Selwyn Pieters Litigation Year in Review 2019

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)
Pieters Law Office
Created December 25, 2019

Remembering 2019:  This was an interesting litigation year with highs, lows, speed bumps, pot holes (pun intended) and in-betweens. 

I litigated in at least 10 practice areas, delved into a new area of Securities Litigation and was an Expert in two international law matters originating from Guyana. The truth of the matter is that the cases litigated are mostly test case and fundamentally impacts society. Significantly, some of them were done pro-bono, particularly since Legal Aid or other funding were hard to come by, and some litigants cannot afford the costs of hiring a lawyer and the fees and disbursements associated with challenging the actions or omissions of public authorities particularly the police.

Overall it was a very busy year, with some significant victories. 2020 will mark my 15^th year since I was called to the Ontario Bar.

Constitutional and Public law

Langenfeld v. Toronto Police Services Board et al., 2019 CarswellOnt 14511, 2019 ONCA 716, 309 A.C.W.S. (3d) 506, 437 D.L.R. (4th) 614, 55 Admin. L.R. (6th) 322, 58 C.C.L.T. (4th) 27 (ONCA). This application involves the right of individuals to attend public meetings of the Toronto Police Services Board (“TPSB”), held in the second floor auditorium of Police Headquarters in Toronto, without submitting to a search carried out with neither a warrant nor reasonable and probable grounds. The Ontario Superior Court of Justice declared that the practice of searching visitors to Police Headquarters prior to entry in the absence of a warrant or reasonable and probable grounds, as it applies to individuals wishing to attend public meetings of the TPSB, infringes s. 2(b) of the Charter and is not justified under s. 1 of the Charter because the infringement is not prescribed by law. The Court of Appeal agreed with the Superior Court that a search as a condition of entry to Police Headquarters infringed the s.2 (b) rights of individuals wishing to attend the TPSB meetings. On the s. 1 analysis, it held that the infringement was justified, as it was prescribed by law and was a reasonable limit on the s. 2(b) right. Therefore, it allowed the appeal of the Chief of Police, set aside the application judge’s order, and dismissed Mr. Langenfeld’s application. An application for leave to appeal was filed in the Supreme Court of Canada. As an aside, the reach of the Langenfeld decsions was recently explained in Canadian Broadcasting Corporation v. Ferrier 2019 ONCA 1025

I was co-counsel for Rocco Achampong in Toronto (City) v. Ontario (Attorney General) (C65861) where Justice Edward Belobaba of Ontario Superior Court of Justice overturned Bill 5, Better Local Government Act that dramatically changed the composition of City Counsel mid-way through the 2018 municipal elections. See, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 stay granted Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761. The appeal was heard on the merit by a five member panel of the Court of Appeal and the Court in a majority decision overturned the decision of the Superior Court and restored the status quo in favor of cutting City Council. See,Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732. Mr. Achampong did not participate in the appeal. The City of Toronto has applied for leave to appeal to the Supreme Court. It is likely that we will intervene if leave is granted.

I provided an expert affidavit in Reid v. Speaker  Charrandass and AG which was cited by the Chief Justice of Guyana in her decision, that was upheld by the Caribbean Court of Justice in CharrandasPersaud v Compton Herbert Reid, Dr Barton Scotland, The Attorney General,Bharrat Jagdeo, Joseph Harmon & Guyana Elections Commission [2019] CCJ 10 (AJ). See also, High Court asked to quash no-confidence motion; says Charrandas Persaud was Canadian since 1998 - Demerara Waves Online News Guyana, January 04, 2019

Education Law/ Civil Litigation

Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 82, 2019 CarswellOnt 1562 (ONCA) cost order Lam v. The University of Western Ontario Board of Governors et al., 2019 ONCA 185, 2019 CarswellOnt 3247 (ONCA) leave to appeal denied University of Western Ontario Board of Governors v. Simon Lam, 2019 CanLII 64826 (SCC). In this case the Court of Appeal determined that a University Student can sue for a breach of contract. The Court looked at what was signed when the student agreed to attend that university, which would contain the terms of the contract arguably and the graduate student handbook, and determined that there was an arguable case to litigate. This matter now proceeds to a trial. Another of my colleagues is handling the trial.

W.H. v. Toronto School of Theology The Student sought to appeal the termination of his registration in the Doctor of Theology Program (Program). Minutes of Settlement waived Student’s appeal rights. The Chair asked for written submissions from the parties as to whether the Academic Appeals Committee (AAC) had jurisdiction to hear the appeal. University of Toronto Academic Appeal Tribunal dismissed case holding that it has no jurisdiction.

Police Law (hybrid Human Rights)

Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180, 2019 CarswellOnt 65 (S.C.J.) stay of judgement pending appeal Stanley v. Office of the Independent Police Review Director 2019 CarswellOnt 13600 (ONCA). I have completed the appeal on the merits of Stanley v. OIPRD at the Ontario Court of Appeal. The decision is reserved. Essentially the Divisional Court rejected the proposition that OIPRD and a police service can have backroom conversations on substantive matters without the complainant being notified and held that “[28] As is emphasized by the name of the decision-maker, the Director of the Office of Independent Police Review was obliged to conduct an independent investigation and reach an independent decision. This independence is central to the OIPRD’s role in providing a public complaints system against police officers in Ontario: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824 (CanLII) (Div. Ct.), at para. 49. Here, in circumstances which belie the independence of the OIPRD, the Director had undisclosed discussions with the TPS about changing his decision and, ultimately, he did change his decision.  These undisclosed communications give rise, at least, to an appearance of unfairness and compromise the independence of the Director.”

Aiken v. Ottawa Police Services Board 2019 CarswellOnt 9212, 2019 HRTO 934 (HRTO). In this case the parties sought a determination of the “data collection question” of the public interest remedy contained in the Consent and Agreement dated July 23, 2010.  The agreement was reached between the Parties and the Human Rights Commission (the “Commission”) by way of a settlement of the underlying complaint. The Commission is no longer a party to the proceedings.  The Applicant, Chad Aiken, sought an interpretation that reflects his right (and that of other persons in Ottawa) to equal treatment with respect to policing by the Ottawa Police Services (the “OPS”) without discrimination based on race.  In seeking this interpretation, the Applicant maintains its position that the data collection should be sufficiently encompassing to determine whether there is an overrepresentation of Afro-Canadians in police scrutiny. The Tribunal opined on the “critical secondary work” that is needed when data reveals a problem. It urged that “data collection is just a first step, albeit a significant one, in addressing racial disproportionalities arising from policing practices.” The HRTO strongly urged the police service to take the next steps in the process – “to identify to the best of its ability what is causing or contributing to these disparities through conducting further research, and then based on the research findings, to develop and implement specific strategies to reduce and hopefully eliminate these disparities.” paras 130, 132. The Tribunal felt that Ottawa Police went way beyond what was called for in the 2012 Memorandum of Settlement and agreement.

I currently sit on four technical tables convened by the Ministry of the Solicitor General to create standards for the implementation of the Comprehensive Ontario Police Services Act, 2019, S.O. 2019, c. 1.

I also attended community meetings in Regent Park on collecting statistics and the roll out of the new neighborhood policing model. 

Securities Law / Quasi Criminal

R. v. W. W. 2019 CarswellOnt 18822 (O.C.J.) - On January 21, 2019, Mr. W. pleaded guilty to one count of trading in securities while prohibited contrary to s. 122(1)(c) of the Ontario Securities Act. The OSC Prosecutors were seeking 12 months as a joint position, 15 to 16 months as an open position, 2 years less a day on conviction after trial, and two years probation, in any event, on terms that would prohibit Mr. W. from working in securities or any related businesses. Justice Malcolm McLeod of the Ontario Court of Justice was not convinced that a higher sentence was required as there was no fraud involved, it was not a boiler room scam and neither was there any investor losses. Reviewing existing caselaw, Justice McLeod found that harsher sentences were usually reserved for offenders facing similar charges in cases involving boiler room scams and significant investor losses. The court made it clear that no such factors were present in Mr. Weber’s case and such absence of ordinarily aggravating factors cannot be used to drive up the sentence. Taking guidance from existing precedents, Justice McLeod refused to accept the OSC’s arguments for a higher sentence in the range of 15-18 months. Mr. W. was sentenced to a 90-days intermittent sentence to be served on weekends and two years probation. OSC has appealed the sentence and a hearing of the appeal has been set for May 25, 2020.

R. v. W.W. 2019 CarswellOnt 14097 (O.C.J.) Mr. W. brought an application to strike his guilty plea on the basis that it was not voluntary, informed and unequivocal. The motion to strike the guilty plea was dismissed. The matter thereafter proceeded to the sentencing phase.

Criminal Law

R. v. M.B. 2019 CarswellOnt 10207 (O.C.J.). M.B. was a residential support worker employed at children’s residence that housed individuals with developmental, emotional, psychiatric and behavioural challenges. She was alleged to have assaulted 11-year old complainant on six occasions.  A third-party record application was filed. Records were produced for review by judge, who concluded that some of records were likely relevant. Copies of were produced. Record was not to be used in any other proceeding except with authorization of court order. M.B. matter proceeded to trial and she was acquitted of all charges.

R. v. B.L. (O.C.J.). Mr. L. was charged with six counts of assault, one count of assault with a weapon and one count of utter threat to cause death. He pled guilty to two counts of assault and was given a conditional discharge with probation. The Crown sought a DNA Order for this secondary designated offence. Submissions were made that the state’s interest in obtaining the offender’s DNA profile is premised on the serious nature of both primary and secondary designated offences making the order one that will advance the state’s objectives of:[1]

a)     deterring potential repeat offenders (i.e. specific deterrence);

b)     promoting the safety of the community;

c)     detecting/identifying/prosecuting the offence upon re-offending;

d)     assisting in the solving of "cold" crimes;

e)     streamline investigations; and

f)      protecting the innocent by eliminating suspects and exonerating the wrongfully convicted.

Mr. Justice Stephen Brown accepted and adopted my written submissions: "I have read Mr. Pieters' very thorough written submissions on this matter and they are set out in paragraph 28 to 39 on his written submissions which I am going to file…. And I adopt them in their entirety.". The Crown’s request for an Order to collect Mr. B.L. DNA was denied.

Human Rights Law

Khan v. Ontario (Community Safety and Correctional Services) 2019 HRTO 357, 2019 CarswellOnt 2769 (HRTO). In this case, the applicant filed an Application alleging discrimination because of race, colour, ancestry, ethnic origin, disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, among other things the applicant alleges that the respondents have discriminated and reprised against her in how hours at the workplace have been scheduled.   In addition to filing this Application, the applicant filed a grievance with her union regarding the way in which hours are scheduled. The grievance alleges that there is favouritism in the awarding of overtime hours. She seeks “full redress”. The Tribunal deferred the matter. The applicant subsequently withdrew her grievances and the matter is proceeding through the HRTO processes.

2015-20752-I; 2015-20753-I; 2015-20754-I Stanley v. Toronto Police Services Board.  The applicant filed three Applications, one on behalf of each of her three sons (the “claimants”). In the Applications, she alleged that the respondents discriminated against the claimants because of race, colour, ancestry, place of origin, ethnic origin and age contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). The Application arose out of a raid of the applicant’s home carried out by Toronto Police officers in April 2014. The Applicant alleged that the officers’ conduct was fuelled by stereotypical assumptions about young black males and their propensity to commit criminal offences and to act violently. In addition to filing the Applications, the applicant filed a complaint to the OIPRD alleging misconduct on the part of the police officers involved in the raid. See, above section on Police law. This Human Rights matter came before the Tribunal in 2019 and has now been completed.

HRTO File 2019-37512-I - S.A. by litigation guardian A. A. v TPSB, et al. This case revolves around the encounter between a group of racialized youths in Regent Park and Toronto Police Officers who followed them over several blocks and then pretextually ticketed them at a traffic light (crossing on a red light) to collect intelligence in 51 Division. A human Rights complaint was filed in June 2019 This case will be a test on how far the Human Rights Tribunal is willing to go to make orders dealing with Walking Whilst Black situations. A youtube video of part of the encounter is available.

HRTO File 2018-33829-I JC v The Regional Municipality of Peel Police Services Board et al involves a complaint filed by a Black youth concerning his experience with Peel Police. On August 25, 2017, in Brampton, Ontario, J.C. was arrested by Peel Police and criminally charged for assaulting a police officer.  Those criminal charges were later withdrawn.  At the time of his arrest, J.C. was a young person under the Youth Criminal Justice Act, S.C. 2002, C.1 (“YCJA”).  He subsequently commenced an application (“Human Rights Application”) before the Human Rights Tribunal of Ontario (“HRTO”) alleging that the Peel Regional Police Services Board, Jennifer Evans, David Oxley, Jarrett Curtis, Alexander Scott-Krawczyk and Gary Mackin (collectively, “Peel Police”) discriminated against J.C. on numerous grounds including race.  A Judge of the Ontario Court of Justice recently granted an Order with respect to the use the parties can make of the file in the criminal proceedings. The matter is likely to be heavily litigated in 2020.

Harrower v. Ontario 2019 CarswellOnt 14680 (HRTO) – The applicant suffers from Arthrogryposis Multiplex Congenita (AMC), a congenital joint contracture condition, as well as several other conditions including Chronic Obstructive Pulmonary Disorder (COPD) and Celiac Disease. In addition to his disabilities and illnesses, of which he needs immediate and urgent relief of his symptoms, Ken has limited funds making the OCS system unreasonable and flawed. As a result of his COPD condition, Ken is unable to smoke cannabis and must either eat cannabis in edible form or eat raw cannabis itself. Given his disabilities, he is unable to work full-time, making him reliant on the Ontario Disability Support Program where he receives very limited funds that do not adequately cover his day-to-day expenses. Ken has a prescription for medical cannabis under Access to Cannabis for Medical Purposes Regulation. Ken filed a Human Rights challenge against The Attorney General of Ontario, The Office of the Premier of Ontario and The Toronto Police Service citing that the current cannabis retail system launched by the Government of Ontario –  the Ontario Cannabis Store (OCS) – is flawed and discriminatory against people with disabilities and limited financial means.  Tribunal directed combined summary/preliminary hearing.  Tribunal would determine whether complaint had reasonable prospect of succeeding. Parties could make submissions regarding whether complaint should be dismissed on basis medical cannabis was unconnected to jurisdiction of Ontario.

2017-28096-I Walkes v. Reids Heritage Homes the Tribunal heard evidence on whether an expert affidavit from J David Hulchanski, PhD will be accepted into evidence and the expert qualified to provide evidence in this housing discrimination case. Dr. Hulchanski posited that “Given that the Black population of the region Fergus is part of is 526,000 (5.8% of the GGH, Table 1) researchers are correct to wonder what are the odds of an exceptionally small Black population of Fergus occurring and maintaining itself ‘naturally,’ and for so long (as of 2016), given the extensive ethnocultural diversity of the Toronto region, and much of Ontario and Canada? How is it that Fergus with 20,400 people, 8,150 households, in a county that has 3,300 Black residents, has a Black population of 100? These facts, given that they are from 2016, would alert most researchers to consider residential discrimination, in the form of racial steering and racial exclusion, as part of the explanation.” The decision in respect to this discrete issue is reserved.

In the international law arena, I was engaged as a local expert for the World Bank Group’s Women, Business and the Law project in their Violence against Women survey for Guyana. My contribution was reported in the Law Times, Canadian lawyer helps with World Bank project on women and the law, October 21, 2019. 

Licencing / Professional Regulation

11724 v. Director, Child, Youth and Family Services Act 2019 CarswellOnt 2389, 2019 CanLII 29112 (ON LAT). The appellant operated a children’s residence in Ottawa, Ontario. It appealed the respondent’s Proposal to Revoke a Licence (the Proposal) pursuant to s. 236(1) and s. 264(2) of the Child, Youth and Family Services Act, 2017. This decision dealt with a request to seal part of the hearing and its records. The Tribunal considered the openness principle as set out in Toronto Star v. AG Ontario, 2018 ONSC 2586 (ONSC). The appellants voluntarily surrendered their licence. Two days of evidence was heard in Ottawa.

Inquests

Ekamba, Re 2019 CarswellOnt 9640. Mr. Ekamba was fatally shot by Peel Regional Police officers who were responding to a complaint. During the incident, a stray police bullet struck Ms. Susan Zreik, who had not been involved and was in her apartment. Ms. Zreik was transported to hospital, underwent surgery for the bullet wound, and survived the injury. Mr. Ekamba’s death was investigated by the Special Investigations Unit. At the conclusion of its investigation, the SIU did not lay criminal charges against the involved officers. One of the main issues in the inquest is the intersection of race and mental health and what role it had in this case. The Inquest has been scheduled for three weeks commencing May 11, 2020. I will be counsel for Black Action Defence Committee.

Cannabis Law

This was a busy year litigating cannabis cases on many fronts. The advocacy was in the Courts and on the streets. Toronto Police Services conducted major operations resulting in the arrest and prosecution of hundreds of young bud tenders.

Toronto Police Service Drug Squad launched Project Buffet in which charges were laid of conspire to commit an indictable offence: to wit, distribution of cannabis, contrary to subsection 10(1) of the Cannabis Act, thereby committing an offence contrary to subsection 465(1)(c) of the Criminal Code and Possession of property obtained by crime: to wit, currency derived from drug trafficking, contrary to section 354(1) of the Criminal Code against numerous persons. On some days I was running bail hearing for 15 persons held for show cause hearings. These matters are making their way through the Courts.

Sale or distribution by non-authorized cannabis retailer or permitted by landlord (ss.6, 7, 13 and 23 of the CCA). For charges od sale of cannabis under s. 6 of the CCA, Ontario Attorney General disposed of over 100 cases with the use of fines of $500.00 and stays of some of the charges. The City of Toronto prosecution asked for $1000.00 and one-year probation, for the budtenders.

Concrete blocks were used to shutter dispensaries. In one instance which prompted a hasty change in the law, I forced the City of Toronto By-law enforcement to re-open a location in which a tenant was locked out of his unit.

The law was amended to remove the provision where a building remained open if residential tenants resided on the property. We litigated the change of the legislation in Brodie v. Attorney General of Ontario, 2019 ONSC 5735. Unfortunately, the application judge did not allow interim access to the premises pending the determination of the constitutional issues.

Law enforcement inclusive of the police engaged in aggressive enforcement in relation to cannabis under the governing federal and provincial statutes, namely, the Criminal Code, Cannabis Act and the Cannabis Control Act, 2017 (CCA) which came into force on October 17, 2018 in Ontario.

The unlicensed cannabis market has and continue to meet a demand unmet by the current regulatory regime. In this regard, there because intense enforcement action by the City of Toronto and Toronto Police to shut down the unlicensed.

The Cannabis Retail Store Allocation Lottery became a farce and has been the subject of litigation. 104 Harbord Street, the location of a series of raids, actually won one of the spots in the lottery.

The Province recently announced that the laws will be amended to open the markets. In the meantime, hundreds of criminal matters and CCA matters are clogging up the Court’s dockets and wasting precious judicial, public and private resources because of a series of costly missteps on the part of the government and regulators.

I have won two different awards in 2019 for my work on law reform and advocacy in this area.

Cases will be litigated in 2020 on the Constitutional, human rights, criminal/quasi criminal and administrative law front on the cannabis files. It will be interesting to see how the judiciary wrestle with these matters.

---

[1] R. v. F.(P.R.), 2001 CarswellOnt 4566 (C.A.),  at paras 17-18.

International Day for the Elimination of Racial Discrimination 2018

International Day for the Elimination of Racial Discrimination: Racial Minorities, particularly Blacks, have little to nothing to cheer about or celebrate.

Racial Profiling is rampant. We are still faces at the bottom of the well.

In Canada and the United States, racist rallies that were a thing of the past has publicly emerged and politics is moving to the far right.

Black kids are still profiled in school as requiring special education or having some form of exceptionality.

Black kids and their parents are increasingly stressed by Children Aid Societies and Black kids are more likely to be taken into care, sometimes for the least infractions or allegations.

Prisons are overpopulated with Black men who should be in Universities. The criminal justice system remains systemically racist.

Black men are in distress numbers are disproportionately arrested, charged, assaulted, seriously injured or killed by police in the United States, Ontario, Canada, Guyana, the United Kingdom,  and Trinidad. Extra-judicial killing by state agents that are troubling but justice for the victims remain illusory.

Whether its dressed as implicit bias, implicit racism, systemic racism, institutionalized racism or personal racism: it is racism.

Our justice system participants still don't get it on what is racial profiling.

Consumer racial profiling remains prevalent.

Black people are excluded in large numbers from corporate Canada's boardrooms and large law firms. One can still count the numbers because they are so low.

Discrimination in employment, whether it is in the public service or private sector remains the second highest grounds for applications under the Human Rights Code.

Access to justice remains illusory. On March 21, 2000, I wrote:

For those of us who are true, committed anti-racist, we must continue to fight against all of the evils of racism which evident within our society. We are not the first to fight this battle. We do not want the next generation to have to fight this battle again.
March 21 is a time for us to re-dedicate and re-commit ourselves to fight any and all social injustices that isn't beneficial to the society in which we were brought up [and in which some of us has adopted as our home].
Our continued fight has reinforced the meaning of moral courage, humility and integrity. We hope that the Government of Canada, the Government of Ontario and the Ontario Human Rights Commission can learn the meaning of moral courage, humility and integrity from us.

The truth hurts but it must be told.

While I remain hopeful. I have little to celebrate in 2018.

March 21, 2018
Selwyn A. Pieters
Barrister, Solicitor & Notary Public
of the Bars of Guyana, Trinidad and Ontario.

BADC Closing Arguments - Andrew Loku Inquest (notes)

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)

Pieters Law Office

Created June 26, 2017

I want to thank you, members of the jury for taking the time to be here for a case that is of great importance to our communities and taking time out of your lives to be the jury in this case.

Sir Robert Peel stated that "The police are the public and the public are the police." So that if we break this down in a multi-cultural, multi-ethnic, and multi-racial society it means that the police must have experientially interacted with citizens including Black men and women and persons with mental health exceptionalities."

"One of the Black Action Defence Committee (BADC) Directors reminded me at lunch today that we are on one ship so that if we sink you will too.

The Relationship between police and black community must be look at holistically. If relationship continues to be strained and steps aren’t taken to ameliorate that relationship, no one is safe in this city. Black lives matter. Our lives matters.

Constable Doyle testified that he had a Black partner but never had experience interacting with Black men. You heard the evidence of Professor Nicholas Rule where he spoke of the implicit bias and the shift of perception of Black men from "happy go lucky to Black men to being stereotyped as being angry and aggressive."

Implicit bias affects all of us. 35% of all fatal shootings, at least, are black men. This has led to a fear of the police in our communities. So our fear of police is not irrational. There is disparity in policing and how we are policed. That goes to recommendation with respect to compiling of statistics. We want official statistics. We want use of Force form to be amended to document race of person, and mental health issues. Race, gender, ethnicity of anyone killed or seriously hurt. Dr. Rule spoke of being collect and analyze data on implicit bias of individual officers from recruitment to advancement through the service. He also speak of tracking this data on a systemic level. Dr. Kwame McKenzie also spoke of the important of statistics in respect to the institutional racism including the use of force. So for both experts the collection of statistics are important.

We all worked collaboratively to come up with slate. Also join recommendations of Across Boundaries, that speak about intersectionality of mental health and anti-black racism. Some people would want you to believe that racism has nothing to do with this case. Race and mental health is at the core of what this case is about. We are not taking colour blind approach to this case. Race has something to do with it. That’s why this room was filled when Constable Doyle testified. Our community wanted to hear from him. W e are disappointed that the officers said they wouldn’t change anything they did in that same situation.

We have had inquests before where jury recommended tasers. You have seen the evidence that each Toronto Police officer has a gun, three magazines of ammo (15 rounds each). We're arming them for war, not peace.

You job is very important and I echo what Mr. Morton said, it is the most important thing you will do to make recommendations to governments, agencies and the police sop that lives are saved, deaths are prevented.

See also Dr. Carlise ruling on racism

Cross-examination of Nicholas Rule on Racial Bias in Judgments of Physical Size and Formidability

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)

Pieters Law Office

Created June 12, 2017

On June 12, 2017, at the Andrew Loku Inquest I crossed examined Professor Nicholas Rule on an article he coauthored: Wilson, J. P., Hugenberg, K., & Rule, N. O Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat. Journal of Personality and Social Psychology.Advance online publication. http://dx.doi.org/10.1037/pspi0000092

--- E x T R A C T ---

NICHOLAS RULE

CROSS-EXAMINATION BY MR. SELWYN PIETERS:

          Q.   Good afternoon, Dr. Rule.

A.   Good afternoon.

          Q.   I am Selwyn Pieters.  I represent the Black Action Defence Committee.  Now, you spoke about implicit bias as perceiving or having Black men stereotyped as angry and aggressive.

A.   I did.  Yes.

          Q.   And you spoke about the shift of Black men being happy go lucky or Black people being perceived as happy-go-lucky people.

A.   That’s right.

          Q.   Right.  This angry and aggressive posture that comes from implicit bias, would you say that that is something that infects society as a whole?

A.   It certainly affects society as a whole, yes.

          Q.   Then so if that is the case, then the fear of a Black man is based on implicit thought processes rather than objective fear, would you agree?

A.   I would agree.

          Q.   You mentioned a shopping mall example with respect to a wallet and a gun.  You recall that?

A.   I do.

          Q.   And you mentioned that it is likely that the perception would be the Black person having the gun?

A.   That’s what the studies have shown, yes.

          Q.   Right.  So, if that situation is replicated in real life in a shopping mall where a White man has a gun and the Black man has the wallet, would it be the case, taking what you said or say -- the association of black with crime is and implicit association of Black people with crime -- that the Black person would be at risk of violence from the police or a negative reaction?

A.   You mean as opposed to the White person --

          Q.   Yes.

A.   -- with the gun?  I don’t know that it would necessarily go that far, actually.  So I think that it would be more likely that the presence of an actual gun would be a more salient stimulus to draw attention.  So I -- it is -- the studies do show that people are more likely to mistake the wallet for a gun in the hands of Black person and that they’re then faster to make a shoot decision, but it doesn’t necessarily mean that they would mistake a gun for a wallet per se in the case of a White person.

          Q.   Very well.  You’re familiar with the Diallo situation in the U.S. where a Black man was shot taking a wallet out of his pocket?

A.   I am.

          Q.   Very well.  You mentioned, you spoke about implicit bias and then you spoke about implicit racism.

A.   That’s right.

          Q.   Define implicit racism for us.

A.   Implicit racism would be beliefs about a group defined by its race that are held implicitly and are of negative valence against that group.

          Q.   Very well.  Now ---

A.   If I can -- I would say implicit racism is a specific type of implicit bias.

          Q.   But it’s racism nonetheless?

A.   That’s right.  Yes.

          Q.   Right.  Would you say it’s possible for Toronto Police to compile social science data on implicit bias in relation to individual officers from the time they join the force and as they progress through the force?

A.   It is certainly possible for us to measure implicit associations held by a particular individual and to track those for changes over time.

          Q.   What about systemically within the organization?

A.   Within the organization you would need to make those individual assessments and then you could perhaps aggregate them to say that, you know, a given group of individuals is more prone towards a particular level of bias.  Though, I don’t know that that would necessarily constitute the same idea as an institutionally endorsed or a reiterated notion.

          Q.   I’m going to put some propositions to you and you can tell me whether you agree or whether you disagree or you can explain it.

A.   Sure.

          Q.   I’m going to suggest to that the perpetuation or the perpetration of implicit bias is a form of violence based on what you described today in respect to how Black men are perceived and treated.  

A.   It would depend on the way that one defines violence.  If one defines violence as a physical behaviour then I would not agree.  If one defines violence as, you know, including aggressive thoughts, that might be possible.  However, I might still disagree, actually, because I think in that case they would need to be conscious thoughts for them to be considered violent.

          Q.   Yes.  But if someone has implicit thoughts of violence against someone, are you saying that that would be excused?

A.   No.  I don’t think that one would necessarily have implicit thoughts of violence.  So, the nature of the way that, you know, a human would think about violence or particular actions wouldn’t necessarily be at an implicit level.  Those would have to occur somewhat more explicitly.  The implicit level would simply be the associations between two concepts, so it’s a -- it’s a much more basic thing.  But to actually consider a violent act, or any behaviour of that sort, would require a -- an either explicit or semi-explicit level, I think.

          Q.   I take it from your testimony, you can agree, disagree or explain it, that this implicit bias that you spoke about and that you researched and wrote about, it perpetrates oppression against a specific race and that’s Black people.

A.   I think I could agree with that.

          Q.   I also take it from your study and what you said today that the relationship between discrimination on the basis -- there is a relationship between discrimination on the basis of race and implicit bias?

A.   There is and that would be implicit racism.

          Q.   And that there is a relationship between prejudice, stereotyping, discrimination and implicit bias?

A.   There certainly is, yes.

          Q.   And that discriminatory attitudes and implicit bias are mutually exclusive?  Or they go -- sorry, not mutually exclusive.  They go hand in hand?

A.   Yes.  But not in a bidirectional manner.  So, as I said earlier, implicit bias would be present when there are discriminatory attitudes, but implicit bias can be present without discriminatory attitudes as well.

          Q.   You said something here and I’m going to put something to you and you can tell me what your position is.  You said we favour people who look like us in very important ways. 

A.   That’s right.

          Q.   So, I’m going to put this to you: Colour blindness and excuses are the means by which the dominant group maintains its position.  I can put it differently.

THE CORONER:  Perhaps if you did rephrase it might be easier for the witness. 

BY MR. PIETERS:

          Q.   If what you said today in evidence is true and this implicit bias has its most virulent or its most devastating impact on Black people, let’s say in Canada or in Toronto, then we can’t really boil down implicit bias or any of these things in a colour-blind way.

A.   Well, what I can say about colour blindness is that it’s typically regarded as an ineffective strategy for dealing with race relations.  Colour blindness typically -- so the idea of colour blindness is the notion that if we ignore differences between groups -- in this case racial groups, groups defined by colour differences, typically -- that there won’t be problems.  That if we just, you know, if we don’t see the differences then there aren’t issues to discuss.  The data have clearly shown that that is not effective but rather it masks the underlying issues.  But rather an approach that acknowledges differences and discusses those differences is more effective for ameliorating any discrepancies that are based on those differences.

THE CORONER:  Mr. Pieters, a time warning.  You have two minutes.

MR. PIETERS:  Very well.  I’m going to finish way before then, Dr. Carlisle.

THE CORONER:  Anything you can do to help.

BY MR. PIETERS:

          Q.   What effect does denial from a systemic level, for example, a president of a police association denying that police act on implicit biases, have on managing that association or managing its members in dealing with issues of implicit bias or racism?

A.   I think that that would likely be problematic.  I think any time that -- if we’re truly discussing denial as a concept whereby one knows one thing but does not wish to accept it, as denial is often used in the psychological literature, then that wouldn’t be -- that is not a productive step towards making any kind of change.  It’s important that one acknowledges a phenomenon before one can potentially even deal with.

          Q.   What would be your recommendation to the jury for a police service to confront this issue and deal with it?

A.   That’s a very big question.  I think that, you know, if there are differences in the way that suspects are being treating on the basis of their race, then certainly an examination is required to understand why this is occurring, how it’s occurring and then steps would need to be taken.  If it’s determined that this is based on implicit biases, that is associations or expectations that people from one racial group are more prone to criminal behaviour than another, then some of the training exercises that we discussed earlier today might be appropriate for attempting to correct those biases.

          Q.   Than you, Dr. Carlisle.  Thank you, Dr. Rule.

A.   Thank you. 

THE CORONER:  Thank you, Mr. Pieters.

See also, Wendy Gillis, Black men perceived as more threatening, expert tells Andrew Loku inquest, Toronto Star, June 12, 2017

Racial profiling in the Courtroom, the classroom, Lsuc and other legal spaces

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)
Pieters Law Office
Created February 15, 2017

Stereotypical Identification of Black Men as accused Person is Typical in our System of criminal (in)justice. Those who disagree has not walked in my shoes so cannot persuade me otherwise. Here is an encounter at Old City Hall for which I had to educate the Crown lawyer.....

I am a Black male who is a Barrister & Solicitor. I write with respect to your conduct this afternoon in courtroom 111 at Old City Hall... I had signed in on the Counsel sheet representing an accused person (Male, White, 32, blue eyes, brown hair). I then sat in the counsel area directly behind you waiting for the case to be heard. This was a matter that was screened for diversion as it was a theft under from LCBO $12.95 bottle of Liquor.

When you stated to the Justice of the Peace that there were no more counsel matters, without me hearing you call the matter for which I was providing representation, I stepped forward from counsel area to alert you to the fact that there was indeed one more counsel matter. Instead of listening to me, you pointed to where the unrepresented accused persons were and directed me to go and join the line. I had to remind you that I am a lawyer. You did not even apologize. I have been in courtroom 111 where you were crown on numerous occasions and I was very shocked, surprised, embarrassed and in some way humiliated by your behavior. All you had to do if you were not sure whether or not I was a lawyer is ask the question, not assume I am an accused person who should join the back of the line.

You may or may not know that Black male lawyers are fed up being treated as though they are accused person when practising before the courts......

I believe there is a need to record today's incident because it reinforces certain stereotypical attitudes and notions that indeed results in racial profiling.

Systemic Racism in Ontario Legal Profession

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)
Pieters Law Office
Created January 17, 2017

This video is a collection of thoughts on the Challenges Faced by Racialized Licensees Working Group (“the Working Group”) Final report, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions (November 2016). I have also added my thoughts as a subject matter expert. 






Discussion of Systemic Racism

Systemic discrimination consists of practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or group’s rights to opportunities because of attributed rather than actual characteristics.  If the practices or attitudes affect certain groups in a disproportionately negative way, it is a signal that practices that lead to this adverse impact may be discriminatory.[1]  Establishing systemic discrimination depends on showing that practices, attitudes, policies or procedures impact disproportionately on certain protected groups,[2] such as African Canadians.

Evidence related to systemic and individual discrimination is often interwoven.  It is difficult to untangle systemic discrimination in practice from its application in particular circumstances.[3]   In Canada (Canadian Human Rights Commission) v Canada (Department of National Health and Welfare),[4] the Federal Court of Canada confirmed that the applicant was entitled to adduce systemic evidence in support of allegations of discrimination against him personally

The relevance of social science and contextual evidence in racial profiling cases cannot be understated:

[118]    After making this finding, the Vice-Chair, in para. 91, quoted a passage from Nassiah discussing the social science evidence led in that case:

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

In a racist blog < http://chimpmania.com/forum/showthread.php?97617-Canadian-groid-apettorney-ooks-raycizz&p=903356> that showed up after this case got into the public domain someone wrote:

“In Toronto, nigger apettorney Selwyn Pieters shuffles up to the law society headquarters, and an astute security guard suspects something is wrong. The guard asks to see the ape's law society identity card, which turns out expired, and the ape is denied entry. Chimpout ensues.”

“Look at this thing. Would you allow it entry ANYWHERE, short of Apefrika?”

“Things like this should not be allowed!”

“I'm suprised anyone hires it, ever. Nasty beast.”

“I'm sure everyplace the nigger shows up this happens. Humans don't want fat greasy niggers around.”

Another wrote “The only way it would belong in the building is if it was there to clean the toilets.”

I was treated as an imposter not because I am not a lawyer but it is because of stereotypes based race, ethnicity, ancestry, creed and the intersection of these grounds. The intersecting grounds are the basis of the racial profiling and unequal treatment that I was subjected to. Had the security guard believed I was a lawyer he was have followed the procedures set out in paragraphs 23-24 of the LSUC response and would have dealt with me in a customer service friendly manner as a member of the LSUC. It is for this reason that I cited the overtly racist comments herein. While these were direct examples of racist words that some people would find offensive, the treatment experienced by me and other Blacks and racial minorities at the LSUC and by the LSUC is consistent with the racist views above.

I do not believe that had I been white or Jewish, I would not have been subjected to differential treatment by the security guard and the LSUC. The lack of scrutiny of the suspended licencee Ari Benjamin Kulidjian for three years as he entered those doors of the LSUC, whilst not entitled to carry a LSUC identification card supports my view.

Further, the Human Rights Tribunal Application in Arlene Spence v. Law Society of Upper Canada et al. 2016-24316-I is an employee complaint of racism at the LSUC Spence v. Law Society of Upper Canada, 2017 HRTO 31 (CanLII), <http://canlii.ca/t/gww66>, 

 In Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3, a case that involved professional misconduct findings against McSween 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:

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.

Recently, The Challenges Faced by Racialized Licensees Working Group (“the Working Group”) Final report, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions (November 2016):

117. It is clear from the Working Group’s engagement and consultation processes that discrimination based on race is a daily reality for many racialized licensees; however, many participants stated that they would not file a discrimination complaint with the Law Society for various reasons, including fear of losing their job, fear of being labeled as a troublemaker, and other reprisal related concerns. Participants also noted that although racism can be experienced on an individual basis, racial discrimination can also be institutional or systemic in nature. Participants did not believe that an effective process was available at the Law Society to address systemic complaints. The Working Group heard from a number of participants who stated that a system of anonymous complaints would assist in alleviating some of the concerns about reporting cases of racial discrimination.

University of Ottawa Professor (and LSUC Bencher) Joanne St. Lewis in her Slaw column made the following incisive comments about the micro and macro aggressions that Black lawyers face due to racism and its deleterious effects:

The legal profession has a heightened awareness of issues of mental health. Ignoring the role of racism in worsening or causing mental illness, points to the underlying failure to address the realities of racism in legal workplaces. Experiencing everyday microaggressions, being the subject of direct racism, absorbing injustices in silence – all take a toll that cannot simply be masked by individualized terms such as stress, depression etc. The Challenges Report missed the opportunity to build on the Law Society’s mental health initiatives by recommending strategies specific to racialized licensees. The report ought to include a recommendation that the profession’s designated health care provider (Homewood Health) develop the necessary staffing and substantive expertise to address these concerns as part of a comprehensive mental health support strategy to racialized licensees.

Ms. Joanne St. Lewis was the co-chair of the 1999 Canadian Bar Association Working Group on Racial Equality and author of Virtual Justice: Systemic Racism and the Canadian Legal Profession. She was the first Black woman to be elected to serve as a Bencher of the Law Society of Upper Canada in its 207 year history. She has served as legal counsel for the Centre for Research Action on Race Relations in Lavoie v. Canada [2002] S.C.J. No. 24 (where she appeared before the SCC) and was representative for the co-intervenor NOIVMW (National Organization of Immigrant and Visible Minority Women) on the LEAF legal committee on R. v. R.D.S. [1997] 3 S.C.R. 484.[5]

In its submissions to the LSUC Working Group, the Canadian Association of Black Lawyers wrote:

CABL notes that the process of recalling, reliving and publicly discussing systemic and sometimes overt racism is gruelling and uncomfortable. Our members shared intimate details of their experiences in order to draw attention to the challenges faced by black and other minority lawyers in Ontario.

…

CABL is fully in support of the LSUC addressing the challenges our members and other minority groups face in the practice of law. The members of the Bar have failed in their obligation not to “discriminate on the grounds of race, ancestry, pledge of origin, colour, ethnic

origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, 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 (as defined in the Ontario Human Rights Code)”2 [See The Rules of Professional Conduct section 6.3.1-1] It is for this very reason that we believe the report places too much faith in the ability of the Bar to self-monitor and correct the systemic issues recognized in the report. There must be direct regulation from the LSUC. We believe that the recommendations should be strengthened to reflect LSUC regulation rather than suggestion

---

[1] Canadian National Railway v Canada (Human Rights Commission), [1987] 1 SCR 114 at para 34

[2] Brome v Ontario (Human Rights Commission), (1999) 171 DLR (4th) 538 at para 16 (Ct J (Gen Div)); Brome v Ontario (Human Rights Commission), [1999] 171 DLR (4th) 538 (Ct  J (Gen Div)), leave to appeal to CA refused, [1999] 89 ACWS (3d) 1238 (CA).

[3] Kelly v British Columbia (Ministry of Public Safety and Solicitor General), 2009 BCHRT  363at para 29.

[4] [1998] 85 ACWS (3d) 647. This decision has been applied numerous times to find that statistical evidence of a larger systemic problem within an organization can be used to support an  inference of discrimination in a particular case.

[5] It is highly likely that at a hearing in this matter I will be serving a summons on this Bencher to provide contextual evidence on the LSUC in respect to anti-black racism.