I recently sought leave to appeal to the Supreme Court of Canada on a very fascinating little case involving racial profiling and what I thought was a gross violation of my client - Ms. Jennifer Jeremiah's rights under the Canadian Charter of Rights and Freedoms. The facts of the case are classic. Here they are:
- Ms.Jeremiah is a woman of African-Canadian background from Grenada.
- She was employed as a cook by the Hudson's Bay Company in Toronto.
- She was employed with them for roughly 17 years.
- She was a cancer survivor and was also anemic.
- Her employer unilaterally decided one day to change her work schedule.
- She opposed this on medical grounds. It was her doctor's opinion that a change in her shift would not be good for her health.
- She proferred a medical note to the employer and advised them of this fact.
- The employer refused to accommodate her and threatened dismissal.
- While in a meeting with management to discuss the issue she got upset at the employer's position and is alleged to have said: "I have a family and I have told them all about you and if anything happens to me they will be waiting for you."
- She was advised by management to go back to work. She went back to work in the kitchen - where there are knives etc.
- She finished her shift and went home and returned for her shift next morning at 6:30 a.m.
- At about 11 a.m. she was approached by a manager who told her that she was "suspended pending investigation" and that she must go home. She went home.
- Later that day the employer called the police.
- a police officer took statements from the two managers who were in the meeting with Ms. Jeremiah. The officer asked the alleged victim - who is of European descent - what do you think she meant by those words - "I have a family and I have told them all about you and if anything happens to me they will be waiting for you."
- The manager replied - "her family may waite for me after work and beat me up or burn down my house."
- Ms. Jeremiah was charged with one count of uttering a threat to cause serious bodily harm under the Criminal Code of Canada.
- After the investigating officer who attended at the place of employment and took the statments filed an Occurrence on the Toronto Police Service database another Detective from the CIB was asked to deal with the matter. After reviewing the Occurrence he concluded that "no offence was committed" and he called the complainant and informed her of this fact and closed the Occurrence. However, the original office failed to review the database before he proceeded to formally arrest and charge Ms. Jeremiah.
- When her matter went to trial - I represented her on the criminal matter. Disclosure in the file revealed a note from a prosecutor asking the officer in charge - "Al - this could mean anything. It sounds like the employer is riding her and she is saying that if she drops dead or somehting that her family will be there to sue the employer. How is this a threat ? Should this not be peace-bonded at best". The Officer in Charge wrote back - "I agree."
- The Toronto Police Service Occurrence noted Ms. Jeremiah's race as Black and the complainant's as White. The Toronto Police Service issued an Appearance Notice to Ms. Jeremiah with a condition that she not attended at her place of work. She ultimatley lost her job.
- The charge was ultimately withdrawn by the prosecution and Ms. Jeremiah sued citing a violation of her rights under the Charter and racial profiling.
The following issues were raised before the Supreme Court of Canada:
1. The Applicant asserted that she was prosecuted on account of her race in circumstances where she committed no criminal act;
2. Can words spoken capable of an innocent meaning taken in the overall context in which they are uttered constitute an offence under section 264.1(1)(a) of the Criminal Code of Canada ?
3. If so - does such a charge violate the speaker's rights under the Charter, namely, sections 2(b), 7 and 15 ?
4. If not - does it not follow that a police officer's forumualtion of reasonable and probable grounds amounts to an unconstitutional application of the law ?
The Supreme Court of Canada dismissed Ms. Jeremiah's application by way of order dated January 28th, 2010 with costs.
The words uttered by Ms. Jeremiah were capable of an innocent meaning. The screening prosecutor, the officer in charge and the officer who closed the Occurrence recognized this fact and this evidence was all in the record. The police officer who laid the charge did not consider the obvious innocent meaning that the alleged words spoken were capable of. This too is in the record. Ms. Jeremiah had a solid expert report from one of the finest investigators in the history of the Toronto Police Service - Mr. Mark Mendelson.
At trial the trial judge exercised his discretion not to award costs against Ms. Jeremiah. The Court of Appeal for Ontario overturned this decision. The issue of the desire to establish a policy to deal with access to the courts for impecunious litigants was raised in the leave application before the Supreme Court of Canada.
The current offence of uttering a threat to cause serious bodily harm is much too broad and as this case illustrates is capable of causing serious harm to innocent individuals. The current law clearly has the potential to encroach on perfectly innocent speech in clear violation of the right to freedom of expression. If freedom of expression is for all then this law must be fixed !
March 16th, 2010
E.J Guiste on Law & Justice.
Note: Supreme Court File No.33399