Monday, June 12, 2017

Cross-examination of Nicholas Rule on Racial Bias in Judgments of Physical Size and Formidability

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)
Created June 12, 2017

On June 12, 2017, at the Andrew Loku Inquest I crossed examined Professor Nicholas Rule on an article he coauthored: Wilson, J. P., Hugenberg, K., & Rule, N. O Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat. Journal of Personality and Social Psychology.Advance online publication.

--- E x T R A C T ---
          Q.   Good afternoon, Dr. Rule.
A.   Good afternoon.
          Q.   I am Selwyn Pieters.  I represent the Black Action Defence Committee.  Now, you spoke about implicit bias as perceiving or having Black men stereotyped as angry and aggressive.
A.   I did.  Yes.
          Q.   And you spoke about the shift of Black men being happy go lucky or Black people being perceived as happy-go-lucky people.
A.   That’s right.
          Q.   Right.  This angry and aggressive posture that comes from implicit bias, would you say that that is something that infects society as a whole?
A.   It certainly affects society as a whole, yes.
          Q.   Then so if that is the case, then the fear of a Black man is based on implicit thought processes rather than objective fear, would you agree?
A.   I would agree.
          Q.   You mentioned a shopping mall example with respect to a wallet and a gun.  You recall that?
A.   I do.
          Q.   And you mentioned that it is likely that the perception would be the Black person having the gun?
A.   That’s what the studies have shown, yes.
          Q.   Right.  So, if that situation is replicated in real life in a shopping mall where a White man has a gun and the Black man has the wallet, would it be the case, taking what you said or say -- the association of black with crime is and implicit association of Black people with crime -- that the Black person would be at risk of violence from the police or a negative reaction?
A.   You mean as opposed to the White person --
          Q.   Yes.
A.   -- with the gun?  I don’t know that it would necessarily go that far, actually.  So I think that it would be more likely that the presence of an actual gun would be a more salient stimulus to draw attention.  So I -- it is -- the studies do show that people are more likely to mistake the wallet for a gun in the hands of Black person and that they’re then faster to make a shoot decision, but it doesn’t necessarily mean that they would mistake a gun for a wallet per se in the case of a White person.
          Q.   Very well.  You’re familiar with the Diallo situation in the U.S. where a Black man was shot taking a wallet out of his pocket?
A.   I am.
          Q.   Very well.  You mentioned, you spoke about implicit bias and then you spoke about implicit racism.
A.   That’s right.
          Q.   Define implicit racism for us.
A.   Implicit racism would be beliefs about a group defined by its race that are held implicitly and are of negative valence against that group.
          Q.   Very well.  Now ---
A.   If I can -- I would say implicit racism is a specific type of implicit bias.
          Q.   But it’s racism nonetheless?
A.   That’s right.  Yes.
          Q.   Right.  Would you say it’s possible for Toronto Police to compile social science data on implicit bias in relation to individual officers from the time they join the force and as they progress through the force?
A.   It is certainly possible for us to measure implicit associations held by a particular individual and to track those for changes over time.
          Q.   What about systemically within the organization?
A.   Within the organization you would need to make those individual assessments and then you could perhaps aggregate them to say that, you know, a given group of individuals is more prone towards a particular level of bias.  Though, I don’t know that that would necessarily constitute the same idea as an institutionally endorsed or a reiterated notion.
          Q.   I’m going to put some propositions to you and you can tell me whether you agree or whether you disagree or you can explain it.
A.   Sure.
          Q.   I’m going to suggest to that the perpetuation or the perpetration of implicit bias is a form of violence based on what you described today in respect to how Black men are perceived and treated.  
A.   It would depend on the way that one defines violence.  If one defines violence as a physical behaviour then I would not agree.  If one defines violence as, you know, including aggressive thoughts, that might be possible.  However, I might still disagree, actually, because I think in that case they would need to be conscious thoughts for them to be considered violent.
          Q.   Yes.  But if someone has implicit thoughts of violence against someone, are you saying that that would be excused?
A.   No.  I don’t think that one would necessarily have implicit thoughts of violence.  So, the nature of the way that, you know, a human would think about violence or particular actions wouldn’t necessarily be at an implicit level.  Those would have to occur somewhat more explicitly.  The implicit level would simply be the associations between two concepts, so it’s a -- it’s a much more basic thing.  But to actually consider a violent act, or any behaviour of that sort, would require a -- an either explicit or semi-explicit level, I think.
          Q.   I take it from your testimony, you can agree, disagree or explain it, that this implicit bias that you spoke about and that you researched and wrote about, it perpetrates oppression against a specific race and that’s Black people.
A.   I think I could agree with that.
          Q.   I also take it from your study and what you said today that the relationship between discrimination on the basis -- there is a relationship between discrimination on the basis of race and implicit bias?
A.   There is and that would be implicit racism.
          Q.   And that there is a relationship between prejudice, stereotyping, discrimination and implicit bias?
A.   There certainly is, yes.
          Q.   And that discriminatory attitudes and implicit bias are mutually exclusive?  Or they go -- sorry, not mutually exclusive.  They go hand in hand?
A.   Yes.  But not in a bidirectional manner.  So, as I said earlier, implicit bias would be present when there are discriminatory attitudes, but implicit bias can be present without discriminatory attitudes as well.
          Q.   You said something here and I’m going to put something to you and you can tell me what your position is.  You said we favour people who look like us in very important ways. 
A.   That’s right.
          Q.   So, I’m going to put this to you: Colour blindness and excuses are the means by which the dominant group maintains its position.  I can put it differently.
THE CORONER:  Perhaps if you did rephrase it might be easier for the witness. 
          Q.   If what you said today in evidence is true and this implicit bias has its most virulent or its most devastating impact on Black people, let’s say in Canada or in Toronto, then we can’t really boil down implicit bias or any of these things in a colour-blind way.
A.   Well, what I can say about colour blindness is that it’s typically regarded as an ineffective strategy for dealing with race relations.  Colour blindness typically -- so the idea of colour blindness is the notion that if we ignore differences between groups -- in this case racial groups, groups defined by colour differences, typically -- that there won’t be problems.  That if we just, you know, if we don’t see the differences then there aren’t issues to discuss.  The data have clearly shown that that is not effective but rather it masks the underlying issues.  But rather an approach that acknowledges differences and discusses those differences is more effective for ameliorating any discrepancies that are based on those differences.
THE CORONER:  Mr. Pieters, a time warning.  You have two minutes.
MR. PIETERS:  Very well.  I’m going to finish way before then, Dr. Carlisle.
THE CORONER:  Anything you can do to help.
          Q.   What effect does denial from a systemic level, for example, a president of a police association denying that police act on implicit biases, have on managing that association or managing its members in dealing with issues of implicit bias or racism?
A.   I think that that would likely be problematic.  I think any time that -- if we’re truly discussing denial as a concept whereby one knows one thing but does not wish to accept it, as denial is often used in the psychological literature, then that wouldn’t be -- that is not a productive step towards making any kind of change.  It’s important that one acknowledges a phenomenon before one can potentially even deal with.
          Q.   What would be your recommendation to the jury for a police service to confront this issue and deal with it?
A.   That’s a very big question.  I think that, you know, if there are differences in the way that suspects are being treating on the basis of their race, then certainly an examination is required to understand why this is occurring, how it’s occurring and then steps would need to be taken.  If it’s determined that this is based on implicit biases, that is associations or expectations that people from one racial group are more prone to criminal behaviour than another, then some of the training exercises that we discussed earlier today might be appropriate for attempting to correct those biases.
          Q.   Than you, Dr. Carlisle.  Thank you, Dr. Rule.
A.   Thank you. 

THE CORONER:  Thank you, Mr. Pieters.
See also, Wendy Gillis, Black men perceived as more threatening, expert tells Andrew Loku inquest, Toronto Star, June 12, 2017

Sunday, June 11, 2017

Implicit bias, anti-Black racism and police use of force in Toronto, Ont...

Implicit Bias and Race:

Implicit bias is widely accepted as affecting nearly every criminal justice context.
Implicit bias in policing affects the ability to detect threats with Black suspects, the decision to use force, and ultimately, the approach to the Use of Force Model. For example, Black suspects are viewed as larger, more physically imposing threats, with or without a weapon. Racial profiling is both an act and a title. People notice what race we are on an everyday basis. Some individual Police Officer act on their personal biases.
That has always been the case. However, given that racial bias is largely implicit, i.e. officers are unaware that race plays a role in their interaction with Black suspects, the discussion of implicit bias needs to be progressive. Implicit bias is hard to detect because officers are unable to have any introspection into how race plays into their decision-making. This is especially prevalent for officers who genuinely hold the position that race was not a factor in their decision to use force. Bias-free policing looks at behaviour, rather than appearance, to come to strategic decisions.

If race even only plays a factor amongst many factors in the decision to act or refrain from acting, the manner in which Black suspects are treated can be dramatically different than the way White suspects are treated in similar situations. In other words, race does not have to be the cause for the interaction with a suspect, however, when race factors into the decision on how to approach a conflict, the results can be disastrous. Racism Behaviour is not a social issue that simply disappears over time; it requires a myriad of active decisions to raise awareness of implicit bias and extensive training. Implicit bias has an inexorable link to the decision to use force.

One of the primary decisions that must be made in use of force is the decision to de-escalate, even in the face of a threat. In the following section I outline the legitimate considerations that are involved in threat assessments and the decision to use force.
Race will never be a legitimate consideration.

This is not to say that the officers involved are necessarily racist or have any malicious or malevolent racist impulses; but the officers, under the pressure that comes with the job as an officer, may have what has been termed a "shooter bias." Shooter bias research suggests that there is a bias for white people to shoot Black suspects more often than White suspects. This is predominantly rooted in the belief that Black suspects, armed or unarmed, are more volatile and dangerous. If the officer has the implicit bias that there is a greater danger posed by a Black suspect, they feel justified in using a corresponding response according to the Use of Force model.

I will discuss the considerations that go into the decision to use force, including when force can be used, the types of force that can be used, the use of force continuum, the factors to determine whether the use of force was excessive or not, and the broad and flexible powers of de-escalation. One must never forget that "Hormonal Induced Stress" often affects police officers in deadly force encounters.


Sunday, June 04, 2017

Black Action Defense Committee Granted Standing in Andrew Loku Inquest

The Black Action Defense Committee will be representing the Black Community’s Interest at the Inquest into the Police Shooting Death of Andrew Loku on July 7, 2015. The Inquest opens tomorrow, Monday June 5th at the Coroner’s Court at 25 Morton Shulman Ave. Toronto, Ontario M3M 0B1.

BADC will be represented by Civil Rights Lawyer Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public

The following points are of Particular Interest to BADC:

1.   Andrew Loku’s killing by the police in less than 90 seconds of arriving on the scene is very troubling and The Black Action Defense Committee is interested in exploring this Issue more fully at the Inquest.
2.       The current police methods and practice in responding to crisis calls, by deploying police with lethal weapons and the use of lethal weapons as the initial intervention strategy when it is well known that Police officers give commands and that distraught or angry people react very negatively to force and commands is of grave concern to BADC.
3.       BADC wants change to the Paradigm in how crisis calls are viewed by the police to reflect a human service crisis intervention model in which human service professionals with appropriate behavior management and Crisis intervention skills are first deployed to defuse the situation.
(As a mental health professional I have been involved in defusing crises by utilizing human relations and human service/ behavior management responding skills to, successfully deescalate crisis situations for Decades.) 
4.       Since many of these situations end up in the police killing the agitated individual, we propose that prior to police intervention, a skilled human service professional with crisis management and behavior management skills be deployed; to do the intervention and only if, and when, that person advises the police that the situation cannot be resolved without their direct intervention should the police approach distressed people.
5.       For this to work, Police Services would need to hire a significant pool of human service trained professionals in order to have them deployed as first responders in such situations.
6.       Alternatively, we recommend the creation of another agency that will first deploy when 911 calls indicate someone in crisis. Those professionals would be able to defuse the situation and assess whether further professional assistance is required by the individuals and engage the appropriate type of services for the individuals in question. (Not necessarily the traditional trip to the Psychiatric Hospital.)
7.       Another area of interest of BADC, is exploring what a rational standard ought to be, for officers to use to determine when their safety or life is in danger. This cannot be left up to individual officers judgment, without guidance because not all fears are rational and if the standard remains alleged fear by the office, without any objective criteria for assessment of the risk, then innocent people that pose no harm will continue to die at the hands of police.

BADC believe that the reasonable person’s test should be applied to this situation to develop a set of standards to be used by police and other first responders. 


The Black Action Defense Committee was established after the Police Killing of Lester Donaldson in 1988. Mr. Donaldson was a Black Man with mental health problems. He had been the subject of extensive police harassment and a prior police shooting which left him disabled.
BADC sought standing at his inquest to determine what if any role race played in his shooting but standing was denied on the basis that there was no evidence that race was a factor despite several Affidavits to the contrary. See case below re litigation and appeal of the Coroners decision.

Black Action Defence Committee v. Huxter, Coroner, 11 OR (3d) 641; [1992] OJ No 2741 (QL); 59 OAC 327 (ON SC), <>

Since Lester Donaldson’s death, several other Black men have similarly been killed by the police and numerous inquests have been held which attempt to explore how race and mental health issues are addressed by the police and why lethal force is usually deployed when these two characteristics, being Black with mental health issues intersect.
For further information,
Contact: Kingsley Gilliam 647-267-1774

                Valarie Steele    416-656-4624 

Thursday, April 06, 2017

80,000.00 damages plus $20,000.00 costs against Toronto Police for Racial Profiling

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 April 06, 2017

In Elmardy v Toronto Police Services Board, 2017 ONSC 2074 (CanLII), <>, a Divisional Court panel awarded $50,000.00 Charter damages and $25, 000.0 punitive damages award plus $20,000 costs against Toronto Police Services Board and Police Constable Pak.

This was a typical carding case: [11] The police gave the Appellant no reason for his detention and he was not advised of his right to counsel. During the incident, the police filled out a card, known as a 208 card or field information report, for the Appellant. Part of the information to be included on the card was the Appellant’s skin colour, which was filled in as “black,” and his birth place, which was filled in as “Sudan.” The police did not explain to the Appellant that he was being “carded.”

The analysis in this case showed the Divisional Court was alive and in tuned to the dynamics of racial profiling:

[19]           The only reasonable inference to be drawn from the fact that both officers, without any reasonable basis, suspected the Appellant of criminal behaviour, is that their views of the Appellant were coloured by the fact that he was black and by their unconscious or conscious beliefs that black men have a propensity for criminal behaviour. This is the essence of racial profiling.
[20]           In this case, the officers’ unreasonable beliefs about the Appellant caused them to assault the Appellant, unreasonably search him and forcibly restrain him. In other words, instead of presuming his innocence, they assumed and acted as if he were guilty and dangerous. He must be violating his bail and he must be carrying a gun. These assumptions, for which there is no explanation other than the colour of the Appellant’s skin, caused them to blatantly and aggressively violate the Appellant’s constitutional rights.
[21]           The trial judge found that the officers’ real motivation for stopping the Appellant was so that they could “card” him by filling in information on a 208 card. This begs the question of why the officers would single the Appellant out for “carding.”
[22]           However, the trial judge also found that the officers lied about why they stopped the Appellant and “backfilled” a purpose after the fact. Lying about the real reason for a stop is another basis for drawing the inference that what motivated the stop was the Appellant’s race and colour. As noted in Brown, at para. 45, the inference that a police officer is lying about why she or he singled out an individual for attention is a circumstance that is “capable of supporting a finding that the stop was based on racial profiling.” Such a finding becomes even more compelling when, as here, the “lies” that the police chose to tell about why they stopped the individual are based on racial stereotypes, such as the belief that black men are more likely to be on bail and more likely to be carrying weapons.
[23]           Contrary to the finding of the trial judge that there is no evidence from which one can draw the inference that the conduct of the police officers was racially motivated, there is no other reasonable inference that is available from all of the evidence. The explanation the officers gave for their behaviour was both rejected by the trial judge and infected with racial stereotypes. Given this, there can be no issue that the Appellant’s right to equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter was also violated.

"The Appellant was an innocent man who had fled his country looking for a society in which his rights would be respected. Instead of finding the respect to which he is entitled, he was subjected to humiliating, violent and oppressive behaviour from one of this city’s police officers, all because of the colour of his skin. Further, when questioned about their behaviour the police officers were found to have lied to the Court, conduct that can seriously undermine the administration of justice."

Hopefully the Human Rights Tribunal would take note of this decision and start to up its awards in these cases.

Monday, March 20, 2017

Selwyn Pieters Response to Senator Vern White comments

Selwyn Pieters Response to Senator Vern White comments
On CTV’S Question Period, March 19, 2017

As it relates to Senator Meredith’s conduct with Ms. M., the Senate Ethics Officer investigated and in her report found that he has violated various provisions of the Ethics and Conflict of Interest Code for Senators. Senator Meredith last week apologized, in a wide ranging Canadian Press interview, for his moral failings and poor judgement to his family, “Ms. M”, fellow Senators and the public. He then asked for forgiveness and reconciliation.

As a local and international human rights lawyer I am sensitive to sexual exploitation and to patriarchy and understand that there would be vulnerability and a power imbalance when a 16 year old (girl or boy) is in a sexual relationship with a middle aged important person be it a Senator, Judge, Doctor or businessperson. What is important here is that Senator Meredith’s conduct, short of a resignation, has to be adjudicated by his peers in the Senate. It is they that must determine what the just sanction to be impose in this case having regard to any mitigating circumstance, personal circumstance, the public’s interest and general deterrence.

In terms of the criminal investigation, as a former Chief of Police, of the Ottawa Police Service, Senator Vern White would be in the best position to know the competence or the lack thereof of its sexual assault squad investigators. I would note though that when the matter was referred to the Ottawa Police Service in 2015, it was the expectation of Senator Don Meredith, his family and the public that a thorough and fair investigation would be carried out by the police. That investigation concluded and no criminal charges were laid.  In cases such as these investigators has access to in-house legal advisors and Crown Law prosecutors. If there was any reasonable grounds to lay charges under section 153 of the Criminal Code or any other provisions, such charges would have been laid.

Wednesday, February 15, 2017

Racial profiling in the Courtroom, the classroom, Lsuc and other legal spaces

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 February 15, 2017

Stereotypical Identification of Black Men as accused Person is Typical in our System of criminal (in)justice. Those who disagree has not walked in my shoes so cannot persuade me otherwise. Here is an encounter at Old City Hall for which I had to educate the Crown lawyer.....

I am a Black male who is a Barrister & Solicitor. I write with respect to your conduct this afternoon in courtroom 111 at Old City Hall... I had signed in on the Counsel sheet representing an accused person (Male, White, 32, blue eyes, brown hair). I then sat in the counsel area directly behind you waiting for the case to be heard. This was a matter that was screened for diversion as it was a theft under from LCBO $12.95 bottle of Liquor.

When you stated to the Justice of the Peace that there were no more counsel matters, without me hearing you call the matter for which I was providing representation, I stepped forward from counsel area to alert you to the fact that there was indeed one more counsel matter. Instead of listening to me, you pointed to where the unrepresented accused persons were and directed me to go and join the line. I had to remind you that I am a lawyer. You did not even apologize. I have been in courtroom 111 where you were crown on numerous occasions and I was very shocked, surprised, embarrassed and in some way humiliated by your behavior. All you had to do if you were not sure whether or not I was a lawyer is ask the question, not assume I am an accused person who should join the back of the line.

You may or may not know that Black male lawyers are fed up being treated as though they are accused person when practising before the courts......

I believe there is a need to record today's incident because it reinforces certain stereotypical attitudes and notions that indeed results in racial profiling.

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 <> 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), <>, 

 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.