth Court justice crafted a unique remedy to a case in which a young person plea guilty to robbery. The headnote from westlaw reads: "Accused young person was currently 19 years old and had no criminal record — Accused young person and two males entered washroom at party where some people had gathered, then brandished gun and demanded that everyone turn over their belongings, including watches, purses, and i-Phones — Accused approached complainant, searched his pockets, took his wallet and keys, then shoved and taunted him, and repeatedly punched him in face — Accused young person pleaded guilty plea to armed robbery — Trial judge sentenced accused young person to five months’ probation, then four months open custody, and two months community supervision — Trial judge also ordered ten-year weapons prohibition and made DNA order — Presumption of diminished moral blameworthiness was not rebutted — Although accused did not possess or brandish weapon, he was not only party to its use, he was active participant in robbery — Accused’s actions resulted in physical and psychological harm to victim, and his use of physical violence was gratuitous — Accused had significant and long-standing issues that had been identified, but not addressed — While accused was open to change in his behaviour, any conclusion as to his ability and willingness to pursue his own rehabilitation remained speculative — Accused was at moderate risk of re-offending and was willing to attend counselling — Accused was required to serve probation order first, then appear before court for review at beginning of custodial portion of sentencing — If circumstances were appropriate to do so, period of custody and supervision would be converted to period of six months probation."

Civil Litigation

Bogiatzis v. Davis 2014 CarswellOnt 16643 has been restored to the normal process of litigation. This is a civil proceedings that followed a criminal matter where proceedings were stayed based on the misconduct of an officer R. v. Bogiatzis 2003 CarswellOnt 3272, [2003] O.J. No. 3335, [2003] O.T.C. 785, 108 C.R.R. (2d) 294, 59 W.C.B. (2d) 545. The Westlaw headnote sets out part of the conduct at issue: [Criminal law --- Charter of Rights and Freedoms — Charter remedies — Exclusion of evidence Applicants were charged with membership in criminal organization and multiple conspiracies related to narcotics and weapons following lengthy investigation into their alleged activities as supplier of drugs to well-known motorcycle gang — Intercepted communications were crucial to Crown’s case against each accused — Investigation conducted by wiretap rested on cumulative affidavit of senior police officer — Officer prepared affidavit based on five bankers boxes of documents provided by various investigative police services involved in investigation — Officer returned documents he considered non-relevant, made use of relevant documents for purposes of affidavit, then destroyed documents by shredding them — Officer did not keep list of shredded documents — Authorizations based on affidavit were granted in sequence over 11-month period with last five authorizations relying on first affidavit — Upon commencement of trial in response to application to compel disclosure of bankers boxes, Crown attempted to reassemble documents by copying originals — Application was brought for stay of all charges on basis that officer’s intentional destruction of documents and consequent non-disclosure seriously prejudiced right to make full answer and defence — At hearing on applications officer testified that in first affidavit he knowingly swore to falsehood regarding informant which was repeated by incorporation in each of five subsequent affidavits — Officer further testified to additional falsehoods in particular later affidavits to support interception of communications of accused as he considered them key targets of investigation — Accused took position that officer’s evidence was so misleading that no reliable evidence existed upon which wiretap authorizations could have been granted — All wiretap evidence was ruled inadmissible — Applications for stay dismissed — Despite non-conscriptive nature of evidence seriousness of breach in obtaining evidence was such that admission of evidence would diminish justice — Officer’s misconduct was flagrant in that he generated wiretap evidence to introduce at trial against targeted persons by deceiving judge authorizing wiretap with false and misleading sworn statements in affidavit — Exclusion of evidence was required to protect integrity of wiretap authorization process.]

Education Law

I am representing former Toronto District School Board (TDSB) Director Christopher "Chris" Spence before the University of Toronto Tribunal in respect to plagiarism allegation in respect to his PhD Thesis. Dr. Spence has filed an abuse of process motion that is to be argued on a date and time to be determined by the University of Toronto Tribunal Chaired by lawyer Paul Morrisson. Various preliminary issues are being dealt with: See, University of Toronto and Spence, Re 2014 CarswellOnt 12490.

In April 2014, I successfully resolved a suspension appeal and an all-schools exclusion appeal pursuant to section 265(1)(m) of the Education Act at Dufferin-Peel Catholic District School Board involving allegations of bullying.

In March 2014, I successfully resolved suspension appeal at Halton District School Board involving allegations of bullying and sexual assault.

Commission of Inquiry

In 2014, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry. I am currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

The Commissioners are Sir. Richard L. Cheltenham, K.A., Q.C., Ph.D – Chairman (Barbados); Mrs. Jacqueline Samuels-Brown, Q.C. (Jamaica) and Mr. Seenath Jairam, S.C. (Trinidad). The Commission’s mandate established by its terms of reference are:-
(i) To examine the facts and circumstances immediately prior, at the time of, and subsequent to, the death of Dr. Walter Rodney in order to determine, as far as possible, who or what was responsible for the explosion resulting in the death of Dr. Walter Rodney;
(ii) To inquire into the cause of the explosion in which Dr. Walter Rodney died, whether it was an act of terrorism, and if so, who were the perpetrators;
(iii) To specifically examine the role, if any, which the late Gregory Smith, Sergeant of the Guyana Defence Force, played in the death of Dr. Walter Rodney and if so, to inquire into who may have counselled, procured, aided and or abetted him to do so, including facilitating his departure from Guyana after Dr. Walter Rodney’s death;
(iv) To examine and report on the actions and activities of the State, such as, the Guyana Police Force, the Guyana Defence Force, the Guyana National Service, the Guyana People’s Militia and those who were in command and superintendence of these agencies, to determine whether they were tasked with the surveillance of and the carrying out of actions, and whether they did execute those tasks and carried out those actions against the Political Opposition, for the period 1st January, 1978 to 31st December, 1980;
(v) To examine, review and report on earlier investigations and enquiries done on and into the death of Dr. Walter Rodney.

The hearings have been adjourned sine die. The main witness Donald Rodney has not provided evidence to date. Dr. Roopnarine has not given his oral evidence. Norman McLean has not yet testified. Cecil Skip Roberts have not yet testified. My client Lincoln Lewis has not provided his evidence as yet.

The life of the Commission expires again at the end of January 2015. Parliament in Guyana has been prorogued and the President announced that elections are to be called on a date to be fixed in early 2015.

Friday, December 12, 2014

Lawyer Regulation, Race and Justice: An updated look at LSUC disciplinary matters involving Black and Visible Minority lawyers

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 December 12, 2014
Updated: December 15, 2014
Updated January 16, 2015
Updated April 09, 2015

As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I sometimes ponder on the social conditions of humanity. I also muse loudly at time on things that appear on the surface to be part of the normal course of operation but deep down in its marrow reveals issues that must be ventillated and indeed challenged, if the need arises.

The Law Society of Upper Canada is a self-regulating body that regulates lawyers and paralegals in the public interest. In so doing it has a Rules of Professional Conduct. Adopted by Convocation June 22, 2000, effective November 1, 2000 and various By-laws that regulate the conduct of lawyers and law firm: "The Law Society regulates more than 47,000 lawyers and 6,000 paralegals in Ontario in the public interest. The Law Society has a mandate to protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario and to act in a timely, open and efficient manner." <http://www.lsuc.on.ca>

The Law Society's process of intake, screening, investigation, proceeding authorization and disciplinary hearings have been talked about a lot by those who are consumers and observers of the system of justice for lawyers who have ran afoul of the law and/or Rules of Professional Conduct. Recently, however, changes have been made, at least to the adjudication side by having a non-bencher Chair (David Wright, former Chair of the Human Rights Tribunal) and non-bencher tribunal members (included the highly regarded Eric Whist). From my reading the adjudicative side, termed the Law Society Tribunal, has developed an independent identity and like other administrative tribunals is setting out its own core values and service standards. This may add some aura of independence and indeed change the perception both of complainants and/or lawyer respondents.

In any event, some of the questions posed in respect to the disproportunate Black and Brown lawyers in theLSUC Tribunal for disciplinary matters include the following:

i) Is there racism and/or systemic racism in the legal profession including in the way lawyers are treated as students, employees, users of lawyers' facilities and/or in the LSUC disciplinary process?

ii) Do the LSUC disproportionately investigate Black and Brown lawyers even for trivial and/or de minimis complaints?

iii) Does it require lawyers to spend countless amount of time documenting everything so that law is mostly defensive lawyering or risk prevention?

iv) Or is it something in the syStem that causes Black and Brown lawyers to fall afoul of the Rules of Processional Conduct more than others?

v) Why are mostly sole practitioners caught up in this mileux?

In R. v. Parks, the Court of Appeal has held that “racism exists within the interstices of our institutions… and is a product of individual attitudes and beliefs… and it fosters and legitimizes those assumptions and stereotypes” R. v Parks, 15 O.R. (3d) 324 [1993] O.J. No. 2157, at para. 43. Racism therefore exist in the legal system and in the system that governs lawyers.

I start out with Pieters v Peel Law Association, 2010 HRTO 2411, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, reversed 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.), affirmed 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695. This case is not a disciplinary matter, rather it is one that shows the exclusionary culture of the profession and who are perceived to be lawyers and non-lawyers based on race. In this case the author (Pieters - Black and Dreadlocked) and his cousin (Noble, also a lawyer) were in the lawyers' lounge of the Brampton Courthouse, during a break in Court proceedings. A Black dreadlocked student (Walrond) was also with them. The librarian demand to the three Black men identification on the premise that paralegals and non-lawyers were not allowed in the lawyer’s lounge. Incidentally, a White non-lawyer police employee was in the lounge and was not challenged. The Librarian's impugned conduct could be summarized as follows:

[121]... The librarian had “interrupted [the first appellant] while he was on the telephone and, it appears, did not introduce herself to the applicants and [the articling student]”. Furthermore, “[f]rom all the evidence, including the personal respondent's testimony of how she generally carried out this function”, the Vice-Chair concluded that “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”.

The Tribunal found discrimination. In upholding that decision, the Court of Appeal wrote:

[72] And so it is in discrimination cases. The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.[73] In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

In a presentation to the Ontario Bar Association event entitled "Hot Headlines in Human Rights–Racial Discrimination and the Legal Profession", September 13, 2013, I stated the following:

The Law Society’s Rules of Professional Conduct governing the conduct of lawyers has both specific and general application. Some of the rules are designed to address specific circumstances while others are designed to have a more general application as not every conceivable situation can be specifically stipulated in the rules. Rule 5.04 however is specific to advocating in a multicultural society. Had the Rules of Professional Conduct been observed in this case, I may not have been standing before you today discussing this matter.
The lawyer also has a duty to society and in the public interest to respect the dignity and worth of every person and to operate their practice in a manner that complies with the OntarioHuman Rights Code. This is important because of the many reports and cases supporting the view that there is systemic racial discrimination in the legal profession and the justice system more broadly.
There are also, of course, wider implications for the law on discrimination in Ontario, especially in the wake of the recent Court of Appeal decision. While my colleagues on the panel will speak more about these developments, I will state broadly that it is clear that it is now easier to “call a spade a spade” when it comes to racial discrimination, and more difficult for those who would engage in discrimination and profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour.

Unlike the Pieters case which was a proceeding litigating racial profiling in the provision of services to the public, Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3, involved professional misconduct findings againstMcSween by a Law Society of Upper Canada hearing panel. In concurring reasons, adjudicators Clayton C. Ruby and Constance Backhouse examined McSween's personal background, antecedents, training and the nature of discrimination and wrote the following, which though lengthy deserve quoting liberally:

[5] Mr. McSween is a 65-year-old Canadian of Afro-Caribbean descent. He was born into extreme poverty in Trinidad and Tobago on May 7, 1945, and came to Canada in 1967. He received a Bachelor of Arts (Honors) Degree and a Master of Arts Degree (Gold Medal) from the University of Manitoba. Mr. McSween worked as an investigator with the Ontario Human Rights Commission and then with the Pay Equity Commission of Ontario. At various points he was employed as a Special Advisor to the Human Rights Commission, a Director in the Citizenship Department, and a Director of Policy in History and Culture for the Government of Ontario. In 1976 he began a PhD at the University of Toronto. He did not finish for health and financial reasons. He testified that he now intends to finish and has only one chapter of his thesis left to complete.

[6] In September 1997, at the age of 52, Mr. McSween started law school at the University of Western Ontario and graduated in 2000. Despite applying for approximately 100 articling positions, Mr. McSween was unsuccessful in obtaining a position. He instead became Chief Operating Officer of Caribana, a position for which he never received payment. Mr. McSween eventually obtained an articling position. He testified that although he wished to learn real estate during his articles, his principal did not allow this.

[7] After passing the bar admission course and being called to the bar in 2003, at the age of 58, Mr. McSween again had difficulty finding employment and applied to approximately 50 law firms. In August or September of 2004, he started as a sole practitioner and real estate solicitor.

[36] Mr. McSween testified that his articling experience left him wholly unprepared for practice, that he did not learn real estate as he wished and that, although he had a good relationship with his principal, he mostly performed non-legal tasks during his training. Because of his difficulties finding employment after being called to the bar in 2003, he decided to start his own practice. He contacted known real estate lawyers to discuss setting up a practice, and yet the only person who offered to help him was Ms. French. He testified that the real estate bar did not seem supportive of his efforts. He was thrust upon her because she was from the Caribbean community and, like him, a Seventh Day Adventist.....
[45] The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people. Indeed, judicial notice of systemic racism in Ontario has been accepted since R. v. Parks, supra in which the Ontario Court of Appeal took judicial notice of systemic anti-black racism in Canadian society. The Court also acknowledged, at paras. 366-369, the devastating results of such acute disadvantage for black persons: unemployment, poverty, and denial of opportunity, the exact circumstances that are alleged by Mr. McSween in the current appeal.
[57] A connection between systemic inequality and the particular offence and the offender had not been shown. The Court did find, however, that such evidence may be relevant in other cases, as the academic and governmental reports respecting African Canadians “chronicle a history of poverty; discrimination in education, the media, employment and housing; and over-representation in the criminal justice system and in prisons.” See ibid at para. 17 and para. 30. This is such a case. The appropriate connection was made by Mr. McSween in his evidence.

3. Racism in the Context of Law

[68] In 1999, the Working Group on Racial Equality in the Legal Profession of the Canadian Bar Association published Racial Equality in the Canadian Legal Profession. The report examines racism in the legal profession and reveals that students from racialized communities have fewer opportunities to secure articling positions and first jobs. They do not benefit from the same articling experience as their non-racialized colleagues who are introduced to clients, assist more senior lawyers on important cases, and who conduct research on a broader range of files. There is no evidence to suggest that circumstances have changed for the better; in particular, articling opportunities have diminished. See: Working Group on Racial Equality in the Legal Profession, Racial Equality in the Canadian Legal Profession (Canadian Bar Association: Ottawa, 1999).
[69] More recently, in 2004, the Law Society commissioned a study entitled Diversity and Change: The Contemporary Legal Profession in Ontario. This report attempted to establish a baseline for tracking diversity and equity in the Ontario legal profession. It found that, when surveyed, lawyers of racialized communities are more likely to reveal that they were denied opportunities to take responsibility for cases because of client objections, and they also were more often subject to inappropriate comments by judges and other lawyers. See: Kay, F. M. et al. Diversity and Change: The Contemporary Legal Profession in Ontario (A report to the Law Society of Upper Canada) (Queen’s University: Kingston, 2004).
[70] It is reasonable to infer that as a group, Afro-Caribbean Canadian lawyers are economically and professionally disadvantaged when compared with their colleagues, and that many face diminished opportunity as alleged in this case by Mr. McSween.
[72] The research into Canadian legal history shows that systemic racism has had a substantial impact on the legal profession. It demonstrates that ideas of legal “professionalism” have been used to exercise power and exclusion based on gender, class, religion, and race. The first minority individuals who sought admission to the legal profession faced significant barriers. Those who succeeded in obtaining entry found that those barriers continued to impact upon their careers when they attempted to practise. Significantly, an increased risk of disbarment was one such barrier for racialized lawyers.
[73] It would be misguided to be aware of this history and yet ignore its contemporary incarnations simply because the legal profession has today become much more diverse. The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. As the evidence in this case illustrates, racialized lawyers continue to face barriers not experienced by their colleagues.

In Law Society of Upper Canada v. Terence John Robinson, 2013 ONLSAP 18 following from the principles in McSween, an appeal panel observed that:

[78] In our view, McSween supports the proposition that systemic racism and discrimination which explains or provides context to why a licensee engaged in misconduct or conduct unbecoming is relevant. This is not unique to Aboriginal licensees. What is unique are the systemic and background factors that affect Aboriginal people, including Aboriginal lawyers and how these factors have affected them.

In 2012, the Law Society of Upper Canada, put together a Challenges Faced by Racialized Licensees Working Group that recently released a Report that is the subject of discussion within the profession. The fact remains though is there is no doubt that a significant number of Black and other visible minority lawers are doing very well, excelling in the legal profession, obtaining appointments to the bench, climbing the corporate and social ladder and the like. On the other hand, there are also some structural barriers that do raise issues not the least of which is systemic discrimination that when it raises it ugly head do pose difficuties from the recipients.

On Wednesday, November 10, 2010, I posted a paper I wrote entitled "A Brief look at LSUC disciplinary matters involving Black and VM lawyers including Real Estate Fraud and Misappropriation" Online <http://selwynpieters.blogspot.ca/2010/11/real-estate-fraud-and-cases-of.html> retrieved on December 12, 2014. That post originated from a speech I presented at the 18th Annual BLSAC National Conference, whose theme was "Assessing the Road Traveled, Strategizing for the Road Ahead: Examining the Law, the Legal Profession and the Community."

In that paper I wrote:

Suspensions and Revocation – a cause for concern

I recently spoke on the disproportionate number of Black lawyers subject to regulatory proceedings, investigations and disciplinary proceedings at the Law Society of Upper Canada. I was asked whether or not Black lawyers are over policed by the society.[1] I tend to think not because of what I observe personally and read from the disciplinary reports. The Law Society, with the exception of spot audits, member annual report and certain obligations it places on lawyers, is reactive. It responds to complaints not necessarily initiates it……

Too many Black and conscious lawyers from the diaspora and other racial minority communities are getting into trouble with the Law Society of Upper Canada for various illegal, wrong or unethical conduct including failing to respond to law society complaints,[2] failing to maintain books and records in compliance with By-law 18,[3] overbilling,[4] be duped by an unscrupulous client, suspended and/or disbarred for frauds[5] and/or misleading clients.[6]

Money for work to be done must be put in trust. All kinds of contingencies can arise, including your client switching lawyers. The money is not yours until the work has been done and the client billed.[7]

It is clear that a cloud of distrust exists when and where there are or allegations of misallocation of funds, misappropriation of funds, or inappropriately withdrawing monies from a client’s trust account.

[1] One lawyer accused the LSUC of racially profiling him: Law Society of Upper Canada v. Munyonzwe Hamalengwa, 2008 ONLSHP 30. He was, however, recently found guilty before a panel composed of the only Black Bencher, Joanne St. Lewis: Paul Legall, Aziga's lawyer facing bar society discipline, Hamilton Spectator, January 23, 2009. The Spectator reported that “As part of its investigation, the law society appointed a forensic accountant to the case. Hamalengwa, a sole practitioner, refused to meet with him or open the books unless the accountant made a fuller disclosure about the nature of the investigation. He has since co-operated with investigators and the law society hasn't yet decided whether he'll be charged in relation to the women's complaints.”

[2] Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2008 ONLSHP 32 (1 month suspension); Law Society of Upper Canada v. Ricardo Max Aguirre, 2007 ONLSHP 46 (suspended); Law Society of Upper Canada v. George Nelson Carter, 2005 ONLSHP 24 (CanLII)

[3] Law Society of Upper Canada v. Oladipupo Emeka Ola, 2008 ONLSHP 133 (CanLII)

[4] Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (2 months suspension for overbilling in addition to various licence restrictions). I was sharing space with him on a sublease, and the landlord took possession of the premises presumably because he was not paying the rent for the leased premises. I not only lost my office space but also came off a murder trial on which I was co-counsel with this lawyer: See, R. v. Aziga, 2008 CanLII 39612 (ON S.C.); R. v. Aziga, 2008 CanLII 53125 (ON S.C.) and newspaper articles: Defendant seeks another delay, Hamilton Spectator, Oct 1, 2008; Barbara Brown, Jail's not nice, judge agrees, Hamilton Spectator, August 7, 2008; 8th lawyer off HIV murder case, Toronto Sun, August 7, 2008. There certainly is a lesson to be learnt here and sometimes it is not about race, it is about the integrity of the person.

[5]Law Society of Upper Canada v. Glen Hugh Peter Abrahams, 2008 ONLSHP 81 (CanLII) – Black Jamaica lawyer who was highly regarded; Law Society of Upper Canada v. Kadir Baksh, 2004 ONLSHP 25 (CanLII), 2004 ONLSHP 0025, 2009 ONLSHP 16 (He was a pillar I the Guyanese and West Indian Communities in Toronto). Mr. Baksh appealed. The decision of the Appeal Panel in the matter of: Law Society of Upper Canada v. Kadir Baksh, 2006 ONLSAP 6 (CanLII), 2006 ONLSAP 6 provides as follows: “[132] A solicitor's participation in multiple mortgage frauds can only be regarded as serious. That seriousness is compounded when the facts reveal that the solicitor was not merely an unknowing dupe. Protection of the public compelled the Hearing Panel to consider disbarment as a potential disposition. The appellant's attitude towards his own misconduct reinforced the view that protection of the public could only have been served by terminating his ability to practise law.” See also, Law Society of Upper Canada v. Winston Gauntlett Mattis, 2009 ONLSHP 5 (CanLII)

[6] Law Society of Upper Canada v. Jonathan Wade Strug, 2008 ONLSHP 88 (disbarred for phantom cases)

[7] Gary Lloyd Gottlieb, Bencher's Diary: A day of discipline, Law Times, February 13, 2009

On the good news front in Law Society of Upper Canada v. Karen Rosalee Caroline Cunningham, 2013 ONLSAP 11 revocation (in 2011 ONLSHP 26) was overturned. The same result occurred in the appeal in Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3 in which a minority of the panel commented on anti-Black systemic discrimination. The majority, while not conceding the point in this case, was somewhat defensive:

[54] I take no issue with the proposition advanced by Mr. Ruby and Ms. Backhouse that, in appropriate circumstances, judicial notice can be taken of systemic racism and discrimination and that, with a proper evidentiary foundation, a hearing or appeal panel can give mitigating effect to systemic discrimination when it impacts on misconduct and influences the lawyer’s actions. My reasons should not be taken as any impediment to this issue being forcefully raised and when raised, carefully considered by hearing panels....

[57] In the appellant’s closing submissions (albeit not in his testimony), he briefly referred to the lack of his equal opportunity to succeed as a mitigating factor. I agree that this was a factor that could be considered by the hearing panel, together with the evidence he gave earlier in the hearing on his great difficulties in securing employment.

[58] That being said, it is difficult to conclude that the hearing panel, based on the record and submissions before it, committed reversible error in failing, for example, to weigh the effects of structural inequality on the lives of black lawyers or the appellant. Equally important, Mr. Ruby and Ms. Backhouse accept the appellant’s evidence as proof not only that he experienced racism and discrimination as a lawyer, but more significantly, that there was a nexus between that racism and discrimination and his knowing participation in mortgage fraud. With respect, there is a fundamental difference between accepting the appellant’s exposure to racism and discrimination as a mitigating factor in why he failed to be on guard against dishonesty and fraud (which was his position) and accepting (contrary to his own testimony) that racism and discrimination explains or provides context to why he knowingly participated in mortgage fraud. It is debatable whether the evidentiary record so easily supports the latter proposition.

Unfortunately, and despite the four years that has elapsed since I last wrote on this issue, the trend continues and in fact, a significant number of lawyers whose cases were featured then returned as repeat offenders: See, Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187 (finding of misconduct. Hamalengwa is now disbarred Law Society of Upper Canada v Hamalengwa, 2015 ONLSTH 57 (CanLII); Law Society of Upper Canada v. Davies Bagambiire, 2013 ONLSHP 55 (finding of misconduct, two months suspension); Law Society of Upper Canada v. Glen Hugh Peter Abrahams (Numerous LSUC applications alleging a wide variety
of misconduct of a serious nature are before adjudication panels); Law Society of Upper Canada v. Elsie Eugina Peters, 2011 ONLSHP 66 (interlocutory suspension); Law Society of Upper Canada v. Akioyamen, 2014 ONLSTH 57 (finding of misconduct, three months suspension); Law Society of Upper Canada v. Raymond Mohamed Ghanie Motee, 2012 ONLSHP 113 (finding of misconduct, one month suspension); Law Society of Upper Canada v. Motee, 2014 ONLSTH 242 (finding of misconduct, four months suspension); Law Society of Upper Canada v. Donna Gayle Mason, 2012 ONLSHP 0092 (finding of misconduct, six months suspension); Law Society of Upper Canada v. Kisaka, 2014 ONLSTH 238 (finding of misconduct, two weeks suspension).

The findings in Law Society of Upper Canada v. Peters, 2014 ONLSTH 163 was quite telling and may well go to the lack of proper mentoring and controls:

[174] Since August 27, 2007, a little over one year after her call to the bar, the Lawyer has engaged in a very serious pattern of misconduct involving: the failure to attend court dates or arrange for an agent, thereby failing to treat the Court with candour, courtesy or respect; failure to respond to opposing counsel; failure to serve clients; and failure to respond to Court orders for costs, in addition to practising while administratively suspended. This pattern has continued up to March 2011, when the Lawyer was suspended and came to the Law Society’s attention through the complaints of other lawyers, clients, agencies and the judiciary, who were dealing with the Lawyer...

On the minor end of the scale in Law Society of Upper Canada v. Ernest Guiste, 2011 ONLSHP 24 and Law Society of Upper Canada v. Ernest Guiste, 2011 ONLSHP 129, Ernest, a human rights champion for the disadvanaged was disciplined for civility that occurred in a mediation seting. In this case a reprimand, mentoring and writing an apology letter was the penalty imposed.

There were some revocations and/or disbarment cases as well: Law Society of Upper Canada v. Marva Maureen Jemmott, 2008 ONLSHP 61, a case involving one of the few Black females in Canada who was appointed Queens Counsel was sad:

[7] The Hearing Panel took note of these facts together with the fact that the Lawyer has had an exemplary career in spite of these difficulties and challenges. She was the co-founder of the Delos Davis Law Guild, one of the earliest legal associations for Black/African-Canadian lawyers in Canada. She was an instructor in the bar admission course for a lengthy period of time, instructing in a number of different substantive areas and also in the practice skills area. She obtained her Queen’s Counsel designation in 1983 and she was awarded the Women's Law Association of Ontario President’s Award. She has been a Lawyer of provincial task forces on policing and how policing issues affect minorities. She has also been associated with legal education at Centennial College. She has received other awards, such as those from the Salvation Army and the Ethnic Press Council. She has been a board member of a United Way agency.

[9] The Panel is also sensitive to the realities of practice for sole practitioners as they age and face challenges of health and the economics of a shrinking practice due to failing personal resources. Ms. Jemmott has put before us compelling circumstances with which we sympathize. As the profession ages there is need for support and preventative strategies to both protect the public and preserve the legacy of lawyers with otherwise exemplary service to the profession

In Law Society of Upper Canada v. Ebagua, 2014 ONLSTA 40. In Ebagua, an appeal panel wrote:

[52] It was not unreasonable for the hearing panel to find that the significant nature and duration of this misconduct, considered in light of the previous finding and penalty, demonstrated an unwillingness to be governed by the Law Society. It was reasonable for the hearing panel to find that the principle of progressive discipline could lead to a finding of ungovernability and revocation, given the seriousness of the 10 related incidents of professional misconduct the licensee had committed across the two proceedings. The panel specifically considered the analogous and very recent nature of the previous misconduct and suspension and found that it could lead to a finding of ungovernability. Its careful reasoning and conclusion, in light of the evidence before it, was reasonable.

In Law Society of Upper Canada v. Williams, 2014 ONLSTH 159, the Panel in looking at the Lawyer's conduct observed that:

the Lawyer’s ethical failings showed when matters were unusual or she was under pressure. She failed to prepare as a professional for such circumstances by educating herself, or to give sufficient attention to the aspects of real estate transactions that may require the detailed attention, expertise and judgment of a lawyer. Throughout the hearing, she did not show that she sufficiently understands the legal and practical judgment she needs to apply on behalf of borrower and lender clients, or demonstrate insight into what she did wrong and how it harmed her clients and others. She was willing to ignore instructions or even rules of professional conduct when the circumstances were urgent.

In the repeat offender case of Law Society of Upper Canada v. Edmund Anthony Clarke, 2011 ONLSHP 1, his case in interesting in that part of his offences were perpetuated on his wife, another lawyer and as well as a family friend. In the reasons for disbarrment the panel wrote:

[34] On June 2, 2003, a Law Society hearing panel found that the Lawyer had engaged in professional misconduct, including misappropriation of trust funds, misapplication of trust funds, and failure to maintain books and records. The misconduct occurred in 1999 and 2000. The panel ordered a one-month suspension, followed by practice review, co-signing controls for two years, and a spot audit. (Tab16) [Law Society of Upper Canada v. Edmund Clarke, 2004 ONLSHP 1]

[38] The Lawyer succinctly stated “I recognize that I have brought all of this on myself”. The Lawyer further stated that “As a repeat subject of professional discipline by the Society, the profession has good reason to be critical of me. I want to say to the Panel, to the Society and to the legal profession as a whole simply and directly that I am deeply sorry for my irresponsible and selfish behaviour that I engaged in and felt that I could avoid the consequences of”. Counsel for the Society, Tanis Rutherford, confirmed the law on revocation contained in Law Society of Upper Canada v. Steven Michael Mucha, 2008 ONLSAP 5 (CanLII) and the panel concurs. The appeal panel in Mucha found that the normal penalty for knowing participation is revocation, absent exceptional mitigating circumstances and that character letters and an absence of discipline history are not exceptional mitigating circumstances. The Lawyer in this case has a previous discipline history. The actions of this Lawyer constitute a most grievous breach in terms of misrepresentation and blatant falsification of documents. A finding of knowing participation has been made and so revocation is the most appropriate penalty. Letters from supportive friends and the helping professions have been reviewed and noted. A Lawyer must act with complete integrity, probity and trustworthiness in order to maintain among members of the public a well-founded confidence. This Lawyer has not done so.

Other cases where revocation occurred included: Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2012 ONLSHP 35 (finding of misconduct, licenced revoked) appeal dismissed Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2013 ONLSAP 0008; Law Society of Upper Canada v. Pradeep Bridglal Pachai, 2010 ONLSHP 130.

In this blog post I did not answer the questions directly but simply resorted to caselaw or the socratic method, which is the most tangible way to address the issues at hand. I believe though that not unlike other service providors and/or professionals, defensive lawyering or risk prevention is not a bad thing. Carefully documenting transactions and/or interactions are a sure way to deal with complaints and/or negligence actions. It is also a way to ensure accountability and to refresh one's memory if the need arises.

The Law Society of Upper Canada should also be aware of the subtle nature of racism in this society and not allow itself to be duped into investigating racial minority lawyers for trivial complaints from people whose ulterior motion is to harass Black or racialized lawyers. This is a legitimate concern of Black and Brown lawyers, particularly those who are high visibility and appear in the media as a result of the nature of the cases that they litigate on behlaf of clients.

********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1; [2014] O.J. No. 3728, 2014 CarswellOnt 10955; Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

Monday, November 10, 2014

Proroguing of the 10th Parliament of the Cooperative Republic of Guyana

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 November 10, 2014
Updated on November 12, 2014

On November 10, 2014, Executive President, Donald Ramotar, in an address to the citizens of the Cooperative Republic of Guyana, provided his reasons for issuing a Proclamation proroguing the
10th Parliament of Guyana. His reasons centered on the No-Confidence Vote that was to be introduced by the Alliance for Change (AFC) and supported by A Partnership for National Unity (APNU), whose combined vote give the opposition a majority in Parliament.

Proroguing is a power the President has under Article 70 (1) of the Constitution of the Cooperative Republic of Guyana, Chapter 001:01.That section provides that:"The President may at any time by proclamation prorogue Parliament." The Legislative history on the debates on the 1980 constitution contains little on the powers to prorogue Parliament. A question was raised by M. F. Singh of the Liberator Party, however, that question did not deal directly with this subject matter. So that their is little to no legislative history on this section of the Constitution in the debates.

On the subject matter of the effect of proroguing Parliament, Attorney at Law, Christopher Ram observed that:

Prorogation brings the sittings of the House to an end and neither the House nor any of its committees may meet following prorogation until Parliament is again specifically summoned to meet. Note however that Parliament is not brought to an end by prorogation and in that regard prorogation differs from dissolution which not only brings the sittings of the House to an end but also brings Parliament to an end and precipitates a general election.

If the President does prorogue the National Assembly it seems that the Executive can function for as a long as six months without any further session or sitting of the Assembly. If my reading of Article 69 of the Constitution is correct, it seems too that the President can re-convene the National Assembly at any time no later than such six months and then immediately prorogue the Assembly again. (Online: Christopher Ram Blog page <http://www.chrisram.net/?p=1577#more-1577>, Tuesday November 11, 2014)

The reasons provided by the President for such an action are as follows:

It is no secret that the Parliamentary Opposition parties had, at every conceivable opportunity, made known their clear intention to have their motion of no confidence against my Government debated instantly at the first post-recess sitting which was called for today, November 10. Their one-seat majority in Parliament could only mean its passage and the immediate irreversible dissolution of Parliament.

My appeals to return to normalcy, to constructively address the many important issues confronting us in Guyana, appear to have fallen on deaf ears.

The Opposition in Parliament intends to end the life of the 10th Parliament with immediate effect, dashing all hopes for urgent attention to issues relating to economic growth, social services and yes, the holding of Local Government Elections.

The President then went on to "assure all that my decision ensures that the life of the 10th Parliament is preserved up to a maximum of six (6) months, as permitted by the Constitution of Guyana."

Unfortunately, in my view, the reasons provided by the President are not cogent and does not provide a reasonable basis for the action taken by him. His exercise of discretion is lawful but it impact and/or effect serves to disenfranchise the majority of the Guyanese people who elected their Members of Parliament to serve in the Parliament and to hold the government of the day to account.

In addressing the discretion of the President to use the power of proroguing parliament that reside with him under Article 70 (1) of the Constitution of the Cooperative Republic of Guyana, Human Rights Lawyer, Ulele Burnham, posits:

When a discretion is vested in a member of the legislature it must be exercised judiciously and for the public good. What it is being used for here is not for the public good as any of us understand it, but to protect a government under threat of nothing more than a demand for accountability by elected representatives. What you say seems to amount to this ( and herein lies the problem for Guyana) : If Burnham invented it for the preservation of the power of (his) executive then we too must use it for the preservation of ours. Do fuh do nah obeah...Then this government must blame no body other than itself for the decline in public ethics. It had it in its own hands to alter things and it has opted for the low road. (Online: Enrico Woolford page <https://www.facebook.com/enrico.woolford?fref=nf&pnref=story>, Tuesday November 11, 2014)

Opposition Leader Brigadier David Granger of APNU stated in Parliament that President Ramoutar has "single-handedly engineered a constitutional crises" to:

1) Avoid parliamentary scrutiny;
2) Avoid the no-confidence motion which was scheduled to be debated on November 10, 2014;
3) Avoid holding Local Government Elections;
4) Avoid debate on the financial excesses and improprieties;
5) protect the reputation of its ministers from parliamentary scrutiny and sanctions;
6) permit the PPP election campaing to proceed unhindered;
7) continue the expenditure of state funds without parliamentary scrutiny
8) move Guyana into a one-party state.

In terms of the prospects, success and risk of this use of a Presidential Prerogative, Former Speaker of the National Assembly Ralph Ramkarran observed that:

The political heat that would be generated by prorogation would mean that the Government would be unlikely to later obtain Opposition support to approve a budget and estimates. It would, therefore, have to dissolve the National Assembly in April and call elections. Of course, the Government has been spending without parliamentary approval and may continue to do so where it deems that the spending is necessary due to ‘unforeseen’ and similar circumstances. Even though the Government would hardly be able to justify that its own act of prorogation creates ‘unforeseen’ circumstances, stranger things have happened.

But what about the President’s challenge to the AFC to’ bring it on’ and ‘make my day?’ A prorogation of the National Assembly as a tactic to delay holding elections to a later time that is more favourable to the Government would not be unusual. Prime Minister Stephen Harper did it in Canada when a no confidence motion was threatening his second minority government. But in our case, where the Government dared the AFC, a prorogation would create the impression that it has dropped its bravado and is slipping through the back door.
(Online: Ralph Ramkarran "Slipping through the Back Door" <http://conversationtree.gy/slipping-through-the-back-door/> Conversation Tree, Tuesday November 11, 2014)

Human Rights Lawyer, Ulele Burnham, having regard to the process to amend the 1980 Constitution, promulgated by her father, then President Linden Forbes Sampson Burnham wrote:

....My suspicion is that no-one may have properly anticipated the prorogation power being used in this way or in these circumstances? As I recall Albie Sachs, one of the architects of the new South African constitution, was involved in some part of the constitutional reform process which included a number of internationally recognised legal luminaries. Given their task, it may well have been that they did not regard the power to prorogue as either the most offending provision of the constitution or as inherently undemocratic - which of course it is not. (Online: Enrico Woolford page <https://www.facebook.com/enrico.woolford?fref=nf&pnref=story>, Tuesday November 11, 2014)

Recently at Walter Rodney Commission of Inquiry Basil Williams, shadow Minister (opposition critic) Attorney General and Minister of Legal Affairs of Guyana addressed the 1980 Constitution and its executive powers with - Justice Charles R. Ramson, S.C., O.R., three-time Attorney General and Minister of Legal Affairs of Guyana:

Mr. Williams: Alright. Now, the final thing I want to address you on and ask you to deal with the Commission on, is this 1980 Constitution that was so vilified at the time.
Justice Ramson: It was what?
Mr. Williams: So vilified at the time. Now, this Constitution according to you is substantially the same here and exists today? Justice Ramson: Yes. But we have added human rights…
Mr. Williams: And that Constitution, notwithstanding the attacks on it, you have had President Jagan, Mrs. Jagan, President Hinds, President Jagdeo and now President Ramoutar all operating under the same constitution.
Justice Ramson: Your use of the language. It is not the same. It has been adjusted. If you remember there was a big adjustment in 2003.
Mr. Williams: Adjusted to do what?
Justice Ramson: To include a lot of corrections.
Mr. Williams: To reduce the Executive powers?
Justice Ramson: If you were the President, you would reduce it?
Mr. Williams: So you agree that the Executive powers were not reduced?
Justice Ramson: I do not think he should reduce it. You do not tinker with a Constitution. So we have to call a new Constituent Assembly and waste the people’s money.

Opposition Leader Brigadier David Granger in a speech in Parliament called for the mobilizing of Trade Unions, Churches, Masjids, Mandiers, and citizens in peace. He also called for an early revocation of the Proclamation proroguing the 10th Parliament of Guyana. It is safe to say that Guyana has gone into the realm of uncertainty and the resources of the Guyana Police Force will be taxed as the Guvernment used its police and military mite to crush the will of the Guyanese people and their duly elected representatives.

Politics as it is in Guyana, one can expect that will the Proroguing of the 10th Parliament an autocracy will no reach its zenith. That newspapers were reporting on November 09, 2014 the stepped up training of the Tactical Services Unit of the Guyana Police Force in anticipation of public demonstrations: See, Police undergo riot/public disorder training ahead of looming elections, INEWS Guyana, November 09, 2014; TSU Riot/Public Disorder Squad continues training for any eventuality, Guyana Chronicle,, November 08, 2014.

The Secretary General of the Organization of American States (OAS), José Miguel Insulza, issued a statement on its website:

The head of the hemispheric Organization said, "in a democracy, an efficient functioning of the Parliament allows for checks and balances and for the voice of the people to be heard." He recalled that "since the last elections in November 2011, Guyana has had a split governance system with the executive controlled by one party and the combined opposition having the majority in Parliament." In this context, Insulza said "this situation presents both challenges and opportunities for all parties in Guyana to work together for the greater good of the country."

(Online: Organization of American States (OAS) page - press release E-483/14 <http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-483/14>, Tuesday November 11, 2014)

Guyana is, for all intents and purposes, entering uncharted territory. With the absence of the checks and balances that the legislative branch of government provides on the Executive Branch of Government, President Ramoutar and his cabinet are now at liberty to exercise executive power in which that does not attract accountability and/or challenge. This would not be a helpful state of affairs if the political party exercising executive power seriously is comtemplating contesting the next general elections.

********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago) is a Constitutional, Civil, Human Rights and Criminal Litiigation Lawyer at Pieters Law Office based in Toronto, Canada.

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20, Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695.

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)