Thursday, August 25, 2016

Selwyn Pieters Reply to Robert Lapper on Racism at the Law Society of Upper Canada

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created August 25, 2016
Updated: September 09, 2016
Updated: December 08, 2016


Update: An application to the Human Rights Tribunal was filed on September 07, 2016, the crux of the application is:
On July 05, 2016, I was racially profiled at the Law Society of Upper Canada (“LSUC”), treated differently from other lawyers and denied access to the door that is normally accessible to lawyers and members of the public alike. I believe that I was subjected to racial profiling in the provision of services in contravention of section 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).  
I am discriminated and/or harassed with respect to membership in a vocational association because of race (Black), colour (Black), ancestry (African), ethnic origin (African-Canadian), creed (dreadlocks, perceived rastafarian) in contravention of sections 6 and 9 of the Code.
On August 22, 2016, Robert Lapper, Q.C., Chief Executive Officer  of the regulator of lawyers, The Law Society of Upper Canada, published a letter in the Law Times: LSUC responds to discrimination allegation <http://www.lawtimesnews.com/201608225590/letters-to-the-editor/letter-lsuc-responds-to-discrimination-allegation> (Date accessed: August 25, 2016).

The letter sought to refute my allegations that on July 05, 2016, I was racially profiled at the Law Society of Upper Canada, treated differently from other lawyers and denied access to the door that is normally accessible to lawyers and members of the public alike.

Interrogating Racism and the Standard Operating Procedures (SOP):

Robert Lapper wrote: "The Law Society has standard procedures for all non-staff licensees who seek to enter controlled access areas of the building. Access to these parts of the building is gained through the main reception area of the Law Society. The standard procedures call for security staff to ask licensees to show their Law Society identification card. If this card is expired, security staff will check the Law Society’s database of licensees to confirm the licensee’s status. Once security staff have confirmed the licensee’s status, he or she is permitted entry to those areas of the building."

Mr. Lapper continued: "It is true that some individuals are not stopped at the main entrance. Staff of the Law Society are not subject to the standard procedures outlined above and move frequently through the controlled access doors without interacting with security. Staff of the Law Society are issued staff identification cards and security passes, which they use to gain entry to controlled access areas of the building directly."

He then wrote: "We very much regret that Mr. Pieters was upset by his experience with the Law Society on July 5. However, I am satisfied that standard procedures were followed and there was no discrimination. "

What Occurred in Pieters Case?

1) Pieters is a member in Good Standing at the Law Society of Upper Canada;
2) On July 5, 2016, Pieters took his student to the Society;
3) The guard on duty was shown Pieters LSUC Card;
4) The Guard aggressively demanded that the card be removed from the wallet;
5) The Guard invaded Pieters space and grabbed the card out of his hands;
6) The Guard denied Pieters and his student entry through the door;
7) The Guard never checked LSUC Database to see whether or not Pieters was a lawyer in Good Standing;
8) What concerned me more than anything else is the security guard's conduct was not customer service oriented. He treated me, and the student obseved that and related it to the security supervisor as though "you cannot possibly be a lawyer."
9) A video exist that shows the conduct of the Guard, prior to, during and after the interaction with Pieters.

The Student Witness Independent Account:

"We commenced our tour after entering the main doors. There was a group of people (all Caucasian) ahead of us who passed security without any issues and were admitted via a card controlled door into the wider facility. On approaching that same door, we were met by the security guard on duty who was the same individual who had admitted the group that was ahead of us but did not leave his desk which was a few metres away from the door when attending to them. I stepped back as the guard approached and he began engaging with you. The guard’s comments to you suggested that you could not be a lawyer and he demanded to see your LSUC ID card. From my observation at this point the guard had come very close to you and had invaded your personal space. You then reached into your pocket to get the ID and showed it to him through the clear plastic covering. That did not satisfy the guard and he then asked you to remove the ID completely from the wallet. The guard became impatient and then attempted to grab the wallet and ID closer to him for further inspection. You then informed him that this was inappropriate behaviour and that you were a member in good standing with the Society. After giving him the ID, he then informed you that it had expired and that you needed to renew it before you could enter the wider premises. The guard did not offer to show you where to go for the renewal of the ID. You were obviously familiar with the premises so you knew where to go to renew the ID."

A Breakdown of how discrimination at the Law Society of Upper Canada works:

"Esteemed professionals are careful and discrete. They manage discrimination and harassment to avoid detection, or undue scrutiny.  Preventing any perception of discriminatory practice is the basis of their actions not avoiding the practice itself.  If policies have been violated, they simply adjust their practices to remain under the radar."

In “Race Talk and the Conspiracy of Silence: Understanding and Facilitating Difficult Dialogues on Race” New York: Routledge, 2016, page 90, author Derald Wing Sue made these trite observations: “The existence of institutional racism shields the operation of white privilege through what is called Standard Operating Procedures (SOP), which represents the rules, habits, procedures, and structures of organizations that oppress people of colour while favoring Whites. The SOPs may apply equally to all groups but serve to maintain the status quo.”

In effect, these SOPs are used as masks to hide racism or exclusionary impact or effect. However, as recently observed by the Human Rights Tribunal of Ontario in Briggs v. Toronto Police Services Board, 2016 HRTO 966 (CanLII), "If the police officers involved in the applicant’s stop were not acting in accordance with applicable protocols and training materials, this factor could support an inference of discrimination in this case."

My Rejection of the Comments of the CEO that Standard Operation Procedures were followed

The CEO's comments are duplicitious and quite frankly is an insult to my experience and intelligence, as he knows or ought to have known that the LSUC security guard did not follow the Standard Operation Procedures that he says the LSUC has in place. Is this SOP in writing? When was it formulated? I would like to see that SOP if it is a written document.

As I mentioned in my letter to the CEO, I have no issues with the LSUC Guards doing their jobs but they must interact with lawyers and members of the public with tact and diplomacy.

Other Observations:

After the initial Law Times Article was published: Alex Robinson, "Lawyer alleges discrimination by LSUC security guard" July 25, 2016 <http://www.lawtimesnews.com/201607255550/headline-news/lawyer-alleges-discrimination-by-lsuc-security-guard>, some lawyers approached me telling me they have never had a LSUC identification card. One of those lawyers practised law for over 40 years.

Another was quite incredulous that a "lowly security guard" could have denied me access.

Other lawyers stated that they are admitted through the use of various law associations cards.

Conclusion

I wrote in my letter to the CEO that “The LSUC and its staff have to get it right when dealing with Black people. Treating a Black lawyer in good standing as an imposter is not acceptable.”

Progressive racialized and non-racialized members of the LSUC knows that there is not only racism in the legal profession itself but that racism exist at the LSUC. See, for example, Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.), a racial profiling case involving two Black lawyers and a student, two of whom had dreadlocks.

At the LSUC the attacks on Black lawyers is disciplinary with race as the subtext. In Law Society of Upper Canada v. Selwyn Milan McSween, 2012 ONLSAP 3, a case that involved professional misconduct findings against McSween by a Law Society of Upper Canada hearing panel, in concurring reasons, adjudicators Clayton C. Ruby and Constance Backhouse examined McSween's personal background, antecedents, training and the nature of discrimination and wrote the following, which though lengthy deserve quoting liberally:


3.         Racism in the Context of Law 
[68]           In 1999, the Working Group on Racial Equality in the Legal Profession of the Canadian Bar Association published Racial Equality in the Canadian Legal Profession.  The report examines racism in the legal profession and reveals that students from racialized communities have fewer opportunities to secure articling positions and first jobs. They do not benefit from the same articling experience as their non-racialized colleagues who are introduced to clients, assist more senior lawyers on important cases, and who conduct research on a broader range of files.  There is no evidence to suggest that circumstances have changed for the better; in particular, articling opportunities have diminished.  See: Working Group on Racial Equality in the Legal Profession, Racial Equality in the Canadian Legal Profession (Canadian Bar Association: Ottawa, 1999). 
[69]           More recently, in 2004, the Law Society commissioned a study entitled Diversity and Change: The Contemporary Legal Profession in Ontario.  This report attempted to establish a baseline for tracking diversity and equity in the Ontario legal profession.  It found that, when surveyed, lawyers of racialized communities are more likely to reveal that they were denied opportunities to take responsibility for cases because of client objections, and they also were more often subject to inappropriate comments by judges and other lawyers.  See: Kay, F. M.  et al. Diversity and Change: The Contemporary Legal Profession in Ontario (A report to the Law Society of Upper Canada) (Queen’s University: Kingston, 2004). 
[70]           It is reasonable to infer that as a group, Afro-Caribbean Canadian lawyers are economically and professionally disadvantaged when compared with their colleagues, and that many face diminished opportunity as alleged in this case by Mr. McSween.
[72]           The research into Canadian legal history shows that systemic racism has had a substantial impact on the legal profession.  It demonstrates that ideas of legal “professionalism” have been used to exercise power and exclusion based on gender, class, religion, and race.  The first minority individuals who sought admission to the legal profession faced significant barriers.  Those who succeeded in obtaining entry found that those barriers continued to impact upon their careers when they attempted to practise.  Significantly, an increased risk of disbarment was one such barrier for racialized lawyers. 
[73]           It would be misguided to be aware of this history and yet ignore its contemporary incarnations simply because the legal profession has today become much more diverse.  The legal profession has made no concerted effort to rid itself of the racism inherent in the practice.  As the evidence in this case illustrates, racialized lawyers continue to face barriers not experienced by their colleagues.
In Law Society of Upper Canada v. Terence John Robinson, 2013 ONLSAP 18 following from the principles in McSween, an appeal panel observed that:
[78]           In our view, McSween supports the proposition that systemic racism and discrimination which explains or provides context to why a licensee engaged in misconduct or conduct unbecoming is relevant. This is not unique to Aboriginal licensees. What is unique are the systemic and background factors that affect Aboriginal people, including Aboriginal lawyers and how these factors have affected them.
Any form of racism, particularly anti-Black racism will continue to fester and continue to pervade the halls of power when those in authority and with the power to prevent it take a bureaucratic approach that our staff were following procedures, when, as we know in this case, a thorough interrogation of the racism and/or circumstances would show that there were no procedures of the sort and if they were such procedures that the CEO says exist were not followed.

If that is the case, one can conclude that the adverse treatment was linked to discrimination based on race and that racism was a factor in the treatment.


Selwyn Pieters, Subject MatterExpertise: Racial profiling, race & ethnicity, anti-black racism (law enforcement, security, education, law, criminal justice system), racial bullying, African-Canadian urban culture and race relations, social  inequality, law enforcement, policing culture in Ontario, Canada; Guyana and Trinidad


1 comment:

jim graham said...

"particularly anti-black racism" no sir, no agenda here