Making policy not the same as taking action

  • July 24, 2020

By Vivene Salmon, CBA President 2019/20 for The Lawyer's Daily

The opposite of action isn’t inaction, it’s complacency. It usually takes a crisis to jolt humans out of whatever comfortable positions they have come to rest in and spur them into action.

In the spring of this year, the killing of George Floyd became a catalyst for action for the #BlackLivesMatter movement around the world. Not just the killing, but the impunity evinced in the recording of it. People could hear and see Floyd saying he could not breathe as he was restrained by the officers. Watching police callously extinguish a man’s life galvanized both those who watched — and those who couldn’t bring themselves to do so — to insist that something must change. 

The movement may have begun in the U.S., but Canada’s racialized community has its own heartbreaking stories. Chantel Moore, a young woman from Tla-o-qui-aht First Nation, was shot to death by a police officer during a wellness check; Regis Korchinski-Paquet, a young Black woman, fell to her death during a wellness check; and D'Andre Campbell, a young Black man, was fatally shot by police in his home while he was experiencing a mental health crisis. Those are just some of the most recent incidents; there are many others who have died or experienced violence at the hands of police.

The reactions to #BLM so far have been largely symbolic: racist trademarks and team names, like the Edmonton Eskimos, are being changed. The Mississippi government voted to remove its state flag, the last one to show its Confederate roots. The Faculty of Law at Queen’s University in Kingston, Ont., is considering renaming Macdonald Hall, named in honour of Canada’s first prime minister — who was an architect of the Indian Act and the residential school policy, which derailed the lives of Indigenous peoples for generations.

To enable lasting change, allies in privileged institutions and professions who have been party to the systemic racism that #BLM is fighting — consciously or unconsciously — must be part of the reckoning.

The Canadian Bar Association has a long-standing commitment to diversity and inclusion, and, like many of the country’s law societies, law firms and legal institutions, has a diversity policy.

In 1999 our Working Group on Racial Equality in the Legal Profession released a report that called systemic racism the most “pernicious problem facing racialized communities.” The CBA adopted all of the report’s 22 recommendations and acted on many of them, echoes of which can be seen in the association’s current structure and activities — for example, the inaugural Racialized Leaders Bootcamp and the Senior Racialized Leaders Summit last year.

But there is much more to be done. The legal profession stated its commitment and wrote its policies, and then became complacent. We confused policy with action and diversity with inclusion and belonging.

Report after report dealing with diversity in the legal profession tell us the same things: The makeup of the profession is overwhelmingly white, male and upper middle class. Diverse hires in law firms find it hard to make it past the articling and associate levels. Women and racialized lawyers might start out in firms but often end up in-house or in government in part because the traditional law firm culture has no place for them. While they are hired at firms under the banner of diversity, the environment makes it untenable for them to stay.

The latest compensation survey from the Canadian Corporate Counsel Association (CCCA) and the Counsel Network shows that, like women, racialized lawyers earn less than their white, male peers. Fewer racialized people are appointed to the bench.

And on the other side of the coin, the statistics tell another stark truth: that Indigenous and Black people are over-represented at every point of the criminal justice system in Canada, from contact with police to our jails and prisons.

The power of corporate Canada is being harnessed as I write this. The Canadian Council of Business Leaders Against Anti-Black Systemic Racism, released its BlackNorth Initiative CEO Pledge. The BNI pledge calls upon senior business leaders in Canada to commit their companies to specific actions and targets designed to end anti-Black systemic racism and create meaningful opportunities for Black, Indigenous and people of colour.

The legal profession has been quick to adopt the buzzwords of the day — equality, equity, diversity, inclusion — but slow and complacent about its commitment to action.  

We don’t need more reports on systemic racism and bias. What we need is for each one of us to take ownership for meaningful action to build a more equitable profession and society.

The CBA believes that when we know better, we ought to do better. We want to work with our members and the legal profession to do so.

Vivene Salmon is the first Black president in the 124-year history of the Canadian Bar Association.