Thursday, December 13, 2012

Court of Appeal to hear Selwyn Pieters' Appeal

     I received a press release informing me that the Court of Appeal for Ontario has granted leave to appeal Pieters el al  v.  Peel Law Association 2012 ONSC 1045.  Readers may recall that this is the case in which the Human Rights Tribunal of Ontario found that the Peel Law Association violated the right of high profile African-Canadian human rights lawyer, Selwyn Pieters, to be free from discrimination based on race and found that he was singled-out for scrutiny on account of his race by a librarian while in the lawyers' lounge at the Superior Court in Brampton.  The Divisional Court overturned the Tribunal's decision and ordered Pieters to pay $20,000 in costs to the Peel Law Association.

     The case has gained notariety in the profession because Mr. Pieters maintains that he and his African-Canadian colleague, Mr. Nobel,  were "racially profiled" by the Peel Law Association staffer who approached them to verify that they were lawyers.  I agree and fully understand Mr. Pieters' sense of frustration and humiliation for being singled-out for scrutiny by Peel Law Association staff on account of his race.  I am satisfised that in this case the Tribunal made the correct decision and that this decision was denied the level of defference typically afforded such decisions by the Divisional Court contrary to their own jurisprudence.

     I am - however - troubled by the use of the word "racial profiling" to charcterize the nature of the discrimination in this case.  Racial profiling is a form of discrimination which arises where state actors - generally law enforcement personnel - who have the power to deprive one of fundamental rights such as equality, to be safe against unreasonable search and seizure and to be accused of criminal allegations - use race as a basis to enforce the law.  This I have argued elsewhere is a serious wrong amounting to a violation of the equality provisions of the Charter of Rights and Freedoms.  The discrimination in Pieters  v.  Peel Law Association is regular, good old-fashioned discrimination - nothing more nothing less.  Racial profiling on the other hand is racial discrimination perpetrated under colour of law.  To characterize the discrimination in Pieters  v.  Peel Law Association as "racial profiling" is to show a total misunderstanding of the term and the nature
and quality of the harm associated with its manifestation.  In fairness to the Tribunal and the Divisional Court they did not at any time use the term "racial profiling" to characterize the discrimination alleged in the Pieters case.  The specialized press and the mainstream media did.

     It is anticipated that the Court of Appeal for Ontario will find that the Divisional Court erred in law in applying the cases of Ontario Director, Disability Support Program  v.  Tranchemontagne 2010 ONCA 593 and McGill University Health Centre  v.  Syndicat des employees de l'Hopital General de Montreal  2007 S.C.C. 4 to the type of discrimination involved in Pieters.  Those cases deal with non-intentional adverse impact discrimination.  Pieters - like I said above - deals with regular, good old fashioned racial discrimination. 


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