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Talking About Race and Exposing Reality

April 17th, 2021
Nital S. Gosai
B.A. Hons, L.L.B., Founding Partner

Racism impacts our world in a variety of ways, through various institutions and societal structures. Sadly, Ontario’s legal system is no exception. Looking at the justice system through the lens of the critical race issues that exist today, it is apparent that there is much work to do.  

Various investigations, reviews, and studies reveal these ever-present issues in the legal system. Black, indigenous, and people of colour (BIPOC) are overrepresented in the corrections system and face longer sentences than their white counterparts. Additionally, BIPOC are widely underrepresented in leadership roles within the legal system. Furthermore, white, middle-aged men still predominantly determine the fate of minorities in court and hold power in deciding whether to settle a dispute or drag it out.

While the events of 2020 have sparked world-wide conversations around racial inequality and white privilege, these issues are not new. Moreover, we can no longer hide behind the pretense of colour-blindness. Colour-blindness, while good-intentioned, does not dispel racism. In fact, it perpetuates it; refusing to see colour denies the existence of systemic racism while minimizing the gravity of injustice people of colour continue to face every single day. 

By having these difficult conversations, we empower ourselves and those around us to learn and better understand how racism manifests in our society. And by examining our own behaviours, we recognize that in order to facilitate change, we need to be part of the solution. 

Talking About Race And Racism In The Legal System

In 2020, I was invited by the Ontario Trial Lawyers Association (OTLA) to participate in a panel on racism within the legal system. The event was a progressive step taken by a traditionally more conservative legal organization. 

Among my fellow panellists was a South Asian lawyer from a prominent firm in Hamilton. Her input was interesting; despite being part of a visible minority, she felt she didn’t belong on the OTLA panel. She had never experienced racism throughout her career, she asserted. Even in a predominantly white, male environment, her bosses and colleagues took her under their wing, mentored her, and protected her.

However, reflecting upon her career journey allowed her to view her situation through fresh eyes. The South Asian lawyer realized that she had assimilated into the predominantly white, male environment. She had taught herself golf, joined in on the whisky, and learnt to banter with the men over sports. She never referenced her culture, and inadvertently hid her values away from the workplace. She had never faced racial discrimination because she had gone to great lengths to make herself fit in.

While her actions may seem like an easy solution, it came at a price. In her efforts to fit in, she had subconsciously adopted their ways, erasing her own distinctiveness. 

She had avoided racism – at the cost of suppressing her cultural identity.

Getting Uncomfortable

Like many individuals, sometimes I get uncomfortable when discussing race and racism. My heritage is South Asian, but I appear racially ambiguous so I “pass” as white. Unlike my clients, who are predominantly black, Tamil, and other people of colour, I benefit from white privilege. 

Nevertheless, I do call out racism when it is appropriate to best represent my clients.

In my experience, black and other racialized claimants encounter much more difficulty accessing benefits. By some “coincidence”, they tend to receive incredibly low scores on the whole person impairment scale – a rating system that determines the extent of one’s catastrophic injuries. These scores are particularly low when compared with white claimants. Not to mention the fact that insurers are far more likely to be willing to settle claims where the claimant is white.

When a black female client of mine was in an accident, she was assessed by numerous doctors, arranged by both her counsel and the insurer. As far as we were concerned, she had suffered a catastrophic impairment. 

Yet despite receiving volumes of medical information supporting the claim, counsel for the respondent (an older white man) took the position that nothing at all was wrong with her. For over a year, he would not offer more than a $50,000 settlement – a pittance that she did not accept.

My client and her husband had three young children and had been earning a six-figure income. After the accident, she was unable to work and consequently lost her job. Her husband had to care for her most of the time. The family lost their home and investment property, and the situation became so bad that they eventually ended up in a shelter.

Luckily, one of the doctors for the insurer who had assessed my client opined that although she was not catastrophically impaired, she had a complete inability to carry on a normal life and would not be able to work again. As a result, counsel handed the file over to a lawyer; we negotiated a $500,000 settlement.

This is one instance that clearly illustrates racial bias within the legal system. In order to best represent my client, it was necessary to recognize the way this bias manifested throughout her case, and call it out accordingly. 

In order to better advocate for clients who identify as BIPOC, we need to acknowledge the way racism bleeds into our societal systems, particularly the law. Racism is not comprised of individual acts of discrimination – it is the makeup of our institutions and organizations, that has historically granted white people privilege over people of colour. Acknowledging the fact that this hierarchical behaviour exists is the only way we can effectively facilitate racial change. 

It’s Okay To Say “Black” and “White”

Society, and the legal profession, in particular, is often afraid to readily acknowledge white privilege. 

What we need to understand is that recognizing our differences is key to having a worthwhile conversation around race – it’s okay to say “black” and “white.” We need to talk about race – boldly and unapologetically – even when it feels uncomfortable. We need to discuss racial inequality when appropriate to help our clients and to correct the imbalances in Ontario’s legal system.

Small Steps, Great Strides

In my law firm, we create a safe space for our staff to discuss these issues. We take action, utilizing sensitivity training, anti-racism training, and anti-oppressive training. Our objective is to educate. We deal with racism head-on.

And by talking about these issues, change has been sparked. Canadian judges are now required to use race and culture assessments when sentencing aboriginal offenders. There are calls to legislate similar racial assessments for black offenders.

Similarly, 2020’s OTLA panel discussion was a step towards recognizing racial imbalances in Ontario. I now serve on the association’s Diversity Working Group where we are trying to establish the support that the law community requires for its BIPOC and LGBTQIA members. These initiatives will include mentorship opportunities and access to member-specific training and education. We are working to engender greater diversity at all levels of the legal community in Ontario.

Momentum is gaining, which is why it is imperative that this conversation continues. We may not have all the answers, but initiatives like these enable us to talk about racism and confront uncomfortable realities so that we can change Ontario’s legal system for the better. 

To explore more of my thoughts on racism in Ontario’s legal system and possible solutions, read my blog posts based on the OTLA roundtable: What is White Privilege?, How Racial Bias Pronounces Itself in the Ontario Legal System, and Overcoming Racial Imbalances. I am always happy to discuss these issues with clients, colleagues, and the media.

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