A blog that is organized around the lawyering experience of Criminal and Human Rights Lawyer Selwyn Pieters and things that interest him!!!!!
Showing posts with label stereotypes. Show all posts
Showing posts with label stereotypes. Show all posts
Friday, February 17, 2017
Discussion of Racial Profiling decision in Victor Whyte c. Ville de Montréal (SPVM) -et- Mathieu Hypolite
Commentary (in English) on the Human Rights decision in Centre d’action-recherche sur les relations raciales (CRARR) pour Heather Johnson alors tutrice de son fils mineur Victor Whyte c. Ville de Montréal (SPVM) -et- Mathieu Hypolite - racial profiling decision rendered today $17,000.00 in damages awarded to thew victim - Victor Whyte.... <https://www.facebook.com/DistinguishedRadical/videos/10155058362070799/>
Sunday, December 18, 2016
Questions and Answers from Selwyn Pieters in Andrew Pfeifer first appearance at Police Disciplinary Hearing
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 17, 2016
1. Can you describe where this matter is in the process.
Constable Andrew Pfeifer of Hamilton Police Service face one count of discreditable conduct in that he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit to the reputation of the Hamilton Police Service by engaging in an unjustified and arbitrarily street check contrary to section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10 of the Police Services Act. This matter has been brought to hearing following an investigation conducted by Independent Police Review Director (the "OIPRD").
The first appearance was on December 15, 2016. A hearing by telephone conference is scheduled for January 31, 2017 to permit counsel for the complainant and police officer to review disclosure and be in a position to set a date for trial.
2. Have the facts been established or is part of your role to draw out the facts?
There were facts established during the investigation that brought the matter to a hearing. However, any facts that are acceptable by the hearing officer can be established by the parties agreeing as to the facts (Agreed Statement of Facts or ASF) or alternatively a full blown hearing on the merits of the charge in the Notice of Hearing in which examination in chief, cross-examinations and re-examinations take place. At this point no facts have been established for the purpose of the hearing as we only made a first appearance. Any established facts are what the Tribunal accepts as credible and trustworthy.
.
3. What would an appropriate outcome look like. In other words, what result is being sought by going through the hearing process?
The prosecutor would be seeking to establish misconduct on the part of the officer.
Mr. Green is a complainant and a witness in the proceeding with standing he is there to ensure that his version of the evidence is found to be credible. As well, on a broader level since this is an officer misconduct complaint that raises racial profiling as an issue, Mr. Green has an interest in ensuring the Hearing Officer adjudicate this case in a manner that recognizes its subtle, pervasive and unconscious nature of racism and that his decision is consistent with human rights principles set out in numerous Court of Appeal decisions.
4. In your estimation, how clear is this case? Is this unquestionably a case of police carding based on race? What challenges, if any, do you anticipate?
This is a case based on the circumstantial evidence. Importantly however that the only Black City Councillor would have this experience in his own city is illustrative of the fact that a Black person’s status, education, wealth or privilege does not immune him/or her from being targeted, arbitrarily stopped, questioned and sometimes detained by law enforcement officials, particularly police.
We will make the case that this was an unjustified and arbitrary street check and that it based in part on the race of Matthew Green.
5. Is there anything else you would like Hamiltonians to know about this matter or the issue of carding in general?
The “declaration of principles” in section 1 of the Police Services Act, proclaim the importance of the Human Rights Code and Charter in this statutory scheme. One of the enumerated principles of the provision of police services is:
Racial profiling is a serious issue of great concern to the public particularly racialized residents of Ontario, including residents of Hamilton. Regulations come into force in January 2017 that prohibits such action. Hamilton Police Service enacted a policy in December 15, 2016. Statistics shows Blacks are four times as likely to be unjustifiably and arbitrarily stopped by police in Hamilton.
In a case where racial profiling is alleged:
Once the police discipline proceeding is engaged, whether by a complaint about officer misconduct by a member of the public, or by an “internally” generated complaint about officer conduct, the Part V PSA proceeding must proceed in accordance with the statute, including situations where the complaint raises a Code issue. The decision-makers at various stages in the PSA Part V process have no power to decline to deal with the Code issue on the basis that another more appropriate forum exists – they are not permitted to decline and defer to some other tribunal.
6. Other issues
It appears that a larger room and venue would be necessary for this hearing. It is a public hearing and I am concerned with the comments reported in the Hamilton Spectator and CBC that HPS Union Boss Client Twolan called the case a "circus" and claimed that Councillor Green is making a spectacle “to further his own political agenda.” See, Samantha Craggs, Police union says Matthew Green creating spectacle over carding complaint CBC Hamilton, December 15, 2016 and Molly Hayes, Police union boss calls Hamilton councillor’s carding case political theatre, Hamilton Spectator, December 15, 2016
I have already written to all concerned stating “I would suggest a venue that is not a police building. Comments like this can poison the atmosphere.”
Obviously, I will have to obtain instructions from the client on motions to be brought including for additional disclosure, change of venue etc.
Resources
CBC Hamilton Report, December 12, 2016
Matthew Green Complaint, April 2016
African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource
Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission
Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)
Ontario Human Rights Commission, eLearning module “Human Rights 101"
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). Test for Proving racial profiling
Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created December 17, 2016
Human Rights lawyer Selwyn Pieters who represents Councillor Matthew Green at the Police Services Act hearing related to the substantiated OIPRD finding of the April 26th, 2016 carding complaint issued by Councillor Green against Constable Andrew Pfeifer #406 of Hamilton Police Service answers some question in respect to the hearing that commenced in Hamilton, Ontario.
Constable Andrew Pfeifer of Hamilton Police Service face one count of discreditable conduct in that he acted in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit to the reputation of the Hamilton Police Service by engaging in an unjustified and arbitrarily street check contrary to section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10 of the Police Services Act. This matter has been brought to hearing following an investigation conducted by Independent Police Review Director (the "OIPRD").
- A hearing officer Deputy Chief Terence Kelly, York Regional Police (Retired), will preside.
- Brian Duxbury and T. David Marshall are the Prosecutors appointed by the Chief of Police.
- Bernard Cummins and Ben Jeffries will be representing the Police Constable
- I am representing Councillor Matthew Green.
The first appearance was on December 15, 2016. A hearing by telephone conference is scheduled for January 31, 2017 to permit counsel for the complainant and police officer to review disclosure and be in a position to set a date for trial.
2. Have the facts been established or is part of your role to draw out the facts?
There were facts established during the investigation that brought the matter to a hearing. However, any facts that are acceptable by the hearing officer can be established by the parties agreeing as to the facts (Agreed Statement of Facts or ASF) or alternatively a full blown hearing on the merits of the charge in the Notice of Hearing in which examination in chief, cross-examinations and re-examinations take place. At this point no facts have been established for the purpose of the hearing as we only made a first appearance. Any established facts are what the Tribunal accepts as credible and trustworthy.
.
3. What would an appropriate outcome look like. In other words, what result is being sought by going through the hearing process?
The prosecutor would be seeking to establish misconduct on the part of the officer.
Mr. Green is a complainant and a witness in the proceeding with standing he is there to ensure that his version of the evidence is found to be credible. As well, on a broader level since this is an officer misconduct complaint that raises racial profiling as an issue, Mr. Green has an interest in ensuring the Hearing Officer adjudicate this case in a manner that recognizes its subtle, pervasive and unconscious nature of racism and that his decision is consistent with human rights principles set out in numerous Court of Appeal decisions.
4. In your estimation, how clear is this case? Is this unquestionably a case of police carding based on race? What challenges, if any, do you anticipate?
This is a case based on the circumstantial evidence. Importantly however that the only Black City Councillor would have this experience in his own city is illustrative of the fact that a Black person’s status, education, wealth or privilege does not immune him/or her from being targeted, arbitrarily stopped, questioned and sometimes detained by law enforcement officials, particularly police.
We will make the case that this was an unjustified and arbitrary street check and that it based in part on the race of Matthew Green.
5. Is there anything else you would like Hamiltonians to know about this matter or the issue of carding in general?
The “declaration of principles” in section 1 of the Police Services Act, proclaim the importance of the Human Rights Code and Charter in this statutory scheme. One of the enumerated principles of the provision of police services is:
2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.
Racial profiling is a serious issue of great concern to the public particularly racialized residents of Ontario, including residents of Hamilton. Regulations come into force in January 2017 that prohibits such action. Hamilton Police Service enacted a policy in December 15, 2016. Statistics shows Blacks are four times as likely to be unjustifiably and arbitrarily stopped by police in Hamilton.
In a case where racial profiling is alleged:
a. There is no need to prove intention or motivation to racially profile;See, for example, R. v. Brown (2003), 2003 CanLII 52142 (ON CA), 64 O.R. 161 at paras. 7 to 9; Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), <http://canlii.ca/t/1pz1n>; Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (CanLII), <http://canlii.ca/t/2608k>; Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), <http://canlii.ca/t/1rgcm>, Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), <http://canlii.ca/t/fz590> and Naraine v. Ford Motor Co. [1996] O.H.R.B.I.D. No. 23 and R. v. Steele, 2015 ONCA 169 (CanLII), <http://canlii.ca/t/ggpng>
b. Racial profiling can rarely be proved by direct evidence;
c. Racial profiling will usually be the product of subtle, unconscious beliefs, biases and prejudices;
d. Race need only be a factor in the adverse treatment to constitute racial discrimination;
e. Racial profiling is a systemic practice;
f. Racial profiling is not limited to initial stops;
g. African Canadians may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as being evasive;
h. A person may experience racial profiling based on several overlapping and intersecting aspects of their identity; and
i. The use of abusive language by an individual who has experienced racial profiling at the hands of police cannot justify further differential treatment
Once the police discipline proceeding is engaged, whether by a complaint about officer misconduct by a member of the public, or by an “internally” generated complaint about officer conduct, the Part V PSA proceeding must proceed in accordance with the statute, including situations where the complaint raises a Code issue. The decision-makers at various stages in the PSA Part V process have no power to decline to deal with the Code issue on the basis that another more appropriate forum exists – they are not permitted to decline and defer to some other tribunal.
6. Other issues
It appears that a larger room and venue would be necessary for this hearing. It is a public hearing and I am concerned with the comments reported in the Hamilton Spectator and CBC that HPS Union Boss Client Twolan called the case a "circus" and claimed that Councillor Green is making a spectacle “to further his own political agenda.” See, Samantha Craggs, Police union says Matthew Green creating spectacle over carding complaint CBC Hamilton, December 15, 2016 and Molly Hayes, Police union boss calls Hamilton councillor’s carding case political theatre, Hamilton Spectator, December 15, 2016
I have already written to all concerned stating “I would suggest a venue that is not a police building. Comments like this can poison the atmosphere.”
Obviously, I will have to obtain instructions from the client on motions to be brought including for additional disclosure, change of venue etc.
Resources
CBC Hamilton Report, December 12, 2016
Matthew Green Complaint, April 2016
African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource
Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission
Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)
Ontario Human Rights Commission, eLearning module “Human Rights 101"
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). Test for Proving racial profiling
Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>
Monday, December 12, 2016
Selwyn Pieters to Represent Councillor Matthew Green at Police Disciplinary Hearing
FOR IMMEDIATE RELEASE
Selwyn Pieters to Represent Councillor Matthew
Green at Hearing of
Constable Andrew Pfeifer Badge # 408
Hamilton, ON – December 12,
2016 – Civil rights lawyer Selwyn Pieters will represent Councillor Matthew
Green at the upcoming December 15th Police Services Act hearing related to the
substantiated OIPRD finding of the April 26th carding complaint issued by
Councillor Green against Constable Andrew Pfeifer of Hamilton Police Service.
“Given the unique structure
of the Police Services Act hearing process, I felt it important to retain the
nation’s foremost expert on matters related to my complaint. I am grateful to
have Mr. Pieters’ counsel throughout this process. I am confident that with his
support, the facts of the case will bear out,” says Councillor Matthew Green.
Selwyn Pieters has appeared
at all levels of court up to the Supreme Court of Canada. He has been counsel
in arguing numerous cases of racial
profiling, including carding, and discriminatory use of force including
successfully representing himself, citizens, and police officers before the
Human Rights Tribunal of Ontario and other administrative Tribunals. Selwyn is
also a member of the Bar of the Republic of Guyana and the Island of Trinidad.
The Police Services Act
Hearing is scheduled for 10:00 am December 15, 2016 at the Hamilton Central
Police Station at 155 King William St.
-30-
For Media Inquiries:
Selwyn A. Pieters,
B.A.,LL.B., L.E.C.
Email:
selwyn@selwynpieters.com
Phone: 1-416-787-5928
Resources
CBC Hamilton Report, December 12, 2016
Matthew Green Complaint, April 2016
African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource
Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission
Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)
Ontario Human Rights Commission, eLearning module “Human Rights 101"
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). Test for Proving racial profiling
Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>
Resources
CBC Hamilton Report, December 12, 2016
Matthew Green Complaint, April 2016
African Canadian Legal Clinic, Anti-Racial Profiling Toolkit, online: An ACLC Public Legal Education Resource
Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling, online: Ontario Human Rights Commission
Ontario Human Rights Commission, Human rights and policing: creating and sustaining organizational change Online (Toronto: Ontario Human Rights Commission, 2011)
Ontario Human Rights Commission, eLearning module “Human Rights 101"
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). Test for Proving racial profiling
Toronto Police Association v Ontario (Civilian Commission on Police Services), 2010 ONSC 246 (CanLII), <>
Friday, October 21, 2016
The Canadian Bar Association : What's New in Employment Remedies and Damages at the Human Rights Tribunal?
On November 02, 2016, I presented a paper at the Ontario Bar Association: Selwyn A. Pieters, "Using Public Interest Remedies to Impact Cultural Change" Online: <http://www.selwynpieters.com/documents/HumaRights_Ontario_PublicInterestRemedies_PietersPaper.pdf> See, bio for subject matter expertise.
Please read, like, share and comment.
Please read, like, share and comment.
Wednesday, October 19, 2016
Digging Down Deep: Racism in the Nova Scotian 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 October 19, 2016
Black Crown prosecutor Perry Borden and Black Lawyer Lyle Howe face-off at the hearing in what was described as a tense encounter. Mr. Howe apparently described Borden's presence in the Dartmouth prosecutors' office as being "so quiet he was almost nonexistent." Mr. Borden said Howe's comment made Borden appear to be the "house nigger" of the Public Prosecution Service. One of my colleagues J.H. reminded us that this was "Similar to how Johnny Cochran viewed (at least publicly) Chris Darden during the OJ trial."
Alonzo Wright Crown Attorney with Nova Scotia Public Prosecution Service of Canada who is a special prosecutor handling mostly fraud matters testified about racism at Howe's hearing about his experience as an Black man in Nova Scotia in a way that is so real:
This was reported by Blair Rhodes, CBC Journalist based in Halifax, Nova Scotia.
Of course, Mr. Wright's testimony resonated with me because I have been chronicling my own experiences as a Black man with dreadlocks in legal spaces.
In my October 17, 2016 blog post I wrote:
This then goes back to the reality that Black people, whether in a profession or not face everyday.
Wright testimony was important because it in some way exposes the lack of diversity in the various facets of the legal profession in Nova Scotia and the difficult conversations that are required to make the profession more welcoming and more diverse.
See, Selwyn Pieters bio for subject matter expertise.
Resources
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created October 19, 2016
I have been following Lyle Howe's Nova Scotia Barristers' Society hearing which Blair Rhodes reports on via his twitter account @CBCBlairRhodes and through various other means including orders and decisions of the Discipline Panel hearing the case. What is clear is that the NSBS has dug in its heels and is going after Mr. Howe with all of its resources, legal, regulatory and financial. What is also evident, much to his credit, is Lyle Howe is clearly determined to fight this application to strip him of his law licence and he is fighting it with everything he can muster. .
On October 17, 2016 CBC Nova Scotia reported the Disciplinary Hearing as "shaping up to be the longest hearing of its kind in Nova Scotia history. The push is in to try to finish by year's end."
On October 17, 2016 CBC Nova Scotia reported the Disciplinary Hearing as "shaping up to be the longest hearing of its kind in Nova Scotia history. The push is in to try to finish by year's end."
October 17, 2016, was interesting in that two Black Crown Attorneys testified under subpoena. Interestingly enough, the "nigger" word was raised when both attorneys were in the witness box.
Alonzo Wright Crown Attorney with Nova Scotia Public Prosecution Service of Canada who is a special prosecutor handling mostly fraud matters testified about racism at Howe's hearing about his experience as an Black man in Nova Scotia in a way that is so real:
1) Wright identified as African Nova Scotian.
2) Wright says he has experienced racism all his life.
3) Wright says he and teammates were called "niggers" during competitive games in an attempt to get them off their game.
4) Wright says even today he experiences racism: he wears his hair in dreads and gets singled out on occasion.
5) Wright says as he prosecutes across the province he is frequently the only black man in the courtroom and often in the community.
6) Wright says when he walks into court, people are often "shocked" to see him sit in the crown side in the courtroom.
This was reported by Blair Rhodes, CBC Journalist based in Halifax, Nova Scotia.
Of course, Mr. Wright's testimony resonated with me because I have been chronicling my own experiences as a Black man with dreadlocks in legal spaces.
In my October 17, 2016 blog post I wrote:
Assumptions, everyday racism and micro-aggression
What evidence was/is there to justify such an assumption that I have no right to 1) be in the Lawyers’ lounge at Peel Law Association: See, 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.) 2) access the door that lawyers use at the Law Society of Upper Canada (See, Alex Robinson, "Lawyer alleges discrimination by LSUC security guard" July 25, 2016 <http://www.lawtimesnews.com/201607255550/headline-news/lawyer-alleges-discrimination-by-lsuc-security-guard>, LSUC responds to discrimination allegation <http://www.lawtimesnews.com/201608225590/letters-to-the-editor/letter-lsuc-responds-to-discrimination-allegation> and Narrative to application to the Human Rights Tribunal was filed on September 07, 2016) or 3) Even access my office where I have 24 hours access? NONE.
This is why in most cases I boil it down to racial profiling because the assumptions that a Big Black man with Dreadlocks has no right to be in certain legal spaces are covert, insidious, and pervasive. The assumptions, everyday racism and micro-aggression, in most cases, are unintentional attitudes and behaviors that are learned in conditioned in people so that they act event without self-awareness.
This then goes back to the reality that Black people, whether in a profession or not face everyday.
Wright testimony was important because it in some way exposes the lack of diversity in the various facets of the legal profession in Nova Scotia and the difficult conversations that are required to make the profession more welcoming and more diverse.
See, Selwyn Pieters bio for subject matter expertise.
Resources
- Supreme Court of Nova Scotia — Nova Scotiasexual assault — sentence — victim — offender — woman
- 3.Nova Scotia Court of Appeal — Nova Scotiahonest but mistaken belief — jury — stupefying drug — sexual activity — evidencecited by 1 document
Supreme Court of Nova Scotia — Nova Scotia
subpoenas — prosecutorial discretion — ripeness — witnesses — evidence
- Nova Scotia Barristers' Society Hearing Panel — Nova Scotiabias — interruptions — differential treatment — recused — question
- 15.Nova Scotia Barristers' Society Hearing Panel — Nova Scotiasubpoena — evidence — immunity — independence — judicial
- 16.Nova Scotia Barristers' Society Hearing Panel — Nova Scotiaadvocacy — lawyer — professional misconduct — mislead — cross-examination
Nova Scotia Barristers' Society Hearing Panel — Nova Scotiareasonable — lawyers — person — bias — presumption of impartiality
Nova Scotia Barristers' Society Hearing Panel — Nova Scotiasecond recusal motion — tight timelines — recusal application — adjournment — time
Nova Scotia Barristers' Society Hearing Panel — Nova Scotiaconflict — bias — disqualify a decision-maker — named prosecutors — concern
Thursday, October 08, 2015
If you are a Black Shopper "Don't Bend Down" Decision in McCarthy v. Kenny Tan Pharmacy Inc.
By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created October 07, 2015
“Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.” R. v. Parks, 1993 CanLII 3383 (1993) 15 OR (3d) 324; 24 CR (4th) 81; 84 CCC (3d) 353; [1993] OJ No 2157 (QL); 21 WCB (2d) 121; 65 OAC 122 (Ont. C.A.), p. 369.
Civil Servant and Ph.D. student Mary McCarthy, realized the painful reality of "Shopping Whilst Black" when she made a late night run shortly after 10:00 p.m, to Kenny Tan Pharmacy Inc., a franchise of Shoppers Drug Mart. In an application filed with the Human Rights Tribunal of Ontario Ms. McCarthy "alleged that a staff person subjected her to racial profiling and discrimination by falsely accusing her of shoplifting, searching her bag, and failing to apologize to her when the search disclosed that she had not shoplifted anything." McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 159, para. 2,
This case also dealt with the reality in a multicultural society of whether a South Asian (Brown) person would discriminate against an African (Black) person?
In the end the Tribunal found that Ms. McCarthy was racially profiled and that her treatment on the night in question violated the Human Rights Code.
A one day hearing took place on September 19, 2013, at which a credibility shootout between the applicant and the respondents in respect to the time the event in question took place. The Respondent in order to undermine the applicant's case claimed the incident occurred after store closing: McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 1663 (CanLII), This is significant as it would have put the applicant in the place of a trespasser rather than a shopper on legitimate business. A receipt was crucial to the resolution of this point of dispute and reinforce the necessity for patrons to obtain receipts for items purchased, regardless how small the amount:
The Tribunal resumed the hearing with a directive that the Applicant produce the receipt. The applicant produced the receipt that showed the time she attended the store was indeed during store opening.
In its analysis of the legal principles the Tribunal relied upon 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.):
The Tribunal also relied on the recent Supreme Court of Canada decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (SCC), para. 33, which adopted the OHRC's definition of Racial Profiling:
In Peel Law Association v. Pieters, the Court of Appeal place particular significance to a false explanation as a pretext to discriminate holding that:
In terms if remedies, Ms. McCarthy was awarded $8000.00. The Tribunal's reasoning on how it arrived at that relatively modest quantum is instructive:
The Peel Law Association v. Pieters case was highly contested and litigated as well. Peel Law Association incurred over $200,00.00 costs for their legal representation and paying a Damage Award and Cost Award to the successful applicants. The applicants also incurred a substantial cost burden in funding the litigation all the way to the Court of Appeal: See, Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII) (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII) (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, [2013] 116 O.R. (3d) 312 (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204 (Cronk, Juriansz and Pepall JJ.A.).
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created October 07, 2015
“Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.” R. v. Parks, 1993 CanLII 3383 (1993) 15 OR (3d) 324; 24 CR (4th) 81; 84 CCC (3d) 353; [1993] OJ No 2157 (QL); 21 WCB (2d) 121; 65 OAC 122 (Ont. C.A.), p. 369.
Civil Servant and Ph.D. student Mary McCarthy, realized the painful reality of "Shopping Whilst Black" when she made a late night run shortly after 10:00 p.m, to Kenny Tan Pharmacy Inc., a franchise of Shoppers Drug Mart. In an application filed with the Human Rights Tribunal of Ontario Ms. McCarthy "alleged that a staff person subjected her to racial profiling and discrimination by falsely accusing her of shoplifting, searching her bag, and failing to apologize to her when the search disclosed that she had not shoplifted anything." McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 159, para. 2,
This case also dealt with the reality in a multicultural society of whether a South Asian (Brown) person would discriminate against an African (Black) person?
[88] In its closing submissions, the respondent store argued that Ms. Balachandra could not have racially profiled and discriminated against the applicant because she is also a racialized woman. Ms. Balachandra is South Asian. I disagree. In my view, it is not in dispute among well-informed, reasonable persons that racial stereotypes about persons of Black African descent exist in South Asian communities in both South Asia and Canada. Furthermore, South Asian individuals in Canada who hold such stereotypes and are in positions of power in employment, services or housing undoubtedly have the capacity to discriminate against Black individuals. I am not suggesting that this makes it more likely that Ms. Balachandra discriminated against the applicant, but I also do not accept that, because she is South Asian, it is impossible or less likely that she discriminated against the applicant. I dealt with a similar issue in Armstrong v. Anna's Hair & Spa, 2010 HRTO 1751 at paras. 52-55, and Bageya v.Dyadem lntemational, 2010 HRTO 1589 at para. 136.The experience, particularly, in the Commonwealth Caribbean of widespread racism, racial tensions and social discord between South Asians and Black, particularly in the Republic of Guyana and the Republic of Trinidad and Tobago, illustrate that racial tensions between South Asians and Black people are a reality and that Black people can be discriminated against by South Asians and the reverse. In Trinidad and Guyana, Black people are stereotyped by South Asians as "thieves" and "robbers", it is no surprise that such stereotypes would be carried to Canada and the same unnecessary stereotyping would pervade.
In the end the Tribunal found that Ms. McCarthy was racially profiled and that her treatment on the night in question violated the Human Rights Code.
A one day hearing took place on September 19, 2013, at which a credibility shootout between the applicant and the respondents in respect to the time the event in question took place. The Respondent in order to undermine the applicant's case claimed the incident occurred after store closing: McCarthy v. Kenny Tan Pharmacy Inc., 2013 HRTO 1663 (CanLII), This is significant as it would have put the applicant in the place of a trespasser rather than a shopper on legitimate business. A receipt was crucial to the resolution of this point of dispute and reinforce the necessity for patrons to obtain receipts for items purchased, regardless how small the amount:
[2] The applicant, who identifies as African Canadian, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to services and facilities because of her race and colour. Specifically, she alleged that a staff person in a Shoppers Drug Mart store subjected her to racial profiling and discrimination by aggressively and rudely demanding that she open her backpack, looking inside her backpack, and walking away without apologizing.
[3] The respondent filed a Response, which denied the allegation of racial profiling and discrimination. The respondent stated that a store employee approached the applicant and asked to see the contents of her purse because of the applicant’s behaviour (she appeared to be crouching down, taking an item from the store shelf, and putting the item in her purse), not because of her race and colour. The respondent stated that the employee was polite, courteous and respectful to the applicant.
[4] As the parties are aware, at the hearing, there was a dispute between the parties as to when the alleged incident occurred.
[5] The applicant provided the respondent with notice well in advance of the hearing that her position is that the alleged incident occurred between 10:10 and 10:29 p.m. on May 22, 2011 when the store was open, and that she has a receipt to prove it. However, the applicant did not produce the receipt in advance of the hearing or at the hearing.
[6] The respondent, on the other hand, did not dispute the applicant’s position on this matter prior to the hearing and when it cross-examined her at the hearing, it did not bring to her attention that its witnesses would be disputing her position. However, when the respondent called its witnesses, its main witness testified that the alleged incident occurred shortly after midnight on May 23, 2011 when the store was closed.
The Tribunal resumed the hearing with a directive that the Applicant produce the receipt. The applicant produced the receipt that showed the time she attended the store was indeed during store opening.
In its analysis of the legal principles the Tribunal relied upon 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.):
(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
(e) Racial stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.
McCarthy v. Kenny Tan Pharmacy Inc., 2015 HRTO 1303, para. 53. See also, Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (HRTO), para. 71.
The Tribunal also relied on the recent Supreme Court of Canada decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (SCC), para. 33, which adopted the OHRC's definition of Racial Profiling:
[33] ......The concept of racial profiling was originally developed in the context of proceedings brought against the police for abuse of power, but it has since been extended to other situations:
Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed. [Emphasis added.]
(Commission des droits de la personne et des droits de la jeunesse, Racial Profiling: Context and Definition (2005 (online)), at p. 13; see also Ontario Human Rights Commission, Policy and guidelines on racism and racial discrimination (2005 (online)), at p. 19.)
The Tribunal, having analyzed the evidence provided at the hearing found the applicant was racially profiled and the explanation of the respondent was illogical, incredible and butressed by lies:
[90] To sum up, the following evidence provides a basis to draw the inference that
Ms. Balachandra racially profiled and discriminated against the applicant during her
interactions with her in the respondent store:
• There were significant inconsistencies between the Response to the[91] For the above reasons, I am satisfied that the applicant has established, on a balance of probabilities, that her race and colour were a factor in how Ms. Balachandra treated her in the respondent store. In my view, although the applicant's race and colour were not the sole factor, they were a factor, and moreover, a significant factor, in the adverse treatment. Furthermore, in view of the fact that Ms. Balachandra is an employee of the respondent store, the respondent store is liable for her conduct. See s. 46.3(1) of the Code.
Application, Ms. Balachandra's written witness statement, and .her oral testimony with respect to what occurred.
• Ms. Balachandra did not see the applicant put a store product in her
bag, but strongly believed that she had done so, which was completely illogical. She was unable to offer a reasonable explanation for this
strong belief.
• Ms. Balachandra was rude to the applicant from the outset of her
interaction with her by not identifying or introducing herself to the
applicant, speaking to her in an elevated voice, and demanding that she open her backpack.
• Ms. Balachandra's action in directly confronting the applicant and
searching her backpack inside the store was contrary to the respondent store and Shoppers Drug Mart's policy on dealing with suspected
shoplifting.
• Despite having been employed by the respondent store for almost five years, and having had to deal with shoplifting incidents during most of
her shifts, Ms. Balachandra was unable to provide a single example
where she directly confronted and searched the bag of a non-Black
individual inside the store.
• After discovering that there was no store product in the applicant's
backpack, Ms. Balachandra continued to be rude tothe applicant by not apologizing to her. She was unable to offer a reasonable explanation
why she did not apologize, and her behaviour was contrary to how she normally behaves, which is to be polite.
• Ms. Balachandra lied when she testified that the incident occurred
shortly after midnight when the respondent store was closed. She
concocted this allegation at the last minute in an attempt to protect
herself and bolster the respondent store's case.
• Ms. Balachandra tried to evade the applicant's allegation of racial·
profiling and discrimination by falsely testifying that she "did not notice
that the applicant was Black when she first saw and spoke to her in the respondent store.
• Ms. Balachandra was unable to offer a credible, non-discriminatory
explanation for how she treated the applicant.
See Peel Law Association, above, at para. 128, where the Ontario Court of Appeal found that similar evidence was an ample basis to support an inference of racial profiling and discrimination.
[72] And so it is in discrimination cases. The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.
[73] In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.
[74] If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.
…
[77] The shifting of the evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else – namely, why they made a particular decision or took a particular action. [Emphasis added.]McCarthy by singularly producing her receipt demolished the case of the respondent that was built on a pack of lies.
In racial profiling cases the first step, which is crucial is establishing liability, if a case is successful at that point then the next step is to argue for a variety of other legally appropriate remedies, financial and non-monetary.
In terms if remedies, Ms. McCarthy was awarded $8000.00. The Tribunal's reasoning on how it arrived at that relatively modest quantum is instructive:
[98] Tribunal decisions that have considered incidents involving racial profiling and/or
discrimination with respect to services have made awards ranging from $2,000 to
$20,000. See, for example, Peel Law Association v. Pieters, 2010 HRTO 2411
($2,000); Phipps v. Toronto Police Services Board, 2009 HRTO 1604 ($10,000);
Simpson v. Oil City Hospitality Inc., 2012 AHRC 8 ($15,000); Direk v. Coffee Time
Donuts, 2009 HRTO 1887 ($15,000); Longboat v. 708179 Ontario Inc., 2012 HRTO
2170 ($15,000); and Nassiah v. Peel (Regional Municipality) Services Board, 2007
HRTO 14 ($20,000).
[99] None of the above decisions are closely analogous to the case at hand, but, in
my view, the ones that are most analogous and relevant with respect to the appropriate
quantum to be awarded to the applicant for injury to dignity, feelings and self-respect
are Pieters, Simpson, and Direk. In Pieters, this Tribunal found that the librarian/administrator of a lawyers' lounge racially profiled and discriminated against
two Black lawyers when she demanded that they produce identification to prove that
they were lawyers, and awarded each applicant $2,000 for injury to dignity, feelings and
self-respect. In Simpson, a Human Rights Tribunal of Alberta found that the respondent
refused the complainant entry to its nightclub because he is Asian, and awarded him
$15,000 for general damages. In Direk, this Tribunal found that the respondent coffee
shop's owner made discriminatory comments about Turkish people, and called the
police on the applicant because he is Turkish. The Tribunal awarded the applicant
$15,000 for injury to dignity, feelings and self-respect.
[100] In my view, the quantum that should be awarded to the applicant for injury to
dignity, feelings and self-respect in the case at hand lies somewhere between the
quantum awarded in Pieters, and the quantum awarded in Simpson and Direk. The
quantum should be higher than in Pieters because it is a far more serious violation of
the Code to be falsely accused of being a thief and subjected to a bag search in a store
because of race and colour than to be asked for identification in a lawyers' lounge
because of race and colour, but not as high as in Simpson, where the applicant was
refused a service because of his race, and in Direk, where the police were called on the
applicant because of his place of origin and ethnic origin.
[101] I find, overall, after considering the extremely serious violation of the Code, theThe remedies particularly the financial remedy awarded by the Tribunal is woefully inadequate and a licence to discriminate. Its great that Ms. McCarthy has a positive decision but with a remedial order of $8000.00, which is nuisance value money, as respondents terms such figures, I have a pessimestic view of that decision of this nature can result in the changing hearts and minds particularly when controlling for the costs mentally, physically and financially of applicants litigating such cases.
applicant's individual circumstances, and the relevant case law, that the $8,000 that the
applicant requested is an appropriate award of compensation for injury to dignity,
feelings and self-respect.
The Peel Law Association v. Pieters case was highly contested and litigated as well. Peel Law Association incurred over $200,00.00 costs for their legal representation and paying a Damage Award and Cost Award to the successful applicants. The applicants also incurred a substantial cost burden in funding the litigation all the way to the Court of Appeal: See, Noble v. Peel Law Association, 2009 CarswellOnt 3496, 2009 HRTO 805 (CanLII) (Vice Chair B. Eyolfson); Noble v. Peel Law Association, 2009 CarswellOnt 1758; 2009 HRTO 357 (CanLII) (Vice Chair K. Joaquim); Pieters v. Peel Law Association, 2010 CarswellOnt 9354, [2010] O.H.R.T.D. No. 2398, 2010 HRTO 2411 (CanLII) (Vice Chair E. Whist); PeelLaw Association v. Pieters, 2012 CarswellOnt 2026, [2012] O.J. No. 684, (2012), 288 O.A.C. 185, 2012 ONSC 1048, 213 A.C.W.S. (3d) 729 (Div. Ct.) (Chapnik, Hockin and Hoy JJ); Peel Law Association v. Royal Insurance, 2013 ONSC 2312, [2013] 116 O.R. (3d) 312 (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204 (Cronk, Juriansz and Pepall JJ.A.).
The broader point is these cases have little consequences on respondents behavior due to the imbalance of resources to litigate these cases. A significant amount of financial, legal and human resources are available to Corporate Respondents in Human Rights Applications. It is rare for Aplicants to have access to the financial resources of respondents to litigate these cases. Thus, with the absence of award of legal costs to the successful Applicant and the very modest financial awards to successful Applicants, one sense of dignity is never really restored and in fact it is undermined such that a Respondent controlling for the rare chance that an Applicant can successful win a racial profiling case at the Human Rights Tribunal has a license to discriminate and harass Black people whether they are walking, shopping, driving, riding and working under whatever guise suits their fancy.
The paucity of positive human rights decisions, particularly in respect to racial profiling, has led to a pessimistic view amongst some human rights litgants and applicant counsel on human rights tribunals and there ability to effectively and meaningfully adjudicate human rights disputes and provide meaningful remedies for Applicants/Complainants.
Wednesday, June 17, 2015
Case history of racial profiling and carding in Ontario: Selwyn Pieters
By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Created June 17, 2015
“Racism, and in particular anti-Black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.” R. v. Parks, (1993) 15 OR (3d) 324; 24 CR (4th) 81; 84 CCC (3d) 353; [1993] OJ No 2157 (QL); 21 WCB (2d) 121; 65 OAC 122 (Ont. C.A.), p. 369.
I am one of the leading lawyers in Ontario on the carding and racial profiling file. I therefore take this opportunity to chart my own journey in the quest for a juster justice system and the elimination of lawless law enforcement. Twenty three years after Carlton Parks decision very little has changed in respect to the lot of Black males in Toronto and Ontario in respect to our interactions with law enforcement, Courts and Tribunals. I recently litigated a carding incident of lawyering whilst Black arising out of a carding incident in a lawyers' lounge up to the Court of Appeal: 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.) and most recently R. v. Steele 2015 CarswellOnt 3334, 2015 ONCA 169, [2015] O.J. No. 1253 (Ont. C.A.). Leave to the Supreme Court of Canada denied: R. v. Steele, 2015 CanLII 43092 (SCC).
Selwyn argued numerous case of racial profiling in Criminal Courts including: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.) [Carding led to a big gun, drugs and gang case that I successfully litigated in Toronto... Project Threadbare the Judge called it because of the lack of evidence]; R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.).
M. (R.) was a case involving a youth 14 years old who was arrested four time by Toronto Police all based on racial profiling and improperly targeted him for arrest and detention based on Code-related grounds. He has no convictions yet was targetted, carded, arrested, detained, on several occassions. His case was fiercely litigated by Toronto Police and the reported decisions stand as a monument to the challenges litigants face in litigating racial profiling:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472M. (R.) v. Toronto Police Services Board was settled to the satisfaction of all parties and the terms of settlement reached remain confidential.
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 11941
M. (R.) v. Toronto Police Services Board, 2013 HRTO 1102
M. (R.) v. Toronto Police Services Board, 2013 HRTO 73
M. (R.) v. Toronto Police Services Board, 2012 CarswellOnt 11158
M. (R.) v. Toronto Police Services Board, [2011] O.H.R.T.D. No. 618, 2011 HRTO 410
M. (R.) v. Toronto Police Services Board, 2011 ONCJ 143, 2011 CarswellOnt 1980, 2011 ONCJ 143, 274 C.C.C. (3d) 272 (Ont. CJ.)
M. (R.) v. Toronto Police Services Board, 2010 CarswellOnt 9121, 2010 HRTO 2349
Carding by Toronto Police killed Dwayne Manning: Manning v. Toronto Police Services Board, 2014 HRTO 1409 (CanLII). This became one of my most difficult and challenging case. As Dwayne Manning continued to be carded and harassed his confidence was shaken and his mental health declined. He took his life in 2014.
My most satisfaction came from my face-off with three police officers who shattered my confidence in Toronto Police as an entity that respects that rights of citizens. Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (CanLII). In this case, I witnessed racialized violence against two Black males and intervened. I took this case to the HRTO with no regrets.
Friday, May 01, 2015
Public trust in Toronto Police Service means that the law must be respected
By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)Attorney-at-Law May 01, 2015
Below is an extract from part of a lengthy May 01, 2015 letter that I wrote to the recently appointed Chief of the Toronto Police Service, Mark Saunders, concerning racial profiling, racialized violence and inappropriate use of the Canadian criminal justice system machinery. The quote from R. v. Schertzer, 2015 ONCA 259 is an add on to the letter.
.....
Mr. [X] reported to me the following in respect to his interactions with officers at 31 Division:
i. That he has been stopped and searched in public many times without any reason;
ii. That he was assaulted in the past as well by Toronto Police Officers;
iii. That he does not feel comfortable to walk in his community alone as a result;
iv. That he wants the police harassment of him in his community to stop.
Just for your reminder on May, 30th, 2013, the Black Community Police Consultative
Committee (BCPCC) held a town hall meeting at the Christian Centre Church with
Toronto Police 31 Division and residents of the Jane-Finch area. The purpose of this discussion was to
identify problems and solutions to improve community safety and the
relationship with local police.[1]
You were in attendance and said this:
“First and foremost, our primary function within a community is
public safety, making sure folks are getting to and from their places
safely. In different areas of the City
there are different values, I can go to a different pocket of the city and
their primary issue is, my car getting broken into, then I can go to other
parts of the City and the big issue is, is my son and daughter ok to walk to
school and back? Two completely
different dynamic issues, and so as a police service the way that we try to be
successful and addressing the needs is by identifying what is the strongest
value for that community? The way that we learn that is by having those
conversations with the members of the community, with the consultative
communities because they speak to us and let us know what’s going on and they
let us know where the relationships are weak and where we can do better.”
....
In Toronto in 31 Division of Toronto Police it is no different than
Baltimore. Essentially, the troubled police - community interaction in 31
Division is systemic and endemic. A Black police Chief and Black Commander
makes no difference when the culture supports racial profiling and racialized
violence. I cannot stress enough how deleterious it is to the Toronto Police
Service and society as a whole when police officers abuse and misuse their
powers. We watched how things unfolded in Baltimore over the past few weeks with
the Freddie Gray matter. That is not an unlikely occurrence where the culture
of the police service is such that lawless behavior on the part of police officers
are shielded and covered up.
Little affects me more than the abuse of power by police officers
and when such organizations are tone deaf to the concerns of its citizens. Our
Canadian judicial system is inappropriately used with trumped up charges of
assault police when your officers abuse citizens rights.....
The Court of Appeal recently reiterated the following in R. v. Schertzer, 2015 ONCA 259:
The Court of Appeal recently reiterated the following in R. v. Schertzer, 2015 ONCA 259:
[132] Public confidence in the honesty of the police is fundamental to the integrity of the criminal justice system. As Moldaver J.A. wrote in Schaeffer v. Wood, 2013 SCC 71 (CanLII) at para. 52, citing Sir Robert Peel:“‘the police are the public and…the public are the police… The wisdom of this statement lies in its recognition that public trust in the police is, and always must be, of paramount concern.”[133] Police officers are sworn to uphold the law. In R. v. Feeney, 2008 ONCA 756 (CanLII), 238 C.C.C. (3d) 49, at para. 8, this court endorsed the following passage from R. v. Cusack (1978), 41 C.C.C. (2d) 289 (N.S. S.C.(A.D.))::[T]he paramount consideration in this case is the protection of the public from offences of this sort being committed by persons who are given special authority by our law to deal with individual members of society, and to deter such persons from acting in breach of their trust....
The commission of offences by police officers has been considered on numerous occasions by the Courts, and the unanimous finding has been that their sentence should be more severe than that of an ordinary person who commits the same crime, because of the position of public trust which they held at the time of the offence and their knowledge of the consequences of its perpetration..
It is not a crime for a Black man in Jane and Finch to be in and
around his neighbourhood. I live in Regent Park and I walk in my neighbourhood
any hour of the day and night as that is my prerogative. I trust that you will,
in your new role, reinforce to your officers that citizens have rights
under The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK),
1982, c 11 (the "Charter");
Human Rights Code, R.S.O. 1990, c.
H.19, as amended (the “Code”); Police
Services Act, R.S.O. 1990, c. P.15 as amended. This is not North Korea.
Copyright © 2015 Selwyn Pieters. All rights reserved. Please use citation if using or relying on my analysis.
********
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).
Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20 and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (Ont. C.A.); the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.
Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.
Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)
Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).
Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.).
Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)
Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).
Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20 and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (Ont. C.A.); the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.
Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.
Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)
Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).
Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.).
Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)
Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)
Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.
Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.
Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing
Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.
Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.
Selwyn has appeared in Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing
[1] - The Black Community Police
Consultative Committee (BCPCC) Town Hall Meeting, May 30th, 2013; a
video of the Town Hall Meeting is available at this web link - http://jane-finch.com/videos/policetownhall.htm
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