Ontario judge victim of racism
Justice Donald McLeod, a sitting judge of the Ontario Provincial Court, has made news recently for his community organizing work with the Federation of Black Canadians. He’s been called into disciplinary hearings for alleged misconduct because his involvement in working to advance equity for Black Canadians and to address mental-health issues in the community allegedly works against his role as a judge.
I’m an academic who has dedicated my professional life to anti-racist work. In my professional opinion, McLeod is the victim of systemic and attitudinal racism. He deserves support, not condemnation.
If courts exist to serve the public, the people working in them should reflect the makeup of the general population. Yet Black and other racialized judges like McLeod are extremely rare — but their presence in the justice system is so important.
Ontario Supreme Court Justice Shaun Nakatsuru put it this way: “I find that for African-Canadians, the time has come where I as a sentencing judge must take judicial notice of such matters as the history of colonialism (in Canada and elsewhere), slavery, policies and practices of segregation, intergenerational trauma and racism both overt and systemic.”
McLeod’s presence in Ontario Provincial Court must be protected.
A recent report in Policy Options estimates that just 1 per cent of Canada’s 2,160 judges in the provincial superior and lower courts are Indigenous, while only 3 per cent are racial minorities. Overall, women, visible minorities and Indigenous people are under-represented among the more than 1,000 federally appointed judges. There is a similar but less pronounced pattern of underrepresentation among the more than 700 provincially appointed judges.
I wonder whether a white judge participating in a community organization and advocating for its members as McLeod has done would be similarly charged. I’m sure there are many sitting white judges doing good work as active members of community organizations, yet they have not been pulled into disciplinary hearings like McLeod.
I take issue with the specific charges brought against McLeod that his activities, advocating for Black citizens of this country with politicians, leads him to bias or partiality.
Why would such advocacy lead to unfairness or partiality in carrying out judicial duties? Is the council suggesting that a Black judge would of necessity be biased and could not therefore carry out his duties? That kind of thinking is essentialism in its worst guise: the notion that a person is judged as a member of a group rather than for his/her innate abilities.
Implicit in such thinking is that McLeod is mentally incompetent and could therefore not separate his job from his voluntary activities in society. In fact, he has the education, training and experience to carry out his duties in a manner prescribed for his position as any other member of the bench. Otherwise he would not have been appointed.
To think otherwise is to believe that Black people, or any other racial minorities, are incapable of doing certain jobs because of their race or ethnicity or any other human characteristic.
One of the most basic principles of the justice system in democratic countries is that there must be evidence to prove charges and allegations. While admitting judicial behaviour off the bench continues to be a controversial matter, what about behaviour on the bench? Did McLeod’s judgments change in favour of Black accused, after he became an active member of the Federation of Black Canadians? Did his behaviour appear to favour Blacks or other racialized minorities?
Such evidence has not been produced. If it does not exist, perhaps the allegations against him are the result of the unconscious bias of the Judicial Council.
It is critical for judges to be impartial. Yet impartiality is different from objectivity. Human beings can never be completely objective. Chief Justice Beverley McLachlin spoke of this issue when she said the following: “Understanding impartiality begins with the recognition that judges are human beings ... they arrive at the bench shaped by their experiences and by the perspectives of the communities from which they come.”
As human beings, they cannot help but to bring these “leanings of the mind” to the act of judging.