Selwyn: toronto

Showing posts with label toronto. Show all posts

Sunday, April 08, 2018

Doug Ford will provide enhanced funding for TAVIS

Ontario Progressive Conservative Leader Doug Ford's speech on policing: if he becomes Premier of Ontario in June 2018 he will pump more money into The Toronto Anti-Violence Intervention Strategy (TAVIS). Tavis was a unit that collected personal information on mostly Black and Brown males. It was feared and hated for criminalizing a community based on racial stereotypes.

Saturday, September 28, 2013

Policing Racial Profiling in Police Services in Toronto, Ontario

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)

The Toronto Police Services Board, Race and Ethno cultural Equity Policy, Board Authority: Min. No. P115/05 provides that:

It is the policy of the Toronto Police Services Board that:

1. Discriminatory treatment of members of the public or of the Service based on race, sex, place of origin, sexual orientation, age, disability and socio-economic status will not be tolerated;

2. Practices that may be racist, as well as behaviours that underlie and reinforce such practices, will not be tolerated; and

3. The Chief shall develop procedures to implement this policy. These procedures shall cover, but will not be limited to, the following areas:

September 27, 2013 marks the release by the Toronto Star of yet another series on the Toronto Police Service that shows the widespread practice of racial profiling by the Toronto police Officers entitled Known to Police. This series shows that precisely 500 officers mostly comprising the TAVIS Units and Community Response Units were responsible for "carding" or otherwise collecting data from thousands of citizens in a manner in most case which involves duress, coercion, discrimination and intimidation. A previous edition of the series of articles published in early February 2010 in the Toronto Star was called Race Matters.

In Toronto the crime rate is very low, particularly for violent crimes. In nine months for 2013 we have less than 45 homicides. There is absolutely no justification that could be rationally sustained for Toronto Police carding and mapping entire communities of young men between the ages of 15 to 24 who are Black and Brown except that race, colour, class and privilege are operating. It is apparent that the majority of the people carded, or stopped and frisked (under the pretext of "Officer Safety") are not connected to any organized crime activities; not involved in any gang related activities; not connected to the drug and/or the gun trade and do not have a criminal record. How then can such a practice be endorsed by the powers that be including the Ontario Human Rights Commission? Such a practice makes the persons subject to it victims of racial profiling. Racial profiling offends against a person's equality right as it allows Toronto Police officers to deliberately subject him/her to differential and unequal treatment without sufficient evidentiary basis.

The factual matrix of the cases profiled by the Toronto Star goes to the core of racial profiling, racial stereotyping and racism. Toronto Police Service has failed to correct most police racial misconduct that requires training, supervision and accountability. The Toronto Police Services Board has failed to do what is necessary to prevent this type of misconduct from occurring in the future.

I am concerned about this practice that continues unabated but unfortunately there has not been much litigation on the issue and few positive decisions supporting victims of the practice: See, Maynard v. Toronto Police Services Board, 2012 HRTO 1220. The quantum in Maynard was the highest awarded by the HRTO in a substantiated racial profiling case: Nassiah v. Peel Police Services Board, 2007 HRTO 14 ($20,000), Phipps v. Toronto Police Services Board, 2009 HRTO 1604, 2009 HRTO 1604 ($10,000); Abbott v. Toronto Police Services Board, 2010 HRTO 1314 ($5,000); Pieters and Noble v. Peel Law Association, 2010 HRTO 2411($2000.00 each). And, without a lithany of litigation this carding issue will continue. In New York City a judge recently rule carding to be unconstitutional and awarded damages. I wonder when such litigation will be prosecuted with vigour here.

Litigating such cases against Toronto Police or any other police service is expensive, time consuming and unpredictable. It is likely that the person who wishes to challenge the practice is not able to fund the litigation whilst the Police respondents are ably defended. Thus, it is important to hire a lawyer with the requisite cultural competency and undersanding of how race and racial stereotyping infects certain decisions within the criminal justice system particularly and the system of law enforcement generally. Lawyers who have the lived experience of racial profiling is the best bet and value for money as such a lawyer is able to identify and deal with such issues experientially and not using an approach that is considered "boiler-plated" or "cookie-cutter" since that lawyer can actually put himself/herself in the client's shoes or position.

In a recent case in which I was counsel the police were defended by at least three lawyers from the City and a private law firm. The lithany of reported decisions generated at the Ontario Court level and Tribunal speaks to the extent to which these cases are hotly contested:
M. (R.) v. Toronto Police Services Board, 2013 CarswellOnt 12134, 2013 HRTO 1472
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

R.M. v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

Hiring the wrong counsel or representation could be detrimental to your case. It is therefore very important in hiring representation that you seek out a lawyer that is experienced, knowledgeable in human rights adjudication on all subjects including established legal principles and jurisprudence on racial harassment and discrimination, racial profiling, police practice and procedure, criminal law and technical legal issues that are raised at the Human Rights Tribunal of Ontario, by way of Request for Order During Proceedings or Requests for Summary Hearing, in order to wittle down or have the claim dismissed without a hearing on the merits.

The only carding decision that has been litigated thus far and all the way to the Court of Appeal is Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) in the context of two Black lawyers and an articling student being profiled in a Lawyers' Lounge. The Pieters in that case is the author of this article. That 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 us. I incurred as well a substantially 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 Court of Appeal decision in this case that upheld the Tribunal's findings and rationale for those findings has wider implications for the law on discrimination in Ontario since in cases of stop, search and carding without reasonable and/or probabe grounds it will be more difficult for police officers, security guards and other service providors who would engage in profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour:

[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.]

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.

If you have experienced racial harassment and discrimination, racial profiling, please feel free to contact my office to learn more about your rights and remedies: 4 1 6 - 7 8 7 - 5 9 2 8.

Copyright: Use of this article or its derivative content is to be cited as: Pieters, Selwyn "Policing Racial Profiling in Police Services in Toronto, Ontario" Posted on September 28, 2013 online <http://selwynpieters.blogspot.ca/2013/09/policing-racial-profiling-in-police.html> (date accessed: )

********

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in human rights, civil and criminal litigation matters in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario.

Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 at the HRTO; Civil Rights lawyer Charles Roach in the Oath case of Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is the litigant in the recent human rights case of Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, [2013] O.J. No. 2695.

Thursday, June 13, 2013

Peel Law Association v. Pieters, 2013 ONCA 396

Today marks the release of the Court of Appeal for Ontario decision in Peel Law Association v. Pieters, 2013 ONCA 396

Whilst racial profiling against African Canadians, Aboriginals and other racial minorities in the provision of goods, services and facilities is widespread and pervasive, there is a dearth of racial profiling litigation in Canada.

This decision is significant and very important as it is one of the first racial profiling cases that does not involved the police or other law enforcement agents or officials that was heard by the Court of Appeal.

The Court of Appeal decision in this case is important to the emerging jurisprudence on racial profiling from which lawyers and other Black professional are not immune.

Thirteen lawyers put in appearance in the appeal on behalf of various parties. The decision focus on the legal concept of deference to the first level finder of facts as well as the test for discrimination:

[53] The Divisional Court set out the following test for discrimination. The Court said:
In order to prove a prima facie case of discrimination, there must be evidence to support the following findings:
a. a distinction or differential treatment;
b. arbitrariness based on a prohibited ground;
c. a disadvantage; and

d. a causal nexus between the arbitrary distinction based on a prohibited ground and the disadvantage suffered.
[54] The Court did not indicate from where it derived this test. The term "causal nexus" does not appear in Tranchemontagne, which the Divisional Court cited before setting out this test. The test is not one that human rights tribunals have traditionally applied.
[55] The traditional definition was applied in Moore, where Abella J. said at para. 33:
As the Tribunal properly recognized, to demonstrate prima faciediscrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
[56] Lang J.A., in this court's decision in Shaw, at para. 14, said the following three elements were required to establish a prima facie case:
1. That he or she is a member of a group protected by the Code;
2. That he or she was subjected to adverse treatment; and
3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.
[57] Lang J.A. drew this formulation from the decision of the Divisional Court majority in Shaw, which was cited by the Divisional Court in this case.
[58] Neither the Moore nor Shaw statements of the test use the word "nexus". In fact, Abella J. does not use the word "nexus" at all in her reasons in Moore. InShaw, in discussing her articulation of the test, Lang J.A. uses the terms "nexus", "connection" and "factor" interchangeably.
[59] While the word "nexus" is perfectly acceptable, I think it preferable to continue to use the terms more commonly used in the jurisprudence developed under the Code. All that is required is that there be a "connection" between the adverse treatment and the ground of discrimination. The ground of discrimination must somehow be a "factor" in the adverse treatment.
[60] I do not think it acceptable, however, to attach the modifier "causal" to "nexus". Doing so seems to me to elevate the test beyond what the law requires. The Divisional Court's requirement of a "causal nexus" or a "causal link" between the adverse treatment and a prohibited ground seems counter to the evolution of human rights jurisprudence, which focuses on the discriminatory effects of conduct, rather than on intention and direct cause.
[61] I conclude that the Divisional Court erred in law by applying an incorrect and stricter test of discrimination in deciding this case. This error necessarily affected the Divisional Court's analysis of whether the evidence could reasonably satisfy the test for discrimination.

Background Information

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 (CanLII) (Donohue, J.); Peel Law Assn. v. Pieters, 2012 CarswellOnt 8616 (Gillese, Epstein, Feldman JJ.A.); Peel Law Association v. Pieters, 2013 ONCA 396, [2013] 116 O.R. (3d) 81, 2013 CarswellOnt 7881, 2013 O.J. No. 2695, 228 A.C.W.S. (3d) 204 (Cronk, Juriansz and Pepall JJ.A.)

_______________________________________________________________

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago). A significant portion of Selwyn's work involves representation of persons in racial discrimination / harassment / profiling cases in the Federal and Provincial Courts and the Human Rights Tribunal of Ontario. Selwyn has appeared at all levels of courts, including the Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383 and Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20. His current cases include the competing rights case of Taylor-Baptistev. Ontario Public Service Employees Union, 2012 HRTO 1393 that is at the reconsideration stage at the HRTO; Roachet 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 is also acting as co-counsel for the families of three deceased persons killed during a civil demonstration in Linden, Guyana.

Wednesday, December 26, 2012

C55734 Pieters and Noble v. Peel Law Association

By Selwyn A. Pieters, B.A., LL.B., L.E.C.

Lawyer & Notary Public (Ontario, Canada)

Attorney-at-Law (Republic of Guyana, Island of Trinidad)

Posted on December 26, 2012

On December 18 and 19, 2012, a Court of Appeal panel in Ontario heard arguments in the appeal of C55734 Pieters and Noble v. Peel Law Association. Brian Noble and I was ably represented by experienced human rights lawyer Geri Sanson.

Thirteen lawyers put in appearance in the appeal on behalf of various parties. It appeared to me that most of the arguments and concerns centered on the legal concept of deference to the first level finder of facts as well as the test for discrimination.

The courtroom was packed with interested observers of the case.

It was also covered by the National Post "Dreadlock discrimination real: black lawyer’s human rights appeal told" November 19, 2012, Toronto Sun "Discrimination case tough to establish", Michele Mandel ,Toronto Sun, November 19, 2012 and Law Times, Lawyer’s racial profiling case argued at appeal court, by Yamri Taddese, December 31, 2012.

Peel Law 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.)

Noble v. Peel Law Association, 2010HRTO 2411, [2010] O.H.R.T.D. No. 2398 (HRTO)

_______________________________________________________________

Sunday, August 07, 2011

Toronto Police Deaths and Injuries in Custody From Juy 31, 2011

By Selwyn A. Pieters, B.A., LL.B.
Barrister, Solicitor & Notary Public

July 31, 2011 at the Caribana Parade, three people shot, one died, two injured, all from police bullets.

August 1, 2011 a disabled man who is walking with his mother is killed by the police in an encounter that may well be a case of mistaken identity.

August 07, 2011, another police shooting at Pharmacy Avenue and Conroy Avenue.

The Special Investigations Unit (SIU) is a civilian law enforcement agency, independent of the police, however, comprised of mostly retired police officers on its investigative staff, that conducts criminal investigations into circumstances involving police and civilians that have resulted in serious injury, death or allegations of sexual assault. Very rarely are any charges laid against police officers and the standards set by the SIU to lay charges are quite higher than that used to charge civilians.

It would be interesting to see the results of the various investigations into these incidents. However, for some perspective, see: Ombudsman Ontario, Oversight Unseen, 2008.

Tuesday, July 19, 2011

Failure of Lawyer Davies Bagambiire to pay rent resulting in eviction is not professional misconduct Law Society Says

By Selwyn A. Pieters
Barrister, Solicitor & Notary Public

Re: Law Society of Upper Canada v. Davies Bagambiire, 2011 ONLSHP 69 (CanLII)

On June 01, 2010, a Notice of Application was issued by the Law Society of Upper Canada alleging seven counts of professional misconduct against Davies Bagambiire, a sole practitioner immigration and refugee lawyer who is practicising criminal law in the singular case of R. v. Aziga. A hearing was held from December 14 - 17, 2010. Mr. Davies Bagambiire's Law Society of Upper Canada hearing was completed with findings of professional misconduct relating to one of his clients T.F. for which he served a one month suspension.

The other counts relating to the conduct of his business at 372 Bay Street in Toronto was dismissed for lack of jurisdiction over a lawyers' failure to pay his rent that resulted in the eviction of him and his sub-tenants. This is how I learn of the eviction from him:

From: daviesbagambiire@bell.blackberry.net [mailto:daviesbagambiire@bell.blackberry.net]

Sent: Tuesday, August 5, 2008 01:36 PMTo: 'Selwyn Pieters'

Subject: Office Issue with LL

I have a serious issue with the landlord as I told you a few weeks ago. Please send me an email or call me ASAP. I also wanted you to review the Application record for tommorrow before hand. Please call me on my cell (416) 577-3277. db Sent from my BlackBerry® wireless device

My comments reflecting on the LSUC reasons are below:

1) As a complainant in LSUC matters I have no standing. I am a witnesses, that's it.

2) Here Mr. Bagambiire "accumulated approximately $18,000 of arrears in rent for his law office" para 25

3) The lawyer argued that "the Law Society should not be punishing lawyers for their poverty, that the rules were not designed to punish lawyers for being under financial strain and simply not having sufficient money to pay rent." para. 26

4) Zeynep Onen, Director of Professional Regulation at the Law Society, spoke with the Complainant to tell him “it was more a commercial or civil matter rather than an ethical matter.” para 27

5) The LSUC panel concluded that "being in arrears with the payment of office rent did not constitute professional misconduct. To hold otherwise would potentially be to subject a large swath of financially precarious practitioners to disciplinary suspension in economically distraught times." para 28

6) "The Law Society’s allegations set out in Particulars 4 and 5 were not proven. Specifically, the Society failed to prove that the Lawyer’s failure to make monthly rental payments for his office constituted a failure to honour the financial obligations of his practice, contrary to Rule 6.01(2) of the Rules of Professional Conduct. Secondly, the Society failed to prove that the Lawyer acted dishonourably and without integrity contrary to Rule 6.01(1) of the Rules of Professional Conduct, based on failing to notify his sub-tenant, lawyer Selwyn Pieters, that he had not made the monthly rental payments and that this could result in a lockout by the landlord, or by accepting but failing to remit Selwyn Pieters’ sublease payments to the landlord."

Reflections

7) We are all accountable for our actions and inactions as lawyers. Mr. Bagambiire because of my complaint was required to account for his conduct that led to the consequences which it did on August 05, 2008.

8) Bagambiire in the 2011 decision in which this lockout was mentioned was suspended for one month and required to pay restitution of $5000.00 to a client Teresa Figura payable by June 30, 2011.

9) Bagambiire is a repeat offender: See, Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (The Lawyer is suspended for two months, commencing March 1, 2008. Upon return to practice, the Lawyer shall be supervised for a period of two years) and See also, Re Bagambiire Formal Hearing Panel Decision, N.S.B.S. 43, November 15, 1990.

10) As mentioned earlier, in LSUC disciplinary matters, a complainant is not a party. In this case I had nothing to gain or lose here. Anyways, the decision is instructive to other lawyers dealing with persons like the lawyer in this case to simply sue civilly or call in the police when such issues arise. The law society is not the forum.

11) The Law Society Lawyer Andrea Waltman did an excellent job under difficult circumstances, as the Tribunal was inclined from the get go to the views in para 27 of its decision.

12) I wish Mr. Bagambiire well and hope his financial and other affairs are in order. He has been practising law for 25 years. I know him since 1994. I was a client of his in 1995 - 1996. For Mr. Bagambiire to really get into the situation like that without even believing that he had to tell his sub-tenants, particularly me, is puzzling. However, life goes on and on it did with me.

13) I currently practices law in downtown Toronto at Pieters Law Office, Adelaide Place, DBRS Tower, where about 25 independent lawyers share space and resources in a professional office setting not unlike that of a medium-sized law firm. So quite frankly, despite the stress, frustration and humiliation, that situation caused, and I have not really spoken to many people about it because I was ashamed that I became part of a lockout, like I did something bad, things worked out for the better for me.

14) I am quite happy where I am at and with the people with whom I now share space. That god for his kindness and great mercies.

See also, Michael McKiernan "Taxing Aziga case sparks lawyers’ spat" Law Times, July 25, 2011

http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147488178

Wednesday, November 10, 2010

A Brief look at LSUC disciplinary matters involving Black and VM lawyers including Real Estate Fraud and Misappropriation

Suspensions and Revocation – a cause for concern

All of the cases above involved lawyers who are Black or visible minority. The Ornstein Report prepared for the LSUC reports that the Black community only made up 1.9% of all lawyers in Ontario in 2006, representing an increase of only 0.01% from 2001. In Ontario "there is wide variation between visible minority groups. There is one Black lawyer for every 750 members of the Black community, one for every 627 South Asians and one for every 755 members of the Chinese community. Incontrast, there is just one Filipino lawyer for every 2,730 members of that community, one ...for every 1,649 Latin Americans and one for every 994 Southeast Asians."

I recently spoke on the disproportionate number of Black lawyers subject to regulatory proceedings, investigations and disciplinary proceedings at the Law Society of Upper Canada. I was asked whether or not Black lawyers are over policed by the society.[1] I tend to think not because of what I observe personally and read from the disciplinary reports. The Law Society, with the exception of spot audits, member annual report and certain obligations it places on lawyers, is reactive. It responds to complaints not necessarily initiates it.

Section 49.3 of the Law Society Act enables the Law Society to conduct an investigation into a Licensee's conduct or capacity if the Society receives information suggesting that the Licensee may have engaged in professional misconduct or conduct unbecoming of a lawyer.

Too many Black and conscious lawyers from the diaspora and other racial minority communities are getting into trouble with the Law Society of Upper Canada for various illegal, wrong or unethical conduct including failing to respond to law society complaints,[2] failing to maintain books and records in compliance with By-law 18,[3] overbilling,[4] be duped by an unscrupulous client, suspended and/or disbarred for frauds[5] and/or misleading clients.[6]

Money for work to be done must be put in trust. All kinds of contingencies can arise, including your client switching lawyers. The money is not yours until the work has been done and the client billed.[7]

It is clear that a cloud of distrust exists when and where there are or allegations of misallocation of funds, misappropriation of funds, or inappropriately withdrawing monies from a client’s trust account.

If allegations of improprieties or unlawful or illegal conduct on the part of a lawyer, regardless of whether that lawyer is Black or not, come to the attention of the Law Society, it have a responsibility to look into the allegations and do all it can to safeguard or restore the integrity and credibility of the profession.

The Law Society has a duty to act and with expediency in those instances where clients and others are at risk of fraudulent behavior by lawyers.

* (c) 2010 - Selwyn A. Pieters, B.A., LL.B., Barrister, Solicitor & Notary Public - is a sole practitioner in the City of Toronto.
[1] One lawyer accused the LSUC of racially profiling him: Law Society of Upper Canada v. Munyonzwe Hamalengwa, 2008 ONLSHP 30. He was, however, recently found guilty before a panel composed of the only Black Bencher (at the material time), Joanne St. Lewis: Law Society of Upper Canada v. Munyonzwe Hamalengwa, 2010 ONLSHP 13 (CanLII) Paul Legall, Aziga's lawyer facing bar society discipline, Hamilton Spectator, January 23, 2009. The Spectator reported that “As part of its investigation, the law society appointed a forensic accountant to the case. Hamalengwa, a sole practitioner, refused to meet with him or open the books unless the accountant made a fuller disclosure about the nature of the investigation. He has since co-operated with investigators and the law society hasn't yet decided whether he'll be charged in relation to the women's complaints.”

[2] Law Society of Upper Canada v. Aliamisse Omar Mundulai, 2008 ONLSHP 32 (1 month suspension); Law Society of Upper Canada v. Ricardo Max Aguirre, 2007 ONLSHP 46 (CanLII); Law Society of Upper Canada v. Ricardo Max Aguirre, 2008 ONLSHP 84 (CanLII); Law Society of Upper Canada v. Ricardo Max Aguirre, 2009 ONLSHP 23 (CanLII); Law Society of Upper Canada v. George Nelson Carter, 2005 ONLSHP 24 (CanLII)

[3] Law Society of Upper Canada v. Oladipupo Emeka Ola, 2008 ONLSHP 133 (CanLII)

[4] Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (2 months suspension for overbilling in addition to various licence restrictions). I was sharing space with him on a sublease, and the landlord took possession of the premises presumably because he was not paying the rent for the leased premises. I not only lost my office space but also came off a murder trial on which I was co-counsel with this lawyer: On June 01, 2010, another Notice of Application was issued against Bagambiire alleging seven count of professional misconduct. A hearing is scheduled to be held from December 13 - 17, 2010: see, Law Society of Upper Canada v. Davies Bagambiire. My getting off the case was the subject of judicial and news comments: See, R. v. Aziga, 2008 CanLII 39612 (ON S.C.); R. v. Aziga, 2008 CanLII 53125 (ON S.C.) and newspaper articles: Defendant seeks another delay, Hamilton Spectator, Oct 1, 2008; Barbara Brown, Jail's not nice, judge agrees, Hamilton Spectator, August 7, 2008; 8th lawyer off HIV murder case, Toronto Sun, August 7, 2008. There certainly is a lesson to be learnt here and sometimes it is not about race, it is about the integrity of the person.

[5]Law Society of Upper Canada v. Glen Hugh Peter Abrahams, 2008 ONLSHP 81 (CanLII) – Black Jamaica lawyer who was highly regarded and Malcolm v. Abrahams, 2010 ONSC 4091 (CanLII) Law Society of Upper Canada v. Kadir Baksh, 2004 ONLSHP 25 (CanLII), 2004 ONLSHP 0025, 2009 ONLSHP 16 (He was a pillar in the Guyanese and West Indian Communities in Toronto). Mr. Baksh appealed. The decision of the Appeal Panel in the matter of: Law Society of Upper Canada v. Kadir Baksh, 2006 ONLSAP 6 (CanLII), 2006 ONLSAP 6 provides as follows: “[132] A solicitor's participation in multiple mortgage frauds can only be regarded as serious. That seriousness is compounded when the facts reveal that the solicitor was not merely an unknowing dupe. Protection of the public compelled the Hearing Panel to consider disbarment as a potential disposition. The appellant's attitude towards his own misconduct reinforced the view that protection of the public could only have been served by terminating his ability to practise law.” See also, Law Society of Upper Canada v. Winston Gauntlett Mattis, 2009 ONLSHP 5 (CanLII)

[6] Law Society of Upper Canada v. Jonathan Wade Strug, 2008 ONLSHP 88 (disbarred for phantom cases). I represented on of the victims in this case: Robert Todd, Law Times – Lawyer strung clients along with phantom cases. 25 Oct., 2007
[7] Gary Lloyd Gottlieb, Bencher's Diary: A day of discipline, Law Times, February 13, 2009.