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.