COURT FILE NO. CV-10-403894

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MUNYONZWE HAMALENGWA

PLAINTIFF

-and-

(Court seal)

CHRIS BENTLEY, HER MAJESTY THE QUEEN IN RIGHT OF THE GOVERNMENT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF THE ATTORNEY GENERAL; KERRY LEE THOMPSON; MICHAL FAIRBURN; ANDRE MARIN (OMBUDSMAN OF ONTARIO); BILL BLAIR (TORONTO POLICE CHIEF); TORONTO POLICE SERVICES BOARD; JULIAN FANTINO (COMMISSIONER FOR THE ONTARIO PROVINCIAL POLICE); HER MAJESTY THE QUEEN IN RIGHT OF THE GOVERNMENT OF CANADA AS REPRESENTED BY THE MINISTER OF JUSTICE AND ATTORNEY GENERAL OF CANADA.

DEFENDANTS

STATEMENT OF CLAIM

TO THE DEFENDANTS:

A LEGAL PROCEEDING HAS BEEN COMMENSED AGAISNT YOU by the Plaintiff. The claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff)s) lawyer or, where the Plaintiff (s) do(es) not a have a lawyer, serve it on the Plaintiff(s), and file it, with proof of service, in this Court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario.

If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.

Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAISNT YOU IN YOUR ABSENCE AND WITHOUT FURTHUER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

Date: May 28th, 2010

Issued by:

______

Local Registrar

Address of Court office:

393 University Avenue, 10th Floor

Toronto, Ontario

M5G 1E6

TO: CHRIS BENTLEY

Attorney General for Ontario

Crown Law Office – Civil

Ministry of the Attorney General

720 Bay Street, 8th Floor, TorontoOntarioM5G 2K1

AND TO: JULIAN FANTINO

Ontario Police Commissioner

Ontario Provincial Police (OPP)

777 Memorial Avenue

Orillia, OntarioL3V 7V3

Tel: (705) 329-6111

Fax: (705) 329-6195

BILL BLAIR

Toronto Police Chief

40 College Street

Toronto, OntarioM5G 2J3

Tel: (416) 808-8000

DR. ALOK MUKHERJEE

Toronto Police Service Board

40 College Street

Toronto, OntarioM5G 2J3

ANDRÉ MARIN

Ombudsman of Ontario
Bell Trinity Square
483 Bay Street, 10th Floor, SouthTower
Toronto, ON
M5G 2C9

Tel: 416-586-3300
Fax: 416-586-3485

DEPUTY ATTORNEY GENERAL OF CANADA

Per: Maria Burgos

Department of Justice

Ontario Regional Office

The ExchangerTower

130 King Street West, Suite 3400, Box 36

Toronto, OntarioM5X 1K6

Tel: 416-973-3149

Fax: 416-973-4328

KERRY LEE THOMPSON

Attorney General (ON) Crown Law

Crown Law Office Criminal

720 Bay Street, 10th Floor,

Toronto, OntarioM5G 2K1

Tel: 326-1831

Fax: 416-326-4656

MICHAL FAIRBURN

Attorney General (ON) Crown Law

Crown Law Office Criminal

720 Bay Street, 10th Floor,

Toronto, OntarioM5G 2K1

Tel: 326-2658

Fax: 416-326-4656

  1. The plaintiff Munyonzwe Hamalengwa claims:

a)General damages against all defendants in the amount of $1.00 (One Dollar) for racial profiling, which is a violation of his constitutional rights pursuant to the Canadian Charter of Rights and Freedoms;

b)The Plaintiff and potential class members claim the following:

c)An Order certifying the proceeding as a class proceeding and appointing the Plaintiff Munyonzwe Hamalengwa as representative Plaintiff.

d)A declaration that the defendants have breached sections 7 and 15 of the Charter Rights of the Plaintiff and any prospective class members and all African-Canadians and other “colourful” minorities.

e)An Order requiring the defendants to comply with their obligations under sections 7 and 15 of the Charter.

f)An Order requiring the defendants to desist from engaging in and condoning racial profiling against the Plaintiff and any prospective class members and against all African-Canadians and other “colourful” minorities.

g)An Order requiring defendants Bentley, Thompson, Fairburn, Blair, Fantino and Marin to read the following books: David Tanovich, The Colour of Justice: Policing Race in Canada ; Carol Tator and Frances Henry, Racial Profiling in Canada: Challenging the Myth of ‘A Few Bad Apples’ Meekes, Driving While Black, Ontario Human Rights Commission, Paying the Price: The Human Cost of Racial Profiling

h)An Order requiring the Government of Canada and the Government of Ontario to enact legislation prohibiting racial profiling.

i)A declaration that racial profiling is a criminal offence.

j)An Order that defendants Chris Bentley, The Ministry of the Attorney General, Thompson and Fairburn pay the Plaintiff all the monies in the amount of $100,000.00 he is owed as a result of representing Richard Wills and as previously billed plus applicable taxes.

k)An order requiring the defendants Chris Bentley, The Ministry of the Attorney General, Thompson, Fairburn and Marin to provide reasons why white lawyers Borenstein (as he then was before he became Justice Borenstein) and Wasser and an amicus were not recommended for assessment of their accounts in the Richard Wills case.

l)An Order requiring that in conformity with sections 15 and 24(1) of the Charter, Borenstein, Wasser and an amicus be assessed as has happened with the Plaintiff.

m)An Order postponing any assessment of the Plaintiff until the Statement of Claim and the constitutional issues and remedies proposed have been disposed of.

n)Punitive damages in the amount of$1.00 (One Dollar);

o)Exemplary damages in the amount of $1.00 (One Dollar;

p)An Order that there be no costs given the importance of the case and the severe negative impact of racial profiling on the Plaintiff and all African-Canadians;

q)Pre-judgment and post-judgment interest on the above amounts in accordance with the Court of Justice Act;

r)A clear and unequivocal written apology from the defendants to the Plaintiff and all African-Canadians for their being targets and victims of racial profiling;

s)Such further and other relief as this Honourable Court deems just.

About the Plaintiff, Munyonzwe Hamalengwa

  1. The Plaintiff, MUNYONZWE HAMALENGWA (hereafter referred to as “Mr. Hamalengwa or the Plaintiff), was at all material times, a citizen of Canada residing in the City of Toronto, in the Province of Ontario.
  1. At all material times, Mr. Hamalengwa was and is a barrister and solicitor, in good standing, practicing law mainly in the areas of Criminal Law, Constitutional Law, Immigration and Refugee Law, Family Law, Administrative Law and Civil Litigation. He had and has his professional offices in the City of Toronto, Ontario.
  1. At all material times, Mr. Hamalengwa had and has both undergraduate and graduate degrees in political science, international relations and law and has studied at York University, Osgoode Hall Law School; Norman Peterson School of International Affairs; Centre for Legal Studies at Antioch School of Law; International Institute of Human Rights in Strasbourg, France; Hague Academy of International Law; and United Nations in Geneva.
  1. Mr. Hamalengwa was called to the Ontario Bar in February 1991, and he subsequently established his legal practice in the City of Toronto in March 1991. He had opened a paralegal office in June 1990.
  1. Mr. Hamalengwa did his law articles with lawyers Clayton Ruby and Marlys Edwardh (Ruby and Edwardh) in 1989/90. Sharing the office premises at Ruby and Edwardh at 11 Prince Arthur Avenue in Toronto at the time were Michael Code(now Justice Code of the Superior Court of Justice); Mel Green (now Justice Green of the Ontario Court of Justice); Shaun Nakatsuru (now Justice Nakatsuru of the Ontario Court of Justice); Frank Addario; Del Doucette; Elizabeth Widner; Dan Brodsky and others. The plaintiff’s articling partner was Paula Rochman.
  1. At all material times, Mr. Hamalengwa was also a prolific writer and published author, commentator, cultural critic, poet and human rights advocate in the areas of social justice, judicial diversity, cultural, human and democratic rights, anti-black racism, institutional and systematic racism and racial profiling.
  1. Mr. Hamalengwa has litigated the issues of racial profiling on behalf of his clients or himself in various Courts up to Supreme Court of Canada.
  1. Mr. Hamalengwa’s experience is that judges and Crown attorneys agree that racial profiling exists but that it does not exist in the particular case before them.
  1. Many lawyers who have litigated the issue of racial profiling have informed Mr. Hamalengwa the same thing that he has experienced when litigating racial profiling, i.e. that judges and Crown attorneys acknowledge the existence of racial profiling, but in the abstract and not in the cases before them.
  1. The result is that despite the prevalence of systematic and institutional racial profiling, actual individual allegations are dismissed, giving the impression that racial profiling does not exist while it is acknowledged that it exists and pervasively so as will be demonstrated below.
  1. Less than a dozen cases of racial profiling have succeeded in the criminal context in the history of Ontario and less than half a dozen cases have similarly succeeded before the Ontario Human Rights Commission in the history of that commission.
  1. The only way to litigate and seek remedies to uproot the acknowledged scourge of racial profiling is a frontal attack like the one contained in this Statement of Claim. There is no other effective way. Individual litigation is futile.
  1. Mr. Hamalengwa has standing to bring such a claim not only because he is an African-Canadian but because he has personally been the target of racial profiling in various contexts including when he has driven on the highways of Canada as well as when he has represented clients like former Police Officer Richard Wills as will be detailed later in this claim.
  1. Mr. Hamalengwa was once stopped on Highway 401 in Cobourg by an OPP officer who alleged over-speeding when in fact Mr. Hamalengwa was not over-speeding. Mr. Hamalengwa knew he had been racially profiled. He also knew that to succeed in such a claim before a Justice of the Peace in Cobourg was futile. Mr. Hamalengwa was driving a good-looking white Nissan Stanza.
  1. Mr. Hamalengwa was stopped by a police officer at York Mills and Scarsdale Road on the allegation that Mr. Hamalengwa did not come to a complete stop ata stop sign. Mr. Hamalengwa had come to a complete stop as Scarsdale crosses York Mills Road at a bridge which obstructs the view of seeing cars going west and a driver has to stop. At that time there were no traffic lights at Scarsdale. Mr. Hamalengwa was not stopped at the scene by the police but was stopped several blocks later. He knew he had been racially profiled. He was driving a fancy sleek stripped Nissan Pulsar.
  1. Mr. Hamalengwa was stopped north of Finch Avenue on the 404 Highway just after joining the 404 Highway from Finch. The police officer alleged that Mr. Hamalengwa had driven on the shoulder of the Highway, when in fact Mr. Hamalengwa never did such a thing. He had entered the 404 at Finch. He knew he had been racially profiled. He was driving a silver tinted Ford Probe.
  1. Mr. Hamalengwa was stopped by a police officer at the Highway 401 and Allen Expressway because the police officer alleged that Mr. Hamalengwa failed to stop for the police beginning from Leslie Avenue. Mr. Hamalengwa did no such thing. He would have seen the flashing police lights. He was just coming from Court representing a client charged with first degree murder. He was not impaired. Mr. Hamalengwa knew he was racially profiled. The charge was driving with an expired sticker which Mr. Hamalengwa had just renewed and the sticker was in his pocket and he showed it to the police officer. Mr. Hamalengwa, however, had been stopped for speeding. He was driving a Nissan Pulsar with “Eddie Murphy – Beverley Hills-Cop Red Type of Bulging Lights”, a very nice car.
  1. Mr. Hamalengwa was stopped allegedly for speeding on the Allen Expressway while going south just before Eglinton Avenue. He was not speeding. He was racially profiled. He was driving a new Mercedes Benz Sports Utility Vehicle (SUV). A very prestigious car.
  1. Mr. Hamalengwa was stopped in Hamilton by an Ontario Provincial Police (OPP) officer and charged with improper wearing of the seat belt when in fact he was wearing a seatbelt. There is in fact no charge of improper wearing of a seatbelt. You are either wearing it or you are not. Mr. Hamalengwa believed he was racially profiled as he was wearing the seatbelt properly. He was driving a new Mercedes Benz SUV. Mr. Hamalengwa has been stopped at other times for no reason and given warnings when the police or OPP failed to justify their actions.
  1. Mr. Hamalengwa never challenged any of these charges after careful calculation of whether or not the defence of racial profiling would be accepted by the presiding Justice of the Peace taking into consideration that Justices of the Peace have limited jurisdiction in the consideration of constitutional issues, let alone a complex and quite explosive issue of an allegation of racial profiling. If judges take umbrage at allegations of racial profiling like what happened at trial in the Brown case one can just imagine what reaction a Justice of the Peace would take, especially in small cities and outlying Highway Traffic Courts. Mr. Hamalengwa also calculated whose version of the evidence the Justice of the Peace would believe given their constant interaction with police or OPP officers who are more likely to frequent those Courts than the Plaintiff. It also costs time and money to go to Court. So the Plaintiff just paid up.
  1. It is such experience that has influenced the Plaintiff to bring this Statement of Claim in this fashion as a frontal attack on systematic racial profiling and to seek broad remedies pursuant to section 24(1) and 27 of the Charter and the provisions of the Canadian and Ontario Human Rights Codes as well as International Human Rights Instruments.
  1. Mr. Hamalengwa has also been racially profiled by some of the defendants as a result of representing former police officer Richard Wills.
  1. Despite the fact that the Plaintiff did his law articles in a mainstream and highly successful establishment - criminal law firm of Clayton Ruby and Marlys Edwardh, Kirk Makin, a legal affairs columnist for the Globe and Mail in his review of the Plaintiff’s book on his articling experience at Ruby and Edwardh, entitled How Are We Gonna Win This One: Doing Time With Clay C. Ruby, Criminal Lawyer Extraordinairestated that the Plaintiff was an outsider to the legal profession.
  1. The Plaintiff indeed feels that Makin is right, that the Plaintiff has been treated like an outsider, not only in the legal profession but by the defendants as well as will be demonstrated below. Indeed it is because of his “outsiderness” as an African-Canadian, that the defendants have racially profiled him and have also profiled and potentially profiled all African-Canadians.
  1. The Plaintiff however rejects the notion that he is an outsider despite the treatment that he receives that is consonant with the treatment of an outsider. The Plaintiff’s view is that he has accomplished much in Canada despite the outsider treatment that he receives and that he would be at the top of the legal profession were he not treated like an outsider and this law suit is a cry for equal treatment and benefit under the law and to be treated like an insider and not an outsider.
  1. The Plaintiff has accomplished some of the following which should make him be treated like an insider like the average white Canadian or at least like his peers in the legal profession, most of whom have not even approximated his accomplishments despite their having been born in Canada and possess white skins.
  1. The Plaintiff went to reputable colleges and universities including, YorkUniversity’s OsgoodeHallLawSchool where he secured both a Bachelor of Laws and graduate law degrees and has a graduate degree in International Affairs from the Norman Paterson School of International Affairs at CarletonUniversity.
  1. The Plaintiff has studied International Trade Law at the Center for Legal Studies at Antioch School of Law in Washington, DC; International Law of Human Rights at the International Institute of Human Rights in Strasbourg, France; Private and Public International Law at the Hague Academy of International Law; Global Politics at the United Nations in Geneva; International Labour Law at the International Labour Organization in Geneva and was an intern in International Human Rights Law at the Human Rights Internet then located in Washington, DC. The Plaintiff also studied Canadian Human Rights Law with the Canadian Human Rights Foundation.
  1. The Plaintiff has given papers on racial profiling; judicial diversity; equality before and under the law and other topics in The Hague; Hong Kong, Beijing; Kobe, Japan; Atlanta; Sydney, Australia; Port Harcourt, Nigeria; Durban and Johannesburg, South Africa and in Antigonish, Vancouver, Ottawa and Toronto.
  1. The Plaintiff is widely published.