Opening Keynote for the Virtual Conference: Enacting Change: Your Seat at the Table

Speech delivered to the 9^th annual conference of the Federation of Asian-Canadian Lawyers, British Columbia, (FACL-BC) on Zoom.

The Honourable Shirzad Ahmed, November 27, 2020.

I am honoured to have been asked to give the opening keynote for this year’s Federation of Asian Canadian Lawyers conference. Although it has been suggested that I cover topics such as “how to advocate for yourself,” or to tell you more about my own lived experience as a refugee and as a racialized lawyer and judge, I would prefer to spend my time speaking directly to the topic of “enacting change” – this year’s conference theme. In my opinion, advocating for yourself often does not provide possibilities for wider systemic change, as it is limited to one’s own personal circumstances. Moreover, I expect that my experiences as a refugee and as a racialized lawyer, while unique, are probably not all that uncommon to those of you who identify as racialized lawyers, as newcomers to Canada, as first generation Canadians or as refugees yourselves. As such, most of you are already keenly aware of the racism, xenophobia and discrimination that permeates our society, including the legal profession.  You have likely experienced it firsthand in your own, very personal way.  If you have not, self-reflection may reveal various privileges that have helped to insulate you from the worst of those injustices. Indeed, your license to practice law itself can be a powerful shield that your racialized coworkers – court staff, assistants, clerks, articling students, paralegals and other support workers – do not have.  We too often talk about “racism in the legal profession” as a euphemism for “racism experienced by racialized lawyers” as though we are the only participants in the “profession” to experience it. That must end, and in my view we must strive for a conversation that is far more inclusive of all the people with whom we work and interact on a daily basis.

This being said, let me return to the theme of this year’s conference: “enacting change: your seat at the table.”  This theme raises two primary questions in my mind: the first is, enacting what change? 

It is a truism that much of the face of the legal profession has changed in Canada over time. More women, racialized, Black, Indigenous, and LGBTI+ are represented and visible in the legal profession than they were in the past.  So what change do we think is needed, and how can it be brought about?

Perhaps the simplest answer to this question is the all-encompassing “access to justice.” This phrase has been in vogue for some time now, frequently invoked by the former Chief Justice of the Supreme Court of Canada, the Canadian Bar Association, politicians, activists, and, of course, lawyers. We know it is the number one challenge facing the legal system, and yet I encourage you not to think of this issue as a problem to be solved, but rather a journey without a final destination, wherein we collectively strive to do a bit better every year, month, day, and moment to improve access to justice in its most broad and encompassing sense.

So what can you, as lawyers, do to improve access to justice?

Before I was appointed to the Federal Court, I practiced exclusively in the areas of immigration and refugee law, human rights and civil liberties.  A typical “do-gooder” one might say, always acting on the side of the angels. Make no mistake, I am proud of the work that I did and the clients who I served, who entrusted me with matters of life and death, freedom or imprisonment, a bright future or doom. However, I never understood why those who practice in such areas of the law should retain a monopoly on doing meaningful, socially progressive work.  Every day presents new opportunities to leverage our legal knowledge and resources to the benefit of others, whether you work in prison law or you are a corporate litigator. But how often do we use our skills, and the immense privilege of a license to practice law, to the benefit of those who are less fortunate?

The answer, I fear, is far too infrequently. At a minimum, we can look for pro bono cases to support those seeking access to justice in our communities. It would be even better to push the envelope at our firms or employers, to make social justice part of the culture of the business or workplace. And ideally, we can work together to fight for systemic change by engaging in policy advocacy, law reform and strategic litigation. Indeed, FACL itself provides a great example of engaging in strategic litigation, such as its recent intervention in the Chouhan appeal at the Supreme Court of Canada with respect to the question of peremptory challenges. Just a few weeks ago, this organization provided the country’s highest court with meaningful context about what the abolition of peremptory challenges would mean for racialized accused persons in criminal proceedings involving juries.  That work is important. It should be lauded and encouraged.

Similarly, the mere act of speech should not to be undervalued as an agent of change.  As lawyers, you are uniquely positioned to understand the justice system. What works? What isn’t working? What inequities does the system produce? How can they be addressed?  Each one of you should have insights into these questions and you should be prepared to talk about them – not only amongst other lawyers, but perhaps even more importantly with those in our communities who may have less exposure to the justice system, including our friends, family, social groups, sports clubs, and young people. We can popularize these problems and propose solutions because, quite frankly, we are not able to remedy them on our own.  We might also learn a thing or two about perceptions, or misperceptions, of our justice system by engaging in such conversations.

I say “we” very purposefully here, because I believe that this work – that is, talking about access to justice – should include judges. Some are concerned about judges playing such a role, warning that we should stay in our proper place and avoid giving speeches, interviews, and otherwise engaging in public debate about these topics – perhaps a bit like I am doing now. I share a different point of view, for two reasons. First, this view suggests that legal positivism is the only philosophy that has any place in judicial deliberation.  Like it or not, there are other judicial philosophies that exists and no one has a monopoly on what is “right” or “wrong” in this regard. Second, this view reinforces the obvious legal fiction that judges are automatons who simply apply the law in a scientific, sterile fashion. This critique should not be taken to suggest that I am advocating that we discard the importance of judges exercising objectivity and impartiality when hearing cases. But true purity in this realm is, at most, a goal to strive for but not yet achieved. Alas, we judges are human beings just like everyone else: when cut, we bleed red, and we have thoughts, opinions, divergent philosophies and yes, frailties just like all other humans. We are a product of our experiences, like everyone else. In my view, a judge’s place is not apart from, or above, the public square – we belong in the midst of it, just like everyone else.

Whatever you make of these modest suggestions for making change – be it at your firms or employers, or engaging in strategic litigation, etc., one thing is clear: the time for theorizing about “access to justice” is over and we must begin to act. The ancient Greek concept of praxis is useful here, a concept that regrettably does not have an equivalent English term. Praxis is the notion that theory and practice ought to be synthesized, and its wisdom can be summed up with the notion that “action without reflection is blind, reflection without action is impotent.” It is only through praxis, in my view, that meaningful progress can be made on our collective journey of improving access to justice.

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The second part of this year’s conference theme refers to your seat at the table. As I suggested at the opening of my remarks, looking for your seat at the table is largely the antithesis of change, for anybody other than yourself. I would argue that this proposed vision runs counter to the importance of community that is held in such high regard in many non-Western cultures, which balance and even preference the good of one’s community with the good for one’s self.  In fact, this sharp dichotomy of self vs community is one that many cultures and philosophies explicitly reject, based on the wisdom that our own interests are ultimately entwined with that of our local – or even, increasingly it seems – global community. There is surely much wisdom in your own family and traditions that I encourage you to draw upon and apply in your practice as a lawyer. Cultural competence in delivering legal services is not simply about speaking, reading and writing other languages; it is also valuing and understanding that the public we serve is diverse and thus we must strive to serve clients in an adaptive manner.

Drawing inspiration from this theme, I encourage you to think, what does “our” seat at the table look like, and how can we advocate for it? One area that desperately needs change is the judiciary.  While diversity in the bar has improved, much less can be said with respect to the judiciary.  As you are already aware, my own court has recently been made the focus of this issue, with some organizations having called for existing vacancies on the Federal Court to be filled by Black, Indigenous and People of Colour judges. The Minister of Justice swiftly convoked a forum about “Diversity on the Bench” shortly thereafter. What change should come from these changes is yet to be seen, but awareness and acknowledgement of the problem is certainly the first step. However, it remains just that – a first step.  Remember praxis: we cannot only theorize about the possibilities that a diverse bench might bring.

Nevertheless, while hardly anyone would disagree that Canada needs courts that are much more reflective of the diversity that exists in our society, I am skeptical of the notion that a more diverse judiciary will necessarily and automatically deliver the elusive “access to justice” that I mentioned earlier. Increased diversity in how we look – through bean counting and statistics, will not automatically bring change. Diversity in judicial decision-making also requires a diversity in thinking about the law, its interpretation, and most fundamentally, the meaning of justice itself. Judges who come to the bench who simply look different, but do not bring their personal and community experiences to the process of deliberation, are hardly likely to offer any meaningful differences to the inequities that currently exists in the judicial system. In short, “diversity” is a necessary, but not sufficient, precondition for more equity in our legal system.

Nor is the inverse true. A judge does not need to be a member of an equity-seeking group to deliver access to justice. There are judges of many courts who, despite not belonging to such equity-seeking groups, have sought to advance the cause of justice on behalf of these groups through independent, compassionate legal reasoning.  They live not in fear of being overturned on appeal, but rather are motivated to interpret and apply the law in a manner that delivers justice while respecting the rule of law. Thus the objective, in my view, should be a bench which is not only representative of Canada’s diversity, but is also empowered to render decisions which are informed by that diversity.

So, should we advocate for “our” seat at the table – in the example I have selected, the bench? Absolutely. But this victory will be pyrrhic if judicial appointees do not draw upon their experiences and exercise their independence to deliver meaningful justice for those who appear before them.

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I hope that my remarks have provoked some useful reflections, and they will serve you as you work through the conference program. Thank you for your time and attention, and I hope that you have a wonderful conference.