How a 'national crisis' showed the value of black judges

Nova Scotia recently announced two landmark judicial appointments that brought the provincial bench closer to racial and gender equity than it has ever been, and some signs indicate it could be a permanent shift.

CBC News spoke to lawyers, social workersand members of the justice system to get a clear picture of where things stand today, and what remains to be done. This is part two of the three-part series: An African Nova Scotian perspective on the justice system.

In Nova Scotia's long legal history, one judge has been formally accused of letting their racial background bias their decisions, and she was the first black judge in the province.

Critics say this is not a sign that no whitejudge ever let their own racial background bias a decision, but rather a sign of the deep inequity among the ranks of judges.

"I've always been interested in the path of individuals into crime and how the criminal justice system responds to that," said Robert Wright, a clinical forensic social worker who has served on the provincial judicial appointment committee and works with the Nova Scotia Barristers' Society on cultural competence and the law.

"I think we can talk about diversity on the bench, but recognize that it is an equity issueand that this lack of diversity and equity is a result of historical and systemic racism."

Wright said African Nova Scotians like him see inequality on both sides of the bar: they are over-represented as the accused, convicted and jailed, and under-represented as lawyers and judges.He sees a link between too few black judges and too many black defendants.

"It's about world view. It's about coming to the questions with a deeply informed experience," he said.

"If we accept that systemic racism is a substantial problem in our criminal justice system today, then I would suggest we need more than representational numbers of Aboriginal and African Nova Scotian persons on the bench."

Who do you believe?

A dramatic example of that happened in the 1990s. Awhite Halifax police officer arrested a 15-year-old black boy, known as RDS in legal documents. The police officer said the teenager had interfered while he was arresting a different black boy. The police officer said RDS hit himwith his bike in effort tofree the other boy. RDS said he did not touch himbut was arrested for speaking up during the arrest.

Judge Corrine Sparks Nova Scotia's first black judge and the first black woman judge in Canada heard the case and acquitted the boy.

"I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence that he was told to shut up or he would be under arrest," she said in the ruling. "That seems to be in keeping with the prevalent attitude of the day."

The Crown appealed, arguing that Sparks had made a biased decision in favour of the black boy because she was black. The Nova Scotia Court of Appeal agreed. But the Supreme Court of Canada decided in her favour, saying her comments "did not give rise to a reasonable apprehension of bias."

'A national crisis'

Wright notesthe RDS case was doubly unusual becausethe lawyer who represented RDS all the way to the Supreme Court of Canada was the late Rocky Jones, a prominent African Nova Scotian lawyer.

"It was a national story: a judge said that a young black person has a story that might be credible and that a white police officer may have a story that is not. The idea that a judge could judge that way, for a moment, was a national crisis," Wright said.

He said awhite judge who grew up in a white community may have never actually seen police targeting non-white people based on race and find it implausible. A black judge might have seen it and found it plausible. Without Sparks, RDS would have been branded as a young offender. Instead, justice was done.

"[We need] as many different perspectives on the bench as possible to ensure that the matters being dealt with by judges in our society are seen through enough different lenses that we can see the differential decisions that judges make from that location, because it's those decisions that inform the court," he said.

Running the gauntlet

Wright wants the appointment process opened up so everyone can see where the blockages are. Are too few black lawyers applying to be judges, or are too few being selected from the secret list?

"In order for a black lawyer to become a black lawyer, they have to run this gauntlet that is quite harrowing. I think people underestimate that," Wright said.

A recent CBC News investigation found black students are suspended from school up to three times more often than white students. Wright said those who graduate and look for careers will find few black lawyers or judges to act as inspiration and mentors.

"You almost have to get through the education system without it changing your mind about who you are," Wright said.

"And then you have to go to a law school where despite all the wonderful things we are doing these places, the institutions of higher learning, are by their nature hostile environments for racialized people."

• Part 1:Justice for all? Nova Scotia's slow journey to judicial equity
• Part2: In search of aMi'kmaq'super chief'
• Read 2015's award-winning series, the Colour of Justice