Friday, July 22, 2016

Do the Reasons in R v. Ururyar Reveal Legal Error ?

     I have read the Reasons for Judgment in R  v. Mustafa Ururyar (July 21, 2016) and I must confess that I am of the view that they tend to reveal serious legal error rather than any ground-breaking advancement in our criminal law.  Perhaps the most significant error which jumps out at me from the Reasons for Judgment is the appearance that the trial judge goes to unreasonable lengths to embrace hollus bolus what I will describe as the emerging "victim-focused" theory of liability.  Paragraphs 489-508 inclusive of the Reasons recite a series of propositions and academic writings which appear to be entirely without any contextual application to the facts of the case or submitted by counsel for the parties.  Clearly, if these references were not raised by the litigants but by the trial judge they may prove to be problematic to the decision withstanding appellate review.  It is also clear on a proper reading of the Reasons that the trial judge's conclusion that the defences of consent and honest but mistaken belief in consent were abandoned appear to be in error.

Victim-Focused
Theory of Liability:

     The "victim-focused" theory of liability in sexual assault and sexual harassment cases is a theory of liability founded on the assumption that the subjective perceptions of the victim of these acts or omissions is what should govern in adjudicating these matters. In the sexual harassment context, the oft-cited articulation of this theory of liability is the Court of Appeal's obiter in Bannister  v. General Motors 40 O.R. (3d) 577: "No female should be called upon to defend their dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.  It is an abuse of power for a supervisor to condone or participate in such conduct."   As I have argued elsewhere, tribunals like the Justices of the Peace Review Council and others have taken this quote to dispense with the consent defence or "vexatious" and "unwelcome" statutory defence to sexual harassment under the Human Rights Code (see for example Re His Worship Massiah (2015)). For their purposes it is sufficient that the recipient is "uncomfortable" and does not by word or conduct have to signal any disapproval with the act or utterance to the perpetrator.  The following passages from Zuker J's Reasons for Judgement in R  v.  Ururyar clearly seem to adopt this theory of liability:

[481]     Mr. Ururyar denies he sexually assaulted Ms. Gray.  Consent is therefore not an issue and more importantly Ms. Gray's historical text, even if alleged by Mr. Ururyar, may well be irrelevant.

[482]     Further since (it never took place) consent is a non-issue, there is no factual foundation, if argued, of any defence of honest, but mistaken belief in consent, although this defence was not advanced at trial.  see supra, R  v.  Ewanchuk, [1999] 1 S.C.R. 330, at paras. 41-49

[492]     Without consent, "No", means "No", no matter what the situation or circumstances.  It doesn't matter if the victim was drinking, out at night along, sexually exploited, on a date with the perpetrator, or how the victim dressed.  No one askes to be raped.  The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim's trust to commit the crime of assault.

 Consent Actually
A Live issue on trial:

     The following excerpts from the Reasons for Judgement show that consent and honest but mistaken belief in consent were in fact live issues at trial:

[227]     To find the accused guilty of sexual assault, the Crown must prove each of the following elements beyond a reasonable doubt.

i.   That Mr. Ururyar intentionally applied force to Ms. Gray;

ii   That Ms. Gray did not consent to the force that Mr. Ururyar applied;

iii   That Mr. Ururyar knew that Mr. Gray did not consent to the force that applied; and

iv   That the force that Mr. Ururyar applied took place in circumstances of a sexual naurre.

[228]   If the Crown has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. Ururyar not guilty of sexual assault.

[242]   To determine Mr. Ururyar's state of mind he knew about Ms. Gray's consent or lack of it, I must consider all the evidence.

[243]   I must consider their words and conduct before, at the time and after Mr. Ururyar applied force to Ms. Gray.

[244]   If I have a reasonable doubt that Mr. Ururyar knew that Ms. Gray did not consent to the force that Mr. Ururyar applied, then I must find Mr. Ururyar not guilty.
   

Defence Counsel
Did Not Abandon
Consent or Honest
But Mistaken Belief
in Consent:

[353]   MS. BRISTOW:  "Right. But if you don't believe his evidence, just based on Ms. Grey's evidence, in my submission, there is enough there to raise a reasonable doubt as to whether or not there was an honest but mistaken belief in consent. just based on what Ms. Grey said happened.











Saturday, July 16, 2016

Part II - Lack of Racial Diversity at Ontario's Judicial Misconduct Bodies: The Justices of the Peace Review Council

     If the Government of Ontario is serious about combating racism and systemic discrimination one of the first and most effective steps in this direction is to review the staffing and operation of its agencies and tribunals to ensure that they reflect the population which they serve and most importantly who fund them. If we have learned anything from the movement for gender equality in the administration for justice over the past twenty years it is that is in the public interest.

     In this the second post on the bodies dealing with judicial misconduct, I will focus on the Justices of the Peace Review Council.  The Justices of the Peace Review Council is the body established by the Government of Ontario to investigate and adjudicate complaints of professional misconduct against justices of the peace in Ontario.  Justices of the peace are judicial officers who adjudicate bail hearings, Provincial Offences Act matters, preside over criminal set court and various other matters. The Supreme Court of Canada has ruled that their office is subject to the well established constitutional principle of judicial independence.(see Ell  v. Alberta 1 S.C.R.. 867)

     The Justices of the Peace Review Council is composed of a council consisting of members from the judiciary, the legal profession and community members.  Cases referred to a hearing following the investigation of a complaint are presented or prosecuted by a lawyer retained by the Review Council who is refereed to as Presenting Counsel.  The lawyer defending the justice of the peace at a hearing is referred to as Responding Counsel.  These lawyers are retained by the justice of the peace and in accordance with constitutional practice and tradition under the financial component of judicial independence the Attorney General indemnifies the justice of the peace for the cost of his or her defence. (see for example - Re Blackburn(1994), Re Romain (2002), Re Obakata (2003), Re Sinai (2008), Re Quon (2007), Re Kowarsky (2012) and Re Massiah (2012))

     I will review the composition of this administrative body looking at the racial composition of judicial members, lawyer members, community members, Presenting Counsel and Responding Counsel based upon the JPRC's published Annual Reports and their decisions.

Judicial Members:

     The latest publication of the JPRC's Annual Report to the Attorney General reveals  the following judicial members:  Chief Justice of the Ontario Court of Justice - Chief Justice Annemarie Bonkalo; Associate Chief Justice Co-Ordinator of Justices of the Peace - The Honourable Justice John A. Payne (until September 2, 2013); The Honourable Faith Finnested (effective September 2, 2013);
3 Justices of the Peace appointed by the Chief Justice of the OCJ - HW Hudson, HW Ralph and HW Rozon; 2 judges of the OCJ appointed by the Chief Justice of the OCJ - Justice Rosenberg and Justice Vailancourt; Regional Senior Justice of the Peace - HW Bryant.

Observation:

     Of the 9 regular judicial members on this council all but one is of Euro-Canadian - HW Hudson is African-Canadian.  There are no Indo-Candians, no Asian-Canadians and no Aboriginals sitting on this council according to its published Annual Report.  Although we are now in 2016, the latest Annual Report which this council has published is 2013.

Temporary Judicial Members:

     In addition to the regular members on this council, the Chief Justice of the Ontario Court of Justice appears to have some jurisdiction to appoint temporary judicial members to sit as members of complaints committees or hearing panels.  The following are the temporary members so appointed in the 2013 year of business according to the Correction to the JPRC Seventh Annual Report 2013:

Justice Agro, Justice Carr, Justice DeMarco, Regional Senior Justice Leaman, Justice Livingstone, Justice Payne, Her Worship Rozon, Justice Paul Taylor and His Worship Cuthbertson.

Observation:

     Of the 9 temporary judicial members appointed to this council by the Chief Justice all of them are of Euro-Canadian.

Lawyer member - Margot Blight (reappointed June 2013 for four years).

Observation:

     The lawyer member is a Euro-Canadian.

Community members - Dr. E. Crowne, Cheri A. Daniel, M. Phillips, S. Silver (until May 1, 2013) and Leonore Foster (effective May 29, 2013)

Observation:

     It would appear that 4 individuals are appointed through the Public Appointments Secretariat to sit on this council.  The JPRC Annual Report for 2013 shows two African-Canadians, one Indo-Canadian and a person of European descent or Euro-Canadian. The Euro-Canadian's appointment ended on May 1, 2013 and was replaced by another Euro-Canadian effective May 29, 2013.

     Again, just as with the Ontario Judicial Council the Government of Ontario has clearly sought to have these members reflect the community served and funded by the them.  Regrettably, these members have little or no influence on the adjudication of judicial misconduct complaints.

Presenting Counsel:

     Like its sister body the Ontario Judicial Council, JPRC records reveal that every single lawyer appointed as Presenting Counsel to present cases before this administrative body since 1994 has been Euro-Canadian.

Responding Counsel:

     JPRC records reveal that since 1994 some 14 hearings into the conduct of justices of the peace have taken place before this administrative body.  In all but three of these public hearings Responding Counsel - i.e. the lawyer defending the justice of the peace was a Euro-Canadian.


Commentary:

     It is now conventional wisdom that diversity in the administration of justice is clearly in the public interest.  No sensible person could argue against the goal of increasing the representation of both women and the vastly underrepresented racial groups which make up our community.  One could make a very strong and cogent argument that it is simply wrong to promote one group at the expense of the other.

     Ontario has had no difficulty in raising the number of women in virtually every aspect of the administration justice over the past twenty years.  Regrettably, the same can not be said for raising the representation of the various racial groups which make up the Ontario population and who fund the administration of justice. This represents a serious short-coming on the part of our government. We need to do better. We can do better.  Attacking and remedying this serious social problem will go a long way in making Ontario a better, stronger and more vibrant society for all of us.

NOTE:  This piece is written for the sole purpose of drawing attention to an issue of public importance. If any of the facts in this piece are in error this was not intentional and the writer is committed to correcting any of them. The point of the piece is not to point fingers but to hightlight
where we we can do better.


     

   

   

     

   


Tuesday, July 12, 2016

It is a Privilege and Not a Right: Two Famous Quotes From our Past

Excerpts from Argument Against Women's 
Suffrage, 1911 by J. B. Sandford, Chairman
of Democratic Caucus :

     Suffrage is not a right.  It is a privilege that may or may not be granted.  Politics is no place for a woman consequently the privilege should not be granted to her.....

     Woman suffrage has been proved a failure in states that have tried it.  It is wrong. California should profit from the mistakes of other states. Not one reform has equal suffrage effected.  On the contrary, statistics go to show that in most equal suffrage states, Colorado particularly, that divorces have greatly increased since the adoption of the equal suffrage amendment, showing that it has been a home destroyer.  Crime has also increased due to lack of the mothers in the home.


William Lyon MacKenzie King - Prime Minister of Canada:

     "It is not a fundamental human right of any alien to enter Canada. It is a privilege."








Lack of Racial Diversity at Ontario's Judicial Misconduct Bodies: Ontario Judicial Council

     As the Government of Ontario embarks on yet another public consultation process on the lamentable problem of racial discrimination and inequality, I thought I would highlight an area of the administration of justice where there is a glaring absence of diversity:  1. Ontario Judicial Council  2. Justices of the Peace Review Council - and the lawyers who appear before these bodies as either Presenting Counsel, the lawyer responsible for prosecuting the case or as Respondent Counsel, the lawyers who defend the judicial officers.  I propose to examine the extent or lack of racial diversity on each of these administrative regimes on the basis of judicial members, lawyer members and community members, counsel acting at the hearings and their staff based on the most recently published Annual Reports for these bodies and published decisions.  I will start with the OJC in this post.

Ontario Judicial Council

    The Ontario Judicial Council (OJC) is the body charged with receiving, investigating and adjudicating complaints of judicial misconduct against judges of the Ontario Court of Justice.

Judicial Members

    The most recent Annual Report for this body lists the following judicial members:  Chief Justice of Ontario - The Honourable Warren K. Winkler; Chief Justice of the Ontario Court of Justice - The Honourable Annemarie E. Bonkalo; Associate Chief Justice of the OCJ - The Honourable Peter D. Griffiths; The Honourable Lise Maisoneuve(effective July 25, 2013); Regional Senior Justice - The Honourable Kathryn Hawke (until August 12, 2013) - The Honourable Martin Lambert (effective August 21, 2013); Two Judges Appointed by the Chief Justice of the OCJ - The Honourable Justice Fern Weinper; The Honourable Justice Eileen S. Martin (until August 9, 2013); The Honourable Justice Peter De Freitas (effective August 10, 2013)

Observation:  

Not a single judicial member of the OCJ is African-Canadian, Indo-Canadian, Asian Canadian or Aboriginal.  All of the judicial members appear to be of European descent.

Lawyer Members:

      Treasurer of the Law Society of Upper Canada( LSUC) - Mr. Thomas G. Conway

Lawyer Member Appointed by the LSUC:

     Ms. Kim Bernhardt (until August 16, 2013); Mr. Paul R. Sweeny (effective August 27, 2013)

Observation:

One of the three Lawyer members is an African-Canadian woman and the two others males of European descent.

Community Members:

     Mr. Anish Chopra; Ms. Delores Lawrence; Ms. Sylvie Powell; and Mr. Farsad Kiani.

Observation:

This category of members of the OJC is most representative of Ontario's population.  It boasts two Indo-Canadian men, one African-Canadian woman and one woman of European descent. Regrettably, this category is the least powerful.


Presenting Counsel:

     OJC records reveal that the lawyers charged with prosecuting judicial misconduct proceedings before the OJC between 2002 and 2014 are uniformly of European descent.

Responding Counsel:

     OJC records reveal that counsel defending judicial officers before OJC panels are uniformly of European descent and male.

OJC Staff:

     The OJC 2014 Annual Report reveals that the council had a staff of four.  A Registrar, two Assistant Registrars and an Administrative Secretary.  Three of the four employees are of European descent.  The lowest ranking employee is not of European descent.


    



   



     

Saturday, July 2, 2016

P.K. Subban's Experience with the Habs: A Case Study in Human Rights Law ?

 
     The majority of observers and commentators analyzing the recent tenure of superstar hockey player P.K. Subban's with the Montreal Canadiens which culminated in him being traded to the Nashville Predators for Shea Webber will insist that his race had nothing to do with it. It is all a matter of fit they say.  P.K.'s "larger-than-life" personality simply did not "fit" within the somber and "conservative" characters traits which hockey's most storied franchise "has come to expect of its stars".  P.K. Subban himself has understandably never invoked his race into this discussion. Accordingly, the objective and purpose of this post is not to point fingers or make spurious allegations but instead to further public discourse and understanding on an issue of public importance - namely equality in the workplace.

     Those of us who make a living representing workers and other victims on racial and other forms of discrimination have the benefit of seeing the P.K. Subban case in a manner which most observers are either unable or unwilling to see it.  In this post I wish to demonstrate how contrary to the conventional wisdom P.K. Subban's race arguably played a role in the Montreal Canadien's decision to part ways with its superstar defenceman and serves as a reminder to us all that we still have a way to go to achieve any semblance of equality in the workplace.

The Fear Dynamic:

     In order to appreciate and understand how P.K. Subban's race was indeed a factor in the decision to trade him one needs to be capable of appreciating and understanding the phenomenon of racism in Canada.  If one starts their analysis from the perspective that racism and racial discrimination does not exist in Canada then from the outset one's ability to understand and comment intelligently on the matter is flawed. Public policy in Canada has recognized that racial and other forms of discrimination are alive and well in Canada's workplaces.  The federal and all provincial legislatures in this country have all passed laws prohibiting discrimination in employment.

     P.K. Subbans entry into the NHL had all the hallmarks and trappings of superstardom.  Called up from the Habs CHL affilliate during the 2009 playoffs the young Subban was immediately compared to the likes of legendary players like Bobby Orr and Larry Robinson.  P.K. himself never compared himself to any of the greats. P.K. simply played his game.

     Steven Stamkos, John Tavares and P.K. Subban all grew up playing hockey in the Greater Toronto area as children.  Each of these young men come from families which are recent immigrants to Canada.  Stamkos - Macedonian, Tavares - Polish and Portuguese.  Subban - Jamaican and Monstratian.  They all made it to the NHL.  They are all recognized superstars in the NHL. No one compares Steven Stamkos to Wayne Gretzky or Marc Mercier.    Why ?  I submit it is because of a dynamic that I have come to see in my work as a human rights lawyer in this country which I refer to as The Fear Dynamic.

     The Fear Dynamic is an intentional and often unintentional defence mechanism which motivates the dominant group in a society to establish unofficial structures and practices which have the effect of defining, unfairly objectifying and otherwise circumscribing the accomplishments of others in order to preserve the dominant group's perceived superiority over others.  The operation of this phenomenon is not restricted to race.  In my work as a human rights lawyer I see this same phenomenon operate to keep women  out of leadership roles in the workplace.

    NHL analyst, Darren Pang - while comparing P.K. Subban to Alex Petrangelo, another gifted defenseman of European descent inadvertenly hit the nail on the head in trying to explain why P.K. Subban seemed to always raise the ire of hockey observers and pundits. He said Pietrangelo "does everything, on the ice , off the ice the white way."  The Greatest - Mohamed Ali - reminded us years ago why America's white establishment had such a strong distaste for him. Ali said he would not allow them to dictate to him who he was and how he should be.  Reading between the lines this dynamic seems to have been operative during P.K.'s tenure in Montreal.  In commenting on P.K. recently hall of famer, Guy Lafleur suggested that P.K. was "too loud" and that "somebody would have hit him with a stick" in his day.

     Subban is a deviation from the norm.  Subban is in a place where people who look like him are simply not expected to perform at the level at which he does.  Subban and his performance causes discomfort or to borrow a phrase from social psychology "cognitive dissonance" to many in the Canadian public and it would arguably appear to some in the Hab's management.  In order to alleviate the discomfort caused between the expectations from players like Subban - an African-Canadian and his superstar-calibre performance - an adjustment of the reality must take place.  The narrative must change to P.K. Subban may be a superstar BUT he has character flaws which make him unfit and undesirable to the goals of our team.

     Anyone who knows anything about racism, anti-semitism, etc and discrimination is well aware that these phenomena rear their ugly head during times of economic crisis and in the sports world - team failure. The Habs failed dismally last season.  Ordinarily, the general manager and or coach answers with his or her job for team failure.  Michel Therrien for his part was given an assurance of job security before the season ended.  Those familiar with the Habs will tell you honestly that left to Montreal Canadiens' management Subban would have been traded last year.  Instead, Jeff Molson had to step in and extend a contract commensurate with superstar status to Subban.  Reports suggest that this contract made Subban the highest paid defenceman in the NHL and the third highest paid player in the league overall.

     In a society which is still struggling to bring its officially stated policies of multiculturalism, bilingualism and tolerance into a coherent and workable framework to bring equality in the workplace to all Canadians, Subban's experience with hockey's fabled franchise is a classic case study to underscore just how far we have to go on this score.  We all laughed heartily when P.K. so eloquently and accurately mimicked Don Cherry with George Stroumboulopoulos on Hockey Night in Canada recently.  I laughed.  Hockey Night in Canada fans laughed. I submit that we laughed because comedy is often the unconscious vehicle through which we unconsciously acknowledge both our strengths and failings as a society.  P.K. Subban, it would appear, was held to an arbitrary standard that he could never possibly meet.  The same arbitrary standard that women and other minorities must strive to meet everyday in our workplaces across the nations.

     It is now well established in Canadian human rights law that the moving party need not prove prove intent in order to establish a prima facie case of racial discrimination.  For the mere purpose of argument the following facts in the P.K. Subban case point to a prima facie case of discrimination on the basis of race in my view:

- P.K. Subban is an African-Canadian hockey player;
- With the exception of Carey Price, P.K.'s junior and professional accomplishments and statistics exceeds everyone on his team;
- P.K. - unlike his contemporaries - Stamkos and Travers - was overlooked to be captain of his team;
- But for the intervention of Jeff Molson last year Habs management led by Mr. Bergevein were content to part ways with Subban last year;
- Jeff Molson stepped-in and publicly acknowledged P.K.'s worth to his business interests;
- Subban was awarded the Jean Beliveau trophy in 2015-16 for his contributions in the community;
- The Montreal Canadiens failed to make the playoffs this season and had one of their worst seasons in recent memory;
- P.K's no trade clause was scheduled to take effect July 1st, 2016;
- Leaked media reports suggested that Mr. Bergevin was speaking to other teams about P.K;
- Mr. Bergevin denied these reports;
- On June 29th, 2016 P.K. Subban was traded - a mere two days before his no trade clause kicked in;
- Mr. Bergevin stated it was a "difficult" decision to part ways with P.K. and elected before the end of the season to support "his coach" Michel Therrien who many observers felt had a strong animus against P.K. for some time now.

     P.K. would not be required to establish that racial discrimination was the only factor in his case.  All he would have to establish is that it was a factor.  On all of the facts as I know them I think that could be easily established.  Since cases are decided on evidence and findings of fact, it is understood this entire exercise is limited to the facts which the writer and the public have been privy to.







     

   

  

Saturday, June 25, 2016

Greenspan: "The Role of the Defence is Making Sure Democracy Works" - An Examination of Groia's Prosecution

     Law is a challenging area for the media to report upon.  Many in the media lack the knowledge of law necessary to report critically and intelligently on legal issues. In making this statement it is not my intention to unfairly criticize the media but merely to make what I see as a relevant observation.  As a direct result of this limitation, the reporting of legal issues by our media is focused on outcome first and foremost - guilty - not guilty - incivil - rude - profane etc.

     The media's coverage of Mr. Groia's prosecution for incivility has - like many other legal issues covered by the media- understandably been more results oriented and has fallen short of delivering the underlying facts and issues to the interested parties - lawyers and the people they serve.  For example, few in the public are aware of the following ten salient facts in the Groia case:

1.   The Law Society of Upper Canada(LSUC) began its "investigation " of Mr. Groia in February 2003 on its own initiative after Investigation Counsel read an article in the National Post concerning the state of the Felderhof trial.

2.   The LSUC called no witnesses before the Hearing Panel. It relied exclusively on the reasons of Justices Campbell and Rosenberg and the Ontario Securities Commission's submissions.

3.   Joe Groia testified in his own defence along with Nicholas Richter, Kevin Richards, Mr. Felderhof, Brian Greenspan, Professor Alice Wooley, Stanley Fisher and Peter Hoy.

4.   The Ontario Securities Commission unsuccessfully raised issues of Mr. Groia's conduct before the trial judge.

5.  The Ontario Securities Commission unsuccessfully brought a judicial review application claiming that the trial judge had lost jurisdiction, on amongst other grounds by failing to restrain Mr. Groia from "making unsubstantiated allegations" against the OSC prosecution.

6.   The Divisional Court dismissed the OSC's judicial review application.

7.   The OSC appealed unsuccessfully to the Court of Appeal.

8.   The trial continued until its conclusion before the trial judge and Mr. Groia's client was fully acquitted.

9.   The trial judge censured OSC counsel for their refusal to abide by his ruling.

10.  Counsel for the OSC apologized to the court.


Excerpt from Mr. Groia's Factum 
at Divisional Court: 

[54]     Justice Campbell dismissed the OSC application.  He found that Justice Justice Hryn had not lost jurisdiction and made the following comments:

-    The trial was hard fought with a degree of excess on each side, with no side having a monopoly over incivility or rhetorical excess.  That animosity spilled over into the judicial review proceedings, with Mr. Code for the OSC characterizing Mr. Groia's arguments as a "bald-faced lie" and comparing him to a "bomb-thrower" four months after 9-11.

-    Hryn J. took the daily temperature of the trial and had a wide discretion to determine how to deal with the conduct of counsel in the course of making their submissions.

- The dividing line between colourful language and abusive language is not always clear and it was not the task of the court to pick over every word of Mr. Groia's submissions to see if they might be considered offensive.

- Mr. Groia was entitled to make allegations of abuse of process and professional misconduct.  Justice Hryn did not lose jurisdiction and those allegations did not affect the fairness of the trial.

- Nothing in Mr. Groia's submissions could have reasonably prevented Mr. Naster from discharging his prosecutorial duties in a professional manner.


Excerpts of Brian Greenspan's
Evidence:

"The way I perceive it is Mr. Groia was making repeated accusations, and it was to some extent finding a receptive judge who was increasingly of the view that the Crown was misconducting itself. I think that is the flavor of the trial.....I think that is the dilema.  I may not have described it exactly the way it unfolded her, but that's the tension.  It's the tension between your obligation to your client."

"Quite frankly, without being too romantic about it, many of us think the the role of defence is making sure democracy works.  So you look at it and say, "If I'm there and I see a judge letting me do something, unless its getting really difficult, I think that you might push the envelope as far as you possibly can."  (Evidence of Mr. Greenspan August 18, 2011)


Wednesday, June 22, 2016

The Struggle for Admission by Women and African-Canadians in Ontario's Legal Profession

     The Province of Ontario was established in 1867.  Prior to this time, the area of land now known as Ontario was initially known as Upper Canada.  Upper Canada was a British Colony.  In what was Upper Canada neither women nor African-Canadians had any legal status to be lawyers in that jurisdiction.  The area was later known as Canada West from 1841 to 1867.  The status of both groups appears by the accounts I have reviewed to be the same - neither women nor African Canadians were permitted by law to practice as lawyers.  In this era it was clearly a privilege to practice law and not a right.

Admission of African-Canadian
Delos Rogest Davis:

     Delos Rogest Davis, an African-Canadian could not practice law in Ontario by gaining admission like everyone else through The Law Society of Upper Canada.  In order for Delos Rogest Davis to practice law in Ontario the Legislature of the Province of Ontario had to pass legislation permitting him to do so.  Davis was unable to find a white lawyer willing to hire an African-Canadian student-at-law.  William Balfour, a Liberal MLA introduced a bill in 1884 which authorized Delos Rogest Davis to practice law in Ontario.

Admission of Clara Brett Martin:

     The first woman to be admitted to practice law in Ontario was Clara Brett Martin.  Ms. Martin was admitted to practice law in Ontario in 1897.  Like, her African-Canadian brother Ms. Martin faced unspeakable hurdles in order for her to share in the privilege to practice law in Ontario.  First, her application for admission as a student-at-law was referred to a special committee of benchers.  This special committee it is said denied Ms. Martin on a preliminary question of law, without hearing from Ms. Martin.  The legal question they considered was whether women could be admitted since the enabling statute made reference to "persons" and women were not considered "persons" at the time.

     Ms. Martin was denied admission as a student of law by the special committee of the Benchers of The Law Society of Upper Canada on the basis that she was not a "person" and therefore could not be admitted as a student-at law.

Legislature Intervenes Again:

Student-at-Law

     Once again Liberal MLA, William Balfour steps in and introduced a bill compelling The Law Society of Upper Canada to interpret the word "person" to include women.  A bill was ultimately passed allowing that The Law Society of Upper Canada had the power to admit women as student-at-law.  The benchers ultimately voted by a margin of one to admit. The deciding vote was that of the Premier of Ontario, Sir Oliver Mowat, in his capacity as ex officio bencher.  Ms. Martin successfully completed her exams finishing first.*  She then pursued becoming a lawyer.

Admission as Lawyer

     Ms. Martin's struggles for admission were far from over.  The Law Society of Upper Canada declined to admit her.  Again, the legislature passed a bill authorizing The Law Society of Upper Canada to admit women as lawyers.  Again, Mr. Mowat, now the former premier intervened and Ms. Martin was admitted as a lawyer on February 2, 1897.

- 1960 - first African-Canadian woman admitted as a lawyer, Myrtle Blackwood Smith
- 1976 - first Aboriginal woman admitted as a lawyer, Roberta Jamieson


Commentary:  What's in a name ?

     Upper Canada was a colony of Britain.  It no longer exists.  When it did exist it had a record on fairness and equality that is incompatible with the present standards and values.  There is no sound policy or other reason for continuing the current name of the regulator of lawyers in Ontario as The Law Society of Upper Canada.

  

NOTE;  This piece is written to draw attention to issues of public importance and interest. I am not and do not profess to be a historian.  I am a mere lawyer.  The main source of my information for this piece was the following:  Clara Beth Martin by Beth Atcheson, April 23, 2003; William Balfour from Wikipedia. If any of the historical facts discussed above are in error I remain fully committed to correction as this exercise is not one of pointing fingers and making accusations but one of enlightenment. I am a firm believer that our system works best when we learn and continue to improve ourselves.