Selwyn Pieters Law Office Litigation Year in Review 2021: Staying Resiliant in the face of COVID19 and Pervasive Anti-Black Racism

 

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 27, 2021

Updated: January 02, 2022

Remembering 2021:  This was an interesting litigation year with law being practised in three countries, in several practice areas, with highs, lows, speed bumps, potholes (pun intended), falls and in-betweens. 

My work have covered a large number of clients and a wide array of legal areas, particularly, human rights law (racial discrimination, systemic discrimination, racial profiling, racial context to criminal law), civil litigation, Constitutional Law/Charter issues, criminal law, police law, Guyanese Constitutional law, as well as a variety of forms of administrative law.  I have been ably assisted by Thoby King who, upon completing his Articles of Clerkship, continues to provide legal services to my clients on a part-time basis.

Legal Publication

Civil Practice and Procedure in Ontario: Co-authored chapter on Rule 33 of Ontario’s Rules of Civil Procedure, which concerns orders to attend medical examinations. This project involved extensive case research and writing. The book was published on September 8, 2021. See, Selwyn A Pieters and Thoby King, Rules of Civil Procedure Chapters, Discovery, Rule 33 - Medical Examination of Parties in Civil Procedure and Practice in Ontario, Noel Semple (ed.), Canadian Legal Information Institute, 2021 CanLIIDocs 2025.

Speaking Engagements and Presentations

January 30, 2021, Black Pre-law Conference, Peter A. Allard School of Law, University of British Columbia

Community advocacy  regarding noose found at Michael Garron Hospital construction site

February 05-06, 2021, Participated as a Judge in the Julius Alexander Isaac Moot hosted by The Black Law Students’ Association of Canada (BLSA Canada) .

February 17, 2021, Osgoode Society for Canadian Legal History and BLSA Osgoode panel discussion with three Black legal professionals: Selwyn A. Pieters, Asha James, and Justice Lori Anne Thomas, on how Black Resistance has manifested through their journeys.

April 22, 2021: “COVID-19 and Police Racial Profiling in Ontario”, Regent Park Parent Conference Workshop Series.

May 31, 2021, Press Conference of Paul Slowe Chairman of the Police Service Commission (Guyana)

June 11, 2021: “Access to Administrative Justice for Community Users: A Litigator’s Perspective” at National Roundtable on Administrative Law: All the Voices We Don’t Hear, hosted by the Canadian Institute for the Administration of Justice.

July 28, 2021, Healing the Leaders, Toronto Centre of Community Learning & Development.

September 15, 2021 Selwyn A Pieters and Thoby King, Workplace COVID-19 Vaccination Policies: Can Non-Unionized Employees in Ontario be Fired for Non-Compliance?, CanLII Authors Program, 2021 CanLIIDocs 2230

October 4, 2021, Physicians for Human Rights Research Presentation on "Excited Delirium"

November 8, 2021, Law in Action Within Schools (LAWS)  careers workshop for grade 10 students at Central Technicao School

November 10, 2021, Grappling with Racial Bias in the Inquest Context, Presiding Inquest Officers.

November 23, 2021, Litigating Racial Bias, Faculty of Law, Queen's University.

November 27, 2021, panel discussion "Building resilience and community, one person at a time" Toronto Centre of Community Learning & Development.

Constitutional and Public law

I was counsel for the CityPlace Residents’ Association in City of Toronto v. Attorney General for Ontario 2021 SCC 34: This Supreme Court of Canada case concerned the City of Toronto’s constitutional challenge to the Provincial Government’s reconfiguration of municipal electoral boundaries during the municipal election of 2018. Our client was the CityPlace Residents’ Association, which intervened on the side of the City at the Supreme Court. The decision was a 5-4 majority for the Ontario government. CPRA's submissions on electoral listening was adopted by Abella J. and the minority (dissenting opinion). 

Previous summary of the case: I acted in this case at the lower leveels of Court as 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. 

Knox College, University of Toronto, 2021 CanLII 75429, this matter involved an appeal to the PO-4176 - Information and Privacy Commissioner of Ontario in respect to the denial of email and other records held by the Toronto School of Theology and Knox College related to the appellant’s Doctor of Theology studies. In its decision the adjudicator concludes that records responsive to an individual’s request under the Freedom of Information and Protection of Privacy Act  regarding his doctoral studies in Theology at Knox College and the Toronto School of Theology are not in the University of Toronto’s custody or under its control. As the requester has no right of access to the responsive records under section 10(1) of the Act, the adjudicator dismisses the appeal.

Guyana Criminal and Constitutional Law

I have been heavily involved in a sequence of legal matters in Guyana relating to the Police Service Commission (PSC) and the Guyanese government’s attempt to influence promotions of senior police officers and to attack the PSC. These matters have not yet been resolved. Namely:

·      May 31, 2021 submissions of Paul Slowe, PSC Chairman and Commissioner Clinton Conway in response to a May 19, 2021 Show Cause Notices served on them from the Office of the Prime Minister, including a supporting affidavit of Paul Slowe with extensive exhibits and a brief of documents.

·      Joint submissions of all PSC members in response to a second round of Show Cause Notices dated June 1, 2021, including another affidavit of Paul Slowe and another brief of documents. Submissions were filed June 8, 2021.

·      Arrest, detention and seizure of electronic devices of A. H., a Police Sergeant, on the false allegation that he leaked the Report to the Police Service Commission into sexual harassment allegations against Senior Superintendent Karimbaksh prepared by Assistant Commissioner of Police Simon McBean to Sherod Avery Duncan 

·       After the purported suspension of the members of the PSC by the President on June 16, 2021, letter to the President regarding the purported suspensions ( June 28, 2021).

·    Fixed  Date Application and accompanying documents on behalf of the Commission seeking judicial intervention in the promotion of senior ranks. This matter is engaging the attention of the Supreme Court of the Judicature (Gino Persaud J.) The Police Service Commission v. Secretary, Police Commission (1004/2021-FDA)

·    Appeared in person at the Magistrate's Court in Georgetown, Guyana, on October 15, 2021, before Principal Magistrate, Sherdel Isaacs-Marcus for arraignment and bail hearing for former Chairman of the Police Service Commission (PSC), Paul Slowe on charges of  sexual assault x 3 and conspiracy to defraud the Guyana Police Force (GPF). Successfully secured bail. There is also a video of the conduct of the SOCU police officers that day as they attempted to detain, arrest and pass Mr. Slowe down the "chute." See also, Slowe to ‘vigorously defend’ fraud, sexual assault charges, Guyana Chronicle, May 22, 2021; Slowe granted bail on conspiracy to defraud, sexual assault charges, Stabroek News, October 16, 2021.

I was also retained in the case where Director of Prisons Gladwin Samuels was reassigned to the Ministry of Home Affairs as the Assistant Coordinator of People Smuggling. See, Samuels Removed as Prison Director, Village Voice, April 24, 2021. In this case no ligitation was initiated.

Civil Litigation

Lee and Willson v Agnelo, Agnelo and Thompson (SCJ File no. CV-21-00658765-0000): This is an ongoing file involving a dispute between neighbours over driveway access as well as alleged racial profiling and discrimination of our clients by the plaintiffs. The Plaintiffs recently filed for an Interim Injunction against my clients. The application for an Interim Injunction was dismissed. The Plaintiff did not meet the test of a strong prima facie case nor did they meet the traditional test for injunction. In her reasons for judgment The Honourable Madam Justice P. Tamara Sugunasiri wrote:

[26] .....I am using this opportunity to add to the growing body of caselaw that anti-Black racism need not be overt nor intended, in order to harm.

[27] Anti-Black racism is a reality in our society arising from centuries of stereotyping, negative messaging and negative imaging. As the Ontario Court of Appeal has recognized: “For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them." While much of the jurisprudence on anti-Black racism arises in the criminal context, it is impossible to imagine that civil disputes are completely immune from such influences. Often it can only be inferred from circumstantial evidence, which has its own pitfalls. The challenge for another day will be to determine if, and to what extent, unconscious anti-Black racism impacts on the equities of this case.

Yeates et al. v. Karol et al.; CV-15-540974, This was a claim involving Nuisance, Breach of Contract, Personal Injury, Negligence, and Property Damage arising out of a a construction dispute between neighbours.

Criminal Law

R. v. Vaughan Oscar Roberts - Mr. Roberts is charged with second degree murder of Jason Wagar, attempted murder of Michael Muchmore, possession of a restricted weapon, possession of a loaded restricted firearm without an authorization or licence, without lawful excuse point a firearm at another person, use of a firearm in the commission of an indictable offence, and discharge of a firearm with intent to endanger the life of Michael Muchmore. These charges arise from an incident that occurred on August 12, 2021, at 15 Fergus Street, in the City of Kingston. A bail hearing was held in this matter and a publication ban requested by the Crown Attorney was resisted by Mr. Roberts: R. v. Roberts, 2021 ONSC 8116 (SCJ). Mr. Roberts was released on bail the Judge having found that "Considering the totality of the evidence presented, including the racial context, the qualities of the sureties, the terms of the proposed plan of supervision, the lack of a criminal record, and the most recent outbreak at the Quinte Detention Centre, I am of the opinion that detention is not necessary in order to maintain confidence in the administration of justice." R. v. Roberts, 2021 ONSC 8401. See also, Attempted murder added to charges in Kingston shooting globalnews.ca, August 13, 2021; Murder suspect seeks bail, declines publication ban The Whig.com October 26, 2021; Judge grants bail to Black Ajax man facing murder charge, citing 'very strong' self-defence argument in death of white Kingston man, Toronto Star, December 17, 2021 

R. v. Madison 2021 CarswellOnt 5084, 171 W.C.B. (2d) 337 Sentencing of Connor Madison: A sentencing hearing was held on March 30, 2021 for Mr. Connor Madison on multiple charges including aggravated assault and uttering threats.  Mr. Madison is a 23-year old man of Metis heritage who stabbed another resident of a shelter and later threatened his mother and as well a Toronto Community Housing security officer, while out on bail. Mr. Madison was sentenced to 24 months for aggravated assault, two months consecutive, for threatening security officer and one month consecutive for threatening his mother, less 488 days' credit for time served.

Preliminary inquiry of Connor Madison: Mr. Connor Madison was charged with second-degree murder in June, 2020 in connection with stabbing death of Stephon Anton Knights-Roberts . His preliminary inquiry was held from May 17 – 19, 2021 with a decision given orally on May 27, 2021 committing him to trial. 

R. v. Clarke  Mr. Clarke was charged with aggravated assault for which he entered a plea to the lesser included offence of assault causing bodily harm. There was a joint position for 18 month conditional sentence having regarding to mitigating factors in favor of the accused. The complainant, who orchestrated the confrontation with Mr. Clarke, sustained multiple stab wounds. One in the upper middle back area that was plugged at the scene by EMS and resulted in a collapsed lung. The stab wound to the left ear severed some nerves and plastic surgery was necessary to repair the damage. The treating physician indicated that there were lacerations to left parotid gland, which is located just under and in front of the left ear.  Also, a laceration to the left temporal artery, located just in front of the left ear. The final stab wound was to the left anterior lower neck area 3-4 inches in length and which caused a hematoma.  He was taken to surgery to rule out any injury to his trachea and esophagus. The complainant was first treated with a surgically placed chest-tube to his right chest. He also received a number of sutures to close the wounds to his ear, neck and back. The complainant spent a week in hospital prior to being discharged. He continues to have some lasting effects, including some nerve damage to his face due to the nerve damage caused by the severing of the nerves near his ear, as well as strained breathing due to the injury to his lung. Mr. Clarke as a result of my work served no jail time for this offence.

R. v. Harry, the complainant alleged that the accused assaulted her in the presence of her children, two of whom she alleged were ear witnesses and one of whom was present in the room. As a result of plea negotiations Justice Broderick granted the accused a conditional discharge. This means that he will not receive a criminal conviction and will not have a criminal record from this incident, but there will be a temporary record kept of the discharge. 

R. v. J.A. mischief - this was a domestic matter in which the complalnant alleged that the accused broke her computer monitor. The charges were withdrawn.

R. v. Theriault, 2020 ONSC 5784 - Provided legal advice and assisted in the revision and editing of a  Community Impact Statement for the sentencing of a White Police Officer who was involved in the assault and lost of an eye of Dafonte Miller, a Black teenager.

Domestic Violence - cases involving domestic violence and interpersonal assaults / violence amongst spouses and friends with benefits increased astronomically during COVID and the resulting lock-down. We provided representation in criminal matters and regulatory matters arising out of such difficult matters that spawn charges that could include murder, aggravated assault, assault bodily harm, 267(C) assault/choking, CC 267 assault with a weapon,  CC 266 assault,  CC 279(2) forcible confinement, CC 267(A) assault with a weapon.

Police Law (hybrid Human Rights)

We provided legal representation to clients in several cases involving police misconduct before the Office of the Independent Police Review Director (OIPRD) some of which resulted in findings of misconduct and disciplinary action.

On April 15, 2020, the Court of Appeal released Stanley v Office of the Independent Police Review Director, 2020 ONCA 252 upholding in part Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180. In this case Office of the Independent Police Review Director substantiated misconduct against Constable Christopher Howes with respect to his conduct during a search warrant entry in the Stanley family home. In this decision, the Court of appeal determined in para. 64-68 and 75-78, the following:

 

(a) The Police Services Act, RSO 1990, c P.15 trumps both common law and the SPPA,

(b) The OIPRD has the authority to make rules to govern its own practices and procedures,

(c) The OIPRD lacked explicit statutory power of reconsideration when the decision in question was made, but

(d) accepted that this newly acquired legal authority might be applied retrospectively to the Stanley family’s case if re-investigation is to be ordered.

Leave to appeal this decision was subsequently dismissed by the Supreme Court of Canada on January 28, 2021: Office of the Independent Police Review Director v. Faye Stanley, et al., 2021 CanLII 4697. Supreme Court won't hear police oversight case on Black family's allegations of brutality, Canadian Press, January 28, 2021.

A significant proportion of those residing in homeless encampments in the City of Toronto belong to historically marginalized groups who are overrepresented among Toronto’s homeless population. They include people with disabilities, Black and Indigenous people of colour, people in receipt of social assistance and members of the LGBTQ community protected under the Human Rights Code, R.S.O. 1990 c. H.9 and s. 15 of the Canadian Charter of Rights and Freedoms. See, Black et al. v. City of Toronto, 2020 ONSC 6398 and Sanctuary et al v. Toronto (City) et al., 2020 ONSC 6207 

In June and July 2021, the City has escalated its efforts to force homeless encampment residents to vacate public parks and to remove their belongings. It has issued Notices of Advice under Municipal Code c. 608 which regulates City parks and prohibits, inter alia, the erection of tents in parks (the “Parks By-law”). The City has issued Trespass Notices requiring the removal of tents and belongings and prohibiting people from being in parks overnight. It has conducted massive operations removing the occupants of the encampments.

While the City’s enforcement of the Trespass Notice(s) is facially neutral, it is the above disadvantaged persons who are being forcibly removed by Police and City officials and further displaced.

The videos of the tactics of the Toronto Police in the past two encampment clearance at Lamport Stadium and Alexandra Park was disturbing for its wanton violence. OIPRD can do a systemic type of review similar to what was done on the Thunder Bay Police Service and make systemic recommendations. Our law firm has filed OIPRD complaints on behalf of two persons who alleged they were mistreated by Toronto Police officers.

I also provided Independent Legal Advice to police officers who experienced various forms of racism in the Toronto Police Service.

Of course, being a human rights advocate / lawyer comes with risks of harassment and retaliation from officers of the State:  6 Toronto cops were found guilty of disparaging anti-racism advocates. The report was kept secret, CBC Toronto, November 04, 2021; 6 Toronto police officers found guilty of discreditable conduct online, Global News, November 04, 2021.

Human Rights Law

Selwyn prticipated in the 60th Anniversary of the Ontario Human Rights Commission (OHRC) by recounting his experience in the seminal and significant racial profiling/carding case of 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.)

2017-28096-I Walkes v. Reids Heritage Homes, the Human Rights Tribunal of Ontario heard submissions 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 Tribunal's decision is reported at Walkes v. Reid’s Heritage Homes, 2021 HRTO 251. In this case we were also successful in a third party records application which compelled TD Canada to produce banking records to the Tribunal and the parties. 

Holder:  (File. No. 2020-43232-I) is a Human Rights application regarding racial and age discrimination and failure to accommodate disability-related needs. Employer is the Ministry of the Attorney General representing her employer the Human Rights Tribunal of Ontario.  A significant issue has been the impact of a purported settlement of the Human Rights claim by the union. A preliminary hearing to determine the point was heard and a decision is pending. See also,  Ontario Public Service Employees Union (Holder-Regis) v Ontario (Attorney General), 2020 CanLII 97346 (ON GSB).

Other cases worked on in 2021 include

 N.M. as represented by litigation guardian L.B. v Toronto Police Service Board (File No. 2020-42533-I): Police racial profiling and racialized use of force against a minor. A video of the 14 year old being hog tied by Toronto Police is on youtube. See also, Mother of teen says 'violent' Toronto police arrest has 'traumatized' her son, Global News, August 21, 2019.

Lamontagne v Metrolinx (File No. 2020-43455-I) and Lamontagne v Metrolinx (File No. 2020-43456-I): Racial profiling and racialized use of force by GO Transit special constables. The applicants alleged that they were singled out and treated differently because of their race and ethnicity: Black, African-Canadian, Males.

 Orlyn Collins v Movati Athletics (File No. 2020-40427-I): Racial profiling at a gym. See, for example, Collins v. Movati Athletic (Group) Inc., 2020 HRTO 849, for a synopsis of what this matter was about.

Chen v Toronto Police Service Board (File No. 2019-39271-I): Racial profiling and racialized use of force by police. Mr. Chen alleged that he was held and restrained by two police officers whilst a third officer assaulted him causing him physical injuries. This matter is still awaiting a hearing.

Burke v Toronto Police Service Board, Chief of Police of the Toronto Police Service, Constable Blacklaws (File No. 2020-40412-I): Racial profiling and racialized use of force by police. Mr. Burke was detained and left in handcuffs. Toronto Fire had to attend and cut the handcuffs off.

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.

Employment/Labour Law

Selwyn represented several non-unionized employees in managerial positions in termination of employment matters where the dismissal was for cause and some without cause and without notice. The matter to be resolved and has been resolved in all of the cases litigated in 2021 was the length of the notice period,  human rights damages, and other benefits, the employer was obligated to pay the employee in lieu of the notice, and having regard to other factors including bad faith termination.

Selwyn also provided advice to non-unionized employees on COVID19 vaccine mandates in their workplaces: See, for example, Selwyn A Pieters and Thoby King, Workplace COVID-19 Vaccination Policies: Can Non-Unionized Employees in Ontario be Fired for Non-Compliance?, CanLII Authors Program,

 

Licencing / Professional Regulation

13315/HRLA Jon P Galvano v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 - this matter involved an application to revoke a horse racing licence. A determination of the matter was not made as the applicant died before the appeal could be heard.

2595582 Ontario Inc. C.O.B. Yas Café and Lounge v York Region Public Health Unit (Health Services Appeal and Review Board, File No. 21-HPP-0012): this matter involved a challenge to the Medical Office of Health’s order to close hookah lounges in York Region due to COVID-19. At a Case conference, the impugned order was put in abeyance due to the Province-wide lockdown that had come into effect in the interim. The matter was subsequently resolved upon the stage 3 reopening of businesses including hookah lounges. 

Banking Law

TD Canada terminated my client's banking relationship including that of other family members without explanation on on the basis that it was "within our right to end our relationship with any customer, without giving detailed reasons, provided we have given reasonable notice of doing so." We were able to negotiate an extension of time for the client's use of her banking facilities including credit card.

BMO terminated and determined the mortgage of a client on the basis that its business activities are outside of the bank's "risk appetite. It provided one months notice of the termination. On the bais of our negotiation the Bank increased the notice period for withdrawal of its services from one month to about six months. Although it has shortened the time for the client to repay the term loan, the duration was still in accordance with what the courts have found reasonable.

Inquests

Since January 2021 Selwyn has been appointed as one of ten Ontario lawyer Presiding Inquest Officers under the Coroners Act, R.S.O. 1990, c. C.37. The appointment comes as a result of a legislative change to the Coroners Act that allows a lawyer to preside at a Coroners Inquest. Until 2021, all presiding officers at Inquests were medically trained. The role is part-time and will complement Selwyn's litigation practice.

Provincial Offences Act matters

Sale or distribution by non-authorized cannabis retailer or permitted by landlord (ss.6, 7, 13 and 23 of the CCA). For charges of sale of cannabis under s. 6 of the CCA. I represented budtenders of unlicenced cannabis dispensaries who faced charges under s. 6 of the CCA. The City of Toronto prosecution and defence resolved these matters on the basis of a fine of $1000.00 and one-year probation, for the budtenders.

Selwyn also represented clients in respect to charges under the Planning Act; Building Code; and Emergency Management and Civil Protection Act.

Animal Law matters

Selwyn has represented the owner of a company licensed to provide services including canine security and training and sale of trained dogs for security and other service purposes in litigation matters.

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.