Was officer OK to question Matthew Green? Lawyers clash over role of race in police stop

A disciplinary hearing for a Hamilton police officer who questioned the city's first black councillor while he waited for the bus concluded Thursday with closing arguments.

Final arguments came from prosecutor, officer and complainant in Matthew Green carding complaint case

Const. Andrew Pfeifer testified at a Police Services Act misconduct hearing in September on an allegation that he engaged in an improper street check. (Kelly Bennett/CBC)

A lawyer for a Hamilton police officer charged with misconduct says Coun. Matthew Green "unsheathed the sword of racism" in exaggerating his interaction with the officer while waiting for a bus.

Bernard Cummins, representing Const. Andrew Pfeifer, argued Thursday that Green, the city's first black councillor, pushed a false agenda in the media as he talked about the interaction he had with Pfeifer last April.

"This case is about conduct, not colour," Cummins said.

The hearing Thursday featured closing arguments following four days of sometimes heated testimony in September over the interaction between Green and Pfeifer.

Hamilton Police Service charged the officer with discreditable conduct after an independent investigation by the Office of the Independent Police Review Director into a complaint Green made.

The service alleges Pfeifer brought discredit on the service's reputation by engaging in an "arbitrary and unjustified street check." 

'This is more than a 'Good afternoon; how are you?' exchange'

The prosecutor for the Hamilton Police Service, Brian Duxbury, said the case was about the "fine line" between community-based policing and stopping pedestrians in circumstances that are "not properly founded, go too far and bring discredit" on the police service.

After a couple of exchanges back and forth that day in April 2016, the officer should have moved on, Duxbury said.

It was clear, he argued, that Green wasn't in distress – he was waiting for a bus.

"This is more than a 'Good afternoon; how are you?' exchange," he said.

He added later: "The boundary between being helpful and detrimental, it's a very fine line."

Lawyer Wade Poziomka, representing Green, agreed with Duxbury's arguments that Green had been "psychologically detained" and urged the hearing officer, Terence Kelly, to find that the interaction had an element of racial profiling.

He said the officer's inability to remember any training he'd received on avoiding racial discrimination suggested a problem for the service at large.

The existence of racial profiling, he said, has been recognized by courts and even by Hamilton Police Service official statements – on paper.

"But to individual officers like Pfeifer, it's completely lost," he said.

'This police service is wholly unprepared and trained'

After the hearing, Green weighed in.

"It's never been about identifying or vilifying an individual officer," he said. "What we learned in this case is that this police service is wholly unprepared and trained to deal with matters related to bias-free policing."

The stopping of such a high-profile person reignited the conversation about carding and street checks in Hamilton.

During testimony in September, Pfeifer and a police colleague said Green seemed "anti-police" in the interaction. Pfeifer said he was hostile and appeared to be hiding near the bridge underpass for the Claremont Access.

Green was waiting for a bus on the corner of Stinson Street and Victoria Avenue South last April, when he said he was stopped and questioned for several minutes by Pfeifer, who Green felt seemed not to realize who he was.

'How far does this go? We can't collectively lose our minds here'

Thursday, Cummins argued that when Pfeifer stopped his cruiser to speak to Green through the window, he was checking on the councillor's well-being.

Cummins rejected the arguments that the stop was racially motivated and that Green was psychologically detained.

He said instead the stop was justified due to Green's location beside a bridge, his attire for a cold April day, his action of looking up and down the street and the Stinson neighbourhood being "saturated with mental health problems."

Cummins noted that Duxbury never defined what a "street check" is for Hamilton police, nor what the parameters for a proper one would be, much less an improper one.

He suggested the officer's actions be viewed through a lens of what he considered to be common sense.

"There is no evidence called and no case to support that simply rolling up your cruiser and talking to the member of the public requires that you have grounds. If it does then you can't say, 'Hi,' anymore," Cummins said.

"How far does this go? We can't collectively lose our minds here."

Officer as 'the weight of the state imposed upon the pedestrian'

But Duxbury said he didn't need to define the terms.

The community, he argued, would not conclude the interaction was reasonable.

"When an officer makes a decision to engage, it must be remembered that he is a person of authority," he said. "He's the weight of the state imposed upon the pedestrian."

Duxbury said any pedestrian on the sidewalk might feel the "discomfort, embarrassment, humiliation" at being the subject of an interaction with an officer in a marked police car.

"The continued questioning would by any objective community standard make a person feel that they were limited or constrained in their ability to move or move on," Duxbury said.

Poziomka said the officer had exhibited a "nonsensical, stubborn position" and had acted after the interaction in a way that suggested he knew he'd done something wrong.

Poziomka, who is white, suggested to the hearing officer, who is also white, that neither of them has "likely experienced racial profiling."

But he said issues of conscious and unconscious bias in policing require serious attention.

The issue "must be taken seriously and fleshed out," he said. "You have the opportunity to do that."

Hearing officer Kelly said he would mull what was presented and get back in touch with the attorneys to set up a time to deliver his verdict in person.



Kelly Bennett is a freelance reporter based in Hamilton. Her writing has appeared in CBC News, the Globe and Mail, the Toronto Star, Voice of San Diego and in the National Observer for the Local Journalism Initiative. You can follow her on Twitter @kellyrbennett or email kelly@kellyrbennett.com.