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Febuary 9, 1996 Halifax Herald

Does racism bar blacks, Mi'kmaq from system?

A few weeks ago, in relation to a another matter, I called Carol Aylward, the Director of the Dalhousie Law Program for Indigenous Blacks and Mi'kmaqs, to arrange a meeting. During our discussions, Carol communicated some troubling news about the IBM Program. It seems the program's graduates are not being hired back by the law firms or government legal departments they articled with.

To put matters into perspective, I'll give a brief summary about why there is an IBM program: The program was established in 1989, pursuant to a Marshall Commission recommendation which urged the province to take measures to reduce the level of racism prevalent in its justice system.

This recommendation was made because the Commission had found that racism in the system had played a large role in the wrongful conviction and incarceration of Donald Marshall, and the system was not responding in an equitable manner to the concerns of people of colour, especially Blacks and Mi'kmaqs. In reaction, as one tool to bring more Blacks and Mi'kmaq into the system, the province, in concert with the Bar Society and Dalhousie, set up the Indigenous Black and Mi'kmaq program.

Before delving further into the career aspirations of the IBM graduates, I want to discuss the disturbing contents of a Nova Scotia Barrister's Society survey, released on July 7, 1995, which examines the retention of articled clerks by law firms and governments on a gender basis. According to the figures given in the survey, gender plays a large role in the retention of articled clerks. Of the 62 Clerks admitted to the Bar in 1995, 34 were retained by the firms they articled with. The hire-back ratio by gender was 70.6 percent for men and 29.4% for women. One might rightly conclude from these figures that gender is still a major factor in the hiring practices of the law industry.

Now, back to the IBM program: Carol informs me that since the program got underway in 1989, it has graduated 34, with 16 being called to the Bar in Nova Scotia. Others found article positions in other provinces, and many of them have been called to the Bars of those jurisdictions.

Of the IBM graduates who articled in Nova Scotia, none have been retained by the entities they articled with. If this data was factored into the before-mentioned Bar Society survey, on a black and Mi'kmaq versus white retention basis, it would be 100 percent for whites and 0 percent for blacks and Mi'kmaq! If the figure on gender is disturbing, the figure as it relates to black and Mi'kmaq retention is shocking!

Why are Blacks and Mi'kmaq not being hired back? Is it related to competence, nepotism, finances, racism? Letís first evaluate competence as one of the factors that some may try to draw into the picture as an excuse for not retaining. In evaluating competence, we have to ask: Is the Nova Scotia bar exam stringent enough to assure that those individuals called to the Bar are reasonably competent? If the answer is yes, then the competency of IBM graduates has to be discounted as an excuse for not rehiring. If the answer is no, then we must assume that the majority of those called to the Nova Scotia Bar may be too incompetent to practice. We must reject this hypothesis as not being the case, for such a situation would be intolerable.

Now, nepotism. I would imagine there are instances where nepotism plays a part. One does not need a crystal ball to see a scenario where a lawyer, practising with a large firm, might be inclined to ask his firm, or a brotherly firm, to retain a favourite relative. But I don't believe nepotism is a major factor in the retention of articled clerks. If it were, the gender stats for retention would be almost even.

Finances are the likely reason why many of the smaller firms cannot retain successful clerks. However, for large firms and governments, finances cannot be used as an excuse, because both are hiring. If this were not the case, no newly minted lawyers would have found employment in 1995.

Now, racism. The facts seem to indicate that racism plays a major role in the retention of clerks called to the Bar. If it doesn't, then someone please explain why no IBM graduates have been retained by the law entities they articled with!

Blacks have representation in the legal and judicial systems in Nova Scotia, but far from enough to reflect a representation equal to their numbers in the population at large. In the case of the Mi'kmaq, we have a trace of involvement in the legal area, and none in the judicial. And although five Mi'kmaq have been called to the Bar, none are working in positions which would give them the court experience needed to be, someday, considered for an appointment to the bench.

From my perspective, the legal profession in this province is morally obligated to take note of this discrepancy and to come up with a plan to remedy it. Without their positive intervention, blacks will remain under-represented, while the Mi'kmaq may very well be excluded from full participation in Nova Scotia's justice system for eternity.

Daniel N. Paul

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