Understanding Diversity in the Current Context of the Law and Legal Profession - LawNow Magazine

Understanding Diversity in the Current Context of the Law and Legal Profession

Canada is a country which represents the very meaning of “diversity”. From beginnings which involved mainly three generalized groups (aboriginals, French and English) we have evolved to become one of the most diverse societies on the planet. Now, in virtually every community in the country, from the middle of downtown Toronto and Montreal, to the smallest settlements in the far north, one may encounter persons whose roots lie in Africa, Asia, and everywhere else on Earth.

In an overall sense, then, “diversity” is a two-way street.  While most Canadians would agree that our diversity is a positive characteristic of our country and society, some sectors do not completely reflect the many and varied backgrounds of our populace.  In some areas, we struggle to become more diverse – in order to better represent and reflect the modern-day makeup of the country – and to take account of the many cultures and backgrounds of individual members of our societies.  The court system is one of these; in recent years, we have become more aware of the need for greater diversity if we are to reflect Canadian society as it is today. However, we continue to fall short in at least some areas and struggle to grapple with diversity issues in others.

Perhaps the most obvious way in which the court system is working to reflect more diversity is in its “appearance”: literally, the faces of the men and women who work within it.  For decades, the legal profession was almost exclusively the domain of white men.  In every courtroom in the country, the lawyers and judges (who were appointed from the ranks of the lawyers) were all white men. Even the court staff, and (due to eligibility rules) jurors, were almost all white men.

In the late 1960’s, however, things began to change. First women, and then, with time, more non-white students began to go to law schools across the country. Now, as we approach the end of the second decade of the 21st century, lawyers and judges are as likely to be of one gender as the other. Both groups also include members of the gay community (and persons who do not necessarily identify as one gender or the other) as well.

Whether the decision maker is an individual judge, or a member of a jury, each person’s unique and individual personal histories provide insights and influences, which usually mean the decisions made are arrived at with a wider perspective in mind, and with greater relevance to larger numbers of citizens. Similarly, in terms of racial, ethnic and religious backgrounds, the legal and judicial professions now include members from almost every group which comprise our communities at large.  That said, however, the proportions of lawyers from non-white European backgrounds continue to be somewhat lower than most of those groups in society. When it comes to judges, the representations are even lower.

One of the challenges we face in seeking to ensure the ranks of Canadian judges represent the makeup of society at large is in weighing the competing concerns of obvious diversity, and legal talent and expertise.  Of course we want the very best candidates to assume positions as judges, and do not want to sacrifice that priority in favour of appointing a less-qualified person simply to achieve the political goal of increased visible diversity.  The answer likely lies in the passage of time: as more members of minority communities attend law school and join the legal profession, more will gain the experience and expertise we seek in our judges, meaning more and more members of those communities will meet the demanding requirements for appointment to the bench.  With time, our courts will come to reflect the diversity of Canadian society even more than is presently the case.

When it comes to juries, diversity is an on-going issue and challenge. The laws about who can be a juror have changed so that jury service is no longer the exclusive preserve of white men it once was.  However, I am writing this article at a time when the composition of the rural Saskatchewan jury in the Gerald Stanley trial for the murder Colin Bushie is still a subject of controversy, and shortly after the government introduced legislation to change the way we pick juries in Canada.  The public outcry is mainly centered around the apparent lack of diversity on that jury, and the efforts by the defence to ensure no aboriginal persons were chosen to sit as jurors.

Because of the rules and methods by which juries are chosen, there are no assurances that the pool of persons summoned to court will necessarily represent the community at large.  While in most large urban centres that pool will usually include at least some persons who are not apparently Caucasian, there is no way to ensure that particular minority communities will necessarily be represented.  In other words, even where there is a sizeable minority racial or religious group in a particular centre, there are no assurances that their numbers will be represented in the jury pool fairly, or at all.  Given that in most places in Canada the majority population remains overwhelmingly “white”, most persons who attend for jury selection usually appear to be from that group. More often than not, most, if not all, of the 12 persons chosen to sit as a jury will also be “white”.  The Supreme Court of Canada has held that no one is entitled to a jury pool – or to a jury – composed only of members of his or her own ethnic or racial or religious group. Furthermore, the pool is not required to be numerically representative of the different groups which make up a particular community.  All we are assured of is that the process for summoning persons for jury duty, and the selection process itself, are fair.  This means, in practice, that most minorities who end up before a jury will not see many faces in the jury panel similar to their own; sometimes it seems the best that can be hoped is that one or two of the jurors will be of a heritage which seems to be “other than white”.

The discussion has thus far focused upon the rather superficial aspects of diversity […] [h]owever, the value of diversity, and the reason we seek it now, is deeper, and more meaningful, than that. 

As is the case when considering who is appointed to be a judge, and how best to reflect diversity in that context, so too does the question of how we select jurors come with its own complex challenges.  An accused person, and society itself, has various interests and concerns about who will be a juror. Sometimes it is not possible to accommodate racial or ethnic or religious diversity along with those other interests and concerns.  As with the selection of judges, the questions become whether we should be seeking diversity at the cost of protecting and achieving those other interests and values, and how best to seek some accommodation between those two concerns and factors.

The Deeper, More Meaningful Value of Diversity

The discussion has thus far focused upon the rather superficial aspects of diversity – literally, the visible image of the court system, in the faces and appearances of the men and women who are part of it.  However, the value of diversity, and the reason we seek it now, is deeper, and more meaningful, than that.

As with the humans who make up the court system discussed above, so too have our legal traditions and rules been based upon the English system.  The substance of, and most of the procedures associated with, our criminal laws all have their roots in the laws and court procedures developed over centuries of United Kingdom history.  With transfer of Quebec to British control in 1763, British immigrants and colonizers occupied virtually all of what was to become Canada, and they brought with them their laws and legal procedures. For 200 years after 1763, the backgrounds of the people (almost always, men) who populated the legislative and court systems meant those systems were informed by and conducted according to a single world view – that of white, British (or northern European) men.  Laws were formulated and decisions were made largely from that single perspective, with little regard for the views and values of other groups in society.

With time, our courts will come to reflect the diversity of Canadian society even more than is presently the case.

This was felt most acutely by the original inhabitants of Canada – First Nations and Inuit peoples, who had long lived and thrived under their own laws and systems of government and decision-making – who suddenly found themselves subject to, and judged by, foreign rules and procedures imposed by the white, predominantly British-based majority society.  In many ways, some more obvious than others, the law and the courts became the active tools of colonization.  “Cultural genocide” is a description which has been used, appropriately, to describe the efforts of the Canadian government, using the laws and courts, to assimilate aboriginal persons into mainstream society by criminalizing their traditions, practices and almost everything else essential to their cultures and way of life.

Even after more obvious forms of subjugation (for example, the laws prohibiting traditions and ceremonies) were eliminated, various subtle forms of systemic discrimination continued to be exercised and employed in the criminal courts to the detriment of aboriginal persons appearing before them.   For example, in various different ways and contexts, the social standing, including employment and housing, of an accused person may become relevant in criminal court proceedings.  An accused who seeks bail is more likely to be released if he is employed and has a fixed address.  Similarly, at least in the case of more minor offences, someone who is employed and providing for a family is less likely to be sentenced to imprisonment.  However, for various systemic reasons often not under their own control, aboriginal Canadians are more likely than most others to be unemployed and homeless.  As a result, when it comes to bail and being sentenced, aboriginal offenders have long been more likely than non-aboriginal offenders to be held in custody.

These are examples of hidden, systemic discrimination which have not been understood and appreciated until recently.  The discrimination is not overt and obvious – persons are not detained specifically because they are aboriginal – but when apparently “racially-neutral” factors such as employment and homelessness are considered in such situations, the result is much the same: when a racial or ethnic minority suffers higher-than-average unemployment and homelessness, members of that community are more likely to be denied release where such factors are taken into account.

In the last 20 years or so, our courts – and society at large – have started to become more aware of such issues and situations, and have begun to try to address them in meaningful ways.  For example, while having a job and a fixed address remain considerations in deciding on bail, judges will more often take account of the circumstances of aboriginal accused persons and will look at other options and terms of release to address the situations of unemployed or homeless individuals.

The value of having the experiences and input of decision-makers who are not white males of British descent is seen in other settings and situations as well.  In various different contexts and circumstances, inter-racial encounters can lead to criminal prosecutions where bias and discrimination might become issues.  For example, in 1994 a Youth Court Judge in Nova Scotia apparently relied upon her own experiences as a black woman in the course of assessing the credibility of witnesses, including the black accused, in proceedings before her.  She noted that incidents where police officers “over react” when dealing with “non-white groups” are not unheard of.  The case ultimately ended up in the Supreme Court of Canada.  That Court confirmed the value of having judges from all racial and ethnic groups in order to bring a variety of world experiences and perspectives to the Bench, but it also urged caution because in any case a judge must make her decision based only upon the evidence offered in court, and the law applicable to the situation.  Nonetheless, while a white judge – who, as a member of Canada’s majority population – might have been skeptical about the existence of racial bias in that case, this judge viewed the situation through the lens of her own personal history and experiences, and accepted that racism exists in Canada.  Other judges, too, have referred to their own experiences as members of visible minorities when faced with suggestions as to, or arguments about, the existence and occurrence of racial or ethnic prejudice and bigotry in Canadian society.

Thus, we now realize that having a variety of backgrounds and personal experiences is useful when it comes to judicial decision-making.  In light of the multicultural composition of Canada, we now  accept that the perspective and experiences of white males of European descent are not the only, or even the most important, perspectives and histories of Canadians at large. Whether the decision maker is an individual judge, or a member of a jury, each person’s unique and individual personal histories provide insights and influences, which usually mean the decisions made are arrived at with a wider perspective in mind, and with greater relevance to larger numbers of citizens.  As with any other individual, a judge or juror who is a member of a visible minority will bring his or her personal experiences with them into the courtroom; those experiences will inform the assessment of evidence and decision-making process.  Even members of the “majority” (however we might choose to define that concept) benefit by having colleagues from outside that group, who can inform the rest as to theirs personal histories in ways which open eyes to the broader picture.

In an overall sense, then, “diversity” is a two-way street.  By seeking greater diversity in the appearances – the faces – of those who work within the court system, we hope and expect that system will be seen to be, and accepted as being, more relevant to all members of Canadian society, including members of minority ethnic, cultural and religious groups.  At the same time, when members of those minority groups are fully engaged and playing roles in the court system, the value and integrity of the process and the decisions which result are enhanced because the outcomes are influenced by a broader range of world experiences and personal histories than would be the case if all decision-makers were still from the same social, economic, ethnic or religious groups.

Authors:

Charles Davison
Charles Davison is the Senior Criminal Defence Counsel with the Somba K’e office of the Legal Services Board in Yellowknife, NWT.
 


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