In 2012, the Law Society of Upper Canada (LSUC) struck a Working Group to investigate the challenges faced by racialized licensees, who comprise approximately 18 per cent of lawyers in Ontario.

In 2012, the Law Society of Upper Canada (LSUC) struck a Working Group to investigate the challenges faced by racialized licensees, who comprise approximately 18 per cent of lawyers in Ontario.

Unsurprisingly, the initial consultation report, which was prepared based on feedback from a range of individuals and organizations, concluded that overt discrimination and bias are a feature of daily life for many racialized licensees. Further to that initial report, the committee delivered a series of recommendations in a publication entitled “Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions” on December 2, 2016,  including a recommendation to increase CPD offerings that deal with topics of racialization, requiring licensees to adopt a policy around human rights and diversity to promote fair recruitment, retention, and advancement, and developing “progressive compliance” mechanisms for workplaces that do not comply with the recommendations, or are identified as having systemic barriers to diversity and inclusion. 

Amongst the 13 recommendations is a requirement that licensees working adopt a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public — a requirement that has ignited a firestorm in the legal profession.

Some members of the law society have taken to radio and print news to denounce the requirement as  “the most egregious kind of violation of freedom of speech” and an Orwellian Dictate. The Catholic Civil Rights League has objected to the Statement on the basis that it “may override core Christian beliefs.” Even Conrad Black (whose affiliations with the Law Society are unknown) published an editorial in which he condemned the Law Society for conferring “capricious dictatorial powers on its own administration.”

More recently, a lawyer who has been disciplined for uncivil conduct in the courtroom has filed a motion that would allow “conscientious objectors” to be exempt from the requirement — a motion one bencher applauded for its recognition that “diversity includes a diversity of opinion and a diversity of personal beliefs.”

It is hard to imagine what “diversity” of opinion or belief exists in acknowledging that lawyers have an obligation not to discriminate against persons on the basis of the grounds under the Human Rights Code. Indeed, the proposed statement appears to be a reiteration of principles already set out in the Rules of Professional Conduct, which state: “A lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.” Similarly, section 27(2) of the Law Society Act and section 8(1) of By-Law 4, Licensing requires recipients of a lawyer or paralegal licence to be of good character, which includes an adherence to principles of human rights and equality.

While it is, perhaps, rhetorically compelling, the freedom of speech argument is arguably a distraction from the issue at hand. The report states that 40 per cent of racialized licensees felt that their race was a barrier to entry into practice. Unsurprisingly, systemic racism in the legal profession is reflected at the higher levels: in 2012, only 2.3 per cent of federally appointed judges were minorities and 98 of the 100 judges appointed by the government were white. While the government has since made efforts to promote a more representative judiciary, much more needs to be done to ensure that the bench and those presiding on tribunals and boards reflects the makeup of society.

Indeed, while the Statement of Principles has generated the most attention, it is the balance of the recommendations in the report‑ those that move beyond the declaratory, toward the substantive‑ that have the greatest potential to address systemic patterns of discrimination in the legal profession. The requirement that licensees working in an environment with 10 or more lawyers and paralegals develop, implement, and maintain a human rights and diversity policy which addresses fair recruitment, retention and advancement could have a discernible impact on existing hiring practices.

Similarly, the proposed progressive compliance mechanism for legal workplaces that are identified as having systemic barriers to diversity and inclusion could result in tangible changes to law firms. While there are other issues that the report does not consider (economic vulnerability affecting racialized populations, for instance), the recommendations, if implemented, could play an important role in levelling the playing field for racialized licensees.

Photo: Pearl Vas/Wikipedia

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.