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Every Ontario lawyer and paralegal is required to create and abide by a Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally, and in behaviour towards colleagues, employees, clients and the public.
Wise Law's own Statement of Principles is here.
That is a bit confusing.
Elections for Law Society of Ontario Benchers will occur on April 30, 2019. Benchers, who serve as the LSO's board of directors, fulfil a central role in the governance of Ontario lawyers and paralegals. As noted at the LSO's bencher FAQ:
A total of 40 lawyer benchers are elected - 20 from inside Toronto, and 20 from outside Toronto. A total of five paralegal benchers are elected.
...Benchers attend monthly committee and Convocation meetings to develop policies related to the governance of individuals licensed to practise law and licensed to provide legal services in Ontario. Benchers also attend ceremonial calls to the bar and paralegal licensing receptions. Benchers may also be appointed to the Law Society Tribunal and sit on hearings to consider cases related to the competence, conduct and capacity of licensees
A group of Bencher candidates, self-identifying as the StopSop slate, has organized itself to run on the singular platform of using "best efforts to revoke the Statement of Principles upon election."
We are a group of lawyers and paralegals in Ontario who are concerned about the directive by the Law Society of Ontario (LSO) that each legal professional must abide by a Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public.We believe that the LSO has no business telling legal professionals what principles they must profess, value or promote, and that this is an encroachment on fundamental freedoms under the Charter of Rights and Freedoms. It does not matter whether you agree with the spirit or intent of the values which you are asked to promote; the fact that an arm of the state can dictate your beliefs to you, on pain of the loss of your livelihood, is deeply troubling.
We are putting forward a slate of candidates for the upcoming Bencher election (for governance of the Law Society) in April 2019. Each candidate undertakes to use best efforts to revoke the Statement of Principles upon election.
In this week's Roundtable, Wise Law's lawyers comment on the StopSlop gang:
Simran Bakshi: I entered the legal profession with a sense of optimism (and if I am being completely honest, naivety) about the diversity I would find within the Ontario Bar.
My law school class had been fairly diverse, and I assumed that this is what I would find in the workforce as well. What I discovered, however, is that while there is some degree of diversity at law firms, particularly in the junior pool of professionals, the extent of diversity tends to get watered down in climbing the ranks.
In fact, in my nearly five years of practice, I have come across many “racialized” articling students and associates, perhaps a handful of “racialized” partners and exactly one “racialized” judge.
While I am not suggesting that there is a rampant issue of racism in the Bar, to say that we do not have a problem with diversity in our profession would frankly be burying our heads in the sand.
Given the lack of representation of minorities in the Bar, I am hard pressed to find a reason why an effort to promote the Law Society’s mandate is being met with such resistance.
Some of our colleagues seem to take great issue with the fact that the Law Society imposes a positive obligation to affirm a commitment to equality, diversity and inclusion. What they fail to recognize is that an act of discrimination is not necessarily mutually exclusive from a failure to be inclusive of minority groups.
In any case, imposing a positive obligation on lawyers to give teeth to the principles set out in our Charter and the Ontario Human Rights Code is hardly unreasonable.
The irony of decrying the Statement of Principles on the basis that it supposedly infringes on upon civil liberties to decide whether or not to encourage and promote equality, diversity and inclusion cannot be lost.
Think about the message we would be sending here - it is not okay to discriminate against racialized groups, but it is okay to exclude them? Or rather to not promote their inclusion?
As much as I am a proponent of the mandate behind the Law Society’s Statement of Principles, I am less than optimistic that it will be effective in bringing about the change it is meant to.
I simply do not believe that you can condition a person to believe in equality, diversity and inclusion by requiring that they affirm to do so.
A resistance to embracing diversity is typically premised on a sense of fear and ignorance about what is different. Signing an acknowledgement to act differently hardly goes to the root of the problem, and is a band-aid solution, if anything.
Still, the Law Society is to be commended for recognizing that there is, in fact, a real issue with minorities being fairly represented in our profession, even if its proposed solution leaves much to be desired.
Paul Adam: Many employees of
large companies are forced to act as ‘ambassadors’ of their employers, and
spout a lot of vacuous nonsense that has made its way into the ‘mission
statement’ of International Consolidated Widgets LLC, or what have you. They
have no Charter protections from being required to make those statements.
And what the Law
Society is asking its members to do is actually affirm that they believe that
the legal profession has a duty to hire and represent minority communities, in
accordance with the Ontario Human Rights Code. So never mind the posturing
about rights - what is it that you do not want to have to say?
Is it that you do
not, in fact, believe in hiring people in accordance with the Human Rights
Code?
Or is it that you
believe, in the abstract, in hiring people in accordance with the Human Rights
Code, but you don’t believe you should ever have to demonstrate that you do so
in action?
In the recent decision of Trinity Western University v Law Society, 2018 SCC 33, the Supreme Court had this to say about the Law Society:
[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.
[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, at para. 47).
[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole.
Maybe these Bencher candidates disagree with this finding, which is now part of the law of the land.
But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.
But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.
Maybe they agree with it in principle, but disagree that they themselves should be required to do anything affirmative to make it so. The Anti SOP-slate writes:
It is correct that we have a duty not to discriminate on prohibited grounds, but there is no positive legal duty to promote equality, diversity and inclusion. The LSO is effectively forcing lawyers to do something which it has no legal authority to require.
I suppose they think that equal access to the legal profession will descend like dew from heaven, and melt those inequitable barriers all by itself, without a single member of the legal profession having to put any money where his or her mouth is.
Unfortunately for them, they are wrong. The Statement of Principles is not, as StopSOP insinuates, a Maoist Cultural Revolution coming to sweep away individual rights and subject them to struggle sessions led by law students of colour who ask to be referred to by gender-non-binary pronouns.
It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624:
It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General) [1997] 3 SCR 624:
Even if I agreed with these candidates, I could not in good conscience vote for Benchers with such a poor understanding of our laws.
Garry Wise: The “compelled speech” arguments against the Statement of Principles strike me as both weak and grating. Not to mention intellectually dishonest.
The Rules of Professional Conduct represent the Law Society’s ultimate “statement of principles” applicable to the legal profession, and govern our dealings with the Courts, our clients, the general public and our professional colleagues.
I hear nobody anywhere suggesting these Rules are offensive to any sensibilities, despite their deep regulation of what can, cannot, and at times, must be said in various circumstances we encounter each and every day.
The Law Society also requires us to make many “compelled” declarations in our professional dealings. As but one example, our Annual Reports naturally require us to affirm the truth of the practice-related and financial disclosures we make in these annual findings. These compelled statements promote critical LSO objectives. Is there anyone who would seriously raise an objection to that?
Would the anti-SOP gang also object if the Law Society required an affirmation that we promote the importance of ethics in practice and haven’t violated any Rule of Professional Conduct over the proceeding year?
“You can’t force us to say that!”
Please. Call the proverbial whaaambulance.
If the Law Society can “force“ us to list to the decimal the percentage of our time that we allocate to each area of practice and to state our trust account information is accurate, why shouldn’t it also be permitted to mandate that lawyers state that we affirm values of inclusion and don’t discriminate in our dealings with our employees, clients and each other?
It’s the law, after all.
The objectors typically go to great length in pointing out that they, themselves, are nothing short of heroic in their own personal and professional diversity initiatives. I’m sure that’s likely true, in many cases.
They just don’t want to be forced to say it out loud, except in their self-serving bencher-election pamphleteering, where they’re arguing all-against the Statement of Principles.
That is a bit confusing.
The legal profession continues to have significant and virtually unmovable diversity-related concerns.
Why certain lawyers would devote even a moment of time to arguing against the Statement of Principles, let alone run entire political campaigns around their specious anti-SOP arguments, remains an unsolvable mystery to me.
This so-called "debate" is not happening in a vacuum. We live in a time of escalating, record hate crime, incendiary political rhetoric and open racial intolerance in certain quarters.
Given this context, perhaps the anti-SOPPERS could better benefit society by devoting some of their misdirected energy toward real efforts to promote racial tolerance and inclusion - throughout the profession and throughout the planet.
StopSlop deserves to flop.
StopSlop deserves to flop.
- Wise Law, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
