The Sausage Man at the Corner of Queen and University

Sometimes things do change.

To much debate this week the Law Society of Upper Canada, which has brandished this name for over two centuries, voted to change the name to drop “Upper Canada.”

It might seem a strange controversy to outsiders, who might be puzzled with the attachment to an acronym that spells “El-Suck,” or alternatively the need to spend what will likely be hundreds of thousands of dollars in rebranding and administrative expenses. But it has been one of the issues that has deeply divided the legal community now for years.

It really started in 2012, when Thomas Vincent, a government lawyer, introduced a motion to change the name on the basis that it was elitist and offensive to his indigenous roots. The Star reported at the time,

“It doesn’t reflect who we are or where we are,” Vincent said of the name — citing public confusion in locating the society or understanding its mandate, and negative sentiments conjured about colonial history and “privileged white males.”

Vincent did not mobilize the masses. He did not arrive with friends and colleagues in tow. He simply appeared, willing to face what was invariably going to be an onslaught of opposition.

In listening to the incredibly spurious arguments advanced against the motion, I focused on one thing that they all seemed to ignore – the law society governs in the interest of the public, not the legal professions or our tradition. I also spoke to The Star,

“We’re a self-regulated profession and the law society is there to protect the public when lawyers aren’t doing what they’re supposed to be doing,” he said. By having a name that doesn’t clearly embody Ontario or the services provided, Ha-Redeye said, “the law society is not fully meeting its mandate.”

Part of the challenge was that a significant number of the lawyers in attendance were far removed from the public, both in their practices and in their personal lives. Then, as now, the response to the argument that members of the public would be confused by the name was that there was no evidence to confirm this position. I told the Law Times at the time,

“Typically [those] law society members are dealing with highly educated and sophisticated individuals and so they may not be aware of people in the general public who might be confused by the name,” says Ha-Redeye. “In this case, I would say the absence of information doesn’t lead to a conclusion and we should study the issue further to see if there truly is a problem and then find the best way to address it.”

In the end, only 3 lawyers voted in support of the motion. Past President of the Ontario Bar Association at the time, Lee Akazaki, was also willing to take that brave stand. We were not popular people in that room on that day.

And then there was silence on the issue. Until the Strategic Communications Steering Group met in February 2017, and hired an external consultant to look into issues around stakeholder and public engagement. The findings, perhaps surprisingly, demonstrated that half of the licensees actually though the name “Upper Canada” was inappropriate for the regulator.

More importantly, their survey of over a thousand people across the province formerly known as Upper Canada revealed,

Many Ontarians are confused about the name the Law Society of Upper Canada as most do not know what it represents or do not like the words Upper Canada.

Despite these findings, there was still a lively debate this week prior to the debate. One individual featured quite prominently in the debate, the “hypothetical man selling sausages at the corner of Queen St. and University Ave. and his customers.” The sausage man was invoked over, and over again, by proponents of both sides of the debate, as if he were the man on the Clapham omnibus of old.

My friend and colleague Melayna Williams once told me that sometimes if you want to give a person a voice, all you have to do is pass the microphone. So I decided to ask the sausage man last night, selling his wares at the corner in front of the law society.

Here’s what he had to say.

We find out our new name in November. I’ll be sure to let the sausage man know.

 

 

Comments

  1. Omar, this is a well written and intetesting blog. These are important thoughts and arguments. In my view the history of the LSUC name change debate is far more nuanced. Many thoughtful lawyers have raised the LSUC name change issue for decades, making the same important arguments as you and Tom.

    For my part I have raised the issue repeatedly since 1986, starting in law school. I also felt it was inappropriate that Upper Canada was in the title, making the Law Society sound like old boys and old girls clubs for private school grads.

    I also have suggested to students I taught at York University, Osgoode Hall law School and U of T from 1990 until 2009 that the LSUC sounded like a place you might go to have afternoon tea, not a regulatory, education and public liaison authority tasked with the vital role of coordinating the self regulation of lawyers and paralegals. I usually got a good laugh from the students who understood the joke and knew what the LSUC was. But in the undergrad classes many students would stare at me blankly.

    When the LSUC finally relented and agreed to oversee paralegals I speculated in The Globe and Mail that perhaps the LSUC ought to have a name that expressly indicated that it was the body that oversaw lawyers and paralegals, not a society of members.

    There have been three motions to change the name in recent decades. The issue was discussed internally – and with Law Society benchers – at the Ministry of Attorney General in the late 1980s and 1990s.

    When I took the Bar Ads in 1989 I raised the issue of the need to change the LSUC’s name to then Treasurer Alan Rock, later a federal Liberal Minister of Health and nos President at the University of Ottawa. Rock taught Civil Pro in the Bar Ads and was doing a presentation on the role of the LSUC after his lecture. I was ridiculed by Alan Rock for raising the issue and laughed at by the hundreds of future lawyers in the room. This confirmed by fears that most law students desperately wanted to be part of the club.

    When I ran for bencher in 2011 I campaigned to change the name to the Law Society of Ontario. My ads in the Law Times and elsewhere in support of my bencher campaign in 2011 focused on this issue. I supported Tom Vincent’s motion in 2012 but I live in Peterborough and did not make the trek.

    The first lay bencher appointed to the Law Society by former AG Ian Scott in 1986, June Callwood, often joked about changing the name in privately and in media interviews.

    As an aside I think that the article I wrote in the Law Times in May 2017 also played a role. The Law Times followed up on my article with an editorial and with an interview with Julian Falconer after my article was published. Did you read my article?

    Personally I don’t think it matters what forces resulted in the change. Collectively those advocating change kept pushing. The benchers made the right decision.

  2. David,

    Yes, you certainly contributed towards the push as well, with your 2011 Bencher run on this issue, and the 2017 piece you mention above.
    Thank you.

  3. I’m just glad that, apparently, the LSUC has addressed all other problems, so has the time and resources to devote to trivialities like branding. I know that makes me feel better.

    Truly this is a sign of a great and brilliantly run organization.

    Only one question: when it comes time to foot the bill for rebranding, are we going to do what we did with the LPP and stick the articling students with it? Because THAT would be cherry on this Sundae.

  4. Christopher Shultz

    Has anyone (else) considered that the Benches collectively do not have the authority to change the name? The Corporations Act requires a special resolution of the members to change the name of a special act corporation. Is not the attempt to change the name of the law society ultra vires the benchers?

  5. Omar, thank you for your post. The sausage man sums it up! This is a required first step in educating the public on who the Law Society is and what they do. We must always look at these issues through the public lens.

  6. @Christopher Shultz, the Law Society Act states as follows:

    Application of Corporations Act

    6. …

    Conflict

    (2) In the event of conflict between any provision of this Act and any provision of the Corporations Act, the provision of this Act prevails. R.S.O. 1990, c. L.8, s. 6 (2).

    The above may be reason to make the “attempt to change the name” by the benchers intra vires their authority.

  7. Come what may, and no matter the Matter or Thing, I will keep calling it the Law Society of Upper Canada, if only so I can plead the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 138:

    From and after the Union the Use of the Words “Upper Canada” instead of “Ontario,” or “Lower Canada” instead of “Quebec,” in any Deed, Writ, Process, Pleading, Document, Matter, or Thing shall not invalidate the same.

  8. To the Anonymous Lawyer:

    This provision in the Constitution Act was intended to facilitate the transition of terminology from “Upper Canada” to “Ontario.” It does not provide a substantive right that individuals may invoke to continue to use the older name where the new name has already been formally changed for all the parties involved. The headnote to this section refers to “As to errors in names.” In other words, “Upper Canada” would be the error, and Ontario would be the correction.

    There is a tad of irony that the constitution clearly intended to transition from the old name to the new, and yet the profession charged with understanding and implementing the law held on to the name for another 150 years.

    In any case, I encourage you to continue to make your payments for your license to the “Law Society of Upper Canada” even after the name change, as a preliminary matter or thing. Come what may will likely involve an administrative suspension for non-payment, for starters.

  9. Oh great! If LSUC is getting tired of referring to formerly-existing geographical and political entities, maybe it’ll also end that idiotic practice of opening some Convocations with a reference to the “traditional territory” of conquered “Native” groups.

    Oh wait… This was the same group of people that brought us the LPP…

  10. J Singh,

    The history and the context of land recognitions are entirely different than that of LSUC. These recognitions are now common place for all public spaces in recent years, not as something which has been done for quite some time.

    The reason for this is explained in this CBC article,

    A territorial or land acknowledgement is an act of reconciliation that involves making a statement recognizing the traditional territory of the Indigenous people who called the land home before the arrival of settlers, and in many cases still do call it home.

    “Its purpose is to recognize that we, as settlers and as people who are not part of First Nations or Indigenous groups, are here on their land,” said Alison Norman, a research adviser in the Ontario Ministry of Indigenous Relations and Reconciliation and a researcher at Trent University.

    Norman says land acknowledgements have become increasingly common in non-Indigenous spaces in the last few years, especially since the Truth and Reconciliation Commission (TRC) on residential schools released its 94 calls to action in 2015.

    “Many organizations, libraries, governments and school boards are all thinking about what we need to do to respond to the TRC,” she said. “It’s about thinking about what happened in the past and what changes can be made going forward in order to further the reconciliation process.”

    The pertinent finding of the TRC was,

    For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”

    The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and nancial obligations to Aboriginal people and gain control over their land and resources. If every Aboriginal person had been “absorbed into the body politic,” there would be no reserves, no Treaties, and no Aboriginal rights.

    One of our other notable traditions in Canada is a legacy of [cultural] genocide. The legal system, and members (as they were described then) of the Law Society of Upper Canada, were also complicit in these actions.

    Thom Harrison recently covered the name change debate, and touched on a number of fallacies used to oppose the change, including,


    5.  The Bar has led the emergence of Canada as a ‘progressive’ state.

    Misleading:  This proposition significantly understates the involvement of lawyers, individually and as a group, in events and activities that have sometimes been regressive, illiberal and elitist.

    Cultural genocide would seem to be one of the foremost of those events and activities.

    It’s for this reason that the TRC’s Calls to Action includes the following:

    We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history
    and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. is will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

    Training around the issues surrounding the name “Upper Canada,” the colonial legacy of our country and the role of the legal system in promoting colonialism, and the reason for land recognitions in the context of the TRC, all seem like good places to start for competency-based training.

    Thank you for providing the opportunity to demonstrate how sorely this is needed.

     

  11. For the dissenters of the name change, their argument for maintaining the name Upper Canada now having been solidly defeated, their new argument now boils down to:

    Why waste time on this name change? Look at all the other things the Law Society should be doing!

    As though their endless debate on an issue that’s so common sense isn’t the real cause of the time the Law Society is now wasting on this issue.

    If you’re so worried about the wasted time why not just vote in favour and get on with it? The real time waster is lawyers endlessly debating things that are so obvious that they are beyond debate.

    Unfortunately this issue will drag on for way longer than it should, while we slowly get replaced by apps, software, programmers and accountants, because in truth it’s adapt or die out there, whether we like it or not.

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