Hearing into Matthew Green carding complaint gets off to a tense start

Const. Andrew Pfeifer is charged with discreditable conduct under the Police Services Act on the allegation that he was "engaging in an arbitrary and unjustified street check."

Green is also taking issue with comments on the incident by police board chair Lloyd Ferguson

Coun. Matthew Green speaks with his lawyer, Wade Poziomka, before a Police Services Act hearing on his complaint began Monday morning. (Kelly Bennett/CBC)

A discipline hearing into allegations a Hamilton police officer improperly stopped and questioned a Hamilton city councillor got off to a tense start Monday.

The hearing centres around an interaction between Const. Andrew Pfeifer and Coun. Matthew Green while Green was waiting for a bus on a Tuesday afternoon in April 2016.

Pfeifer is charged with discreditable conduct under the Police Services Act on the allegation he was "engaging in an arbitrary and unjustified street check." 

To be arrested even in a misunderstanding, or in an unjust way, is not a situation I would care to be in.- Coun. Matthew Green

Also on Monday, Green said he filed a complaint with the Ontario Civilian Police Commission against his fellow councillor, Lloyd Ferguson, chairman of the Hamilton police services board. 

Green says comments by Ferguson have compromised the police service's impartiality around the incident that is the subject of the hearing.

Stopped and questioned

Green, the city's first black councillor, 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 an officer who seemed not to realize who he was.

Green said he felt targeted and "psychologically detained." But the officer's defence counsel argued that the officer stopped to check on his wellbeing and that Green was aggressive and hostile off the bat.

'It went too far'

In his opening statement, the lawyer representing the Hamilton Police Service, Brian Duxbury, said he will be asking the hearing officer to conclude that the exchange between the officer and Green "was not proper, that it went too far" and that the officer brought discredit on the service.

Wade Poziomka, who is representing Green, said he will ask the hearing officer to go further, to find that the stop was arbitrary because of race and that the officer racially profiled Green in conducting the stop.

But Bernard Cummins, representing Pfeifer, said the hearing officer should remember that officers have a job to do, "and if we go down the road that is advocated by Mr. Green's lawyer, what we should do is have every officer in Hamilton give their keys back" to the police service.

"The real question is: Can we talk to the public, or not?" Cummins said.

'There was no reason for them other than a conscious or unconscious bias'

Green was first to testify. He said he was leaving a meeting with a constituent on West Ave. when he walked up to Stinson Street to catch the eastbound 5 Delaware bus home.

He was waiting under the Claremont Access overpass across the street from the bus stop, to try to avoid the wind, which was "frigid" that day, he said.

How could you possibly conclude that you were carded then.-  lawyer Bernard Cummins

He recounted a similar version of events he has previously disclosed publicly, saying that he expected a "cordial interaction" like the ones he said he usually has with frontline officers. But instead, the interaction escalated in tone and Green said he felt targeted, humiliated and like a suspect in his neighbourhood.

He was asked if he thought about walking away.

"Absolutely not. Because of the escalated nature of the situation, not knowing if I was a suspect, if he had considered me someone who matched a suspect description, I didn't want to be arrested or physically detained," he said.

Especially as a councillor, he said, "to be arrested even in a misunderstanding, or in an unjust way, is not a situation I would care to be in."

Poziomka asked why he believes his race was a factor.

"There was no indication that I was in crisis," he said. "I was feeling bullied. There was no reason for them other than a conscious or unconscious bias – what does a criminal look like?"

'How could you possibly conclude that you were carded?'

Over several hours of heated cross-examination, Pfeifer's lawyer, Bernard Cummins, zeroed in on the wording that Green has used to describe what happened, on Twitter, in media interviews and in his complaint to the Office of the Independent Review Director, which substantiated Green's complaint.

Cummins seized on the word "carding," asking repeatedly what it means. Green said Hamilton Police Service tends to use the word "street checks" instead but the interactions involve asking questions and arbitrarily stopping someone who isn't under investigation, and taking their information and recording that in a database.

Green contends that because he was stopped, asked his name, whether he lives in the city and where he was going, that that qualified as the "search and seizure" of his identifying information.

Cummins countered that the officer didn't ask for actual identification like a driver's licence.

"How could you possibly conclude that you were carded then?" he said.

​In several combative exchanges, Green rejected the premise of Cummins' questions, at times suggesting Cummins' tone was offensive and intimidating. Cummins retorted that he expected Green would find him offensive throughout the course of the hearing, then.

The hearing continues Tuesday with more cross-examination and replies from lawyers for Green and the service.

Green files complaint against fellow councillor over carding comments

The complaint against Ferguson stems from when Ferguson appeared on local talk radio host Bill Kelly's show in June about the topic of "carding" or street checks, a practice of police stopping and collecting ID from someone not under investigation.

Ferguson talked about an incident involving Green in April 2016 after decrying the "publicity and negative attention towards police" as a result of the carding criticism.

"You know, we have the one situation, and I can't talk about it, but it involves a city councillor," Ferguson said on Kelly's show. "And that's going before adjudication (a discipline hearing). But it ended up in an officer being, having charges placed against him for doing his job."

Green said that Ferguson's comments on the radio compromised the service's integrity.   

"To have it come from the police board chair, which is essentially responsible for the Hamilton Police Service, which is essentially responsible for this hearing, is very problematic for me to have a fair (hearing) — and to have complete integrity in this process," Green said.

He said that Ferguson "essentially said that I am the reason why police cannot do their jobs now. I found that derogatory and disparaging. I'm not the person who is here on trial."

Ferguson was unavailable to comment immediately on Monday morning. 

Provincial legislation in effect this year has put parameters around when police can collect ID, after the practice was found in Hamilton and elsewhere to disproportionately affect people of colour and Indigenous people.

"Police officers cannot collect your information based on the way you look or the neighbourhood you live in," said Yasir Naqvi, then the minister of Community Safety and Correctional Services.