According to the Canadian Charter of Rights and Freedoms (Section 15 (1)):
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Of course, and unfortunately, this is not always the case in practice. Many people continue to deny others equal treatment, intentionally and not. Law Times offers a recent example of alleged systemic discrimination; the case Law Society of Upper Canada v. Selwyn Milan McSween raises the question of whether racism hinders black lawyers’ participation in big law firms in Ontario. I am sure this problem is not exclusive to big law firms or Ontario.
Selwyn McSween is a black lawyer found guilty of professional misconduct for “completely abdicating his professional responsibility” to an allegedly unscrupulous law clerk, in the opinion to the Law Society of Upper Canada. However, dissenting appeal panellist Clayton Ruby stated:
We cannot close our eyes to the disproportionate number of black lawyers whom we find before us faced with very grave professional misconduct allegations. …
The legal profession has made no concerted effort to rid itself of the racism inherent in the practice. The effects of racial inequality are real, not imagined, and we do the public no favour by refusing to acknowledge them.
Ruby suggests that the reason black lawyers face increase disciplinary charges is that minority groups have fewer and less meaningful articling opportunities to gain experience compared to “non-racialized” lawyers, law students and others in the profession.
The Law Times article refers briefly to a 1999 report on Racial Equality in the Canadian Legal Profession by the Canadian Bar Association, and I was curious.
According to the report:
Systemic racism or institutional racism is not about individual malice. It is about the way seemingly neutral values and practices can inadvertently serve to promote discrimination. It is about how the legacy of historic discrimination can continue to thrive in our midst.
The report’s authors clearly recognized that, at that time, law graduates from minority groups had poorer opportunities than non-minorities. Such graduates did not get the much-needed training and experience that their white counterparts received to succeed in the practice of law. I wonder what steps the Law Society of Upper Canada, the Department of Justice, the law schools and other decision makers have taken, given the findings of the report. Did they follow the strategic steps and recommendations? I guess not really, if we accept Ruby’s statement.
It would be interesting to know how the law society and the other groups received the report, and a follow-up report on the steps taken would have been very helpful!
As a lawyer who is also black (though that is not all I am, and I do not define myself by the colour of my skin, which by the way is brown not black), I see that systemic racism in law firms is unfortunately still a reality and not merely a perception. However, it is not only in law firms, but in many other industries and professions. I would also say that it is worse for black men than for black women.
This said, not all black lawyers are lacking experience in the practice of law, nor can we say all black lawyers do not obtain meaningful articling opportunities. Many lawyers who also find themselves referred to as blacks have succeeded in the legal profession. I can further add that some progress has been made to include more lawyers who are black in the legal profession; however, not enough.
In my view, these advancements are based on tolerance, not on totally removing the prejudiced policies, practices, perceptions, stigma, stereotypes and ideas about people who are black that continue to thrive in society, law schools and law firms. No matter the colour of our skin, it is not something we can change. It will always be with us and will be the first thing an interviewer will see, no matter whether we are the most experienced, the most qualified or the best candidate.
Tolerance has not been a final solution, but a precursor of continued racism.
I can also say these advancements are to meet diversity goals to show the public how multicultural a firm is, or to meet employment equity requirements, not solely with the intention of truly removing barriers that stop racism. Please note, having to state in an application form that you consider yourself part of a visible minority does not help, or reassure me that I will be considered so that you can meet your diversity goals or employment equity requirements.
At the same time, lawyers who also find themselves to be black have a responsibility to obtain the experience they need to become lawyers, especially if they have to become sole practitioners because law firms won’t hire them. Articling, although required, is not the only way to gain experience. Black lawyers’ the main concern should be getting their degree, learning as well as they can, practicing law and being the best lawyers they can be.
Not getting a good articling experience because you are black is a real problem that needs to be dealt with but not a good reason to become guilty of professional misconduct.
To gain knowledge and experience before I graduated, I volunteered in associations and legal centres. After I graduated, on top of articling, I sat in court most days watching how lawyers pleaded their cases. I talked to other lawyers and judges. Judges were the most willing to guide me. I read on the developments of legislation and case law at least three hours every day, and still do. I went to conferences, seminars, courses and workshops on the topics of law I wanted to specialize in. It takes work, but you need to look beyond the colour of your skin, even if others insist that you do.
But I still have to wonder, why would systemic discrimination still exist in law firms? Within organizations who are there to protect the public and the practice of law? Doesn’t the legal institution exist to uphold and apply the law without any prejudices?
So what do members of the Canadian Legal Profession and decision-makers intend to do about this?