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Opening Statement
19 BLACK JUDGES MAINLY IN LOWER COURTS
Lawyers Weekly, March 10, 2000, p4.
By Munyonzwe Hamalengwa
The statistic speaks for itself about the historic position of black judges and by extension, black lawyers in Canada. There have been only 19 black judges in the history of Canada.
To understand the significance and the magnitude of the place and role of black judges in Canada, consider this one fact: all 19 judges are still alive.
This means that judicial appointment of blacks is of very recent vantage. The entry of blacks in the legal profession is very recent, it goes without saying.
Now consider the fact which shows the massive exclusion of blacks from legal advancement to judgeships, professorships and crown attorneyships. This fact that though the entry of white women in the legal profession is as recent as that of blacks, there have been four women judges at the Supreme Court of Canada, several are currently sitting at the Ontario Court of Appeal, law schools are populated to a degree of over 30 per cent white female professors, over 10 percent of Ontario's Superior Court of Justice and the provincial court positions across the country are occupied by white females.
Admittedly there are more white women in Canada than blacks, but this does not explain the absolute disparity in appointments between the two groups. There has been no black or other minority at the Supreme Court of Canada or the Ontario Court of Appeal.
There are hardly any black judges in the Superior Court of Justice. There are hardly any black professors. There are only a few black prosecutors. There are hardly any black lawyers employed by Bay Street or Main Street lawyers.
As you know, judges are usually recruited from professorial, prosecutorial and Bay or Main Street ranks. So, if blacks are not appointed to be professors, prosecutors or recruited by Bay or Main Street firms, they do not show up on the radar screen of the appointment process. Unlike the active recruitment of white women (from all crevices and nooks), there is never any active recruitment of talented or qualified blacks.
When black or minority women are recruited, they end up in provincial court even though their qualifications indicate Court of Appeal or Supreme Court of Canada caliber . Consider the case of Juanita Westmoreland-Traore. She was a law professor, commissioner of the Ontario Employment Equity Commission and the Dean of University of Windsor Law School. She was appointed to the provincial court.
White women or law professors go straight to superior courts or courts of appeal or the Supreme Court of Canada.
Mary Ellen Turpel Lafonde is a native woman, a graduate of Osgoode Hall Law School, Oxford University and Harvard University and lastly was a professor at Dalhousie University. She ended up in provincial court in Saskatchewan! You cannot attend Osgoode Hall Law School (UB), Oxford University (LLM) and Harvard Law School (LLD) and end up in provincial court anywhere else, except in Canada, if you are a minority. No white woman would have met a similar fate if she had these qualifications.
Don't get me wrong; there is nothing wrong with being appointed to the lowest bench in the land, except that these appointments are skewed when they happen.
I myself would be happy to be appointed to the provincial bench where justice is really served, but injustice originates there. Denials of bail start there. I could make a great impact. (I could straighten out crown and defence lawyers). I would write all my decisions heavily weighted in law. I would demand more pay. I could turn the rules of evidence upside down and let the higher courts deal with them. I would demand law reform.
My quarrel with appointments to the provincial bench is that provincial judges do not make law. Supreme Court of Canada and Court of Appeal judges make law. Being unrepresented there, minorities do not participate in reformation of law.
Consider the following fact. The Law Society of Upper Canada keeps statistics about how many females are in the legal profession. The judiciary keeps statistics about how many females (read white) are judges. The law schools keep statistics about how many females are professors.
The percentage of female crown attorneys is known. Yet the law societies, despite their equity programs, and the judiciary, the law schools and the government do not keep any statistics about the numbers of blacks (or other minorities) in the legal profession as judges, crown attorneys, professor or as working in Bay or main Street firms.
'CHALLENGE FOR BLACK JUDGES IS ENORMOUS'
When I was merely a young law student in the 80s, I wrote then Justice Minister Doug Lewis, under Mulroney government, about how many blacks or other minorities he appointed to the judiciary. He said he did not have any statistics.
When I submitted a proposal in 191 to Peter Oliver of the Osgoode Society, which publishes books on Canadian Law in historical perspective, he refused my proposal because my subject matter (on blacks in Canadian law) dealt with judges and lawyers who were still alive, except Delos Davis and Sutherland. Osgoode Society only dealt with dead or inanimate subjects. My plea that an exception be made because of the exceptional nature of the subject, in that blacks are recent vintage in the legal profession, he refused to make the exception.
I have inundated Prime Minister Jean Chrétien and justice Minister Anne McLellan over the years to appoint minority to the Supreme Court of Canada, to no avail. Mulroney, Lewis and Kim Campbell answered all my letters. Chrétien and McLellan have never answered at all. Talk about the arrogance of power!
Thus the only 19 alive black judges in Canadian history at the dawn of the 21st century are pioneers and trailblazers for blacks in the legal profession.
The Canadian Association of Black Lawyers (CABL) honored the 19 judges for their pioneering entry in the legal profession on February 26.
Each of these judges has a rich and extensive history history deserving a book. However that is not my intention here; I merely wish to mention their names and where they hail from. They are Therese Alexander (B.C), George Carter (retired -ON), Maurice Charles (retired, ON), Hugh Fraser (ON), Raymond Harris (Man.), Keith Hoilett (ON), Julius Isaac (ON), Lionel Jones (AB), Vibert Lampkin (ON), Eric Lindsay (ON), Marvin Morten (ON), Romain Pitt (ON), Micheline Rawlins (ON), Gregory Regis (ON), Selwyn Romilly (B.C), Vibert Rosemay (ON), Corrine Sparks (N.S), Juanita Westmoreland-Traore (Q.C) Castor Williams (N.S.).
As can be seen, Ontario evidences openness to the appointment of blacks to the bench (12 appointments). British Columbia and Nova Scotia each have two, Quebec, Manitoba and Alberta one each. Other provinces are wastelands.
All the judges except Julius Isaac (Federal Court), Keith Hoilett and Romain Pitt (Ontario Superior Court), and Selwyn Romilly (B.C. Supreme Court) serve or served on the provincial courts of the respective provinces. Julius Isaac was Court of Appeal or Supreme Court of Canada material and so is Westmoreland-Traore because of their antecedents.
Judge Charles served in the Supreme Court of Ghana before his appointment to the provincial bench in 1969 in Ontario. Would a person who served in the Supreme Court of England (if such existed) or Australia or of Israel of of U.S. or of France be appointed to the provincial bench?
(I cannot comment on the caliber of other judges as I don't know their antecedents that well).
The challenges for black judges are enormous. Female judges have openly admitted and advocated that their presence on the bench will make a difference. As we await for the data to trickle in as to what difference women judges have wrought on, so do we await the difference black judges are to evidence.
Munyonzwe Hamalengwa is a Toronto criminal lawyer.
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Criminal Lawyers Association The Law Society Of Upper Canada
Last Modified: August 11, 2006
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