OBA President Quinn Ross writes to Law Society of Upper Canada on Statement of Principles

  • November 27, 2017

November 24, 2017

BY E-MAIL

Mr. Paul B. Schabas
Treasurer
Law Society of Upper Canada
130 Queen Street West
Toronto, Ontario
M5H 2N6

Dear Treasurer:

Re: Law Society Statement of Principles

As OBA President, I am proud that our association has a strong commitment to actively
promoting equality, diversity and inclusion within our organization and throughout the legal
profession. It is in that regard that I write to you with respect to the Law Society’s ongoing
equality, diversity, and inclusion initiatives, and in particular, the requirement for a
Statement of Principles.

The reason for this letter is two-fold: first, to reiterate the OBA’s unequivocal support for the
Challenges Faced by Racialized Licensees Report and the recommendations therein that
were adopted by Convocation in December 2016; and second, to identify failures to date in
the implementation of the requirement for a Statement of Principles in the hope that going
forward, the Law Society takes the necessary steps to ensure that the Statement and the
remaining recommendations are successfully implemented.

The Challenges Faced by Racialized Licensees Report (“the Report”)

The Challenges Faced by Racialized Licensees Report took 4 years to complete. It involved
multiple stages of consultations including feedback from over 1,000 licensees and over 40
written submissions, including two from the OBA. The Report outlined in detail and with
clarity that racism is alive and well in the profession and that it isn’t going away without
mandated action.

The Report contained 13 recommendations in five categories: accelerating culture shift,
measuring progress, educating for change, implementing supports, and Law Society
operations. The Statement of Principles is one of two requirements from the Report that
licensees must meet by the end of 2017.

In December 2016, after significant debate, Convocation adopted the recommendations in
the Report by a vote of 33-0.

The Statement of Principles

The Statement of Principles is the language of change. It is a reminder of our duty to each
other and the public we serve. It is a step in recognizing that as a profession we have
historically excluded racialized lawyers from full participation. The Statement provides an
opportunity to do things differently in the future for the benefit of us all – not in a way that
hypothesizes outlandish possibilities but that builds on the best traditions of our profession
in working together to advance collegiality, fairness and the pursuit of just outcomes.

Moreover, the positive obligation to promote equality, diversity and inclusion reflects our
profession’s independent and unique role in safeguarding the public interest. As lawyers,
this is our most important and valuable role in society, which is fundamental to selfregulation
and to be protected at all cost.

The requirement for a Statement should serve as a minimum standard from which to grow,
not a threshold to be met. If in due course it doesn’t strengthen equality, diversity and
inclusion – we must modify or replace it with alternatives that do.

The Communication Gap

The requirement for a Statement of Principles was communicated by the Law Society to all
licensees by e-Bulletin in September 2017. Since then, it has been questioned by some as
compelled speech or compelled belief. Equality, diversity and inclusion have been dismissed
as political ideology, and a Superior Court Application has been launched attacking the
requirement as ultra vires, disproportionate, inoperable, and unconstitutional.

This should have been anticipated and avoided. Lawyers have a right to understand their
professional obligations as much as they have a professional responsibility to uphold them.
Licensee uncertainty about the scope and focus of obligations in their practice and in their
communities was predictable. The Law Society did not initially address many of the publicly
stated questions and criticisms, which were permitted to compound in the ensuing lacuna.
Increasingly the entire raison d’etre of the recommendation has been obscured in the race
to ‘test the merits’ of the Statement.

The Law Society’s guide released this week has addressed many of the questions raised by
licensees, but not before significant damage to the spirit and intent of the Statement was
done – and not before racialized licensees were exposed to yet another indication from the
profession that the issue of systemic racism isn’t as important as other things. This failure
does violence to the hard work and intention underpinning the Report.

The Need to Move Forward

The Law Society’s adoption of the Report’s recommendations in December 2016 showed
commendable leadership in respect of a complex issue that continues to plague racialized
licensees and jeopardize the relevance and credibility of the profession.

As implementation continues, the Law Society must take the necessary steps to advance
constructively each of the recommendations adopted by Convocation, and it must be
prepared to do so before misinterpretation and misinformation undermine the confidence
of the profession.

The OBA is pleased to offer its continued support and assistance in this critical endeavour.

Yours truly,
Quinn M. Ross, President
Ontario Bar Association

cc. Raj Anand, Co-Chair, Challenges Faced by Racialized Licensees Working Group
Janet Leiper, Co-Chair, Challenges Faced by Racialized Licensees Working Group
Dianne Corbiere, Co-Chair, Equity and Aboriginal Issues Committee
Julian Falconer, Co-Chair, Equity and Aboriginal Issues Committee