“Plus ca change, plus c'est la meme chose”. It would appear that despite the many changes in the legal profession since the first black, Delos Rogest Davis, K.C., was called to the Bar in 1885, there remain obstinate reactionaries who wish the present would resemble the more culturally homogeneous past. Those students of colour at Osgoode who, as incredulous as it appears, do deserve the opportunity to study law, have had more than mere luck at proving themselves on their examinations. Almost contemporaneous with the publication of the infamous Osgoode article, about which we in the legal community and academe have heard so much, the inaugural Black Law Students’ Association (Canada) Annual Conference was held in Toronto on February 22 & 23, 1992. Many of those same “lucky” students and their colleagues from around the country gathered for the first ever conference of its kind in Canada. Although the conference has long passed, the real work and fulfilment of the mandate to promote the interests of Black law students through out the country has just begun. This autumn will be its first year of offering support to Black students from Halifax to Victoria.
With the attendance of approximately fifty current black law students, a dozen black articling students, another dozen black lawyers, eight black judges, and two black law professors, the conference clearly demonstrated the rapidly expanding numbers of Canadians of African origin in every area of the legal profession. What made the conference particularly noteworthy was the gathering, for the first time ever, of eight Canadian judges of African origin. They came from four provinces and three levels of the judiciary. Their presence, including the attendance of the Honourable Chief Justice of the Federal Court of Canada, Julius Isaac, confirmed that there has, in recent years, been much progress in bringing equity to the composition of the Bench throughout Canada. It was also appropriate that the conference was held in February, during Black History Month. It was not just through the efforts of black students and the Delos Davis Law Guild, Toronto's Black Lawyers' Association, that this conference was made possible, but also through the interest and support of the larger legal community. The very presence of the Dean of the University of Toronto Faculty of Law as well as a faculty representative from Osgoode Hall Law School indicated that this conference and the formation of the Black Law Students' Association (Canada) have received, at the outset, valuable recognition and moral support. The generosity of the Law Society of Upper Canada, the Law Foundation, and the Canadian Bar Association (Ontario) directly assisted in making the plans for this historic conference come to fruition.
The Black Law Students' Association (Canada) is modelled on the American Association of the same name. With headquarters in Washington, D.C, it has been on the vanguard of promoting the interests of black law students in the United States for a quarter century. The current national chairperson, Ms. Judith A. Browne from Columbia University's School of Law attended the conference. Canada is unique in that the formation of this association, with chapters throughout Canadian Law Schools, is not mirrored in any way for black lawyers in practice. Given the success of this conference and the determination of Ms Jacinth Herbert, the current president of the Toronto-based Black Lawyers' Association, the Delos Davis Law Guild, whose efforts, among many others, were instrumental in bringing the conference to fruition, a national association for black lawyers may be yet established.
The theme of this first conference was “Access”. The number of highly qualified black students from Canadian law schools is increasing and many choose to practise in Toronto. Indeed, this was clearly evident at the conference where black lawyers as well as prospective and current articling and summer students from a wide range of Toronto firms including Blake, Cassels & Graydon; Davies, Ward and Beck; Dutton, Brock. MacIntyre and Collier; Fasken, Campbell & Godfrey; Holden Day Wilson; Shibley, Righton and Tory, Tory, DesLauriers and Binnington attended the conference. A mere forty-years ago, the doors to the predecessors of these and similar firms were closed to blacks.
The introductory remarks to open the conference were made by the Honourable Judge Corrine E. Sparks, of the Family Court in Nova Scotia. Judge Sparks is Canada's only black woman judge who was elevated to the Bench in March 1987. Her Honour pointed out that when she graduated from Dalhousie Law School in 1979, she was one of two students of African origin out of a graduating class of 120 students. She commented favourably upon the expanded number of blacks presently at Dalhousie Law School and praised the changes which are taking place in the legal profession in general. The struggle for equality must be waged through excellence in practice combined with a vision for the future. As the only black female judge currently on the Bench in Canada, her example was particularly inspiring to the students in attendance.
The keynote speaker at the opening luncheon on Friday, February 21, 1992 was Dr. Howard McCurdy, M.P. His daughter, Linda, was one of the participants and is currently a student at the University of Windsor's Faculty of Law. Dr. McCurdy spoke about the need for blacks to have a “room of their own”. In comparing the struggle of blacks to those of women, Dr. McCurdy referred to Virginia Wolfe's 1929 essay, A Room of One’s Own. In his address, Dr. McCurdy stressed the need for blacks to work together to address the systemic barriers that face all minorities. The problems facing blacks, Dr. McCurdy stressed, must be addressed in the broader social context and must include the amelioration of all people in Canada who have been marginalized socially and economically.
The program of the conference consisted of a variety of workshops conducted by lawyers, professors and black professionals. These workshops included “Career Opportunities”, “Access to Law School” and “Employment Equity”. Although Toronto's Osgoode Hall Law School and the University of Toronto Law School have no direct affirmative action programs which admit students, special categories of entrance which take into account the particular talents and strengths which black students bring to the study of law, are recognized, and are taken into account in the admission process. One must recognize the barriers which exist in creating a Bar and Bench which are more representative of the population at large. Discussed at the conference was the issue that the process of creating greater opportunities for blacks in the legal profession must begin long before law school and must not stop upon one's call to the bar. The Canadian Bar Association and Law Society of Upper Canada's active interest and support of the creation of the Black Law Students’ Association is demonstrable proof that the good will exists for this to happen.
The opening reception to mark the occasion of this historic conference was held at Convocation Hall, Osgoode Hall on Friday, February 21, 1992. Through the generosity and foresight of individuals such as Mr. Donald Crosbie, Under-Treasurer, The Law Society of Upper Canada, Mr. Kenneth Alexander, President of the Canadian Bar Association (Ontario), and Mr. Strachan Heighington, Treasurer of the Canadian Bar Association (Ontario), the conference was an unqualified success. These individuals have done much to bridge the gap between black lawyers and the law students who have not felt fully part of the legal community. In his insightful remarks to the guests, Mr. Heighington encouraged and welcomed blacks to participate in the activities of the Canadian Bar Association. Indeed, the Canadian Bar Association is a natural conduit of bringing blacks together from across the country.
Ms Anne-Marie Stewart, a lay-bencher of the Law Society of Upper Canada and a member of its Equity Committee, who is also an African-Canadian, spoke at the reception. Her warm words of welcome and encouragement further pointed out the steps towards which the Law Society of Upper Canada is undertaking to promote greater diversity within the legal profession. One might characterize this praise as almost sycophantic, but the current undertakings of the Law Society must be critically compared to the barriers erected against early black lawyers such as Delos Rogest Davis, K.C., Ontario's first black lawyer and B.J. Spencer Pitt, who practised in Toronto in the mid part of this century.
The keynote address at the reception at Osgoode Hall was delivered by Ms. Marva Jemmott, Q.C. Called to the Bar in 1971 and named Queen's Counsel in 1984, the first ever for an African-Canadian woman, Ms Jemmott is in private practice in Toronto at the firm of Jemmott and Associates. She discussed the many historic barriers faced by blacks in the legal profession and pointed out the circumstances surrounding the many “firsts” for blacks. These many “firsts” were only made possible through legislative intervention. She cited the example of Delos Rogest Davis, K.C., who required the passage of a special Act of the Ontario Legislature in order to be admitted to the practice of law in 1885 without serving articles. Additionally, in this century, a special exception was made allowing Canada's first black judge, the Honourable Maurice Charles (Provincial Court), to be elevated to the Bench in 1969.
Ms Jemmott touched upon the recent appointments of blacks to the Bench in Ontario which have taken place since 1980. This has been a response, in part, to the problems blacks have experienced in the judicial system. At present, excluding the Chief Justice of the Federal Court of Canada, there are seven black judges in Ontario; one in the Ontario Court (General Division) and six in the Provincial Court. With current relations between blacks and the police at an all-time low, it would appear that the appointment of black judges remains a crucial necessity.
The conference's second day's activities included workshops on “Blacks in the Community”, “Access to Justice” and “Issues Regarding Policing”. The panellists on the second day included Judge Selwyn Romilly of the British Columbia Provincial Court, Professors Toni Williams and Michael Mandel from Osgoode Hall Law School and Professor Davies Bagambiire of Dalhousie University Law School. As the only black judge in British Columbia, Judge Selwyn Romilly has been the lone black on the Bench in that province since November, 1974. His Honour was British Columbia's second black lawyer, although the first black lawyer to practise in British Columbia came from the United States in the late nineteenth century and only practised briefly in British Columbia before returning home. Consequently, Judge Romilly had to overcome traditional barriers alone, essentially without the moral reassurance that others had gone before him. One of the highlights of his discussion was the need for black groups to become more involved as intervenors in Charter Challenges. As he pointed out, in Andrews v. The Law Society of British Columbia, there was a real struggle to finance the legal costs of intervenors. Although much has been discussed in legal literature about whom truly benefits from the Charter, Judge Roily pointed out one of the obstacles which he, as a judge, sees in the promotion of equality for blacks and other minority groups, is the very real pecuniary restraints on litigation. A further irony is that in the weeks following the conference, funding for the Court Challenges Program was eliminated in the Federal Budget. It was one of the principal means of financing innovative litigation on behalf of historically disadvantaged groups.
The crowning achievement of the conference was the First National Black Law Students’ Association Dinner entitled “In Praise of Black Judges”. The purpose was to honour Canada's black judges. Those in attendance were: the Chief Justice of the Federal Court of Canada, the Honourable Julius Isaac, Judge Corrine E. Sparks of the Family Court in Nova Scotia, from Ontario Mr. Justice Keith Hoillet, Ontario Court (General Division) and Judges Maurice Charles, George Carter and Vibert Rosemay from the Ontario Provincial Court as well as Judge Lionel Jones of the Alberta Provincial Court and from the British Columbia Provincial Court, Judge Selwyn Romilly. Those judges whose previous commitments prevented their attendance were: Judge Raymond Harris of the Manitoba Provincial Court, and Judges Eric S. Lindsay and Vibert A. Lampkin of the Ontario Provincial Court.
The evening's keynote address was delivered by Chief Justice Julius Isaac. His Lordship was recently appointed to the Federal Court on December 23, 1991, filling the vacancy created by the elevation of Mr. Justice Iacobucci to the Supreme Court of Canada. Prior to being named Chief Justice of the Federal Court, Mr. Justice Isaac had been a justice of the Ontario Court (General Division) since his appointment in February, 1989. His Lordship spoke about the general progress of blacks in the legal profession and the environment in which they have practised. He cited the example of B.J. Spencer Pitt who practised in Ontario during the earlier part of this century. He pointed out that many black lawyers today owe a debt to Spencer Pitt, including him and Judge Charles. As a student at the University of Toronto [B.A., 1955, LL.B., 1958] and as an articling clerk and young lawyer, practising at the firm of Joliffe, Lewis & Osler, Mr. Justice Isaac was familiar with Mr. Pitt and his reputation as a litigator and black activist. Pitt provided personal and professional encouragement to him as well as to Judge George Carter.
The Pitt legacy is to be found not only in Canada, where B.J. Spencer Pitt’s nephew, Mr. Romaine Pitt currently practises law in Toronto, but in the United Kingdom as well. The present Mr. Pitt followed his uncle to Canada in 1954 and attended the University of Toronto before studying law and being called to the Bar in 1965. His elder brother, a physician, emigrated from Grenada to the United Kingdom. In addition to achieving recognition in his professional field Dr. Pitt also became politically active. In 1975, in recognition of his public service on the London County Council, Dr. Pitt was created a life peer, Baron Pitt (of Hampstead in London and in Grenada). Currently, he is the only black in the English House of Lords. The Pitt family is an example to blacks that excellence in any field or endeavour can be achieved through persistence and tenacity of character despite systemic barriers.
One of the objectives of the Black Law Students' Association (Canada) is “to influence law schools, legal fraternities and associations to utilize their expertise to initiate a change within the legal system that will make it more responsive to the needs and concerns of the black community”. A further goal is “to foster and encourage professional competence”. Contrary to the opinion expressed by the disgruntled Osgoode alumnus, black students are under no illusion that excellence is a requirement and not a hoped-for expectation in the legal profession. With the establishment of a national association representing black students, one need not labour under the psychological burden that he or she, as a black law student, is alone. This historic conference has confirmed that there are many other blacks out there who share the same experiences and have the same objectives. The first step is to recognize the shortcomings within the legal profession, which includes legal education, and the second is to take active steps at their emendation. Once a strong internal foundation has been laid, real progress can be achieved without special favours or exceptional intervention.
In few areas has the universal struggle for equality by Black people been more pronounced than in the legal profession. The following short essay, in recognition of the many accomplishments of Black lawyers in the Law Society of Upper Canada, will illuminate this relatively shrouded area of history. The first Black called to the Bar of Upper Canada was Delos Rogest Davis in 1885. Born in 1846 in Maryland, he arrived in Canada in 1850 with his parents. A resident of Amherstberg, which had been a terminus on the Underground Railroad, he was one of the leading Black citizens of the community. His achievement however, was not accomplished without strenuous effort. For years he had attempted to become an articling student without success. Finally, in frustration, Delos Davis petitioned the Ontario Legislature to be granted special permission to be called to the bar without the necessary period of articles of clerkship.
The petition of March 25, 1884, cites, in part:
… that ever since the year one
thousand eight hundred and
seventy-three, and from before
that lime he has endeavoured
and has been anxious to enter
the profession of the law; that
in consequence of prejudices
against his colour and because
of his being of African descent
he has not articled to any
attorney or solicitor, or
served any articles...
It continues by explaining that for eleven years Delos Davis had studied law and had practised as fully as he could without being a solicitor. He had already been appointed in 1871, a commissioner for taking affidavits, affirmations and recognizances of bail in the
Court of Queen's Bench and in 1873 he had become a duly appointed and constituted Notary Public for the Province of Ontario.
The petition, therefore enacted the following:
It shall and may be lawful for the
Supreme Court of Judicature for
Ontario, at any time hereafter, to
admit the said Delos Rogest Davis
to practise as a solicitor of the said court,
upon paying the proper fees in that behalf and
passing at any time or times the final examination
for admission prescribed by the rules of the Law
Society of Upper Canada...
The next year, on May 19, 1885, he was admitted to the bar as Ontario's first Black lawyer. This achievement was followed in 1910 with his appointment as King's Counsel, the first Black King's Counsel in the British Empire. His son, Frederick Homer Alphonso Davis, was the second Black to be called to the bar in 1900. Together, father and son practised law in Amherstberg while Delos also served as a town councillor. Delos Davis died in 1915 and his son, Frederick Alphonso Davis died in 1926.
Between 1900 and 1923 no Blacks were called to the Bar in Ontario. The next to be called was Ethelbert Lionel Cross in 1924. His career was short-lived when, in 1937, after encountering professional difficulties, he left the practice of law. The reasons from this are unclear but there can be little doubt that the Great Depression may have had a great influence.
A call to the Bar in no way automatically ensured prosperity either to whites or blacks. The opportunity for Blacks however, was made all the more difficult for several reasons. During the period as it is today, the most lucrative form of practice was that dealing with
real estate transactions and commercial or corporate representation. Since Blacks did not have ready access to such clients the ability to earn a prosperous living was greatly diminished.
Furthermore, Blacks were not welcomed into traditional partnerships with whites and were thus barred from another means of doing well in the profession. The one area available for Blacks to practise was in criminal law. This however, was of little consolation since Legal Aid did not exist and most people facing criminal trials were poor and had few resources with which to pay. In light of such pressures, the practice of law for Blacks was not necessarily an inviting one. Moreover, the necessary education and payment of fees was beyond the means of most Blacks.
The next lawyer to be called to the Bar was Bertrand Joseph Spencer Pitt in 1928. He was a brilliant orator and a highly regarded defence attorney. Born in Grenada in 1892, the sixth of twelve children of a prosperous mercantile family, he came to Canada in 1926 to study law at Dalhousie. He arrived with the belief that after graduation he would be able to practise anywhere in the British Empire. Upon graduation he sadly discovered that he was restricted to practise only in Nova Scotia.
In dissatisfaction he sailed for London where he spent a year at Middle Temple, studying International Law and Constitutional History. He once again met with disappointment after discovering he would have to wait another eighteen months before being called to the English Bar. In exasperation he decided to come to Ontario to practise. He petitioned the Law Society of Upper Canada and on March 15, 1928, after paying the healthy sum of seven hundred and fifty dollars for fees, he was sworn as a member of the Ontario Bar. His Toronto practice was a varied one and the bulk of his clients were Canadians of Polish descent.
Perhaps the most famous case in which he acted as defence counsel was the Newell Murder Case. In October, 1940 Aune Newell was found murdered on Centre Island. Her husband, Bill Newell, was charged with the crime and eventually convicted and hanged. It took three trials to convict Bill Newell and Spencer Pitt acted as defence counsel in the last trial.
In the final judgement, Mr. Justice Hope charged the jury to look for “substantial doubt.” B.J. Spencer Pitt criticized this decision vociferously and asserted that the term “substantial doubt” rather than “reasonable doubt” confused the jury and allowed them greater room to convict. His outspoken nature, at a time when Blacks were generally extremely respectful towards white professionals, elevated his stature within the Black community.
One incident which took place in February 1942 illustrates some of the hazards faced by a Black lawyer. At that time Spencer Pitt, acting as defence counsel, sought to interview a client in jail. He was prevented from doing so when a police officer seized him by the throat and threw him out of the room. In the face of such an indignity however, he did not publicly accuse the police or other law enforcement officials of racism. He did comment however, in an interview in the Montreal Standard of February 1942:
I have always been on the best
of terms with officers of the
law, and that has been true of
my relations with the police
force ... yet, if I could suffer
such an indignity when I was
not even in the role of a
prisoner, what then?
B.J. Spencer Pitt was an extremely active lawyer. For many years he was the president of the United Negro Improvement Association in Toronto. He also acted as a mentor to many young Blacks and provided free legal services to many members of the Black community. In later years suffered from failing health which would later total incapacitate him and confine him a hospital until his death. Around the year 1954 Pitt left Canada with his wife to seek treatment in the United States. He later died in June 18, 1961 in Corona, New York.
Many of the Black lawyers following Pitt articled with him. These included such notable Black lawyers as James Watson, Q.C., the former Solicitor for the City of Windsor, Myrtle Smith (nee Blackwood), Ontario's first Black woman lawyer and His Honour Judge George Carter, Ontario's second Black judge. During the 1940's and 1950's the number of Black lawyers in Ontario, practising mostly in Toronto, numbered no more than five. Of these two were disbarred, one in 1948 and the other in 1953.
At this time, and well into the 1950's, the only people with whom Blacks or other visible minorities could article, though admittedly their numbers were sparse, were under the direction of other Blacks or Jews. The traditional members of the bar, despite their good will and interest, were reluctant to be of assistance.
Following World War Two the number of Black lawyers began to increase. Judge Carter was called in 1949. Three lawyers of some note from this period include Lloyd Perry, Q.C., called in 1950, Lincoln Alexander, Ontario's Lieutenant Governor, who was called in 1953, and Leonard Braithwaite, called in 1957, the first Black elected to the Ontario Legislature in 1963. Although a small number of Black lawyers had preceded them, their task was not easy.
A graduate of Osgoode Hall Law School and a former gold key winner and President of the Legal and Literacy Society, Leonard Braithwaite found the legal profession a cold world for a Black lawyer to join. Despite his Bachelor of Commerce degree from the University of Toronto and an M.B.A. from Harvard, he was unable to find a position articling in a downtown Toronto firm.
While a student in 1957, he was also almost not accepted as a member of the legal fraternity, Phi Delta Phi. Only after a vigorous debate during a late night meeting of the fraternity did they agree upon his admission. These circumstances reveal that Blacks were not readily welcomed into the legal community, either professionally or socially.
With the sweeping changes to social mores and attitudes in the 1960's and 1970's, as well as increased educational opportunities, many more Black men and women became lawyers. Marva Jemmott, Ontario's first Black woman to be honoured as Queen's Counsel in 1984, was called to the bar in 1971. The elevation of Blacks to the bench however, was more slow to follow, principally because of a lack of numbers of older lawyers. In 1969, Maurice Alexander Charles, Canada's first Black judge was appointed to the Provincial Court (Criminal Division). Born in Guyana and educated at home and in England, he came to Canada with impeccable credentials as a former justice of the High Court of Ghana from 1959 to 1967. He has remained in the Provincial Court as an outspoken member of the bench and a staunch defender of civil rights.
In 1980, more than a decade after the first appointment, Judge George Carter was elevated to the Provincial Court (Criminal Division) as Ontario's second Black judge. In fact, of the five black judges presently serving in Ontario, he is also the only one born inCanada. Furthermore, four of the five have been appointed in the 1980's. The remaining three are Judge Vibert Lampkin of the Provincial Court, the Honourable Judge Keith Hoilett of the District Court and the Honourable Mr. Justice Julius Isaac of the Supreme Court of Ontario (Trial Division). Appointed only last February 24th, he had served as Assistant Deputy Attorney General (Criminal Law) in the federal Department of Justice.
In Toronto the Delos Davis Law Guild is the professional association to which many Black lawyers belong. Formed in 1978, it meets throughout the year holding luncheons and dinners and inviting guest speakers. Last year it was the host of a luncheon for the
Attorney General, the Honourable Ian Scott and held a dinner for Mr. Justice Isaac. Once activitist in orientation, it is now principally a social and professional organization.
The legal profession has undergone many changes since Delos Davis was called to the bar in 1885. His accomplishment and the achievements of those who followed have laid the foundation for a legal profession which will someday be representative of the population as a whole. The history of the Black men and women who, through their tenacity and determination, were called to the bar and practised successfully, demonstrates clearly that in the face of adversity, the struggle for equality can yet be won.
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