Droit Dossier

Bencher warfare

How the battle over an equality, diversity and inclusion initiative divided the Law Society of Ontario.

PAR Max Binks-Collier 16 octobre 2019
The Law Society of Ontario divided

Sidney Troister frowned as he leaned over a podium in front of his colleagues. He was one of the 53 elected lawyers, paralegals and government-appointed public representatives known as benchers who govern the Law Society of Ontario, which regulates Ontario's legal profession. "I never expected to get the negative reaction, some with unfair innuendo against me personally, and in one case ridicule from a very unexpected quarter, that I received to this motion," he said.

The motion he was putting forward at this December 2, 2016 bencher meeting was in response to another motion that had been proposed: that benchers vote on all 23 recommendations and sub-recommendations in a report about systemic racism in the Ontarian legal profession at the same time. These recommendations were policies meant to reduce the alleged systemic racism, which makes "racialized licensees face widespread barriers," including "discrimination and stereotyping, negotiating concepts of 'culture' and 'fit,' and lack of mentors, networks and role models." As of 2016, 19 percent of lawyers in Ontario were "racialized," versus 29 percent of the entire Ontario population. About 18 percent of white lawyers are law firm partners, but only around eight percent of non-Indigenous lawyers of colour and eight percent of Indigenous lawyers are.

Troister's motion would make the benchers debate and vote on each recommendation separately. He thought doing so was important because some recommendations "are not respectful of private rights," such as a requirement for "every licensee 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."

"We are asking people to make a declaration on their personal beliefs," Troister said. "What about the next time someone requires you to pledge allegiance, salute the flag, toast the queen, or declare some other thing?"

When Troister finished speaking, many benchers had their hands raised. Before the treasurer of the Law Society allowed benchers to debate the two motions, he asked benchers to be brief. He estimated that the debate would take about 80 minutes.

It dragged on for three and a half hours.

Several benchers said that this meeting was "historic" because voting to approve the report would mark a turning point in the Law Society's approach to addressing racism. A few benchers of colour cried tears of joy. Jack Braithwaite, a black bencher, referenced Martin Luther King Jr. as he urged benchers to vote on the recommendations all at once: "We just can't wait." On the other hand, Anne Vespry, a bencher of colour from Ottawa, said that she opposed the statement of principles because she is against "creating a thoughtcrime." But Robert Burd, a white paralegal who worked on the report, said that he had realized that "the dominant Caucasian male [mentality] needed to be changed." In the end, Troister's motion ended up failing, and the motion to implement all the recommendations passed.

The debate at this bencher meeting was tame compared to the arguments and insults exchanged as lawyers and law students, paralegals and professors, split into warring camps either defending or dissenting from the statement of principles over the last three years. Those supporting it said it was an important first step towards racial justice. Its opponents called it unconstitutional and authoritarian. The debate boils down to whether the LSO is infringing upon freedom of speech to promote equality, diversity, and inclusion. It is therefore entangled within a wider web of cultural clashes over how to think about the nature and scope of these values and how to navigate the apparent tension between efforts to promote them that sometimes flares up. Unsurprisingly, the debate has resonated in society at large, becoming the subject of editorials in Canada's biggest newspapers and denunciations by Jordan Peterson, the polarizing, world-famous psychologist. This is the story of how the battle over the SOP became a battleground in Canada's culture war in the lead-up to a showdown between the two sides on Sept. 11, 2019.

________

The law professor Ryan Alford was feeling as if "everything's right with the world" as he sat in his office at Lakehead University in early September 2017. Then he noticed an email from the LSO and began reading.

"Philip Roth, in one of his books, The Plot Against America, says there's this moment after you close your door when you realize that you've locked the keys inside. This dread just creeps into you," he said.

The email informed him of his new requirement to create a statement of principles acknowledging an obligation to promote equality, diversity, and inclusion. Alford thought that he had misinterpreted the email, but re-reading it only reinforced his belief that the SOP was a form of unconstitutional compelled speech, meaning it violated his constitutional right to freedom of expression by forcing him to say a certain message. The government grants the LSO its power, and "as an arm of the state, the Law Society cannot coerce me or any lawyer to say what my values are," he wrote in an op-ed. He argued that one piece of proof that the SOP amounted to a pledge of allegiance to the values of equality, diversity, and inclusion was an LSO document that reads: "The intention of the statement of principles is to demonstrate a personal valuing of equality, diversity, and inclusion…" Alford homed in on "to demonstrate a personal valuing," which from his perspective showed that the LSO was regulating the heartfelt principles underpinning a person's conscience, "the most sacred part of the human person—that's what we call the soul!" he told me.

Alford launched a constitutional challenge against the SOP on November 6, 2017. Just under a year later, another lawyer, Murray Klippenstein, joined Alford's constitutional challenge. They allege that this LSO document showed that the SOP "compel[led] the expression of, the adherence to, and the belief in certain values."

Another LSO document with which Alford armed himself was a legal opinion the LSO had commissioned in November 2016 to determine whether the SOP infringed licensees' rights. That opinion "found that, among other things, the mandatory SOP requirement appeared to infringe upon licensees' freedom of thought and expression, but that this infringement was justifiable," Andrew Pinto, the lawyer who wrote the opinion, told me. While the SOP itself stated that licensees only had to acknowledge a pre-existing obligation "to promote" equality, diversity, and inclusion, the opinion concluded that the SOP in fact "impos[ed] upon licensees a new obligation… based on a duty that already exists," the duty to not discriminate.

"I don't know why I spent the number of years that I did preparing to be in this profession to protect people's rights when the very body of lawyers just treats their rights as if they're of no consequence whatsoever," Alford said.

Alford is a historian with expertise in constitutional history, and much of his research focuses on how public emergencies affect rights. It culminated in a book dedicated to Chelsea Manning, Julian Assange, and Edward Snowden in which he argues that the War on Terror has empowered the United States presidency so radically that it has become an "elective dictatorship." Alford's opposition to the SOP is a by-product of both an anti-authoritarian ardour and his historian's perspective. Using the government to force "adherence to a particular value" betrays a naïve trust in the state that results from forgetting about the centuries of struggle against tyranny that won "baseline protections" like freedom of expression. Such protections therefore "seem like technicalities or formalities you can dispense with" if they seem to slow down social progress. Those who support the SOP "lack two things: They lack a sense of history and they lack a sense of tragedy."

Alford's view of the nature of that tragedy gets to the core of why he finds compelled speech so horrible. He considers reasoning to be the hallmark of a human being. Reasoning should in part be a constant, introspective attempt to discern one's values in order to answer "the central question of life: What does it mean to lead a good life?" he said. "It's reasoning about it which takes that human potential and puts it to service in the greatest human endeavour." But an individual can't do this without thinking and speaking freely, and especially when an individual must write a statement espousing popular political values. "If you were to grow a human being the way you grow a bonsai tree, where you pull down the stalk and put wires on it, and twist it in certain ways," you'd be "warped by a societal perspective of how you should view your own values," he continued. "When society weighs so heavily on you that you can't even grow towards the sun, the loss there truly does qualify as tragedy." Alford concedes that reducing racism is a good reason for strengthening government authority, but "despite these compelling reasons, if we empower the state, it not only takes away everything people can have, it takes away everything they can be."

Alford said that he approves of the values in question, equality, diversity, and inclusion. His professional history seems to corroborate this. In 2006, he published an article about how lawyers for black defendants should counteract the indirect but effective use of racist stereotypes by criminal prosecutors. And Angelique EagleWoman, the first Indigenous dean of law at Lakehead University who resigned after only two years due to "systemic racism," told Canadian Lawyer that Alford "'maintained order' during "some of the 'more aggressive' faculty council meetings where she says she was targeted."

Klippenstein shares Alford's egalitarianism, but also his distaste for what equality, diversity, and inclusion have come to mean. When I interviewed Klippenstein at his firm in downtown Toronto, hanging on a boardroom wall was a stylized portrait of Dudley George, an Ojibwe protestor killed by the OPP during the Ipperwash Crisis, a standoff over an Indigenous land claim. Klippenstein represented Dudley's family in a lawsuit that triggered the Ipperwash Inquiry, which in turn resulted in the eventual return of the land. It is only one of many souvenirs from a decades-long career spent litigating for social justice.

Klippenstein says that his devout Mennonite parents raised him to be a "do-gooder," but the intellectual conformity of his Mennonite community also led him to university, "where I reveled in a landscape of debate and truth-seeking," he wrote in Quillette. The freedom of thought and speech necessary for intellectual inquiry are "under attack" by what goes by "equality, diversity, and inclusion," which is really a codeword for "'Capital D' Diversity," a censorious political ideology characterized by "runaway identity politics." The skirmish over the SOP is just a theatre of operations in "a social and cultural civil war" between "diversity ideologues" and a politically eclectic coalition defending freedom of thought and speech and fending off a dystopian future in which various identity groups vie for dominance in a never-ending zero-sum game.

Alford and Klippenstein would eventually decide that the constitutional challenge wasn't enough.

________

In October 2017, Jordan Peterson uploaded a video to YouTube entitled "A Call to Rebellion for Ontario Legal Professionals." It was a recording of a video conference between himself, a lawyer, Jared Brown, and a law professor, Bruce Pardy. "I met them both when we manifested a mutual interest last year in Bill C-16," Peterson said in the video, referring to legislation that prohibited discrimination on the basis of gender identity and expression. Peterson had skyrocketed to international fame in 2016 for decrying that bill in part out of concern that it would infringe upon freedom of expression by forcing Canadians to use gender-neutral pronouns. The SOP was a "far more egregious form of compelled speech," he said in the video. "This is a slow march to a dark place," Pardy chimed in at one point.

What is that dark place?

"The jackboot on your neck," Brown replied when I asked him. He views the SOP as a mechanism for "enforc[ing] an orthodoxy on people" that is representative of "a rising wave of authoritarianism coming from the left."

By early 2018, Brown was a member of a network of legal professionals opposed to the SOP that called itself StopSOP. It created a website where essays were uploaded that argued, among other things, that the evidence that the LSO used for its report on systemic racism was so methodologically flawed that it "has not proven that racism is systemic in the legal professions in Ontario."

In October 2018, StopSOP organized a day-long workshop about how to run in a bencher election that would take place in April 2019. The bencher Joe Groia, who had proposed an ultimately unsuccessful motion to exempt conscientious objectors from the SOP at a 2017 bencher meeting, gave a presentation to share "tips from the trenches." After the workshop, StopSOP emailed supporters saying it had secured ten bencher candidates. But it appealed for more, calling the SOP "one example of collectivist, illiberal thought that is increasingly permeating western institutions." The email implored "those who realize that it is emblematic of a wider trend toward illiberalism" to "stand up for liberal values [and] for freedom."

In the end, 22 lawyers, including Alford, Klippenstein, and Brown, decided to run. If the entire slate were elected, StopSOP would make up the majority of the 40 lawyer benchers, although eight, government-appointed lay benchers and five paralegal benchers would prevent them from forming an overall majority.

I interviewed Groia at his Bay Street firm to hear an insider's perspective of the LSO's ethos from a bencher with a reputation as an outsider with a scrappy streak. He wore a grey sweatshirt bearing the logo of 16 Mile Cellar, a family winery that markets wines with names like "Incivility" and "Rebel," references to his multi-million-dollar, nine-year-long legal battle with the LSO. It had fined him $247,000 and suspended his licence for two months for "incivility" towards a Crown prosecutor. Groia fought back, losing appeal after appeal until victory at the Supreme Court.

Groia believes that the SOP once did constitute compelled speech, but that this was due more to the well-meaning clumsiness of the benchers than any affinity for authoritarianism. He thought this was now a moot point anyway, because the SOP had been "neutered."

Groia was referring to a "guide" that the LSO released shortly after Alford launched his constitutional challenge. With the stated purpose of "clarify[ing]" the SOP, the guide asserted that the SOP "sets out standards or criteria developed by the licensee to guide his or her professional conduct…taking into account applicable legal and professional obligations. The statement of principles need not include any statement of thought, belief or opinion." It went on to state: "Licensees are not required to disclose the content" of their SOP, "only required to confirm its existence."

Groia said, "Based on the clarification, I could put a blank piece of paper in an envelope." Groia told this to attendees of the StopSOP workshop, but got the impression they didn't care about the "compromise," he said. "The LSO has had its knuckles wrapped. To avoid an even worse beating, they clarified the SOP into irrelevancy."

Despite Groia's hardnose public persona, he views marshalling the troops over the SOP with diplomatic detachment. StopSOP is counterproductive "because Sun Tzu will teach you that you always give your enemy a means of escape, otherwise they have to fight to the death," he said. There's "going to be a clash between the equity-seeking groups and the StopSOP group over a battle that could be easily avoided, but they both seem determined to duke it out."

________

At several meetings over the summer of 2019, dozens of people, including representatives from equity-seeking groups that advocate on behalf of lawyers and paralegals of colour, gathered at law firms in Toronto. There was "a statement of principles that everyone attending the [first] meeting had to sign," said bencher Atrisha Lewis, referring to a box indicating support for the SOP that was on an online sign-up sheet for the meeting. The meeting's attendees had to check the box to RSVP and organizers inspected attendee's I.D.'s to ensure only those who had RSVP'd attended. The meetings were therefore "a really safe space" for hours-long strategy sessions about how to counter StopSOP.

A group called the Demand Inclusion Collective had organized the meetings in the wake of the election of the entire StopSOP slate on May 1, 2019.

Law Twitter had erupted. Precedent, a lifestyle magazine for lawyers, tweeted:

Legal professionals tweeted:

Elsa Ascencio, a 27-year-old law student, tweeted: "Alright WOC and allies – Time to get in formation Anti-SOP was organized and we weren't. I'm starting a collective of lawyers who will fight back if needed."

A devastating bout of depression was part of the impetus for starting the Demand Inclusion Collective, Ascencio told me. As the daughter of refugees who fled a civil war in El Salvador that claimed the lives of family members, Ascencio says that she suffers from intergenerational trauma that made law school, gruelling by itself, overwhelming. She put her studies on hiatus to get help and often wanted to quit once back at school. She formed the Demand Inclusion Collective partly to pressure benchers into keeping policies promoting equality, diversity, inclusion, and accessibility. "If we're not actually mobilizing for folks like me who almost fell into the cracks and never came out, that's going to be an issue," she said.

Another cohort that Demand Inclusion sees itself as championing consists of lawyers and paralegals of colour whose careers bang up against barriers due to the alleged systemic racism within the legal profession. Demand Inclusion defines systemic racism as "the concept that institutions were created with inherent biases that provide advantages" to white people while disadvantaging others. SOP supporters tend to characterize it as insidious, primarily operating through prejudicial beliefs that people aren't even aware they hold, but which manifest as degrading "micro-aggressions" or, even worse, as decisions to, for example, not hire someone from a foreign culture because they don't seem like they would "fit in" at a workplace. The LSO report about systemic racism also says that "racialized licensees" don't have as much access to professional networks, mentors, or role models as white licensees, especially when it comes to ones who share their ethnocultural background. This isolates legal professionals of colour, depriving them of the advice and connections of their white colleagues, the report states.

SOP supporters also referred me to a Toronto Star article about court officials and lawyers assuming that lawyers of colour at court were translators or even the accused in a criminal trial. One SOP supporter who was mistaken for an interpreter, Caryma Sa'd, considers such incidents to be examples of systemic racism in that they reflect a widespread, unconscious view that only white men are lawyers. On The Agenda, an Indigenous lawyer, Katherine Hensel, said that other lawyers have "suggest[ed] I am a token, that I'm not a competent litigator" and openly "denigrat[ed] my clients' engagement with their culture" and "insistence to live as Indigenous peoples within their own territories."

There was a general consensus among SOP supporters whom I interviewed that the SOP was the "bare minimum," but they also agreed that it isn't ineffective, albeit for different reasons.

Ascencio views writing the SOP as an exercise in self-reflection meant to make licensees more aware of their privilege so they can avoid unwittingly perpetuating the systemic forms of oppression that they benefit from. I asked her if requiring licensees to engage in this sort of self-reflection amounted to "forcing people to view society from a certain political perspective," through an "anti-oppression lens." I was referring to a political outlook that sees society as structured by systemic power imbalances between the privileged and the oppressed.

"Yes," she responded. "But it's also in line with the rule of law." Ascencio argues that both the rule of law and anti-oppression aspire to ensure people are treated equally. "I am pushing you to an anti-oppression framework because it is very much the end-goal of the rule of law."

Ascencio rejects the argument that the SOP is a form of "thought-policing," because obliging people to see society through an anti-oppression lens will help liberate oppressed groups without substantively curtailing licensees' freedom, she says. Besides, the rhetoric of compelled speech is just "a Trojan horse for a deeper issue," a "fear of losing power." The lawyer Caryma Sa'd also placed the fight over the SOP within a larger context, framing it as "a microcosm of what's happening in politics on a larger scale" between participants in "identity politics" and guardians of the status quo.

Julian Falconer, a bencher who worked on the LSO report, also considers backlash to the SOP to come largely from "the privileged, powerful class." And he has devoted his career to holding the powerful to account, especially in the pursuit of racial justice. The son of a Jamaican father and a Holocaust survivor, Falconer has been counsel for the Truth and Reconciliation Commission and is pilot of the "Falconair," a small airplane that he flies into northern Indigenous reserves to meet clients. He interprets the SOP's purpose differently than Ascencio, however. Instead of requiring licensees to adopt a political perspective, "what the Law Society is doing is controlling conduct, something that they as a regulator are required to do," he told me, referencing the guide that Groia had brought up which "clarified" the SOP.

The SOP has "the unequivocal support by those who suffer at the hands of the status quo," as represented by organizations advocating for lawyers from various ethnic backgrounds, like the Roundtable of Diversity Associations, Falconer said. Alford and Klippenstein both suffer from a "serious credibility problem" since they are both white. Almost all members of StopSOP are white men.

Since the privileged are only "committed to words, not action," the time has come for mandatory measures. "At stake is the ongoing victimization of a whole segment of our profession," he said. For the lawyer Caryma Sa'd, at risk within the profession is the degree of equality, diversity, and inclusion necessary for justice itself. "Without these, you're missing something to actually achieve a fair result."

________

The couple dozen members of the public at a Sept. 11, 2019 bencher meeting looked bored, even weary, but steadfast too. This was the meeting where benchers would vote on the future of the SOP. A smattering of them wore purple, the official colour of Demand Inclusion, and had fastened Demand Inclusion pins to their shirts. The audience perked up when LSO treasurer Malcolm Mercer explained the two motions that benchers would be voting on. The first would make the SOP voluntary, and the second would repeal it altogether. "If the result of the two motions is that convocation is against the voluntary motion and against the full repeal motion, we would be left with mandatory," Mercer said. "If the voluntary motion is defeated, but the full repeal motion is passed, we will end up with full repeal."

He explained that there would be two consecutive roll call votes, one for each motion, and that there would be no debate. "These two motions were extensively and thoroughly debated on June 27," he said, referring perhaps euphemistically to the last meeting, when benchers were supposed to have voted on whether to modify or repeal the SOP. That meeting lasted nine hours before ending in an impasse.

After Mercer described the two motions, benchers started voting on the motion to make the SOP voluntary. For the next few minutes, benchers kept personal tallies of their colleagues' votes, which were nearly evenly split, neck and neck, between those in favour and those opposed. After the last vote, there was a pause.

"The motion fails, 23 for, 27 against," the LSO secretary said.

"Please now follow roll call for the second motion," Mercer said.

The votes in favour and against the motion were also very close at the beginning, but one side started pulling ahead.

"The motion carries, 28 for, 20 against, 2 abstentions," said the LSO secretary.

The statement of principles had been repealed.

"It felt as if we had just achieved something momentous," Alford told me. It was as if the StopSOP slate "had ascended above the clouds on the path towards what we wanted to achieve and all of the sudden, the view was clear." But bencher Atrisha Lewis had been "very hopeful that the voluntary would go through," and so when the SOP was repealed, she was shocked and upset.

Bencher Sidney Troister walked to the podium where, about three years ago, he had been the first bencher to argue against the SOP publicly. "Treasurer, the results of the vote make me uncomfortable," he said. "Frankly, it leaves me cold."

He was concerned the repeal would embitter much of the legal profession and make those who suffer from discrimination feel even more excluded. So he was proposing a motion that would require legal professionals to indicate in their annual reports that they acknowledge their professional obligations to respect human rights laws and refrain from discriminating. "We need to reach out as best we can and find some reconciliation."

After Troister had finished his speech, Lewis spoke up: "Mr. Troister's motion is not enough, but it is better than nothing." Her voice became slightly strained as she said, "It's really important that we stop metaphorically punching racialized licensees in the face, because that's what it feels like with the repeal motion." Chi Kun-Shi, a Chinese woman and member of StopSOP, snapped: "I haven't been punched in the face… It is the ultimate disrespect to claim that we all think the same… I'm not a victim, never have been and never will be." Alford and Klippenstein both said that they were not necessarily against the content of the motion, but that they were reluctant to support it since it had been introduced at the last minute. Falconer supported the motion "because to be against it is absurd." The repeal of the SOP was "only the beginning of the dismantling of equity for the Law Society," he said. "I promise that I will be in the way every step of the way."

Mercer called the vote. The winners had the largest lead over the losers of any vote that day: 27 voted in favour of Troister's motion, 18 against, and five abstained. The meeting ended shortly thereafter on a subdued, even glum, note. "We had so much to process," Alford said.

Lewis thought that a compromise, however lousy, had been struck. "There is a glimmer of hope, and all is not lost."

Max Binks-Collier is a journalist based in Toronto. His work has appeared in The Walrus and Maisonneuve.

ARTICLES LIÉS