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Caryma Sa'd sm

Diversity needed some bencher candidates say, as debate over statement of principles continues

Monday, February 25, 2019 @ 9:43 AM | By Amanda Jerome


Lawyers have been divided on the Law Society of Ontario’s (LSO) statement of principles since it was first announced as part of the regulator’s annual reporting requirements in 2017 with opponents arguing it’s “compelled speech” and a “purity test.” The statement continues to be an issue in the current bencher election with some candidates campaigning to abolish the statement of principles and others maintaining that promoting diversity is essential.

“I can’t believe that with so many other issues facing our profession, that’s what a group of lawyers decided to rally behind. I’m truly baffled,” said candidate Caryma Sa’d, of [s]advocacy in Toronto.

Sa’d noted that when she decided to run for election she didn’t think the statement of principles would be an issue.

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Caryma Sa’d, [s]advocacy

“To me it’s an acknowledgement of our pre-existing obligation to promote access to justice, and a component of access to justice is equality, diversity [and] inclusion. To me it’s an affirmation that part of the privilege of being a lawyer means the responsibility of promoting values that are linked to justice. The word ‘promote’ is central in all of this and my reading of the opposition to the SOP [statement of principles] is ‘promote’ means we’re compelled to do something. There are so many other ways to interpret that word. It could mean ‘uphold’ or ‘value’ or ‘acknowledge,’ so for me it’s a pre-existing obligation,” she explained.

The law society’s statement was part of recommendation 3(1) in the Challenges Faced by Racialized Licensees Working Group’s Final Report, released in December 2016, which required licensees to “adopt and to abide by 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.”

When this requirement was implemented by the law society in the fall of 2017, current LSO treasurer Paul Schabas told The Lawyer’s Daily that the regulator didn’t want “to tolerate systemic racism.”

“We want to avoid that. We want to turn the page and be a profession that truly reflects the population of the province and makes sure that legal workplaces are inclusive of all Ontarians,” he said.

However, the LSO faced backlash from some members of the profession who argued the regulator had gone too far. The debate over the statement came to a head at Convocation on Dec. 1, 2017, when benchers Joseph Groia and Anne Vespry brought a motion to exempt benchers who have a “conscientious objection” to the statement of principles from adopting it.

Nevertheless, the motion was defeated 38-16 as the regulator forged ahead with its promotion of inclusion.

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Paul Cooper, Cooper Jørgensen

“I’m a complete supporter of the statement of principles. I voted to ensure the report the committee passed, which included a recommendation for the statement of principles,” said candidate Paul Cooper, of Cooper Jørgensen.

Cooper is running for re-election and his platform promotes inclusion. He said he’s “taken aback by those that are running on a platform to stop” the SOP.

“I’m proud of what I’ve done in the last four years. I’ve been a part of historical progressive change and I’m proud of it,” he said of his time as bencher, adding that the essence of the statement of principles can be captured by a paragraph in Law Society of British Columbia v. Trinity Western University 2018 SCC 32.

He drew attention to paragraph 43 where the Supreme Court of Canada noted that the Law Society of British Columbia was “entitled to interpret the public interest in the administration of justice as being furthered by promoting diversity in the legal profession — or, more accurately, by avoiding the imposition of additional impediments to diversity in the profession in the form of inequitable barriers to entry. A bar that reflects the diversity of the public it serves undeniably promotes the administration of justice and the public’s confidence in the same. A diverse bar is more responsive to the needs of the public it serves. A diverse bar is a more competent bar.”

“Let’s bring a real, proper, complete [group of] diverse people with diverse backgrounds and let’s promote that, so we can come up with real answers for the future of our profession and protect the public,” Cooper added, stressing that it’s important the profession reflects the diverse public that it serves.

Sa’d said the statement is rooted in the profession’s “positive obligation not to discriminate,” which exists in the Human Rights Code.

“It being a positive obligation implies that there’s some proactive element to it and I don’t think it’s a stretch at all to say that supporting or upholding the values of equality, diversity and inclusion are at odds with our obligation to uphold access to justice,” she added.

The statement is a symbolic gesture and a reminder for lawyers in their day-to-day practice, Sa’d explained.

“Law is everywhere and everything, so it affects the community at large in countless ways. And we have data that suggests that certain groups are affected by the law in disproportionately negative ways than others. So having a statement of principles keeps that at the forefront of our practice of law because if we are upholding oppressive systems that’s contrary to justice,” she said. If lawyers want to serve the broader community then diversity, equality and inclusion within the profession are essential, she added.

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Jared Brown, Brown Litigation

Jared Brown, of Brown Litigation, is also running as a candidate and sees the statement as a “symptom of a wider problem” at the law society.

“I think the Law Society of Ontario has moved away from its mandate of regulating the profession in the public interest, and I think the statement of principles, and some other policies and activities that are coming from the law society, are simply the symptom of that greater problem,” he explained.

Brown’s platform includes a push to repeal the statement as he sees it as “an effort by the law society to not only politicize the practice of law but mandate an ideological purity test for all those who wish to practise law in Ontario.”

“It is my belief ... that that is not in the public interest,” he stressed, adding that the public interest is not served by creating a politically and ideologically homogeneous law profession.

“Frankly, I think it’s an authoritarian requirement coming down from our regulator,” he explained.

Brown said a group of bencher candidates has coalesced around its opposition to the statement of principles and it has a website, stopsop.ca.

For members of the profession who support the statement, Brown would remind them that “the legal profession is a self-regulating profession.”

“The reason it’s a self-regulating profession is it was created as such to be separate and apart from the state and from the politics of the day. We are the last line of defence between the state and the rights and freedoms of those within it. We are a bulwark against state tyranny and authoritarianism. If our legal regulator is going to begin to enforce ideology, political ideology, on its membership, you are going down a very bad pathway,” he said.

While the concepts of diversity, inclusivity and equality may not be offensive to some, he added, what will be the next “ideological purity test” that comes from Convocation?

“While I have certain definitions of what is diversity, equality and inclusivity, my regulator may not share those same opinions. I believe in things like diversity of thought and opinion in as much as I believe in the concepts of diversity which my regulator is currently requiring me to attest to and promote. But I don’t think our regulator should be concerning itself with the political values and ideology of its membership,” he stressed.

Brown explained people may believe in Martin Luther King Jr.’s quote that his children “will one day live in a nation where they will not be judged by the colour of their skin, but by the content of their character.”

He countered that the law society is taking an “opposite opinion” with the statement of principles.

“They want to judge people by their identities and the colour of their skin, not by the content of their thoughts and opinions. In fact, they are willing to assume that they are getting a diversity of thought and opinion within the legal profession simply because the legal profession may have different identity groups within it. I find that abhorrent and I’m sure there are a lot of people that would agree with me on that,” he added.

Sam Goldstein, also a bencher candidate, wants the statement repealed because he believes it “represents a left-leaning ideology that is just dangerous, not only for the law society, but the legal profession.”

“Regulatory bodies are not agencies of social change. They’re there to regulate the profession, not to change society,” he said, adding that benchers who want to advocate for social change should run for Parliament.

Goldstein, a criminal lawyer in Toronto, stressed that the law society should be focusing on “client-centred policies” and policies, like the statement, are about the law profession serving itself.

“Clients care about good lawyers. They don’t care about the colour of the skin of their lawyer,” he explained.

Sa’d noted that even if the statement is “compelled speech” there are other instances of this in the profession that haven’t inspired lawyers to rally as they have against the SOP. She said remarks made by Lori Thomas at the law society’s Black History Month event resonated with her in response to the compelled speech argument.

“Imagine being a black lawyer, and you’re in motions court, and you have to address the jurist as ‘master.’ That’s uncomfortable and that’s a form of compelled speech. Why not change that?” she asked.

“When we subpoena people and they have to sit on the stand and answer questions, that’s compelled speech. So what is it that puts us above this notion?” she added.

The LSO released a statement regarding the statement of principles, saying it is “taking the lead to help create long-lasting systemic change through its Equality, Diversity and Inclusion (EDI) strategies.”

“The statement of principles is one of many elements of our robust plan. It is part of our goal to create positive and sustainable awareness among lawyers and paralegals about the special role and professional responsibilities they have in upholding our laws and democratic values. The requirement reinforces existing obligations in the Rules of Professional Conduct and the Paralegal Rules of Conduct which establish a lawyer’s and paralegal’s special responsibilities to respect human rights laws and to honour the obligation not to discriminate in their dealings with others,” the statement explained.

Voting in the LSO bencher election will commence in mid-April and close April 30. Elected benchers will hold office for a term of four years.

This is one article in ongoing coverage of the election. If you’re running as a bencher candidate, please reach out to Amanda.Jerome@lexisnexis.ca to discuss your platform.