At an April 2008 meeting of the Standing Committee on Equity with equity representatives from the branches, the discussion turned to the problems associated with gathering information about the representation of disadvantaged groups in the legal profession. Arleen Huggins, a representative of the Equal Opportunity Committee of the Ontario Bar Association, described efforts being made by that committee to bring about changes in the information gathered by the Law Society of Upper Canada. The LSUC currently asks members only to self-identify as to gender, and not about race, ethnicity or disability. Representatives of other branches also spoke of the paucity of data available to allow exploration of issues related to the representation and career progress of Aboriginal people, members of visible minorities and persons with disabilities.

In the CBA Strategic Plan, one of the stated objectives is to achieve more diverse membership and to serve the interests of lawyers who have not traditionally been considered when plans are being formulated and services offered. Yet the organization is coming to the realization that there is little information available about many characteristics of either the membership they currently serve or the profession as a whole.

Without the kind of information which would establish baseline representation, it is difficult to assess what progress is being made towards more proportional representation of social groups in the legal profession, to determine whether members of disadvantaged groups are leaving the profession in atypical numbers, and to ascertain whether members of disadvantaged groups enter particular kinds of legal careers.

Members of branch equity committees reported that law societies commonly decline to ask members to self-identify with respect to their race, ethnicity or disability in order to protect their privacy. Ironically, Arleen Huggins reported, organizations such as the Canadian Association of Black Lawyers and the South Asian Lawyers Association are among those most concerned to ensure the removal of the impediments to the collection of information which are created in their name. The Standing Committee on Equity and branch representatives agreed that there must be ways of respecting the privacy of Canadian lawyers while at the same time ensuring that data are collected which will constitute benchmarks against which success in meeting equity goals can be measured. The SCE determined to continue to explore possible strategies for achieving this objective.

A few years ago, the Canadian Bar Association, British Columbia Branch (CBABC), through a motion sponsored by their Equality Committee, approved the idea of an Aboriginal Scholarship for B.C. At the time, it was recognized that despite the Aboriginal community being the fastest growing in Canada (now with more than 50% under the age of 25), a significant number of placements at law schools set aside for Aboriginal students remained vacant each year, due in part to the inability of qualified candidates to fund their studies.

Thereafter began discussions with the National Aboriginal Achievement Foundation (NAAF) to partner in administering a trust for such a scholarship. The NAAF itself had an excellent record in honouring the achievements of Aboriginal people in Canada through its annual awards and having provided more than $27 million in scholarships and bursaries to Aboriginal students across the country since 1988.

Through extended negotiations with the NAAF, an agreement was eventually reached whereby two Aboriginal legal scholarships would be paid from interest earned on a trust fund managed by the NAAF to support first year legal studies at both the University of British Columbia and the University of Victoria. Additionally, the NAAF generously agreed to pay an amount each year that would match the annual interest earned (minus a small administration fee) to the selected Aboriginal law students and to take the lead in promoting the scholarship within the Aboriginal community.

Once that agreement was in place, the CBABC approached the Law Foundation of British Columbia (LFBC) for additional support. The LFBC was the first law foundation of its type in North America, established in 1969 by pioneering B.C. lawyers who persuaded their provincial government to enact legislation requiring financial institutions to pay the interest on pooled trust accounts used to hold lawyers’ client funds into a foundation that would promote the rule of law and a just society. Since then, every other provincial and state jurisdiction in North America has created a similar foundation. The LFBC remains at the forefront of this work and, last year, agreed to secure matching principal funds of up to $75,000 for the “CBABC Aboriginal Law Student Scholarship Trust.”

Consequently, the CBABC began its endowment fundraising this year, so far having raised about $150,000 of its $500,000 goal, prior to their official spring launch event in May. Through the persistent work of the CBABC and the generous support of the NAAF and LFBC, the net effect is that any donations to these Aboriginal scholarships will more than double in impact because of both the principal and interest match funding. In the end, we hope this exciting initiative will inspire other provincial CBA branches to take a look at establishing similar scholarships in their respective provinces.

If you wish to contribute to this scholarship trust fund, a contribution form is available on the CBABC website under "Initiatives" / "CBABC Aboriginal Law Student Scholarship Trust".

Aleem Bharmal is Executive Director of the Community Legal Assistance Society, a non-profit that provides legal services and develops the law for those who are mentally, physically, economically or otherwise disadvantaged.

In the April 2008 decision in Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, 2008 SCC 15, the Supreme Court of Canada found that, while the RCMP is an organization established under a federal statute, in its role as a contractual provider of police services in the province of New Brunswick, it is “an institution of the legislature or government of New Brunswick” within the meaning of section 20(2) of the Canadian Charter of Rights and Freedoms. This means that any member of the public in the province has the right to receive services in English or French. The case was initiated by Marie-Claire Paulin, who complained that the RCMP officer who stopped her on the highway was unable to communicate with her in French. The Société des Acadiens et Acadiennes du Nouveau-Brunswick intervened, and challenged an RCMP report indicating that there would be a reduction in bilingual service in Atlantic Canada.

It should be noted that Mr. Justice Michel Bastarache tied his award of costs to the elimination of the Court Challenges Program, commenting on the importance of the issue raised in the case. The decision to eliminate the Court Challenges Program was protested by the CBA, and was the subject of an earlier edition of this newsletter published in February of 2007.

On March 23, 2007, the Supreme Court of Canada issued its decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15. This decision was another chapter in the efforts of the Canadian Transportation Agency to decide what constitutes an “undue obstacle to the mobility of persons with disabilities” under the Canada Transportation Act.

In 2000, VIA Rail acquired a number of rail cars no longer required for service by a European railway. Though it was planned to make some modifications to the cars, the Council of Canadians with Disabilities complained to the Canadian Transportation Agency that a number of features of the cars after these modifications would constitute undue obstacles to persons with disabilities. They pointed to VIA Rail’s own policy, under which they committed to meet modern accessibility standards in new rail cars or cars undergoing a major refurbishment. In response VIA Rail argued that the cars they had bought were neither new nor undergoing major refurbishment.

The Canadian Transportation Agency required VIA Rail to show cause why a number of features of the cars did not constitute undue obstacles to the mobility of persons with disabilities, and ultimately decided that VIA Rail had not met this burden. After being quashed in the federal Court of Appeal, this decision was restored by the Supreme Court of Canada on the grounds that the Agency was entitled to deference in making a decision which fell squarely within its statutory mandate and its area of expertise.

One important feature in the Supreme Court’s decision in this case was the willingness of the majority to accord deference to an administrative agency on issues involving human rights principles, provided that the human rights issues are raised in a context where the specialized expertise of the tribunal is relevant.

Last fall, the SCE launched its Equity and Diversity Guide, a package designed to assist law firms and other legal organizations in becoming more inclusive and more reflective of diversity. The package includes facilitator’s guides, lists of resources and videos which present thought-provoking scenarios. The response to the Guide has been very positive, and numerous copies have already been distributed across the country. An online version of the materials should be available shortly in both English and French.

The SCE continues to consider ways of ensuring that the Guide is a working document, and to provide training for those interested in facilitating use of the material. At a recent meeting, it was reported that Sherry Connolly, Chair of the Equity Committee in the Nova Scotia branch, had made a presentation to the branch council introducing the Guide, and this presentation was very well-received. Gillian Marriott (Alberta) and Beth Bilson (Saskatchewan) reported that they have been asked to make a presentation to their councils about the Guide in the fall. And Allison Fenske indicated that the new Equity Committee in Manitoba is examining ways to provide training in the use of the Guide as well.

If you wish to know how to obtain a copy of the Guide, or have questions about it, contact the SCE staff liaison Marie-Claude Noël at mariecn@CBA.org.

As we considered the nominations for this year’s Touchstones Award, the Standing Committee on Equity was reminded that many of the most important advances towards the goal of equity in the legal profession and in the legal system are not made by organizations or individuals who are part of high-profile cases or initiatives, but through the power of encouragement and mentorship on a very personal scale. Many lawyers from underrepresented groups have been encouraged by other members of the profession to pursue legal studies, to undertake particular types of work, to apply for an appointment to the bench, or to put themselves forward for positions in legal organizations.

We would like to hear about the mentors and boosters who have touched the profession in this less visible way. If you have a story about your experience with a person who encouraged you, mentored you, wouldn’t let you give up, we ask you to share it with us. You may contact the editor of this newsletter, Beth Bilson, at beth.bilson@usask.ca.

In previous issues of this newsletter, we have discussed the work of the SCE at the national level of the CBA. The SCE relies heavily, however, on members at the branch level to ensure that issues of equity and diversity are raised and pursued effectively in every jurisdiction. In this issue, we focus on some of the issues and projects which are preoccupying branch equity committees. These include the establishment of a scholarship fund for Aboriginal students in British Columbia, the development in a number of branches of strategies for facilitating use of the Equity and Diversity Guide, and discussion of how to gather information necessary to formulate equity benchmarks. In addition, we comment on two important decisions of the Supreme Court of Canada.

Finally, we invite you to identify people who in their personal lives and careers have taken equity and diversity seriously as objectives, who have encouraged or mentored women, persons with disabilities or racialized members of the profession, who have fought to have the bench, the Bar, the law schools and the legal system as a whole more inclusive. These “unsung heroes” make a vital contribution, and we would like to hear about them.

We have a lot to be excited about at the CBA Standing Committee on Equity. Our Equity and Diversity Guide and Resource Manual has been launched and has been receiving much positive feedback from members of the legal profession; our review of outstanding equity-related resolutions with Pushing the Envelope is well underway; we have made positive progress on our project relating to employment benefits for self-employed workers; we organized our first online CLE in May on Clients with Disabilities; we will be presenting a CLE on Reasonable Accommodation at the Canadian Legal Conference in Quebec City; and our in-person meeting with Branch equity representatives this past spring once again highlighted the important work being accomplished across the country by members of the equity committees of all CBA branches.

Indeed, the collaboration and exchange of ideas and support between the SCE and the branches is a key element. It is through such exchanges that we are able to communicate the work of equity-seeking groups and learn from each other as well. For instance, the dissemination of the SCE Equity and Diversity Guide would not be possible without the active involvement of the branches and the members of the equity committees from these branches who are involved in the communication of the Guide to CBA members. As we develop a “train-the-trainers” session for the Guide, we will continue to count on the branch equity committee members to disseminate the Guide more widely across the legal profession. We are delighted that we have received so many requests from various branches to present the Guide to their own Council members.

As outgoing Chair of the SCE, I wish to take this opportunity to thank all the members of the SCE and members of the CBA staff, particularly our liaison officer Marie-Claude Noël, for all their hard work. Under the leadership of Beth Bilson, I am confident that the SCE will face the continuing challenges which confront our legal profession with vigour and determination. These are indeed challenging times: while the profession has made some notable progress in acknowledging that discrimination of all kinds still acts as a significant barrier to many individuals, much work still remains to be done. The CBA has taken a leadership role in this regard and continues to do so.

In collaboration with the national Human Rights and Constitutional Law Section, the SCE is presenting a CLE on reasonable accommodation, scheduled to take place on Tuesday, August 19 at 11:00 a.m. Members of the panel will be Lucie Lamarche (Gordon Henderson, Chair of Human Rights, University of Ottawa), Irfan Syed (former Chair, Muslim Lawyers’ Association) and Pierre Bosset (Quebec journalist).

The annual Touchstone Reception will be held at 4:30 p.m. on Tuesday, August 19. At this popular event, the 2008 Touchstone award will be presented, along with two SOGIC awards. These awards recognize outstanding efforts by individuals and organizations towards the inclusiveness of the legal profession and the legal system in Canada.