Constance Backhouse Honorary Doctorate Address

My work focuses on Canadian legal history and sex and race discrimination in law. Today I want to remind us of the struggles for entry of groups long excluded from the legal profession. For centuries, membership in the coveted Canadian legal profession was restricted to white males. The first outsiders to pierce the white male bubble faced enormous barriers and enduring hostility.

Robert Sutherland, now considered the “first Black lawyer,” was called to the Ontario bar more than a century and a half ago, in 1855.  The son of a free Black woman and Scottish father, he came from Jamaica to study law at Queen’s University. Sutherland established his law practice in southwestern Ontario, which at the time was rife with racism. Segregated public schools, ghettoized residential neighbourhoods, discriminatory employment structures and racist social and cultural norms were pervasive. We still know little about his life, but Canada’s first Black lawyer is renowned for having left his estate to Queen’s University, bailing it out of imminent bankruptcy 20 years later. 

We know more about Delos Davis, who had moved with his formerly enslaved parents from Maryland to the Windsor, Ontario area.  Because no lawyer would hire him as an articling student for more than a decade, he was forced to obtain special admission through provincial legislation. His call to the bar in 1886 came over the repeated protests of the Law Society. Because memories had faded of Robert Sutherland’s historic first, Delos Davis believed he was the first. The racist reception he received indicates that many people also thought he was the first. Delos Davis defended many Black criminal clients, and he was forced to develop special strategies to fight for fairness inside a criminal justice system riddled with racist police, judges and jurors.

Clara Brett Martin broke the gender barrier in 1897, when she was called to the bar in Toronto, the first woman in the entire British Commonwealth. Women were still forbidden to vote, to be elected as politicians, to sit on juries or serve as judges. The 23-year-old woman successfully navigated a six-year battle of initial rejection, two provincial statutes, multiple bencher debates, a tied Law Society vote broken only by the Treasurer’s “yes” vote, and significant sexual harassment during her articles and bar ad course. 

The press descended upon her first courtroom appearance, keen to report on her appearance, voice inflection and facial tone:

A young lady, gowned in a pretty brown walking suit, came in quietly and took her seat up within the rail. The judge [called her case] and the young lady removed her hat, stepped down before the stand and [called her witnesses] in the quietest of voices.  [Upon conclusion of her case] the young lady put on her hat and walked out. But it was pretty to see the colour spring to her cheeks when she heard the judge’s words and knew that she had won this, the first case, for her firm.

It took another half-century before Canada’s first Asian-Canadian lawyer, Kew Dock Yip, was called to the Ontario bar in 1945.  Educated at Columbia University, the University of Michigan, and the University of British Columbia, it took him three tries just to get admitted to Osgoode Hall Law School. He opened his law practice on Elizabeth Street, which was then in the heart of Toronto’s Chinatown. He was a driving force in the campaign to repeal the racist Chinese Exclusion Act, which had shut down Asian immigration for decades.  

The barriers facing the first Indigenous lawyers were, if anything, even more impenetrable.  25-year-old Andrew Paull, a member of the Squamish Nation, began working in a law office in 1917, but was denied admission to the B.C. bar four years later because, despite his fluency in English and French, he had no Latin and, as an Indigenous man, he was barred from the vote. He went on to become one of Canada’s most significant advocates for Indigenous rights, without a law degree.

We think that Norman Lickers may have become the first Indigenous lawyer in Canada when he was called to the Ontario bar in 1938. Raised on Six Nations territory, orphaned before he reached school age and educated at the Mohawk Institute residential school, Lickers graduated from Osgoode Hall Law School and practiced criminal law in Brantford.  His disbarment in 1950 should send up a red flag to all of us. His dismissal from the bar was to become a pattern of disproportionate discipline that Law Society governors meted out to racialized lawyers – then and now. 

Some of the most inspiring stories about our profession’s history involve excluded groups lending a helping hand to other excluded groups. Jewish, racialized and female lawyers often hired other newcomers as articling students – outsiders supporting outsiders – giving them law jobs and mentoring them through their careers when no one else would do so. 

Less inspiring is the evidence of members from one excluded community practicing discrimination against members from other excluded communities. To our dismay, we have learned that the experience of discrimination in one format does not always teach people to prize egalitarian principles more generally. Clara Brett Martin’s correspondence indicates that she harbored anti-Semitic views. Many of the early racialized male lawyers shared the same sexist beliefs as their white counterparts. As we study the lives and careers of our profession’s “outsiders,” we must keep a clear eye on their failures to promote equality in all its challenging aspects.

Which brings me to return the issue of legacies.  When I entered Osgoode Hall Law School in 1972, our then Dean Harry Arthurs told us that Osgoode was the best law school in the Commonwealth. As you consider your graduation from this wonderful Osgoode and your future admission to one of the most powerful professions in Canada, think carefully about the legacies we will leave behind. Issues of gender, race, class, ethnicity, religion, disability, sexual orientation and gender-identity pose overwhelming challenges within our society and within the legal profession. We would do well to reflect on how historians will look back upon our own contributions 50 years from now. 

I join in congratulating you on your superb success in reaching this milestone and wish you every success in meeting all of the equity challenges ahead.