Law Times

Law Times • OcTOber 23, 2017 Page 7 www.lawtimesnews.com Campaigns have important but limited role BY FATHIMA CADER K now-your-rights campaigns are a mainstay of public interest lawyer- ing. By teaching people about their rights so that they can assert those rights and by targeting the people most often sidelined from the law's protections, these campaigns set out to democratize the law and its institutions. No wonder then that know-your-rights efforts are so beloved of lawyers — from community workshops in neighbour- hoods assailed by police carding to sit-ins in airports overf lowing with illegalized travellers, these campaigns bring us out of the courtrooms and into, it would appear, the streets. But what happens when it is the very assertion of a lawful right that endangers someone's well-being? What are our pro- fessional obligations to the clients and communities for whom knowledge of the law is insufficient protection from its abuse? What happens when, in the face of material power, rights are rendered ir- relevant? Consider the case of Sharon Abbott, who was delivering newspapers in To- ronto. The work is dangerous and poorly compensated. Delivery routes commence in the small hours of the night and require solitary travel through city streets when they are at their gloomiest. At 3:30 a.m., Abbott drops off a paper at a subscriber's residence and walks back to her vehicle. A man calls to her from a car that has been following her and is now parked right be- side hers. No one else is awake or around. Abbott would later testify that the man ordered her to "come here" twice, the second time through clenched teeth. Abbott would describe her fear of the reports then circu- lating in Toronto that women were being assaulted by men impersonating police. As the man exits his car and begins to approach her, Abbott be- gins to call her husband on her cellphone. Abbott never completes the call. By 3:40 a.m., the man, whose identity would be confirmed as Toronto Police Services Sgt. Stephen Ruffino, will have arrested and handcuffed Abbott. Police photo- graphs document injuries sustained by both parties during the unexpected scuf- f le: abrasions on two of Ruffino's fingers; for Abbott, abrasions over her left eye, cuts on the inside of her upper lip and bruising on both her wrists. In Abbott v. Toronto Police Services Board, 2009 HRTO 1909 (CanLII), the Human Rights Tribunal of Ontario would find that Sgt. Ruffino had discriminated against Abbott, a "relatively diminutive" black woman of African descent, because of her race and gender. Tribunal vice chairman Mark Hart said: "I have tried to hypothesize a White woman out delivering papers in the early morning having fairly routine traffic mat- ters escalate into an arrest. I have been un- able to do so." In recognizing this in- stance of police abuse of a black woman, the case re- mains a rare ruling in Canada: Discussions of state anti-black racism typically elide black women, an issue addressed in greater detail in the new book Policing Black Lives: State Violence in Canada From Slavery to the Present by Robyn Maynard. But another detail also stands out. During the hearing, Ruffino testified that Abbott's response to his initial attempts to engage her was: "I didn't do anything. I know my rights." Denied by Abbot, it would appear that Ruffino's allegation was intended to sug- gest that an assertion of civilian rights is an assertion of anti-police animosity. So consider then the more recent case of postal worker Waseem Khan, who was walking through downtown Toronto this past January when he encountered Toron- to Police Services Sgt. Eduardo Miranda Tasering and kicking a handcuffed, home- less man who was lying on the ground. In Khan's now highly publicized video of the beating, police officers can be heard threatening to seize Khan's phone. They assert, loudly, that the law prohibits him from filming the arrest. This is false: Civilians have a right to record police if they are not obstructing the police, nor do the police have an au- tomatic authority to seize civilian phones. Miranda's "discreditable conduct" for di- recting another officer to interfere with Khan's lawful presence in the area and with Khan's recording of the incident would contribute to the Office of the Inde- pendent Police Review Director's decision in August that there was "evidence of mis- conduct" during the arrest. Nevertheless, at least one officer would tell the OIPRD that he had believed he had the authority to seize Khan's phone. If we are to truly seek equality for mar- ginalized peoples, we must think beyond know-your-rights campaigns and law reform test cases. For public interest law- yers, this means having a substantive and particularized knowledge of those safety plans (including but not limited to hous- ing, financial and media supports) that might help marginalized peoples survive the law's inequities. Beyond the workshop and the courtroom, this demands a level of creativity and commitment atypical for legal practice. Atypical, but necessary: We do our cli- ents and communities a disservice — and potentially endanger them — if we fail to proactively address the fact that the exis- tence of rights of paper need not always translate into the enjoyment of rights in reality. LT uFathima Cader practises human rights and labour law in Toronto. She is an ad- junct professor at the Faculty of Law at the University of Windsor. She can be reached at cader@mmwlaw.ca. Correcting the record on LSUC diversity statement BY JENNIFER QUITO T his fall, the Law Society of Upper Canada advised licensees that they must create and abide by an individual statement of prin- ciples that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour toward colleagues, employees, clients and the public. This requirement is one of 13 recommendations contained in the "Challenges Faced by Racialized Licensees Working Group Final Report," which was adopted by Convocation in December 2016. I have worked on issues relating to this report since the inception of the law society's working group in 2012. I can attest that the recommendations, including the statement, have their genesis in robust quantitative and qualitative research, as well as widespread stake- holder consultation and agreement. Recently, a handful of licensees, who I understand did not engage in the four-year consultation process, took to traditional and social media to criticize the re- quirement as constituting a Charter violation and the underlying report as unfounded. I would like to correct some of the misinformation disseminated and respond to some of the points raised. First, non-compliance with the requirement will ab- solutely not result in the loss of a licence. The law society will ask us on our annual report if we have adhered to the obligation. Its online FAQ addresses what will oc- cur in the event of non-compliance, under the question: "Will I be suspended or otherwise penalized if I don't have a statement of principles?" The response is that non-compliance will result in a written reminder of this obligation. Thus, instead of attracting a penalty, non- adherence will result in the continued opportunity to comply. Second, licensees are not required to send the state- ment to the law society. After we create it (from scratch or by using the template), we can put it wherever we would like, be it our policy binders, office wall or else- where. Third, the statement does not violate the Charter right to freedom of expression, nor would it comprise a reasonable and demonstrably justified infringement of this right. The statement directs action, not belief, by asking us to "acknowledge" our obligation to promote equality, diversity and inclusion. It's an obligation that is already captured in the Rules of Professional Conduct that describe the special responsibility of lawyers to honour the obligation not to discriminate, respect hu- man rights laws and recognize and protect the dignity of individuals in a diverse Ontario. It also serves the pressing and substantial objective of eliminating systemic discrimination in the profession by asking licensees to acknowledge their pre-existing hu- man rights obligations through the minimally impair- ing means of creating a statement comprised of words of their own choosing. Requiring lawyers to confirm their human rights obligations is not deleterious and, in any event, it would be far outweighed by the salutary effects. Finally, we must scrutinize why Charter protection is being claimed in relation to human rights promotion where non-compliance attracts no penalty but not in relation to truly compelled statements such as the man- datory oath we took at our call to the bar in order to ac- quire a licence. There, our regulator mandated that we state that we would, among other things, seek to "ensure access to justice," "improve the administration of justice" and "champion the rule of law" and we complied. So, why is a statement regarding human rights compliance now being singled out for criticism? The answer is that doubts remain in the profession that racialized licensees actually face systemic barriers. Doubts remain that systemic discrimination exists in society at all and, by extension, in the profession. We have to address this. As lawyers, we are trained to examine evidence, its reliability, credibility and weight. If a judge was examining this issue, which source of information would they find to be more persuasive: the Challenges Report, born out of four years of profession-wide consultations and robust quantita- tive and qualitative research, which was ultimately debated by our elected representatives and adopted with a near-unanimous vote; or the personal opinions of non-experts in the field who state these barriers do not exist simply because they have not personally ex- perienced them? Clearly, it is the former, which found widespread systemic barriers for racialized licensees in the profession at all stages of their careers. It bears repeating that this report was not about cast- ing blame or labeling licensees as "racist." It was about recognizing that the structures, systems and processes of racism that are present in society are also present in our profession, as in others. We cannot ignore this. To- gether, we need to shift the focus from individuals to systems and from ad hoc human rights liability to the promotion of an inclusive and diverse professional cul- ture. And in doing so, we must ref lect deeply on our roles as lawyers. We must question why we, privileged enough to practise law — to understand it, interpret it, challenge it and contribute to its development through legal precedent and legislative change — would want to use our power and privilege to evade human rights re- sponsibilities instead of promoting them to their full- est extent. We must ref lect with our colleagues, within legal organizations, with the bench and with our regu- lator. These conversations and the changes they spark will be incremental. Let's begin by reading the Challenges Report and centering the voices of our colleagues from equity-seeking groups. Let's then take the time to ref lect on and create our statement of principles. Together, let's create a diverse and inclusive profession. LT uJennifer Quito practises human rights, pay equity, professional discipline and education law at a labour firm in Toronto. She is involved with the Law Society of Ontario's Equity Advisory Group, the Equal Pay Coalition of Ontario and is the former policy director of the Canadian Hispanic Bar Association. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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