Slaw.ca, December 2023
Systemic racism is a reality in Canada. At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity. The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.
So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law. (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts. But something might be missing: attention to the effects of systemic racism on actual and would-be clients.
What might a client-centric systemic racism agenda look like? First, it would have to focus both on actual clients who are racialized, and on the much larger number of individuals who would like to receive (and need to receive) legal services but never get the chance. Second, such an agenda would consider the quality and accessibility of legal services for individuals, but also for collectives exposed to systemic racism. This includes First Nations, equity-seeking nonprofits, and businesses owned and operated by racialized people.
Here are a few issues that might come into better focus with client-centric lens on systemic racism:
- Cultural Competence is the idea that professionals must be able to work respectfully and constructively with people from different backgrounds. For decades it has been a core requirement for practitioners in fields such as health care and social work, but it is still not mentioned in the professional codes governing lawyers in Canada.
- Most law societies collect demographic data on their licensees. This allows identification of racial disparities, and the potential for remedial action. However most make little if any effort to ask the same questions about people who receive, or need, legal services. One exciting exception is the Law Society of Saskatchewan’s support for a recently published Legal Needs Survey which includes analysis based on race and indigenous status.
- A large proportion of racialized Canadians are immigrants or refugees. Recent newcomers are not generally served well by our legal services regulators, including the federal College of Immigration and Citizenship Consultants. For example, many are defrauded by crooked or incompetent immigration practitioners. The regulators’ generally complaint-driven approach to discipline has significant limitations when it comes to protecting these vulnerable people. Unjustly deported people, and people who are struggling on the margins of Canadian society, have little incentive to report to law societies, which can do little or nothing to remedy the consequences of unauthorized or incompetent legal services. A more proactive approach is needed.
- One manifestation of systemic racism is lower incomes for those who are subject to it. And yet most Canadian legal services regulators have extremely strict rules regarding forms of practice that would likely be more affordable. These include paralegal practice, alternative business structures, and reasonably quick licensing of foreign-trained legal professionals.
The Challenge of Client-Centricity
Maintaining a client-centric stance is a recurring challenge for our law societies, and for the profession more broadly. The law mandates us to act in the public interest. This phrase is emphasized in the legislation and case law because it’s often easier to talk among ourselves about lawyers’ interests. After all, our regulators and professional bodies are led almost exclusively by lawyers who are accountable only to other lawyers. This is the effect of self-regulation of the legal profession, a principle which remains essentially iron-clad in Canada.
Law societies have led a conversation about systemic racism that was scarcely happening 15 years ago, and that’s a very good thing. It may be time to expand that conversation in a new direction. It is time to ask how we as a profession can better meet the needs of racialized and indigenous clients.