Balance needed in deciding what order cases are handled
May 29, 2019 By Melody Izadi
Ontario’s Barristers Act allows indirect discrimination at the bar in terms of who can address matters first, leaving younger, visible minority counsel at a disadvantage, Toronto criminal lawyer Melody Izadi tells AdvocateDaily.com.
Young, visible minority — and some female lawyers — are left cooling their heels for hours in the courtroom while older, often white, male counsel are allowed to speak to their matters first, says Izadi, an associate with Caramanna, Friedberg LLP.
“I think there should be a balance struck between giving respect and deference to our older colleagues who are members of the bar, but also keeping a realistic approach,” she says.
Under the Barristers Act, precedence is given to lawyers in the order of the year of their call to the bar.
In courtrooms where the Act is followed, Crowns often only make a visual judgment call, giving priority to apparently more senior lawyers, who are typically older, white males, Izadi says.
“We don’t wear our year of call on our shirts like buttons,” she says. “So what often ends up happening is that younger members of the bar — or those who appear to be younger members — have to sit and wait to address their matter even if they were there when court opened.”
The situation is compounded for young, visible minority female counsel like herself because they are sometimes mistaken for interpreters, students, paralegals or other non-lawyers, she says.
“I’m not suggesting that Crown attorneys are being racist in any way,” Izadi says. "But the practical effect is that the further back you go in your year of call, the less likely you will be a visible minority."
According to the 2010 Ornstein report prepared for the Law Society of Ontario, the percentage of young visible minority lawyers (aged 25-34) grew from just two per cent in 1981 to 20 per cent in 2006. In addition, women accounted for nearly 60 per cent of the youngest lawyers in 2006.
“The worst experience I ever had was at a court that opened at 9 a.m.,” Izadi says. “I was one of the first individuals there.”
Izadi immediately identified herself and her matter to the Crown, but was kept waiting for hours, she says.
“It was almost like something out of a movie, like a comedy routine,” she says. Every time her turn seemed to approach, an older lawyer walked in and was given preference. She wasn't allowed to address her matter — which took only 30 seconds — until 12:45 p.m.
“So I sat there the entire time just because whoever happened to enter that courtroom looked older than I did,” Izadi says.
Many jurisdictions use a fairer, first-come, first-served system, she says. They create sign-up sheets to which lawyers add their names as they arrive. They are then called in the order they signed in.
Some jurisdictions even post a sign-up sheet outside courtrooms before the doors open in the morning, so lawyers arriving early can add their name. “That’s the fairest way to address matters,” Izadi says.
Sometimes the system that is used even varies from courtroom to courtroom within a single courthouse, she says. In some courtrooms lawyers are given verbal notice that Barristers Act rules are in force, while others use sign-in sheets, Izadi says.
Since Crowns control the order in which matters are addressed, it would help if the Ministry of the Attorney General issued province-wide guidelines on how to sensibly apply the Barristers Act, Izadi says. It would be even better if sign-up sheets were used universally, she adds.
“Of course we need to respect and give reasonable priority to our older colleagues and role models. That should never change. But I still think there needs to be more of a social consciousness within the courtroom. It’s just a little absurd to use the Barristers Act as a rigid guideline,” Izadi says.