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.
[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.
