In the Law Times article “Diversity and inclusion fundamental to the OBA” (July 3, 2019), Law Society of Ontario Treasurer Malcolm Mercer said that the Statement of Principles “genuinely divides” people in the profession. The statement suggests that the legal and paralegal professions, numbering over 52,000 lawyers and 9000 paralegals, are aboil with conflict over the Statement. In fact, in 2017, the first year the Statement was required, Law Society statistics (evidence) show that 98% of lawyer members indicated in their annual reports that they have such a statement. The Ontario Bar Association, comprising more than 10,000 members, supports it.
Of the 16,156 votes cast in the 2019 Bencher election, a relatively small group of voters supported the slate of Bencher candidates running against the Statement of Principles; a record low voter turnout of 29.97% (comparing 6 Bencher elections from 1999 to 2019) ensured this slate disproportionate success in the election result.
Of the total voters (16,156), approximately 28%, or just 4523.55 of the total votes went to StopSOP candidates… this hardly seems to qualify as “genuinely divided”.
In our opinion, there are two reasons that, despite earning just 28%/4524 total votes, the StopSop Candidates were elected:
Participation Bias (also known as non-response bias)
This is a risk when participation is optional (i.e. elections). The results paint a very skewed picture, because those who tend to participate are the people with very strong opinions. The people who are content or less passionate about the issues at hand are less likely to respond. This phenomenon creates an inaccurate representation of the total sample.
On the basis of a measly 4524 votes, all the StopSOP candidates were voted in. This indicates that those passionate about removing the statement of principles voted, while those who were content with how things were, or who weren’t bothered by the Statement, did not vote.
Vote Splitting & The Spoiler Effect
This is a problem in plurality voting systems. When two or more candidates have similar ideologies, the voters split their votes between the two, creating a gap for a different candidate to win with less than half of the vote.
The StopSOP candidates earned a bencher position despite receiving only 28% of the total votes. This is possible because the remaining 72% of the votes were spread too thin among the non-StopSOP candidates, creating the gap for the StopSOP candidates to earn their position.
Following the day long debate at Convocation on June 27 about the future and form of the Statement of Principles, on September 11, 2019 there will be another debate at Convocation. Given the StopSOP allegations, reported in the Law Times article “StopSOP reveals why it rejected voluntary statement of principles” (June 28, 2019), it would be useful for the Benchers to bear in mind that the Law Society interprets the Statement of Principles requirement as calling on licensees to reflect on their professional context and how they will uphold and observe human rights law; that there is no requirement to make the Statement public; that the Law Society does not inspect the Statements of members and that there is no penalty for not advising the Society that a licensee has such a Statement.
It is also important to remember that the Supreme Court of Canada has said that, as a public actor, the “…Law Society has an overarching interest in protecting the values of equality and human rights in carrying out its functions…” and is entitled to interpret the public interest as being furthered by promoting a diverse bar. The Statement of Principles does not further the political agenda of the Society; nor does it promote “groupthink and virtue signalling” as alleged by StopSOP Bencher Gary Graham. It asks licensees to reflect on how they will uphold and observe human rights law, an obligation on all licensees under the Rules of Professional Conduct and the laws of Ontario and Canada. This modest requirement does not interfere in the least with the StopSOPers freedom of expression, as their activities over the past many months in opposing the Statement, often with few facts to back them up, have all too amply demonstrated.
The Law Society is accused of tyranny because of the Statement of Principles requirement. Those who attack the requirement are coy about whether they actually support the human rights codes of Ontario and Canada, or the goals of human rights generally. One of their apologists claims that they do, but the Stop SOP crowd, in general, has been silent on the subject. What is never mentioned is that even before the Statement of Principles was introduced, all licensees in Ontario were obliged by the Rules of Professional Conduct to obey the human rights codes, because of the special responsibility of the legal professions. Getting rid of the Statement would not alter that Rule, unless of course that Rule itself is next on the “reformers'” list of targets.
The Stop SOP movement comes at a time when the right is not only on the rise, but energized with a boldness that comes from having a US President who makes no secret of the fact that he sexually exploits women and thinks that Representatives of colour who are American-born should go “back” to the countries their parents or other ancestors emigrated from. This same President, before he took office, led the charge to “uncover” President Obama’s “foreign” birth. In Ontario, the Premier celebrates his down-home folksiness while slashing services to the disadvantaged and making a frontal attack on the vibrant multicultural City of Toronto.
This is, in other words, a time when human rights values are under sharp attack, and the decades-long struggle to enhance equity, inclusiveness and diversity inside and outside the legal profession is bogged down because of government resistance and certain leaders’ encouragement of individuals and civil society groups who oppose them.
This is a pivotal moment. If those opposed to human rights values and the building of a more inclusive society take over important institutions and make further inroads on government, the progress of the last forty or so years will be eroded, perhaps lost altogether. And we have seen from the antics of the Ford government this past year that governments animated by the beliefs of the far right are no strangers to tyrranical methods of rule. Not just this year, but the experience of the Harper years in Ottawa, when dissent was ruthlessly silenced, bear witness to this threat.
What, then, can the legal profession in Ontario do at this crucial time?
For the suggestions outlined below, we are indebted to Timothy Snyder, the Levin Professor of History at Yale University, whose book On Tyranny: Twenty Lessons from the Twentieth Century, was published in 2017. In the prologue to this work, Snyder observes, “Aristotle warned that inequality brought instability, while Plato believed that demagogues exploited free speech to install themselves as tyrants.” (9) These thinkers animated the debates in the U.S. about the form of governance it should adopt after throwing off what it saw as the tyranny of Great Britain, and, says Snyder, “Much of the succeeding political debate in the United States has concerned the problem of tyranny within American society: over slaves and women, for example.”
Snyder stresses the importance of the legal profession in resisting tyranny. Although he does not mention this specifically, his argument reinforces the underlying reason for having a self-regulating profession: self-regulation makes the profession more independent and thus more able to resist government tyranny than it would be if regulated by that very government. In a chapter headed, “Remember professional ethics,” Snyder maintains that “When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule of law state without lawyers, or to hold show trials without judges.” (38) He states, “If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power.” (40-41) A profession committed to human rights, and to the rule of law that supports human rights, can have an effective “ethical conversation” (40) with a government bent on reducing or eradicating human rights. The Supreme Court of Canada has recognized the interests of the Law Society in just this kind of conversation, supporting the LSO’s commitment to advancing equality and diversity and the close connection of these values with the integrity of the profession and the public interest.
A closely related precept advocated by Snyder is the idea of choosing an institution you care about and taking its side. (22) Licensees who are proud of the Law Society’s commitment to equity, diversity and inclusion can defend that commitment against the direct and indirect attacks of the Stop SOP crowd. Such a defence need not, and does not, involve arguing that any tactic is justified in advancing these goals. The Statement of Principles is not a device that violates one right in the service of another; the requirement to fashion a statement of principles, when analysed in the manner applicable to a Charter of Rights freedom of expression claim, is shown to be a modest incursion indeed on freedom of expression that can be justified under section 1. Some have even wondered whether the Statement of Principles, given that it is not required to be disclosed either to the regulator or any part of the public, can even be regarded as a “speech act” at all.
Rather than accept the Stop SOPs’ characterization of the Statement of Principles as tyranny, which is based on a distorted and mistaken understanding of its requirements, licensees can follow two other precepts advocated by Snyder. One is to believe in truth: “To abandon facts is to abandon freedom. If nothing is true, then no one can criticize power, because there is no basis upon which to do so. If nothing is true, then all is spectacle. The biggest wallet pays for the most blinding lights.” (65) Accordingly, Snyder urges that we “Investigate”: figure things out for yourself and take responsibility for what you communicate with others. (72). A more fulsome account of the requirements and effects of the Statement of Principles is included in the essay “Not Tyrrany: Reflections on the Law Society Statement of Principles” (Eberts, Ross, Otten – June 25, 2019). The essay is a necessary counterbalance to the overheated claims of the Stop SOPers.
The motion to abolish the Statement of Principles requirement will come before Convocation again on September 11, 2019. Until that issue has been resolved, either in Convocation or ultimately in the Courts through the lawsuit brought by Klippenstein and Alford, there is one further Snyder precept that is particularly important to the Law Society, and its present leadership. That is, “Do not obey in advance.” (17) Using the historical examples of the German elections of 1932, which permitted Hitler to form a government, and the Czech elections of 1946, where communists were victorious, Snyder warns against “heedless acts of conformity” with the program of the new government. He observes, “Because enough people in both cases voluntarily extended their services to the new leaders, Nazis and communists alike realized that they could move quickly toward a full regime change.” (18)
The opposition to the Statement of Principles alleges that promotion of human rights, equity, diversity and inclusion is an example of mission creep and untoward spending. If the Law Society were to fail to replace staff members performing equity functions if they retire or depart, or voluntarily cut back equity services, before the fate of the Statement of Principles had been conclusively determined, it would be engaging in the “anticipatory obedience” which Snyder calls “a political tragedy”. It is crucial that the Society maintain its commitment to human rights and not voluntarily give it up in the face of this noisy threat. By the same token, making the Statement of Principles voluntary, would also bow to the rhetoric of the Stop SOPers, instead of defending what the Society has done in the public interest.
There are many licensees in Ontario who do not wish to see the Law Society return to a boys’ club, tightly focussed on the regulation of real estate transactions and trust accounts, while overlooking the need to serve the broader, diverse public now in this province. The leadership of the Society should have confidence in the Society’s own extensive record of commitment to human rights, and resist the backward move urged upon it by the Stop SOPers in the name of freedom of expression. In countless ways, the freedom of expression and other rights of women and minority members of the professions would be impinged upon by galloping backward to the past and consolidating a profession in which we do not matter as much as the white male lawyer.
Mary Eberts, OC LSM
LSO Bencher 1995 – 1999
Heather Joy Ross, LLB
LSO Bencher 1995 – 2019
Nadine Otten, Student,
Schulich School of Law, Dalhousie University