At its September 11 convocation, the Law Society of Ontario (LSO) voted to repeal its statement of principles (SOP) requirement, an obligation that would have compelled licensees of the Ontario legal profession to affirm their duty to promote equality, diversity and inclusion by signing a written statement to this effect. The requirement was replaced with an acknowledgement of Ontario human rights laws after a two-hour debate and a failed motion to pass a voluntary statement of principles requirement in its place.
The statement of principles requirement was one of 13 recommendations the LSO produced following its report on the challenges faced by racialized members of the legal profession. The report, titled Challenges Faced by Racialized Licensees Working Group’s Final Report, expressed the LSO’s commitment to “advancing equality, diversity and inclusion in the legal professions—a commitment which includes addressing any barriers faced by lawyers and paralegals to full and active participation in the professions.”
The report revealed, after extensive consultations, that “notwithstanding their increase in representation, racialized lawyers face challenges in the practice of law.” In the report, racialized legal professionals described being categorized as “unskilled employees, interpreters, social workers, students or clients.” Some professionals reported being excluded from client meetings or from working on certain cases on the basis of their personal characteristics. Some expressed concern that the dominant culture of law firms felt alienating from a racialized perspective. At one extreme, some respondents “were associated with terrorism” on the basis of their countries of origin. Notably, forty percent of racialized licensees considered their ethnic or racial identity a barrier to entering the legal profession, compared with only three percent of non-racialized licensees.
To address the challenges revealed in the report and to meet its expressed goals, the LSO listed several recommendations. One was to review and amend, where appropriate, the Rules of Professional Conduct “to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal and paralegal professions.”
Another recommendation was to “work with stakeholders, such as interested legal workplaces, legal associations, law schools and paralegal colleges to develop model policies and resources to address the challenges faced by racialized licensees.” This recommendation included investing in resources to promote “competency hiring” and “unconscious bias training” and to promote career development with a particular understanding as to the impact of “cultural homophily” on the career prospects of minority licensees.
In its original form, the statement of principles recommendation required licenses to “create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.” A licensee included “anyone licensed to practice law or provide legal services” in Ontario, whether they were currently practicing in the province or actively providing legal services outside of Ontario. Two sample statements provided by the LSO gave licensees some guidance as to how to satisfy the statement of principles requirement. One such sample statement read:
As a licensee of the Law Society of Upper Canada, I stand by the following principles:
A recognition that the Law Society is committed to Inclusive legal workplaces in Ontario, a reduction of barriers created by racism, unconscious bias and discrimination and better representation of Indigenous and racialized licensees in the legal professions in all legal workplaces and at all levels of seniority;
My special responsibility as a member of the legal profession to protect the dignity of all individuals, and to respect human rights laws in force in Ontario;
A commitment to advance reconciliation, acknowledging that we are collectively responsible to support improved relationships between Indigenous and non-Indigenous peoples in Ontario and Canada; and,
An acknowledgement of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.
The statement of principles requirement attracted controversy from the outset. Debates surrounding its implementation revealed a division in the legal profession as to the significance of the statement of principles requirement. Some opponents of the requirement stated they were not “rejecting diversity”, but were rather opposed to what they considered “compelled speech”.
In a letter to the LSO dated June 27, 2019, lawyer Ashley Gyns expressed her opposition to the statement of principles requirement. She wrote: “I am of the view the SOP is ‘compelled speech’ and that it is unconstitutional … While I support greater equality and inclusivity within the profession, I do not believe it is right to use force to compel thought and orthodoxy at the expense of differing viewpoints and at the cost of our freedom of thought as members of the Law Society.”
Proponents of the statement of principles believed the statement requirement fostered a legal environment less hostile to racialized legal professionals and other minorities. Demand Inclusion, a collective of lawyers, paralegals, and students in Ontario, supported the mandatory statement of principles requirement, considering it “only a small first step towards a much larger task of developing a Law Society where all members are included and valued, where greater numbers of racialized folks become lawyers, and where members of society at large feel represented and heard by the legal professionals who serve them”.
One satirical legal Twitter account, @BadLegalLLP, quipped that the requirement “is an important step towards making our profession equitable and just, in the same way that me walking east on King is an important step towards China”, a nod perhaps to the symbolic tone of the requirement.
Following several votes on multiple motions, the LSO on September 11 repealed the statement of principles requirement. The full repeal motion passed with 28 votes to 20. LSO bencher Atrisha Lewis called the repeal vote a “devastating blow to all racialized licensees and the public at large”.
Lawyer and racial justice advocate Anthony Morgan wrote in a tweet that the statement of principles debate “isn’t about principles.” He wrote, “It’s about power: the legal profession as a white power structure vs. racialized lawyers, paralegals and their allies in equity & inclusion trying to disrupt/rebalance that power structure.”
A motion to adopt a voluntary statement of principles, which meant licensees “could choose to disclose their voluntary [statement of principles] to the law society in their annual reports”, failed on this day by a narrow margin of 27 to 23 votes. Lawyer Jack Braithwaite commented that he could not accept the motion, as it was “nothing more than another voluntary motion.” He too lamented the repeal of the mandatory statement, saying, “[it] sends a message that the law society … is prepared to throw its principles under the bus of political expediency.”
Stop SOP benchers, a group of 20-odd lawyers opposed to the requirement, celebrated the repeal with a statement that the “SOP requirement … compelled speech and created an ideological litmus test for the practice of law”. In a statement, they considered the repeal “one step towards returning the regulator to its core mandate of governing competence of the profession in the public interest”.
Lawyer Stephanie Heyens tweeted, “Ontario lawyers have successfully protected their right to freedom of speech. For the sakes of ourselves and our clients, we must be vigilant.”
Queen’s University law professor Bruce Pardy also considered the repeal a win. He said, “The repeal of the SOP is a victory for freedom of thought and speech, for the rule of law, for the independence of lawyers and paralegals and for the future of the Law Society.”
In place of the statement of principles requirement, the LSO instituted an obligation that every licensee acknowledge in their annual report their responsibility to “respect the requirements of the human rights laws in force in Ontario”. The replacement motion was brought by LSO bencher Sidney Troister, who said he is “realistic enough to know that there is no single solution to the complex problem of addressing discrimination in our professions and in society at large”.
Currently, Ontario licensees are expected to acknowledge in their annual reports their responsibility to human rights laws: “specifically, to honour the obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences” or “marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person in professional dealings with other licensees or any other person.”
LSO bencher Chi-Kun Shi, who self-identifies as a racialized licensee and who ran on an anti-SOP platform earlier this year, stressed that lawyers in Ontario who act contrary to human rights laws ought to be brought before the Law Society Tribunal for discipline. She pointed out that the LSO has no such record of disciplining lawyers for professional misconduct in violation of the Human Rights Code.