Diversity policy doesn’t include diverse views
Law society shouldn’t speak for others, says Marty Gobin.
The following is offered in rebuttal to a March 30 column by Paula Ethans titled Why lawyers should advocate for greater diversity in their profession.
In her recent column, Ethans defended the decision of the Benchers (like a board of directors) of The Law Society of Upper Canada to compel the society’s lawyers and paralegal members to profess that they hold certain views about equality, diversity and inclusion via a statement of principles.
I would like to argue the opposing view. First, the column states, “lawyers must plead allegiance to the Queen when they are called to the bar. By the critics’ definition, this is compelled speech for anyone who opposes Canada’s colonization. So why haven’t they protested this infringement of free speech?”
Critics of compelled speech haven’t protested this requirement because it’s a requirement that doesn’t exist. The oath for both lawyer and paralegal applicants to the law society is contained in Section 21 of Bylaw 4 of The Law Society of Upper Canada and can be easily accessed on the law society’s website. (It is true Section 22 contains a separate, optional oath allowing a new licensee to also swear allegiance to Her Majesty should they so choose, but it is by no means “compelled,” or even expected.)
Second, the author wrote, “According to the LSUC consultation paper, only 17 per cent of Ontario lawyers are racialized (i.e. not Caucasian). Of that 17 per cent, many noted having been denied files at their workplace, struggling to find articles and not having mentors.”
It’s not clear what consultation paper the author is referring to, but it can probably be assumed it’s the document Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions, a paper released in 2016 by the Equity Initiatives Department of the law society which recommended the now-controversial statement of principles requirement.
Not every member of the law society who falls within a minority group thinks alike or supports the Benchers’ decision to fetter the consciences of the law society’s members.
In that document, it is reported that “40 per cent of racialized licensees identified their ethnic/racial identity as a barrier to entry to practice.” Furthermore, “43 per cent of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement.”
Apparently, the committee that prepared the paper was a glass-half-empty crowd, because an inference that can be equally made from these findings is the majority of racialized licensees do not identify their ethnic or racial identity as a barrier to entry to practice, or advancement.
Furthermore, self-reporting is a terrible way of establishing the existence or non-existence of a fact. That someone might identify their ethnic or racial identity as a barrier to advancement doesn’t make it so. If self-reporting is an accurate way of establishing the objective truth, there are a lot of people who claim to have been abducted by aliens and ought to be believed just because they said so.
The fact that the majority of lawyers and paralegals who fall into one minority group or another do not make anecdotal complaints of discrimination demonstrates a larger point: Not every member of the law society who falls within a minority group thinks alike or supports the Benchers’ decision to fetter the consciences of the law society’s members. It is possible to be both a member of a minority group and a civil libertarian.
Perhaps the most unintentionally bigoted policy is the belief by these policy-makers that they act in the name of every lawyer or paralegal who is a member of a minority group — the opinions of the individual members of those groups who dissent, and in whose interests they claim to act, being irrelevant.
Marty Gobin is a paralegal member of The Law Society of Upper Canada, NCA candidate and member of Shabot Obaadjiwan First Nation.
He is a partner at Gobin & Leyenson LLP in Oshawa (www.glllp.ca).