Keeping Tabs - Spring 2020

The election of the Stop SOP “slate” as
benchers of the Law Society of Ontario in
2019 was a low point for supporters of EDI,
however this has also coincided with unprecedented
public discourse about systemic
racism in the legal profession. In your view
as a scholar of CRT, has the public discourse
about race been a silver lining in otherwise
difficult times for EDI? Is racial literacy improving
among lawyers?
While the election of the Stop SOP slate was disappointing,
and while their rhetoric is, in particular,
disheartening for the next generation
of racialized lawyers, I think three silver linings
have emerged from the election and the ensuing
debate surrounding the Statement of Principles:
(1) the inconsistency and (unintended)
transparency of the shifting Stop SOP position
unmasked the regressive politics of various
lawyers in the profession; (2) the SOP debates
brought many lawyers who do not typically reflect
on issues of race and racism into the conversation;
and (3) the support for equality initiatives
within the law society has galvanized a
broad coalition of progressive lawyers and built
solidarity along lines of race, gender, class, indigeneity,
sexuality, disability, and more (though
I acknowledge that the SOP discourse has concentrated
on issues of gender and race, such
that other vectors of oppression warrant greater
reflection and discussion).
Many law firms now have diversity committees,
EDI policies and/or provide training on
topics such as unconscious bias. Are these
approaches adequate?
Adequate to what end? Law firms—and the
law more generally—have a complex relationship
with racial justice. And the sufficiency
of particular internal measures depends
on the objectives of those measures. If law
firms want to decrease unconscious bias—
one of myriad forms through which racism is
spread—then unconscious bias training may
be effective. But if law firms want to develop a
truly inclusive culture they will need to reckon
with the various ways in which existing legal
cultures systemically disadvantage marginalized
communities. And if law firms want to
grapple with how they participate in a competitive
and capitalistic enterprise—which itself
perpetuates racial subordination—they
will have to fundamentally rethink the work
they do, how they are compensated for it, and
the prevailing legal order that governs them.
We are interested in the language used to describe
and address racism. Many initiatives
in the profession use language such as “diversity
and inclusion” or “unconscious bias”
while avoiding more direct language such as
“anti-black racism,” “white privilege” or “cultural
whiteness.” Is this a shortcoming of EDI
approaches or a necessary stepping stone?
Can you comment on choice of language and
how it relates to the broader process of racial
justice education?
Language matters. The words we use to describe
our world and experiences limit how we
imagine and interpret them. Further, the more
we use codes and euphemisms, the less we
speak directly and candidly about the forms
of racial subordination that we are seeking to
address. This does not mean that phrases like
“diversity and inclusion” or “unconscious bias”
are unhelpful. Indeed, in certain contexts,
such umbrella terms do productive conceptual
work. But I think it is also critical, when discussing
these concepts in greater detail, to engage
with the more granular aspects of racial hierarchy
they capture.
What are three things every lawyer can do
to incorporate CRT principles into their daily
practices?
(1) Acknowledge the ways in which privilege
grants them unearned advantages; (2) Reflect
on how systemic racism within their practice
disadvantages racialized communities; and (3)
Commit to outcomes, not just process. For example,
if after ten years of diversity initiatives your
firm is not substantially more diverse—at all levels
of seniority—then ask why, and do more.
Do you have any general advice for young
advocates and firms who want to meaningfully
promote EDI in the profession?
Be comprehensive. Racism comes in many
forms, including: systemic racism (i.e., norms
that disparately impact racialized communities);
implicit bias (i.e., unconscious negative
associations with racialized people); and
microaggressions (i.e., common interactions
that, with accumulation, create a sense of
exclusion in racialized people). Any meaningful
EDI program must account for the various
ways in which race is a site for exclusion
within the profession.
You recently drafted the moot problem for
the Julius Alexander Isaac Moot, administered
by the Black Law Students’ Association
of Canada. The problem involved an issue of
racial profiling and mooters were required
to advance not only legal arguments, but
also theoretical arguments rooted in CRT
in support of their arguments. Why was
it important to incorporate CRT into a law
school moot? In what ways would improved
knowledge and understanding of CRT enhance
lawyers’ abilities and client service ?
On question one—the importance of explicitly
incorporating CRT into the moot—I believe
there is an imperative for more CRT in Canadian
legal academia. Last year, I tweeted about
where CRT is located in Canadian universities.
Many scholars in other disciplines—e.g., sociology,
anthropology, education—said that
CRT featured prominently in their education
or pedagogy. In contrast, relatively few legal
scholars and law students taught or learned
CRT. I view the Isaac Moot as a small means
through which I can expose more students to
critical legal thought, and specifically, critical
legal thought about race.
On question two—how CRT enhances lawyer
competence—I think that, while CRT enhances
lawyer competence, it more importantly
enhances social responsibility. Critical reflection
on law and power absolutely enhances
legal skill. Indeed, effective legal advocacy
necessarily grapples with how power and
context influence human experience and legal
reasoning. For example, a defence lawyer
not conversant in racism and colonialism is,
quite frankly, missing a critical lens through
which to interpret the experience of their clients
and advocate against the systems that
oppress those clients. But, more importantly,
CRT pushes lawyers to think deeper about
how the existing legal order itself is a site of
racial subordination. In this way, greater instruction
in CRT will not only promote more
competent lawyers, but a more progressive legal
system. And, in anticipation of this point
being unfairly criticized by some as reflecting
my desire for ideological brainwashing in
the legal academy, let me say this: neutrality
is ideological—a political commitment to the
status quo. If you teach systemic racism in
criminal law, you are teaching criminal law.
If you teach colour blindness in criminal law,
you are teaching white supremacy.
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