THE OPPORTUNITY OF THE BLACK LIVES MATTER MOMENT

BETH BILSON, Q.C.

UNIVERSITY OF SASKATCHEWAN

Though it began some years ago as a slogan devised to draw attention to the mounting toll of Black American deaths at the hands of the police, “Black Lives Matter” has more recently become an international touchstone for many people marginalized by their race, ethnic origin or sexual orientation. Despite the restrictions and stresses engendered by a global pandemic, the urgency of the Black Lives Matter message has led to waves of public protests; calls for the redirection of funding for police forces to ameliorate chronic social deficits experienced by marginalized groups; demands for the elimination of historic monuments and memorials tainted by racism and intolerance; and an insistence that it is surely time to listen to the concerns being expressed and to allow those whose frustrations are encapsulated in the Black Lives Matter phrase to speak for themselves. In Saskatchewan, Indigenous people have caught the spirit of the moment to point, yet again, to the inequities they experience on a daily basis – the disproportionate incarceration rates for Indigenous men, the tragedy of missing and murdered Indigenous women, the failure of Canadian governments to attend to critical gaps in housing, education and services for families. In a speech given as he left the Saskatchewan legislature after two decades, MLA Greg Brkich lamented the “divisive” implications of the tag Black Lives Matter, and indicated a preference for the term “all lives matter”. He acknowledged that this formulation has been controversial in the United States as trivializing the matters the Black Lives Matter movement have brought to light. He indicated that he thought the sentiment should not be as problematic in this country. As it turned out, he was wrong about that. The premier, who immediately disowned the statement, has been one of many Canadians who have seen the term as a way of demeaning the claims of the protesters and ensuring that the historic pattern of ignoring these claims continues. Members of the Black Lives Matter movement are at pains to point out that they are not saying Black lives matter instead of white lives; rather, they are trying to draw attention to the disadvantages suffered by marginalized people because white societies have failed to identify and address those disadvantages; they are underlining a history in which, to use the trenchant wording of a US Twitter group, “Black Lives Didn’t Matter.” As lawyers, we are, of course, bound to some degree by the structures, conventions and rules of legal institutions that have a lengthy historical pedigree. We have obligations to the courts, to governments and to the web of common law and legislative rules that provide the framework within which we have to operate. On the other hand, these structures and processes are not immutable; as the COVID-19 pandemic, among other things, has shown, our assumptions about how things should be done are open to challenge and to change. Lawyers are trained to identify inconsistencies, unfairness and harm, and in fact are expected to do that. The legal profession has a unique platform for providing a critique of the system, of tempering respect with clear-eyed analysis of its failures. The Black Lives Matter current that has swept across western countries provides an opportunity – some would say another opportunity – to refocus on critically important questions of how racism and homophobia infect our social structures, the formation of our public policies and the content and administration of our laws. For the legal profession, it is an opportunity to see these issues in a new way, based on listening carefully to the issues as they are articulated by the people most directly affected, without resorting to our common “lawyers know best” assumptions. In developing our own strategies, we should be asking ourselves questions like the following: • Are we listening carefully enough to what our clients and others are trying to tell us about how they are experiencing the legal system or the social system, or are we following the common pattern for lawyers of leaping to conclusions about what the bottom line is going to be? • Do we understand that our privilege and position may prevent us from seeing clearly the boundaries that cut us off from the experience of many marginalized people in our society? • Are we looking for opportunities to nudge our corner of the legal system in a direction that will be more equitable and more aligned with the aspirations of our clients and constituents? • Do we seek openings to leverage the weight still accorded to the comments of lawyers to influence positive change?

CONTINUED ON PAGE 9

CONTINUED FROM PAGE 7 • Do we think of what we are doing as a vehicle for social change rather than just a job or a means to our own aggrandizement? • Are we using our well-developed research skills to examine the roots of disadvantage and inequity? • Are we thinking creatively about possible ways to reduce inequality rather than writing off all ideas as impractical? This Black Lives Matter moment has renewed attention to issues that have been raised before, and that have never been adequately addressed. Our protestations that we are going to get around to addressing them eventually have been rightly characterized as lacking credibility and commitment. It is to be hoped that we do not squander another chance to place a higher priority on the calls for justice that are so eloquently being made.