Are our Canadian halos blinding some lawyers on the Statement of Principles?

A consequence of being expert critics of all things American is to minimize the

negative in Canada’s history or be willfully ignorant of our current state of affairs. These uncomfortable truths are sometimes unconsciously disregarded as they conflict with what we want to believe about ourselves and our national persona.

The halo effect

Cumulatively, this results in the operation of a cognitive bias called the halo effect. The halo effect confines the brain to allow specific positive traits to positively influence the overall evaluation of a person, group, event or even a nation, beyond what we know. 

For example, using our overall positive perception of Canada (for universal health care, state-sponsored multiculturalism, the belief that our culture is more caring and less violent than the U.S.) affects our evaluations of other characteristics of Canadian society and culture for which we may not be well informed, for example, assuming that Canada and the Canadian legal profession must also be more progressive than the U.S. on diversity and genuine inclusion. We tend to ignore those facts that are not in line with what we want to believe about Canada or the legal profession. 

Our firm just hires and promotes the best!

Through CulturWorks, my international diversity and inclusion consultancy, I have had numerous opportunities to present and train on topics at the core of the Statement of Principles recommended by the Challenges Faced by Racialized Licensees Working Group of the Law Society of Ontario.  

We know that the need for the inclusion of equity-seeking groups has been an issue for the Canadian legal profession for decades. The profession’s forward momentum has continued despite a legal culture that has often admonished or ignored it. The overall pace of progressive change has been at a glacial speed as compared to that of our clients in the corporate and non-profit worlds.   

Nonetheless, I have spoken to several lawyers who have told me in no uncertain terms that diversity and inclusion are not essential to our profession as we deal in facts or that, at least, we are better than the tiki-torch-carrying Americans. Based on my experience in the legal profession for the last 18 years and expertise in training lawyers on diversity and inclusion, it seems prudent to ask: To what degree is the halo effect at play in our profession?

Undoubtedly, most people believe that every person should be given an equal opportunity to succeed in whatever they pursue. As lawyers, we are taught about justice being blind and we generally approach our work and workplaces in the same manner. It is unlikely that any lawyers would say, “I am not going to recommend Manjit for a partnership today because she is Punjabi.” They are even less likely to consciously act on such a thought. 

We like to quietly believe that as reasonably educated and sometimes overly confident people that we can effortlessly limit bias by relying on “the facts.” However, because bias works on an unconscious level, we fail to see it operating.  Moreover, ignorance triggered by over-confidence sometimes results in this bias becoming entrenched and persisting completely unrecognized. 

But at least Canadian lawyers are further ahead than the Americans . .  .

At CulturWorks, we developed training called Unconscious Bias & Leadership Training for Lawyers. During the training, I often ask the question: “Which of the Canadian and American legal cultures has the most progressive programming related to diversity and inclusion?” The usually unanimous and instant response has been “Canada, of course!” The halo effect, and not the facts, have a significant role to play in arriving at this conclusion. 

As painful as it is to hear, the Canadian legal culture lags behind that of the United States regarding the number of programs, initiatives and supports working toward a more inclusive legal profession. Moreover, the level of co-ordination and sophistication of these programs is far more advanced. With all the research that supports that unconscious bias is pervasive in limiting diversity and inclusion, American lawyers have taken greater steps to mitigate it than Canada’s.

As just one example, in its ongoing efforts to educate lawyers about unconscious bias, diversity and inclusion, the American Bar Association launched the ABA Diversity & Inclusion 360 Commission website. This was a simple step to spread awareness about the fact that cognitive bias is a very real thing. Since being launched, this website has been providing toolkits and resources to thousands of lawyers to help them recognize and understand their own unconscious bias.

These initiatives also target judges, prosecutors and public defenders through a variety of other media forms and cover topics such as: Bias on the Bench, Toward a Better Defense and The Prosecutor’s Paradox. There are a variety of tools to support firms of all sizes on their journey to be more inclusive.

When you add the assortment of programs available from state bar associations, regulatory bodies, law schools, internal and ongoing firm training and D&I departments, the picture of the U.S. legal profession looks far rosier than that of Canada. While the ABA initiated this initiative prior to 2004, in Canada, we still lack sophisticated and c-ordinated programs on the matter.   

I can’t see it so the problem is not that bad

Given that the Canadian legal system lacks such tools and ongoing unconscious bias training for most firms remains a novelty or a “one-off,” it is no wonder that, despite all the data, commentary, research and the consultation-based recommendations of the Challenges Faced by Racialized Licensees Working Group, some of our colleagues avow that the Statement of Principles is something not to be asserted nor adhered to by force of regulation.  

Without fully including the right of racialized lawyers and law students to have equal opportunities in our profession and while asserting they are committed to the concepts of a diverse and inclusive profession, some of our colleagues have incorrectly asserted that their freedoms are being taken away, that the era of “forced speech” is upon us and that contrary to the numerous assertions based on the lived experiences of racialized lawyers, the Statement of Principles is either unnecessary or will do little to move diversity and inclusion forward.   

This seems to be the operation of our Canadian halos being so bright that we do not see our world as it is.  We see it as we want it to be. Unfortunately, some of our colleagues have been blinded and, of those, some are wilfully blind, by the radiance of our halos to the reality on the ground for racialized lawyers.