I am a Black lawyer of 25 years of practice and I have had the same concerns, as those articulated by the author. Indeed, I need to say that this is an excellent article, well researched and well written.
It should be sent to the Prime Minister, by special delivery. Anyway, I digressed.
There is one significant point that the author missed, and that is: the expected comfort that someone, like me, will enjoy when I see a minority judge on the bench. At least I would not have the anxiety of being an object of racist behavior. Read on, you will see what I mean.
When you are as Black as I am, there seems to be a visceral reaction, by White judges, to your presence. Although I have been in Canada for 45 years this year and really do not have what can be described as a thick accent (I love my accent so please no comment about me trying to kill my heritage), White judges will start leaning forward, anticipating that you don’t speak English or if you spoke it, it is going to be difficult for them to understand what you may be saying. In response, I would then assure them that “I will speak slowly”. It is not funny, like ha, ha, at all, but I do this to let them know their subconscious anti-Black racism, or whatever isms occupying them, is seen and that they should be embarrassed by it.
For over 25 years, I have been suffering as a Black lawyer in this justice system. For example, one should take a look at the Federal Court (where I do a lot of Immigration work), where immigrants are at times sacrificed. This is where judges’ political opinions ring loud and clear, and where, I have heard at least one judge say, “I have never met a refugee, who has ever spoken the truth”. That judge said this just before he dismissed every injunction brought, that day, to stop their deportation. To this day, my psyche remains damaged.
In response to the heinous conduct of some judges in that court, I have been beating down the door of the Canadian Judicial Council (CJC) for many, many years. They now say that I am the guy, who frivolously attack judges . Not one complaint has ever gone past the threshold.
The Executive Director of the Judicial Council says ah, a judge dealing in immigration matters can do whatever they wish. In my view, it is a Court that can be unhinged and out of control, when the lives of the down-trodden folks are before them. That Court scares me, actually. Of course, not every single judge falls in this category, but my experience in that Court , leaves a significant taint on my psyche. Oh , by the way, there is no appeal right, from a dismissal of say an injunction in Federal Court, so whatever that judge does….even if he says, Mr. Barnwell, could you present………. and then falls asleep, while you are arguing, and then wakes up and say, “Motion dismissed” that’s it. He has taken jurisdiction and so you are stuck.
There is one recent (2018) experience I will never forget. It concerns a woman from St. Vincent, in which the evidence showed that she had been beaten by her partner in St. Vincent for 14 years. She eventually ran away and came to Canada. She went underground, because at that time, it was not well established that one could claim refugee status, based on spousal abuse. She eventually got arrested and at that time, came to my office.
As usual, these folks tend to have little funds, so you do the best you can. I was moved by her case, and promised myself that I would fight for her. Over the years, we went to Federal Court, about five times, and stopped her return to St. Vincent, to the man who was awaiting her arrival.
As usual in these cases, risk assessments were done, but each time the officers would turn her down, and each time, we would get the Court on Judicial review. They accepted that she was beaten, but they would ignore the evidence of her daughter, who submitted affidavit evidence from the island, where she would see her violent, ignorant father, and would hear him carry on about the fact that he could not wait until her mother returns.
The problem for him is that he had been ridiculed in the village, when his wife ran away . Consequently, he was either sharpening his machete or maybe buying a gun to kill her. The truth is, I had no clue how he was going to maim or kill her, but I must confess, I was always scared for her.
That day when I showed up at federal Court for the umpteenth time to stop yet another deportation, the judge asked me, “How were you today?” This is not a judge with whom I am that familiar, so I was curious and so I said, “Pardon me?” He then said, “Well you were suppose to be in Tax Court of Canada on such and such a date, but you call in sick after you were unable to get an adjournment from a the tax court on a case.”
Wow, what the hell was that? I was to say the least, quite frightened….no, no…not that I have been caught doing something wrong, but my goodness, what was this White man going to do to me? I told the judge that, in fact, I was quite ill that day, when I fell over at my office and one of my colleagues had to take me home, and I went to the doctor that very day. It was so inexplicable that the following day (a Friday) I was scheduled at the Ontario Court of Appeal to argue a case, but had to seek the adjournment. Given that I could not prepare for the tax client for the Monday sitting at Tax Court, my assistant advised the Tax Court, and so that hearing was adjourned.
I then asked the judge, what was this about? He turned beet red and indicated “nothing”.
One must understand that I am intimately familiar with the Court process and the law and knew that the immigration case had considerable merit…CONSIDERABLE MERIT. That day, that evil, racist and cruel judge dismissed the stay motion and issued reasons, as long as your arm. Normally, they don’t issue such lengthy reasons. I was in shock. That day I realized that indeed there is No Justice…..JUST US.
I lodged a complaint against the judge, for breach of privacy, as he had accessed the Tax Court system to look me up and that he failed to carry out his duty as a judge. As expected, I was slammed by the Executive Director at the Judicial Council. I also wrote the Chief Justice of the Federal Court and the Chief justice of the Tax Court. The matter went nowhere. The client went underground and remains underground.
That Federal Court is ALL White ….I have never seen a single minority judge, over these many years. So too is the Tax Court of Canada, which only has one Black woman.
In the normal course, given my sedated background and my family discipline, going back to the islands, I would never ever be writing this kind of comment, but then, what am I doing for the next generation coming up? Yes, I must act, lest I be seen as being complicit in the hemorrhaging of what we hold so dear, that is: the due administration of justice.
It may seen trite and rather simple, but I sincerely believe that if indeed there were folks on the Federal Court, the Tax Court of Canada and the Superior Court of Justice, with some semblance of background-sharing with those who appear before them, what happened to me, would never have happened.
Oh, I have not told you about the White judge in Superior Court, who without any explanation, ordered me to tell my Nigerian clients to give in to the White plaintiffs. The problem with that was that they (the Nigerian clients) had a great case.
I challenged that judge (Superior Court judge) and introduced him to a thing call anti-Black racism. He did not like it very much, but given that I had placed all of my clients’ concerns on the record, afraid to be exposed, as I was eager to take it to the Appeal Court. We won the case.
Was it worth all of the trouble? Well, I guess not, as the beat goes on. Yeah, there is yet another case, where I felt uppity during a motion at the Superior Court of Justice, and said to the Judge, “Please take a look at the penultimate paragraph” (the one before the last paragraph), and that judge shockingly said, in the most sarcastic way, ” Oh, we find a new word, now”. When I objected, he accused me of being a race -card puller. I must confess, I was in shock, but I always wanted to be a judge, so I did not lay a complaint.
Yet another experience at Superior Court involved a judge, who decided to respond to a call by his friend, a lawyer, who I had been fighting with, in a civil matter. I had appealed the judge’s order to the Ontario Court of Appeal. That lawyer then called…yes…he did….. because I got a notice to appear at Court that day…… to deal with the lawyer’s request to his friend, the judge, to issue more fulsome reasons. Yes, you are right…..he was asking the judge to now make the reasons (well the decision), which were under appeal, appeal-proof, after I had launched an appeal. Yeah, he did.
I am a nice guy, from one of those beautiful Caribbean islands and a Pastor’s son, who taught me right, but WOW, I went crazy that day. I told the judge that this is improper. I asked for a court reporter to record this travesty, but that was refused. I insisted that what they were doing was wrong, but that did not matter. Oh, the judge told me I was a liar and, in the end, declined to change his reasons, but I must tell you, that when I got to OCA (Ontario Court of Appeal), in front of a single judge, as I was seeking an injunction, that judge had obviously had conversation with the first judge. I know this, because that judge said something to me that he could have only known if he had been in the room at Superior Court and I know that I did not tell him what he shared with me. I lost my innocence that day……
Yeah, that was too much for me, so I lodged a complaint against the first judge with the CJC and, low and behold, they shot me down. I was in shock (yeah, I am in shock all the time) and wrote a letter to the CJC, seeking reconsideration and then they decided to seek a response from the judge. It was all LIES…. yeah, the Judge lied through his teeth. I then wrote, in response, that the judge was a LIAR and that from that day, I would never call him “YOUR HONOUR”, because he had disgraced the seat he sat in.
To this day, I met the man, once, in a commercial litigation case, in which he was the case management judge and I knew that he remembered me. I kept my word and never addressed him as “Your Honor”. Did that help….I don’t know. As you can see, if you practice in these areas, where we are not supposed to be, you can be torpedoed.
There are so many more nasty experiences I have had, as a Black lawyer. Last one….I was in Superior Court and the lawyer opposite, was a nice white gentleman, whose brother I knew and who was in my class at Osgoode Hall, back in the day. The judge was a White woman. I had with me that day, a Sri Lankan lawyer, newly called to the Ontario Bar, who wanted to audit me…follow me around to get a taste of what lay ahead. That day the judge came out of the blocks with fire in her nostrils. She berated me, talked down to me, and gratuitously gave me a really bad time. Of course I fought back but, in the end, she dismissed the motion.
I then went back, to the back of the Court room, where the Sri Lankan lawyer was sitting, and she was so frightened. She asked me what I had done to the judge, and I indicated that I had never argued a case before her previously. I forlornly said to her “Welcome to Superior Court”. I tried to seek leave at Divisional Court, citing racial bias, and that judge chastised me and said, “How dare you raise racism against one of my colleagues?”
Yeah, my life has been punctuated with unsolicited excitement, which, at times, frightened the “be Jesus” out of me. I recall the day, when the judge called me a LIAR, and I cried …yeah, this fifty-ish old Black man, at the time…cried all the way back to my office. Of course I asked God: why? why? why? And He said: “Because you are strong”.
There is one other spiritual revelation I had with the case and that is, after I had been assaulted, lynched and disrespected by the two white folks in that room, that night I was quite restless. The Holy Spirit (no I am not crazy….it is a fact, which has characterized my life) instructed me to go down to the computer and Google the two names of the evil men, and wow, there it was: they were on one those panels, together, about a month earlier. So what? Well, while this happens, from time to time, that lawyers and judges sit on conference panels, this one meant a lot to me. It explained why a judge could, in good conscience, accede an atrocious and illegal request to change his reason, after the appeal was launched. Yeah, it happened to me.
What does all of this have to do with the issue of a failed Canadian Judiciary, where the commitment to diversity is NOT borne out by the faces in high places?
Well, in a way, sharing with you what goes on in the Courts makes the case, hopefully, that we need to level the playing field. While it is statistically NOT provable, maybe, just maybe, these rather blood-curdling experiences might not have occurred, if I had the occasion to deal with a Minority judge.
Osborne G. Barnwell, BA, BCOMM, CGA, LLB, LLM (Civil Lit)