Just because a person from a racial minority gets into a nasty argument over the provision of a service does not mean he has been discriminated against, the Ontario Divisional Court has ruled, in the case of a librarian who asked two black lawyers for identification in a courthouse library.
The ruling on alleged racial profiling, rare because it does not involve police, clarifies that discrimination must be proven, not just assumed because the complainant is part of a minority.
“A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination,” says the judgment, overturning a Human Rights Tribunal finding in the case.
Selwyn Pieters, the complainant and a well-known lawyer on criminal cases in Toronto’s black community, said he is contemplating an appeal.
He and two other black men — lawyer Brian Noble, and Mr. Pieters’ law student, Paul Waldron — were in the lawyers lounge of the Brampton Courthouse in May 2008 when they were confronted by Melissa Firth, a librarian and administrator for the Peel Law Association. She asked them to identify themselves. Only lawyers and law students, not paralegals, are allowed in the lounge. What followed was, by all accounts, an unpleasant confrontation, in which the men proved they were allowed to be there, and accused her of racial profiling.
“What I experienced that day amounts to racial discrimination, to a form of racial profiling that was unacceptable. And the tribunal agreed with me. Some higher court sitting in judicial review said the tribunal was wrong, but it doesn’t change how I felt about what happened,” Mr. Pieters said in an interview Tuesday. “If the judges had a critical, race-based lens, they would have seen it from the perspective of an African Canadian.”
In overturning the 2010 decision of the Human Rights Tribunal of Ontario to award $2,000 to each man for “violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect,” the Divisional Court instead ordered them and the tribunal to pay legal costs of $20,000 to the librarian and to the Peel Law Association, which runs the library.
The three-judge panel found that tribunal vice-chairman Eric Whist unfairly reversed the onus of proof from the complainant to the respondent, and “placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race and colour.” It also criticized the tribunal’s “misconceived” comparison of the librarian’s conduct to racial profiling by police.
Mark Freiman, a former deputy attorney-general of Ontario and an expert in discrimination law, who argued the appeal on behalf of the respondents, said the ruling strikes an important note of caution, which is especially important in a legal system that views discrimination as subtle, hard to prove, and even sometimes unconscious and unintentional. He said the court rightly followed the advice, written by Supreme Court Justice Rosalie Abella, that “not every distinction is discriminatory.”
“Those of goodwill will apply [this latest ruling] and those with bad-will will find a way around it,” he said.
As an activist on racial discrimination, Mr. Pieters has brought other similar complaints. In 1999, he reached a settlement with the Canada Customs and Revenue Agency after he complained about being unfairly targeted for a search of his bags on a train from New York by a 22-year-old white male student customs officer.
He also pursued a claim of systemic bias in the Law School Admission Test, after he was not accepted to the University of Toronto based on his score, and he acted for a youth coalition that tried in 2007 to bring New Black Panther leader Malik Zulu Shabazz to Toronto to speak at a Queen’s Park rally, but failed when he was denied entry to Canada.
National Post
The ruling on alleged racial profiling, rare because it does not involve police, clarifies that discrimination must be proven, not just assumed because the complainant is part of a minority.
“A complainant cannot merely point to his or her membership in a racialized group and an unpleasant interaction to establish a prima facie case of discrimination,” says the judgment, overturning a Human Rights Tribunal finding in the case.
Selwyn Pieters, the complainant and a well-known lawyer on criminal cases in Toronto’s black community, said he is contemplating an appeal.
He and two other black men — lawyer Brian Noble, and Mr. Pieters’ law student, Paul Waldron — were in the lawyers lounge of the Brampton Courthouse in May 2008 when they were confronted by Melissa Firth, a librarian and administrator for the Peel Law Association. She asked them to identify themselves. Only lawyers and law students, not paralegals, are allowed in the lounge. What followed was, by all accounts, an unpleasant confrontation, in which the men proved they were allowed to be there, and accused her of racial profiling.
“What I experienced that day amounts to racial discrimination, to a form of racial profiling that was unacceptable. And the tribunal agreed with me. Some higher court sitting in judicial review said the tribunal was wrong, but it doesn’t change how I felt about what happened,” Mr. Pieters said in an interview Tuesday. “If the judges had a critical, race-based lens, they would have seen it from the perspective of an African Canadian.”
In overturning the 2010 decision of the Human Rights Tribunal of Ontario to award $2,000 to each man for “violation of their inherent right to be free from discrimination and for injury to their dignity, feelings and self-respect,” the Divisional Court instead ordered them and the tribunal to pay legal costs of $20,000 to the librarian and to the Peel Law Association, which runs the library.
The three-judge panel found that tribunal vice-chairman Eric Whist unfairly reversed the onus of proof from the complainant to the respondent, and “placed [the librarian] in the difficult position of trying to prove a negative, namely, that her conduct in the performance of her routine duties was not motivated by race and colour.” It also criticized the tribunal’s “misconceived” comparison of the librarian’s conduct to racial profiling by police.
Mark Freiman, a former deputy attorney-general of Ontario and an expert in discrimination law, who argued the appeal on behalf of the respondents, said the ruling strikes an important note of caution, which is especially important in a legal system that views discrimination as subtle, hard to prove, and even sometimes unconscious and unintentional. He said the court rightly followed the advice, written by Supreme Court Justice Rosalie Abella, that “not every distinction is discriminatory.”
“Those of goodwill will apply [this latest ruling] and those with bad-will will find a way around it,” he said.
As an activist on racial discrimination, Mr. Pieters has brought other similar complaints. In 1999, he reached a settlement with the Canada Customs and Revenue Agency after he complained about being unfairly targeted for a search of his bags on a train from New York by a 22-year-old white male student customs officer.
He also pursued a claim of systemic bias in the Law School Admission Test, after he was not accepted to the University of Toronto based on his score, and he acted for a youth coalition that tried in 2007 to bring New Black Panther leader Malik Zulu Shabazz to Toronto to speak at a Queen’s Park rally, but failed when he was denied entry to Canada.
National Post