Lawyers and paralegals in Ontario are no longer obliged to adopt a “statement of principles” acknowledging their “obligation to promote equality, diversity and inclusion.”
The key diversity initiative of Ontario’s legal regulator was scrapped Wednesday, leaving its supporters concerned for the future of other programs that promote equality and inclusion.
The requirement that every lawyer and paralegal adopt such a statement of principles (SOP), which they could write themselves, was repealed in a 28-20 vote of the Law Society of Ontario’s board of directors. There were two abstentions.
Instead, the board voted 27-18 with five abstentions to mandate lawyers and paralegals to acknowledge annually that, under their existing rules of professional conduct, they already have a “special responsibility” to respect the requirements of Ontario human rights law and the obligation not to discriminate.
The repeal of the statement of principles was a victory for a slate of 22 lawyers, known as StopSOP, who had campaigned against the statement of principles and won their seats in the election in April for the board of directors. These lawyers argued the statement requirement was “compelled speech” and unconstitutional.
Expressing concern about the kind of message the vote sends to the legal community, especially racialized lawyers, and the public in general, some board members described the decision to scrap the statement of principles as a “sad day” for Ontario’s legal profession.
“This was a devastating blow to all racialized licensees and the public at large,” member Atrisha Lewis told the board after the vote. Lewis said it felt as though it was a “metaphorical punch in the face to racialized licensees.”
The statement of principles was perhaps one of the most divisive topics in the legal profession in recent years. It dominated the law society’s last board meeting in June, where after many hours of debate, board chair Malcolm Mercer was compelled to adjourn after members were unable to come to a final decision on the statement’s fate.
Aside from the 40 lawyer seats on the board, 22 of which are occupied by StopSOP members, there are also five paralegal board members and eight non-lawyer public members appointed by the provincial government.
“We are concerned that (the repeal) sends the message to the public that equality, diversity and inclusion are values that the legal profession does not share,” said Gerald Chan, president of the Ontario chapter of the Federation of Asian Canadian Lawyers, in a statement.
“No less than the Supreme Court of Canada has said that a diverse bar is more responsive to the needs of the public it serves and promotes public confidence in the administration of justice.”
The statement of principles was one of 13 recommendations made in 2016 by the law society’s Challenges faced by racialized licensees working group, which had spent four years studying those challenges, finding they were both “longstanding and significant.”
A vote earlier Wednesday to salvage the statement by making it voluntary, not a mandatory requirement, was voted down.
Its repeal has left some board members and legal organizations concerned that other diversity initiatives at the Law Society could be next on the chopping block.
“We’re always concerned about the equity initiatives. We didn’t like the idea of this being a slippery slope, that, if you can get rid of one of the recommendations, it could lead to others,” said Lori Anne Thomas, president of the Canadian Association of Black Lawyers, who said her association will work to ensure the other initiatives “stay in place and grow.”
Another of the StopSOP members, Lakehead University law professor Ryan Alford, told the Star after Wednesday’s vote that he would be “shocked” if other diversity initiatives were rolled back. “Of all the recommendations of the racialized licensees working group, we opposed one. None of us expressed any concerns with any of the other regulations that were approved,” he said.
Other recommendations implemented in 2016, which remain in place, include requiring legal workplaces of at least 10 lawyers and/or paralegals to develop and implement a human rights/diversity policy.
Another major recommendation was an “inclusion index,” the first of which is to be published later this year. Information in the index will be based on several sources, including demographic data pulled from lawyers’ annual reports to the Law Society and lawyers’ voluntary responses to questions about inclusion in their workplace. The index will apply to legal workplaces with 25 or more licensees (lawyers and/or paralegals), and is to be updated every four years.
“It is absurd to say this is about compelled speech when the StopSOPers voted down a voluntary statement. What this is about is resistance to anti-racism initiatives, and I predict this is only the beginning,” board member Julian Falconer, who was vice-chair of the racialized licensees working group, told the Star.
Board member Sidney Troister proposed Wednesday that, instead of the statement of principles, lawyers and paralegals be required to acknowledge every year in their annual report to the Law Society that, under the Society’s rules of professional conduct, they already have a special responsibility to abide by Ontario human rights laws.
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Troister’s motion was met with resistance from some StopSOP members, who spoke about being “sandbagged” by a motion without prior notice, and argued it should first be studied by a committee.
But supporters of the motion argued it simply reiterated some of the requirements of being a lawyer or paralegal. “You’ve been ambushed by the rules of professional conduct. You’ve been ambushed by human rights law,” said board member Orlando Da Silva to members who were taken aback by the motion.
Troister’s proposal passed in a 27 to 18 vote.