The untold history of the legal profession // Cover Story
On Tuesday December 4th, 2018Print
On Tuesday December 4th, 2018Print
ON AUGUST 16, 1933, a baseball game was under way at Christie Pits between the predominantly Jewish players of Harbord Playground and a team that was sponsored by St. Peter’s Catholic Church. At the end of the game, several spectators held up a large white banner emblazoned with a black swastika. The game quickly erupted into an all-out fight between Jewish and Anglo-Canadians. Both sides wielded rods, bats and rocks. The brawl lasted six hours and left many severely injured, making it one of the largest ethnic clashes in Canadian history.
At that moment in our country’s past, anti-Semitism burned red hot. When Jewish families settled in Toronto, the local population saw them as a threat to the racial and religious purity of the community. Even Prime Minister William Lyon Mackenzie King wrote in his diaries that he feared Jews would “pollute” the Canadian bloodstream. This helps explain why, in 1939, his government turned away about 900 Jewish refugees fleeing persecution in Nazi Germany.
As the baseball riot raged, Bora Laskin was a 20-year-old Jewish student who had just graduated from the University of Toronto. His long-term goal? To practise law. Born in 1912 in Fort William — present-day Thunder Bay — he was the oldest of three sons to Max and Bluma Laskin. His father worked as a dairyman before opening a furniture and dry goods store. At the age of 12, Laskin saw his father interact with a number of lawyers and was inspired to enter the profession.
Once he completed his undergraduate degree, Laskin applied to Osgoode Hall. Back then, this was the only law school in Ontario that was recognized by the Law Society of Upper Canada. The program consisted of three years of part-time courses and articling. Students would attend lectures in the morning and work alongside their principal for the rest of the day.
This meant that, in order to earn a law degree, every student had to find an articling principal who would take them on for a three-year period. For Laskin, this was a brutal struggle. Not only did he lack professional connections, but, in his job search, he encountered the intense anti-Semitism that ran through the legal profession. Toronto’s established firms were composed, almost entirely, of white men. Many were devout Protestants who held prejudices against Jews and Catholics.
Throughout the first half of the 1900s, most firms were only willing to offer articling positions to white Christian men. “These were family firms,” says Ian Kyer, who practised at Fasken for more than 30 years and wrote a book about the firm’s 150-year history. “They stuck with people they were related to or who went to their church. There was never room for any Jewish people or Roman Catholics. And there was definitely no room for people of colour.”
This state of affairs left would-be Jewish lawyers with one option. “It was well known in the 1920s and 1930s that Jews could only article with other Jewish lawyers or firms,” says Philip Girard, a legal historian and law professor at Osgoode Hall, who wrote the biography Bora Laskin: Bringing Law To Life. “The vast majority of non-Jewish lawyers would not accept them as articling students.” When Laskin finally found an articling position, it was with Sam Gotfrid, a fellow Jewish fraternity brother. The match was hardly ideal. Gotfrid had been called to the bar a year earlier and had no functioning legal practice. Normally, the Law Society would have rejected this arrangement out of hand. But it was the Great Depression. “Finding an articling position was very difficult, but it was even worse in the 1930s,” says Girard. “If you could find any lawyer who would sign a form saying you were articling with them, that was fine with the Law Society.”
Ten months into articling, Laskin caught a lucky break. He met a non-Jewish lawyer, W. C. Davidson, who had a healthy practice and who agreed to take on Laskin as an articling student for his final two years of law school.
After Laskin was called to the bar, he made a surprising decision: he went into academia. Between 1940 and 1965, he taught at both the University of Toronto and Osgoode Hall. And in 1965, he received an appointment to the Ontario Court of Appeal. In 1970, Prime Minister Pierre Elliott Trudeau made him the first Jewish person to sit on the Supreme Court of Canada. Three years later, he was appointed the chief justice of the court. He held that position until his death in 1984.
Laskin’s experience is part of a broader pattern. The central barrier he had to overcome — namely, that the upper echelons of the profession refused to offer him an opportunity to thrive — has wreaked havoc on the careers of countless minorities over the past two centuries.
This is a central lesson of legal history. “Lawyers, as a group, have never been the leaders of social movements,” says Kyer. “They are followers. If a movement becomes well established, they might pay attention. But they don’t set out to be more open.”
The hyper-conservative nature of the legal profession helps explain the fact that Toronto law firms are still overwhelmingly white. Only 21 percent of lawyers self-identify as racialized or Indigenous, even though they represent 29 percent of Ontario’s population. And while women have made up at least half of the province’s law-school graduates over the past 25 years, they account for only 44 percent of lawyers and less than 25 percent of all partners in private practice.
These statistics are the result of weak leadership. The gatekeepers of the profession — that is, those with the power to hire and promote the next generation of talent — have routinely abandoned those who sit outside the dominant culture.
So how do we break this cycle? For starters, we can take a good look at our history. And we can learn from it. The legal profession does not have to repeat the mistakes of the past.
STORIES OF PROGRESS are typically told in a series of firsts. Robert Sutherland became Ontario’s first black lawyer in 1855. Clara Brett Martin became Ontario’s first female lawyer in 1897. Bora Laskin became the first Jewish justice to sit on the Supreme Court of Canada in 1970 and three years later, he became the first Jewish chief justice. And so on and so on.
But when history is told in a series of milestones, it can distort our collective narrative. When we celebrate the accomplishments of these extraordinary lawyers, there is a tendency to forget the pervasive discrimination problem that they had to endure.
It’s no secret that the legal profession has barriers at every rung of the ladder, from articling to getting that first job to becoming partner. But it’s that first barrier that, throughout history, has stung the most. Make no mistake: the condition that students must obtain an articling position has often served as a tool of oppression at the expense of the less privileged.
During Laskin’s era, it was common knowledge that articling was a major impediment to minorities hoping to enter the profession. “But the Law Society never adopted any formal measures to deal with this problem,” says Girard. “It simply said to prospective lawyers, ‘That’s your problem. You go find somebody.’”
This put the onus on Jewish and Catholic lawyers to bootstrap their own practices and firms. Which, in turn, gave rise to a number of small Jewish and Catholic-run firms in Toronto, such as Goodmans LLP, Levinter & Levinter PC and Day, Wilson, Campbell. These workplaces became the de facto training ground for lawyers who had nowhere else to work.
Over time, these firms came to thrive. In the Jewish community in particular, their sense of collective struggle cultivated resilience and a drive to succeed. It also bred a desire to help the less privileged. These small firms welcomed the next generation of Jewish lawyers. In some instances, they hired female lawyers, who were also having a remarkably difficult time.
DELOS ROGEST DAVIS became Ontario’s second black lawyer in 1885. Born to enslaved parents in 1846, Davis and his family escaped Virginia via the Underground Railroad and settled in Colchester Township near Windsor, Ont., in 1850. There was no school, so Davis’s father banded together with other parents in the area to hire a private instructor who could teach the town’s children.
Driven by his father’s resolve to rear educated, ambitious children, Davis decided to study law. In his 20s, he worked as a commissioner of affidavits and as a public notary. Despite these notches in his belt, however, Davis was unable to enter law school. The reason should come as no surprise: no lawyer would hire him as an articling student. He eventually petitioned the Ontario Legislature to admit him to the bar by special statute. It worked. In 1885, he was called to the bar and later set up a criminal- and municipal law practice in Amherstburg, Ont. The statute that granted him admission to the profession explained that he was unable to article “in consequence of prejudices against his colour and because of his being of African descent.”
More than a decade later, Ontario admitted its first female lawyer to the bar: Clara Brett Martin. A white Torontonian from a privileged Anglican-Irish family, Martin held a Trinity College degree and all the prerequisites to build a career as an elite professional. But as a woman, she could not study law. At that time, the Law Society only allowed “persons” into law school, a strict legal definition that excluded women.
And so, much like Davis, she took matters into her own hands. Martin formally petitioned the Law Society for an exception. The first request was rejected, but, when she petitioned a second time, she was approved. Martin became Canada’s first female barrister and solicitor in 1897.
Close to a half century passed. Then in 1938, Norman Lickers became Ontario’s first Indigenous lawyer in nearly eight decades. (In the early 1860s, two lawyers with partial Indigenous ancestry — Solomon White and William John Simcoe Kerr — were called to the bar in the province.) Born in the Tuscarora Township on the Six Nations reserve in 1913, Lickers was the youngest of six children. His father was a farmer and his mother died when he was young. At the age of seven, he attended the Mohawk Institute residential school in Brantford, Ont., where children were expected to convert to Christianity and perform manual labour, such as farm work and gardening. When Lickers turned 16, he went to high school before enrolling at the University of Western Ontario in 1931. Armed with a degree in economics and political science, he was admitted to Osgoode Hall in 1934 and received his licence to practise four years later.
But why did it take so much longer for an Indigenous person to become a lawyer than, say, a woman or a black man? Up until 1927, a provision in the Indian Act stated that any registered Indian who wanted to be a lawyer (or a doctor, a clergyman or a university student) would have to give up their band membership. This put Indigenous people in a terrible bind: it forced them to choose between their identity and joining the legal profession.
Twelve years into his career, Lickers was accused of misappropriating a client’s funds and lost his licence. This forced him to take up ironworking.
The Law Society never made the details of his disbarment public. But recent historical writing suggests that law societies throughout Canada may have targeted racialized lawyers through disciplinary proceedings. But beyond that, there is some evidence that law societies across the country may have targeted racialized lawyers with trumped-up charges. As the legal historian Constance Backhouse has written, disbarment “arose to plague a number of the early racialized lawyers.” Throughout the 1940s and 1950s, there were five black lawyers practising in Ontario — and two were disbarred. Black lawyers at that time often faced allegations of “conduct unbecoming” and “touting” (the act of soliciting potential clients in an unprofessional manner). Backhouse has called for further research into “the discriminatory types of disciplinary supervision they may have been accorded by provincial law societies.”
IN THE 1960S, the legal profession was on the cusp of major change. Racism was on the wane. Jewish lawyers had become more central to the fabric of the legal profession. And, in the meantime, women had started to enter the field in larger numbers. By the mid-1980s, women made up 30 percent of law school students. In 1993, law schools in Canada had reached gender parity. And yet, even today, private practice remains overwhelmingly male.
How can this be the case? The answer is simple: there is always more work to be done to improve society. The fact that the legal profession reached a significant milestone — gender parity in law school — did not immediately purge the largest, most powerful firms of their sexist attitudes.
Indeed, as history makes plain, the women who graduated from law school in record numbers encountered blatant sexism when they entered practice. According to a Canadian survey from the late 1960s, male lawyers thought their female counterparts treated the profession as a “hobby” and were “incapable of being realistic or logical.” If they attempted to adopt a more masculine demeanour they were seen as abrasive, but if they embraced their femininity too much they risked losing the respect of clients, lawyers and judges.
Rosalie Abella, who became the first Jewish woman to sit on the Supreme Court of Canada and is now the longest-serving judge currently sitting on the court, began law school at the University of Toronto in 1967. And immediately, career obstacles began to block her path. “It was tough to get an articling job,” she told the University of Toronto, when it put together a web series called Women in Law Through the Decades. “But then, I expected it to be tough. One [firm] said, ‘I hope you understand, we’re just not hiring women.’”
Discrimination was not always so cut and dry. “Sexism came in many different forms,” says Fiona Kay, a sociology professor at Queen’s University who has written extensively on gender inequality in the legal profession. “Some exclusionary behaviours were subtle, like not inviting women to socials, not offering them the opportunity to work with senior partners or not giving them challenging cases.”
The profession was moving forward, but, at the same time, dragging its heels. And not only when it came to women. Consider the case of Arnold Weinrib. In 1965, he graduated from law school. Despite sweeping changes in attitudes toward Jewish lawyers, he still had a difficult time finding an articling gig. “I had a strong suspicion it had to do with my religion,” he recalls. “As Jewish students, we certainly talked about discrimination. We didn’t feel great about it, but somehow we always had confidence that we would find jobs in the end.”
Eventually, he found an articling position at Goodman and Carr, a predominantly Jewish firm, but he decided not to accept the job. Instead, he went directly into teaching. He has taught law at the University of Toronto for close to five decades.
SO HOW FAR HAVE WE COME? In short: not far enough. The articling system, for instance, is still rife with systemic inequality. In a recent study, one in five articling students in Ontario said they had received unwelcome comments about their gender, race or sexual orientation on the job.
Meanwhile, when lawyers recruit articling students, they still favour students who are white. Throughout Ontario’s articling program, about 18 percent of students are racialized. Now pan to the Law Practice Program, an alternative to articling offered at Ryerson University, which will accept any law student who wants to enrol. In this program, racialized students make up 32 percent of the total enrolment. These statistics make it clear that the articling system’s hiring process has retained its historical prejudice.
This is no longer acceptable. History should serve as a call to action, a jolt to the nervous system of the profession to drive change, not to simply hang back and wait until the rest of society moves forward.
Donna Walwyn, a black female lawyer who was a partner for a decade in Toronto at Baker McKenzie, sees legal history as tragic. “We just haven’t made significant progress,” says Walwyn, who is now an independent director with a private-equity firm. “We’ve lost some great contributions in areas of the law because we didn’t create an environment that was welcoming to racialized lawyers.”
But it doesn’t have to be this way forever. There are practical steps current leaders can take right now that would make a genuine difference. Walwyn argues, for instance, that firms should incentivize individual lawyers to be more proactive about increasing diversity by making it part of their compensation structure. “We have to look to different ways to increase engagement on an individual lawyer basis,” she says. “We need more lawyers to say, ‘I will be a sponsor, I will be a mentor.’ That still doesn’t happen nearly enough.”
This story is from our Winter 2018 Issue.
Photo illustrations by Paul Weeks.
Feature image of law students and faculty at the University of Toronto in 1930s, as well as the original image of the Bar Certificate, courtesy of The Law Society of Ontario Archives.
Photo of Bora Laskin and the original image of the 1948 Bar Certificate courtesy of The Law Society of Ontario Archives.
Photo of Delos Rogest Davis courtesy of The Law Society of Ontario and the Ontario Black History Society. The original image of the 1834 Osgoode Hall Student-Admission Certificate courtesy of The Law Society of Ontario Archives.