CRARR CIVIL RIGHTS CASES BEFORE THE COURTS
CRARR is resorting legal challenges as a way to fight against racism more effectively. Despite public discourse on equality and integration, and even with many equity laws and policies adopted, with the best of intentions, these grand notions of human rights and justice fail to be translated into daily practices.
As a result, it has become necessary to resort to legal actions to fight discrimination. There would not have been any progress in civil rights, and particularly in the promotion of equality, if litigation had not occurred. This was the case of racial desegregation which occurred in the United States in the 50s, and was also true with gay marriage in Canada, which became legalized this past decade.
CRARR seeks, through its service for victims of discrimination and legal interventions, to provide effective protections of victims of discrimination, expand civil rights jurisprudence and incorporate innovative social science data on race and other discrimination in court decisions. We encourage you to get acquainted with these CRARR-related cases, to participate in hearings as observers and interested citizens, and, depending on your resources, intervene in the cases where permitted by law.
Please read our main News section for update on our active cases.
January 9, 2015, 9:30 am
SUPERIOR COURT OF QUEBEC
Montreal Court House, 1 Notre Dame East, Room TBC, Montreal
KOFI NORSAH v. COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE DU QUÉBEC et al
Discrimination based on sexual orientation intersecting with race in training
Nature: Hearing on the Respondent’s Motion to dismiss a gay Black student of Ghanaian descent from McGill University, whose complaint of discrimination based on race intersecting with sexual orientation was unreasonably dismissed by the Quebec Human Rights and Youth Rights Commission. Background: Mr. Norsah, a social work student, challenged his field supervisor’s instruction not to publicly affirm his sexual identity in his professional relationship with a Black woman, tensions arose and his internship was eventually terminated. He filed a complaint of discrimination with the Human Rights Commission, which at first did not accept the complaint because “sexual orientation is your private life, and … any regular employer is entitled to ask their staff not the share their private life with their clients.” The Commission reversed its position after Mr. Norsah protested, investigated the case and three years later dismissed it due to lack of evidence. Claiming that the Commission committed serious errors of fact and law in handling his complaint (for instance, applying the intent-based test of discrimination instead of the effects-based test; failing to apply an intersectional analysis by treating his race and sexual orientation separately; admitting a second supervisor’s negative testimony against him even when it was formally repudiated by the McGill School of Social Work), Mr. Norsah is also seeking $15,000 in damages against the Commission for gross negligence in handling his complaint, without having policy guidelines on intersectionality and public affirmation of LBGT identity in employment and education. The Human Rights Commission moved to dismiss Mr. Norsah’s application for judicial review on the basis of several grounds, including its discretionary administrative authority beyond judicial scrutiny and its legal immunity from lawsuits. What's At Stake: The right of racialized LGBT persons to be effectively protected from intersectional discrimination. The duty of a human rights commission to investigate complaints of discrimination in compliance with case law on equality. The right of all LGBT employees and students in Quebec to be “out” at work, especially those in a professional helping relationship, because there is yet any policy on public disclosure and affirmation of sexual identity in a helping relationship (according to the Canadian Association of Social Workers), yet the Commission indirectly upheld the supervisors’ position.
January 23, 2015, 9:00 am
SUPREME COURT OF CANADA
301 Wellington Street, Ottawa
COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE, et al v. BOMBARDIER, et al
Ethnic Discrimination and Racial Profiling in Employment
Nature: CRARR’s Intervention in a case involving racial profiling and ethnic discrimination in employment. Background: Javed Latif is a Canadian of Muslim Pakistani origin with 25 years of experience as a pilot. He was offered a job at Bombardier as pilot of a Challenger aircraft but was required to complete additional training, part of which would be conducted at the Bombardier Aerospace Training Center in Texas. He was turned down for his training in the U.S. because he was considered a national security risk by U.S. authorities; consequently, he was denied training in Canada. The Quebec Human Rights Tribunal ruled that he was a victim of ethnic discrimination and racial profiling and awarded him more than $300,000 in damages. The Court of Appeal of Quebec struck down the lower court decision, partly on the grounds that the Quebec Human Rights and Youth Rights Commission (acting for Mr. Latif) failed to show the causal link between his ethnic or national origin and the discriminatory practice, and that the U.S. policy aimed at non-U.S. citizens in general and did not target Muslims or Arabs. What’s At Stake: The rights of victims of discrimination in Quebec, since the Quebec Court of Appeal requires a higher proof of “causal link” for discrimination, which reflects the influence of the Quebec civilist tradition and which is tantamount to proving intent. Meanwhile, in Peel Law Association v. Pieters, the Ontario Court of Appeal rules out the requirement of a “causal nexus” to prove race discrimination or profiling, reaffirming the traditional legal position that one only needs to prove that a ground such as race be “a factor.” CRARR’s intervention focuses on this inconsistent evidentiary requirement and invites the Supreme Court to establish a nationally consistent and liberal approach to proving discrimination.
January 26 & 27, 2015, 9:00 am
CANADIAN HUMAN RIGHTS TRIBUNAL
Federal Court Building, 30 McGill Street, Montreal
JEAN-MARIE PAUL et al c. GARDA
Racial and Ethnic Discrimination in Employment
Nature: Mediation in five cases filed by CRARR with the Canadian Human Rights Commission in 2012 on behalf of five Haitian security guards hired by Garda and placed with the Immigration Prevention Center, operated by the Canada Border Services Agency (CBSA). Background: Garda, one of Canada’s largest private security firms, adopted a policy on language in the workplace that forbids the use of non-official languages, even in private conversations between the guards, the violation of which resulted in sanctions (including suspensions without pay). Since guards of Haitian backgrounds constituted the sizeable proportion of guards at the Center, they could no longer talk to one another in Creole, even during lunch breaks. Some of these guards spoke Creole in private conversations and were reported by non-Haitian colleagues to management, who imposed sanctions. The guards’ union did not challenge this discriminatory language policy. What’s At Stake: The authority of an employer to prohibit minority staff from speaking to one another in their mother tongue at the workplace, since immigrant and racialized people are often forbidden to speak their mother tongue at work and in schools, much like Aboriginal children in residential schools in the previous century.
February 17, 2015, 9:30 am
SUPERIOR COURT OF QUEBEC
Montreal Court House, 1 Notre Dame East, Room TBC, Montreal
TOMEE SOJOURNER v. CONSEIL DE LA JUSTICE ADMINISTRATIVE et al
Judicial Bias based on Race, Gender, Sexual Orientation and Gender Identity
Nature: Hearing on a Rental Board Judge’s application to quash a Superior Court decision rendered in favor of an English-speaking Black lesbian, who had applied for judicial review of an earlier Administrative Judicial Council decision regarding her complaint against the Judge. Background: Ms. Sojourner filed a complaint of judicial bias with the Council against Judge Luce De Palma after being called by the latter several times “Mr.” during a Rental Board hearing and told that “It’s probably your hair.” The Council dismissed her complaint which, in Ms. Sojourner’s opinion, failed to correctly apply the effects-based test of discrimination and the intersectional analysis. The Superior Court struck down the Council’s decision and returned the case to the Council for a re-hearing. Judge De Palma presented a motion to retract the Superior Court decision based on several grounds, claiming that she was not notified of the judicial review application. What’s At Stake: Whether intent is still an evidentiary requirement, or lack thereof, for discrimination cases; whether intent, or the lack thereof, is a valid defense for respondents in a discrimination case; and whether the intersectionality analysis must be correctly applied. The Superior Court decision marks the first time that a court in Quebec addressed discrimination against a racialized LBGT person and gender identity discrimination; it also lends judicial support in Quebec to the notion of intersectionality, a foundation of civil rights and equality law in the last twenty years that was affirmed by Canadian courts.
February 18, 2015, 9:30 am
QUEBEC HUMAN RIGHTS TRIBUNAL, Montreal Court House, 1 Notre Dame East, Suite 13.03, Montreal
CDPDJ FOR FARID CHARLES v. VILLE DE MONTRÉAL (SPVM) ET AL
Racial Profiling by the Montreal Police
Nature: Mediation in the case brought by the Quebec Human Rights and Youth Rights Commission on behalf of Farid Charles, an English-speaking Black male who was a victim of racial profiling. Background: Mr. Charles was violently arrested, assaulted and abusively fined by two Montreal Police officers for “not being able to justify his presence” at a shopping center, as he was waiting in his friend’s car while his friend was buying take-out food in a Caribbean restaurant. The Commission recommended $33,000 in moral and punitive damages, but the City of Montreal refused to comply. Both officers involved have already been subject to sanctions and suspensions without pay by the Police Ethics tribunal.What’s At Stake: This is the first time that a racial profiling case is brought before the Quebec Human Rights Tribunal in which the victim is an English-speaking Black person; the case will provide a unique opportunity for the courts to examine police race relations in Montreal in the last five years, especially in relation to English-speaking Black people.v
February 24, 2015, 9:30 am
QUEBEC HUMAN RIGHTS TRIBUNAL, 1 Notre Dame East, Suite 13.03, Montreal
CDPDJ POUR K.B. c. J.M.
Racism in Lawyer’s Conduct
Nature: Hearing into the case brought by the Quebec Human Rights and Youth Rights Commission on behalf of an Arab Muslim tenant who was the target of slurs and other discriminatory insults based on ethnicity and religion by the landlord’s lawyer. Background: In a housing dispute, the tenant received a letter from his landlord’s lawyer in which the latter made several explicitly disparaging remarks about the tenant’s culture and religion. CRARR filed the complaint of civil rights violations on behalf of the man and the Commission ruled in September that the lawyer had engaged in discrimination and should pay the man $12,000 in moral and punitive damages. The respondent lawyer had already been sanctioned by the Quebec Bar and ordered to pay a fine of $2,000. What’s At Stake: The case is one of the very few times that a licensed professional is brought before the Human Rights Commission for discriminatory conduct, and highlights the fundamental flaw with most Quebec professional orders, whose codes of ethics have no anti-discrimination clauses.
May 12, 2015, 9:30 am
POLICE ETHICS COMMITTEE, 500 René Lévesque West, East, Suite 13.03, Montreal
COMMISSAIRE À LA DÉONTOLOGIE POLICIÈRE c. D.P. et al
Driving While Black – Racial Profiling
Nature: Hearing into the case of Joel Debellefeuille, brought by the Police Ethics Commissioner against two officers of the Longueuil Police Service (LPS). Background: Mr. Joel Debellefeuille, a Black man was driving his White wife and their son in a BMW to daycare in Brossard, a municipality in the South of Montreal, when the couple was intercepted for two police officers who made a U-turn and tailed the couple for eleven blocks, until they arrived at the daycare center. What’s At Stake: The rights of racialized drivers in Longueuil to be free from racial profiling and other discriminatory police practices. This is the second case of racial profiling involving Mr. Joel DeBellefeuille, a Black professional who was stopped and fined in 2009 while driving his BMW in the South Shore municipality by two LPS officers who doubted that a Black man could have a car like his; the case went back and forth between the municipal court and the Quebec Superior Court, and lead to the ground-breaking 66-page court decision in 2012 that provides an exhaustive review Canadian case law on racial profiling. Fines against Mr. Debellefeuille were dismissed because of racial profiling, and both police officers were subjected to police ethics sanctions.