ONTARIO COURT OF APPEAL HEARING OF DRIVING WHILE BLACK CASE OF R. V. STEELE

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 January 13, 2015
Updated on January 14, 2015

"Racial profiling is one of the significant issues that continue to weigh us down and hinder us from  arriving at our many destinations on time." Valerie Steele

On Tuesday January 13, 2015 the long-standing racial profiling case of R. v.Steele, 2010 ONSC 5397 was argued at the Court of Appeal for Ontario in Toronto before Justice Kathryn Feldman, Justice Janet Simmons and Justice Gladys Pardu. The Court heard argument from the Crown and Defense Counsel. It has reserved its decision and shall issue a written decision sometime in the future.

This is a case where four Black men were driving in the City of Hamilton, Ontario, in Richard mother’s car when they were stopped by Hamilton Police Officer Yvonne Stephens.  Richard Steele was a passenger

Valerie Steele, Richard Steele and  Selwyn Pieters

in the vehicle.  The officer followed the vehicle for at least three minutes. Ran the licence plates. There was no evidence provided that there was any traffic violation or reasonable grounds to stop the vehicle other than it was occupied by four black men. The officer testified that Max Sterling removed Steele from the vehicle. By the time Officer Sterling arrived – there are at least 6 other officers on the scene including three tactical officers. This cannot be characterized as simply a traffic stop. Why Tactical Officers for routine traffic offence?

Judge Flynn dismissed a Charter application because of a Black officer’s opinion about whether the arresting officer was racially biased.  Flynn J. wrote "[45] But on the evidence before me, there are no grounds to find racial profiling on the part of P.C. Stephens. There is simply no evidence of it and none from which I can infer it.The evidence of P.C. Sterling, a black man, that P.C. Stephens never exhibited racial bias in the 10 years he knew her, gives me comfort for my conclusion."

What Flynn J. ignored is the culture of policing and the thin blue line or code of silence that make speaking out against discriminatory treatment, racially biased policing or racial profiling, career suicide. Thus officer Sterling's evidence on whether or not he believe officer Stephens to be racially biased or not should not have been used to assist her credibility.

"At issue is what occurred during the minutes prior to the traffic stop and during the traffic stop, and whether it amounts to impermissible racial profiling would require in our submissions an assessment of the evidence in light of the case law, Charter, Police Services Act and Human Rights Code." Selwyn Pieters

The Hamilton Police claim that they stopped the car to investigate Highway Traffic Act violations–and not to do a criminal investigation because of racial profiling–is belied by the following:

a. In the three minutes of following the vehicle prior to the stop, the police clearly had an opportunity to observe the occupants of the vehicle were black and have lied in their denials of this fact.
b. The police officer did not provided the dispatcher with any reason at all for the stopping of the motor vehicle.
c. No Highway Traffic Act charges are laid and there is no evidence of even the  contemplation of such charges.
d. All occupants of the vehicle were investigated.
e. The nature of the questioning of the occupants, even as claimed, exceeded what would logically be part of merely a Highway Traffic Act.
f. The claim that Steele was nervous, fidgeting cannot be a reason for hightened suspicion.
g. Six officers including tactical officers raced to the scene of a routine traffic stop.
h. Removing the occupants from the vehicle for officer safety instead of simply giving the driver a tickets and sending the occupants of the vehicle on their way.

The arguments on standing of Richard Steele and the substantive issue of racial profiling came over very well and the three Judges were quite engaged. If we are successful on the arguments on racial profiling intersected with the arguments on privacy, this will be an important criminal law decision that adds to the growing jurisprudence throughout Canada on  racial profiling. n Canadian history.

Selwyn Pieters had previously argued the racial profiling issue on Mr. Steele's behalf but that decision was aborted due to a mistrial declared by the judge. See, R. v. Steele; 2010 CarswellOnt 50; 2010 ONSC 233 (ON S.C.)

Selwyn Pieters appeared with Anthony Moustacalis on the Appeal.

Racial profiling argued in gun conviction appeal, CHCH TV January 13, 2015

Bill Dunphy, Racial profiling behind Richard Steele's Hamilton bust, say lawyers
Hamilton Spectator‎, January 13, 2015

Colin Perkel, Hamilton police accused of racial profiling in conviction appeal Canadian Press, January 12, 2015

Holly Hayes, Toronto man says he was racially profiled by a Hamilton police officer, Hamilton Spectator 28, 2014

Racial bias runs surprisingly deep, Toronto Star, June 27, 2009

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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 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.