Originally published on Slaw, Canada’s online legal magazine; written by Moya McAlister. This is the fifth in a regular series of columns for Slaw, written by the NSRLP team.
The public interest in a commitment to equality
The Law Society of Ontario’s (LSO) Statement of Principles (SOP) is intended to ensure that lawyers regulated by the LSO commit to equality, diversity and inclusivity. These are all rights guaranteed to Canadians under the Charter of Rights and Freedoms. The purpose of the SOP is to give each lawyer a responsibility to acknowledge this and, by implication, implement it (there is no monitoring by the LSO, and each firm is responsible for its own strategy).
The public should see itself reflected in the legal profession. The alienation and disillusionment experienced by many self-represented litigants (SRLs) is exacerbated by a profession that:
- spends so much time and energy arguing over the adoption of basic principles (even on a voluntary basis) that are already part of Canadian legal and social culture;
- does not reflect the diversity of SRLs because it remains predominantly white, middle class, Anglo-centric and male.
Why is it important for the public that the profession steps up to recognize equality, diversity and inclusivity as core principles for their work?
1. Trust
When I walk into a room, whether it’s a board room, a networking event, or a classroom, my eyes immediately search for non-white attendees. This is a habit I’ve had since I was very young – desperately searching my surroundings for someone who looks like me. There are many cases where I am the only person of colour in a room, and I am very used to it, but I feel, even though I am at ease in these situations, that my guard is up slightly, not due to fear, just an unconscious cautionary action. When I enter a room and find someone who is of African descent I have a burst of excitement, and then I feel calm.
Why is this? Because I instantly feel comfortable, I know I am not alone. I am more trusting of my surroundings, I feel that the people in the room will acknowledge me and my opinions, and that I will be heard. It’s strange, as I’m writing this, that this is how I feel in many situations. To think that when there is another person of colour in the room with me, I believe that the occupants must have “black” friends, and are open and understanding to other cultures, and therefore my opinion will matter to them.
I don’t doubt that SRLs from a multitude of cultural backgrounds feel this way when they enter a courthouse or a courtroom.
2. Representativeness
Canada is diverse, therefore, those who are tasked with representing Canadians should reflect that diversity. Representation of visible minorities in the justice system not only adds a much-needed layer of trust, but acts as a way to battle stereotypes and discrimination. Legal professionals play an important role in society, and a key part of this is that they should stand for equality and fairness. This will ensure that our legal system is represented by professionals from diverse backgrounds, which will only benefit the industry by bringing different perspectives and opinions to a very old, very white, and very male legal system.
One black female SRL told me: “Speaking to a black, female lawyer who can just understand my perspective with regards to race and gender is such a relief of weight off of my shoulders. I can talk about my experiences of racism and sexism without having to prove its existence, or deal with a white lawyer’s discomfort/anger from their personal bias or subjective views (this has happened to me). I can speak about my experience and have it acknowledged as my truth, and understood that it is real. With this knowledge and this understanding, I can receive honest advice. Do I have enough evidence to support my claim knowing how my race and gender will be viewed in the courtroom, especially if I am in conflict with a person who is white and male? In a perfect world, there would be lawyers of all races and genders available to represent their clients, and they would all understand anti-oppression power dynamics, and how that can play out in a courtroom.”
3. Relevance
We’re living in the “Trump era of hate” where tolerance for hateful language – often claimed as a “free-speech” right – brings out the racist, fascist, sexist, and homophobic populations in full force. We don’t want our legal system to represent the narrow-minded, but a lack of diversity within the profession will do just that.
Digital media allows anyone to be a journalist. News spreads via phone, vlogs, blogs, influencers, and “fake news” publications, and that makes it harder and harder to filter through to factual, legitimate content. “Cyber-racism” is one significant outcome of this, and it is currently running rampant. It is too easy to spread mistrust and racial hate at the click of a button. The population is being culturally divided with ease, and it is rapidly leaking into the legal system. This system needed to change yesterday, and unfortunately now we’re playing catchup.
Saying that you are for inclusion and the elimination of cultural discrimination within the profession is one thing, but not until one can walk into a courthouse, and see non-white faces represented on the bench, and as counsel, will there truly be confirmation of real change.
4. Respecting legal standards in their own work
I’ve heard lawyers say that when they get a phone call from a SRL, they turn off the ringer and let it go to voicemail. They don’t want to deal with them because they have already decided that the SRL who is calling for their help is going to be a waste of their time and money, “vexatious”, or reaching out to a lawyer in order to sue them sometime in the future. This type of prejudice is not uncommon when it comes to SRLs.
One step in the right direction to combat prejudice is to ensure that law firms not only mandate diverse staffing strategies, but that they also be held accountable for their employment decisions, just like every other employer. I also believe that our legal educational institutions should be pushing for more diversity in the enrolment process, and offer networking opportunities that pay close attention to slashing cultural stereotypes and discriminatory policies and procedures. Diversity training is needed at the educational level so that students can better understand the needs of different ethnic groups, empathize with them, and apply non-prejudicial practices. Culture should not be a deciding factor in any situation, especially when it comes to the law. People should be comfortable in whatever environment they are in; their ethnicity, gender, sexual orientation, or the colour of their skin should not matter. All anyone wants is fair and honest representation with no personal bias.
What the debate over the SOP is NOT addressing
The representatives of the Law Society of Ontario are wasting time in endless debates that focus on arguments about “compelled speech”. This does not serve the public interest, and provides another reason for growing skepticism about whether the legal profession cares at all about the public interest, or just their own interests and conveniences.
People who experience discrimination and exclusion have different priorities. They want lawyers to take care of them and stand up for their rights. They want lawyers to treat them with respect and take their experiences of prejudice seriously. They want the Law Society of Ontario to start focusing on making legal services representative of diversity, trustworthy, relevant, and respectful of existing legal obligations not to discriminate or to exclude.
not only are they not inclusive,, sharp practice is used with impunity against the self represented,, What i do not understand is why the courts allow it, They claim to respect the public,,in fact they have an obligation to do so,, But they turn a blind eye to the use of a practice they all agree is not acceptable,when it is directed at the self represented, They did this to me, In order to dismiss my case with costs,, the file was transferred out to another district on the VERY DAY,, i had set the case down for examination of the evidence, I refiled, and provided the court with the room booking to prove it, They completely ignored me, and the room booking,
By the time babies are 2 we teach them right from wrong. They tell us in no uncertain terms when something is unfair.
We don’t need the law to teach us this; we need it to enforce the social values we need to thrive.
When the law invests more energy protecting wrong doers than it does protecting the rights of their victims it unbalances the scales. I can’t unknow what the law taught me about how some people are worth so much more than others or the irrelevance of life in general. People tell you move on & you ask, where? Is there another habitable planet I don’t know about? Lead the way.
A lawyer wrote; yes its horrific but nothing’s changed & if you attempt to right the wrongs what ever happens to you this time is “on you”. Like millions of stupid rape victims, if I walk into a bar, wear a short skirt or dare to address the court again, surely whatever harm befalls me, I was clearly “asking for.” Silencing, shaming and blaming victims works. & I imagine former CJ Mclachlin in a Law Society promoting commercial warning the public to take our torts to the legislature instead of the courts, because that’s the real route to social change. If only I had known that before I lost a decade of my life. And after speaking to literally 100’s of lawyers over the last 12 years today, I was informed that my matter personal injury matter should be addressed as a family matter. Breathe stupid, breathe.
As I watch the bodies of the endless victims of failed justice pile up & litter the world with grief at the shameful state we have devolved into, wounded as they are, they are not lying down. We know right from wrong & we are literally begging ethical lawyers to help us. You have the power to change the world. We can’t do it without you, we need you. Please help us.
Until we SRLs make ourselves count we will not be counted. An election is on the horizon and we should be already making our issue election issues but we dropped that ball. Judges respect lawyers because they have an organisation that make sits presence felt. no judge gets appointed in this country if a group,any group of lawyers object to their appointment and make the case for their objections. We SRLs still think as individuals or even as a group it should be about individual interest that we will ever be able to make our presence felt or our rights recognised. We will only be a factor when we make us a factor and that is more doable than we know
As a white and middle class male, I’m inclined to agree with your article. As a self represented litigant, I wore a suit-and-tie because it seemed appropriate and I felt comfortable. I didn’t realize that I was able to hide in plain sight with several lawyers introducing themselves to me and commenting that they didn’t recognize me. As soon as my identity was revealed, it was clear that I wasn’t welcome in this exclusive club. Unfortunately, I grew up being taught that the courts protected everyone.
The lawyers were hostile at every opportunity but the judge was clever enough to see the games that were being played. My case was dismissed (for a variety of procedural reasons) but the judge gave the defendants a warning to tread very carefully moving forward. Do not expect any mutually beneficial meeting(s) or conversation(s) with the lawyer’s. My experience is that the lawyers would rather play games describing how skilled they are in the courtroom.
The Court House Office Staff are instructed that they are prohibited from offering any assistance otherwise it could be considered legal advice.
Being a self represented litigant requires a certain type of personality, a thick skin and an unhealthy appetite for conflict. The rules are complex but the rule book is available if you ask and is offered on reserve at any law school library.
In my view, this article has hit at the core issue of Canadian Justice System. For emphasis, I reproduce the relevant paragraphs here.
“Canada is diverse, therefore, those who are tasked with representing Canadians should reflect that diversity. Representation of visible minorities in the justice system not only adds a much-needed layer of trust, but acts as a way to battle stereotypes and discrimination. Legal professionals play an important role in society, and a key part of this is that they should stand for equality and fairness. This will ensure that our legal system is represented by professionals from diverse backgrounds, which will only benefit the industry by bringing different perspectives and opinions to a very old, very white, and very male legal system.
…
Saying that you are for inclusion and the elimination of cultural discrimination within the profession is one thing, but not until one can walk into a courthouse, and see non-white faces represented on the bench, and as counsel, will there truly be confirmation of real change.”
The public and the SRLs should not think that lack of diversity in the bench as an issue only for racialized people. Every public member is affected by the lack of diversity in the bench in some ways.
For examples, SRLs are affected because, although legal profession holds stereotypes and negative attitudes towards SRLs, it is only the lawyers who can become judges and they do not need to take a judicial exam and prove their competence to become judges.
Although the courts rely on all kind of professional expertise, the bench does not reflect the professional diversity by recruiting from diverse professional backgrounds based on a standard judicial exam to recruit competent judges regardless of whether they are lawyers or other professionals.
There is no adequate diversity of generations because old appointees hold on to their seats very tight until their age of 75 and does not give way to new generations. As a result, the system keeps on maintaining the old attitudes and stereotypes without being challenged by the new generation educated in the modern context.
We all need a change to the judicial system and we all want to advocate for the change. We use our personal stories to strengthen our advocacy. Racialized people use their story of racial discrimination to strengthen their advocacy. People with disability including learning or intellectual disability use their story of disability related discrimination to strengthen their advocacy. People experiencing gender inequality use their story of gender related discrimination to strengthen their advocacy. People under poverty use their story of being prejudiced by wealthy people to strengthen their advocacy.
In addition, all the SRLs can use their story of being prejudiced by legal profession to challenge the monopoly of lawyers in the bench.
The root cause for all the issues is inequality in different ways and we all are affected by inequality in different ways.
Recently, I prepared a complaint of Canadian human rights standard, which I also used as the content of a Notice of Motion for Leave to Appeal to Court of Appeal. This lengthy document discusses the Standard of Impartiality in Canada at paragraphs 259-316 and The Flaws of Judicial Appointment in Canada at paragraphs 317-352.
I published this document in LinkedIn as an article in two parts:
Part I: https://www.linkedin.com/pulse/complaint-canadian-human-rights-standard-content-nmla-konesavarathan
Part II: https://www.linkedin.com/pulse/complaint-canadian-human-rights-standard-content-nmla-konesavarathan-1e/
Interested people please look at the sections Standard of Impartiality in Canada at paragraphs 259-316 and The Flaws of Judicial Appointment in Canada at paragraphs 317-352, and please give me your comments or feedback to improve.