Law Times spoke with the winner of the LSO’s 2023 Human Rights Award
Not in his “wildest imagination” did Prakash Diar think he would ever end up in Canada.
On a Friday in April 1989, he and two other anti-Apartheid activists spent the evening together. One of Diar’s companions that night was the anthropology professor David Webster. Two days later, on May 1, Labour Day in South Africa, Webster was shot dead outside his home in Johannesburg.
The killer, Ferdinand Barnard, was a member of the Civil Cooperation Bureau, a clandestine police unit that served as a government-sponsored death squad. After serving 20 years for the crime, Barnard was paroled in 2019.
During that time, foreign embassies would keep in touch with human rights lawyers like Diar, as the South African government was not forthcoming with much information about the anti-Apartheid struggle. Following Webster’s killing, he visited the Canadian embassy in Pretoria, where he found the foreign affairs officials “aghast” with the murder and fearful for Diar’s safety. They could help him come to Canada. They told him he would be no good to anyone if he were dead.
Diar had represented many political prisoners, including Caiphus Nyoka, the Black student activist he had successfully defended against “public violence,” a charge he says was routinely brought against activists for property damage resulting from protest marches. Though the charges were “trumped up,” he says, they carried a five-year jail term.
After the acquittal, unhappy with the outcome, a police officer threatened Nyoka. Diar advised him to “lay low” for a while.
“They shot him about 11 times, according to the autopsy reports,” says Diar. “There was a public inquest. Of course, the police were exonerated.”
He also acted for the Sharpeville Six. In 1984, during a rent boycott rally in the South African township of Sharpeville, the protestors passed the home of Kuzwayo Jacob Dlamini, a local Black political leader, who, Diar says, was viewed as a “sellout” to the Black community. People threw stones and broke windows, and Dlamini fired a gun into the crowd. The police arrived to disperse the protestors with rubber bullets and tear gas. But after the police left, some returned and murdered Dlamini.
Six of the protestors were arrested. After a lengthy trial, and although the judge found that none of them had themselves caused Dlamini’s death, they were convicted under the common-purpose doctrine, under which individuals participating within a mob can be held responsible for the actions of the mob. The court sentenced each of the six to death.
The verdict attracted international condemnation, including from Canadian Prime Minister Brian Mulroney, US President Ronald Reagan, and from two United Nations Security Council Resolutions. The death sentences were eventually commuted, and the six were released from prison after the fall of Apartheid.
When the police stormed Nyoka’s bedroom in the early morning and shot him dead, their pretext was that he possessed illegal firearms and ammunition. The same allegation precipitated Diar’s month-long detention in solitary confinement. He was arrested while appearing in court and held without charge. Because it was during a state of emergency, police were not obligated to provide any information on his whereabouts to Diar’s wife. During the mid-1980s, there were assassinations and disappearances, and activists were being tortured and killed in prison, he says. He had a three-year-old son and an 18-month-old daughter, and his wife was traumatized.
So, when the Canadian embassy officials offered Diar safe passage to Canada, his wife encouraged him to seize the opportunity.
Diar carried on his fight for equality in Canada, leading to him recently receiving the Law Society of Ontario’s 2023 Human Rights Award.
After requalifying and being called to the Ontario bar, he took a job as legal counsel at the Canadian Human Rights Commission. In 1997, he litigated the precedent-setting discrimination case National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare).
In South Africa, the racial discrimination was the law. It was “in your face,” says Diar. “There was no hiding behind the niceties.”
“In Canada, although the law requires that everybody be treated equally, unfortunately – as nice as Canada is and as great as Canada is – we do have a problem of systemic racism.”
That is what National Capital Alliance on Race Relations dealt with. The central allegation in the complaint was that Health Canada was discriminating against visible minorities by keeping them from senior management positions. The Canadian Human Rights Tribunal ruled that that was the case and ordered several corrective measures.
“We got a wonderful award, ordering wonderful remedies. That is the one case that I'm most proud of.”
In 2000, Diar joined the federal Department of Justice to focus on Indigenous issues, including the Indian Residential Schools Agreement. Between 2018 and 2021, he trained 2,000 justice ministry employees on reconciliation with Indigenous Peoples. After developing a training program, he was tapped by the Public Prosecution Service of Canada to train prosecutors and address systemic discrimination and the over-representation of Indigenous and Black people in the criminal justice system.
Diar’s training curriculum involves four modules. The first traces the history of Canada from contact and illustrates the relationship between Canada and Indigenous peoples. The module explains the caselaw under s. 35 of the Constitution Act, 1982. Section 35 reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
The second module dealt with unconscious biases, stereotypes, systemic racism, and the present-day realities of Indigenous people in Canada. The fourth covers the overrepresentation of Indigenous people in the criminal justice system.
But Diar says he is most proud of the third module.
“We all talk about how people suffered trauma in Indian Residential Schools. But I must confess, when I went to law school, and when I practiced for over three decades, I did not really understand trauma and how it operates and how it manifests in people's behaviour.”
He partnered with Gabor Maté, the physician and author who specializes in trauma and addiction, and Myrna McCallum, host of the Trauma-Informed Lawyer podcast, a public speaker, and educator. “How can we address the overrepresentation without addressing trauma?” he says.
After the fall of Apartheid, Diar had an opportunity to return to South Africa. For family reasons, he decided to stay in Canada.
“I'm forever grateful to Canada,” he says. “Canada is a saviour for me. It's a beautiful country. It's one of the best in the world.”
Despite travelling around 12,000 km to escape racial Apartheid, Diar has not escaped racism. He says the RCMP has profiled him, he has been passed over for promotions, and, as an articling student, was once manhandled by two police officers while trying to speak with an incarcerated client. The officers did not realize he was a lawyer.
“Discrimination exists in Canada. But it's very sophisticated. It's very subtle, and it’s very endemic. The good thing is more and more people are becoming conscious of this, and more people are open and receptive to what's happening.”
