Human Rights Tribunal of Ontario stated Contempt Case Against Deputy Minister by Selwyn A. Pieters, B.A., LL.B.

In McKinnon v. Ontario (Ministry of Correctional Services) (2001), 39 C.H.R.R. D/308), Professor Hubbard commenced his judgment as follows (in 2001):

Beginning with his human rights complaint of November 29, 1988 (the first of many), the com-plainant, Michael McKinnon, a Canadian of Aboriginal descent, has consistently striven to rid his workplace of the racist behaviour with which, some ten years later, this Board of Inquiry found the Toronto East Detention Centre to have been "redolent ... particularly towards black employees and inmates - which was a matter of considerable concern to the complainant as well, as is made plain by his many documented efforts to have such conduct redressed."  What must now be decided is whether his struggles for that particular outcome have thus far been in vain and, if so, what is to be done. (emphasis added)

 In McKinnon v. Ontario (Ministry of Correctional Services) 2007 CarswellOnt 9187, Professor Hubbard wrote:

144          Counsel for the Complainant submitted that, since "we are urging you to make factual findings regarding" the Deputy Minister, the Tribunal should order that the Minister has ultimate responsibility for the implementation of its orders. She pointed out that the organizational chart for the Ministry places the Minister at the top (Exhibit 80). In her view, moreover, since the Minister acted as the institutional spokesperson in respect of a call for a public inquiry regarding racial slurs and death threats directed at black officers at various Toronto jails, his ultimate responsibility is clear. The public inquiry was called for by David Mitchell, a deputy superintendent at the TEDC, and Charlene Tardiel, a correctional officer at the Mimico Correctional Complex, who were amongst those who received threatening letters. The Minister's response made reference to the orders of this Tribunal, as indicated in the April 7, 2006 news item in the Toronto Sun (Exhibit 196, Tab 3), which reads in part as follows:

... The request [for an inquiry] comes 15 months after another officer received the first of about 20 letters threatening hundreds of black and South Asian officers working at Toronto jails. ... Certain information in the letters led Mitchell's lawyer, Selwyn Pieters, and [Donald] McLeod [Tardiel's lawyer] to believe they come from colleagues. ... Community Safety and Correctional Services Minister Monte Kwinter said yesterday that police and the ministry are investigating the allegations. He said a public inquiry would have to be called by the attorney general once police finish their investigation. Previous complaints to the Ontario Human Rights Commission led to a tribunal that made recommendations to the ministry, with two outside consultants to ensure the recommendations were implemented, Kwinter said. "There are people who have particular biases," he said. "We have to find out who they are and get them out of there."

Ten years from the 2001 judgment (2011), in what appears to be the continued nonplussed irritation of Professor Hubbard, an adjudicator, with the Human Rights Tribunal of Ontario, of the Ministry of Community Safety and Correctional Services' efforts or the lack thereof to maintain a harassment free and respectful workplace, one that would facilitate Michael McKinnon's return to work, the Tribunal on February 08, 2011 has stated a case of contempt against Deputy Minister [JH] (one of the very few African-Canadians to ever be appointed Deputy Minister in Ontario):

[175]   The OED had been established in part to see to the implementation of the board’s orders, and the effectiveness of its work toward that end was of utmost importance to the Complainant. This is reflected in paragraph 40 of his Request, which is as follows:

The Operational Review – Exhibit 40 contains shocking and extremely troubling allegations and findings that were highly relevant to the Tribunal proceedings. Its findings of the state of fear and confusion in the OED raise highly relevant concerns about the OED’s ability to implement orders and address racism. The troubled state of the OED directly affected Mr. McKinnon and Ms. Shaw McKinnon as the staff were not able to implement the Tribunal orders, causing a setback to their implementation for many months, if not indefinitely.

[176]   Mr. [JH]  knew that there were serious problems in the OED even before Dr. Agard was entrusted to give an accounting of the Ministry’s successes and of its good faith endeavours to comply with the board’s orders. Yet this task was placed in Dr. Agard’s hands even while anonymous emails were circulating about racism, cronyism and unacceptable behaviour within the OED itself. During the course of the hearing, the accusations, feelings and beliefs of staff members described in Exhibit 40 were being gathered and unsavoury rumours of misconduct were swirling around the OED and its embattled Assistant Deputy Minister. Dr. Agard was not fired immediately, but he was effectively replaced in many essential functions by a triumvirate of former police officers in a de facto “reorganization” of the OED of which the parties were not advised and had no means to be aware of. Although Exhibit 40 was not disclosed until Mr. [JH]  took the stand, matters had reached the point when on October 1 (four days before he was fired) it was thought advisable to make an oblique and non-judgmental reference to the situation in the OED in order to disclose that change in Dr. Agard’s authority. .....

[182]   One last point I would make regarding the exercise of discretion is a reference to Mr. [JH]’s memorandum of September 15, 2010 addressed to “All Correctional Services Division Staff”.  In the course of that memorandum, Mr. [JH] makes this statement:

Further to my memos of October 2009 and March 2010, where I spoke of the progress we were making on the implementation of these orders and my intention to be in full compliance by July 2010, I am very pleased to announce that following several months of diligent and concerted effort, we have collectively met that goal. The Ministry is now taking the position that we are in compliance with the HRTO orders but for those contingent on the employee’s return to work.

[183]   This memorandum was sent out without any vetting by METRAC, the monitor appointed for the purpose. It was circulated while hearings to determine extremely serious allegations were going on and while a motion to state a case of contempt against the Ministry and Mr. [JH] was pending. Faced with the allegation that this memorandum, too, was shameful, the Ministry’s reply was, in effect, “Well, we simply said that such was the position we are taking, and surely we’re entitled to say that that was how it looked to us.”

[184]   One must pause to consider the actual harm and distress that memorandum caused the McKinnons—consequences that I think any reasonable person would have foreseen. The Correctional Services Staff would not say to themselves: “This is simply the Ministry’s position and it may well be that some monitor (of whose existence they are probably ignorant) might disagree and that perhaps more is needed to be done before the long-suffering McKinnons can return safely to work”. Rather, they would most assuredly think, “What’s wrong with the McKinnons. Everything they asked for has been done. All that remains is for them to return. What are they, a couple of freeloaders?” That memorandum seems calculated (“apt”) to show Mr. McKinnon in a bad light and exacerbate his situation, not improve it.

[185]   Mr. JH’s memorandum is to be contrasted with Dr. Agard’s admissions made under cross examination that he had mislead the board about the successes allegedly achieved, and in the course of which the following exchange with Ms. Hughes occurred (transcript, page 3398):

Q. ... you said in September, it's safe for Michael McKinnon to return to work.

A. I believe, I believe it was at that time. And when I do provide my thinking, I think all of this will become clear.

Q. But you don't think it's safe for him to return now. You couldn't even survive there, right?

A. No, I couldn't -- I, I – my current opinion?

Q. Yes.

A. Is that what you're asking?

Q. Yes.

A. In my professional opinion, I would say no, it's not safe. 

CONCLUSION

[186]   Having concluded that the Complainant has established a prima facie case of conduct falling within s.13(1) of the SPPA, for the reasons set out in the last section, I have decided to exercise my discretion in the matter by requesting the Divisional Court to inquire into whether Deputy Minister [JH] is in contempt of the board’s orders.

The penultimate paragraph on which the stated contempt is based does not seem dispositive of the rationale of Professor Hubbard as to why the Deputy Minister Divisional Court should inquire into a stated case of contempt against the Deputy Minister. The Tribunal did not make findings of facts on the credibility of Ralph Agard. It is assumd that he is found to be credible. Problematic and troubling, however, is his admission that he previously misled the Tribunal in his capacity as an Assistant Deputy Minister (ADM). I think one should parce that admission to determine whether it is self-interested, given the former ADM was fired and is in litigation with the Deputy Minister in respect to that termination, particularly over his substantial loss of income, the expenses related to pursuing his lawsuit and any emotional distress, humiliation, loss of respect and esteem, adverse effects upon his personal, social and business life, that resulted from the lost of his job. I guess, from that perspective, upon reflection, I can see how the former ADM would relate to Mr. McKinnon and that is reflected in his answers as cited in para. 185.


Racism, racial profiling, racial harassment and racial stereotyping of Blacks, visible minorities and Aboriginals are not uncommon correctional facilities. And it effect is it creates, entrenches and perpetuates a myth of normality. For the recipient, the result is hurtful and counterproductive. The workplace is also affected, because the public policy in Ontario which “recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and is able to contribute fully to the development and well being of the community  and province”, is replaced by false negative racial stereotypes, and misinforming perceptions by law enforcement “peace officers” who are sworn to uphold the  law.

Mr. McKinnon has the right to a safe and respectful workplace, as all other employees does. Inmates have the right to a safe, harassment free and respectful correctional facility. The issues that arise in the Ministry twarts that. In any event, McKinnon v. Ontario (Correctional Services), 2011 HRTO 263 (CanLII) is very rare, ground-breaking and will certainly garner a lot of attention and litigation.

The Process Server and the Lawyer

Today I am meeting in the conference room with a client and alas I am buzzed.

The receptionist tells me there is a process server outside wanting to serve me personally. I thought nothing about it. Went out, and there I am served with the Notice of Application for Judicial Review of Peel Law Association and Melissa Firth v. Selwyn Pieters and Brian Noble, 61/11.

The Notice quarrels quite a bit with the Tribunal the most outrageous of which is "The Tribunal unreasonably based its findings of discrimination in a finding of credibility with respect to evidence relating ti irrelevant issues.

Since its a cold night I am *sipping hot chocholate*

Its very rare that Applications for Judicial Review succeeds. Lets see how this one unfolds.

In the meantime, if a junior lawyer with no more than one year of call is interesting in taking this case on for experience, I will gladly retain you, as it was an articling student one month into articling that successfully litigated Pieters v. Peel Law Association, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 2398

The difficulties of cross-cultural identification where the victim, witnesses and accused have cultural and racial difference

In litigation, where the victim, witnesses and accused have cultural and racial difference, identification invariably become significant, particularly where and when they are cross-cultural strangers: R. v. Wright, 2011 CarswellOnt 63, [2011] O.J. No. 76, 2011 ONSC 194 (Ont. S.C.J., Jan 10, 2011), is illustrative of such difficulties. Ms. Robinson is White, Mr. Wright is Black.

Mr. Justice Frank Marrocco made the followig findings based on the evidence of this witness in cross-examination, that I conducted of her:

15     Ms. Robinson made two observations about the unmasked robber on which I intend to comment. I make this observation because a serious inconsistency between Ms. Robinson's description of the robber and Mr. Wright's appearance would have been relevant even though I attached no weight to her in-court identification of Mr. Wright.

16     First, Ms. Robinson said the unmasked robber was a light-skinned black man. Ms. Robinson indicated that she had worked in the entertainment industry as a singer for the last ten years. She said she had some experience with light-skinned, brown-skinned and dark-skinned black people. Pictures of the accused were introduced in evidence in exhibits 9 and 14. No expert evidence was called concerning the accuracy of the description of Mr. Wright as a light-skinned black man. Accordingly, I attach no significance to this observation by Ms. Robinson. I do not believe that it is appropriate for this court to determine, in the absence of evidence, whether it is accurate to describe Mr. Wright as light-skinned.

17     Second, Ms. Robinson said that the unmasked robber had a "chinstrap beard". She said it came around his face thinner than a full beard. Mr. Wright's beard can be seen in exhibits 9 and 14. Ms. Robinson's description of the beard is not inconsistent with the beard shown in those photographic exhibits. Nevertheless, for the reasons which I set out earlier, I attach no weight to her in-court identification of Mr. Wright.

In another case, R. v. Taylor, 2010 ONCJ 396, [2010] O.J. No. 3794, whether the victim as White and the accused Black, Mr. Justice Green observed:

62        The nature of the identification in this case requires me to alert myself to the risks associated with this species of evidence. Eyewitness identification evidence, particularly of cross-cultural or cross-racial strangers in, as here, heated situations with limited windows of observation, are notoriously suspect. As said by the Court of Appeal in R. v. Hanemaayer, 2008 ONCA 580 (Ont. C.A.), at para. 29, "Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions". Eyewitness identification evidence — even standing alone and even where, as here, bottomed on the testimony of a single witness — can ground a legally and factually unassailable finding of guilt. However, appellate courts have repeatedly cautioned jurists of the need for special caution in assessing such evidence: see, e.g., R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.); R. v. Trochym (2007), 216 C.C.C. (3d) 225 (S.C.C.); R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.); R. v. Spatola, [1970] 3 O.R. 74 (Ont. C.A.); R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.); and R. v. A. (F.), [2004] O.J. No. 1119 (Ont. C.A.).

63        Eyewitness identification is particularly dubious where, as here, it includes dock-identification (the pointing out in court of the defendant as the alleged perpetrator) or, in a worst-case scenario, where positive identification occurs for the first time in a courtroom setting. (See, e.g., R. v. A. (F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.) and R. v. Tebo (2003), 175 C.C.C. (3d) 116 (Ont. C.A.). Given the circumstances surrounding Cid's dock-identification of the defendant, and given Cid's own explanation of the factors bearing on the integrity of this identification, as quoted earlier, Crown counsel rightly eschews any reliance on the witness' courtroom identification of the defendant. Her, theory, instead, is that Cid's initial and careful inspection of his assailant and his uninterrupted observation of that man until the point when the man — unquestionably the defendant — is arrested by the police confirms the reliability of his identification. In other words, the continuity of Cid's observation, coupled with his honesty, affords adequate proof of the defendant's commission of the assault.

These observations by Jurists reinforces the responsibility of all participants in the criminal justice system to display cultural competence and to be alert and alive to the difficulties inherent in this species of evidence.

My friend, Leanne O'Donnell, also referred me to a timely article Mark Roth, "Looking across the racial divide: How eyewitness testimony can cause problems" December 26, 2010, Pittsburgh Post.

Black History Month 2011

Its that time of the year again, Black History Month. This is the time of the year where I am over extended with various community engagements, in addition to the usual workload.

I was at the OBHS Brunch, where I caught up with old friends and met new ones. The Honourable Reverend Don Meredith of the Senate in Canada as well as The Honourable Magarett R. Best, of the Ontario Cabinet were present.

These are some upcoming BHM events I commend to your attention

February 8, 2011, at 4:00 p.m. The Law Society of Upper Canada and the Canadian Association of Black Lawyers are pleased to host a panel discussion and reception to celebrate Black pioneers in the legal profession in honour of Black History Month

February 12, 2011 at 12:00 p.m. The Canadian Association of Black Lawyers  will be having its Annual General Meeting of the members at the OBA Conference Centre, 20 Toronto Street, 2nd Floor, Toronto, Ontario.

February 13, 2011, at 12:00 p.m., Jamaican Canadian Association, Annual Boonoonoonos Fundraising Brunch, Arrow Road and Finch Ave. West

February 16, 2011 "Black Out: Who's Missing in Criminal Justice?" 5:30 p.m. Heaslip House, 297 Victoria St. Ryerson University. Info: 416 979 5000 x 6566

February 22, 2011, "Selwyn" 7:00 p.m., National Film Board, Richmond and John Streets, Toronto

February 24, 2011, 20th National BLSAC National Conference, "The Evolution of the Black Law Students Association of Canada: 20 Years Strong" Intercontinental Yorkville Hotel

Lawyer, Selwyn A. Pieters profiled today in Whos Who in Black Canada

I am profiled in Whos Who in Black Canada. Another proud moment, I guess.

Seeking video footage of Richmond and John Streets in Toronto for August 03, 2010

On August 03, 2010, the end of the Caribana weeend, at Richmond and John Streets, there was an incident with several members of the Toronto Police Service and groups of teenages, who are Black. This incident occurred on the street near to the Scotia Theater, Frequency nightclub and Chapters bostor.

We are seeking video footage or camera stills of this encounter, that may have been captured  by persons in the area.

Anyone who may have information regarding this case is asked to call me at 416-601-1001 ext 194

Holiday Greetings 2010 - Feliz Navidad / Feliz Natal / Buon Natale / Merry Christmas / Joyeux Noel / Frohe Weihnachten.....

Today is the big day... Sheng den ri quai le.... A day that I look forward to with anticipation to celebrate the birth of Jesus, exchange greetings with family and friends and share in a bountiful and delicious dinner.

This year, as usual, it was at the Imperial Room at the Royal York in Toronto.

PEEL LAW ASSOCIATION AND MELLISSA FIRTH FOUND LIABLE FOR RACIALLY PROFILING TWO BLACK LAWYERS AND A UNIVERSITY OF TORONTO BLACK LAW STUDENT

TORONTO – December 4, 2010

In a significant and ground-breaking decision Pieters v. Peel Law Association 2010 HRTO 2411 released on December 03, 2010, the Human Rights Tribunal of Ontario, found that the Peel Law Association and its Librarian, Melissa Firth, targeted three Black men, two of whom are lawyers (Brian Noble and Selwyn Pieters) and one of whom is a student (Paul Waldron), for carding in an “aggressive and demanding” manner because of their race and colour, in the Lawyers’ Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008.

Also present in the lounge was at least 14 other persons who were not Black. The two Black Lawyers and the Black Law Student were targeted because "paralegals" are not allowed in the lawyers' lounge, forced to show identification and was drawn in a discussion that was totally uncalled for in a rude, demanding and aggressive fashion that she would not have adopte with a White lawyer.The Librarian for the Peel Law Association approached us on the basis of negative racial stereotypes and acted on that stereotypes. Interestingly enough, a Peel Regional Police employee, Ms. Elizabeth McFadden, was in the lawyers' lounge even though she was not a lawyer, law student or student at law and was not targeted or challenged. She, of course, is White. Nor was any of the White lawyers.

Mr. Pieters, Mr. Noble and Paul Waldron were at the Brampton Courthouse in connection with a Youth Criminal Justice Application before Mr. Justice Blacklock to access records to be used in a Human Rights Tribunal hearing: See K.F. v. Dufferin-Peel Catholic District School Board et al., 2008 HRTO 6 (V-Chair Hart); K.F. v. Dufferin-Peel Catholic District School Board et al., 2008 HRTO 179 (V-Chair Hart); K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.) per Blacklock J.

Lawyers were also present representing the Peel Regional Police, Ontario Human Rights Commission and Dufferin-Peel Catholic District School Board. The two lawyers from the Commission are South Asian, the lawyer for the Police was White, so is the representative of the Peel Police who accompanied her lawyer.  That Mr. Pieters, Mr. Noble and Mr. Waldron were entitled to be in the lawyers’ lounge is without question.  Both Mr. Noble and Mr. Pieters were lawyers at the material time and Mr. Walrond was a student employed by Mr. Pieters. Ms. Firth was the law librarian and by her own admission her duties was, in part, to police the space and keep out paralegals and members of the public.

At issue is what occurred during the minutes at the lounge where Mr. Pieters, Mr. Noble and Mr. Waldron were seated, and whether it amounts to impermissible racial profiling.

Evidence was heard that Ms. Firth had three different encounters on the day in question, prior to the incident:

1.      An incident where she dealt with an angry White female lawyer who was asked for her identification in the library and was unhappy about it;

2.      Stephanie Puddick’s complaint that the chairs in the lounge was moved around and some were blocking the door of the library

3.      Lawyer Bonnie Racz’s complaint that a White female, who may not be a lawyer was in the female robbing room.

The Tribunal found as fact that Mr. Pieters was on the telephone speaking to one of his staff in his office when he was interrupted by Ms. Firth, he told her he is a lawyer and she demanded to see his identification.

It is not disputed that Mr. Pieters produced his identification for the personal respondent. This is most likely, in my view, because he was, in fact, asked by the personal respondent to show that he was a lawyer. ….

The personal respondent personally produced his identification when she asked Mr. Waldron and Mr. Noble for their identification. I find this unlikely. In addition with this being at odds with the testimony of the applicants and Ms. Goswami, the personal respondent testified that she was initially involved with Mr. Noble and Mr. Waldron and that Mr. Pieters was engaged on the telephone. I find it improbable that Mr. Pieters would interrupt his telephone conversation and voluntarily produce identification even before Mr. Noble and Mr. Waldron had responded to the personal respondent’s request of them. The more logical inference, in my view, is that Mr. Pieters was the first one asked for identification.

The Libarian denied speaking loudly to Mr. Pieters, yet her request for identification was heard by all of the witnesses that testified who were in the lounge that being Mr. Pieters, Mr. Noble, Raj Dhir, Monmi Goswami, and Lauri Reesor, who was a relatively far distance away from the initial encounter. The personal respondent initially denied that she spoke in a rude, loud and aggressive manner to Mr. Pieters. This is in contrast to her testimony in cross-examination in which she admitted to speaking loudly. The Tribunal wrote:

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

Ms. Goswami a lawyer at the Ontario Human Rights Commission testified that the Librarian was “Carding the racialized people – at that point – something was a little bit off – and that I made a composition of what the room looked like”

The Tribunal found that the reason given to the Black lawyers for questioning their presence in the lawyers lounge was motivated by race and colour.

I find that the applicants have established a prima facie case of discrimination. There were a number of people in the lounge on May 16 who would have been unknown to the personal respondent. The applicants and Mr. Walrond would have been the only Black men and the only people she chose to question. The personal respondent interrupted her planned trip to the robbing room to stop and question the applicants and proceeded to do so in an aggressive and demeaning manner. No one else in the lounge was questioned, including two White women and another racialized male who would have been unknown to the personal respondent. These facts are sufficient to require the respondents to provide an explanation for their action to support their position that the decision to question the applicants was not tainted by race and colour.

That the personal respondent disputed the fact that she challenged all three men as to their right to be in the lounge is a significant issue for me. It undermines the general credibility of her explanations for why she chose to question the applicants.

It is significant, in my view, that the personal respondent did provide an explanation at the time she was questioning the applicants. She stated that she knew everyone else in the lounge to be lawyers. This claim is clearly not true given the fact that Ms. McFadden was not a lawyer and Ms. Reesor, although a lawyer, had never been in the lounge before….

The lack of a persuasive non-discriminatory reason for the questioning of the applicants provided either at the time of the incident or at the hearing leads me to conclude that the personal respondent’s decision to question the applicants was indeed tained by consideration of their race and colour.

The Peel Law Association, with the majority of its members being lawyers, has been in existence since 1947.  In that more than six decade period, we as members of Canadian society have witnessed various advancements in the area of Human Rights.  Notwithstanding these advancements and that the staff of the Peel Law Association has to interact with individuals from various racialized groups on a daily basis, it still did not have an Anti-discrimination Policy in effect, nor did it have any internal complaint system to deal with discrimination and harassment until May 27^th of this year, 2009.  At this hearing, the respondent, Melissa Firth, testified that the recent implementation of this Anti-discrimination Policy was a direct result of this case and that she never received any anti-discrimination training of any kind prior to the incident in question.  Accordingly, it would be more than reasonable to assume that but for this case, the Peel Law Association would still be without an Anti-discrimination Policy and that is absolutely inexcusable and egregious.   

The byproduct of this gross disregard by the Peel Law Association to establish an environment that facilitates inclusion and adherence to existing human rights laws is that its employees were ill-equipped to adequately deal with issues pertaining to discrimination as they were not provided with the training necessary to function effectively in a multi-cultural society.

This is one of the first and few decisions that deal frontally and directly with the disparate treatment that Black lawyers and Black professionals complain of privately that these experience in their professional sphere.

Peel Law Association was required to pay compensation. Selwyn Pieters proceeds of the compensation will be donated to the Black Law Students’ Association of Canada.

Coverage in the Toronto Star:  Amy Dempsey  Lawyer wins racial discrimination case- http://www.thestar.com/news/article/902582--lawyer-wins-racial-discrimination-case

Coverage in the National Post: Lawyer wins discrimination case against Peel Law Association ‎ - National Post http://www.nationalpost.com/news/Lawyer+wins+discrimination+case+against+Peel+Association/3934545/story.html

Gun Violence in the City of Toronto

Gun violence and the gun culture in the City of Toronto or for that matter in the Greater Toronto Area is not new. As a criminal defence lawyer, a lawyer who also act for victims of crime and a Black man in Toronto, the recent shootings and gun violence is not new to me nor is it surprising.

What is surprising is that the three levels of government has done little to deal with the issues that the Black Community brought to its attention five years ago that spoke about deeper issues that drive these young people to a culture of guns, drugs and gangs. Those issues include lack of enough adequate after-school programs, being kicked out of school under the draconian Education Act, being recially profiledby the police and other law enforcement authorities, being labelled and stereotyped - self-fullfilng amongst other issues.

The Federal Parliament made amendments to the Criminal Code as a result of the enactment of Bill C-2 which came into force on May 1^st 2008 that increases the ‘minimum terms of imprisonment’ that must be imposed for various firearms and prohibited/restricted weapons offences, particularly where the offence has been committed with a restricted or prohibited firearm, in connection with a criminal organization, or by an individual with a previous conviction or a firearms and/or prohibited/restricted weapons offence. 

With ten shootings in the past week in Toronto, the mandatory minimum penitentiary sentencing regime is attractive to those dangerous criminals. However, the principle of general deterrence does not really apply because it does not appear that the majority of them gets it -  so we have a disproportionate amount of Black men being killed by gun violence and being jailed for being the perpetrators: NOT GOOD!!!

I have posted below a press release we sent out in August 2005, you will see that the issues raised then still exists today!!!!

_____________________________

NEWS RELEASE

Coalition of African Canadian Community Organizations Speaks out on Gun Violence and Calls for a Summit with all three levels of government

Toronto, August 22, 2005:   We have come together as a coalition of African Canadian community organizations to express our support and empathy for the youth, families and communities who have been impacted by the recent spate of violence across the Greater Toronto Area (GTA). In particular, we express our deepest sympathy to those families who have lost loved ones. These incidents of violence and loss of life threaten our collective consciousness as a community.

We wish to make it clear that we consider the escalating violence and criminal behavior being experienced as unacceptable and a situation that must be of concern to all residents. These challenges to community safety cannot be allowed to go on unchecked and must be addressed under the provisions of the laws of this country.

We must emphasize however, that these activities are not disconnected from the broader and more entrenched socio-economic conditions that adversely impact our community. Limited opportunities; lack of access to jobs, services and programs; the increased targeting and systematic expulsion of our children under the Safe Schools Act, among other conditions, deprive our young people access to the privileges and opportunities afforded others in this society. These factors have left our community particularly vulnerable.

We believe that it is the collective responsibility of governments, institutions and communities to develop and implement strategies and measures that will address the systemic and root causes of youth violence and criminal activity. In addition, all three levels of government must act aggressively to determine the sources of the supply of guns that are being made accessible to young people and to stop the flow of these weapons.

We intend to fully engage all three levels of government, the police, the private sector, the media and our communities in developing a fully integrated response that empowers the African Canadian community to define and deliver community-based solutions. This must be done in a partnership in which governments and institutions, including the private sector play an enabling role in the funding of services and programs.

It is the fundamental responsibility of government at all levels to address the issues that continue to marginalize the African Canadian community and we look forward to and expect a strong and sustainable partnership between government, community organizations and our communities as we work together to safeguard and enhance the future of our youth and the African Canadian community.

The Coalition calls:

• For a summit to be convened with all three levels of government within the next 30-days to discuss and fully develop integrated strategies to address the issues raised by the Coalition;
• On all levels of government, public institutions and the private sector to play a leading and continuing role in the funding of services and programs that impact the African Canadian community;
• For better policing that is among other things, accountable to an independent, public oversight body. To ensure community safety, the relationship between the police and the African Canadian community must be improved. 
• On all three levels of government to work collaboratively and hastily to identify the sources and methods of the supply of guns so readily available in our cities and to stop their supply; and
• On the Ontario Ministry of Education and Boards of Education to discontinue the Application and Implementation of the Safe Schools Act  which discriminates against and disenfranchise African Canadian youth.

There is no need for further reports or studies. The time to act is now!

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

I saw this AD at the Train Station tonight and could not help but feel sad about the lawyers that actually makes such a claim illusory. See, for example: Law Society of Upper Canada v. Davies Bagambiire, 2011 ONLSHP 69 (CanLII);  Law Society of Upper Canada v. Ernest Guiste, 2011 ONLSHP 24 (CanLII); Law Society of Upper Canada v. Ernest Guiste, 2011 ONLSHP 74 (CanLII); Law Society of Upper Canada v. Selwyn Milan McSween, 2010 ONLSHP 111 (CanLII); Law Society of Upper Canada v. Charles Ato Amissah-Ocran, 2011 ONLSHP 9 (CanLII); Law Society of Upper Canada v. Karen Rosalee Caroline Cunningham (a.k.a Karen Rosalee Caroline Cunningham-McBean), 2011 ONLSHP 26 (CanLII); Law Society of Upper Canada v. Karen Rosalee Caroline Cunningham (a.k.a Karen Rosalee Caroline Cunningham-McBean), 2010 ONLSHP 97 (CanLII); Law Society of Upper Canada v. Meera Bharadwaj, 2011 ONLSHP 4 (CanLII); Law Society of Upper Canada v. Kadir Baksh, 2004 ONLSHP 25 (CanLII); Law Society of Upper Canada v. Kadir Baksh, 2004 ONLSHP 13 (CanLII); Law Society of Upper Canada v. Dunstan Dan Senjule, 2010 ONLSHP 18 (CanLII); Law Society of Upper Canada v. Winston Gauntlett Mattis, 2009 ONLSHP 5 (CanLII); Law Society of Upper Canada v. Davies Bagambiire, 2008 ONLSHP 70 (CanLII); Law Society of Upper Canada v. Pretam Kaur Purewal, 2008 ONLSHP 132 (CanLII)

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.

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* (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.

Argos and Alouettes October 29, 2010

I had the pleasure of watching the Argos v. Alouettes game at the Rogers Centre, where the winning touchdown was scored by Dahrran Diedrick.

This was much to the delight of his supporters who showed up to see him play, including Cole French, yours truly and his son Kenny.

And as well, much to the delight of the Alouette fan contingent from Windsor, Ontario, representing the Bourke's clan.

The Toronto Star's story "Argos cough it up to Als" describes how the Argos were leading by ten (10) point only to see it vanish in the dying moments of the game.

Dahrran came out after the game and was obviously very happy with the win:

Striking Guilty Pleas - R. v. Wright

The dump trucks are now going to have to get written instructions before they plea their clients guilty: In R. v. Wright 2010 CarswellOnt 8108 (Speyer J., October 25, 2010), the Ontario's Superior Court of Justice struck a guilty plea in the basis of the lack of written instructions, the timing of the plea took place at the last minute and the client appeared hesitant to plea: "Very rarely does a good lawyer ever allows a client to plea guilty without having written instructions" Justice Speyer said.

And this ruling makes sense, particularly where a client later alleges that s/he did not understand what the plea was to or the nature and/or consequences of the plea or that s/he was coerced or otherwise pressured to plea.

In light of all of these possible situations, it is preferrable to get instructions in writing. It takes five minutes but saves a lot of private and public costs that ensure when a guilty plea is struct and the matter has to return to the trial process.

This Application was argued by Selwyn Pieters.

Countdown to Halloween

October have been quite an interesting month celebrating my Birthday as well as the birthday of other librans. I visited Miami, Fort Myers and Port Charlotte in Florida. I had a wonderful time, except the economic situation in Florida seems grim. In Fort Myers and Port Charlotte there is a high foreclosure rate as well as high unemployment rate. So things are rough for the businesses and ordinary citizenry.

I litigated in Toronto, Hamilton and Windsor including several criminal files and a human rights tribunal matter against Hamilton Health Sciences Centre involving its pharmacy personnel. Within the last week I was successful in two cases that I litigated one was a bail hearing and the other was an aplication to strike a guilty plea. That case of R.v. Mitchell 2010 ONCA 692 is important and was helpful http://www.canlii.org/en/on/onca/doc/2010/2010onca692/2010onca692.html. I also managed to settle a major human rights litigation file.

I am also dealing with a case where Toronto Police employees beat my handcuffed client very badly in a clear case of abuse of authority. His wrist is raw from the the beating while handcuffed:

I participated in the democratic process of voting for Mayor, City Councillors and School Board Trustees in the City of Toronto.

I am "buried under" with work, preparing for a preliminary inquiry involving extremely serious criminal matter, it is a Legal Aid file, so I will not be really paid for all the time spent preparing for the case..... but I am grateful!!!!

The Argos are playing the Montreal Alouettes this weekend. I am looking forward to seeing Avon C., DD, KC amongst other Montreal friends.

I am thinking about Halloween and what to wear, that is, if I am dressing up.

Hail to October!!!!!

October is a special month for me, in a little over a week quite a few of us will be one year older: my twin brother Gary; m aunty Yvonne; my cousin Aubrey; my friends Richard Tello; Laurent Kone; Aida Baptiste; Un'Khonde Habamenshi. I almost forgot Sarah Shepherd, who will be turning 9. I feel really fortunate and blessed.

Lat year I actually worked on my Birthday and in fact was in a very contentious hearing. This year I intend to avoid that scenario (work) and to spend my special day nicely.

I have not planned a party or any events. I might though if enough people indicate an interest in having fun.

That's all for now......

Attended the Retirement Dinner of Deputy Chief of Toronto Police Keith Forde

Back to blogging

I have not been on here since 2006.... I am back. I intend to write substantive posts on issues that I deem to be important in relation to law and the social conditions of humanity. As well, some of my posts will be light, funny and some will be personal. I am happy to back on this site.....