Lawyers and the lightbulb of diversity
“Is it possible to appeal on your ruling that the previous appeal was unappealable? It has appeal.”
Try unpacking that tortured knot of legalese! Even if, I suspect, it was delivered somewhat tongue in cheek.
But that’s the loop-the-loop tone of discourse you get when 40 lawyers are packed into a room at Osgoode Hall — benchers of the Law Society of Ontario — engaged in a fundamental debate about diversity ideals versus compelled speech. Viewpoints sincerely, even passionately, held.
An assembly of counsellor-sat-law (which may be an Americanism) representing upwards of 50,000 members of the bar in Ontario and some 8,000 paralegals, or “licensees” in the stiff-necked vernacular.
That’s roughly the populace of Welland-Pelham.
And, when the mind wanders, as it does, one imagines a city entirely populated by lawyers: lawyer-cleaners, lawyer-chefs, lawyer-teachers, lawyer-engineers, lawyer-nurses, lawyer-reporters, lawyer-strippers. An Emerald City of litigation.
The colour purple, however, designated a fault line on Thursday at the first gathering of the LSO’s newly elected benchers — directors — with the pro side, some of them, flashing bits of purple on lapel buttons and ties and shirts.
Purple is the palette swatch for diversity.
The crux of the thing: A controversial requirement that every lawyer in the province must adopt a statement of principles (SOP), to “promote equality, diversity and inclusion generally and in their behaviour towards colleagues, employees, clients and the public.”
That might seem benign, progressive in a bumper-sticker way, and hardly deserving of objection. But it’s the compelling part that has stuck in the craw for many as a jackboot imposition on freedom of speech, freedom of opinion, freedom of values and purportedly as being unconstitutional.
Enough so that the statement of principles approved, in late 2016, triggered a polarizing rift within the Law Society and clearly influenced the May election of the board’s new benchers — the entire slate of StopSOP candidates voted into office, taking 22 of the 40 seats. (There are also five seats for paralegals and eight for lay members.)
From there to Thursday, and a motion before the convocation to repeal the statement of principles.
Also, as part and parcel of this debate, a motion to drop the mandatory element in favour of a voluntary alternative, preferably without any registry keeping score.
A high-minded debate, as expected from such a bright and erudite (lawyer jokes aside) demographic.
Yet it didn’t take long before discussion devolved into slingshots — racist, bigot, zealot — albeit clothed in the same superficial politesse of Canadian courtrooms where disagreeing lawyers always address each other as “my respected friend” and such.
The anti faction took painstaking preamble rhetoric to make clear they agreed with the inclusivity gist. But the arm-twisted corrective, with its implicit undercurrent of unconscious bias and “racialized” politics, is intolerable.
“I recall the shock, the disbelief, when I saw I was going to be compelled, coerced, by force of law, to publicly promulgate a principle that someone else had dictated to me,” said Toronto’s Murray Klippenstein (he has a long history of human rights lawyering), who, with Lakehead University law professor Ryan Alford, was a prime mover behind the rebellious rump.
“There’s the ordinary sense of diversity, small-d diversity, and something else, what I call capital-D diversity, which is some kind of political package, in fact, a particular political ideology. That distinction is important, because I think this (SOP) is politicizing the Law Society in a way that is really unfortunate and isn’t necessary.”
The pro-SOP side essentially cleaves to a made-in-Ontario-Human-Rights-Commission definition of inclusivity and so on, as a de facto obligation, a legal must. It’s the same agency which has institutionalized the dreadful term “racialized,” defined as “the process by which societies construct races as real, different and unequal ways that matter to economic, political and social life.”
To wit: Viewing every breath we take, every act we make, through a prism of race, thus (as I interpret it) pre-emptively, intrinsically racist.
“If you’re white, you’re racist,” as Jorge Pineda put it, disapprovingly. “That’s my lived experience. I’m a racist, not because of anything I’ve said, not because of anything I’ve done, but because my parents were white.”
Adding: “Racialized is the politicization of race. Racialized implies that I’m repressed, that I’m a victim. And I recoil at that suggestion. I’m willing to risk disbarment to not comply.”
Pineda had described himself as Latin. Which had me assessing the pigment of his skin, from across the room. Was he a light brown? But why in the world would that matter, if one is raised not to splinter by race and colour and ethnicity? Which is what the well-intentioned cultural engineering seeks to do, inversely committing the very sins it wants to eradicate.
“This is the first step to tyranny,” argued Cheryl Lean, a family law lawyer and another incoming bencher opposed to the SOP. “The Law Society has deemed itself systematically racist. I don’t accept that.”
Atrisha Lewis countered that the Law Society has a responsibility to assure a diverse bar, reflecting the public it serves. Lewis referred to a recent newspaper column she’d written, supportive of the SOP, and the “undeniably racist” comments it had drawn. But hateful, anonymous chirping is hardly a useful measuring stick for evaluating the alleged racism of a society.
“To those who think this debate is about freedom of expression, don’t be fooled. This is about denying the existence of racism. Racism is real. It comes in many forms. Some overt, some subtle and more insidious. It’s very real to the people that are here today … because the statement of principles matters to them.”
And, while saying she would support the voluntary amendment motion, Lewis ended on this provocative note: “Racialized lawyers do not have the luxury of opting out of being racialized.”
Distinguished bencher Jack Braithwaite, a Black man — and, again, it’s discomfiting to make distinction by colour — argued eloquently against any compromise in the SOP language and touched on historical realities. “It represents a continuous slap in the face to all racialized groups.” Wordy stuff, all of it. From the heart and from the brain.
And, perhaps, many will see the statement of principle, or the opposition to it, as lawyers dancing on the head of a semantic pin.
But it does matter, immensely, to the men and women inside that room Thursday and to the public the Law Society serves.
At the end of a long day of mind-numbing oratory, the convention … well … pleaded out, I’d say.
Amid procedural confusion, the benchers voted 27-4 in favour of amending the motion, making the statement of principle voluntary. Even though the original motion to repeal, as put forward by Klippenstein, was promptly withdrawn by Klippenstein, who took leave of it in amended form. Do you follow? “I’ve been hoodwinked,” objected Julian Falconer, when incumbent and re-elected board chair Malcom Mercer (of the purple persuasion), tried to call a vote on the main motion, without further debate wrangling.
Another go ’round the rollcall maypole. Verdict: Mandatory. Status quo remains. Salute the diversity flag! But, wait! A last gasp bid to table — bring the Klippenstein motion for a clean repeal back at a future date — was deadlocked, with Mercer casting a no-vote to break the jam.
Procedural turmoil and multiple dueling motions ensued.
Even Mercer called the whole shemozzle a mess.
“Infinite loop,” Mercer muttered.
“Gong show,” Falconer snapped.
At 6.30 p.m. — they started at 9 a.m. — Mercer, wrung out, resolved to adjourn. Pick up the thread in July. Mandatory in effect until then. A no-decision.
Mercy. And they’re not even billing by the hour.