Life-Time Driving Ban Violates Ontario Human Rights Code: Rehabilitated Alcoholic

Rehabilitated Alcoholics in Ontario are discriminated against on account of their
historical disability by being prevented from driving for life if they had four prior
convictions under the Criminal Code of Canada for alcohol-related infractions
pursuant to the Highway Traffic Act.  This has prompted Mr. Heron to bring a
complaint against the Attorney General for Ontario and the Minister of
Transportation asserting that this prohibition violates his right to free from
discrimination on account of disability.

Mr. Heron had the misfortune of being convicted of four impaired related
driving offences more than 13 years ago but although rehabilitated today is
banned for life from obtaining a driving license not only in Ontario but Canada
-wide.  Mr. Heron has some 20 plus working years left.

In this case Mr. Heron who operated heavy land-clearing equipment in a mine
-setting commanding top compensation was rendered unemployed and unemployable
once the mines required operators of such equipment to hold a valid driver's liscense -
even though the employee does not drive or operate such vehicles on a public road or
highway.

This is discrimination plain and simple.  The exclusion of Mr. Heron and other
similarly situated persons in Ontario is not only contrary to the Human Rights Code
but also the Canadian Charter of Rights and Freedoms.  Denying Mr. Heron and other
Ontario residents who once suffered from a recognized condition which they have been
cured of is simply not justifiable under the Ontario Human Rights Code or the Charter.


NOTE:  This piece is published as a matter of public interest.  If you or someone you
know is similarly situated to Mr. Heron I wish to learn about your experience with this
issue. I am counsel to Mr. Heron.  My name is E.J. Guiste - Tel.(416) 364-8908.

Wrongly Accused of Domestic Violence or Victimized ?

   As a lawyer who handles both the defence of criminal allegations arising from domestic violence occurrences and prosecutes civil actions for malicious prosecution and negligent investigation arising from these allegations it is clear to me that countless numbers of innocent, hard-working individuals in Ontario are all too often wrongly charged with domestic-related criminal offences.

   We have all met and heard of individuals who have found themselves charged and removed from their homes for nothing more than restraining or otherwise seeking to avoid the commission of an assault on their person. It is not a crime to do this. One is entitled in law to defend one's person. The question is whether the response is reasonable and proportionate in the circumstances.  Included in this category of cases are cases involving what has come to be referred to as the Battered Spouse Syndrome defence.  The Battered Wife Syndrome involves a situation where a historically battered spouse  retaliates in self-defence - possibly killing the other spouse.

   Domestic violence in Ontario is a very serious issue. Public policy in Ontario has seen fit to pass clear and mandatory standards regarding how police services in Ontario are to investigate these cases.  The problem is these polices are more often than not disregarded by police officers and others in the criminal justice system.  Crown counsel instinctively refuse to produce such policies as Stinchcombe disclosure often resulting in non-production of what is relevant evidence to the defendant's ability to make full answer in defence of the allegation against him or her.

 
About the author:  E.J. Guiste deals with both civil and criminal domestic violence cases. If you have been charged or are a victim of domestic violence and want to know your rights with respect to civil redress for the harm caused to you call me for a consultation. Tel.(416) 364-8908 - E mail: ejguiste@yahoo.com

In Flanders Fields - John McCrae

   In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn saw sunset glow, 
Loved and were loved, and now we lie, 
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

By Lt Col John McCrae

Huscroft J.A.'s dissent in Fleming Followed by SCC

   Poor Mr. Fleming, a Canadian man of European descent, decided to exercise his right of freedom of expression by waving a Canadian flag with a group called "Canadian Advocates for Charter Equality" in Caledonia where a group of Indigenous Canadians were occupying Crown-owned lands only to be forcefully arrested by OPP officers in order to avoid a breach of the peace.  Mr. Fleming had done no wrong known to law.  The police, supposedly acting on past experience and speculation, determined that Mr. Fleming's rights of expression should be denied in the name of preserving the public peace.

   Understandably, Mr. Fleming did not agree with this brand of justice and filed an action against the OPP officers and Her Majesty the Queen in Right of Ontario for unlawful arrest, excessive force(assault and battery) and violation of his rights Charter Rights. After carefully considering all of the evidence at trial the learned trial judge concluded that poor Mr. Fleming was unlawfully arrested and excessive force was used on him. She awarded Mr. Fleming $139,711.90 in damages plus costs.

    The police defendants appealed to the Ontario Court of Appeal.  Their argument that it was lawful for them to forcefully arrest poor Mr. Fleming even though he committed no offence in law and was merely exercising the most fundamental of legal rights in a democracy - the right of freedom of expression was well received by a majority of that court led by Nordheimer J.A.  Norheimer J.A. set aside the award of damages on the basis that the learned trial judge committed "overriding and palpable error"  and concluded that the police had the authority at common law to arrest poor Mr. Fleming.

Laskin C.J.Like Dissent:

   When it looked like the days when we once had powerful and well-reasoned dissent judgments from our appellate courts was all over along comes Mr. Justice of Appeal Huscroft.  Huscroft J.A.'s dissenting judgment takes us back to a time when another former academic named Bora Laskin penned dissents which often went on to make law thorough-out the Commonwealth.   Huscroft J.A., himself a former academic writes with a soundness, clarity and honesty that brings back memories of the dissenting judgments of the late Chief Justice Laskin. The dissent is noteworthy because Huscroft J.A. takes issue with the majority on very serious and fundamental points of law.  These points of law have the potential to impact the very substance of the fundamental rights which are often at stake when the rights of citizens and the state collide.  The points of law that Huscroft J.A. takes issue with Nordheimer J.A. on include the following: standard of review  and the role of the appellate court in reviewing findings of fact made by a trial judge - the lawfulness of the arrest and the right of political expression and when it can be denied.  The soundness of the decision is best demonstrated by quoting excerpts of it directly.

[76]   The primary issue raised by this appeal is whether the police were justified in arresting the respondent to avoid a possible breach of the peace.  My colleague Nordheimer J.A. concludes that they were.  With respect, I disagree.

[78]   My colleague defers to the police in their decision to arrest Mr. Fleming, rather than to the trial judge, whose decision came following an 11-day trial.  The trial judge found that Mr. Fleming's arrest was not justified in the circumstances.  In my view, there is no basis for this court to interfere in her decision.

[80]   The burden is on the appellants to demonstrated an error of fact or an error of mixed fact and law that is both palpable and overriding. It must be palpable, in the sense that the error is obvious or apparent without further inquiry or explanation.

(81)   In my view, none of the alleged errors identified by Nordheimer J.A. rises to this high standard.  As a result, it is not open to this court to substitute its view as to lawfulness of Mr. Fleming's arrest.

[89]   The trial judge found that the evidence was "clear" that the police intended to prevent Mr. Fleming from walking up Argyle Street with a Canadian flag.  Not only did she accept Mr. Fleming's testimony that he left the shoulder because of the police vehicles, but she noted that Inspector Skinner conceded that the O.P.P. had pre-emptively decided to limit the rights of the Flag Rally participants and that, for him, public safety "[took ]priority over other rights such as the freedom of expression and the freedom to walk down the street."

   Huscroft J.A. spends a great deal of necessary time demonstrating how "My colleague characterizes things differently than the trial judge."...Mr. Fleming, he says, chose to leave the shoulder of Argyle Street for reasons that are unclear on the record....He then suggests that Mr. Fleming is the author of his own misfortune - that he might have avoided his problems by remaining at the side of Argyle Street."

[92]   With respect, it is not open to this court to recharacterize the evidence in this fashion and substitute its inferences for those made by the trial judge.  The trial judge made findings that were open to her on the evidence.  It cannot be said that they constitute palpable and overriding error.

[99]   ...Mr. Fleming was entitled to attend and participate in the Flag Rally regardless of its effect on the governments political goals at Caledonia or anywhere else, and, in particular, regardless of whether the Flag Rally was considered provocative by the government or the protesters.

[100]   Political expression will often be provocative, and so considered problematic, but there is no doubt that its protection is a core purpose of freedom of expression.

   Indeed, the key difference in the Huscroft J.A. dissenting reasons and that of the majority stems from the deference they accord to the findings of the trial judge. Huscroft J.A. accords her the deference called for in our law while the majority appears to go out of its way to interfere with her findings of fact.

[177]   I can see no basis to interfere with these findings or the trial judge's conclusion.  In my view, the deference my colleague accords to the operations decisions of the police is more properly due to the decision of the trial judge.

Supreme Court of Canada:

   "As there is no common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by others, the police in this case did not have lawful authority to arrest F.  The trial judge specifically found that F had not done anything unlawful before being arrested; there was no evidence before her that he had committed any offence in walking along the street, entering the occupied property or standing there with his Canadian flag. Nor was there evidence that he had himself been about to commit an indictable offence or a breach of the peace. The Province and the police have not sought to challenge that finding on appeal, nor have they cited or relied on any statutory power to arrest F.  They rely entirely on a common law power to arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace by other persons - a power that does not exist.  In light of this conclusion, a new trial on the issue of excessive force is not necessary.  As the police were not authorized at common law to arrest F, no amount of force wold have been justified for the purpose of accomplishing that task." (Case Headnote - Fleming  v. Ontario 2019 SCC 45)


About the author:  E.J. Guiste is an lawyer of African-Canadian descent who represents individuals like Mr. Fleming in actions and appeals involving fundamental rights against police and other state actors.

Does Crown Counsel Get a Pass on "Civility" ?

Background:

   After repeated requests to the trial judge to restrain Crown Counsel's aggressive and abusive cross-examination of an African-Canadian female complainant on a domestic violence trial in which Crown Counsel elected not to call the alleged victim as his witness to prove an alleged assault on her but to call the person she said assaulted her instead, I made the following off-the-cuff and passionate request to the trial judge:

The Plea:

   "Your Honour, my friend's being very disrespectful to this witness, and I don't know if it's on account of her race, or what it is, but can you please caution him to (sic) finish her narrative ?  He keeps interrupting, and bellowing like he's some big, bad-ass dog or something."

"Bellow"**:  1. roar like a bull; 2. utter loudly and angrily (Concise Oxford Dictionary)
If someone bellows, they shout angrily in a loud, deep voice.(Collins English Dictionary)

Immediate Apology on 
the Record:

   Within less than a minute of those words being uttered a frank and fulsome apology
was communicated to Crown Counsel in order to preserve the integrity of the record
and proceedings.  Crown Counsel rejected the apology and asked the trial judge for an
adjournment in order for him to bring a complaint before the Law Society of Upper Canada.

Trial Judge Denied
Crown Request:

   The trial judge denied the Crown's request.  She stated:

THE COURT:  I think that I would like for us to take a 15 minute break, and then for us to return and continue the trial.

MR. RINALDI:  I can tell Your Honour I'm not in a position to do that.  I - I - I - sic and to make some inquiries, and I've had enough of this.  He called me names on the record and if...

MR. RINALDI: ...Your Honour wants to put up with that, that's your perogative.  I'll come back to set a new date, but I intend on speaking to the Law Society about the comments that have been put on the record about me. They were completely slanderous and inappropriate.

   Crown Counsel walked out on the trial judge.

Complaint to LSUC 
by Witness in Court:

   A member of the public who was in the courtroom and observed Crown Counsel's conduct made a formal written complaint to the Law Society of Upper Canada.  Her complaint raised the following regulatory issues:

1.  Crown Counsel was disrespectful to the trial judge by refusing to comply with her order;

2.  Crown Counsel was disrespectful to the witness - badgering her and raising his voice at her**; and

3.  The witness, a member of the public, stated, "I sat in stunned disbelief at the disrespect that the Crown showed to Justice Brewer by going against her order to take 15 minutes break."

Law Society of 
Upper Canada Response
to complaint:

    "After reviewing the information your provided, we have found that the concerns you raise are not something that the Law Society can deal with.  We can only act on complaints that provide information suggesting a lawyer had done something contrary to our Rules of Professional Conduct. As you aware, Mr. Rinaldi is a Crown Attorney.  As it appears your concerns about him relate to the exercise of his discretion within the context of his position as a representative of the Crown, you may address your concerns to:  The Ministry of the Attorney General, 720 Bay Street, Toronto, Ontario, M5G 2K1."

   On the other hand, the Law Society of Upper Canada has sent Crown Counsel's complaint against defence counsel, E.J. Guiste, to a formal hearing some six years after the fact and counting.  The Law Society of Upper Canada Notice of Hearing asserts that defence counsel was disrespectful to the trial judge and Crown Counsel - even though the trial judge never made any such complaint and went on to acquit defence counsel's client.

Case outcome:

   I was fully successful in defending my client. Yes - not guilty !  The learned trial judge found that my client did not assault his spouse her sister assaulted her causing injury to her eye.  More than five years later I am forced to defend myself against this Crown Attorney's complaint against me to the Law Society of Upper Canada - as they were known then.

How is this in the public interest ?

Is the late Eddie Greenspan Right ?

   One of Canada's best criminal lawyers had the following to say about the regulators tendency to prosecute defence lawyers but not prosecutors:  "The Law Society does not enhance its reputation by selectively prosecuting defence counsel for alleged misconduct in the face of the court, but not prosecutors. And such prosecutions will have a chilling effect on advocates." (Edward Greenspan
and L. David Roebuck, "The Horrible Crime of Incivility - Globe and Mail - August 2, 2012)




 

 
   

Is it "Professional Misconduct" for a Lawyer to Comment on a Judge's Unfairness ?

In Dore  v.  Barreau du Quebec [2012] 1 S. C.R. 395 the Supreme Court of Canada pronounced that:

"In dealing with the appropriate boundaries of civility for a lawyer, the severity of the conduct must be interpreted in light of the expressive rights guaranteed by the Charter, and, in particular, the public benefit in ensuring the right of lawyers to express themselves about the justice system in general and judges in particular.  We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer's right to expression and the public's interest in open discussion."

The Supreme Court of Canada stated:  "Proper respect for these expressive rights may involve bodies tolerating a degree of discordant criticism.  The fact that a lawyer is criticizing a judge, a tenured and independent participant in the justice system, may raise, not lower, the threshold for limiting a lawyer's expressive rights under the Charter."


The Ontario Court of Appeal had the following to say in Amato  v.  Peske 2010 ONCA 708:

"There are times when trial counsel can be expected to raise objections, especially when they feel that a trial judge is exceeding the bounds of judicial propriety and taking up the cause of one of the parties.  Polite but firm objections, in these circumstances, are entirely appropriate.  Counsel should not feel constrained for fear of judicial censure. 

Prohibited Conduct

A licensee shall not engage in professional misconduct or conduct unbecoming a lawyer.

s.33  The Law Society Act

With the authorization of the Proceedings Authorization Committee, the Society may apply to the Tribunal for a determination by the Hearing Division of whether a licensee has contravened section 33.

s.34 The Law Society Act


The Conduct:

1.  "Well, your Honour, I think you should give some thought to what you are doing, because you're trying to derail me".

2.  "Your Honour, you've got to - you've go to do you job now.  She - he asked that, and she said, five times. I mean come on."

3.  "Your Honour, I would have thought that you would've intervened, as the trial judge, but what's the purpose of this ?

4.  "I don't think you're listening to me very carefully, so I'm going to be very precise."


The learned trial judge made no complaint in court.  The learned judge made no complaint to the regulator. The learned trial judge went on to fully exonerate my client.


Guarantees for the functioning of lawyers

Governments shall ensure that lawyers(a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Basic Principles on the Role of Lawyers - United Nations

Corruption Allegations Force Province to Install an Administrator at Durham Region Police

   When police officers make reports of corruption against their chief and others this is a sign that there is something wrong in the service.  When the Ontario Government appoints an administrator to oversee the operation of a police service in Ontario this is a signal that there is a very serious problem which is interfering with the operation of that service.

    This is a matter that members of the public must watch closely.  Let us see how this unfolds for the Durham Region Police and their supporters.


NOTE:  In October, 2014 the writer served a subpoena on the Chief of Police or Designate seeking production of that services Domestic Violence Investigation Policy.   The writer was made to understand from the proceeding that Durham Region Police Service does not have a Domestic Violence Investigation Policy.   It simply uses the proposed guideline.  Anyone having information on this point kindly contact the writer. Phone: (416) 364-8908 - E mail: ejguiste@yahoo.com

How I Successfully Advanced a Racial Profiling Defence in a Drug Importation Case: Part 2

   We have all heard it said that cases are won and lost on their facts.  Nowhere is this statement more true than when it comes to advancing a racial profiling defence in a criminal case.  When seeking to advance a racial profiling case you are seeking to establish facts that speak to what the Ontario Court of Appeal said about racial profiling and the difficulty of proof with direct evidence. Hence, you will want to do two things.  Firstly, you will want to establish that one or more officers is simply not telling the truth on material points - like the reason for the referral to secondary or their observations of the subject.  You will want to exploit any inconsistencies in their version of what happened. Secondly, you will want to bring out any overt acts of discriminatory conduct on the part of the officers towards your client.  Sarcasm and even the manner of looking at someone can covey strong discriminatory vibes.  I have reproduced below the supporting affidavit used in my recent case - which resulted in the Crown withdrawing importation charges involving some four kilograms of cocaine.

SUPERIOR COURT OF JUSTICE

(Brampton)

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

                                                                                                                     Applicant

                                                SWORN AFFIDAVIT OF

            I,     of the City of Toronto, MAKE OATH AND SAY AS FOLLOWS.

  

1.            I am the Applicant on this application and as such I have personal knowledge of the matters hereinafter deposed to.

2.         I swear  this affidavit following my attendance for trial  on June 12^th, 2017 before Justice Durno.  At that time, the Crown sough an adjournment asserting that they were caught by surprise by the scope of my Charter application. The Crown indicated that they were not aware that I was raising any issues other than that the decision to send me to be searched was tainted by irrelevant considerations including racial profiling.

3.         Following submissions by the parties, I understood that Justice Durno directed my lawyer to prepare an affidavit delineating my evidence and to prepare a factum – as Justice Durno determined that the original factum was deficient.

Background:

4.         I am a person of African descent from Jamaica with noticeably dark skin.

5.         I am forty-four years of age – having been born January 6^th, 1973 in St. Catherines, Jamaica.

6.         I obtained my Landed Immigrant Status in Canada on December 17^th, 1987.

7.       I am a mother with four children ranging from nineteen to twenty-eight years of age, all of whom were born in Canada.  All but the eldest currently reside with me.

 8.     My father and various relatives continue to reside in Jamaica and consequently give me occasion to have to visit there from time to time.

Trips to Jamaica

9.         On or about August 22^nd, 2014 I travelled to Jamaica from Toronto in order to care for my elderly father who was hospitalized as a result of a severe stroke.  He is paralized and unable to walk or to independently conduct bathroom functions.

10.       On that occasion, I stayed in Jamaica for three weeks caring for my father.  While there, I made arrangements with my aunt, Ms. , for her to assist with his care in my absence.  Ms.  is my father’s sister.

11.       On or about October 14^th, 2014 I received a call from Jamaica informing me of Ms. ’s passing.

12.       I later received information regarding the funeral plans.  I decided to attend the funeral and made arrangements with my mother, Ms. , to provide me with a loan of $1,500 to enable me to travel to the funeral.  I paid off my obligation to my mother in December, 2016.

13.       I personally purchased my ticket using the funds loaned to me by my mother.  I paid $500 in cash and the balance of $273.46 by way of debit from my personal bank account.  Attached to this my affidavit as Exhibit “A” is a true copy of the two page invoice statement from Flight Centre with respect to my purchase of my ticket.

14.       I did not at anytime inform Officer 1 that my mother purchased my ticket for me.  Officer 1 asked me – “if you are not employed, how could you afford to buy your ticket” ?  I responded “my mother”.  Officer 1 did not ask me about my occupation.

15.       I now understand that Officer 1 maintains that a third party purchased my  ticket.  I did not tell her that. Exhibit “A” above speaks clearly to that point. My mother was not even present when I purchased my ticket.

Sarcasm From

Officer Tankus:

16.       Officer Tankus looked me straight in the eyes, smiled and said to me, “your mommy must really love you to buy you a ticket to go to your aunt’s funeral” ?

17.       I did not respond to Officer 1.  Officer 1's sarcastic statement told me that she had concluded that I was not worthy of belief or fairness.

Scanning Me

Up and Down

With Her Eyes:

18.       Officer 1 scanned me up and down with her eyes in a manner which conveyed to me a sense of contempt and intolerance.  I had previously experienced this feeling and knew right away that my race, place of origin and the fact that I mentioned to Officer 1 that I was not working presently placed me in a category of persons who are not deserving of her respect.

19.       My voice was not trembling during my interaction with Officer 1 and I consistently maintained proper eye contact with her.

20.       It was and remains my practice to place all my relevant travel documents together for presentation to the officer.  This was my practice on this occasion.  I provided my passport, boarding pass, flight centre invoice/statement, permanent resident card, and funeral program.  I did not volunteer to show her a funeral invitation.

21.       The document pertaining to the funeral which was among the documents I submitted to Officer 1 was a copy of the funeral program and not an invitation.  Attached to this my affidavit and marked as Exhibit “B” is a true copy of the funeral program which was among the documents submitted to Officer 1.

Referral to

Secondary Search:

22.       I do verily believe that Officer 1's decision to send me to secondary was tainted by irrelevant considerations and the unconscious operation of racial profiling and that the narrative which she has provided which is document 1 in my motion record is simply a pretext to mask this unconstitutional conduct. This document when contrasted with the under oath evidence of Officer 2 and Officer 3 on September 20^th, 2016 – found at tab 3 of my Motion Record and Officer 2 on September 19^th, 2016 – found at tab 2 of my Motion Record along with my own observations calls into question and undermines her pretext evidence.

 23.       As a direct result of her actions, my luggage was unreasonably searched. I was subjected to a humiliating strip-search nothing like that described by the officers in my case maintain.  They did not do my strip search in parts. I was stripped totally naked and they searched my vagina and anal areas and had me squat and cough in order to expel anything which may have been lodged in my vagina or anus.  There was nothing.

24.       It was only after I was thoroughly searched and humiliated was I provided any opportunity to speak to counsel.

25.       I swear this affidavit in support of my application seeking a remedy for the violation of my Charter rights and for no other or improper purpose.

Sworn before me this

12th day of June, 2017

at the City of Brampton, Ontario.                           ______________________________

                                                                                               

                                                                                      ____________________________________

Ernest J. Guiste, Trial & Appeal Lawyer

A Commissioner of Oaths (Ontario)


NOTE: This pieces is published here as a public service on an issue of public importance.  It is not put here to give legal advice or to make any representation on the law. The message or lesson is simply to highlight how I obtained a successful result for my client through the law articulated by ONCA in R  v.   Brown.  It can be done. It was done.

How I Successfully Advanced a Racial Profiling Defence in a Drug Importation Case

   I have heard it said countless times that the Canada Border Services Agency has the right to search people at the airport and that it is not possible to successfully raise a racial profiling defence in the context of a drug importation case.  I do not accept that proposition.  I did so successfully recently and think the experience significant enough that it should be shared.

   In my view when race is used as a basis to single out individuals for scrutiny this is prima facie unconstitutional. This conduct deprives the person so singled out to the equal protection and benefit of the law guaranteed by section 15 of the Canadian Charter of Rights and Freedoms. The tools that I employ in bringing the racial profiling defence to fruition are the following:  1. discovery/preliminary inquiry  2.  O'Connor Application for CBSA training and other policies on discrimination, human rights and racial profiling  and 3.  Charter/Abuse of Process Motion challenging search, right to counsel and arbitrariness.


Discovery/Preliminary Inquiry:

   In my experience most law enforcement personnel in Ontario are not trained on how to identify and avoid acts and omissions in the execution of their work which may amount to racial profiling or plain old arbitrariness.  Nowhere was this more evident than when I decided to advance a racail profiling defence on behalf of an African-Canadian person charged with importing a few kilograms of cocaine at Pearson International from Jamaica.

   The preliminary inquiry in criminal matters is a highly effective tool for securing evidence in support of a racial profiling case.  In my case I asked and the Crown made available all of the CBSA officers involved in the transaction with my client for examination.  One by one I sought information from them on their training in the areas of - 1. recognizing and removing racial and other bias from the discharge of their duties; and 2. recognizing and eliminating "tunnel vision" from the discharge of their duties.  One by one they all confirmed that they were not given any such specific training. They were trained to treat everyone the same and "not discriminate".  For the most part they were unfamiliar with the concept of "tunnel vision."  The record I prepared made it abundantly clear that these officers were not properly trained to discharge their duties.


Production of training records sought:

   I properly sought production of training materials used by the CBSA officers on the areas identified above.  The Crown refused production taking the position they are not in their possession.  Accordingly, I was forced to bring an O'Connor Application which I did.  The learned Motions Judge denied my motion.  That did not deter me in my quest to save my poor African-Canadian client harmless from what I perceived to be a discriminatory application of the law.

Notice of Application, Supporting Affidavit
and Factum:

   I served the Crown with a Notice of Motion, Supporting affidavit, Factum and Book of Authorities as required by the Rules.  On the day that the trial date was to be confirmed the charges were withdrawn by the Crown.  Below is a copy of the NOA, and the factum I used*.

SUPERIOR COURT OF JUSTICE

(Brampton)

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

       

 NOTICE OF MOTION

          TAKE NOTICE THAT the Applicant intends to bring a motion before the Trial Judge on  to be adjudicated prior to trial or at the conclusion of the trial or as ordered by the Trial Judge or as soon thereafter as the motion can be heard at 7755 Hurontario Street, Brampton, Ontario.

  

Relief Sought:

   

1.         An Order that the Applicant’s rights under sections 7, 8, 10, 9 and 15 of the 

Canadian Charter of Rights and Freedom have been violated by the law enforcement personnel involved in the Applicant’s selection for a secondary search, arrest and subsequent processing;

2.         An Order either excluding the unconstitutionally seized evidence from consideration by  the trier of fact on the issue of guilt or innocence or alternatively an Order staying the Applicant’s continued prosecution outright;

3.         An Order curing any irregularity in the bringing of the within motion;

4.         Such further remedy as the Court may deem just in the circumstances.

 The Grounds for the Application are:

 1.         The Applicant stands accused of importing cocaine into Canada – 

an allegation which she denies.

2.         The Applicant is a Canadian Permanent Resident woman of African-Canadian 

racial background(“black complexion”) who was born in Jamaica and was returning 

home from a visit when her interaction with CBSA staff took place.

3.         The Applicant asserts that she was singled out for criminal scrutiny based on 

her race, national or ethnic origin and her colour, i.e. “black complexion”, denied 

her right to counsel and subjected to a dehumanizing strip-search – all in violation 

of her protected rights under s.7,8, 9,10 and 15 of the Charter and charged with 

importing cocaine;

4.         Admitting the fruits of the unlawful search and seizure along with the 

violation of her right to counsel would bring the administration into disrepute;

5.         The Applicant’s trial was initially set to commence on June 12^th 2017. 

However, it was re- scheduled by the Court on its own motion on account of 

concerns with the SCC ruling in R  v. Jordan.  An O’Connor Application was 

ordered to be heard January 10^th, 2017 and that proceeding concluded on 

January 20^th, 2017 with the court ruling that the Applicant’s request 

for the CBSA training documents on racial profiling and the formulation of

grounds for secondary searches was not “likely relevant” to any issue;           

6.         Such further grounds as counsel may advise and the Court may entertain.

 The following documentary/viva voce evidence will be relied upon:

1.         All evidence entered on trial relevant to the issues raised;

2.         Viva voce testimony of the Applicant, CBSA officers involved in the 

decision to forward the Applicant to secondary, the CBSA/RCMP officers 

involved in the secondary interrogation of the Applicant including the strip-search;

3.         Such further evidence that the court may consider relevant.

  The following legal authorities will be relied upon:

 1.         Decision of Bielby J. on O’Connor Application

2.         R  v. Smith 2004 Canli 46666 (As above)

3.         R   v.  Neyazi 2014 ONSC 6838 (As above)

4.         R   v.  Brown 2003 Canli 521(ONCA) (As above)

5.         Peel Law Association  v.  Pieters 2013 ONCA 396 (As above)

            The Applicant may be served with documents related to this appeal at the office of his solicitor of record, Ernest J. Guiste, of E.J. Guiste Professional Corporation, 2 County Court Boulevard, Suite 494, Brampton, Ontario, L6W 3W8 pursuant to the Rules.

January 23rd, 2016                                                                 

E. J. GUISTE                                                                                 

PROFESSIONAL CORPORATION                                                                                          

Trial & Appellate Advocacy

2 County Court Blvd., Suite 494

Brampton, Ontario

L6W 3W8

(416) 364-8908

(416) 364-0973 FAX

 Ernest J. Guiste for Counsel                                                                                                  

 PUBLIC PROSECUTION SERVICE OF CANADA

Federal Crown’s Office

201 County Court Blvd., Suite 600

Brampton, Ontario, L6W 4L2

Mr. Ostap Melnik, Esq.

(905) 454-2168 FAX and e mail

Counsel for the Crown

  

AND TO:

SUPERIOR COURT OF JUSTICE

Trial Co-ordinator’s Office

7755 Hurontario Street

Brampton, Ontario

Fax (905) 456-4834

 SUPERIOR COURT OF JUSTICE

(Brampton)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

-and-

Applicant

APPLICANT’S FACTUM

PART I

            STATEMENT OF THE CASE

1.         The Applicant seeks a remedy from this Honourable Court for the violation of her             rights under sections 7,8,9,10 and 15 of the Canadian Charter of Rights and       Freedoms, in that

                        1.         the primary CBSA officer’s referral of the Applicant

                                    to secondary was tainted by racial profiling – s.15 breach;

                        2.         consequently, the Applicant was subjected to an unconstitutional

                                    search and seizure  and the denial of her right to counsel;

                        3.         the seized evidence was obtained as a result of a serious breach 

                                    of the Applicant’s Charter Rights and is by any standard a 

                                     serious affront to her dignity as a person and must be excluded 

                                     in order to preserve the integrity of the administration of justice.

                       

PART II:  THE FACTS

2.         The Applicant is a woman of African descent originally from Jamaica with noticeably dark skin.

                                                             Applicant’s Affidavit at para 4

 3.         She is a Landed Immigrant whose sickly father and some other relatives reside in Jamaica and therefore require her to travel there occasionally.

                                 

                            Applicant’s Affidavit at para 8

                                                           

4.         In 2014 the Applicant took made two visits to Jamaica.  The first in August, 2014 for three weeks in order to care for her elderly father who had suffered a debilitating stroke and then in November, 2014 when her aunt, Ms. , who she had arranged to assist with her father’s care in Jamaica, passed away and she attended her funeral.

                                                            Applicant’s Affidavit at para 9-12

5.         On or about November 17^th, 2014 the Applicant was returning from Jamaica and passed through customs at Lester B. Pearson International Airport and encountered Officer 1 of the Canada Boarder Services Agency. According to Officer 1 – “At 2120 hours passenger -- approached my counter.  -- is female, black complexion, was wearing glasses and a beige hoodie. ...I asked her the purpose of her trip, she told me she attended her aunt’s funeral.  She then voluntarily wanted to show me the funeral invitation card but I told her that there is no need.  I asked -- what her occupation was, and she told me she was unemployed.  I then asked her who had purchased her ticket to go to Jamaica, she told me her mom who had paid cash at the travel agency.  I asked her how many checked luggage she had, she told me one. During my interview, I noticed --’s voice was trembling and she was avoiding eye contact with me.”

                                                Officer 1 Narative – Motion Record Tab 1

6.         According to Officer 1 she made the decision to send the Applicant for secondary search for prohibited drugs on the following basis:  “At this point, I decided to pink high highlight her ABC printed declaration card for the system’s immigration hit, stamp over the free to leave code and write R555 at the bottom, referral for drugs based on the following indicators:

            - arriving from a drug source country

            - cash paid ticket        - unemployed

            - voice trembling        - no eye contact    - voluntarily wanted to show me the funeral’s memorial/invitation card

                                                            As above

7.         As a result of Officer 1's referral to secondary, the Applicant was subjected to a search of her luggage and a quantity of cocaine clandestinely sealed in food seasoning and coffee packaging was located by the CBSA officer conducting the luggage search. Officer 2 was then tasked with conducting a personal search of the Applicant which included a fully intrusive strip search which included requests to cough and squat to propel any matter potentially lodged in the Applicant’s vagina or anus.

                                                            Inidictment – Applicant’s Affidavit

                                                            Testimony of Ofc 2 at p.2

                                                            Applicant’s Motion Record – Tab 2

8.         The Applicant was provided her right to counsel following the search of the luggage and strip-searching.

                                                            Applicant’s Affidavit

  Pretext and Racial Profiling

           

9.         The Applicant took two trips to Jamaica in 2014.  Once to visit and seek care for her sick elderly father who was hospitalized from a severe stroke in August and another time when the person she entrusted to take care of him passed away and she attended her funeral some three months later.

                                                            Applicant’s Affidavit para 9-12

10.       Contrary to Officer 1’s evidence, her ticket was not purchased by a third party for cash. She received a loan from her mother and purchased the ticket herself with a combination of cash and a debit payment from her bank account.

                                                            Applicant’s Affidavit at para 3

                                                            Flight Centre Invoice/Statement – Ex A

11.       Officer 1 made a sarcastic comment to the Applicant looking her straight in the eyes, smiling and stating, “your mommy must really love you to buy you a ticket to go to your aunt’s funeral.”

                                                             Applicant’s Affidavit at para 16

 12.       Officer 1 scanned the Applicant up and down with her eyes in a manner which conveyed to the Applicant a sense of contempt and intolerance which she had previously experienced causing her to feel that Officer 1 was of the mindset that she was not deserving of respect on account of her race, place or origin and the fact that she was not working at the time.

                                                            Applicant’s Affidavit at para 18

13.       Contrary to Officer 1’s evidence, the Applicant’s voice was not trembling and she maintained proper eye contact with her.

                                                            Applicant’s Affidavit at para 19     

14.       Contrary to Officer 1’s evidence, the Applicant did not volunteer to show her a funeral invitation. Instead, the Applicant presented her with a bundle of documents relevant to her inquiry and the bundle included a copy of the funeral program.

                                                            Applicant’s Affidavit at para  20-21

                                                            Funeral Program – Exhibit B         

             PART III:   ISSUES

15.

(i)         Was the decision to direct the Applicant to secondary tainted by any irrelevant considerations, including racial profiling ?

 (ii)       Assuming the decision to direct the Applicant was tainted by irrelevant      considerations and or racial profiling and the Applicant was detained, searched, arrested, charged and then subjected to an invasive strip search and only thereafter provided her right to counsel – were not her rights under sections 7, 8, 9, 10(b)      and 15 of the Canadian Charter of Rights and Freedoms violated ?

  PART III :  THE LAW

16.       Racial profiling will rarely – if ever – be established based on direct evidence. If it is to be established at all it will be established on circumstantial evidence.                     

                                                R    v.  Brown 2003 Canlii 52142 (Ont. C.A.)

                                                Shaw  v. Phipps 2012 ONCA 155

   

17.       The evidence of Officer 1 in this case presents clear and cogent circumstantial evidence of pretext to conceal a racially motivated decision to direct the Applicant to secondary.  This includes:  1. Clear use of the irrelevant identifier, “black complexion”;  2.  Reliance on “arriving from a drug source country without any attempt to consider and evaluate the Applicant’s reasons for travel; 3. Erroneously concluding that a third party purchased the Applicant’s ticket for case despite the clear evidence to the contrary from Exhibit A – the invoice/statement from Flight Centre presented to the officer; 4.  Officer’s sarcasm and looking at the Applicant with contempt and intolerance; 5. Evidence from Officer’s 2 and 3 stands in stark contrast to Officer 1 on the issue of the Applicant’s visits to Jamaica in the circumstances; 6. Indifference exhibited by CBSA officers to Applicant’s Charter rights.

                                                            R   v.  Brown (supra)

                                                            R   v.  Neyazi 2014 ONSC 6838

18.       Once racial profiling can be established as the reason for sending to secondary inspection, that person’s Charter rights have been violated – calling for a remedy under the Charter.                        

                                                Canadian Charter of Rights and Freedoms – s.15

                                                R   v.  Neyazi 2014 ONSC 6838

                                                R   v.  Smith 2004 Canli 46666

                                                R   v.  Simmonds [1988] 2 S.C.R. 495

Search of luggage:                                                                            

19.       Section 8 of the Charter protects individuals from “unreasonable” search and seizure.  An unlawful search is necessarily unreasonable.  A warrantless search and seizure, where an accused has a reasonable expectation of privacy, is prima facie unreasonable. (Hunter  v. Southam Inc. [1984] 2 S.C.R. 265 at para 22)

                                                R   v.  Neyazi(supra)

20.       The CBSA officers searched the Applicant’s luggage without a warrant and therefore the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable.  (R  v. Collins, [1987] 1 S.C.R. 265 at para 22)

                                                As above

 21.       To establish that the search was reasonable the Crown must prove:

                                    1.         the search was authorized by law;

                                    2.         the law itself is reasonable; and

                                    3.         the manner in which the search was 

                                                 carried out was reasonable.

22.       The evidence in this case most clearly invites a finding that the CBSA officer’s search was unreasonable and unconstitutional.

Right to Counsel:

23.       s.10(b) provides that everyone has the right on arrest or detention to be informed of their right to counsel and to retain and instruct counsel without delay.

                                                Charter and R  v. Neyazi(supra)

24.       The facts here reveal that the Applicant was not provided her right to counsel until after she was detained, arrested, her luggage was searched and she was then subjected to a full strip-search.  This evidence establishes a clear breach of her section 11(b) rights.

                                                            R   v. Neyazi(supra)

Impact of breaches on

Protected rights:

25.                   [216]    A finding of racial profiling is an affront to human dignity.

                                    while this fact will also be relevant at the second stage of the

                                    s.24(2) analysis, at this stage of the analysis the court is

                                    concerned with the prospective protection of the justice

                                    system.  Court must distance themselves from evidence

                                    obtained where racial profiling is involved – consciously or

                                    unconsciously.

26.       On the facts of this case, the seized evidence ought to be ordered inadmissible in order to protect the integrity of the administration of justice plain and simple.  There was simply too much indifference at the lowest level and reckless disregard for the law for this to be condoned by this Honourable Court.

                                                R  v. Neyazi(supra)

                                                PART IV:  ORDER REQUESTED

27.       An Order excluding the seized evidence and dismissing the charge against the Applicant.  Alternatively, an Order staying the Applicant’s prosecution on account of the Charter breaches.

                       

28.       ALL OF WHICH IS RESPECTFULLY SUBMITTED.

                         

January 23rd, 2017 (Amended June 13^th, 2017 per Justice Durno)

                                                                        _____________________________

                                                                        Ernest J. Guiste

SCHEDULE A

1.         R   v.  Brown 2003 Canli 52142 (Ont. C.A.)

2.         Peel Law Association  v. Pieters

3.         R   v.   Smith 2004 Canli 46666

4.         R   v.  Neyazi 2014 ONSC 6838

5.         R   v. Simmonds [1988] 2 S.C.R. 495

   

 NOTE: *This piece is published here as a public service. 

                The lesson here is that sometimes the very 

                bringing of an application seeking a remedy like 

                a stay can be an effective tool in obtaining

                a successful result for one's client even though 

                some legal scholars may opine that one is

                unlikely to obtain a stay if the application is argued. 

                The exercise is not an offer of legal

                advice or a representation that the law as quoted is 

                gospel.

 SCHEDULE B

 1.         Canadian Charter of Rights and Freedoms – s.7,8,9,10 and 15(1)