The Barristers Act in Ontario has to go.
It’s a curious sight to walk into certain courtrooms in Ontario. One is likely to observe a steady stream of old, predominantly white, predominantly men, speaking to their matters with priority over all others. All the while, racialized lawyers, women lawyers, and younger counsel patiently wait in the benches.
If you did not know the reasons why, you might think this was cronyism and privilege working away unabashedly.
This may seem like the natural flow to many who routinely experience systemic racism and gender discrimination. Yet another manifestation of certain privileges that apply to certain members of society. Nothing new, nothing revelatory, nothing worth getting too upset about. Just another example of customs that are deeply entrenched and subversive that cannot be changed with ease.
Not true. What makes this practice particularly offensive is this effect is a product of statute under the Barristers Act. Of course the statute does not state that old, white men get to address all their matters first; but, given the composition of lawyers in Ontario, it may as well. The effect is the same.
What is the Barristers Act?
However, in other jurisdictions, the Act is followed strictly and to a fault. For the reasons explained below, it needs to be revoked or amended so that it prioritizes fairness over privilege.
The Act prioritizes lawyers’ cases as follows:
- The Attorney General of Canada and it’s representatives (Federal);
- The Minister of Justice and its representatives (Provincial);
- Queen’s Counsel (a special appointment that was ceased in 1985 due to complaints of political patronage and cronyism).
- All other members by their year of call.
Leaving aside 1 – 3 above, as this is not the real point of controversy, let’s focus on 4 and what this means as a matter of effect.
At first glance, this may seem like an entirely fair way to prioritize the calling of matters based upon lawyers’ seniority. However, the effects of this are grossly unfair, prioritizing to historical privilege of race and gender, as well as entirely inefficient and unnecessary.
The diversity of senior lawyers in Ontario is not commensurate
In a 2010 report, the Law Society of Upper Canada found that while the profession is diverse and closely reflects the diversity of the Ontario population, there is a significant differences in that composition in older lawyers. In particular, that found that “[t]he proportion of racialized lawyers is much higher in the lower age categories than higher age categories: 48% of lawyer respondents aged 30 – 39 are racialized compared to 11% aged 50 – 65.
Similarly, that same report found a large discrepency along the lines of gender. In Ontario, 39% of all lawyers are over the age of 50. Of that group, the women lawyers (over the age of 50) made up only 27% of all women lawyers in the Province; compared with 51% of male lawyers in the same age bracket (over 50).
Applying this specifically to year of call (as the Barristers Act prioritizes lawyers), that discrepancy is even more pronounced. As an example, if we look to all lawyers who have been called for more than 20 years, the breakdown is as follows:
- % of all lawyers in Ontario: 39%
- Men: 48%
- Women: 24%
- Racialized lawyers: 8%
- Aboriginal lawyers: 13%
When compared with more recently called lawyers, the rates are markedly different. For all lawyers in Ontario called less than 10 years, the breakdown is as follows:
- % of all lawyers in Ontario: 36%
- Men: 29%
- Women: 37%
- Racialized lawyers: 66%
- Aboriginal lawyers: 53%
When one applies those numbers to the Barristers Act, what this means is that “senior counsel” as personified in Group 1 above is overwhelmingly comprised of white men. Women, aboriginals, and racialized lawyers comprise a small minority.
When you add in the numbers in Group B who hold essentially the same proportion of representation of lawyers in Ontario, it is nearly the inverse insofar as composition. This inequity is particularly apparent in the area of racialized lawyers who make up 66% of that group.
Counsel lists are the answer.
A simple, efficient, and fair solution is that of counsel lists. Many courts in Ontario already use them as the proper way to prioritize matters based upon a lawyers order of attendance. It alleviates all the issue noted in this article and for those jurisdictions that utilize them, there are never any complaints.
The practical and unfair effects of the Barristers Act
What this means in effect is that as the Court, or Crown prioritizes matters on a docket list, it leaves women, indigenous people, and racialized lawyers sitting waiting while older white men all move to the front of the line for no reason other than their seniority that is inherently skewed to their advantage.
To further aggravate such frustration, the priority has nothing to do with when lawyers arrive to the courtroom. Therefore, a relatively recent call could (and routinely does) sit for hours on end waiting for their matter to be called, only to have a senior lawyer stroll in and bump the cue. That same lawyer can stroll in and out of any court and bump themselves to any list as other (less senior) lawyers wait patiently for their turn that is perpetually pushed downwards as a result of this nonsensical rule.
As another practical matter, even where one of these marginalized groups is legitimately entitled under the Act to speak first, it forces them to vocalize their entitlement in a system where the power dynamic suppresses it. Effectively, it requires women counsel to express and challenge in open court that she is older than the other lawyers present. Similarly, it would require a racialized lawyer to confront a (likely white male) lawyer that his assumptions of seniority are not accurate.
Stranger still, very few lawyer even know when other lawyers were called. What therefore happens, as a matter of effect, is a strange guessing game that invariable favours older white males who look the part of senior counsel – whether they are or not.
Lastly, this statutory prioritization is wildly ineffective, inefficient, and chaotic. In many jurisdictions, the order of counsel is determined by a discreet “counsel list” that is placed to the side and lawyers sign up on as they arrive to Court. It is a perfectly sensible and intuitive solution to an otherwise odious practice that favour privilege over fairness.
Even though justice may not be on a first-come, first-serve basis, the order in which it should be delivered should be that way.
