The Law Society of BC’s treatment of an Indigenous lawyer fell short of its anti-discrimination obligations, the Supreme Court of British Columbia has ruled. It found the public body failed to adequately take into account the background and personal circumstances of lawyer Miranda Moore, who is of Anishnaabe ancestry and a member of the Cote First Nation, when deciding on her transfer from the Law Society of Alberta to BC. This case highlights some of the challenges Aboriginal members of the legal profession face and it suggests that, despite recent progress, law societies across Canada are still not doing as much as they should to make the bar and the bench more inclusive.
Ms. Moore had applied to the Law Society of BC to transfer from her former regulating body, the Law Society of Alberta (LSA). She also applied to practice in BC on a temporary basis until the transfer was decided.
At that time, Ms. Moore had two outstanding disciplinary citations against her from her time practicing law in Alberta. Two clients had made allegations about her conduct, including that she missed or was late to court. Because of the unresolved complaints, the Law Society of BC’s Credentials Committee, which is responsible for overseeing the transfer of lawyers to the province, denied both the application to transfer and the request to practice law on a temporary basis. Ms. Moore appealed for the committee to reconsider but was denied by the chair of the committee.
A few months later, the disciplinary issues in Alberta were resolved and Ms. Moore submitted her application to the Credentials Committee a second time. The committee approved the transfer, but imposed two conditions: to participate in the Aboriginal Mentorship Program; and to agree to practice as part of a law firm or enter into a practice/mentor supervision agreement. Ms. Moore initially consented to the conditions but six months later withdrew her consent and applied to have them lifted. The Credentials Committee denied the request to lift the conditions, stating it was not in the public interest to do so.
A war of words ensued between the two parties via email over whether the conditions were necessary and the dispute was eventually taken to the Supreme Court of BC.
Justice Watchuk, who presided over the case, found the conditions imposed by the Law Society of BC were “reasonable”, however, she was highly critical of the public body’s handling of the whole affair.
“There is clearly a difference in opinion between Ms. Moore and the Law Society over whether the support systems or conditions needed to be requirements of Ms. Moore’s practice, rather than voluntary,” she said. “This difference may have been resolved had the parties discussed how mandatory requirements or conditions may confirm negative stereotypes or perceptions of Indigenous lawyers in British Columbia.”
It is true that law societies have a statutory responsibility to regulate the lawyers and the legal profession but under Section 3 of BC’s Legal Profession Act (LPA) it is also the “object and duty” of the society to support and assist lawyers in “fulfilling their duties in the practice of law”. Ms. Moore had hoped to work with the Law Society of BC on Indigenous access to justice but instead she found it to be uncooperative.
Justice Watchuk said Ms. Moore found the fact that the conditions were mandatory to be “condescending” and her inability to fulfill them “damaged her practice and her ability to practice law”, adversely impacting her clients.
For lawyers of both ethnic minority and majority descent, having mandatory conditions imposed upon you could feasibly impact your job and not to mention your professional pride. But for Indigenous lawyers it also carries with it added connotations. It is therefore common for Aboriginal and ethnic minority lawyers to feel added pressure or a need to prove themselves that other lawyers simply don’t have to worry about. By failing to take into account the impact the mandatory conditions were having on Ms. Moore, the Credentials Committee sadly missed a golden opportunity to fulfill its inclusivity remit.
Indigenous people are overrepresented in the justice system but underrepresented in the bar and on the bench. I am of Métis heritage and early on I have come to realize that, despite everything, there are Indigenous lawyers working across all areas of law. Instead of facilitating the same hurdles they have encountered in the past, we should be listening to the needs of racialized lawyers and breaking down barriers to enable more equal representation.
Law societies even have grounds to get involved when marginalized groups are being discriminated against. The Law Society of Upper Canada’s anti-discrimination obligations were established in its Supreme Court of Canada case involving Trinity Western University (TWU) last year.
The dispute arose after law societies in Ontario, BC and Nova Scotia refused to accredit TWU’s law school. The evangelical Christian university requires its students, staff and faculty members to sign a covenant agreeing not to engage in homosexual intimacy. The Law Society of Upper Canada won the case after the Supreme Court ruled it acted reasonably by refusing to accredit TWU on the basis of its discriminatory policy.
In light of this decision I had hoped that law societies would be emboldened to stand up for diversity but sadly the Moore decision shows, we still have a long way to go.
Ms. Moore felt the Law Society engaged in a “pattern of unreasonableness” by failing to formally consider Gladue factors in its decision.
The Supreme Court of Canada case R. v. Gladue established the principle of and Indigenous defendant’s background being an aggravating and mitigating factor in sentencing. This has been expanded beyond criminal law although Justice Watchuk noted there were no previously reported cases where a law society has applied Gladue factors in an admissions decision.
The Court ruled the Credentials Committee was not statutorily obligated to apply Gladue principles in its decisions regarding Ms. Moore’s application for transfer, however, Justice Watchuk found the Law Society could have done more to live up to its mandate under s. 3 of the LPA to support lawyers in fulfilling their duties.
She said: “It is likely that supports such as meeting with Ms. Moore in person, explicitly referencing Ms. Moore’s background and life experiences in the decisions or discussing them with her, or providing active support in creating conditions or proposals for mentorship, would have assisted in both protecting the public interest, and better supporting and assisting Ms. Moore in applying for transfer and fulfilling her duties in the practice of law.”
She added improved communication from the Law Society could have helped Ms. Moore find constructive solutions and it is also in the public interest to have practising Indigenous lawyers who can “provide culturally appropriate services to clients”.
Let’s not kid ourselves, Indigenous and ethnic minority lawyers are still marginalized in the legal community and face hurdles at every stage of their careers. If we want to increase representation we need to call out when we see unfairness in the system. The Moore case shows that law societies can start to bridge these gaps by listening to racialized lawyers and considering their needs.
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