Litigating Racial Bias 23112021

Submissions by Selwyn A. Pieters to MSGCS on Police Street Checks

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)
Created August 31, 2015

On June 16, 2015, Ontario's Minister of Community and Correctional Services announced that the province intends to develop a set of rules to govern police street checks. In furtherance of this objective, it is holding consultations with various stakeholders.

As a lawyer who represented persons facing the brunt of this practise in civil courts, before the Human Rights Tribunal and in Criminal litigation, I set out a chart of my jurisprudential journey so that these issues are not considered in the abstract but rather having regard to what obtains in our courts and tribunals in respect to this process of racial oppression.

Selwyn Pieters written submissions on MSGCS Ontario Police Street Check Consultation (Racial Profiling), August 31, 2015

Rohan Roberts Files Human Rights Complaint for Racial Profiling against Toronto Police

By Selwyn A. Pieters, B.A., LL.B., L.E.C. 
Lawyer & Notary Public

TORONTO -- A Human Rights Application has been filed with the Human Rights Tribunal of Ontario by Mr. Rohan Roberts alleging racial profiling by Toronto police.

The Toronto police services board, Retired Chief William Blair, Current Chief Mark Saunders, Superintendent Tony Riviere, Detective Dion Monahar, Constables Andrew Keown and Ryan D'Sena are named in the Application filed Wednesday evening by Lawyer Selwyn Pieters on behalf of Rohan Roberts.

The complaint alleges racial profiling and differential treatment  in the provision of services and facilities based on race, colour, ancestry and ethnic origin contrary to sections 1 and 9 of the Human Rights Code.

The application arose as a result of a December 16, 2014 encounter in a Jane & Finch neighbourhood between Rohan Roberts and Constables Andrew Keown and Ryan D'Sena.

On Tuesday December 16th, 2014, or about 1:30 am officers The Applicant exited through a fire exit door of his apartment complex at 5 Needle Firway. As The Applicant walked along the sidewalk he observed a marked police cruiser entering his apartment complex. The Applicant observed that shortly thereafter the police cruiser turned off its lights and was following The Applicant as he walked along the parking lot of his complex.

The Respondent police officers Keown and D’Sena then drove up alongside the Applicant demanded his identification and questioned The Applicant about whether or not he had marijuana on him and/or was smoking. The Applicant responded in the negative.

The Respondent police officers Keown and D’Sena spent some time running my name through their various databases. After some time, The Applicant's identification was returned to him and he was was advised that he was free to go.

The Applicant then collected his identification and as he was walking away he stated to the officers “you guys always like to harass people.” This utterance was made by The Applicant because in his apartment complex and neighbourhood he has been subjected to numerous stops and searches by Toronto Police Officers working out of 31 Division and TAVIS.

One of the officers then said to the Applicant "what did you say to me" “You are going to shoot You Pussies?”  No such utterance was made by the Applicant.

The Applicant was then rushed by the officers, arrested, handcuffed and dragged to a grassy area just outside of the door leading to the parking lot and beaten by the officers.

The Applicant had no alcohol or illicit drugs on his person at the material time, date and place. The Applicant did not consume any alcohol and/or illicit drug at the material time, date and place.

The Applicant faced trumped up charges of assault with intent to resist arrest and threatening death. The Applicant pleads that these charges which were withdrawn on April 28, 2015 on the basis that no reasonable prospect for convict exist were meant to criminalize The Applicant.

The Applicant was assaulted in the police vehicle in responding to a question as to whether he believed the Respondent  officers’ conduct was racist.

The Applicant pleads the actions of Keown and D’Sena that is pleaded herein caused him injury to dignity, feelings and self-respect. The Applicant was subjected to humiliation; victimization; and was vulnerable in the face of the conduct of the Respondent  officers.

The Applicant experienced a loss of dignity and self-worth that is the direct result of the infringement by the Respondents of his right to equal treatment with respect to goods, services and facilities without discrimination and/or harassment based on race, colour and ethnic origin or a combination thereof contrary to section 1 and 9 of the Human Rights Code.

Senior Toronto police officers, including the Chief, have spoken against the practice of racial profiling in the past. However, in 2014 and 2015, Toronto Police Chief William Blair and now Mark Saunders seemed unperturbed, and their comments seemed to imply that there is nothing wrong with police discriminating by skin colour. Mark Saunders referred to the persons complaining about the pernicious police practices as "collateral damage" in his first press conference as Chief of Police on April 20, 2015.

Thus, the Respondents, Police Services Board, the police administration and Keown and D'Sena, violated the Applicant's human rights in policy, practice, and effect, by engaging in racial profiling.

Officers D'Sena and Keown are also involved in another matter in the Jane & Finch area involving Black Youth Michael Duru in January 2015 that was captured on video that went viral: http://news.nationalpost.com/2015/01/28/video-of-alleged-violent-takedown-by-officer-being-investigated-by-toronto-police/



Michael Duru video



Jeff Gray Toronto police face human-rights complaint over alleged beating Globe and Mail, June 05, 2015

Mark Carcasole, Reporter, Global News, Toronto man launches human rights complaint against police, Global TV, June 05, 2015

Greg Ross, Toronto man files human rights complaint after alleged police beating CBC TV, June 04, 2015

Tammie Sutherland, EXCLUSIVE: Charges dropped against man who alleged Toronto police brutality CityNews, April 28, 2015

Copyright © 2015 Selwyn Pieters. All rights reserved. Please use citation if using or relying on my analysis.

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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  and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); 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.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (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(Ont. C.A.).

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.

Walter Rodney Commission of Inquiry - Eusi Kwayana on Dr. Walter Rodney, Collective Leadership, Trust

Selwyn Pieters and Eusi Kwayana

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 June 13, 2014

As a lawyer with significant experience in human rights, civil rights and non-adversarial matters, I was retained to represent its interest of the Guyana Trades Union Congress (GTUC) at the Walter Rodney Commission of Inquiry (WARCOI).

Mr. Eusi Kwayana was a co-founder of the Working People's Alliance. He is also a Guyanese cultural icon.

The cross-examination that I conduct on Dr. Kwayana went to the modus operandi of Dr Walter Rodney as a political leader. It explored whether he was a team player? Did he heed the advice of the older sages? Did he trust others around him or only himself and siblings? Was there a disagreement on the violent vs non-violent means for the overthrow of the Forbes Burnham PNC government? What were the signs the WPA were looking for to determine 'all other means had failed'? Who was to make that call? Kwayana told the COI that "Rodney was motivated in becoming more resolute in getting rid of Burnham and the PNC.." It is common knowledge that the WPA and PPP alliance broke up. Without the PPP how could the WPA have gotten rid of Burnham and the PNC electorally?

Excerpts of June 02, 2014 evidence of Eusi Kwayana - Cross-examination by Pieters

Mr. Chairman: The Guyana Trades Union Congress.
Mr. Pieters: Good morning, Mr. Kwayana.

Mr. Kwayana: Good morning, Counsel.

...
Mr. Pieters: Thank you very much, Sir. You spoke, Mr. Kwayana, about the collective leadership which was the manner in which the WPA operated?
Mr. Kwayana: Yes.
Mr. Pieters: Can you describe what or explain that concept, please?
Mr. Chairman: Was that not explored already, Mr. Pieters, collective leadership? We are avoiding repetition. If someone has asked your question delete it from your list. I think collective leadership was explained already on Friday last, I think it was.
Mr. Pieters: Maybe I missed that part of the evidence. Okay, very well, I will move on.
Mr. Chairman: I might have misspoke somewhat because I am told that it was only explained who were the joint leaders, but the notion was not explained so I will permit a brief response.

Mr. Pieters: Thank you.

...

Mr. Kwayana: Yes, the collective leadership of the Working People’s Alliance simply meant that the elected Executive did not have a leader. The elected Executive were co-equal because we were trying to conquer the old politics and what happened was that each person, we still distributed the sort of initiative that a leader might be taking because, periodically, the person who chaired the collected leadership would rotate; it would pass from person to person and that was the essence of how it worked.
Mr. Pieters: Now, in terms of that collective leadership, did the young Walter Rodney emerge at the apex of that leadership?
Mr. Kwayana: Not so far as the Working People’s Alliance was concerned. That was a matter of public perception. He was the most popular of the collective leadership for several reasons.

Mr. Pieters: How about Mr. Rupert Roopnarine?

Mr. Kwayana: Yes.
Mr. Pieters: Yes, and yourself?
Mr. Kwayana: Yes.
Mr. Pieters: And Lieutenant Omawale?
Mr. Kwayana: Omawale was really, Dr. Omawale was really out of the country. He had been working abroad in an international organisation and really when he got arrested, he was home on a visit. So he would not have come into that routine.
Mr. Pieters: I mean, part of the modus operandi of the WPA at the time was to get rid of the Burnham Government or dictatorship, as it was called, by any means possible. That much is established in the evidence. Correct?
Mr. Kwayana: Your Latin is confusing me, Counsel. I do not understand your Latin.
Mr. Pieters: The WPA had as one of its objectives, the removal of the Burnham Government by any means necessary. That much is established in the evidence?
Mr. Kwayana: Yes, it is established.
Mr. Pieters: If the Burnham regime was removed, who was going to assume this leadership of the country?
Mr. Kwayana: We had proposed a government of national unity and reconstruction, in a document drawn up by Dr. Rodney and approved by the collective leadership. So no one had been identified as a person to head any government. It was a question of getting forces together so that there could be some sense of national cohesion. A government of national unity and reconstruction and the whole point was to get rid of rigid party controls and to open up more to citizen of all strata in the population.

Mr. Pieters: I mean you would agree and your evidence has borne it out that Dr. Rodney was more popular than others. You would agree that he was a charismatic leader or a charismatic person?

Mr. Kwayana: Yes.
Mr. Pieters: And on the issue of collective leadership, did Dr. Rodney accepted this notion of collectivism having fought so long with the African Liberation Movement where charisma mattered?
Mr. Kwayana: You are a little rapid there for me, please. Can you please repeat? I want to get your question please.
Mr. Pieters: On the issue of collective leadership, did Dr. Rodney accept this notion of collectivism having fought so long with the African Liberation Movement where charisma mattered?
Mr. Kwayana: I cannot answer that question.
Mr. Pieters: ...Mr. Kwayana, we agree that Dr. Rodney was a charismatic person?
Mr. Kwayana: Yes.
Mr. Pieters: We also agree that Dr. Rodney had mass appeal?
Mr. Kwayana: Yes.
Mr. Pieters: We agree that Dr. Rodney was an intellectual?
Mr. Kwayana: Yes.
Mr. Pieters: Was Dr. Rodney a team player?
Mr. Kwayana: Was Dr. Rodney a what? Key player?
Mr. Pieters: Team player.
Mr. Kwayana: Team player, yes, very much so. Very very much a team player. Team worker. [Inaudible]
Mrs. Samuels-Brown: Did he say team worker?
Mr. Chairman: Team player.
Mrs. Samuels-Brown: I think the witness added team worker.
Mr. Kwayana: I said team worker because I rather…
Mr. Pieters: Did Dr. Rodney shared confidences with you?
Mr. Kwayana: As he wished. I cannot say how many or if he shared all confidences with me, but he spoke to me freely so far as I know.

...

Mr. Pieters: My question is comparing yourself with Dr. Rodney, and I think you may have given this evidence on the first day you appeared as a witness; you were sort of an elder within the party?
Mr. Kwayana: I think I was the oldest in the collective leadership.
Mr. Pieters: Did Dr. Rodney approach you for advice?
Mr. Kwayana: Dr. Rodney asked me for advice. We asked one another for advice. That is what it was about.
Mr. Pieters: Did Dr. Rodney follow the advice that you provided to him, to the best of your recollection?
Mr. Kwayana: That is difficult to recall.
Mr. Pieters: Pardon?

Mr. Kwayana: That is difficult to recall. It did not happen as frequently as you might think.

Mr. Pieters: You met with Dr. Rodney on the day of his demise, correct?
Mr. Kwayana: On the evening before he left the office, yes. He left me in the office.
Mr. Pieters: When you met with Dr. Rodney what was the nature of the discussion that took place between yourself and Dr. Rodney?
Mr. Kwayana: There was no particular discussion. He told me he was going to pick up his daughter at her school, I think it was St. Roses. I think it was a time when they had some activities at school.
Mr. Pieters: Did he discuss with you that he was going to be seeing Gregory Smith at some point that evening?
Mr. Kwayana: He certainly did not because I never heard the name “Gregory Smith” up to then.
Mr. Pieters: Did he tell you that he was going to be meeting his brother Donald that evening?
Mr. Kwayana: He may have, I am not too sure. It is his brother, I would not be surprised.
Mr. Pieters: Did he tell you that he was going to be testing a device?
Mr. Kwayana: No.
Mr. Pieters: To the best of your recollection, what he told you was that he was going to be picking his daughter up.
Mr. Kwayana: He was going to pick up his daughter at her school, that is, I thought he left the office at that time for that purpose.
Mr. Pieters: Can you explain then, why would Dr. Rodney choose his baby brother Donald against another leader in the collective leadership in the WPA to confide in? Why would he not have confided in you (1) that he was meeting with Gregory Smith (2) that he was going to be testing a device?
Mr. Chairman: Do you think that is an appropriate question for him to answer? Mr. Eusi, you answer it but I do not know that you would be able to answer that. It puts you in Rodney’s mind…
Mr. Kwayana: Yes, that is right.
Mr. Chairman: …and I did not know that you were residing there.
Mr. Pieters: Well, let me put it to you differently, Mr. Kwayana. I am going to suggest to you that Doctor Rodney did not trust you.
Mr. Kwayana: Oh! [Laughter] I am willing to accept that if you say so, but I think there is evidence to the contrary.
Mr. Pieters: Well, we know that he never told you about Gregory Smith, correct?
Mr. Kwayana: No.
Mr. Pieters: We know that he did not tell you about the testing of the device…
Mr. Kwayana: On…
Mr. Pieters: …on that evening in question.
Mr. Kwayana: On that evening, yes. I knew he was testing walkie-talkies, I said that in my statement. I knew he was collecting walkie-…
Mr. Pieters: Did you know who his suppliers were?
Mr. Kwayana: Did I know…
Mr. Pieters: …who his suppliers were for the walkie-talkies?
Mr. Kwayana: Oh, no, I never knew nor wanted to know. I did not know and I did not want to know.
Mr. Pieters: You did not want to know, so…
Mr. Kwayana: I did not ask.

*****

Mr. Chairman: A few housekeeping matters which we have managed to resolve satisfactorily, but we are now free to go. Mr. Pieters, are you ready?
Mr. Pieters: Yes, Mr. Chairman. Mr. Chairman, you had directed me to an aspect of the witness evidence or my questioning of the witness and so I need to ask him. Mr. Kwayana?
Mr. Kwayana: Yes.
Mr. Pieters: The Chairman has asked this morning because I had raised a series of cases in which persons were charged with possession of firearms and possession of ammunition. The Chairman was interested in knowing what the disposition was of the various cases and so I will ask you to the best of your recollection, do you recall for example in the Torrington, et al case, what the disposition of those charges were?
Mr. Kwayana: They were dismissed.
Mr. Pieters: In the David Hinds case, do you recall what the disposition was?
Mr. Kwayana: I spoke on that in your absence yesterday. Yes, I do recall. He was convicted.
Mr. Pieters: Was there any…
Mr. Kwayana: He was convicted in the Magistrates’ Court and appealed on the grounds that the weapons had not been produced in Court.
Mr. Pieters: Was there any other WPA activist or members?
Mr. Chairman: Before you get that far, what happened then to the appeal? Carry through so logically, Counsel.
Mr. Kwayana: The appeal has not yet been heard.
Mr. Pieters: Let me ask you this, has the appeal not yet been heard because it is abandoned by the appellant or is it a bureaucratic administrative process that caused it not to be heard?
Mr. Kwayana: I just know that the Hinds appeal has not yet been called so far as I know.
....
Mr. Pieters: You mentioned this morning an activist by the name of Jinah Rahman?
Mr. Kwayana: Yes.
Mr. Pieters: Jinnah Rahman was a treason accused?
Mr. Kwayana: A treason accused, yes.
Mr. Pieters: Jinnah Rahman got out of the country before the authorities could apprehend him?
Mr. Kwayana: Yes, that is fair.
Mr. Pieters: Do you recall or were you part of the discussion of how he would have been spirited out of the country?
Mr. Kwayana: I saw him before he left.
Mr. Pieters: Was he provided with a false passport or did he leave on a genuine passport?
Mr. Kwayana: He did not leave by the usual means. He left by what we call the back-track.
Mr. Pieters: Okay.
Mr. Kwayana: I imagine.
Mr. Pieters: Your back-track, can you elaborate what form that backtrack would take?
Mr. Kwayana: I did not get the question.
Mr. Pieters: What form this back-track, as you say it is, would take?
Mr. Kwayana: I do not know it personally. It was a back-track that went through Suriname because of the traffic there with vendors going and coming looking for scarce items, you know. So it was a well established thing which we call the back-track.
Mr. Pieters: That there was a disagreement in respect to the means or the violent means within in which the WPA were going to overthrow the PNC government?
Mr. Kwayana: These are things you discuss from time to time. There will always be disagreement, but there was never a decision to use violence to overthrow the PNC government.
....
Mr. Pieters: Mr. Kwayana, what were the signs the WPA was looking for to determine that all other means have failed?
Mr. Kwayana: The signs were applying various means and processes and seeing the results and then studying the social and political terrain to see what else could be done and one of these means included the courts.
Mr. Pieters: Let me ask you this, had the WPA exhausted all other means, who was going to make the call that violence is inevitable and necessary?
Mr. Kwayana: It would have to be the Working People’s Alliance.
Mr. Pieters: And by whom do you mean the collective leadership, Dr. Rodney or the WPA as a whole?
Mr. Kwayana:  It will have to begin with the collective leadership, but it will have to go to the WPA as a whole because you cannot go on an adventure like that with a handful of people and the organization does not know what is going on. It is impractical. It is a fancy fairy tale.
....
Mr. Kwayana: The WPA and the PPP went different ways when the 1980 elections were called. At that time Walter Rodney was already away from us.
Mr. Pieters: Well let me ask you this, without the PPP, how could the WPA have gotten rid of Burnham and the PNC electorally?
Mr. Kwayana: I do not know.
Mr. Pieters: And that is your answer?
Mr. Kwayana: That is my answer.
Mrs. Samuels-Brown: Remember though that the witness had said that this break or going different way between the WPA and the PPP was to quote him, ‘after Dr. Rodney was not with us’ so bear that in mind, the chronology.
Mr. Pieters: Very well, Madam Commissioner. Mr. Kwayana, you know that Dr. Roopnarine, in an article on the 19th September, 2010 stated in the Stabroek News that the party was accumulating weapons long before the murder of Dr. Rodney?
Mr. Kwayana: That question had been put to me in different form and I answered that from my own knowledge, there were, I said two or perhaps three occasions on which members of the Working People’s Alliance were charged with arms. One of them being, Dr. Hinds coming in from the United States and the arms were never presented in court. One you mentioned this morning the treason trial which to the best of my knowledge was dismissed and one was Ohene Koama who was alleged to have been found with a bag of arms in his car trunk, a very small car. Police blocked him off in Roxanne Burnham Gardens on 18th November, 1978 and he was shot. He was not charged. The police alleged that he pointed a rifle at them.
....
Mr. Kwayana: That I had?
Mr. Pieters: An aversion to violence.
Mr. Kwayana: Oh yes.
Mr. Pieters: Would you agree that because of that aversion that you had to violence that, the WPA kept you out?
Mr. Kwayana: That I had what?
Mr. Pieters: Of.
Mr. Kwayana: I am not getting you.
Mr. Pieters: Okay, maybe I should speak in plain language. Mr. Kwayana, because of your disavowance of violence, would you agree that the WPA kept you out of the robust activism activities that involved acquiring walkie talkies for example and ultimately firearms and ammunition?
Mr. Kwayana: We all had an aversion to violence. We all had an aversion to violence and I did not have to be kept in to acquiring walkie-talkies or kept out. It was something that perhaps one or two people did, one of them being Dr. Rodney and after his death, they found a few other walkie-talkies in his house and they searched it, and he was not there and none of these firearms and explosives, and none of these things were found.
12.03hrs
Mr. Pieters: Who else within the WPA collective leadership would you have said was adverse to violence?
Mr. Kwayana: All of us were oppose to violence.
Mr. Pieters: Okay.
Mr. Kwayana: The very Dr. Rodney that you are pinpointing said in an interview with Mr. Carl Blackman in February 1980 in an article, three times, “violence is always regrettable because people are killed and many get injured”- three times in the same interview. So, I do not know who had a passion for violence.
Mr. Pieters: Alright. You recall, let me ask you this about Gregory Smith. Would you agree that Gregory Smith was not a political person?
Mr. Kwayana: He did not sound political to me.
Mr. Pieters: Excuse me?
Mr. Kwayana: He did not sound political to me…
Mr. Pieters: You would agree then that he was not a political person?
Mr. Kwayana: ….from what I read in his book. Yes, I am inclined to agree with that. I cannot swear to it.
Mr. Pieters: We had a discussion earlier about the various nuclei that was formed within the WPA. You recalled we had that discussion earlier this morning?
Mr. Kwayana: Yes, Sir.
Mr. Pieters: Part of what is the function of the nuclei was, is vetting prospective members.
Mr. Kwayana: Getting members?
Mr. Pieters: vetting or doing a sort of screening of the members to make sure that they could be trusted?
Mr. Kwayana: I guess so, all branches or nuclei had their own ways of bringing members in and they would bring in people that they trust, for example, they would not recruit someone who is a member of the ruling party to which we were oppose and if in some cases, if there is infiltration, they had to be alert against that kind of thing.
Mr. Pieters: Let me ask you this, you wrote on Page 17 of your statement and I am going to read it. On Page 17 of your statement in respect to Dr. Rodney’s situation, you said, “the bulky robust police station on the its usual site would be visible to anyone driving north in John Street or walking on the western parapet of John Street in the prison block between Durban Street and Bent Street. A would-be-bomber was therefore not attempting his bombing of the prison wall. Assuming to plot to bomb the wall the bomber would be encouraged by the absence of the Police presence and discouraged by the presence of the Police.” You said that, correct?
Mr. Kwayana: Yes, I wrote something to that effect.
Mr. Pieters: You also said earlier that Dr. Rodney was risk-taker and that he would take certain risk that other younger members would not?
Mr. Kwayana: No. I said he was a risk taker and all of us took risk. I did not…..
Mr. Pieters: I am referring to….
Mr. Kwayana: Please, I am still here.
Mr. Pieters: I am testing you on, you have two different statements, you have one on page nine and one on page 17 so and I questioned you on the first statement of a risk-taker this morning and the transcript would be around for examination.
Mr. Kwayana: Yes, we are all risk-takers. You get into that kind of politics fighting a dictatorship is risky.
Mr. Pieters: Let me say this; let me put this to you then. If what you said on page nine is true, then such risky actions by Dr. Rodney and Donald Rodney in the face of armed guards are quite possible?
[Court Marshall gave Witness a copy of a document]
Mrs. Samuels-Brown: … by some risky action of what?
Mr. Pieters: The risky action of going to the Georgetown prison with a device as directed by Gregory Smith in the face of armed sentries being there would be quite possible if Dr. Rodney is both courageous and at that taking risk.
Mrs. Samuels-Brown: The device you are referring to is a walkie-talkie or an explosive? I just want to be clear what your question is?
Mr. Pieters: The placebo or whatever it was, the explosive device he had in his possession.
Mr. Kwayana: I think that would be going beyond being risky. I think that would be fool-hardy.
Mr. Pieters: Right and let us talk about fool-hardiness since you used the term and not me. The last time you were at the Commission (May 30, 2014) and I watched it on National Communications Network Inc. (NCN), I watched it on live stream and so, you did a demonstration with a bottle, I believe it was, looking for a red light. Do you remember that?
Mr. Kwayana: Looking for a what?
Mr. Pieters: Looking for a red light. Mr. Scottland….
Mr. Kwayana: Oh, yes, bending over…
Mr. Pieters: …had you doing a physical demonstration.
Mr. Kwayana: That is right.
Mr. Pieters: And first you were going to be looking for a cellular phone and you resorted to a bottle and when Mr. Chairman stepped in.
Mr. Kwayana: Correct.
Mr. Pieters: Yes and this thing about looking for a red light, bending down looking for a red light, did it not seem fanciful to you? Who does that?
Mr. Kwayana: I do not know.
.......
Mr. Pieters: Mr. Kwayana this is my last question to you.
Mr. Kwayana: Sir?
Mr. Pieters: We have dwell into the past, taking a forward look in approach, what would you say to the thousands of young people out there who are following this historic case, what would be your advice to them?
....
 Mr. Chairman: I am happy to learn that this is your last question. Perhaps the witness can answer you and let us get on.
Mr. Kwayana: I would advise young people to study first of all and follow the best examples in their communities.

See also Transcript of evidence of Tacuma Ogunseye June 25, 2014;
Transcript of evidence of Dr. Nigel Westmaas June 30, 2014; July 01, 2014.

********
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.

ONTARIO COURT OF APPEAL HEARING OF CANADIAN CHARTER CHALLENGE TO OATH TO QUEEN

McAteer et al. v. AGC - This Tuesday (April 08, 2014) the long-standing Charter challenge to the requirement of taking an oath of allegiance to the Queen in order to obtain Canadian citizenship will be argued at the Court of Appeal for Ontario at 10:30 a.m.  in a courtroom at 130 Queen St. W. in Toronto.

The Applicants, Michael McAteer, Simone Topey and Dror Bar-Natan,  questioned the constitutional validity of the Oath or Affirmation of Citizenship prescribed by section 24 of the Citizenship Act R. S.C. 1985, c.C-29 and the regulations made pursuant thereto and are appealing the September 20, 2013  decision of Justice Edward Morgan in the Constitutional challenge of Citizenship Act (Superior Court) McAteer v. Canada (Attorney General) 2013 ONSC 5895 (ON S.C.) . See also, Colin Perkel, Required Oath to Queen for new Canadians constitutional, court rules, CP, September 20, 2013; Colin Perkel, Citizenship oath to the Queen violates free speech, but isn't unconstitutional, Ontario court rules, National Post, September 20, 2013.

The Citizenship Act requires applicants for citizenship to swear or affirm that they will bear true allegiance to Queen Elizabeth the Second and her Heirs and Successors. Many people who feel that the monarchy is an anti-democratic relic of the past conscientiously object to taking such an oath and feel that it should suffice to take an oath to Canada.

Twenty years ago, the late civil rights lawyer Charles Roach launched a Charter challenge to this oath in the Federal Court; he lost. In 2005, Mr. Roach started a similar case in Ontario's Superior Court. The Attorney General of Canada argued that this case should not be heard because of the earlier dismissal by the Federal Court. However, it was ruled that, as a result of changes in Charter jurisprudence in the past twenty years, the case could go ahead.

Mr. Roach died on October 2, 2012.  The case is now proceeding on behalf of three new applicants: Michael McAteer (retired former journalist for the Toronto Star), Simone Topey (of the Black Action Defence Committee) and Dror Bar-Natan (Professor of Mathematics at the University of Toronto).  They are appealing the dismissal of their application by the Superior Court of Justice.

For reasons of conscience and/or religion, the applicants feel that they cannot take the oath. They are arguing that the oath requirement violates their rights to freedom of religion and conscience pursuant to section 2(a) of the Charter, their right to freedom of expression provided by section 2(b) of the Charter, and their equality rights guaranteed by section 15(1) of the Charter. The Attorney General of Canada maintains that "The inability to enjoy the benefits of citizenship - to hold a Canadian passport and to vote - are amongst the costs reasonably borne by individuals whose personal beliefs run counter to Canada's foundational heritage."

Peter Rosenthal, one of the lawyers representing the applicants, said:
 Like the present applicants, Charles Roach really wanted to become a citizen of Canada but his conscience would not allow him to take an oath to a person that symbolized inequality. I hope that that this case will vindicate Mr. Roach's extraordinary efforts to promote equal dignity of all human beings." .”

For more information, contact any of the applicants or Peter Rosenthal :
Michael McAteer, mrpmcateer@bell.net ; Simone Topey,
racquiah@hotmail.com; Dror Bar-Natan,
drorbn@math.toronto.edu ; Peter Rosenthal, rosent@math.toronto.edu

- 30 -

The Lawyers for the Applicants are

Peter Rosenthal
Michael Smith
Selwyn Pieters
Reni Chang

Lawyers for  The Attorney General of Canada are

Kristina Dragaitis
Sharon Stewart Guthrie

A copy of the court documents in this case are to be found here


 Resources:

Jeff Gray, The Globe and Mail ‏Would-be Canadian citizens set to fight oath to Queen, Published on Thu Jul 11 2013

Bob Hepburn Politics, Toronto Star, Stephen Harper’s love for Canada’s colonial past Published on Thu Jul 11 2013

Colin Perkel, The Canadian Press Would-be citizens set to fight oath to Queen  via @metrotoronto Published on Thu Jul 11 2013


Colin Perkel, The Canadian Press Appeal Court set to hear battle over citizenship oath to the Queen Published Sunday, Apr. 06 2014, 5:42 PM EDT

• Roach v. Canada (Attorney General), 2012 ONSC 3521 (CanLII)
  

  Superior Court of Justice — Ontario

  oath — motion — gomberg — proposed — relief

• Roach v. Canada (Attorney General), 2009 CanLII 7178 (ON SC)
  Superior Court of Justice — Ontario
  class — oath — citizenship — allegiance — proceeding
• Roach v. Canada, 2008 ONCA 124 (CanLII)
  Court of Appeal for Ontario — Ontario
  motion — straightforward — handling — officials — constitutional
  
  Roach v. Canada (Secretary of State), 2007 CanLII 17373 (ON SC)
  Superior Court of Justice — Ontario
  swear allegiance — class — abuse of process — forum — constitutional

Litigating Racial Discrimination in the Legal Profession: Pieters and Noble v. Peel Law Association

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)

Prepared for 2013 OBA Constitutional and Human Rights Law September 10th Dinner Program

Thank you for inviting me to speak. I was asked to speak on the litigation before the Human Rights Tribunal in Pieters v. Peel Law Assn and Mellissa Firth 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O)  so my remarks are mainly restricted to the first level decision of the adjudicator, which has subsequently been upheld by the Court of Appeal for Ontario.

The Encounter at the Library

That a confrontation of sorts between myself, Mr. Noble, Mr. Walrond and Ms. Firth happened at the Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008, is without a doubt.

Myself, Mr. Noble and Mr. Waldron were at the Brampton Courthouse representing K.F., a Black youth who had filed a racial profiling complaint with the HRTO and was now before Mr. Justice Blacklock with an Application to access records to be used in the Human Rights Tribunal hearing [K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.)]. Also present at the hearing of the Application were Raj Dhir and Monmi Goswami representing the Ontario Human Rights Commission, Laurie Ann Reesor and Elizabeth McPhadden representing the Peel Regional Police, and Nicola Simons representing the Dufferin Peel Catholic District School Board. With the exception of Kate Sturdy, an OHRC legal Assistant, the participants to the hearing retreated to the lawyers’ lounge of the Courthouse to await recall by His Honour.

That myself, Mr. Noble and Mr. Waldron were entitled to be in the lawyers’ lounge is also without question. Both myself and Mr. Noble were lawyers at the material time and Mr. Walrond was a student-at-law whom I employed. Ms. Firth was the law librarian and stated that it was her duty to police the space and bar access to paralegals and members of the public.

Human rights complaints were filed by Mr. Noble and I and heard before the Tribunal in 2009, which in terms of processing time was extremely fast.

At issue before the Tribunal was what precisely occurred during the incident at the lounge and whether or not it amounted to impermissible racial profiling.

The Hearing at the HRTO

At the hearing I was represented by my articling student, Mary Auxi-Guio. The PLA was represented by Andrew Pinto. Mr. Noble self represented.

“4 The hearing took place over three days and involved 12 witnesses including ten who testified that they witnessed the May 16 incident between the applicants and the personal respondent. It is noteworthy that these ten witnesses (eight were eyewitnesses and two heard parts of what tran-spired) provided differing versions of the incident.”[1]

The Tribunal very early on considered the core functions of the administrator:

[20]           I had before me the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board of Directors’ meeting.  This one page policy states that the lounge is for the use of members in good standing of the Law Society of Upper Canada.  Of note, the Policy also specifically  states that:

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Lawyers’ Lounge within the spirit of the policy.

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Library.[2]

Peel Law Association policy provides that:

LAWYERS: DO NOT BRING CLIENTS OR OTHER MEMBERS OF THE PUBLIC INTO THE LOUNGE, ROBING ROOMS OR LIBRARY

THIS SPACE IS FOR LAWYERS ONLY

Ms. Firth had the right to deny access to unauthorized persons. Lawyers and students, however, were authorized to be in that space. The manner in which Ms. Firth exercised her authority was the critical issue.

The Tribunal set the scene:

12     The lounge was not busy at the time of the incident with perhaps a total of twenty persons present. The applicants were seated in an area of the lounge just outside the doors to the library. Mr. Pieters was in a chair talking on the telephone to his assistant, Michael Roberts. Mr. Noble and Mr. Waldron were on a sofa perpendicular to where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters, Mr. Waldron closest to the library door. The sofa was against a frosted glass half-wall that divided the kitchenette from the lounge. Ms. Trotter was in the kitchenette. Mr. Dhir and Ms. Goswami were at a worktable approximately 15 feet away from the applicants. Ms. McFadden and Ms. Reesor were seated further away in the lounge.[3]

The Tribunal recognized that this was a difficult incident because the lawyers had the right to be there and the Librarian had a job to do.

 [62]           This was clearly an emotional and dramatic incident and one that quickly escalated into confrontation.  It was certainly an emotional experience for the applicants and the personal respondent, all of whom testified to how they were surprised, distressed and upset by what they felt occurred.   It was a dramatic event for those who witnessed it, most of whom spoke about the charged and confrontational nature of what they saw or heard and the resulting confusion when a number of the witnesses subsequently became involved.[4]

Findings of Fact and Credibility

On the issue of the initial encounter and Ms. Firth’s demand for identification from myself, Mr. Noble and Mr. Walrond, the Tribunal found that:

1. Ms. Firth, without identifying who she was, first approached Pieters - who was on the telephone; Pieters verbally identified himself as a lawyer (at paras. 64, 67);
2. Ms. Firth in an aggressive and demanding manner requested to see his identification (at paras. 77, 84); Pieters showed the identification (at para. 72);
3. Pieters also told his assistant Roberts, to whom he was speaking on the telephone that he was being racially profiled (at paras. 65, 74);
4. Ms. Firth then attempted to grab Pieters wallet; Pieters told her not to touch his wallet; (at para. 71)
5. Ms. Firth despite the claim that she was intimidated by Pieters, frozen and considered it rude to leave him, did move on to check the identification of Noble and Walrond (at para. 67);
6. Mr. Dhir and Ms. Goswani approached with their identification and she did not look at it (at para. 50);
7. Ms. Reesor also had her identification ready and Ms. Firth did not look at it;
8. Ms. Firth was demanding and aggressive in her approach (at para. 74);
9. The evidence of Bonnie Racz and Mellissa Firth on the initial interaction were either vague or at odds with the evidence of the other witnesses on important points (at paras. 69 -72).

           

Ms. Firth had an opportunity to look at the identification of the other unknown persons in the lounge and chose to focus her attention on the three Black men, Pieters, Noble and Waldron,  precisely because she consciously or unconsciously believe that they were out of place.

The White non-lawyer female ("agent") in the Robing Room

Ms. Bonnie Racz, a lawyer and Director of the Peel Law Association, went into the library area shortly after leaving the female robbing room – she  had just asked “an attractive caucasian woman who was very nicely dressed” to leave the robing room. The woman was not a lawyer, she "said she was someone's agent. She would not say who she was acting as agent for" and “Ms. Racz explained that the robbing room was off limit to non-lawyers”.

The Tribunal considered the evidence that:

                                                              i.      Ms. Firth’s purpose for leaving the library was to head to the robing room at the behest of Ms. Racz; and

                                                            ii.      that she diverted her attention to myself and my group (at para. 84).

Ms. Firth's aggressive and demanding demeanour

The Tribunal found that Ms. Firth adopted an aggressive and demanding demeanour in dealing with myself and my party:

                                                          iii.      when Ms. Firth first approached me, she actually interrupted my telephone conversation to demand I identify myself;

                                                          iv.       she did not accept my word that I was a lawyer;

                                                            v.      she then demanded my identification, which I promptly produced; and

                                                          vi.      she attempted to grab my wallet.

The evidence as cited by the Tribunal in paragraphs 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, and 51 is ample to support the finding that:

[77] ....the manner in which the personal respondent asked her questions and interacted with the applicants was aggressive and demanding.  Mr. Dhir and Ms. Goswami both testified as to the aggressive and blunt way in which they felt the personal respondent interacted with the applicants.  It is clear that the applicants found the personal respondent’s questions and the way in which they were asked abrupt and offensive.  I accept the applicants’ evidence that they found their overall experience with the personal respondent to be demeaning.[5] 

The Evidence of Laurie Reesor – The “Announcement”

Partway through the hearing I was frightened by the evidence of one of my colleagues, which totally contradicted my memory of the events:

[61]           Ms. Reesor testified that she had not been in the lounge before.  She recalls two persons coming into the lounge and one of them announcing to the room (not to any particular group) that they would be checking identification.   She believed that it was these two persons who then approached the applicants with the one who had made the announcement interacting with Mr. Pieters  (emphasis added).[6]

The Tribunal disregarded this testimony.  In addressing Ms. Reesor's evidence, the Tribunal found that:

[79]           I find that the personal respondent did not intend to generally check identifications in the room.   It is true Ms. Reesor testified that she recalled a general announcement to that effect when the personal respondent and Ms. Racz first came into the lounge, but I heard no other evidence to support this contention.  The personal respondent did not state that this was her intention  (emphasis added).[7]

Findings of Racial Profiling based on reasonable inferences from the evidence

The Tribunal considered the explanation offered by Ms. Firth and found Ms. Firth failed to provide a credible non-discriminatory reason for stopping and questioning myself, Mr. Noble and Mr. Waldron. It also found her testimony on a significant point to be lacking in credibility, a finding it was entitled to make:

[86]           The respondents contended that the personal applicant spoke directly to Mr. Noble and Mr. Waldron and not Mr. Pieters because he was on the telephone and that the personal respondent recognized him from previous visits to the lounge.  The respondents submitted that by seeking to confirm the identity of only two of the three Black men in the lounge, the personal respondent could not have been racially stereotyping or profiling Black men by assuming that Black men present in the lounge were not lawyers.  This argument fails. I find, as noted earlier, that the personal respondent was questioning all three men as to their right to be in the lounge.   That the personal respondent disputed the fact that she challenged all three men as to their right to be in the lounge is a significant issue for me.  It undermines the general credibility of her explanations for why she chose to question the applicants.

The Tribunal also linked the robing room incident with the stop and carding at the door and found that:

88     … the respondents argued that the personal respondent routinely questioned unknown persons in the lounge and that such questioning fell within her regular job duties. I accept this to be true. However, the issue for me is why, on this particular occasion, the personal respondent stopped at all to question the applicants. The evidence was that the personal respondent was on her way with Ms. Racz to speak to a person in the robing room whom Ms. Racz did not recognize and was concerned enough to come and ask the personal respondent to confirm her identification. The personal respondent never did provide an explanation for why she chose to stop under these specific circumstances to question the applicants and Mr. Waldron. (emphasis added).[8]

The Tribunal was therefore entitled to, as it did, scrutinize the interaction in question and conclude that:

[92]            I have already found that the personal respondent questioned the applicants in an aggressive and challenging manner.   I further note that she interrupted Mr. Pieters while he was on the telephone and, it appears, did not introduce herself to the applicants and Mr. Waldron.  From all the evidence, including the personal respondent’s testimony of how she generally carried out this function, I conclude that the way in which the personal respondent approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and I am prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour.  That said, I accept that the personal respondent’s contention that her regular practice is to ask for identification from individuals even when they are identified by someone else as admissible and so her repeated requests for identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a greater degree of scrutiny.[9]

In the Tribunal’s view, which had been my view and the view of the other Applicant all along, this was a clear case of racial profiling and discrimination.

The Award

The Tribunal awarded myself and Mr. Noble $2,000.00 respectively “for the injury to their dignity, feelings and self-respect arising out of the infringement of the Code”.[10] It must be noted that this award was at the very low end of the scale for awards in such cases. The Tribunal ruled that the discrimination in this case was at the less serious end of the spectrum due to, among other things, it being a single incident, the fact that the Applicants were ultimately not denied access to the lounge, and the fact that the incident did not affect our ability to practice law.[11]

Implications for the Legal Profession and the Law on Discrimination

Now that the Peel Law Association has determined that it will not seek leave to appeal the Court of Appeal decision which upheld the HRTO’s ruling, the positive findings in this case are significant to lawyers and their conduct in interactions with other lawyers.

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.[12] 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.^[13] 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.^[14]

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.

Finally, this case speaks to the huge importance and relevance of the various Human Rights Tribunal regimes across Canada. Years ago, it would not have been possible for someone like me to air this grievance in a public forum, unless it was possible to frame it in terms of a tort. Now, however, incidents of racial discrimination like this one can be brought out into the open and dealt with. This leads to a more transparent and inclusive society. In Campbell v.Jones 2002 NSCA 128, Justice Roscoe of the Nova Scotia Court of Appeal ruled that in situations where there are serious Canadian Charter of Rights and Freedoms and human rights violations the victim has the right and an obligation "to cry out loud and long against their transgressors in the public forum and -- in the case of children and others less capable of articulation of the issues -- to have their advocates cry out on their behalf." Human Rights Tribunals provide an avenue more accessible than any other to do just that.

Decisions online

Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII)  (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII)  (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 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.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, (2013), 306 O.A.C. 314, [2013] 116 O.R. (3d) 312 (CanLII) (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204  (Cronk, Juriansz and Pepall JJ.A.)

Press Coverage

Canadian Underwriter, Court rules in favour of RSA and broker after liability client demands payment for defence costs; National Post "Dreadlock discrimination real: black lawyer’s human rights appeal told" November 19, 2012, Toronto Sun "Discrimination case tough to establish", Michele Mandel ,Toronto Sun, November 19, 2012 and Law Times, Lawyer’s racial profiling case argued at appeal court, by Yamri Taddese, December 31, 2012;

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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). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn has appeared at all levels of courts, including the 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 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 at the HRTO; Civil Rights lawyer Charles Roach in the Oath case of 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 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 the litigant in the recent human rights case of Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, [2013] O.J. No. 2695.

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[1] Pieters v. Peel Law Assn and Mellissa Firth, 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O) at para. 4.

[2] Pieters at para. 20.

[3] Pieters at para. 12.

[4] Pieters at para. 62.

[5] Pieters at para. 77.

[6] Pieters at para. 61.

[7] Pieters at para. 79.

[8] Pieters at para. 88.

[9] Pieters at para. 92.

[10] Pieters at para. 102.

[11] Pieters at paras. 100-101.

[12] 5.04 (1) A lawyer has a special responsibility to respect the requirements of human rights  laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the  grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

[13] LSUC Rules of Professional Conduct, Rule 5.04(1).

[14] Canadian Bar Association, Racial Equality in the Canadian Legal Profession, (Ottawa: Canadian Bar Association, 1998); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability: Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); R. v. R.D.S. (1997), (1997) 118 C.C.C. (3d) 353.