Column

The Statement of Principles and Inter-Bubble Communication About Racism

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “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”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in the National Post, explanatory materials published by the Law Society said that the requirement was for a “personal valuing” of equality, diversity and inclusion. As well, the requirement contained an ambiguity as the word “promote” could be seen to require more than conduct.

Most of those who raised concern about the requirement sought to make clear that they did not take any issue with the policy goals of the requirement and that they accepted that it was fully appropriate that the Law Society advance equality, diversity and inclusion in the professions. Some of those who raised concern did so in terms and with language which suggested that more than free speech was in issue for them. But it is clear that there was a legitimate free speech issue in play and that, not surprisingly for lawyers, freedom of speech mattered.

There was a less common concern also raised which was that the requirement had the effect, or could be seen to have the effect, of adversely affecting proper client representation in matters involving human rights or harassment issues. Fully accepting that adverse effect on proper client representation would be inappropriate, the validity of this concern was much less obvious to me.

Law Society clarification, debate and decision

These concerns were addressed by the release of a Guide which clarified that the statement “need not include any statement of thought, belief or opinion” and that “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”. Curiously to me, there continued to be demands for a “conscientious objector” exception to the requirement. While I could understand concern as to whether the Guide was clear enough or authoritative, I continue to be baffled by the concept of conscientious objection to the requirement as clarified. That doesn’t mean that the continued demands were not genuinely made, but I don’t understand them.

Listening to the debate in Convocation, it was clear that the “free speech” issue was not the sole motivation for those supporting the motion seeking a “conscientious objector” exception. For some, the concern seemed to be that the requirement was little more than an irritant for practitioners being a mere “check the box” requirement. Indeed, there was an attempt to amend the motion by those who agreed with this perspective and wanted more to be done rather than less. My view was that the requirement may not be effective for some but that the requirement may be of some help addressing an important problem – and that surely requiring reflection on human rights obligations is no great burden.

A letter to the Middlesex Law Association

After Convocation decided not to adopt a “conscientious objector” exception, there was an interesting series of tweets on Twitter about an six page letter from a London Ontario lawyer published by the Middlesex Law Association. Most were tweets from those appalled by the letter. The letter was taken off the association’s website for a time and then replaced with a limited version of it (although the original is still accessible)[1].

It is not surprising that publication of this letter resulted in strong responses. The writer argues in his letter that (i) the evidence does not support the conclusion that there is systemic racism in the legal professions, (ii) the claim of systemic racism vilifies lawyers and paralegals by labelling them as racist, (iii) the 13 recommendations are a form of unauthorized social engineering, (iv) racism and bullying are just part of life and should be simply be endured and overcome by racialized licensees as others have done before them, (v) the true problem is economic class not race, (vi) white privilege is a ridiculous concept as it relates to white and racialized lawyers and (vii) racialized lawyers who join legal associations based on race or ethnic origin cannot complain that they are not treated equally. In conclusion, the author says that his response to “Diversity, in a Nutshell” is “Who cares about skin colour?” and that he will not draft a Statement of Principles because that is compelled thought and speech and because systemic racism in the legal professions has not been demonstrated.

Alice Woolley has written that she “actually welcome(s) the letter because it reveals the deeper debate, and allows the conversation to be about the real issue”. Proceeding from Alice’s observation, I think that it is worth exploring the perspective and the language used in the letter.

It is useful to recognize that express racism is socially unacceptable in Canada. The social norms of the legal professions do not permit arguments based on claims of racial superiority or inferiority even though some presumably hold those views. These social norms are valuable because they limit offensive behaviour and because social norms can influence cultural values over time. But one of the realities of social norms is that arguments and claims that are inconsistent with established norms are often expressed ways that disguise what is really being said.

The difficulty is in distinguishing between what is sometimes described as “impression management” and genuine attitudes. Examples of “impression management” are obvious. Anti-Semites try to obscure their true views with “evidentiary” denials of the Holocaust. The tropes “I’m not racist but …” and “Some of my best friends are X” are well worn. That racist wolves can dress as liberal sheep is clear.

The “free speech” aspect of the debate over the Statement of Principles illustrated the difficulty in sorting out what is “impression management” and what is true principled disagreement and debate. There was a genuine “free speech” issue to be addressed. Yet it also seemed that some opponents[2] of the Statement of Principles used the free speech argument to avoid saying what they really meant. It is challenging to have genuine good faith debate when one side of a debate legitimately suspects illicit motives on the part of some of the other side and those who are genuinely expressing their views on the other side of the debate fairly consider their views to be disrespected as a result.

The letter to the Middlesex Law Association clearly raises the problem of “impression management”. The core implicit claim is that racialized lawyers and paralegals do not in fact suffer disadvantage in the legal professions and that, if they do, they should suck it up and stop being crybabies. This implicit claim is obscured by a “lawyer-like” analysis of the “evidence” and the claim that the evidence is not persuasive. The writer appears seek to demonstrate “liberal” credentials by asserting that the true problem is economic class rather than racism and by claiming personal “colour-blindness”. As always, it is difficult to know the genuine attitude of the writer. But the letter certainly reads as an exercise in “impression management” in support of a denial that racism exists in the legal professions and, in any event, a denial that racism is worthy of being addressed.

It should not be necessary to have to explicitly say that racism exists, including in the legal professions. It should not be necessary to explicitly say that genuinely addressing racism in the legal professions is necessary. It should not be necessary to explicitly say that white lawyers and paralegals have relative advantages over racialized lawyers and paralegals because racism exists. But it is necessary to do so because “impression management” is a fact of life in discussions about race. The time has come for lawyers and paralegals to clearly acknowledge these truths. The Statement of Principles provides an opportunity to do so and is valuable if only for that reason.

All of this said and meant, I think that there are lessons to be learned from the letter whether one considers the letter to be an illicit exercise in “impression management” or a genuine but misguided attempt to wrestle with difficult issues. The point of the balance of this column is that the Statement of Principles and the other recommendations proceeded on the basis that achieving progress against racism requires cultural change and that achieving cultural change is not possible if one speaks only to those who don’t need to change.

Communication between bubbles

Starting with perspective, the website of the author discloses that he is an older white man in sole practice in London who was called to the bar in 1976. Our society is much changed in the forty plus years that the author has been in practice. The social changes over the decades have not been equally distributed. Toronto, for example, has become particularly diverse as compared to, well, London. Also, it is simply not possible for older white men to truly know the experiences of those who have experienced discrimination or disadvantage on the basis of race, ethnicity or gender. This is not to castigate older white men (of which I am one) but simply to observe that most discrimination is not obvious and is likely not appreciable by those who do not experience it. One of the lessons that I learned as a member of the Law Society working group is that it is important to hear those who are not part of the majority. This is not to say that it is necessary to take everything that is said at face value but it is necessary to listen with an open and sympathetic mind. For those who are prepared to listen, the qualitative evidence of discrimination and disadvantage developed in the working group should be compelling. It should no longer be controversial that we human beings tend to treat those who we consider different than ourselves differently, whether intentionally or unintentionally.[3]

Turning to the language used in the letter, I think that there are important lessons to be learned from the letter if equality, diversity and inclusion are to be better advanced. The author of the letter expresses anger at some of the language used by the Law Society working group. He writes “It is extraordinary to allege that racism is ‘systemic’ in the legal professions in Ontario and an insult to the nonracialized lawyers and paralegals practising in Ontario” and “it is difficult to understand how the Law Society can justify vilifying most of the 58,000 lawyers and paralegals in Ontario by labelling them as racist”. The author also writes “The spectre of “white privilege” is referred to by one of the persons consulted by the Working Group. The concept is ridiculous.”

The author apparently understands that the assertion that there is “systemic racism” in the legal professions to mean that most lawyers and paralegals intentionally discriminate on the basis of race. Similarly, the author apparently understands the claim of “white privilege” is a claim of intentional subjugation of racialized people by white people. Assuming that the author is genuine in these understandings and that he is well intentioned, his reaction is understandable.

But the concept of systemic discrimination (or systemic racism where race is the particular focus) is not about individual intentional discrimination. As the Ontario Human Rights Commission puts it “Racial discrimination can result from individual behaviour as well as because of the unintended and often unconscious consequences of a discriminatory system. This is known as systemic discrimination.”

The phrase “white privilege” is not a legal phrase like “systemic discrimination”. There are no doubt different meanings given to the phrase by different writers and over time. But (as I understand it) the phrase does not necessarily connote intentional impropriety. Rather, “white privilege” is logically the equivalent of “non-white disadvantage”. In a sense, “systemic racism” and “white privilege” address the same thing from different perspectives. Still, it seems easier to accept that others are unfairly disadvantaged than to accept that one is unfairly advantaged.

So one interpretation of the author’s response to assertion of “white privilege” and “systemic racism” is that he is ignorant of what is actually being said – and that it is presumptuous to for him to castigate as he does without spending time to actually understand what is being said. Another interpretation is that the author actually denies that there is disadvantage as a result of race in society rather than just being offended by a wrongly perceived claim of wide spread intentional racism. And of course, these parts of the letter may simply be an exercise in “impression management”.

But it may not be wrong to perceive that there is intended to be some sting in the language of “white privilege” and perhaps even in the language of “systemic racism”. Naturally, those who spend time and thought addressing unfair disadvantage are more likely to have suffered disadvantage themselves or, at least, to be sympathetic to those who have. It would be too much to always expect the language of a Mandela or of a Martin Luther King, or clinical academic language. The unfairness and wrongness of racial discrimination will out in the language used. And no doubt some racism is intentional and the failure to address unintentional racism is itself an ethical failure. Language choices fairly reflect these things. Those like me who are in a position of advantage are not well placed to criticize or to complain.

But the problem is that we are mostly in bubbles. Our perspectives and our language are different in our respective bubbles. This matters because culture change requires that communication between the bubbles. Those who have suffered unfair discrimination need no persuasion nor reminder of that reality. It is those who have advantage from whom assistance is sought. And those who are actually racist will not change. The goal must be to better enlist those who already want to help and to engage with those who have not thought much about these things but are people of good will.

It is not possible to know which category our author is in fact. While it is tempting and may be right to assume the worst, recognizing differing perspective and use of language opens the possibility that we can be too quick to dismiss the possibility that someone prepared to spend time and thought writing about this issue may want to do the right thing but be angered by what feels to be unfair castigation. In any event, it actually doesn’t matter what the right answer is for any specific person. What matters is failing to enlist the support of those whose support is possible.

On that note, I recently attended an educational session that addressed diversity and inclusion. A presentation entitled How microaggressions are like mosquito bites • Same Difference[4] was shown. The presentation is masterful and is well worth listening to. With grace and good humour, it allows the perspective of the disadvantaged to be better appreciated by the advantaged.

Going forward

To return to the Statement of Principles controversy, there seems to be broad consensus that the equality, diversity and inclusion ought to be advanced by the legal professions. No one who I have heard argues that there should be any compelled speech. My view is that the ambiguity has been removed about that. What is now needed is to return to the beginning which was to enlist the help of those who already share the goal and to encourage those who might be persuaded to share the goal to help as well.

_________________________

[1] See the December/January Middlesex Law Association newsletter at page 30. Presumably in an attempt to somewhat distance the Association from contents of the letter, the index to the revised newsletter now lists the letter under “Opinion and Letters to the Editor”.

[2] Particularly the more hyperbolic ones.

[3] Robert Sapolsky has recently published Behave: The Biology of Humans at our Best and Worst. Chapter Eleven entitled “Us versus Them” which is a compelling discussion of “The Strength of Us/Them” and the reality that we humans are programmed to react differently to those with whom we identify and those who we see as “others”.

[4] The term “microaggression” is another term that seems to me to risk loss in inter-bubble translation highlighting as it does malignant intentionality rather than adverse impact. I say this at risk of being thought to demonstrate “white fragility” which is another phrase that bears similar risks.

Comments

  1. Malcolm,

    Unfortunately, the problem with the guide, is that it does not address the principle concern raised by opponents of this regime,namely that lawyers don’t ACTUALLY have an obligation to promote equality, diversity and inclusion generally. This is a concern that I’ve raised with benchers, and which dozens of fellow lawyers have raised with me, and one that the Guide does exactly nothing to alleviate.

    It certainly does say that: “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”, what it does not do is actually cite those obligations. I can’t speak for the usual legal practice of the LSUC, but generally in my legal writing when I assert that a legal obligation is based on some existing legal provision, I cite the authority for that obligation.

    To be fair, the guide does cite provisions of the Rules. Somewhat less helpfully, those provisions do not impose (or purport to impose or have ever been interpreted as imposing) any obligation to promote equality, diversity or inclusion generally. One, Section 6.3.1 of the Rules, of course, imposes a duty not to discriminate (which duty has to be interpreted broadly in a manner consistent with existing human rights law). But, as the LSUC’s own legal counsel observed in the legal “opinion” prepared for the LSUC, “promoting” equality goes well beyond non-discrimination. Nor does it provide any authority that might suggest that the Rules could be interpreted in that manner. The other, section 2.1 – 2, deals with the obligations of lawyers to the profession – again, it says nothing about a duty to promote equality, diversity and inclusion generally, and no authority is provided to support the interpretation that it does so.

    To be blunt, the interpretation put forward in the guide is not only not supported by the Rules it cites, in the case of section 6.3.1, it’s inconsistent with the interpretation of that rule contained in the legal opinion obtained and relied upon by the LSUC. Again, I can’t speak for the practice of the LSUC, but when I tell people that they have a legal obligation to do something, I cite express legal authority for that proposition. I’m, frankly, embarrassed to be a member of an organization which would publish such a document (and while that was clearly a slap-dash job intended to quell unrest among the members, I note that NOTHING that has come out of the LSUC on this point or from its Benchers have provided any more substantive analysis).

    Moreover, not only does the Guide fail to provide any legal basis or authority for the existence of an obligation to “promote equality, diversity and inclusion generally” it also fails to provide any authority for the interpretation of that obligation it sets out. Which, I suppose, is not surprising, since you can’t authoritatively interpret a non-existent obligation. I mean, really, are we expected to rely on a two page “guide” authored by some unknown person, which provides an unreasoned interpretation of the purported obligation to promote equality, diversity and inclusion generally which isn`t found anywhere in the Rules or applicable law? I certainly would never allow one of my clients to rely on such a document.

    Indeed, this is the most frustrating part of this process – had the LSUC actually complied with the recommendation of the committee and amended the Rules to impose an obligation to promote equality, diversity and inclusion generally, it could have also drafted an authoritative commentary to that rule – as it does with section 6.3.1. (which, tellingly, says nothing about the existence of an obligation to promote equality, diversity and inclusion generally). People who object to that purported obligation would at least have some concrete language and interpretation they could debate, and their concerns, to the extent valid, could be reflected in authoritative language in the commentary. Instead we’re presented with this nebulous non-existent obligation, which apparently both reflects our existing obligations but also “reinforces” them (note the inconsistency). Indeed, a cynic might suggest that the nebulousness of the purported obligation is part of its merit – it allows the LSUC to tell some members that it is taking proactive actions to promote equality, diversity and inclusion, while telling other members that, what’s the big deal, nothing’s really changing. That defenders of the regime (including Benchers) have made both those arguments suggest that the cynic would be right.

    It’s hard to believe that an organization with a duty to promote the rule of law would proceed in such a ham-handed and inept manner. If you want members to acknowledge an obligation to promote “equality, diversity and inclusion generally”, amend the Rules to expressly impose such an obligation, provide a detailed and express commentary describing the ambit of that obligation and its limits – the way that real regulators regulate (heck, the way the LSUC handles ALL the other professional obligations it imposes on its members). This is amateur hour, it’s no wonder it’s kicked up so much opposition within the profession.

  2. Malcolm,

    You have no idea how much I appreciate that you took the time to write this column, and I know many of my colleagues feel the same.

    You bring enormous amount of respect and credibility to the issue, which especially in this context is needed given the reactions that others of us have received.

  3. In the guide, what does “generally” mean?

    Re: “These concerns were addressed by the release of a Guide which clarified that the statement “need not include any statement of thought, belief or opinion” and that “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”.”

    If it said e.g. “reference to the obligation to promote equality, diversity and inclusion only refers to existing legal and professional obligations” that would be a clarification. But “generally” does not mean “only”, it implies that there are additional unspecified obligations which is one of the bases of some objections. Amend the Rules of Professional Conduct so people know and understand what the additional obligations are, and there’d be a lot less objection.

  4. I’m struck by the difference between the three comments above. I would urge Carl and David to reflect on Omar’s comment. Omar is an active, thoughtful and constructive lawyer. He was made significant contributions to the profession. As his comment makes clear, some of the attacks which have been made on the Statement of Principles have caused further suffering for those who face discrimination in their personal and professional lives.

    There is a difference between well intentioned, constructive criticism and contemptuous attacks. The difference may not be intended just as discrimination may not be intended but the effect is very real. The effective message of contemptuous attack is to devalue the goal of equality, diversity and inclusion. Whether that is the intended effect is left uncertain.

    Carl’s lengthy comment boils down to the complaint that the Guide doesn’t demonstrate that there is an extant obligation to “promote equality, diversity and inclusion generally”. That is fair enough. The Guide sought to do something else which was to make clear that that the requirement did not compel speech and did not establish any new conduct obligation. I accept that there would be value in better helping lawyers and professionals to understand existing obligations and there may be legitimate differences of opinion as to those obligations and how to express them. But I have real difficulty with the claims of impropriety and the contemptuous statements that Carl makes in his comment. In my view, the Guide was a legitimate attempt to address legitimate concerns. It was neither intended to be a reasoned legal opinion nor legislation.

    David’s short comment asks what “generally” means in the phrase “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”. David criticizes the drafting saying that “generally” suggests some intended restriction. Looking at the one sentence that Davis quotes, I can see why he might think this although I read the drafting intent be to indicate a general reference to obligations from more than one source rather than be some limitation. But surely the statement “The content of the Statement of Principles does not create or derogate from, but rather reflects, professional obligations” is plain enough.

    While I think it important to respond to the substance of Carl and David’s comments, I would ask them and others to reflect to reflect on what Omar has said. Our racialized colleagues are real people who face real challenges who need our help. Are you prepared to help or just to criticize?

  5. Malcolm,

    I would make the observation that had the statement of principles and the roll-out of the purported obligation to “promote equality, diversity and inclusion” been properly handled by the law society of upper Canada, many of the “contemptuous” criticisms of the proposal would not have arisen. If the Law Society conducts its affairs in a bumbling, insulting and incompetent manner, it shouldn’t be surprised that it is treated with contempt by the people it regulates.

    And, I note, that contempt is fed by the fact that the LSUC has abjectly failed to respond to substantive concerns about the proposal – including the, rather fundamental, concern that the purported obligation we’re supposed to acknowledge doesn’t exist. Indeed, I’ve raise those substantive concerns with numerous LSUC employees and benchers and have received zero responses (well, other than a response from one bencher who was equally critical on the ground that the entire exercise was a window dressing that accomplished nothing). Think about that, how hard would it be to say “See section X.X. of the Rules of Professional Conduct and the Commentary thereto” (well, I suppose it’s a lot harder if section X.X doesn’t exist). Nor has the materials or programs put on by the LSUC substantively addressed those concerns (indeed, the one presentation I attended in November involved an LSUC employee reading off the webpage rather than answering questions from the audience). I can think of no other regulatory body that I deal with in my practice that is so contemptuous of the people that it regulates that it fails to respond to their questions. And you wonder why I hold the people responsible for effecting this proposal in contempt?

    Indeed, consider your response, saying that the Guide wasn’t intended as a a reasoned legal opionion or legislation. Fine, but that’s not the criticism, the criticism is that the Guide doesn’t identify the source of the purported obligation – but cites two provisions of the Rules which clearly do not impose such an obligation (and which, I note, have never been interpreted as doing so). You’ll forgive me if I come away from that exercise thinking the LSUC is trying to put one over on me. I was clearly not alone.

    Finally, I find the tone of proponents of the scheme – and you response illustrates it deftly – to be profoundly insulting. As if substantive criticism of poorly executed scheme, which (in)arguably has little more than symbolic effect, someone implies a contempt for our racialized colleagues. How condescending, as if racialized lawyers aren’t my friends and colleagues (and don’t share my concerns). I would put my track record as a mentor for racialized lawyers up against yours and don’t think I’d acquit myself poorly. Perhaps if you (and the criticism would apply equally to Omar, since he and I have had this debate here before, as well as numerous other benchers and law society bureaucrats) actually addressed the substantive concerns – perhaps actually cited a source for the purported obligation to promote equality, diversity and inclusion generally – rather than dismissing the critics of this proposal for being inadequately woke, you might win over critics like me (and many of the people I’ve spoken with). But you don’t, and then express bewilderment that your critics are contemptuous.

  6. Criticism can be – and in my case is intended to be – constructive. Unlike the response that was made.

    I’d be much happier with more detailed requirements in the Rules, rather than this vagueness. I note also that the response above presumes I’m not racialized – whether I am or not, there are critics of this requirement who are, including most notably an outspoken bencher from Ottawa.

  7. David: I accept what you say. I intended to constructively respond to your point.

    Carl: There is always a choice whether to be contemptuous. That choice affects the quality and nature of the subject discussion.

  8. Being a person who is multiracial which means identifying as “Other” on the forms that attempt to categorize and classify; and a person who has had every derogatory name hurled at them because well the good folks just can’t seem to figure out just what I am. It seems to me, in not just this debate, but in all the other debates that are going on that “equality and diversity” is now a scapegoat. A scapegoat in the sense that everything centres on you’re either for or against equality and diversity when in many cases the debates are really about other underlying issues — either issues that the debaters are blind to or so caught up in the heat of opposing each other that they can’t see the forest for the trees and one thing leads to another and descend into incivility. Is there no room for compromise or simply acknowledgment that perhaps a policy or a law may need to be improved upon or needs further clarity? Is there no grey area or is there only right or wrong?

  9. I did find odd that the Guide did not cite the portions of the Rules specifically cited by the Working Group in making its Recommendation 3 that includes the Statement of Principles requirement. Namely, with respect to lawyers, Section 4.1 of the Commentary to Rule 2.1-1. I wouldn’t necessarily argue that that section imposes a positive obligation coterminous with that identified in the Recommendation, but I felt it was odd that it was left out of the Guide.

    I find it helpful in illustrating the nature of the obligations identified.

    The relevant commentary on the Recommendations starts at page 28 of the Working Group’s report ( http://www.lsuc.on.ca/uploadedFiles/Equity_and_Diversity/Members/Challenges_for_Racialized_Licensees/Working-Together-for-Change-Strategies-to-Address-Issues-of-Systemic-Racism-in-the-Legal-Professions-Final-Report.pdf) and that section is identified at page 29-30.

    I realize that a mere appeal to honour and integrity (the core obligations imposed by Rule 2.1-1) won’t be enough to satisfy those who clamour for the citation of a specific requirement to “promote equity, diversity and inclusion generally” in these particular instances. My own view is that it uncontroversially flows from those duties to act with honour and integrity; I think lawyers can (and clearly, in my mind, do) reasonably differ in this regard.

    One last thing. I note that the Working Group that created this recommendation was packed full of people I respect, and who in my experience have respect for lawyers, the law, and the practice of law in this province. That they would be engaged in “putting one over” on us, I find discredible.

  10. A very important, thoughtful and solid analysis of the issue. Malcolm Mercer’s constructive approach to this divisive issue in the profession is a must read for all of our colleagues as well as those who are interested in this issue. It is a reminded that notwithstanding how well-intentioned the architects of the Statement of Principles were, given the nature of the issue extra care should have been invested in ensuring clarity.

  11. Hi Verna – I appreciate your comment and think that what was done is consistent with your points.

    The Guide was intended to address a number of stated concerns. A principle concern was the compelled speech point. That concern was quite fair in my view given some of what was on the Law Society website. The Guide directly said that no statement “need not include any statement of thought, belief or opinion” to address that concern.

    There was concern about the word “promote”. The Guide clarified that the idea was “advance” rather than “market”/”advertise”. The later is a secondary meaning according to the OED and so the Guide sought to address an ambiguity.

    There was concern about the “obligation” described in the Requirement and whether the Recommendation purported to create that obligation. The Guide addressed this by making clear that no such obligation was created by the Guide but rather the Recommendation was intended to reflect existing obligations. As Craig says, reasonable people can disagree whether existing obligations were accurately summarized In addition to Craig’s comments, I would note the obligation from the Human Rights Code to ensure that systemic discrimination is avoided which I think amounts to the stated obligation. But I doubt that the Guide could have resolved this difference of opinion and it is better go to the sources of the obligations should there be a need rather than an interpretation or summarization of them in the Recommendation or in the Guide.

    So I would say to Verna that there have been well-intentioned attempts to find better clarity.

    I would also like to note that the point of my column was to say that we need to be able to talk with each other and that some of those who feel and express anger/contempt may be doing so because they feel that their integrity is under attack. That is corrosive. But so too is the tone of a number of the attacks on the EDI project.

    My hope is that we can move on to focus on the problems that I hope are generally accepted to be real and that undue focus not be spent on criticism. Accepting David’s point that it is important to be open to constructive criticism, I think it is most important for our profession to accept that there is injustice and seek to address it.

  12. Thanks for providing these further explanations, Malcolm.

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