(Also published today in the Nova Scotia Advocate: https://nsadvocate.org/2021/05/12/crossing-gottingen-street-while-black/)
The first thing to know about Gyasi Symonds’ case before a NS Human Rights Tribunal, is that Symonds was at a great disadvantage. Make no mistake: ten days ago, he won his case of discrimination against two Halifax Regional Policemen who stopped him after he crossed Gottingen St. to get a coffee on a cold January morning in 2017.
However Symonds was at great disadvantage when he fought his case. He had to represent himself.
First: Symonds had no access to a recording of the hearing. He had no transcript of the hearing which took place over 3 days in November 2020. All he had was paper and a pen to take notes when he could. So when it came time to summarize his case, and to ask for remedies for the discrimination, he had to rely on only his memory and a few notes he made during the hearing. He could not afford a transcript as it can cost up to $10,000 —depending on length.
Second: Symonds also had no legal training. He had never before been to a tribunal, or been involved in a court case. He had no experience of legal research or citing legal precedents. Both the respondents’ lawyers – who work for HRM – and the lawyer who represented the NS Human Rights Commission had training and experience. They also had assistants, clerks and secretaries. Symonds, who works as a caseworker for the Dept of Social Services, had no one but himself. Unlike the lawyers for the police, the lawyer for the NS Human Rights Commission and the adjudicator Benjamin Perryman (who was also a lawyer), Symonds had never conducted direct examination nor had he cross-examined a witness. Symonds had to represent himself throughout the hearing with next to no legal help or advice.
Third: As capable as he was – Symonds has 3 university degrees including a Master’s degree in Education – he had to proceed on unfamiliar terrain — often without a compass. Symonds was self-representing, which some media including the Toronto Star and The Globe and Mail totally ignored. Though Symonds started out on a back foot, ultimately, he won.
Why didn’t Symonds get a lawyer?
Some could ask: Why didn’t Symonds have a lawyer represent him? The answer is it would have been prohibitively expensive for him to have hired a lawyer. Three days of court time, plus preparation, plus writing a brief, then a rebuttal of HRM’s brief would have cost Symonds at least $10,000. And during the nearly four years it took for his case to get to Tribunal, there were few indications that he would win. As a matter of fact, few human rights complainants can afford a lawyer – so relatively few complainants even consider seeking justice for discrimination.
The NS Human Rights Commission’s lawyer was technically on Symonds’ side, but the Commission’s lawyer cannot represent the complainant. The Commission’s lawyer is only supposed to represent the interests of the people of NS—not of a particular complainant.
There are huge disadvantages to self-represented litigants as Equity Watch points out in its report, Justice Impeded: a Critique of the Nova Scotia Human Rights Regime published in January 2021. As it says,
“Although Boards of Inquiry are somewhat more relaxed than the courts and are used to self-represented complainants appearing before them, they do roughly follow the rules of courtroom procedure. Not infrequently, lawyers for respondents will raise issues of some legal complexity.” (p.32)
Justice Impeded: a Critique of the NS Human Rights Regime
The Critique cites problems cited in a 2012 review of Ontario’s Human Rights Tribunal system. Andrew Pinto enumerates some of the problems litigants who are self-represented face:
• Understanding and navigating the court procedure and litigation process
• How to best articulate their legal position and present their case
• Knowledge of the law and their legal rights
• Concern that the opposing side may take advantage
• Proceedings may take longer
• Relying on judges or adjudicators for assistance, which may lead to a concern of bias or partiality
• Relying on opposing counsel for assistance
• With respect to human rights cases, there are additional concerns including:
o The power imbalance between parties is exacerbated because many applicants tend to come from already disadvantaged groups
o There is a public-interest dimension to human rights proceedings where the importance of the proceeding transcends the private interests of the parties
o Human rights cases can be extremely complex dealing with novel situations and involving constitutional or competing principles of law that sometimes require resolution by appellate courts
o Parties, including respondents, are not permitted to recover costs in human rights proceedings
“The Commission’s legal team could have made that argument, but did not. And Symonds could hardly have been expected to do so. Thus, no matter what their level of legal knowledge, with no outside legal assistance Symonds and many other complainants like him are at a great disadvantage in the human rights system.”Justice Impeded, by Equity Watch
“Even though Gyasi Symonds was very competent in directing his own case, he is not a trained lawyer and had no experience in the courtroom atmosphere. He did not have experience in the workings of a Board of Inquiry, including cross-examination, the difference between testimony and argument, and the use of case law, to mention only a few. While Symonds was aware of the findings of Scott Wortley on the disproportionate stopping by Halifax police of African Nova Scotians, he might not be expected to be aware of the Ontario Human Rights Commission Report finding that Blacks in Toronto are subject to charging, over-charging and prosecution by police heavily disproportionate to their numbers in that city.
In addition to the lawyer-adjudicator at the hearing, Symonds faced a bevy of lawyers representing the respondents (the HRM police) and the Human Rights Commission. Also, as he pointed out, all of those attending the hearing were being paid for their time and services, except for him. In the Symonds hearings, there was a complex argument to be made of systemic discrimination (arguments of systemic discrimination are always complex.) That required legal training and research.
“We are not saying that the human rights regime should become even more juridified (or, to use the vernacular “lawyered-up”) than it is now. In simple, straightforward cases, complainants should be able to make their own arguments, state their own case. On the other hand, if the adjudicators are lawyers and the respondents have lawyers, and if the Commission’s lawyers do not represent the complainant, then the unrepresented litigant is at a distinct disadvantage. (p.33)
“Expenses for the self-represented are another matter that Equity Watch’s report notes from a 2013 report by the National Self-Represented Litigants Project:
…depletion of personal funds and savings for other purposes, instability or loss of employment caused by the amount of time required to manage their legal case themselves, social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming, and a myriad of health issues both physical and emotionally. The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires recognition and attention (p. 34).
Narrative 1: Gyasi Symonds
In addition to the issue of self-representation, the Gyasi Symonds case has two divergent narratives.
Narrative 1: Gyasi Symonds’ narrative. Judy Haiven, attended the hearing, and took detailed notes.
Symonds testified that early on the morning of Jan. 24, 2017, he and four other employees who worked in the MacDonald Building – which houses the Department of Community Services – ran across Gottingen Street to buy coffee at The Nook Café. Symonds was the only black man, the other four were white women.
When he was just outside the door of The Nook, a police officer stopped to lecture him about the fact he had j-walked. Symonds asked if he was under arrest. The officer said no, so Symonds walked by him into the café.
Minutes later, coffee in hand, Symonds left the café. He walked the 20-30 steps to the traffic lights at Cornwallis St., and crossed Gottingen St. when the light was green. He returned to his office.
Narrative 2: the Police
Two policemen, Sgt Logan and Sgt Cadieux, were on street patrol that morning. They walked north on Gottingen on the west side of the street. They saw Symonds cross the street. They said they never saw anyone else crossing — only Symonds. They walked to the café, and held the door open for Symonds. Cadieux told Symonds he had been j-walking and this was a warning not to do it again. Symonds asked if he was under arrest. When Cadieux said no, Symonds refused to engage with him and stepped into the café.
It seems Symonds had ignored the policeman at his own peril. Symonds showed him no deference. And that seemed to enrage Sgt Cadieux.
That set the stage for a second encounter.
Under oath, each policeman said that he saw Symonds dash across the street to his office, boiling coffee in hand, just in front of a bus that was stopped at the bus stop.
As Sgt Paul Cadieux said, after he and Sgt Logan left the cafe’s doorway,
“I turned around, I was half way between the cafe and the intersection, and I saw Mr Symonds with his coffee and he was walking behind us and heading in our direction… to follow our advice — he was going toward the intersection and at that point [I said] look that warning made a difference. … The light turned red and we had to stop. We saw the Metro Transit bus hit the brakes and being thrown forward; he [Symonds] was walking and impeding traffic, and he was 15-20 feet beyond us… he was almost at th emiddle of the road, with his coffee.”From Sgt Cadieux’s evidence at the hearing
This infuriated the cops – because Symonds had flagrantly disobeyed them. They claimed he did not cross at the lights.
As Sgt Logan testified, “We were at the corner of Cornwallis and Gottingen. At that set of lights. Paul [Cadieux] says I want to give him a ticket. We had to wait for the lights to change and we went into the building after Mr Symonds. We went into the MacDonald building. We asked the Commissionaire …the lady we see there every day, We described him.”
Though under Symonds’ cross-examination, Sgt Logan could not recall what Symonds was wearing or what he looked like.
Commissionaire Brodie: “I was relieved [the police] didn’t hurt you – I was glad of that. “
Once there, the policemen demanded the attention of the Commissionaire, Carolyn Brodie. She happens to be Black. According to Brodie, the policemen’s behaviour was
“very disturbing. What I can recall, they came into the building… The Commissionaire’s desk is right in the middle. [They asked] ‘Did you see a black man wearing a toque come into the building?’ … and I didn’t know who they were referring to. They wanted to go upstairs but the elevators are locked. I said I don’t know who [they meant].”
Brodie went on to testify,
“It’s a high traffic area. Most of the staff coming in– I didn’t know who they were talking about. I said, I can’t allow you to go up to the workplace, into that area. They stayed and were persistent. One said, ‘Well he jaywalked and we were just trying to save his life.”Commissionnaire Carolyn Brodie, at the hearing
“I’m outside constantly for patrols, the police pass by constantly. I see people j- walking on a regular basis, I see it constant. I wonder why you want to save the life of a black man in a toque? I’ll see what I can find out, I said. The police officer then followed me around. I went into the reception area and I know there is a supervisor there. He [the policeman] sat in the reception area with his legs crossed staring me down – She [the supervisor] called upstairs and [Gyasi Symonds] came down. I was disturbed behind my desk –their physical actions were like they were challenging you. It’s where the gun was, I saw his hands…
“When you [Symonds] came down you didn’t have on your toque. I said you were a professional in the building at that time. I don’t remember the whole conversation, but I do remember you [Symonds] said, ‘You’re coming into this workplace and there are others who commit serious crimes.’
They called down to the station to do a background on you. I was in shock in what I was seeing and hearing. They wrote down a ticket and I was relieved they didn’t hurt you – I was glad of that.“
Brodie was asked how she felt?
“Shaken, yes because I didn’t know what was gonna happen with them being so persistent –I didn’t know what was going to happen.”
Symonds asked her how long was the interaction with the police?
“Approximately maybe 30-45 minutes at least, I’m sorry. From the time they were persistent and finding out who and said they were trying to save his life, I’d say almost 45 minutes.
“I thought the whole thing was extreme. I didn’t understand the behaviour of the police officers at all. I see a lot of people j-walk all day and the police go by and I see no one being stopped. I tend to lean toward the idea that [there is] some kind of bias to walk in the door and single out black man in a tuque. “
“I have interaction with the police in and out of the building–a lot of interaction with them, I’ve never had them treat me like that. I’ve had respect as a commissionaire… They were demanding to get into building, they weren’t hearing me, they were following me around, what did I do?”
Brodie explained that after he was summoned, Symonds came downstairs from his office to the lobby
“At the beginning, when he came down… at the beginning of the interaction they were challenging him, … Mr Symonds was calm, cool, collected, didn’t raise his voice, it was impressive as I wanted to raise mine.
I thought –is all this necessary – if you have someone you know he’s a professional why are you being so rude and demanding?”
Back to Sgt Logan, who insisted (under oath) that Ms Brodie show him and Sgt Cadieux a surveillance tape of the lobby. Logan testified,
Kendrick Douglas, lawyer for the NS Human Rights Commission, asked him under cross-examination, “Were you able to identify the gentleman?”
Sgt Logan said, “That’s how she [the Commissionaire] knew the floor he [Symonds] worked on, yes he works on the second or third floor, we’re not allowed in the building. I remember she called upstairs and asked for him to come downstairs, a few minutes later he came downstairs.”
Sgt Cadieux also backed up Logan’s version of events. He said Brodie showed him the videotape which allowed him to identify Symonds, “She played back video, we did watch, she did recognize Mr Symonds and didn’t provide a name. She phoned upstairs.”
There is one problem with that sworn evidence. There was no video tape– not then, not now, not ever. Ms Brodie had already testified to that. And she also testified to the fact that she never called upstairs; Brodie did not know who Symonds was. She thought a supervisor in the reception area must have called upstairs and someone figured out it was Symonds.
Another part of the narrative concerned Sgt Logan’s gun. That’s right, according to Carolyn Brodie, Logan’s hand was near his gun just before GS came down the stairs to the lobby to meet with police. It worried her.
“I always have my hand resting on it. It’s a control thing. We have so many tools on our belt, there was no need to have our hand on our guns.”
Brodie: the policemen were “demanding, they weren’t hearing me, they were following me around…”
“I have interaction with the police in and out of the building– a lot of interaction with them, I’ve never had them treat me like that. I’ve had respect as a commissionaire… They were demanding to get into the building, they weren’t hearing me, they were following me around, what did I do?”
Brodie explained that after Symonds was summoned, he walked downstairs to the lobby.
Another thing the media didn’t zero in on was Sgt Logan’s gun. Commissionaire Carolyn Brodie noted that Logan’s hand was near his gun just before GS came down the stairs to the lobby to meet with police. She said she was nervous about it.
When asked if he had his hand on the gun, he responded, “I always have my hand resting on it. It’s a control thing. We have so many tools on our belt, there was no need to have our hand on our guns.”
When asked if there were any other complaints about Logan’s conduct also stated, Any other complaints this officer received. Logan said,“This is the only complaint I received being a year on Gottingen St. I treat people they way they treat me.”
Here’s more of the exchange between Symonds asking the questions, and Sgt Logan responding.
Q There is talk or discussion about implicit or unconscious bias.
Q: …. when you are not aware you are being that way to the individual.
A: I can only guess
Q: Unconscious bias could arise in any situation.
Q; Are you aware of issues between HRP and the Black community, since about 2016.
Answer: I don’t believe there are but that’s my opinion.
Question: Are you familiar with the Wortley report?
Answer: I didn’t read it.
Question: It says that Blacks are 6 times mores likely than whites to be stopped…
Answer: I stop whoever they are for whatever they did. Doesn’t matter to me who’s driving. I don’t pay attention to that kind of stuff.
Q: Does it surprise you?
A: No it doesn’t surprise me because most of our clientele is Black in HRM in general.
So much for unconscious bias.
Finally, Logan was asked about his training in racial issues.
He said his training was almost exclusively during the 10 years he spent in the Military Police prior to his time with HRP. He testified, “We did the training every year, before going to Afghanistan; they brought in an Afghan family that taught us their ways, so we can live with them without making or stepping on their toes…not knowing their [Afghani] culture, do something inadvertently, so we could learn their culture and parts of the Koran. ”
To that Gyasi Symonds quipped “You know how to treat Afghan people and you come from over here but you don’t know how to treat Black people here.”
Let’s think about this…a $400 ticket for crossing Gottingen
Think about this: Symonds was lectured to and warned by two cops in public in front of the café,
pursued by the two cops across the street to his workplace, called down to his workplace lobby by two uniformed and armed police – who used threatening behaviour toward him and also toward the Commissionaire, made a public spectacle of giving him a $410 ticket for crossing Gottingen St to get a coffee.
Commissionaire Brodie was afraid for Symonds’ safety. She felt the police were threatening. Both cops touched their holstered guns. Symonds was also afraid the wrong move, or the wrong words could get him hurt or killed by the police. We know it happens to Blacks.
For Symonds, getting arrested could mean loss of his job
Symonds was afraid the cops would arrest him – never mind that there was no reason. Getting arrested could have cost him his job at Social Services. And it would also mean finding thousands of dollars for a lawyer to fight for him in court. If he had lost his job, Symonds could not pay his mortgage. He is a single parent with a daughter to support. Symonds was also concerned he might lose his job if his superiors inferred he was dangerous or in trouble with the law, when they saw him cornered by the police. He was afraid the sight of the cops interrogating him in the public lobby would cost him a promotion.
Would this have happened to any white law-abiding, government worker in Halifax? Would that white man have had the same fears? It’s almost impossible to say he would.
Racial bias in policing in Halifax is evident. There is ample evidence of Blacks being street checked by police six times more often than whites. Blacks are subject to more police surveillance; Blacks are much more often than whites victims of police misconduct, such as beatings false arrest, imprisonment and racial profiling.
In Symonds’ case, the police outright made up their alternate narrative.
There was no videotape of Symonds in the lobby of his office building. The police did not see any videotape. Symonds did not dangerously run across Gottingen St in front of a bus, with his hot coffee in his hand on his way back to his office. The bus did not squeal to a stop to avoid hitting him.
Symonds refused to simply pay the $410 fine for j-walking. He paid the fine and he took his case to a NS Human Rights board of inquiry (also called a Tribunal). Equity Watch’s report, Justice Impeded, makes 25 recommendations to improve the NS Human Rights regime (p.46-50).
5 Recommendations to Improve how NS Human Rights deals with complainants
The following five recommendations could have helped Symonds and could help other complainants. Here are the five.
1. There has to be a tripartite set of agencies composed of
a) A Human Rights Commission, whose responsibility will become both more restricted and broader at the same time: research, analysis, education, monitoring and public advocacy
b) A permanent Tribunal, with direct access by complainants, which would process complaints, arrange for mediation and settlement where possible, and ensure, as in Ontario, that no applicant or respondent is denied the opportunity to make oral submissions to and to receive a written decision from an appropriate decision-making group
c). A Human Rights Legal Support Centre which would provide legal and paralegal assistance to claimants, on the Ontario model
2. This has to come as a package. “Like a stool with three legs, the absence or weakness of one leg jeopardizes everything. Each of the three agencies must be supported and not starved of resources. For example, the Commission must have a serious research capacity and commitment to addressing systemic discrimination. The Tribunal must be staffed with competent adjudicators/mediators. The legal support centre must offer effective assistance to complainants.
3. If there is a finding by the Tribunal or an admission in a settlement that a climate of systemic discrimination exists with a particular respondent for a particular class of people, then in future litigation it will be assumed that all members of that class of people subject to the systemic discrimination, without need for new proof. For example, if systemic discrimination against women is found, then it will be assumed that it applies to all women, unless the respondent can prove otherwise.
4. All stages of the process at the Tribunal should have clear service delivery standards/time limits, including lengths of investigations. Symonds case took four years to get to Tribunal.
The Commission should establish liaison committees with each equity-seeking community, not only to promote the work of the tripartite agencies, but also to encourage members of those communities who might otherwise be hesitant to make complaints, to overcome their hesitation and use the Tribunal for complaints and the Commission for investigation of systemic discrimination, as well as encourage community members to do likewise.
5. A move away from one-size-fits-all “diversity and inclusion” emphasis in the Commission’s remedial efforts and public education a. We recommend that education programs concentrate on equity and behaviour modification through the 3Ps (processes, policies and procedures) rather than things like “diversity” or “anti-bias” as there is no credible research buttressing its sustained effectiveness. Diversity and anti-bias are not the functional equivalents of equity and it is equity that can make tangible improvements in the lives of Nova Scotians. Amelioration of systemic discrimination and harassment should not depend on changes in individual consciousness or virtue.
Gyasi Symonds did what few other complainants can or will do. He risked a lot to go before a public Tribunal about discriminatory treatment he suffered at the hands of Halifax police– because he is Black.
Few would suggest that any police force is free of racial discrimination. Appeals to individual officers, diversity and inclusion training will not make a major change to the culture and the practice of policing. As Equity Watch notes: there has to be a commitment to the 3Ps — processes, policies and procedures to seriously combat racism in the police force.
We cannot treat the police force in Halifax as though it has a few bad apples. We cannot assume that racism within the police — or any institution — is the exception.
Featured Image: Preston, 2007. Designed by David Woods. Quilted by Laurel Francis. Pieced, appliquéd, machine- and hand-stitched, hand-dyed quilt with photo transfers, 1.47 x 1.32 m. Images on quilt courtesy the Black Artists Network of Nova Scotia.