Black Action Defence Committee v. Bill Blair and Toronto Police Services Board

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 November 17, 2013
Updated June 20, 2014

This week marks the filing of a Statement of Claim that purports to launch a Class Proceeding against the Toronto Police Service Board and the Chief of Police pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 14.05(3)(g.1).

A civil action in the form of a class action lawsuit and/or Charter application is long overdue. 

In Toronto the crime rate is very low, particularly for violent crimes. In eleven months for 2013 we have less than 52 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.


In the SOC issued on November 16, 2013, BADC seeks the following remedies:

1. The Plaintiff, THE BLACK ACTION DEFENSE COMMITTEE (BADC), claims as against the Defendants both jointly and severally:

a) General damages against the Defendants in the amount of $50 million for racial profiling (and carding), which is a violation of his constitutional rights of the class of persons represented by the Plaintiff pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”); and the Ontario Human Rights Code.
b) The Plaintiff and potential class members claim the following:
c) An Order certifying the proceeding as a class proceeding and appointing the Plaintiff BADC as Representative Plaintiff.
d) A Declaration that the Defendants have breached sections 7, 9 and 15 of the Charter, which are the constitutional rights of the Plaintiff and any class members and all African-Canadians and other “colourful” minorities.
e) An Order requiring the Defendants to comply with their obligations under sections 7, 9 and 15 of the Charter; the Ontario Human Rights Code and the Police Services Act as well as relevant provisions of numerous international human rights conventions and instruments and declarations.
f) An Order requiring the Defendants to desist from engaging in and condoning racial profiling against the Plaintiff and all class members and against all African-Canadians and other “colourful” minorities.
g) An Order requiring the Defendant Bill Blair and all Toronto Police officers, to read the following books: David Tanovich, The Colour of Justice: Policing Race in Canada; Carol Tator and Frances Henry, Racial Profiling in Canada: Challenging the Myth of ‘A Few Bad Apples’; Meekes, Driving While Black; Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling and the Ontario Commission on Systemic Racism in the Ontario Criminal Justice Report and the Toronto Star articles dealing with carding and racial profiling published in 2002, 2010 and 2013.
h) An Order requiring the Defendants to discipline all their officers who engage in racial profiling and carding.
i) A Declaration that racial profiling is a criminal offence.
j) Punitive damages in the amount of $10 million dollars.
k) Exemplary damages in the amount of $5 million dollars.
l) An Order requiring the Defendants to implement systemic remedies responsive to the needs of the entire class that has been profiled or are prone to be racially profiled.
m) Pre-judgment and post-judgment interest on the above amounts in accordance with the Court of Justice Act;
n) A clear and unequivocal written apology from the Defendants to the Plaintiff and all African-Canadians for their being targets and victims of racial profiling and carding; and
o) Such further and other relief as this Honourable Court deems just.

Counsel for the Black Action Defence Committee is Dr. Munyonzwe Hamalengwa.

Unfortunately, the statement of claim appear to be hastily drafted, not properly constructed and some of the remedies sought here would more likely to be able to be asserted in the context of an Application. It is unlikely that it will be certified as a significant portion of the pleadings appears to be a knock off of the unsuccessful claim in Hamalengwa v. Bentley, 2011 ONSC 4145. 

In Hamalengwa, Mr. Hamalengwa sought the following remedies:

1. The plaintiff Munyonzwe Hamalengwa claims: 

a) General damages against all defendants in the amount of $1.00 (One Dollar) for racial profiling, which is a violation of his constitutional rights pursuant to the Canadian Charter of Rights and Freedoms; 
b) The Plaintiff and potential class members claim the following:
c) An Order certifying the proceeding as a class proceeding and appointing the Plaintiff Munyonzwe Hamalengwa as representative Plaintiff.
d) A declaration that the defendants have breached sections 7 and 15 of the Charter Rights of the Plaintiff and any prospective class members and all African-Canadians and other “colourful” minorities.
e) An Order requiring the defendants to comply with their obligations under sections 7 and 15 of the Charter.
f) An Order requiring the defendants to desist from engaging in  and condoning racial profiling against the Plaintiff and any prospective class members and against all African-Canadians and other “colourful” minorities.
g) An Order requiring defendants Bentley, Thompson, Fairburn, Blair, Fantino and Marin to read the following books: David Tanovich, The Colour of Justice: Policing Race in Canada ; Carol Tator and Frances Henry, Racial Profiling in Canada: Challenging the Myth of ‘A Few Bad Apples’  Meekes, Driving While Black, Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling
h) An Order requiring the Government of Canada and the Government of Ontario to enact legislation prohibiting racial profiling.
i) A declaration that racial profiling is a criminal offence.
j) An Order that defendants Chris Bentley, The Ministry of the Attorney General, Thompson and Fairburn pay the Plaintiff all the monies in the amount of $100,000.00 he is owed as a result of representing Richard Wills and as previously billed plus applicable taxes.
k) An order requiring the defendants Chris Bentley, The Ministry of the Attorney General, Thompson, Fairburn and Marin to provide reasons why white lawyers Borenstein (as he then was before he became Justice Borenstein) and Wasser and an amicus were not recommended for assessment of their accounts in the Richard Wills case.
l) An Order requiring that in conformity with sections 15 and 24(1) of the Charter, Borenstein, Wasser and an amicus be assessed as has happened with the Plaintiff.
m) An Order postponing any assessment of the Plaintiff until the Statement of Claim and the constitutional issues and remedies proposed have been disposed of.
n) Punitive damages in the amount of $1.00 (One Dollar); 
o) Exemplary damages in the amount of $1.00 (One Dollar; 
p) An Order that there be no costs given the importance of the case and the severe negative impact of racial profiling on the Plaintiff  and all African-Canadians; 
q) Pre-judgment and post-judgment interest on the above amounts in accordance with the Court of Justice Act; 
r) A clear and unequivocal written apology from the defendants to the Plaintiff and all African-Canadians for their being targets and victims of racial profiling; 
s) Such further and other relief as this Honourable Court deems just.

The most blatant deficiency in the claim is the lack of individual plaintiffs who have been carded and/or racially profiled, have a common narrated story that is representative of the experience of those African Canadian youth whose story were most recently was profiled by the Toronto Star in September 2013, as it did in 2012 and 2010 and who can show he/she or they have suffered palpable damages or injuries. See the cases of  Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 S.C.R. 158, Cloud v. Canada (Attorney General), (2004), 73 O.R. (3d) 401 at 411 (C.A.) and Abdool v. Anaheim Management Ltd.(1995), 31 C.P.C. (3d) 197. See also Ramdath v. George Brown College, 2012 ONSC 6173 - this case illustrates what is required to succeed in a class action.

In any event, and having regard to the large group of young men between the ages of 15 to 24 who are Black and are victims of racial profiling, there is enough of a critical mass to constitute a large enough group to qualify for certification in a class action. Why were there not directly affected young men sought out as potential plaintiffs?

It is unlikely that the Black Action Defence Committee would be found to be a representative of a class to proceed to certification: See, Magill v. Expedia, Inc., 2013 ONSC 683. It is also likely that the pleadings would be found to be too broad as it lacks any individual narratives. 

Litigating such cases against Toronto Police Service or any other police service is expensive, time consuming and unpredictable.  Given the import of commencing such an action, I would think it through and possibly amend it before the pleadings close. BADC could be at risk of significant costs: McCraken v. CNR, 2012 ONSC 6838. 

In other developments the human rights application before the Human Rights Tribunal for Ontario was dismissed. See, Black Action Defense Committee v. Toronto Police Services Board, 2014 HRTO 907. The Tribunal wrote in its decision that Counsel for the BADC made the following submissions in response to a Notice of Intent to Dismiss (NOID):

[4]           The applicant responded with very brief submissions, advising: “BADC is withdrawing as an organization from participating in a class action law suit in other forums as individual human representative plaintiffs are replacing BADC. Thus BADC will only now be involved in the claim at the HRTO and nowhere else.” The applicant also filed a revised Application form, which somewhat confusingly continued to refer to the existence of an ongoing civil action based on the same facts of the Application. The narrative describing the allegedly discriminatory events stated only, “A general practice complained of against the respondents is attached. This is a class action law suit that will [be] comprise[d] of many individuals and their individual stories will be filed later.” However, no attachment was included.

The Tribunal also reiterated that it usually dismiss human rights applications where there exist concurrent civil actions:

[11]        In the present case there can be no dispute that the applicant has commenced a civil suit in which it is seeking damages for the identical violations of the Code which are raised in this Application. Accordingly this Application must be dismissed pursuant to section 34(11) of the Code. In light of my finding, it is unnecessary to deal with the additional issues raised in the Case Assessment Direction.

See also, Toronto Star story on this civil action.

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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 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.

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 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 most recently litigated the racial profiling case of:
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
M. (R.)v. Toronto Police Services Board was recently settled to the satisfaction of all parties and the terms of settlement reached remain confidential.

In the criminal law realm some of the cases 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 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 Pieters - Lawyer, Notary Public, Legal Commentator

Selwyn Pieters is a frequent guest Legal Analyst for print, radio and television media, locally, nationally and internationally on a wide range of matters touching on human rights, criminal law, civil litigation, defamation law, anti-bullying, gun, drugs and gang sweeps, racial profiling, to name just a few.

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: )

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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.

Litigating Racial Discrimination in the Legal Profession: 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)

Prepared for 2013 OBA Constitutional and Human Rights Law September 10th Dinner Program

Thank you for inviting me to speak. I was asked to speak on the litigation before the Human Rights Tribunal in Pieters v. Peel Law Assn and Mellissa Firth 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O)  so my remarks are mainly restricted to the first level decision of the adjudicator, which has subsequently been upheld by the Court of Appeal for Ontario.

The Encounter at the Library

That a confrontation of sorts between myself, Mr. Noble, Mr. Walrond and Ms. Firth happened at the Lounge of the Peel Law Association at 7755 Hurontario Street, in Brampton, Ontario, on May 16, 2008, is without a doubt.

Myself, Mr. Noble and Mr. Waldron were at the Brampton Courthouse representing K.F., a Black youth who had filed a racial profiling complaint with the HRTO and was now before Mr. Justice Blacklock with an Application to access records to be used in the Human Rights Tribunal hearing [K.F. v. Peel (Regional Municipality) Police Services Board [2008] O.J. No. 3178, 2008 ONCJ 382 (Ont. CJ.)]. Also present at the hearing of the Application were Raj Dhir and Monmi Goswami representing the Ontario Human Rights Commission, Laurie Ann Reesor and Elizabeth McPhadden representing the Peel Regional Police, and Nicola Simons representing the Dufferin Peel Catholic District School Board. With the exception of Kate Sturdy, an OHRC legal Assistant, the participants to the hearing retreated to the lawyers’ lounge of the Courthouse to await recall by His Honour.

That myself, Mr. Noble and Mr. Waldron were entitled to be in the lawyers’ lounge is also without question. Both myself and Mr. Noble were lawyers at the material time and Mr. Walrond was a student-at-law whom I employed. Ms. Firth was the law librarian and stated that it was her duty to police the space and bar access to paralegals and members of the public.

Human rights complaints were filed by Mr. Noble and I and heard before the Tribunal in 2009, which in terms of processing time was extremely fast.

At issue before the Tribunal was what precisely occurred during the incident at the lounge and whether or not it amounted to impermissible racial profiling.

The Hearing at the HRTO

At the hearing I was represented by my articling student, Mary Auxi-Guio. The PLA was represented by Andrew Pinto. Mr. Noble self represented.

“4 The hearing took place over three days and involved 12 witnesses including ten who testified that they witnessed the May 16 incident between the applicants and the personal respondent. It is noteworthy that these ten witnesses (eight were eyewitnesses and two heard parts of what tran-spired) provided differing versions of the incident.”[1]

The Tribunal very early on considered the core functions of the administrator:

[20]           I had before me the PLA “Policies for Library and Lounge Use” passed at the July 5, 2005 Board of Directors’ meeting.  This one page policy states that the lounge is for the use of members in good standing of the Law Society of Upper Canada.  Of note, the Policy also specifically  states that:

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Lawyers’ Lounge within the spirit of the policy.

The Librarian/Administrator retains the discretion, on a daily basis, to permit or deny access to the Library.[2]

Peel Law Association policy provides that:

LAWYERS: DO NOT BRING CLIENTS OR OTHER MEMBERS OF THE PUBLIC INTO THE LOUNGE, ROBING ROOMS OR LIBRARY

THIS SPACE IS FOR LAWYERS ONLY

Ms. Firth had the right to deny access to unauthorized persons. Lawyers and students, however, were authorized to be in that space. The manner in which Ms. Firth exercised her authority was the critical issue.

The Tribunal set the scene:

12     The lounge was not busy at the time of the incident with perhaps a total of twenty persons present. The applicants were seated in an area of the lounge just outside the doors to the library. Mr. Pieters was in a chair talking on the telephone to his assistant, Michael Roberts. Mr. Noble and Mr. Waldron were on a sofa perpendicular to where Mr. Pieters was sitting; Mr. Noble was closest to Mr. Pieters, Mr. Waldron closest to the library door. The sofa was against a frosted glass half-wall that divided the kitchenette from the lounge. Ms. Trotter was in the kitchenette. Mr. Dhir and Ms. Goswami were at a worktable approximately 15 feet away from the applicants. Ms. McFadden and Ms. Reesor were seated further away in the lounge.[3]

The Tribunal recognized that this was a difficult incident because the lawyers had the right to be there and the Librarian had a job to do.

 [62]           This was clearly an emotional and dramatic incident and one that quickly escalated into confrontation.  It was certainly an emotional experience for the applicants and the personal respondent, all of whom testified to how they were surprised, distressed and upset by what they felt occurred.   It was a dramatic event for those who witnessed it, most of whom spoke about the charged and confrontational nature of what they saw or heard and the resulting confusion when a number of the witnesses subsequently became involved.[4]

Findings of Fact and Credibility

On the issue of the initial encounter and Ms. Firth’s demand for identification from myself, Mr. Noble and Mr. Walrond, the Tribunal found that:

1. Ms. Firth, without identifying who she was, first approached Pieters - who was on the telephone; Pieters verbally identified himself as a lawyer (at paras. 64, 67);
2. Ms. Firth in an aggressive and demanding manner requested to see his identification (at paras. 77, 84); Pieters showed the identification (at para. 72);
3. Pieters also told his assistant Roberts, to whom he was speaking on the telephone that he was being racially profiled (at paras. 65, 74);
4. Ms. Firth then attempted to grab Pieters wallet; Pieters told her not to touch his wallet; (at para. 71)
5. Ms. Firth despite the claim that she was intimidated by Pieters, frozen and considered it rude to leave him, did move on to check the identification of Noble and Walrond (at para. 67);
6. Mr. Dhir and Ms. Goswani approached with their identification and she did not look at it (at para. 50);
7. Ms. Reesor also had her identification ready and Ms. Firth did not look at it;
8. Ms. Firth was demanding and aggressive in her approach (at para. 74);
9. The evidence of Bonnie Racz and Mellissa Firth on the initial interaction were either vague or at odds with the evidence of the other witnesses on important points (at paras. 69 -72).

           

Ms. Firth had an opportunity to look at the identification of the other unknown persons in the lounge and chose to focus her attention on the three Black men, Pieters, Noble and Waldron,  precisely because she consciously or unconsciously believe that they were out of place.

The White non-lawyer female ("agent") in the Robing Room

Ms. Bonnie Racz, a lawyer and Director of the Peel Law Association, went into the library area shortly after leaving the female robbing room – she  had just asked “an attractive caucasian woman who was very nicely dressed” to leave the robing room. The woman was not a lawyer, she "said she was someone's agent. She would not say who she was acting as agent for" and “Ms. Racz explained that the robbing room was off limit to non-lawyers”.

The Tribunal considered the evidence that:

                                                              i.      Ms. Firth’s purpose for leaving the library was to head to the robing room at the behest of Ms. Racz; and

                                                            ii.      that she diverted her attention to myself and my group (at para. 84).

Ms. Firth's aggressive and demanding demeanour

The Tribunal found that Ms. Firth adopted an aggressive and demanding demeanour in dealing with myself and my party:

                                                          iii.      when Ms. Firth first approached me, she actually interrupted my telephone conversation to demand I identify myself;

                                                          iv.       she did not accept my word that I was a lawyer;

                                                            v.      she then demanded my identification, which I promptly produced; and

                                                          vi.      she attempted to grab my wallet.

The evidence as cited by the Tribunal in paragraphs 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, and 51 is ample to support the finding that:

[77] ....the manner in which the personal respondent asked her questions and interacted with the applicants was aggressive and demanding.  Mr. Dhir and Ms. 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 applicants 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.[5] 

The Evidence of Laurie Reesor – The “Announcement”

Partway through the hearing I was frightened by the evidence of one of my colleagues, which totally contradicted my memory of the events:

[61]           Ms. Reesor testified that she had not been in the lounge before.  She recalls two persons coming into the lounge and one of them announcing to the room (not to any particular group) that they would be checking identification.   She believed that it was these two persons who then approached the applicants with the one who had made the announcement interacting with Mr. Pieters  (emphasis added).[6]

The Tribunal disregarded this testimony.  In addressing Ms. Reesor's evidence, the Tribunal found that:

[79]           I find that the personal respondent did not intend to generally check identifications in the room.   It is true Ms. Reesor testified that she recalled a general announcement to that effect when the personal respondent and Ms. Racz first came into the lounge, but I heard no other evidence to support this contention.  The personal respondent did not state that this was her intention  (emphasis added).[7]

Findings of Racial Profiling based on reasonable inferences from the evidence

The Tribunal considered the explanation offered by Ms. Firth and found Ms. Firth failed to provide a credible non-discriminatory reason for stopping and questioning myself, Mr. Noble and Mr. Waldron. It also found her testimony on a significant point to be lacking in credibility, a finding it was entitled to make:

[86]           The respondents contended that the personal applicant spoke directly to Mr. Noble and Mr. Waldron and not Mr. Pieters because he was on the telephone and that the personal respondent recognized him from previous visits to the lounge.  The respondents submitted that by seeking to confirm the identity of only two of the three Black men in the lounge, the personal respondent could not have been racially stereotyping or profiling Black men by assuming that Black men present in the lounge were not lawyers.  This argument fails. I find, as noted earlier, that the personal respondent was questioning all three men as to their right to be in the lounge.   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.

The Tribunal also linked the robing room incident with the stop and carding at the door and found that:

88     … the respondents argued that the personal respondent routinely questioned unknown persons in the lounge and that such questioning fell within her regular job duties. I accept this to be true. However, the issue for me is why, on this particular occasion, the personal respondent stopped at all to question the applicants. The evidence was that the personal respondent was on her way with Ms. Racz to speak to a person in the robing room whom Ms. Racz did not recognize and was concerned enough to come and ask the personal respondent to confirm her identification. The personal respondent never did provide an explanation for why she chose to stop under these specific circumstances to question the applicants and Mr. Waldron. (emphasis added).[8]

The Tribunal was therefore entitled to, as it did, scrutinize the interaction in question and conclude that:

[92]            I have already found that the personal respondent questioned the applicants in an aggressive and challenging manner.   I further note that she interrupted Mr. Pieters while he was on the telephone and, it appears, did not introduce herself to the applicants and Mr. Waldron.  From all the evidence, including the personal respondent’s testimony of how she generally carried out this function, I conclude that the way in which the personal respondent approached the applicants and the blunt and demanding manner in which she asked her questions was not how she would approach and question persons that she imagined were lawyers and had a right to be in the lounge, and I am prepared to draw the inference that the way in which she interacted with the applicants was tainted by consideration of their race and colour.  That said, I accept that the personal respondent’s contention that her regular practice is to ask for identification from individuals even when they are identified by someone else as admissible and so her repeated requests for identification from Mr. Noble and Mr. Waldron does not suggest, in my view, a greater degree of scrutiny.[9]

In the Tribunal’s view, which had been my view and the view of the other Applicant all along, this was a clear case of racial profiling and discrimination.

The Award

The Tribunal awarded myself and Mr. Noble $2,000.00 respectively “for the injury to their dignity, feelings and self-respect arising out of the infringement of the Code”.[10] It must be noted that this award was at the very low end of the scale for awards in such cases. The Tribunal ruled that the discrimination in this case was at the less serious end of the spectrum due to, among other things, it being a single incident, the fact that the Applicants were ultimately not denied access to the lounge, and the fact that the incident did not affect our ability to practice law.[11]

Implications for the Legal Profession and the Law on Discrimination

Now that the Peel Law Association has determined that it will not seek leave to appeal the Court of Appeal decision which upheld the HRTO’s ruling, the positive findings in this case are significant to lawyers and their conduct in interactions with other lawyers.

The Law Society’s Rules of Professional Conduct governing the conduct of lawyers has both specific and general application.  Some of the rules are designed to address specific circumstances while others are designed to have a more general application as not every conceivable situation can be specifically stipulated in the rules. Rule 5.04 however is specific to advocating in a multicultural society.[12] Had the Rules of Professional Conduct been observed in this case, I may not have been standing before you today discussing this matter.

The lawyer also has a duty to society and in the public interest to respect the dignity and worth of every person and to operate their practice in a manner that complies with the OntarioHuman Rights Code.^[13] This is important because of the many reports and cases supporting the view that there is systemic racial discrimination in the legal profession and the justice system more broadly.^[14]

There are also, of course, wider implications for the law on discrimination in Ontario, especially in the wake of the recent Court of Appeal decision. While my colleagues on the panel will speak more about these developments, I will state broadly that it is clear that it is now easier to “call a spade a spade” when it comes to racial discrimination, and more difficult for those who would engage in discrimination and profiling to shield themselves with official policies and procedures, whether or not they are aware of their own discriminating behaviour.

Finally, this case speaks to the huge importance and relevance of the various Human Rights Tribunal regimes across Canada. Years ago, it would not have been possible for someone like me to air this grievance in a public forum, unless it was possible to frame it in terms of a tort. Now, however, incidents of racial discrimination like this one can be brought out into the open and dealt with. This leads to a more transparent and inclusive society. In Campbell v.Jones 2002 NSCA 128, Justice Roscoe of the Nova Scotia Court of Appeal ruled that in situations where there are serious Canadian Charter of Rights and Freedoms and human rights violations the victim has the right and an obligation "to cry out loud and long against their transgressors in the public forum and -- in the case of children and others less capable of articulation of the issues -- to have their advocates cry out on their behalf." Human Rights Tribunals provide an avenue more accessible than any other to do just that.

Decisions online

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), 306 O.A.C. 314, [2013] 116 O.R. (3d) 312 (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.)

Press Coverage

Canadian Underwriter, Court rules in favour of RSA and broker after liability client demands payment for defence costs; 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;

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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.

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[1] Pieters v. Peel Law Assn and Mellissa Firth, 2010 CarswellOnt 9354, 2010 HRTO 2411, [2010] O.H.R.T.D. No. 239 (H.R.T.O) at para. 4.

[2] Pieters at para. 20.

[3] Pieters at para. 12.

[4] Pieters at para. 62.

[5] Pieters at para. 77.

[6] Pieters at para. 61.

[7] Pieters at para. 79.

[8] Pieters at para. 88.

[9] Pieters at para. 92.

[10] Pieters at para. 102.

[11] Pieters at paras. 100-101.

[12] 5.04 (1) A lawyer has a special responsibility to respect the requirements of human rights  laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the  grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences (as defined in the Ontario Human Rights Code), marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person.

[13] LSUC Rules of Professional Conduct, Rule 5.04(1).

[14] Canadian Bar Association, Racial Equality in the Canadian Legal Profession, (Ottawa: Canadian Bar Association, 1998); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability: Report of the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); R. v. R.D.S. (1997), (1997) 118 C.C.C. (3d) 353.