By PATRICK HUNTER
Our community has long talked about the possibility of suing institutions in an effort to turn the tide on racial discrimination as it is practiced in those institutions and which greatly affect African Canadians. The class-action suit filed against the Toronto Police Service, the Peel Regional Police and the Durham Regional Police which alleges that these services unfairly target young African Canadians is a welcome move. It is – or should be – a signal that things are about to change.
Launching class-action lawsuits against the Toronto District School Board, or its predecessor Toronto Board of Education, because of what many believe were rampant discriminatory practices which have affected the education of young Black students – including unfair suspensions and expulsions – have been talked about in the past. Suits against the police for racial profiling have also been talked about. So, too, have lawsuits against discrimination within the Ontario Public Service. And there were others. However, the cost – among other things – of mounting these actions has been perceived as prohibitive thus sidelining the idea.
Meanwhile, other communities have taken the same steps, here in Canada, which have resulted in either a settlement or court enforced changes.
The Assembly of First Nations filed a lawsuit against the federal government on behalf of the survivors of residential schools to be a participant in the settlement negotiations. The Chinese Canadian National Congress filed a lawsuit seeking compensation for the Head Tax and Exclusion Acts. Both communities achieved some satisfaction. One can debate the impact of the lawsuits in obtaining the results, but the fact remains that some satisfactory outcome was achieved.
Ontario has, as do other provinces and the federal government, a Human Rights Code and processes by which discriminatory actions may be assessed and remedied. While those processes have resulted in a number of confirmations of discriminatory practices and have provided compensation for claimants as well as demanded changes that addressed those practices, there is a sense that they are isolated. Other organizations with similar behaviours did not feel encumbered to make appropriate changes.
In most instances, those rulings were the result of specific failures within a particular workplace. Other workplaces did not investigate and make changes on their own initiative, based on those rulings, whether in the public or private sector unless they were challenged.
These class action lawsuits, filed by Dr. Munyonzwe Hamalengwa on behalf of the Black Action Defense Committee (BADC) and others, do not make this a fait accompli. A judge will have to rule on their validity, certifying that it is representative of a class. This is a preliminary step, if you will, to ensure that this is not a frivolous action and that it has merit to proceed. In the meantime, it provides the necessary publicity that is needed to attract participants who feel they have been wronged by the police’s “carding” activities, and will provide the necessary impetus that will identify those and other participants as a class.
In the original filing of the case in Toronto, the Toronto Police Service and its chief, Bill Blair, and the Toronto Police Services Board and its chair, Alok Mukherjee, were named in the suit. The Ontario minister responsible for community safety and the Ontario government have since been added.
Noted criminal lawyer, Selwyn Pieters, has argued in a blog that this is unlikely to proceed.
“Unfortunately, the statement of claim appear to be hastily drafted, not properly constructed and some of the remedies sought here would more likely to be able to be asserted in the context of an Application.”
In other words, there is not sufficient grounds on which to certify.
Nevertheless, from a political standpoint, the concern has been raised, action taken, and the matter has received some publicity. Even if the certification does not proceed, one can hope that the parties will be forced, at some point, to respond to the charges. The only problem is that those responses will come with the usual platitudes that indicate a denial of racial profiling intent, the standard approach of stating that it will not be tolerated and anything else that would be designed to protect their “integrity”.
There have been many greater successes for class-action discriminatory suits in the United States by African-Americans. A most recent win happened in New York where a judge found that the “stop-and-frisk” program the police were carrying out was unconstitutional. Coca Cola was also spanked a few years ago as a result of a lawsuit brought on by four former employees for discriminatory practices. There were others.
Taking to the courts has not been the preferred choice, it seems, by the African Canadian community. The African Canadian Legal Clinic (ACLC) “provides advice and represents African Canadians in a number of legal forums through test cases” says its website. So far, it is not a part of this suit. I wonder why?