Wednesday, February 22, 2012

Black History Month

The Mayor of Toronto’s Proclamation for Black History Month 2012, states:

Black History Month reminds us that African Canadians have been at the forefront of the struggle for fair treatment and equal opportunity for all. It challenges us to reaffirm our efforts to address the causes and effects of racism and recommit ourselves to building an inclusive society.

Back in 1993 the Ontario Court of Appeal held that there is support for the view that “widespread anti-black racism is a grim reality in Canada and in particular in Metropolitan Toronto.” We still see plenty of examples of racism in the workplace today – though much of it, is subtle.

One of the most interesting decisions that I have read regarding anti black racism is Selwyn McSween v. Law Society.  This decision was released just one month ago. It is the dissenting opinion of renowned criminal lawyer, Clayton Ruby that is relevant to the struggle for fair treatment.  McSween went to law school at the age of 52. He was 58 when he was called to the Bar.  After articling with an established firm, he was unable to find a position as an associate with a firm.  He did find work as the CEO of the Caribana festival.  He determined that he wanted to do real estate law, though he had apparently not been exposed to this during his articles.  Eventually he began his own practice – in somewhat of an unorthodox fashion.  Through Caribana, he had met a para legal with experience as a real estate clerk. Discussing his law career aspirations with her led to a meeting in the clerk’s car where she offered to teach him everything she knew about real estate, give him an office, refer files to him, and not charge him for her processing of the files.  Sounds like a good arrangement which McSween accepted.  The arrangement lasted about 6 months during which 40 real estate transactions were processed. Unfortunately for Mr. McSween on at least 10 of these transactions fraud occurred.  It appears the clerk was behind the fraud. McSween was disbarred.
McSween was born in abject poverty in Trinidad and Tobago and came to Canada at the age of 22. He earned a B.A. at the University of Manitoba and then a M.A. (for which he received the gold medal). In 1976 he began a Ph.D at the University of Toronto.  Prior to law school he had an impressive career working as an investigator with the Ontario Human Rights Commission and then as a Pay Equity Officer with the Pay Equity Commission of Ontario.  Next he became Director of Policy in History and Culture for the Government of Ontario.  At one point he became a Special Advisor to the Human Rights Commission and a Director in the Citizenship Department.  Since leaving the practice of law he has been employed at York University in roles such as ombudsperson and director of human rights.

So what does this have to do with anti black Racism? McSween acknowledged responsibility for the mortgage fraud occurring on his watch but suggested that rather than being disbarred he should be allowed to resign.  The basis for his argument:  he was denied opportunities to properly learn the intricacies of real estate practice because of his race.  McSween states that he was denied appropriate articles of clerkship opportunities and then associate positions which left him accepting the relationship with the unscrupulous law clerk.  Prominent criminal lawyer Clayton Ruby (acting as panel member on the Law Society’s appeal tribunal) in a dissenting opinion wrote:

The existence of anti-black racism in Canadian society is not the subject of debate among reasonable people.  Indeed, judicial notice of systemic racism in Ontario has been accepted since R. v. Parks, supra in which the Ontario Court of Appeal took judicial notice of systemic anti-black racism in Canadian society.  The Court also acknowledged, at paras. 366-369, the devastating results of such acute disadvantage for black persons: unemployment, poverty, and denial of opportunity, the exact circumstances that are alleged by Mr. McSween in the current appeal.
 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.
The hearing panel erred by failing to give sufficient weight to the systemic disadvantage experienced by Mr. McSween as a lawyer of Afro-Caribbean descent.  His employment and articling history of repeated rejection despite his impressive academic achievement signal this and can hardly be explained except on the basis of racial and age discrimination. 
Accordingly,  Ruby concludes that it would be appropriate to allow McSween to resign rather than to be disbarred.

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