Tuesday, January 17, 2017

Systemic Racism in Ontario Legal Profession

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 January 17, 2017

This video is a collection of thoughts on the Challenges Faced by Racialized Licensees Working Group (“the Working Group”) Final report, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions (November 2016). I have also added my thoughts as a subject matter expert

Discussion of Systemic Racism

Systemic discrimination consists of practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or group’s rights to opportunities because of attributed rather than actual characteristics.  If the practices or attitudes affect certain groups in a disproportionately negative way, it is a signal that practices that lead to this adverse impact may be discriminatory.[1]  Establishing systemic discrimination depends on showing that practices, attitudes, policies or procedures impact disproportionately on certain protected groups,[2] such as African Canadians.

Evidence related to systemic and individual discrimination is often interwoven.  It is difficult to untangle systemic discrimination in practice from its application in particular circumstances.[3]   In Canada (Canadian Human Rights Commission) v Canada (Department of National Health and Welfare),[4] the Federal Court of Canada confirmed that the applicant was entitled to adduce systemic evidence in support of allegations of discrimination against him personally

The relevance of social science and contextual evidence in racial profiling cases cannot be understated:

[118]    After making this finding, the Vice-Chair, in para. 91, quoted a passage from Nassiah discussing the social science evidence led in that case:

… racial profiling social science evidence is relevant because it speaks to, not just the initial decision to stop, detain, pursue an investigation, but also supports the general phenomenon that the scrutiny applied to the subsequent investigation is different, more heightened, more suspicious, if the suspect is Black. The stereotyping phenomenon is the same, whether it manifests itself in the discretion to stop/arrest/detain a person in part because they are Black, or whether it manifests itself in the form of greater suspicion, scrutiny, investigation in whole or part because a suspect is Black. [Emphasis in original.]

In a racist blog < http://chimpmania.com/forum/showthread.php?97617-Canadian-groid-apettorney-ooks-raycizz&p=903356> that showed up after this case got into the public domain someone wrote:
“In Toronto, nigger apettorney Selwyn Pieters shuffles up to the law society headquarters, and an astute security guard suspects something is wrong. The guard asks to see the ape's law society identity card, which turns out expired, and the ape is denied entry. Chimpout ensues.”
“Look at this thing. Would you allow it entry ANYWHERE, short of Apefrika?”
“Things like this should not be allowed!”
“I'm suprised anyone hires it, ever. Nasty beast.”
“I'm sure everyplace the nigger shows up this happens. Humans don't want fat greasy niggers around.”
Another wrote “The only way it would belong in the building is if it was there to clean the toilets.”

I was treated as an imposter not because I am not a lawyer but it is because of stereotypes based race, ethnicity, ancestry, creed and the intersection of these grounds. The intersecting grounds are the basis of the racial profiling and unequal treatment that I was subjected to. Had the security guard believed I was a lawyer he was have followed the procedures set out in paragraphs 23-24 of the LSUC response and would have dealt with me in a customer service friendly manner as a member of the LSUC. It is for this reason that I cited the overtly racist comments herein. While these were direct examples of racist words that some people would find offensive, the treatment experienced by me and other Blacks and racial minorities at the LSUC and by the LSUC is consistent with the racist views above.

I do not believe that had I been white or Jewish, I would not have been subjected to differential treatment by the security guard and the LSUC. The lack of scrutiny of the suspended licencee Ari Benjamin Kulidjian for three years as he entered those doors of the LSUC, whilst not entitled to carry a LSUC identification card supports my view.

Further, the Human Rights Tribunal Application in Arlene Spence v. Law Society of Upper Canada et al. 2016-24316-I is an employee complaint of racism at the LSUC Spence v. Law Society of Upper Canada, 2017 HRTO 31 (CanLII), <http://canlii.ca/t/gww66>, 

 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.

Recently, The Challenges Faced by Racialized Licensees Working Group (“the Working Group”) Final report, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions (November 2016):

117. It is clear from the Working Group’s engagement and consultation processes that discrimination based on race is a daily reality for many racialized licensees; however, many participants stated that they would not file a discrimination complaint with the Law Society for various reasons, including fear of losing their job, fear of being labeled as a troublemaker, and other reprisal related concerns. Participants also noted that although racism can be experienced on an individual basis, racial discrimination can also be institutional or systemic in nature. Participants did not believe that an effective process was available at the Law Society to address systemic complaints. The Working Group heard from a number of participants who stated that a system of anonymous complaints would assist in alleviating some of the concerns about reporting cases of racial discrimination.

University of Ottawa Professor (and LSUC Bencher) Joanne St. Lewis in her Slaw column made the following incisive comments about the micro and macro aggressions that Black lawyers face due to racism and its deleterious effects:

The legal profession has a heightened awareness of issues of mental health. Ignoring the role of racism in worsening or causing mental illness, points to the underlying failure to address the realities of racism in legal workplaces. Experiencing everyday microaggressions, being the subject of direct racism, absorbing injustices in silence – all take a toll that cannot simply be masked by individualized terms such as stress, depression etc. The Challenges Report missed the opportunity to build on the Law Society’s mental health initiatives by recommending strategies specific to racialized licensees. The report ought to include a recommendation that the profession’s designated health care provider (Homewood Health) develop the necessary staffing and substantive expertise to address these concerns as part of a comprehensive mental health support strategy to racialized licensees.

Ms. Joanne St. Lewis was the co-chair of the 1999 Canadian Bar Association Working Group on Racial Equality and author of Virtual Justice: Systemic Racism and the Canadian Legal Profession. She was the first Black woman to be elected to serve as a Bencher of the Law Society of Upper Canada in its 207 year history. She has served as legal counsel for the Centre for Research Action on Race Relations in Lavoie v. Canada [2002] S.C.J. No. 24 (where she appeared before the SCC) and was representative for the co-intervenor NOIVMW (National Organization of Immigrant and Visible Minority Women) on the LEAF legal committee on R. v. R.D.S. [1997] 3 S.C.R. 484.[5]

In its submissions to the LSUC Working Group, the Canadian Association of Black Lawyers wrote:

CABL notes that the process of recalling, reliving and publicly discussing systemic and sometimes overt racism is gruelling and uncomfortable. Our members shared intimate details of their experiences in order to draw attention to the challenges faced by black and other minority lawyers in Ontario.
CABL is fully in support of the LSUC addressing the challenges our members and other minority groups face in the practice of law. The members of the Bar have failed in their obligation not to “discriminate on the grounds of race, ancestry, pledge of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability with respect to professional employment of other lawyers, articled students, or any other person or in professional dealings with other licensees or any other person (as defined in the Ontario Human Rights Code)”2 [See The Rules of Professional Conduct section 6.3.1-1] It is for this very reason that we believe the report places too much faith in the ability of the Bar to self-monitor and correct the systemic issues recognized in the report. There must be direct regulation from the LSUC. We believe that the recommendations should be strengthened to reflect LSUC regulation rather than suggestion

[1] Canadian National Railway v Canada (Human Rights Commission), [1987] 1 SCR 114 at para 34
[2] Brome v Ontario (Human Rights Commission), (1999) 171 DLR (4th) 538 at para 16 (Ct J (Gen Div)); Brome v Ontario (Human Rights Commission), [1999] 171 DLR (4th) 538 (Ct  J (Gen Div)), leave to appeal to CA refused, [1999] 89 ACWS (3d) 1238 (CA).
[3] Kelly v British Columbia (Ministry of Public Safety and Solicitor General), 2009 BCHRT  363at para 29.
[4] [1998] 85 ACWS (3d) 647. This decision has been applied numerous times to find that statistical evidence of a larger systemic problem within an organization can be used to support an  inference of discrimination in a particular case.
[5] It is highly likely that at a hearing in this matter I will be serving a summons on this Bencher to provide contextual evidence on the LSUC in respect to anti-black racism.

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