Report calls on NS Barrister’s Society to tackle racism and systemic discrimination in legal profession

A long-awaited report on systemic racism in Nova Scotia’s legal profession has documented widespread discrimination and an “unbelievable sense of fear” among racialized lawyers.

Regaining Trust was released at a council meeting of the Nova Scotia Barrister’s Society on Tuesday. It captures a pattern of race-based harassment in the legal system, as well as resistance to diversity, equity, inclusion and accessibility initiatives, and puts forward 21 recommendations for addressing longstanding issues.

The report comes after decades of allegations of systemic discrimination within the profession in the province, including the 1971 wrongful conviction of Donald Marshall Jr., a Mi’kmaw man whose case was marred by incompetence and racism at all levels of the criminal justice system,  and the sexual assault trial of Black lawyer Lyle Howe, the treatment of whom raised the spectre of racial bias in the court process. In 2017, Howe was disbarred for at least five years by a white-only hearing panel of the Barrister’s Society.

In 2020, the Society released a statement on the murder of George Floyd in the US, stating: “We acknowledge the existence of systemic discrimination in our justice system and the need for action and education to address it.”

Although many organizations spoke out at that time, the Barrister’s Society’s words prompted criticism given the longstanding allegations of systemic racism in the justice system.

Spurred by the backlash, the Society posted an apology on its website, acknowledging systemic discrimination within the organization, and initiated a review to identify ongoing issues and opportunities for improvement. Former provincial ombudsman Douglas Ruck, K.C., a labour and human rights lawyer, was appointed to lead the review, the results of which were initially expected within a year.

At the release of his report, Ruck said that while it was subject to difficult delays — partly because he was derailed by long COVID in the process of completing it — those delays were ultimately advantageous.

“The need [for the report] is greater today than it was in 2021,” he said, noting that not only does racism and discrimination still exist, but there’s pushback to the policies and initiatives meant to address them.

“There are those who are saying, ‘It’s too much, too soon.’ As African Nova Scotians, we have been in the province for over 400 years; tell me why it’s too much, too soon?”

Ruck said if change does not happen now, then it will not happen. He pointed to the report as a chance to begin to make a difference.

Drawing on interviews with more than 200 people who came forward to share their experiences, and a survey of 47 individuals conducted by the Barrister’s Society in 2022, he found a persistent pattern of systemic racism that had implications for career growth and access to justice.

Among survey respondents, 64 per cent reported race-based harassment or discrimination in their current or previous workplace.

In interviews, Ruck observed an “unbelievable sense of fear” that speaking out about experiences of discrimination would have negative consequences and that speaking with the Barrister’s Society would see concerns dismissed or relayed back to people’s workplaces.

Among those individuals, the report documented adverse professional and mental health outcomes due to racism, which led lawyers to leave their workplaces, the profession and the province.

Shawna Paris-Hoyte, executive director of the African Nova Scotian Justice Institute, said the report captured the reality for Black lawyers in the province, which has driven many from the industry or the region.

“That spoke to the truth,” she said of her 30 years in the legal profession.

It also rang true for Ruck, who noted, “My personal experience growing up and becoming a lawyer in this province is one of hundreds, but remarkably similar to the hundreds of lawyers I interviewed.”

Beyond documenting systemic discrimination in the legal profession, the report lays out 21 recommendations to address it in the Barrister’s Society and the wider profession. These include collecting and analyzing discrimination-related data, establishing a reporting and investigation system (including an independent Ombud for investigations), and appointing an independent party to implement the recommendations.

Paris-Hoyte said the recommendations provide transparency and accountability but, most importantly, supply confidence that the report will lead to concrete action through the independent implementation lead.

“That is the recommendation that gives me hope,” she said. “If there is no action behind any of the recommendations, then it’s like any other report that can get shelved.”

Lola Williams-Afolabi, an associate with BOYNECLARKE LLP and president of the Nova Scotia chapter of the Canadian Association of Black Lawyers, said the report was “amazing,” but she felt it could have gone deeper to highlight the broader issues of systemic discrimination that all Black people still face in Nova Scotia.

Nonetheless, she said the holistic focus of the report’s recommendations — which include modernizing internal policies at the Society and advocating for legislative change — has the capacity to advance progress in the broader legal profession and in society.

Wiliams-Afolabi said it was also significant that the report emphasized collaboration with community organizations and advocacy groups to address the issues.

“Everybody has their own intersectionality and experience, but it's also good for us to find common grounds to collaborate in this fight so that we can make any meaningful impact,” she said.

“Racism being able to be controlled and reduced to the barest minimum will be a welcome change in Nova Scotia. And who knows, maybe other provinces will follow suit and we’ll begin to see a change in our community.”

Ultimately, most parties agree that the report is only the first step in a much longer process — the responsibility for which, Ruck acknowledged, is often laid at the feet of those most negatively impacted.

And while the report’s focus was anti-Black racism, he said it is the jumping-off point for tackling and eliminating systemic discrimination more broadly.

“As the body entrusted to regulate the legal profession in the public interest, the Society must lead the way,” he wrote, calling it a natural fit to lead this challenge.

“As lawyers, it is our honour and responsibility to take up this mantle.”

For its part, the Society has fully accepted the report’s recommendations and committed to “a transparent and accountable process for change.”

“We accept the Society’s responsibility in addressing systemic discrimination, which must be initiated from the top and informed by those working with us, as well as our members across the province,” President Morgan Manzer and CEO Cheryl Hodder K.C., said in a statement.

“We know that the process of change will challenge peoples’ beliefs and understanding of the institutions in which we work and engage. We sincerely apologize to those who have been affected, and we are sorry for the Society’s past failure to address systemic discrimination within the Society and in our justice system.”