In the last Law Society of Ontario bencher election, the StopSOP Slate ("the Slate") ran on a platform of repealing the SOP, reducing the size and budget of the Law Society, and bringing it back to its core mandate. You elected all 22 of our lawyer candidates. Unfortunately, with 53 elected or appointed benchers at Convocation, that was not a majority.
The Slate has accomplished the primary task you sent us to do: to get rid of the mandatory Statement of Principles that required legal professionals to promote particular values in all aspects of our lives, as decreed and defined by our regulator.
But the job is not finished. Indeed, after just over a year of working inside the Law Society, it has become clear that we are squarely in the midst of a culture war, and that we will face resistance to our remaining efforts at every turn.
We want to reduce your fees and get the Law Society out of the costly and divisive business of social engineering, identity politics, international relations, and many more unnecessary programs and expenditures. We are battling mightily in the trenches on your behalf, and hope you will stay engaged and join us in the next election.
Read on for a sample of battles won, practically won, lost, and ongoing, in the Slate's Year-in-Review.
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A Nasty Campaign and a Nastier Welcome to Convocation
StopSOP's campaign platform was bold and courageous. At its core, it challenged the legal establishment and the increasingly stifling climate of political correctness that had invaded our regulator. Its success sent shockwaves through Osgoode Hall, as incumbents were knocked out in record numbers, and established candidates, including the then incumbent Treasurer, found themselves at the bottom of the list.
On May 23, 2019, Treasurer Malcolm Mercer acknowledged the change that had taken hold at the Law Society:
"I would like to publicly acknowledge the obvious elephant in the room following the election. The majority of elected lawyer benchers successfully campaigned against the statement of principle requirement previously adopted by Convocation. This is an important question."
No sooner had the profession spoken when the Slate was attacked in the media by establishment voices. Unsuccessful incumbent bencher Michael Lerner was quoted in the Toronto Sunas follows:
“The convocation has 28 new benchers (directors), 22 of which were on a slate that was being promoted by a group of right-wing, fundamentalist religious zealots who, in my words, are one-trick ponies.”
This very public broadside followed the particularly nasty bencher election campaign that saw the members of the Slate defamed with the usual epithets and rhetoric hurled by certain vocal members of the profession. Nonetheless, we understand that the flak is greatest over the target, and enjoy working together to correct the course at the Law Society of Ontario. Back to Top
Treasurer Travails - First Round
CHI-KUN SHI'S HISTORIC RUN FOR TREASURER
The Slate announced in May 2019 the candidacy of one of their own, Ms. Chi-Kun Shi, for Treasurer to lead Convocation. Chi-Kun, a gracious and accomplished lawyer and defender of civil liberties, would have been the first female visible minority Treasurer in the 200 year history of the Law Society of Ontario, if she had been elected.
As we came to expect, appalling character assassination ensued in the pages of the Globe and Mail, as establishment bencher and criminal defence lawyer Jonathan Rosenthal and others cast aspersions on Chi-Kun based on clients she had represented in her legal practice.
On June 26, 2019, the Assistant Dean of Osgoode Hall Law School Trevor Farrow jumped in the mud along with activist Anthony Morgan in attempting to derail Chi-Kun’s historic bid for Treasurer. Commenting on Chi-Kun Shi as the first female visible minority Treasurer:
“Electing her to lead the lawyers’ governing body," Morgan added, “would undermine our ability to show young people that we are an inclusive and equitable legal profession.”
Chi-Kun was defeated in her bid for Treasurer but handled it with poise and grace by immediately moving that Malcolm Mercer’s election be made unanimous.
Despite loud calls made for "inclusion" and "diversity", the establishment benchers made it quite clear that diversity is inclusive only to minorities who are ideologically aligned. Back to Top
First Order of Business - Repealing the SOP
Upon being elected, the Slate immediately moved a motion for the June 27th, 2019 Convocation to repeal the compelled Statement of Principles.
The attacks levelled against the Slate ramped up through the month of June, including an op-ed in the Globe and Mail, written by a sitting establishment bencher, publicly opining that the Slate was motivated by racist sentiments.
Retired Court of Appeal Justice Harry LaForme piled on, and in a speech at the Law Society, questioned if those who opposed compelled speech were actually motivated by “principles from a darker place.”
June 27th Convocation saw nine (9) hours of debate, and all manner of procedural wrangling by the established order, in an effort to preserve the status quo and the Statement of Principles.
It began in the wee hours of the morning before Convocation when the Benchers were sent a Notice of Motion at 1 a.m. alleging conflicts of interest against two members of the Slate, Dr. Ryan Alford and Murray Klippenstein (on the basis they were also involved as parties in the Canadian Constitution Foundation's public interest Charter application against the SOP).
Another competing motion, creatively labelled as an "amendment" and seeking to keep the Statement of Principles on life support, was launched by the establishment. Ultimately, the day concluded in a procedural morass and the matter was adjourned to September by the majority (non-Slate) benchers.
After much hard work, persistence, lobbying, and parrying of procedural gambits, and after efforts originally begun in the fall of 2017 by just a small handful of concerned lawyers, the Slate finally succeeded in repealing the Statement of Principles at Convocation on September 11, 2019.
This was job number one, and your Slate got it done. Back to Top
Fiscal & Regulatory Restraint
Between 2016 and 2019, the previous benchers were presented with, and approved, budgets that increased from $108.4 million to a whopping $137 million (on par with some large municipalities).
What the Law Society seems to have lost sight of over the years is that the annual dues levied by it on the membership are a large barrier to the practice of law. Dues for lawyers increased under the previous Bench from $1,866.00 in 2015 to over $2,201.00 in 2019 ($996.00 to $1,115.00 for Paralegals).
The budgeting process at the Law Society was already under way by the time of the bencher election at the end of April 2019. Despite arriving later in the process, the Slate successfully championed the cause of fiscal restraint and dues relief to the profession.
During the 2020 budget process, the Slate identified that more money—some $14 million—was being collected than was being spent. The Law Society typically sets a budget which calls for certain excess fund balances to offset anticipated shortfalls in predicted operations. However, when the actual numbers are tabulated through the year, the need for transfers from the fund balances is either reduced or obviated. Such arrangements allow the Society to suggest that it operated “under budget”. The entire process is based on having excess funds available, rather than running a leaner operation.
This has been noted as an impediment to tight management of the operating budget and is under review by the Slate. The 2020 pandemic has already challenged many underlying assumptions at the LSO. The Slate continues to advocate for reform and for closer scrutiny of operations.
This close scrutiny by the Slate led to a tighter budget for 2020 being set, and a reduction in fees to the profession for the first time in five years. The annual fee payable by lawyers is down by $135.00, from $2,201 in 2019 to $2,066 in 2020. This is a decrease of 6.1 per cent. Paralegal fees were reduced by $109.00.
Access to justice, and the ability of those at the lowest financial rungs of the profession to serve the public, is under threat not only from financial burdens, but regulatory burdens imposed by the Law Society.
As a result of the Slate's election, the Treasurer was evidently forced to address the new tenor on regulatory issues at Convocation, and did so by striking a reduced number of committees. Further, Convocation created two new working groups focused on burden reduction, and cost/benefit analysis of the Law Society’s programming.
The first was the Proportionate Regulation Task Force (PRTF). As Malcolm Mercer stated at the time:
"The Law Society Act requires that we ensure that Law Society regulation is proportionate to our regulatory objectives. This task force will focus on Law Society regulation from the perspective of lawyers and paralegals who we regulate, looking at what is required of them. One might call this burden reduction, but I think looking at proportionality and regulatory objectives is a better way of framing this work. The second task force is the Program Review Task Force. The Law Society spends time and money, money primarily reflected in licensing fees, on a range of programs. It is valuable from time to time to ask the fundamental question, are our programs justified today, given their objectives and their costs."
Yet, the former Treasurer expressly excluded the social engineering DIE initiatives (Diversity, Inclusion & Equity) from the scope of the PRTF. That exclusion is being challenged by the Slate, on the basis that these programs are costly, divisive and should not be privileged by being set apart to avoid scrutiny. (Speaking of regulatory burdens, the intrusive and insulting questions on your Annual Report are also on the Slate's 'to do' list.)
Strategic planning by Convocation for the next four years was also completed in September 2019, with obvious acknowledgment of the influence of the Slate and its voters, including an overarching objective of regulatory and fiscal burden relief to the profession and getting the Law Society back to its core mandate.
As we have learned over the past year, the Law Society operates in an opaque manner. Much of its deliberative function is conducted behind closed doors within the confidentiality of the committee structure.
What is presented and commented on at Convocation is therefore largely a pre-ordained outcome of the committees, with extensive use of Consent Agendas which are not debated on the floor of Convocation. Minority reports from committees are not utilized or publicized.
The result is that the professions don’t have any insight into the nature of the debate on key issues or individual bencher positions and thinking on issues, and therefore have no idea how the decisions made behind closed doors will affect their career or membership in the society.
Recently Convocation has begun to broadcast its proceedings. However, once again, the real deliberative work is being done at committees. The pageantry of Convocation reveals very little other than voting.
The Slate supports a general loosening of the restrictions on transparency, including removing the blanket confidentiality on the committee process. We have also been very vocal at the committee level, despite being in a minority position on most committees (through careful assignment by the Treasurer), and have ensured that Slate benchers (even those not appointed to the committee in question) are in attendance at all committee meetings. This is frowned upon by the establishment.
One of the committees on which we have had a positive impact is the Compensation Fund Committee.
The Compensation Fund is a legislated trust fund operated by the Law Society pursuant to the Law Society Act (the "Act"). Each year, the Law Society levies and collects a portion of the annual dues (the Comp Fund Levy) required by the Act to be deposited into the Compensation Fund. Clients who have been the victim of fraud committed by a lawyer are the beneficiaries of the Comp Fund and can make a claim to the Fund for compensation.
The Act requires that all Comp Fund Levies be devoted to the payment of the claims of beneficiaries except for "the costs of its administration...necessarily incidental to the administration of the Fund."
It came to the attention of the Slate that in most years a significant portion of those Comp Fund levies was actually redirected to pay operating expenses of the Law Society. The amount re-directed varied from year to year, but approximated $8 million dollars annually going back to the mid-1990’s.
While the practice had stopped in 2017, it was never formally confirmed as being a prohibited use of funds.
The Slate was rebuffed in its efforts to end permanently this practice and, accordingly, in December 2019, ten Slate members brought forward a Notice of Special Convocation to ensure Convocation would actually deal with the matter (calling a Special Convocation may be done by ten benchers, and is one of the most effective tools the Slate can use within the existing rules to effect change from a minority position).
The establishment vocally objected. Benchers and former treasurers took turns admonishing members of the Slate for bringing the issue forward, for daring to demand that the practice stop, and for utilizing the process of calling a Special Convocation.
This tenor spilled into the deliberations that followed. The Slate's initiative was ultimately brought by the Audit and Finance Committee to the February Convocation with a motion to prohibit the use of funds levied for the Compensation Fund for purposes other than contributing to the Comp Fund. Despite the invective directed at the Slate during the deliberative process, with our tenacity and determination, the Slate'sinitiative passed unanimously.
Slate bencher Lubomir Poliacik identified, studied and raised the Compensation Fund issue in the summer of 2019. The intention to address it was announced in November 2019. The Notice of Special Convocation was brought forward in December 2019 and the unanimous motion prohibiting the behaviour was passed in February 2020. It took the better part of a year to address and rectify what amounts to a clear lack of transparency and accountability, amid deep resistance but ultimate unanimity when brought to the public floor of Convocation. Back to Top
Attacks and a Fighting Spirit
The forces of political correctness, members of the downtown Toronto progressive political establishment, and dominant leftist ideologues do not appreciate being challenged by other members of the profession, so the activities and members of the Slate remain their targets.
During the election, these forces organized against the Slate in a formal way with the creation of the Demand Inclusion collective. "Demand Inclusion" has continued in its mission to marginalize the Slate and defeat it in the next bencher election by electing its own slate of candidates. Demand Inclusion seeks to restore the established (far-left) order that had been growing unchecked at the Law Society, and return the society to the path of ballooning budgets, social programs, and heavy-handed regulation of members. It wants to reimpose a mandated ideological loyalty oath akin to the Statement of Principles.
Demand Inclusion has among its membership several establishment benchers and former benchers, non-bencher members of Law Society standing committees, and a sizeable cohort of Big Law. They represent the "included" members of the profession, who subscribe to progressive orthodoxy, which means regularly joining together in social media mobs or otherwise to dismiss the Slate as nothing more than deplorables and dinosaurs.
A Benchers' Code of Conduct or a Benchers' Code of Imposed Silence?
Demand Inclusion has attacked the Slate through social media mobbing, defamation, and now the weaponization of the Bencher Code of Conduct.
The Bencher Code of Conduct was approved in principle in the dying days of the last Convocation, when the StopSOP campaign was gaining traction. Convocation, recognizing that the Code could be brought into force only by a duly passed by-law, directed its legal counsel to prepare a Code by-law for its review and approval, with or without amendments. Yet, no such by-law has ever been presented to Convocation for approval, making the Code of Conduct illegitimate.
The Code unduly restricts the discretion and judgment of benchers, and provides a procedure for complaints, investigations, and discipline of benchers. The Code fetters the ability of benchers to be able to govern in the public interest.
Those most keenly aware of the restrictive intent of the Code are Demand Inclusion and their supporters in the establishment. Complaints against Slate benchers from amongst the Demand Inclusion Collective are regularly threatened and initiated. Demand Inclusion desires to control and restrict the expression rights of benchers.
Notwithstanding the lack of by-law approval, the former Treasurer proceeded to enforce the Code as if duly passed. In fact, the former Treasurer investigated a Slate bencher and found the bencher guilty of violating the Code, imposing a sanction for his comments about the Law Society. Two other Slate benchers are also currently being investigated under the Code. It seems that there is a double standard at play: a blind eye is turned while the establishment attacks the Slate members directly online and in the print media, while Slate benchers are called onto the carpet by the Treasurer through the use of the illegitimate Bencher Code of Conduct.
In one case, a member of Demand Inclusion, and a non-bencher who is an active participant in the Equity and Indigenous Affairs Committee of the Law Society, took to Twitter to accuse a Slate bencher of making a racist comment. The allegation was baseless, yet the establishment threatened and then subjected the Slate bencher to investigation under the Code.
Thus, even before it is duly brought into force, the Code is being used to silence and intimidate benchers into obediently going along with the dictates of the status quo. It is being used to inhibit Slate benchers in the exercise of their discretion and judgment.
Holding Participants Accountable and Initiating Proper Governance
The Slate successfully moved at Convocation to study the issue of non-benchers (generally representing special interest groups calling themselves “Equity Partners”) participating in standing committees without accountability, either electorally or to the Code of Conduct to which benchers are now apparently subject.
This process will hopefully scrutinize the Law Society’s practice of granting certain non-elected, unaccountable, special interest groups the privilege of committee participation, where most decisions are made without any transparency at all.
The Slate also brought a motion at Convocation to censure the individual who falsely accused a Slate bencher of making a racist remark, as well as the LSO's Discrimination and Harassment Counsel who signal-boosted the allegation on social media, but was unsuccessful. Nonetheless, it forced the establishment to deal with the matter and brought it into public view for the rest of the profession.
More recently (during June's virtual Convocation), the Slate also successfully resisted the determination of the establishment to foist the same Bencher Code of Conduct on anyone seeking to run for election as a bencher. However, it is expected that this issue will be brought up again at a future Convocation.
The Slate will fight back in the face of attacks, intimidation, and defamation. Despite the efforts of the vested interests to sideline us, your Slate will continue to fight for the public interest and the licensees who work diligently every day to serve it. Here's a taste of that fighting spirit: Back to Top
Jared Brown speaks on the special status afforded to Equity groups around the Law Society. "Equity has been elevated to religion in this place."
Treasurer Travails - Second Round
PEOPLE OF FAITH NOT WELCOME
Despite hit pieces to the contrary, the Slate and its election team are a diverse bunch. We cover the spectrum of political persuasions, from the NDP and the Green Party to the PPC. We are immigrant and multi-generational Canadians. We are Atheists, Christians, Buddhist, Muslims and Jews, along with some fence-sitters. We agree, fundamentally, in the classical liberal notion that each of us is an individual first and foremost, that each of us brings value as a unique voice, and that each of us, like all Canadians, is equal under and before the law. We reject "identity politics" and being forced to think a certain way because of the collectivist, authoritarian impulses that are coursing through Western society right now.
Given the true diversity on the Slate, it is a sign of strength that we continue to be largely unified around the 'big issues' (there is no requirement to vote uniformly, and each bencher comes to his or her decision freely, based on his or her own views and conscience).
After a year of experience and realizing the powerful position of the Treasurer to appoint committees and set the agenda for Convocation, the Slate again encouraged a member to run as a candidate. This time, it was Philip Horgan, a hard-working, detail-oriented, consensus-builder with a deep understanding of financial issues. He sits on numerous committees and can be counted on to understand thoroughly and comment intelligently on the material presented.
Phil is also a Catholic, who has acted in his professional career on behalf of various Catholic organizations. Naturally, that makes him a target for the special interest groups who talk about being "inclusive" but do not appear to practice it.
During his respectful and respectable campaign for Treasurer, Phil was again the recipient of much abuse and uncensured malice from the usual suspects. Letters were sent to benchers from advocacy groups such as Women's Law Association of Ontario, the Canadian Association of Black Lawyers, and "Demand Inclusion" calling for all benchers to vote for Phil's opponent and, particularly in the latter example, casting aspersions on the character of Phil Horgan.
Thelegal media went for the jugular with Phil, asking him his views on systemic racism and LGBTQ rights, including this exchange:
Law Times: "During the accreditation of the Trinity Western Law School, you helped the Roman Catholic Archdiocese of Vancouver. The SCC majority ultimately upheld the Law Society’s discretion to decide that "the ‘public interest’ included promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students."
"Do you agree with this definition of the public interest? If not, do you have any words of assurance for LGBTQ lawyers that they will be treated fairly by the Law Society under your leadership?"
Philip Horgan: "The premise of your question suggests some deeply held animus on my part, which is inappropriate, if not offensive.
"I have engaged throughout my involvements at the highest levels of courts in Canada, on the need to recognize authentic pluralism as a core concept of what we mean to live in a liberal democracy.
"Pluralism means that we have different views, and are allowed to hold and express them in the public square as participants in civil society. Pluralism means that we live with disagreement.
"The public interest mandate of the Law Society is set out from a host of authorities, most notably the provisions of the Law Society Act. I accept the focus applied by the majority of the Supreme Court, as part of a larger set of concerns, including ensuring competence and ethical standards. My clients in fact advocated an enhanced public interest, to recognize diverse religious perspectives in the exercise of the public interest mandate.
"All lawyers and paralegals can be assured that they have my utmost respect, and that they can be assured that under my leadership, the law society will deal with all of our licensees fairly.
"I truly hope that your question is not suggestive that an observant religious person is categorically to be excluded from the office of treasurer, a proposition I find to be chilling, and unacceptable."
Phil Horgan's eloquent response to this inappropriate question brings home the reality that members of the legal professions pushing back against divisive identity politics and the ideological infiltration of Critical Theory into the profession's governance (more on that in the articles below), need to stand together, and need to win a majority next time. The survival of classical liberal principles, such as individual rights and freedoms in a pluralistic society, depends on their unfailing and courageous defence.
The Slate remains committed to the mandate you elected us to achieve. We will continue to work hard to reduce your fees and rein in your regulator, to the best of our ability. Our efforts to rid the Law Society of the Trojan Horseof Critical Race Theory and deeply-ideological activism surrounding the Diversity, Inclusion and Equity agenda will continue. This agenda was confirmed in a recent letterby the outgoing Treasurer, Malcolm Mercer, to a group of activist law students who complainedthat the Law Society's Black Lives Matter response was inadequate.
For a comprehensive review of the foundation of this agenda, and the exposure of its gross methodological flaws and manipulation, please read Slate bencher Murray Klippenstein's Critical Review of the Challenges Report.
A group of non-bencher lawyers concerned about the direction of the Law Society and legal profession have reached out about starting an organization to advocate for the de-politicization of the Law Society, a reduction in budget and fees, and to stand up for equality of opportunity and Charter principles against those who seek to discriminate based on prohibited grounds by advocating for government-imposed quotas. The new group seeks to advocate for equality of opportunity for all.
For 150 years, Canada's constitutional order has been both flexible and durable, ensuring peace, order, and good government while protecting the absolute rights at the core of the rule of law. In this era of transnational terrorism and proliferating emergency powers, it is essential to revisit how and why our constitutional order developed particular limits on the government's powers, which remain in force despite war, rebellion, and insurrection. Seven Absolute Rights surveys the historical foundations of Canada's rule of law and the ways they reinforce the Constitution.
They Can't Cancel All of Us- A speech about the StopSOP movement and how the Law Society was taken over by the thought police, delivered at a Civitas salon in Toronto on January 15. It has been posted at New Discourses, a site that explains the ideological underpinnings of collectivist movements increasingly gaining strength. Check it out!