In October 1963, opponents of apartheid went on trial to showcase the moral opposition to racism. Nelson Mandela made a speech that condemned the same court in which he appeared as, “illegitimate.” Mandela argued that the laws in place were draconian and that defiance of these laws was justified. It was the identification of the flaws of a system that had the effect of increasing local and international pressure on the government and the realization that apartheid could not be maintained.
Acknowledging the problems with the legal system (and other systems) in place as they were, made all the difference.
The Federation of Black Canadians (FBC) is a non-profit aimed at advancing the social, economic, political and cultural interests of Canadians of African descent. Justice Donald McLeod and others founded the FBC after a 33-year-old pregnant Black mother was shot and killed in 2016 in Etobicoke.
Justice McLeod met with politicians on behalf of the FBC, which was alleged to have compromised the integrity, impartiality and independence of the judiciary. Subsequently, an Ontario Judicial Council (OJC) complaint suggested that McLeod misled the hearing panel about his disengagement from the FBC and that he resumed a leadership position and engaged in an activity that could be perceived as impermissible advocacy by a sitting judge.
Indeed there may be bad actors that gave rise to these allegations, but it would be a mistake to view this matter as only involving a trial of discreet legal issues; in fact it tells the story of a deeply flawed system where advocacy against the social, economic and political exclusion of a historically disenfranchised community is prohibited. Mandela teaches us that we can and perhaps should scrutinize a system that distinguishes between neutrality and social inclusion.
The Problem with Neutrality
Judicial neutrality is the idea that judges are free from political bias; they apply and neutrally interpret the law, having no bias or interest in a particular outcome of any case. Neutrality implies tolerance regardless of how disagreeable, or unusual a perspective might be. Thus, in theory, a neutral position provides a platform for all opinions, including irrational or malicious ones. This is a pillar of the rule of law, which many regard as "value-neutral."
In a system favouring whiteness, discrimination, and anti-Black racism, to carry on with no active interruption of that system is to be complicit. In that way, it is indisputable that those not actively elevating disenfranchised communities, regardless of their friendliness to members of those communities, participate in that same oppressive system. There is no neutral place in our legal or social systems because neutrality, and the moral value of the rule of law, is not neutral.
However, this is not the only way to do things; it is possible to imagine an independent and impartial judiciary that is not neutral. For example, to uphold equal treatment for men and women, the principle of equal treatment needs to be actively embodied; our values need to lean towards equity, publicly and without shame. Courts have to act as agents of that principle. While that agency requires fidelity to laws, it is understood that the active support for equal treatment does not compromise one's ability to be impartial.
When distilled, the hearing for Justice McLeod is about this concept of judicial neutrality; our judiciary warns officers of the bench to weigh public showings of support against their obligation to promote confidence in an impartial justice system. But ensuring justice for all is not possible when publicly promoting the right to a dignified life is disavowed.
Black History is Being Made Today
It would be remiss to neglect the significance of Justice McLeod’s case on the Black community.
The skill of legal analysis required by practitioners involves working through the realities of [historical and contemporary] injustice through understanding how the law oppresses and excludes. Thus, the judiciary's role is not the maintenance of those injustices; it cannot be and has never been. Yet Black advocates, like Justice McLeod are too often criticized for efforts to make changes from within and from without the system.
An equitable society cannot exist in the contradiction that is a legal system pursuing justice, while removing itself from preserving those same values in the social world.
As we enter Black History Month this year, we must remember that the law evolves because we accept that society’s values and awareness evolve. So while we uphold the law, we must also know when to refuse to be its accomplice. An equitable society cannot exist in the contradiction that is a legal system pursuing justice, while removing itself from preserving those same values in the social world.