Saturday, December 17, 2016

With Selwyn Pieters: On Clr. Green's Allegation of Carding

1     As our readers are aware, Clr. Matthew Green is pursuing an allegation of carding relative to being stopped and questioned by the Hamilton Police Service. Clr. Green has retained a well known and respected lawyer in the Toronto Human Rights community, Selwyn Pieters. We have confirmed with the city of Hamilton that to date,  Clr. Green has made no requests for assistance with legal fees related to retaining Mr. Pieters. Arguably, the Clr. could have made a case that his moving forward is in the public interest and possibly joined the expenses related to this  matter accordingly to his role as city councillor. To date, to our knowledge and as verified by the City Manager, no request for financial assistance has been made. It appears as though the Clr. is handling the fees autonomously or otherwise. 

The Hamiltonian hopes that the outcome of this case is one that serves society well and makes no assumptions regarding the allegations.

The following is our chat with Selwyn Pieters:

Can you describe where this matter is in the process.

Constable Andrew Pfeifer faces one count of discreditable conduct under section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10 of the Police Services Act. This matter has been brought to hearing following an investigation conducted by Independent Police Review Director (the "OIPRD").

A hearing officer Deputy Chief Terence Kelly, York Regional Police (Retired), will preside.

Brian Duxbury and T. David Marshall are the Prosecutors appointed by the Chief of Police.

Bernard Cummins and Ben Jeffries will be representing the Police Constable

I am representing Councillor Matthew Green.

The first appearance was on December 15, 2016. A hearing by telephone conference is scheduled for January 31, 2016 to permit counsel for the complainant and police officer to review disclosure and be in a position to set a date for trial.

Have the facts been established or is part of your role to draw out the facts?

There were facts established during the investigation that brought the matter to a hearing. However, any facts that are acceptable by the hearing officer can be established by the parties agreeing as to the facts or alternatively a full blown hearing in which examination in chief, cross-examinations and re-examinations take place. At this point no facts have been established for the purpose of the hearing as we only made a first appearance.

What would an appropriate outcome look like. In other words, what result is being sought by going through the hearing process?

The prosecutor would be seeking to establish misconduct on the part of the officer.

Mr. Green is a complainant and a witness in the proceeding with standing he is there to ensure that his version of the evidence is found to be credible. As well, on a broader level since this is an officer misconduct complaint that raises racial profiling as an issue, Mr. Green has an interest in ensuring the Hearing Officer adjudicate this case in a manner that recognizes its subtle, pervasive and unconscious nature of racism and that his decision is consistent with human rights principles set out in numerous Court of Appeal decisions.

In your estimation, how clear is this case? Is this unquestionably a case of police carding based on race? What challenges, if any, do you anticipate?

This is a case based on the circumstantial evidence.

We will make the case that this was an unjustified and arbitrary street check and that it based in part on the race of Matthew Green.

Is there anything else you would like Hamiltonians to know about this matter or the issue of carding in general?

Racial profiling is a serious issue of great concern to the public particularly racialized residents of Ontario, including residents of Hamilton. Regulations come into force in January 2017 that prohibits such action. Hamilton Police Service enacted a policy in December 15, 2016. Statistics shows Blacks are four times as likely to be arbitrarily stop by police in Hamilton.

In a case where racial profiling is alleged:

a. There is no need to prove intention or motivation to racially profile;

b. Racial profiling can rarely be proved by direct evidence;

c. Racial profiling will usually be the product of subtle, unconscious beliefs, biases and prejudices;

d. Race need only be a factor in the adverse treatment to constitute racial discrimination;

e. Racial profiling is a systemic practice;

f. Racial profiling is not limited to initial stops;

g. African Canadians may, because of their background and experience, feel especially unable to disregard police directions, and feel that assertion of their right to walk away will itself be taken as being evasive;

h. A person may experience racial profiling based on several overlapping and intersecting aspects of their identity; and

i. The use of abusive language by an individual who has experienced racial profiling at the hands of police cannot justify further differential treatment

See, Peart v. Peel Regional Police Services, 2006 CanLII 37566 (ON CA), <http://canlii.ca/t/1pz1n>; Phipps v. Toronto Police Services Board, 2009 HRTO 1604 (CanLII), <http://canlii.ca/t/2608k>; Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14 (CanLII), <http://canlii.ca/t/1rgcm> and Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII), <http://canlii.ca/t/fz590>

6. Other issues

It appears that a larger room and venue would be necessary for this hearing. It is a public hearing and I am concerned with the comments reported in the Hamilton Spectator and CBC that HPS Union Boss Client Twolan called the case a "circus" and claimed that Councillor Green is making a spectacle “to further his own political agenda.”

I have already written to all concerned stating “I would suggest a venue that is not a police building. Comments like this can poison the atmosphere.”

Obviously, I will have to obtain instructions from the client on motions to be brought including for additional disclosure, change of venue etc.

Thanks Mr. Pieters for sharing your perspective in The Hamiltonian. 


  1. Its political theatre by Matthew Green and a disgusting act of attempting to ruin a life for press. The net result may very well be police ignoring visible minorities in distress

  2. Mr. Green's conduct in this matter can not be considered in isolation. Not satisfied with his public and political (his preference for using municipally funded social media to broadcast his personal beliefs are well established) he has now broadened his advocacy while assisting citizens with their Police complaints, all from the comfort of his City Hall office. Despite evidence to confirm our service is diverse and an accurate reflection of the population it represents, Green has found it necessary to condemn our Service Board as "culturally incompetent" and suggests any future Provincial appointments should first have to pass his personal approval process. Whilst publicly comparing Justice Zabel's misstep with the ball cap
    to a KKK parade, Matthew has confirmed an immaturity that is reckless, harsh and hostile. Evidently Green believes that those who are held to a higher standard should be judged by those either unwilling or incapable of adhering to a much lower threshold. This sort of hypocrisy needs to be confronted.

    A clear and consistent pattern has emerged, an agenda. Bias and prejudice in full bloom. "Racial profiling will usually be the product of subtle, unconscious beliefs, biases and prejudices" Amen. Undermining establishment and encouraging anarchy, minus a mandate, and without the public support of a single colleague. A crusader.

    I support Mr. Twolan's defense of his officer, and I look forward to hearing their version of events in this regard. I believe it is now imperative that this hearing be held locally, and I hope that any change of venue request is dismissed. Every effort should be made to accommodate Mr. Pieter's reasonable request for a larger venue.

    As an aside, I think it interesting that an encounter that some believe lasted too long-several minutes-will now take a lawyer "about a week" to dissect. Irony.

  3. Taylor's and Graham's comments go to show why it is so important for Councillor Green to have pursued this case. They have never been racially profiled so they do not know what it is like and they prefer to keep their blinders on, the ones they got out of privilege. This is an important public policy issue. This is not a vendetta against one cop. This is about confronting systemic abuse. Let there be a public hearing and let's not say in advance that the cop is innocent and Green is the bad guy here.

    1. The complainant is guilty of a witch hunt no matter what the verdict. This action is morally corrupt this is simply a vendetta

  4. If Councilor Green wants to pursue this as a individual he has every right to do so. Let there be a hearing but the supreme court has already ruled on this so under no circumstances should he be using tax dollars to support his personal agenda.

    1. I've said all I wanted to on this. I have questions about the form this is taking, but that is a choice only Green can make. We'll see if in the long term it does more harm that good.

    2. Sets back race relations between the black community and police. Can't see how any officer won't hesitate to respond to a black person on the street if he fears charges

  5. 1. Councillor Green complained as it is his right to do after he was offended.
    2. The complaint was investigated by Independent Police Review Director (the "OIPRD").
    3. Constable Andrew Pfeifer faces one count of discreditable conduct under section 2 (i)(a)(xi) of the Code of Conduct, as set out in O. Reg. 268/10 of the Police Services Act.
    4. The constable has representation and can make his case under oath!
    5. The Hearing Officer will make a decision based on the law,findings of fact, and credibility.
    Let's wait rather than prejudge this and accuse the complainant.

    1. Mr. Green has every right, but Councilor Green has no such mandate. I doubt the distinction is lost upon you, just willfully ignored.
      Merry Christmas


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