Promoting Minority Lawyers in their Quest for Professional Development

There are many ways in which the practices of mainstream institutions and professional associations and bodies as well as governments result in the promotion of further invisibility of minority lawyers. Minority lawyers are already invisible in the society but the practices of institutions and professional associations and bodies and governments add a further layer on the already existing layers of invisibility. This presentation documents some of these practices and seeks at the end to make recommendations as to how mainstream institutions and professional associations and bodies as well as governments can help minority lawyers in their quest for professional development, just like they do with white lawyers. There should be equality of treatment. I will look at the following institutions: (a) the media (b) professional legal associations and bodies, and (c) the government.

The Media

On March 29th, 1996, I appeared before Judge Matlow of the Ontario Court (General Division) who was to render a decision in a drug related case I had before him. Apparently he had also to deliver judgements in another drug related case where the lawyers were white. Tracy Tyler of the Toronto Star was there. In my case, just like in the other case, the Judge found that the police gave evidence that was incredible and could not be believed. He almost alluded to the fact that the drugs could have been planted. He threw out both cases. However, in the next day’s edition of the Toronto Star, my case was not covered at all, even if the Judge had more harsher words against the police officers than in the other case. Instead, the other case was prominently covered by Tracy Tyler, with names of white lawyers splattered all over. Who knows how many more clients those white lawyers got as a result of that coverage? Who knows how many judges, whose respect the lawyers earned because of a job well done. Who knows how many lawyers referred clients to those white lawyers? Who knows whether Attorney General Harnick, Premier Mike Harris, Justice minister Allan Rock and prime Minister Jean Chretien have considered appointing these white lawyers to judgeships. They are visible and they get covered by the press. Media coverage helped in their professional development, one way or another.

In another case in New Market, I got drugs excluded as evidence because of the violation of my client’s constitutional rights. The Judge, Vibert Lampkin made some very critical comments against the behaviour of one police officer who searched the rectum of my client in the presence of his teenage daughter.

Donna Laframbois of the Toronto Star heard about the case from someone. She interviewed me a length on three different occasions. When the article appeared in the Toronto Star, my name was never mentioned at all. It was as though the client represented himself. I read other articles by Ms. Laframbois when she covered legal issues and in those other articles, the white lawyers’ names were featured prominently. What is the explanation for the difference? Can you imagine how my professional development and visibility would have been promoted if my name was mentioned? Can you imagine how many potential clients I may have gotten if they saw my name in the press? It is common knowledge that media publicity is important to a lawyer’s professional standing in the legal and larger community. One need only look at Eddie Greenspan or Clayton Ruby as good examples of this. Media coverage attracts hight profile clients to those who are in the eyes of the media. Being an excellent lawyer alone is not enough.

In January 1994, I brought a motion before Judge Then for him to contemplate taking into consideration in the sentence, the time spent by my client in an Indian jail. I filed an affidavit and a very good factum. The Crown never filed any responding material at all. However, Gary Oakes of the Toronto Star managed to interview the Crown Prosecutor, Uriel Priwes, and presented his side of the story in opposition to my motion. Gary Oakes had my affidavit and factum in hand. He never interviewed me. He never adequately presented my side of the story. He never mentioned my name, yet he mentioned the prosecutor’s name prominently, the same prosecutor who never filed any documents at all. There was a chance to mention my name. Who knows how many potential clients, judges, government officials and others would have noticed my name had it been mentioned at all and what positive effect it may have had on my professional standing.

Remember that I am talking about opportunities where my name was not mentioned when it should have, I am not complaining about those situations where my cases were not covered because there were not reporters. I am talking about deliberate omissions here in situations where white lawyers were mentioned (two cases) and I was not. It is either you mention all lawyers’ names or you do not. You either cover the cases fully or you do not. This brings about equality.

Some other omissions by the media where black lawyers are involved include the following examples: When there were alleged low turn-outs of blacks at some of the sittings of the Commission on Systemic Racism in the Ontario Criminal Justice System, the media interviewed, among other white lawyers, Brian Greenspan, about why he thought there were low turn outs by blacks. Greenspan is not an expert on black behaviour. I wrote a letter of protest to the Toronto Star and it was never published (see Appendix 1). Guess who may be called to comment on blacks in the criminal justice system - Brian Greenspan or James Lockyer!. These are fine lawyers, but they are not experts on the thinking or experience of blacks.

When a police officer was acquitted of the charge arising out of the death at a police station of Mr. Allen, the media turned to James Lockyer, a white lawyer, to ask him how blacks will interpret the acquittal. It was all reported in the Toronto Star. The other blacks they interviewed are not lawyers. Guess who black clients will flock to because of his good comments to the media - James Lockyer. In the meantime, they could have gone to deserving black lawyers who are starved of clients. This issue of judges and juries acquitting white police officers who shoot blacks is talked about on a daily basis by black lawyers. These are the people whom the media need to interview. Not all the time, but at the very least sometime. Is this asking too much? I don’t think so

Recently, the Nelson Mandela Academy of Applied Legal Studies sponsored a conference on the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System. This Report has been ignored by the government. We wanted to revive interest in this Report. The keynote speaker was David Cole, a co-chair of the commission. He is white. There was only one other white speaker among the ten or so other speakers who were black. The white speaker was Susan Mulligan and she spoke on the effect of the cuts to legal aid on black clients. They would be further arrested, detained, convicted and incarcerated because they would not be able to retain lawyers. Other lawyers including Aston Hall, George Carter and Ernest Guiste spoke about the problems and changes to their practices brought about by the cuts to legal aid. However, when the conference was reported in The Law Times, only Susan Mulligan was mentioned at all (see Appendix 2). If there is any conference anywhere in Canada that may have a panel on legal aid and minorities, the person most organizers will think of first to invite to be part of the panel is Susan Mulligan. Susan Mulligan’s professional development is assured as a result of the coverage. The other black lawyers who spoke on the same subject will remain invisible.

The Nelson Mandela Academy is grateful though that the conference was covered. It is also grateful that Susan Mulligan a very fine and committed lawyer agreed to speak.

Recently the Toronto Star referred to the recommendation of the commission on systemic racism as having been made by Judge David Cole (see Appendix 3). The Toronto Star forgot or deliberately omitted to mention that judge Cole did not make those recommendations alone, that there was a co-chair, a black woman by the name of Margaret Gittens and that the Report was written by a black professor at Osgoode Hall Law School named Toni Williams. Who knows what benefits may have accrued to Margaret Gittens if her name was mentioned. Maybe someone would have noticed her for promotion to Citizenship Judge, Board Member of the Immigration and Refugee Board, where there are hardly any blacks now, etc. etc.

Just recently, I learnt why all my book reviews that I have repeatedly submitted to the Globe and Mail and the Toronto Star have never been published. It appears that the papers choose which books have to be reviewed and which reviewers have to review them. Mine were books about blacks which the papers had no interest in. Worse of all, they were unsolicited. Thus we become visible only when the media chooses, but when we choose to be visible by submitting relevant articles for publication, we are turned down, because we are judged to be irrelevant and of no particular interest. (See Appendix 4).

It goes the same for most of the articles I have submitted in response to some media covered issues (see for example Appendix 5). The papers simply ignored my submissions. This also includes legal publications like the Lawyers’ Weekly (see Appendix 6). The Osgoode Society’s Peter Oliver refused to sponsor my study on blacks in the law in Canada; Now Magazine wanted my resume before it could consider publishing an article I had submitted, to see whether I am published; Carswell’s Raymond Aaron refused to accept my proposal to do a study on constitutional remedies and later accepted someone else’s proposal for the same thing and the book was published. When the media cover black lawyers at all, it is either because the case is high profile and cannot be ignored, for example when I assisted someone who shot three people in a courtroom in Toronto, two of whom died, or when Peter Abrahams represented Audrey Smith who was strip searched in public, or when Eboe-Osuji represented organizations challenging the repeal of the Employment Equity Legislation etc. Or when the reporters are black and they perhaps identify with the issues for example the coverage by Philip Mascol of the Toronto Star. When my cases have been covered in the Toronto Sun by Tom Godfrey, it is because of their alleged sensationalism and in all cases, I got calls protesting my representation of the “scum of the earth.” Can we ever win?

Professional Legal Associations and Bodies

Some time back, the Canadian Bar Association of Ontario sponsored a panel on the impact of the Parks decision. This is the decision that permitted the challenge for cause based on racial prejudice. This was a “black issue” in Ontario’s criminal justice system. I attended the event. There was not one black speaker on this “black issue”. There was not one black expert on that very “black issue”. If there are any future conferences etc. where challenge for cause is discussed, only white lawyers or people may be invited to participate. They are the experts after all.

Virtually almost all education programs sponsored by the Canadian Bar Association - Ontario, or the National; the Law Society of Upper Canada , etc. do not involve or include black lawyers at all, even in areas where some black lawyers have distinguished themselves. In the area of immigration law, for example, Davies Bagambiire has written one of the best books on immigration anywhere. Yet the education programmes on immigration organized by the Law Society or CBAO have never included Davies Bagambiire, or myself or Osborne Barnwell and others. It is always the same white people or lawyers who get invited. Inevitably these are the same people who get noticed by potential clients, who get appointed to judgeships, who get recruited by law schools, who get appointed to boards, agencies and commissions, who get to represent the government, who get to be benchers of the Law Society of Upper Canada; who get to prosecute lawyers under professional discipline by the Law Society and in the process make big bucks on a part-time basis and so on. It is a question of networking and if you are not part of the network or you are black, you are out.

There are hardly any black lawyers on the teaching staff at the Law Society’s Bar Admission course or on any Legal Aid committees that approve granting of certificates after an opinion has been submitted. Why is that? It is a question of deliberate exclusion. It is the same in law schools. Many practising white lawyers with only LLBs are teaching part-time at the University of Toronto or Osgoode Hall Law School. They make big money and end up getting noticed for professorship, judgeships and other professional development avenues. Blacks get left out deliberately, even those with LLMs or LLDs or Ph Ds. Why is that?

The practice engaged in by the CBAO and the Law Society is duplicated or complimented by the practices of specialized professional associations like the Criminal Lawyers’ Association, Refugee Lawyers’s Association and others. I do not recall any black lawyer ever giving a paper at any annual conference organized by the Criminal Lawyers Association. Yet there are many competent black lawyers out there. Instead it is almost the same white lawyers who speak year after year. Quite a number of these lawyers get noticed and end up as judges and so on. It is the same for some of those who teach in the Bar Admission Course.

The National is even worse in terms of excluding members of visible minorities. There are not any visible minorities invited to speak at the annual conferences. Why is that?

How about law schools? I read the Osgoode Hall Law School alumni newsletter. There are lots of initiatives promoted by the law school. However, all initiatives involve the inclusion of white lawyers only. The teaching staff is white. Visiting professors are white, teaching assistants are white, part-timers are white. The Commonwealth’s largest law school has only one black faculty member! And she is not yet a judge! Yet the law school is increasingly producing black lawyers, who are not reflected on the faculty. The Law School does not represent a model of professional development.

The Government

Virtually all persons appointed by the government to head commissions, inquiries, studies, investigations etc. have been white lawyers. These individuals have been either judges or prosecutors or they will be judges in the future as a result of being noticed because of their appointments.

All persons who have headed the special Investigations Unit (SIU) have been white male prosecutors even when this body is very crucial to the feelings of security or insecurity by blacks due to police activities. The government has failed to find not even one non-prosecutor among the hundreds of white lawyers or to find one black lawyer. The head of the SIU is a high visibility appointment. Howard Morton, a former head of the SIU, has never raised his head from his very busy legal practice, defending high profile clients, since. Before that, no one knew him as much. Even black clients flock to him because of his previous high profile standing. That is professional development.

The Commissioner appointed by the government to look into the wrongful conviction of Guy Paul Morin is white. He totally refused standing to make submission and recommendations to the only black-run group that applied for standing at the commission. That group was the Nelson Mandela Academy of Applied Legal Studies. One white-run group was granted limited standing. The Mandela Academy of Applied Legal Studies, a unique applicant among all the applicants was denied even the opportunity to make recommendations. (See Appendix 7). White lawyers who will participate in the commission will in the process promote their careers if they already haven’t. In addition they will earn mega bucks at public expense by appearing before the Commission. Blacks are shut out once again, not only from promoting their careers but from making money.

The man the government appointed to review and make recommendations on police accountability was a white former prosecutor. His career will likely go up from now onwards. The person the government appointed to review the delivery of legal aid was a white lawyer. The person the government appointed to represent it in the Carl Masters case was a white lawyer. All persons privately retained as lawyers for the government are white. They bring mega bucks to their firms at public expense. Some will advance their careers as a result. Some will become judges in the future or deputy Attorney Generals, or some other high profile position bringing an increase in either income and/or status. Blacks are shut out

When the government does appoint a black person to head anything, it is either with a white person (i.e. Commission on Systemic Racism) or to a position where the person would likely be blown up by landmines (i.e. Employment Equity Commission). The Bernardo Inquiry was conducted by a lone white judge, so was the Homolka plea-bargain study, so was the legal aid study and so was the McLeod study on Police Accountability. Why was Margaret Gittens paired up? The Arbour study on the causes of riots at the Kingston Prison for Women was done by one person. The Krever Inquiry is conducted by Judge Krever. And so is the Morin Commission. A person cannot share full limelight when he or she is paired with someone else to do something. Just look at the Commission on Systemic Racism, the Toronto Star thinks it was done by Judge Cole alone.

1. This Working Group should impress upon all professional legal organizations and bodies and law schools to promote the professional development of minority lawyers by including them in their panels, educational programmes and other activities in order to foster professional development of minority lawyers.

2. This Working Group should impress upon the government of Ontario and Canada to include minority lawyers in government appointed positions, studies, inquiries, commissions, agencies, as legal representatives of the government and so on in order to foster the professional development of minority lawyers just as it does with white lawyers.

3. This Working Group should impress upon the Toronto Star, Globe and Mail, Lawyers’ Weekly, Law Times, the National (CBA publication) to include and mention names of minority lawyers in the legal stories that they cover, in the same way that they mention the names of white lawyers. This would help promote the professional development and visibility of minority lawyers.