Law society initiative to improve diversity is about justice not politics, lawyers say

In recent weeks there has been a flurry of open letters and op-eds in newspapers decrying an initiative from the law society to improve diversity and inclusion in the Ontario legal profession.

Tina Lie, a Toronto lawyer, says promoting diversity and inclusion “goes to the core of the administration of justice.”

It was just one of 13 recommendations from a working group looking to address systemic racism in the legal profession.

It’s proving to be one of the most divisive topics in that profession this year, and appears to be sparking even more debate at Ontario’s legal regulator than when its board wrangled over changing the institution’s name. (The Law Society of Upper Canada will become the Law Society of Ontario on Jan. 1.)

It’s the statement of principles.

In September, the law society sent an email to Ontario’s nearly 60,000 lawyers and paralegals reminding them of the requirement to come up with a statement that “acknowledges (their) obligation to promote equality, diversity and inclusion generally, and in (their) behaviour towards colleagues, employees, clients and the public.”

The statement of principles was a recommendation from the law society working group, Challenges Faced by Racialized Licensees, which spent four years looking into those challenges. All the recommendations were adopted unanimously by the law society’s board last December, with three abstentions.

Licensees can either choose a statement template provided by the law society or come up with their own, but they must indicate on their annual report to the regulator that it’s been done.

There has since been a flurry of open letters to the law society and op-eds in newspapers — mostly from white men — since the law society’s September email went out, decrying the statement of principles as a violation of freedom of expression.

The requirement will be challenged at the law society’s next board meeting in December, while a law professor has gone to court seeking an injunction to stop the law society from enforcing it.

 A number of racialized licensees — the very people the statement of principles and other recommendations were crafted to aid — are speaking out, urging the law society not to backtrack on the issue.

Some see the requirement as an important step in improving the makeup of the legal profession and the judiciary, amid criticism that they don’t accurately reflect Canada’s diverse population.

“People seem to consider the promotion of equality, diversity and inclusion as being an issue of political belief or political speech. I don’t see it that way,” said Tina Lie, a Toronto lawyer.

“I actually think it goes to the core of the administration of justice. If we want to improve the administration of justice, we absolutely need to advance the diversity goal that the law society has put out there. The reality is, when you look at it, the legal profession, the justice system and the judiciary, they don’t actually reflect the communities they are supposed to serve.”

The law society’s working group found that challenges faced by racialized licensees were both “long-standing and significant.” They said change in the profession was needed now more than ever, as the number of racialized lawyers in Ontario has doubled — from 9 per cent of the profession in 2001, to 18 per cent in 2014.

“It is clear from the working group’s engagement and consultation processes that discrimination based on race is a daily reality for many racialized licensees,” said the working group’s report.

“It’s a sad state of affairs for our profession if lawyers cannot even acknowledge that they have an obligation to treat clients and peers as equals,” Avvy Go, a member of the working group and clinic director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, told the Star.

She said since talk of challenging the statement requirement emerged this fall, she’s heard from young racialized lawyers experiencing uneasiness at work.

“They’re hearing from their colleagues, people they consider as friends, who are now making statements in opposition to the statement of principles, but they’re putting the statement in such a way that make racialized licensees feel like they are unwelcome in the workplace.”

Lawyer Raj Anand, who co-chaired the working group, wrote the statement of principles recommendation, describing it to the Star as “not a burdensome requirement.” He said it’s an important part of changing a culture that too often is driving away good lawyers and paralegals.

“The first goal is culture change, and that’s what the statement of principles is about,” he said.

“It’s simply to force people to recognize that there are barriers and that they are creating difficulties which affect them because they don’t get the best people, or the people leave, and needless to say it’s harming the people who don’t get good jobs because they don’t find the working environment in certain firms to be hospitable.”

Anand said he’s witnessed overt racism, and then there are the more subtle acts: women being cut off in the boardroom, asking a Muslim lawyer if it’s OK to drink in front of them at a staff party, making an inappropriate joke in front of a racialized person, only to apologize and say no offence was intended.

“I know an extremely smart, skilled lawyer who is a Muslim woman . . . She went to her first associate interview, and she was asked in the interview for hiring whether she advocated for the destruction of Israel. And she has never gone to a law firm again,” Anand said.

“That’s lost potential. Those are clients who aren’t served by a very good lawyer.”

A number of organizations representing Indigenous and racialized licensees have sent letters to the law society urging the regulator to maintain the statement requirement, including the Indigenous Bar Association and the Canadian Association of Black Lawyers.

“The statement of principles proposed by the law society is necessary in order to address the systemic historical disadvantages suffered by Indigenous peoples at the hands of the legal profession,” said Indigenous Bar Association president Scott Robertson in a letter to the law society.

“Indigenous peoples and licensees face complicated challenges as a result of the impacts of colonialism, such as legislated assimilationist policies like residential schools, for example. Further to this, Indigenous licensees also encounter systemic discrimination within the legal system because the status quo is being perpetuated.”

The advocacy committee of the Canadian Association of Black Lawyers pressed the regulator in their letter not to move away from the recommendation for the statement of principles, or any other recommendation from the working group.

“While the working group’s recommendations, including the statement of principles, are not going to be popular amongst all licensees, they are essential, as the bar must come to grips with the reality that a lack of equality, diversity and inclusion in our profession has been, and continues to be, a widespread problem,” said the letter.

Lawyer Anthony Morgan said the statement of principles does not require lawyers to do anything more than what they already have to do as a legal professional.

“It’s just an outward expression that I think is more about consciousness raising and moving the profession forward,” he said.

“One of the important things to consider in this, I think, is compare the difficulties of the experiences of racialized people on one hand, to the relative ease of making this statement about diversifying and supporting diverse colleagues in the profession. There’s simply no comparison.”

Those who advocate strongly against the statement of principles say they believe in the ideals of diversity and inclusion in the legal profession, but that the requirement infringes on their constitutional rights.

Toronto lawyer Joe Groia, a board member of the law society, is bringing a motion at the December board meeting to allow an exemption to the requirement for “conscientious objectors.”

Murray Klippenstein, perhaps best known as the lawyer for people suing Toronto police in a class-action lawsuit for wrongful arrest during the 2010 G20 summit, sent an 11-page open letter to the law society this month voicing his stance.

“It looks like what started out as a laudable effort by the law society to address racism has morphed, at least in Rec. 3 (1), into something else — into me and thousands of other lawyers in Ontario being forced to adopt what sounds like someone else’s political ideology,” he wrote.

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