In Ontario, it is a sad time for self-regulation, argues Dean Ian Holloway in Law School Futures
There is a line in the fourth season of the classic British television series “Blackadder,” in which Rowan Atkinson, playing First World War officer Captain Edmund Blackadder, says, "Well, it started badly, it tailed off a little in the middle and the less said about the end the better. But apart from that, excellent!"
I can think of no better way in which to capture the essence of the last meeting of the Benchers of the Law Society of Ontario than this. The topic of debate? A motion to repeal the so-called Statement of Principles that all we members are now required to subscribe to. If Rowan Atkinson were ever minded to revive the series and do an episode called “Blackadder Goes to the Bar,” he could do little better that to base it on that Benchers meeting.
To re-cap, in 2012, the Law Society of Upper Canada (as it was then known) established a working group to study the “Challenges Faced by Racialized Licensees.” The Law Society said that this was in fulfilment “of its multiple roles in the public interest as change agent, facilitator, resource and regulator.”
Many of us might have been surprised at the time to note that the Law Society considered its role to be as a “change agent.” We were all taught to think of it as the Regulator – the regulator with a capital “R.”
Indeed, that’s the reason that the pulse always quickens when one receives an envelope from them. The “change agent” in the professional scheme of things was supposed to be the Canadian Bar Association. At least so we thought. But then we are all in favour of change agents – provided, of course, the changes being agented are ones we like.
In any event, moving with the alacrity for which Law Society is renowned, four years later the Working Group reported, and put forward a series of recommendations to the Benchers. Most of the recommendations were accepted by Convocation (and the membership) without controversy. But Recommendation three was to “require 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.”
It seems clear from reading the entire working group report that they didn’t anticipate that that would be particularly controversial, either, for there isn’t a lot of discussion about it in the text.
But boy, was that the miscalculation of miscalculations!
A firestorm erupted almost immediately over whether the newly-required Statement of Principles – which we all would have to specifically sign off on in our annual reports – amounted to “compelled speech,” which was, perforce, unconstitutional. Claims of unconstitutionality were met with counterclaims of implicit racism in anyone who opposed the Statement of Principles. Some calmer heads tried to suggest that the Statement wasn’t really that big a deal – that much of it was implicit within the barrister’s oath that we all took anyway, and that all one had to do was sign a template statement that the Law Society handily provided us all. But that line pleased no one – those who really believed in the Statement felt that it was a capitulation to the forces of Philistinism, while those opposed felt that compelled speech was still compelled speech, even if someone else wrote the script for you.
So this was the backdrop against which the last Ontario Bencher’s election was held. To the surprise of many, the “Stop SOP” slate, as they called themselves, ran the table. All twenty-two of its lawyer candidates won – and in the process of so doing, upended many long-serving and distinguished Benchers (full disclosure: many of those defeated, and some of those elected, are friends of mine). The sole item on their platform was a pledge to repeal the Statement of Principles.
This set the table for the meeting of Convocation on June 27. That it was going to be a high-drama affair was known in advance, for a generous two hours was allocated to debate over the SOP. This was in sharp contrast with the other two substantive issues on the agenda, the election of the Treasurer and the Report of the Equity and Indigenous Affairs Committee, which only were to receive thirty and fifteen minutes, respectively. Following a morning’s work, the agenda noted, the Benchers were all meant to make nice and adjourn to a luncheon in the Benchers’ dining room. But in the end, the time allocation was all for naught, for the SOP debate ended up monopolizing the whole day.
Jacques Gallant, the excellent legal affairs reporter for the Toronto Star live-tweeted the meeting, and then published a wonderful blow by blow of the whole saga. Suffice it to say that neither side covered itself in glory. The meeting began with a move by one pro-SOP Bencher to have two of the anti-SOP group removed from the debate on the basis of a conflict of interest (because they were parties to a court action seeking formally to declare the SOP unconstitutional). That chewed up the entire two hours initially allocated to the debate. This failing, the Anti-SOP group first tabled, then decided ultimately not to vote for, a motion to make the Statement voluntary.
One might have assumed that removing the compulsion to sign the statement would end the controversy.
Apparently not, though. What was needed was a “simple and clean” outright repeal. To anyone who is not a student of the intricacies of parliamentary procedure – to 99 per cent of the audience, in other words – this made them look like tone-deaf fools.
For their part, the pro-SOP group effectively boxed everyone, regardless of their philosophical views on liberty and the compulsion of speech, into a corner of having to choose between agreeing with them, or publicly being labelled either a racist, or an enabler. There is, apparently, no middle ground on the SOP issue. Gallant quotes one Bencher as saying at the meeting, “To those who think this is about freedom of expression, don’t be fooled. This is about denying the existence of racism.”
In the end, after nine hours of wrangling, with no substantive progress having been made whatever, the Treasurer – who I have worked with closely in the past, and who is one of the deepest-thinking lawyers I know – mercifully called a halt to proceedings at 6:30 pm. He said at the time that they’d reconvene on the SOP issue in July, but he has since set the meeting down for September 11. For anyone who believes in omens, that’s hardly an auspicious date.
I know that I’ve written this before, but I remain proud to be an Ontario lawyer. Truly, I do. Though I now live in another province, I’ve deliberately chosen to retain my membership in the LSO. Partly, that’s because I’m a sentimental fellow by nature. But also, it’s because I continue to believe that the lawyers I knew and worked with in my eleven years in Ontario were among the best I’ve ever seen. There will be few who have glasses that are more sepia-tinted when it comes to this than mine. But it’s hard to see how the Society will extracate itself from this mess. The battle lines have been drawn in such a way that compromise doesn’t seem possible. Given the sharpness of the rhetoric, it is difficult to see this as played out as anything other than a zero-sum game. For one side to win, the other has to lose – and to lose utterly.
Maybe that’s inevitable when we phrase our disagreements in terms of rights, rather than responsibilities.
Whatever the case, it’s hard to imagine a more discouraging time to be a lawyer who cares about the preservation of the principle of professional self-governance. This whole SOP saga has hardly made us poster children for the continuation of that privilege.
