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Lawyer’s racial profiling case argued at appeal court

|Written By Yamri Taddese

What is considered evidence of racial discrimination was at the heart of a heated debate at the Ontario Appeal Court this month in a case involving two black lawyers who believe they were racially profiled.

Selwyn Pieters and his counsel Geri Sanson at the Court of Appeal.

In May 2008, Selwyn Pieters, Brian Noble, and an articling student were sitting in the lawyers’ lounge in a Brampton, Ont., courthouse. Several other lawyers were also in the lounge when a court librarian approached just the three men asked them if she could see their IDs to verify they were lawyers.

The librarian, Melissa Firth, told them the lounge is exclusively for lawyers. The incident quickly turned into an altercation when Pieters said Firth was targeting the three of them because they were black.

In December 2010, an Ontario Human Rights Tribunal ruled Pieters and his two colleagues were racially discriminated against. It cited a complete lack of non-discriminatory reason to ask the applicants for identification.

But a year later, the Ontario Divisional Court completed a judicial review and overturned the tribunal’s decision, concluding the tribunal did not consider all evidence available.

The debate was on again in late December after Nobles and Pieters took their case against Firth and the Peel Law Association to the appeal court. Their case is largely based on circumstantial evidence, including the way the men were approached.

“It’s the manner in which it was done,” said Geri Sanson, who is representing Pieters and Noble. She said Firth was headed to the robing room of the court when she suddenly rerouted to the lounge and asked to see the men’s identification.

“Nobody else was asked for ID,” Sanson told a fully packed courtroom, adding Firth did not introduce herself when she approached the men in a “confrontational” fashion.

Pieters was also talking on his phone when Firth interrupted, said Sanson.

For its part, the defence argued Firth may have approached the men first simply because they were sitting closest to the door.

She could have also headed towards them because she was told people had been inappropriately moving the furniture around in the lounge earlier where the three men were sitting, said Mark Freiman, the respondents’ counsel.

“The fact that people in society are discriminatory cannot be used as evidence that a particular [person] was discriminatory,” argued Freiman.

Freiman acknowledged that circumstantial evidence isn’t second-class evidence but that it would be a stretch to use “freestanding racism in society” as a basis to decide if one particular person acted out of racism.

When Firth was asked why she singled out the men, she said it was because she knew the rest of the lawyers in the lounge.

“That was found to be a lie,” Sanson argued.

“It’s almost like the [Divisional] Ccourt is asking for direct evidence,” said Sanson while speaking to reporters outside the courtroom.

“The tribunal did a thorough and painstaking work of reviewing the evidence and they inferred that there was racial discrimination.”

Marvin Kurz, a lawyer for the intervener B’nai Brith Canada, called the tribunal’s reasoning “dangerous.”

“Human rights law has to be seen as a two-way street,” he said. “There has to be a real opportunity to defend yourself. You can’t presume discrimination, you have to prove it.”

After the hearing, Pieters called this line of argument “shameful” and “a total betrayal of victims of discrimination.”

“I understand how lawyers are treated,” he said. “[Firth] would not have treated a white lawyer that way.”

The appeal court’s decision will set an important precedent for future racial discrimination cases, Pieters added.

“This appeal is about the right to dignity so that black professionals can go about their business without scrutiny . . . we have worked in the same way as Caucasians to get to where we are.”

  • uptown yout
    Until the white folks who speak negatively in the presence of their young children, also the secret meetings that are being held with the purpose to single out minorities (black folk in particular). The cycle of racism, racial profiling, and bigotry will never stop. I have lived here in Canada for 38 years now, and the only days I do not experience any of the above isms is when I stay home. That is just sad, but it is the reality.
  • Pershing Kass
    We all get asked for ID and it was this woman's job to do that. Racism is I think, a refuge of scoundrels
  • Lawyer
    I have been asked for ID in a counsel lounge and have been asked to step outside of a packed criminal court after the body of the court was informed that if you were not counsel and did not have a seat, you should wait outside until your matter is called. BTW, I was wearing a suit, and standing amoungst other lawyers, and yes I am a black male lawyer. Not everyone has or expresses a racial bias, however some people do. Most of the time these people get away with it and it becomes habit. It is ridiculous to assume that it does not exist, accordingly every now and then, some will get caught. Case in point!
  • Louise Vrebosch
    I get asked for ID every time I go into the Brampton lawyers' lounge unless I'm wearing my robes.
  • Nadia Senyk
    Have been in lawyers lounges in Toronto and Ottawa over many years and have never seen anyone being asked for ID. Nor have I seen librarians policing the lounges. Talk about being singled out! Racism is insidious. Enough!
  • Chris Walsh
    Who knows why anyone other than a lawyer would be in the lawyer's lounge? Who cares? It happens. Have you ever been to the Brampton courthouse? I have. Most days for nearly a decade. I have no doubt these guys did stand out. Not because they are black, but because as far as I can recall I have never seen them there (at least Pieters, based on his photo), and I recognize just about every other lawyer I see in the lounge when I pass by. I too have been asked for ID by staff who did not recognize me. The issue in my opinion is that your opinion is uninformed and based on your own assumptions and prejudices. Unjustly attributing racist motives is no better than racial profiling itself. In fact, it is racial profiling.
  • M A Bardos,
    Pure profiling at its worst. If applicable, she should be sent to community work, e.g., picking up trash in a downtown area.
  • linda hall
    Why would anyone other than a lawyer be in a lawyer's lounge in a court house? Secondly why would the librarian feel it was her job to suspect only three people in the whole room as not having a right to be there. The issue in my opionion is very simple. Because they stood out! People often have prejudices they are not aware of and they flare up when something or someone stands out at one of their low moments. She may have been angry at something else and when she saw those particulars people it came out.
  • Anonymous
    Why would she think it was her job? Because it WAS her job. Read the decision before you jump to conclusions. The tribunal accepted as a fact that asking for ID was part of her required tasks, and that she did so often at the request of her employer. That same day, she had asked several white people for ID. Please, read the whole facts before you judge people.
  • JP
    It is about time this issue be addressed and not swept under the rug as if it does not exist here in O CANADA...
    It happens and will continue until we all stand together and say "ENOUGH"
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