Issues & Projects – Racial Equality
Submission to the UN Rapporteur on Racism, Doudou Diène
Regina, Saskatchewan, September 23, 2003
by David Matas
Thank you for giving us the opportunity to make this presentation.
The Task Force on Gender Equality was established in 1991 and reported in 1993. One of its recommendations was to conduct an inquiry into racism in the legal profession. The Canadian Bar Association adopted the recommendation in 1994 and appointed a working group on racial equality in the legal profession. I was appointed as one of the members of that working group.
That working group reported in 1999. The Canadian Bar Association, that same year, decided to establish an implementation committee to implement the recommendations of that report. I am the current chair of that implementation committee.
The Canadian Bar Association has produced a level of detail on the issue that may be much more than you need. And I realize I have only six minutes. So let me just make a few remarks and focus on only a few issues.
When we talk of racism in the legal profession, we are talking about racism by impact. Rarely, if at all, will you find overt expressions of racism or overt racist policies preventing access to justice or to the legal profession. But the difference between the racial composition of Canada and the racial composition of the legal profession is marked. And it is vertical. The higher one goes in the legal hierarchy, the greater the difference. The imbalance is significant just for law school admissions. It increases for law school graduates, for articling students, for employed lawyers, for law school academics, for partners in major firms, for the bench.
Nor can we assume that matters are getting better. There is a move across Canada to increase law school tuition differentially, that is to say more than overall university tuition. Law school tuition is growing by leaps and bounds. There is serious concern that this growth in tuition will have an adverse impact on racialized communities. In our materials is a study the Canadian Bar Association has done on the issue.
The problem is not just access to the legal profession. It is also access to justice. One could go through each component of the legal system and highlight the problems it poses. But given the time, I will mention only one. Access to legal aid is not just a problem for racialized community; it is a general problem about which the Canadian Bar Association has a separate report, published in 2002 and a separate set of resolutions. But it is also integral to racial equality in access to justice.
Inequality in access to justice, in general, and access to legal aid, in particular, are, I know, part of your mandate as the UN Rapporteur on Racism. The International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination both show that to be so.
[The International Covenant on Civil and Political Rights provides:
Article 14
1. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
The International Convention on the Elimination of All Forms of Racial Discrimination provides:
Article 5
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice.]
I am an immigration and refugee lawyer in Winnipeg. I know that Saskatchewan, where we sit, is one of the provinces which does not allow legal aid for refugee claimants or those caught up in removal proceedings. New Brunswick is another. There are also widely varying provincial legal aid tariffs in the provinces where legal aid is available. Some of these tariffs are derisory.
The Canadian Bar Association has passed a resolution calling on practitioners to contribute an identifiable part of time without charge or at substantially reduced rates to establish or preserve the rights of disadvantaged individuals. The resolution states that each member should strive to contribute 50 hours or 3% of billings per year on a pro bono basis. This, of course, happens in Saskatchewan for refugee claimants and those facing removal.
But relying on volunteer work prevents specialization. Lawyers can not work full time for nothing. The absence of legal aid has an adverse impact on the availability of legal services.
Legal aid funding gets us into the murky waters of federal provincial funding transfers. The Canadian Bar Association has passed one resolution asking for a dedicated Canada Access to Justice Transfer, dedicated to legal aid funding, and another resolution asking for separation of federal funding for civil legal aid from the Canada Health and Social Transfer.
The Canadian Bar Association has authorized the pursuit of test cases arguing that legal aid is constitutionally required. Those cases would rely on the guarantees of fundamental justice and equality in the Canadian Charter of Rights and Freedoms.
That is one strategy. Receiving endorsement from an international mechanism is another. We are here today to ask you to endorse the Canadian Bar Association legal aid equality campaign, to use your equality mandate to promote the right to legal aid in Canada.
David Matas is an immigration and refugee lawyer in Winnipeg, Manitoba and the chair of the Racial Equality Implementation Committee of the Canadian Bar Association.
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