Essay: The Evidence



     

     

    *Revised & Updated – March 19, 2019*

    A.       Systemic Racism: What is the Law Society Saying?

    1.  The Law Society has found that racism is systemic in both legal professions in Ontario, lawyers and paralegals, but the evidence does not support such a finding.

    2.  It is important to note that the Law Society claims to have proven not only that some racism exists within itself, within the Law Society, but that the racism found to exist is “systemic”.

    3.  Systemic racism means racism that is widespread and institutional. The extent of racism that is systemic can be understood by considering the OHRC definition of “systemic discrimination” and substituting “racism” for “discrimination”:

    Systemic [racism] can be described as patterns of behaviour, policies or practices that are part of the structures of an organization, and which create or perpetuate disadvantage for racialized persons.”

    4.  What is the “structure” of our self-governing “organization” if not the Benchers’ administration of the Law Society and their control of its members by the implementation of the Society’s rules, policies, practices and procedures?


    5.  What is it about the Society’s behaviour, policies or practices that establish the existence of systemic racism?

    6.  That a finding of systemic racism points the finger directly at the Benchers themselves did not prevent the Benchers from accepting the Working Group Final Report unanimously, 53 to 0, on December 2, 2016. It also appears not to have been a matter of concern that only 6.3% of the entire membership completed the 2013 survey, the research upon which the Final Report is based.

    7.  In approving the Working Group’s Final Report in December 2016 were the Benchers acknowledging that they themselves were racist and that they were governing the two professions in a racist manner? How could racism be systemic in the professions of law in Ontario without directly implicating those who are responsible for the Law Society’s “patterns of behaviour, policies and practices”, i.e., the Benchers themselves? The answer, of course, is that Benchers are not racist and their finding of systemic racism in the professions is baseless, is not borne out by the facts, and is not congruent with reality.

    8.  Are you a racist? Are your colleagues, partners and friends at the bar racist? No? Who and where are the racists then? Where is this systemic racism to be found? Has the Law Society investigated allegations of racism on the part of members of the Society, either paralegals or lawyers, even one member? If so, what were the particulars and outcomes of these investigations?

    9.  Had the Law Society clearly established that there exists some racism among some members of the professions, such a finding and the remedial measures proposed to deal with it would not likely have been controversial at all. But that is not what the Law Society is saying. The Law Society is saying something completely different; that there is systemic racism in the professions, that we are all racist, you and I and the Benchers themselves. Is there any other way to interpret a finding of systemic racism?

    10. The imposition of the 13 Recommendations, including Recommendation 3.1 requiring “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;” is founded upon the determination by the Law Society that systemic racism exists in the professions of law in Ontario.

    11. Where is the proof of systemic racism? It appears nowhere in the Stratcom Report, the Working Group Final Report or in the 2014 Law Society paper entitled, “Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees”.

     

    B.       WHAT WAS TO BE INVESTIGATED?

    1.  At page I of the Stratcom Report, we read that “Under the direction of the Working Group and managed by the Equity Initiatives Department of the Law Society, Strategic Communications Inc. (Stratcom), was contracted to design and conduct research to identify:

    ISSUE #1: Challenges faced by racialized lawyers and paralegals in different practice environments, including entry into practice and advancement;
    ISSUE #2: Factors and practice challenges that could increase the risk of regulatory complaints and discipline, and;
    ISSUE #3: Identify perceptions of best practices for preventative remedial and/or support strategies.

     

    2.  Reading the 13 Recommendations it is clear that Issue #1 was the primary focus, almost the sole focus, of the Working Group Final Report. The report dealt rather briefly with Issues #2 and #3, identifying the causes and regulatory complaints, discipline and best practices. Issues #2 and #3 are covered in more detail in the paper entitled “Developing Strategies for Change: Addressing Challenges Faced by Racialized Licensees”.
     

    3.  Although we are dealing with the Recommendation 3.1, the Statement of Principles or SOP, members should read all 13 Recommendations to fully understand the Culture Shift that the Law Society has imposed on us. One recommendation, however, is undoubtedly reasonable. That is Recommendation 11. It addresses Issues # 2 and #3. Helping members avoid practice and disciplinary problems should always be one of the Law Society’s primary goals.

     

     C.       Do We Need Evidence?

    1.  Before looking at the Law Society’s evidence that there is systemic racism in the professions, it should be noted that there are those for whom evidence is really not necessary because, in their view, everyone knows that racism exists. In his January 17, 2018 post on the blog slaw.ca, the Treasurer, Mr. Malcolm Mercer, wrote, in response to my November 16, 2017 letter to the Law Society (also published in the December 2017- January 2018 issue of the Middlesex Law Association (“MLA”) Newsletter) that,

    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.”

     

    2.  That issue of the MLA Newsletter also included an article by Michael Menear entitled the “EDI Initiative of the Law Society of Ontario” as well as the Middlesex Law Association Board of Trustees’ Position on Statement of Principles in which the Trustees “supporting the principles of equality, diversity and inclusion in the Statement of Principles, but opposing its mandatory implementation by each licensee”, a not unreasonable position and perhaps one that the Law Society should reconsider.


    3.  The allegation of systemic racism and the need for the Recommendations and the Culture Shift must be established by clear and interesting evidence. Of all professions, one would think that ours would see the need for evidence when dealing with issues such as these as a nonissue. As explained below, the Stratcom Report upon which the Benchers relied does not base its finding of systemic racism on clear, convincing and reliable evidence.

     

    D.       A Summary of the Evidence

    1.  The Law Society hired Strategic Communications Inc. (Stratcom) to “design and conduct research to identify” the three Issues set out above. Stratcom conducted an online survey and carried out interviews and focus groups in 2013. Its report is dated March 11, 2014. The online survey was the primary research tool. The Stratcom interviews and focus groups were of secondary importance as were the Law Society’s own 2015 public consultation meetings.
     

    2.  Survey Participation by Lawyers – The Stratcom was sent by email to all members in November 2013. In 2013 there were 46,054 lawyers of whom 1,707 completed the survey, which is a response rate of 3.7%. (See Stratcom Report, Table 5, page 27). The total number of lawyers completing the survey is not given but it is possible to extrapolate the figure from the data. (An earlier version of this paper had slightly larger figures in the calculations in this section because in that paper the total 2013 membership was cited as 45,021 but the correct total was 51,996.)
     

    3.  Survey Participation by Paralegals – In 2013 there were 5,942 paralegals, of whom 1589 completed the survey, a response rate of 26.7%. 
     

    4.  Survey Participation by All Members – In 2013 the total membership of the two professions was 51,996. The survey was completed by 3,296 members or 6.3% of the total membership of both professions. 
     

    5.  How can such a meagre participation in the survey not mean that the findings and conclusions based on its data are of little, if any, value? How can the almost total nonresponse by the membership be corrected by algorithms to result “in a sample that produces representative, unbiased estimates of the views and opinions of Law Society licensees” (see Stratcom Report pages 22 and 23)? Should not the Law Society strive to hear from at least 75% of the entire membership of the two professions before imposing its much-heralded Culture Shift? 
     

    6.  Survey Participation by Racialized and Non-Racialized Members – Of the 3,296 lawyers and paralegals who completed the survey, 1,665, (51% of the sample) were racialized and 1,631 (49% of the sample) were non-racialized. That means that 19% of the racialized members of the Society and4.5% of the non-racialized members of the Society completed the survey.
     

    7.  In terms of the research design of the study, we are told that, “Insight into the experiences of the whole population is critical for contextualizing, and understanding, the experiences of racialized licensees in particular.” (See Stratcom Report, Section 3.1, page 7). No one would disagree with that statement but the Stratcom Report, the online survey having a 6.3% response rate, does not furnish us with that insight.
     

    8.  We are also told that the purpose of the survey was to “generate insights applicable to all licensees as a community and as a collection of subgroups”. (See Stratcom Report, Section 4, page IV.) Again, not only were there no insights generated by the paltry response to the online survey, but that small sample belies any findings being representative of the professions as a whole.
     

    9.  We are told that there were two interdependent sources of information: the qualitative information (i.e., the self-reported information from the interviews and focus groups) and the quantitative information (i.e., the survey results). We are told that neither source of information can stand on its own and that each is dependant on the support of the other, though we are also told that the survey results were of primary importance.
     

    10. The survey data may tell us something about the 6.3% who completed the survey but on what basis can it be said that data from the 6.3% also represents the views of the other 93.7% of us who did not complete the survey? On what basis can it be said that the data from the 6.3% is sufficient to “generate insights applicable to all licensees as a community and as a collection of subgroups and provide us with “insight into the experiences of the whole population [which] is critical for contextualizing, and understanding, the experiences of racialized licensees in particular.”? No reason is given in either the Stratcom Report or in the Final Report. 
     

    11. The online survey was ignored by almost everyone. The fact that only 3,296 of the 51,966 members of the professions completed the survey cannot be disputed. The data is irreparably flawed by the almost total nonresponse, a survey phenomenon called “nonresponse bias”. (See also the reference to self-selection bias, a similar phenomenon, in the excerpt from the 2004 Kay Report set out below.)

     

    E.        43% & 57% – How Valid is the Statement about Barriers and Challenges? 

    1.  One statistic in Appendix A to the Final Report on page 50 entitled “Results” is that “43% of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement”. Conversely, however, this means that 57% of racialized members who completed the survey did not identify ethnic/racial identity as a barrier/challenge to advancement. But the real question is, “43% of what?”. (See also pages 40 and 41 of the Stratcom Report)
     

    2.  How Many Racialized Members Identified Barriers and Challenges? – The 43% and 57% figures relate to answers given to questions 17 to 24 in the part of the survey entitled Section C Barriers to Entry & Advancement. (See Stratcom Report, Appendix F.)
     

    3.  If “43% of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement”, that would be 716 which is 43% of the 1665 racialized members who completed the survey (.43 × 1665 = 716). Therefore, the researchers heard that there were barriers and challenges from only 716 of a total of 5942racialized members (or 12%) as opposed to the 949 (or 16%) they heard from who disagreed with that statement.
     

    4.  Moreover, 81% of racialized members did not complete the survey. Was that because for them racism was not a problem they encountered in their daily professional lives? We do not know but it is a reasonable assumption.
     

    5.  Also, are we to believe that it does not matter whether 8%, 20%, 30% or 45% of the members completed the survey, that the number of members completing the survey is not important because one can simply adjust or “weight ” the figures, that with a little math the data can be adjusted to reflect what the entire racialized cohort would have reported had they participated in the survey?

     

    F.        The Racialized Members Who Had Misgivings about the Stratcom Research

    The following explains why some members, both racialized and non-racialized, may have chosen not to participate in the survey.

    1.  We read this in the Stratcom Report [page IV]:

    “The focus of this research is innovative, and studying it raises concerns for some members of Ontario’s legal community, as we learned in the planning process from the benchers, staff and the literature. It is innovative in the sense that the key focus of the study – racialization – has not often been treated as a distinct phenomenon for study. Even the term “racialization” is relatively new and some in the community (including among visible minorities) do not accept it as standard terminology. And although we received clear direction from the LSUC and Working Group throughout the research process, the study raises concerns for some community members who feel that the very act of studying racialization as a distinct phenomenon may produce stronger perceptions of its importance than are warranted in reality.” (emphasis added) (See also the second paragraph of “Part 4. Survey Research: Profile of Participants” on Page IV of the Stratcom Report.) 
     

    2.  What were the specific concerns of these members? What did they say? What were they concerned about? Was it that this research might have negative or adverse consequences affecting their day-to-day interaction with their non-racialized colleagues?
     

    3.  Were the interests of these racialized members not considered important enough by Stratcom or the Law Society to be looked into more deeply and reported upon in greater detail? Should not the concerns and interests of these members have been of great importance? At this point in the process, should there not have been some sort of cost-benefit analysis?
     

    4.  Were these racialized members not seen as being team players? Who today speaks for them? Is not their reaction to the survey and the research in general clear confirmation that the data from the 6.3% cannot be applied to the other 93.7%? (See also the section of the Stratcom Report on page 20 called, “Reaction to this Research”). 

     

    G.       THE STRATCOM RESEARCH – INTERVIEWS AND FOCUS GROUPS

    1.  The following are a few brief comments about the second part of the Stratcom research, the interviews and focus groups. To begin with, Stratcom explains the importance of the online survey as opposed to the focus groups and interviews:

    N.B.    As to the purpose of this part of the research we read that, “[w]hereas interviews and focus groups are not expected to represent the whole population, but rather to provide qualitative insight into the concepts, narratives, ideas and experiences of the study population, the quantitative survey [is] intended to generate insights applicable to all licensees as a community and as a collection of subgroups (racialized, non-racialized, paralegals, lawyers, etc.).” [emphasis added] (Stratcom Report, pages IV and 21)
     

    2.  There were 20 “key informant” interviews, 14 focus groups with racialized members and two focus groups with non-racialized members. Of the 16 focus groups, one took place in London, one took place in Ottawa and the other 14 in Toronto but nowhere else in the province.


    3.  On page II of the Stratcom Report in Figure 1 is a diagram showing the “Research Design” and in which there appears the following description of the “key informants”:

     “Individuals in the legal profession with deep expertise in the realm of diversity and equity.”


    4.  The research team conducted 20 key informant interviews with 27 individuals, three of whom self-identified as non-racialized “[i]ndividuals in the legal profession with deep expertise in the realm of diversity and equity”. (Stratcom Report, page 3) 
     

    5.  Who were these key informants? Not ordinary members it would appear. On page 3 we read that: “Key informants were selected under the direction of the Working Group and the Equity Advisor........ .(Stratcom Report, page 3) 
     

    6.  On page 4 of the Stratcom Report we read that in May 2013, several months before the online survey was sent out, invitations were sent to members who had self-identified as racialized asking for volunteers to participate in the focus groups to be held in Toronto, Ottawa and London. 
     

    7.  These members who volunteered were “screened for their availability to participate in specific groups and on specific dates. From an initial group of 503 online volunteers, approximately 115 individuals who were qualified and invited to participate, and 103 racialized licensees eventually participated in 14 groups....”. The criteria by which 115 of the 503 members were “qualified” are not explained. 
     

    8.  The community engagement process consisted of “information collected by 52 prominent and experienced racialized legal professionals”. This, apparently, was “information”, collected not from these 52 professionals but bythem, though from whom is not clear. (Stratcom Report, page 3)

     

    H.       THE LAW SOCIETY’S 2015 SUBSEQUENT CONSULTATION  

    1.  One year after Stratcom submitted its report in March 2014, the Law Society undertook its own Consultation Process consisting of 12 open house learning and consultation programs around the province, meetings with representatives from law firms, legal clinics, banks, government and legal associations, feedback from “over 1000 racialized and non-racialized lawyers, paralegals, law students, articling students and members of the public throughout the province of Ontario between January and March 2015”. (emphasis added)

     

    I.         WRITTEN SUBMISSIONS FROM INDIVIDUALS AND ORGANIZATIONS

    1.  As we read on page 5 of the Law Society’s Final Report, there were 46 written submissions received, 23 submissions from individuals and 23 from organizations. The submissions from organizations were made public. We are told that “The Working Group has determined that only submissions from organizations are to be public. Many of the individual submissions speak to personal experiences and the Working Group believes that should those individuals wish to make their views public, they should have the option to do so on their own. What follows is a summary of both individual and organization submissions divided by...” 
     

    2.  A major failing of this research is that we do not have the particulars of the personal experiences of members alleged to have encountered racism. The Law Society’s position seems to be that although it has the details it will only provide a summary and we must take its word for it. 
     

    3.  The plural of “anecdote” is not “data”. It would have been helpful to have a fully detailed story of at least one member’s experiences supporting the finding of systemic racism.

     

    J.        WHAT IS THE SUM TOTAL OF THE EVIDENCE?  

    1.  QUESTION: Given that the survey was ignored by 93.7% of the Society and that the interviews, focus groups, etc. were not intended to generate information applicable to the entire membership, what are we left with? 
     

    2.  ANSWER: The Law Society has not proven their accusation of systemic racism. If this matter were litigated, with the standard of proof being either beyond a reasonable doubt or on a balance of probabilities, would the data and information put forward by society meet either standard of proof?  

     

    K.       STRATCOM’S SUMMARY OF THE NATURE OF THE SYSTEMIC RACISM: "OVERT DISCRIMINATION AND BIAS – OFTEN UNCONSCIOUS”

    1.  We are told the racism and discrimination are largely “unconscious”. This appears on page 8 of the Stratcom Report:

    Through the key informants we got a strong indication that:

    Discrimination: Overt discrimination and bias – often unconscious – is a feature of daily life for many, or most, racialized licensees. Informants reported numerous incidents in which licensees were subjected to negative stereotypes, and made to work harder or suffer greater consequences for errors than non-racialized colleagues. These stereotypes are reinforced by the underrepresentation of racialized members among the judiciary and managing partners of the mid-and large firms. Some overt racism is at play in some quarters, we are told.” [emphasis added]

     

    2.  Presumably, there are two kinds of overt racism. The first sentence in the  paragraph above speaks of overt racism that is “often unconscious”. That is the first form of racism. It would seem to constitute almost all of the racism described in the report. 
     

    3.  The final sentence from the excerpt above, however, refers to overt racism about which Stratcom seems to have little data, saying that it “is at play in some quarters”. Why the odd wording? What are those “quarters”? Though not spelled out, this second form of racism is, presumably, conscious and deliberate but also, it would seem, rare. 
     

    4.  Are we to take from the quote above, that the alleged systemic racism consists of:  

    a)     being subjected to negative stereotypes;  

    b)     being made to work harder or suffer greater consequences for errors than non-racialized colleagues; and,  

    c)     the underrepresentation of racialized members among the judiciary and managing partners of the mid-and large firms.

     

    5.  Points a) and b) seem like complaints that many members could make, whether racialized or not. 
     

    6.  How surprising is Point c)? Given the rather recent increase in the racialized proportion of the membership and the number of years spent at the Bar before judges are appointed, should we be surprised that the percentage of racialized judges does not reflect the percentage of racialized members? Some things take time. Some things have a common-sense explanation rather than a sinister one. 
     

    7.  By what method were the “key informants” referred to in the Stratcom Report able to diagnose “overt discrimination and bias” which was “often unconscious”? There is no suggestion that their diagnosis had been the result psychological testing or any other sort of measurement– and, frankly, how could it have been. 
     

    8.  If unconscious bias is unintentional and affects the behaviour of all of us, why is it being approached by the Law Society as an us-vs.-them problem, i.e., that  racialized members are being discriminated against or victimized by non-racialized members? Does the Law Society assume that only non-racialized members are subject to unconscious bias? 
     

    9.  The membership of the Law Society would unreservedly support any reasonable measures necessary to combat of incidents of racism and discrimination when they actually occur. That is the purpose of the Law Society’s existing Discrimination and Harassment Counsel. In short, just the concerns contained in Issues #2 and #3 could be addressed by the implementation of Recommendation #11. What more is needed?  

     

    L.       WHAT CAN BE SAID DEFINITIVELY ABOUT UNCONSCIOUS BIAS (AND MICROAGGRESSION)?

    1.  Is it the position of the Law Society of Ontario:  

    a)     that unconscious bias consists of attitudes, stereotypes, associations, etc. outside our conscious awareness; but also,

    b)     that unconscious biases affect and influence our day-to-day behaviour and attitudes; and,

    c)     that the majority of psychologists who have studied this phenomenon believe that unconscious bias can be diagnosed, that individual biases can clearly be identified and confirmed, and that details of such biases can be described in an assessment report or profile for each individual; and,

    d)     that most psychologists believe unconscious bias can not only be diagnosed but cured; and,

    e)     that there is reliable, scientific proof that the entire non-racialized membership of the Law Society suffers from unconscious bias and to such a degree as to warrant the imposition of the 13 Recommendations in the Law Society’s “Culture Shift”?
     

    2.  I would submit that while the answer to a) may be “yes”, there is no general consensus among psychologists as to b), c) and d). 
     

    3.  The answer to e) is clearly “no”. None has been provided. 
     

    4.  Would a court accept unconscious bias as a reliable scientific concept, i.e., that  unconscious beliefs affect and influence our daily conduct and attitudes; that those unconscious beliefs can be detected, identified and quantified; that they can predict behaviour and attitudes; and that they can be cured? Read R. c. J. (J.),  [2000] 2 S.C.R. 600, [2000] S.C.J. No. 52 (paragraphs 33 to 35) on the test applied to novel scientific theories and techniques and ask yourself whether unconscious bias would pass the test in Mohan  and J.(J.-L.). If it would not pass that test, then why is the Law Society relying on it? 
     

    5.  Unconscious bias, as described in the preceding paragraph, is entirely different from the determination of whether a judge may be unconsciously biased and should, therefore, be disqualified. As was expressed in Roberts v. R. ,2003 SCC 45, 2003 CarswellNat 2822, at paragraph 73, in such cases the test is whether it can “be established that reasonable, right-minded and properly informed persons would think that the judge was consciously or unconsciously influenced in an inappropriate manner by his participation in this case........”, the concern of the court being maintaining the public’s perception of and confidence in integrity of the administration of justice, that justice should “not only be done, but should manifestly and undoubtedly be seen to be done" in the words of Lord Hewart. [emphasis in original] 
     

    6.  Ask the same sorts of questions about the Implicit Association Test (IAT) and about microaggression. 
     

    7.  Is the Law Society planning to impose compulsory Implicit Association Testing upon the membership of the Society?  

     

    M.       THE I.A.T.

    1.  The Implicit Association Test (IAT) was developed by two American academics, Anthony Greenwald and Mahzarin Banaji. The test has been criticized as being, first, unreliable, in that a person taking the test several times may score quite differently each time, and second, that it’s invalid, in that it cannot predict behaviour and, from the statement below by one of the creators, it would appear that both of those criticisms are well-founded. 
     

    2.  Prof. Greenwald is reported to have acknowledged that the IAT does not predict biased behaviour (see the January 2017 issue of The Chronicle of Higher Education, entitled, “Can We Really Measure Implicit Bias? Maybe Not:

    Here is one excerpt:

    “Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, "produce a challenge for this area of research.” [emphasis in original] 
     

    3.  Later in the Chronicle both Professors Greenwald and Banaji defend their research. I have included one paragraph only, one of criticism, to show that this is not settled science and you may wish to read the entire article. The jury is out, as they say. 
     

    4.  Here is the particular statement referred to above by Prof. Greenwald: 

    “Greenwald acknowledges that a person’s score can vary significantly, depending on when the test is taken, and he doesn’t think it’s reliable enough to be used to, say, select bias-free juries. ‘We do not regard the IAT as diagnosing something that inevitably results in racist or prejudicial behavior,’ he says”.
     

    5.  Unconscious bias does not appear to be settled science. Is it reasonable for the Law Society to use unconscious bias to justify the Recommendations, including the Statement of Principles?

     

    N.      COMPLAINTS OF BIAS AND DISCRIMINATION IN THE STRATCOM REPORT

    1.  There are eleven very brief complaints interspersed on pages 9 through 19 of the Stratcom Report. None of the incidents reported are at all convincing.


    2.  Also, there are four very brief incidents on pages 12 and 13. What is noteworthy about these four incidents is that they are what might be called overt racist behaviour of the conscious and deliberate form and which is not the kind of racism that Stratcom found. Two of these incidents involved judges. Were there complaints made and, if so, what was the outcome of the complaints? In regard to the other two incidents, were there complaints made to the Law Society? The reports are so brief as to be pointless. 

     

    O.       SELF-SELECTION BIAS – COMPARING THE STRATCOM REPORT TO THE LAW SOCIETY’S 2004 KAY REPORT

    1.  In 2003 a survey commissioned by the Law Society was carried out by Prof. Fiona Kay of Queen’s University. The report, entitled, “Diversity and Change: the Contemporary Legal Profession in Ontario”, included a finding that discrimination against racialized lawyers had not been shown to exist. This report, called the Kay Report, may be found on the Law Society’s website.  At pages pp. 117-118 of the Kay Report the following statement appears in the Conclusions: 

    In contrast,few differences between lawyers of racialized and non-racialized communities were reported across experiences of discrimination.”
     

    2.  For our purposes, though, what is more important is the acknowledgement in the Kay Report that the results “may not be statistically representative of the entire population of Ontario lawyers …” due to self-selection bias, a phenomenon that would appear to be similar to nonresponse bias, though I am not an expert and will say no more than that the effect on the survey data by each of these phenomena appears to be the same or at least similar. Here’s what we are told on page 13 of the 2004 Kay Report regarding responses to its survey:
     

    Surveys were mailed to a random stratified sample of 5,000 lawyers, and completed and returned by 1,754 respondents for a response rate of 35.08%. A total of 91 surveys were undeliverable. In addition, several surveys were not completed due to appointment to judge (1 case), no longer a member of the Ontario Bar (2 cases), no longer residing in Canada (3 cases), and death (1 case). When these cases are taken into account, the adjusted response rate is 35.78%, which is respectable by academic and industry standards. [32] As with all surveys, questionnaire completion was voluntary, anonymous, and subject to self-selection bias. Therefore, the sample may not be statistically representative of the entire population of Ontario lawyers, although demographic and practice setting distributions appear consistent with that of the larger population of Ontario lawyers. [emphasis added]

    3.  Should not the same criticism be made of the Stratcom Report, that participation was also “voluntary, anonymous and subject to self-selection bias” (or nonresponse bias)?

    4.  Similarly, in a January 26, 2018 Globe and Mail article we are told that a recent internal survey conducted by the Law Society found “that nearly one in five current and recent articling students said they had experienced unwelcome conduct or comments, based on their gender, sexual orientation, national origin, disability or other personal characteristics. Slightly more than one in six said they had been discriminated against”.

    5.  Later in the Globe and Mail story there appears the following statement:

    “The survey cannot be considered statistically reliable because of a low response rate of 28%, but [the then Treasurer] Mr. Schabas said, “the numbers are telling us a story”. 

    6.  Compare the Stratcom survey participation rate of 6.3% with the 2004 Kay Report with its 35.78% participation rate and the 28% response rate of the2017 Law Society articling student survey. For the Kay Report and the articling student survey there was an acknowledgement of unreliability resulting from self-selection bias or nonresponse bias?  There is no acknowledgement of self-selection bias or nonresponse bias in the Law Society’s Final Report. How can the conclusions of the Stratcom online survey be justified? They can’t. The only conclusion is that the Stratcom Report is irreparably flawed and that it is not reliable.

      

    P.       LAW STUDENTS v. MEDICAL AND ENGINEERING STUDENTS

    1.  Here is what we read in Appendix A to the Stratcom Report:

    “Incidents of Representation

    The [Law] Society has found that among most recent licensees the profession is diverse upon entry for both lawyers and paralegals based on 2006 Statistics Canada Baseline Representation of Visible Minorities. However, racialized persons are essentially overrepresented in other professions including medicine and engineering, as well as in the proportion of population with post-secondary education. This is a Tier 2 consideration as the issue and related sub-issues rely on demographic data and data which may involve less interactive dynamics.” [emphasis added]

     


    2.  Stratcom has determined, therefore, that the racialized cohort of members who were recently called to the Bar or became paralegals was, in fact, representative compared to the population at large. So, there are no barriers to admission to the legal professions.

    3.  The question raised in the Stratcom Report is why racialized people are over-represented in medicine and engineering and not in law. Maybe some people would prefer to be doctors and engineers than lawyers.

     

    Q.      REASON TO DOUBT THE EXISTENCE OF SYSTEMIC RACISM – INCREASE IN THE NUMBER OF RACIALIZED LAWYERS


    1.  According to the Law Society:

    Since 2001, the proportion of racialized lawyers in the Ontario legal profession has doubled, rising from 9% of the profession in 2001 to 18% in 2013. This compared to 23% of the Ontario population who indicated in the 2006 Canada Census that they are racialized and 26% of the Ontario population who indicated in the 2011 National household survey that they are racialized.”


    2.  This information, the doubling of the proportion of racialized lawyers in the profession over 12 years is, itself, proof that systemic racism is not preventing racialized Ontarians from becoming lawyers.

     

    R.       REASON TO DOUBT THE EXISTENCE OF SYSTEMIC RACISM – PERCENTAGE OF RACIALIZED PARALEGALS

    1.  For paralegals in Ontario, the figures in the Final Report show that in 2014 racialized paralegals represented a larger percentage of the paralegal membership than was the percentage of racialized Ontarians in this province. What are we to make of that figure other than there is no real problem? Is the Law Society saying that we should use a quota system to ensure that only non-racialized persons become paralegals until racialized figures come down to reflect the composition of the population of Ontario?

     

    S.       THE LAW SOCIETY’S NOVEMBER 21, 2017 GUIDE TO THE MEANING OF THE RECOMMENDATION 3.1 REQUIREMENT TO PROMOTE EQUALITY, DIVERSITY AND INCLUSION GENERALLY, OR, WHY “PROMOTE” DOES NOT MEAN “PROMOTE”

    1.  By Recommendation 3.1 the Law Society requires:

    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.”


    2.  On November 21, 2017, the Law Society issued a statement, an interpretation bulletin, explaining its new meaning of the word “promote”. The introduction reads, in part, as follows:

     

    The Guide states that the requirement does not carry any obligation to profess a particular belief, or seek to persuade anyone to believe in a certain point-of-view. Rather, it references existing legal and professional obligations regarding human rights and the prevention of systemic racism and discrimination, and makes clear that the Statement relates to a licensee’s professional conduct.

    There is an urgent needto take meaningful action to address systemic racism and discrimination against all equality-seeking groups in the legal professions.

     
    3.  The following italicized excerpts are taken from The Guide, itself. What follows is not the entire Guide.

    “The required Statement of Principles sets out standards or criteria developed by the licensee to guide his or her professional conduct taking into account applicable legal and professional obligations. The Statement of Principles need not include any statement of thought, belief or opinion. This guide explains what licensees need to do to fulfil the requirement set out in Recommendation 3(1) of the Final Report which applies to racialized licensees and equality seeking groups:[emphasis added]


    4.  The Guide goes on to say:

    “The requirement reinforces existing obligations in the Rules of Professional Conduct and the Paralegal Rules of Conduct which establish a lawyer’s and paralegal’s “special responsibilities” to respect human rights laws and to honour the obligation not to discriminate in their dealings with others.” [emphasis added]


    5.  The Key Question: Where is our “obligation to promote equality, diversity and inclusion generally,” to be found in the Rules of Professional Conduct, the Barristers Oath, the Paralegal Rules of Conduct or the Ontario Human Rights Code? 
     

    6.  The Answer: NOWHERE. Nowhere in any of these documents is there there are to be found an obligation to “promote equality, diversity and inclusion generally.” 

    7.  Let‘s be clear about what the Law Society is doing. The obligation to promote equality, diversity and inclusion is not merely a restating of existing obligations. The Recommendation 3.1 obligation to promote is entirely new professional obligation that the Law Society has created and the Law Society knows that it has no authority to impose such an obligation upon the membership.


    8.  According to The Shorter Oxford English Dictionary on Historical Principles, Third Edition, the meaning of the word “promote” includes [emphasis added]: 

    “2.      To further the growth, development, progress, or establishment of (anything); to further, advance, encourage. To support actively the passing of (a law or measure); ……
     
    3.        To put forth into notice; to publish; to assert, advance (a claim). 2. To cause to move forward in space or extent; to extend……” 
     

    9.  Our obligation to promote “equality, diversity and inclusion”, according to the Law Society, “will be satisfied by licensees acknowledging their obligation to take reasonable steps to cease or avoid conduct that creates and/or maintains barriers for racialized licensees or other equality-seeking groups.” [emphasis added] 
     

    10. In E.T. v. Hamilton-Wentworth District School Board, 2017 CarswellOnt 18540; 2017 ONCA 893; 140 O.R. (3d) 11, Ontario Court of Appeal, November 22, 2017 Docket: CA C63149, the Ontario Court of Appeal held, at paragraph 57, that when referring to the School Board’s obligation at paragraph 9 pursuant to section 169.1 of the Education Act to “promote a climate that is inclusive and accepting of all students, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability”, the word ”promote” in that context meant something close to “inculcate”:   

    (2) Section 169.1 of the Education Act is an Iteration in Inculcation
     
    57      Section 169.1 of the Education Act, first enacted in 2012, is part of the inculcation effort. It now provides:
     
    169.1 (1) Every board shall,
    promote student achievement and well-being;
    (a.1) promote a positive school climate that is inclusive and accepting of all pupils, including pupils of any race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability;
    (a.2) promote the prevention of bullying;
     
    58      In the context, I see the use of the word “promote” in s. 169.1 to denote something close to “inculcate”. The prescribed methods are aimed at securing acceptance by the pupils of the morality of the Ministry’s concept of inclusion, and their disapproval of the listed types of discrimination.” [all emphasis in original]

     

    11. Is it not clear that what the Law Society is attempting to do by its Recommendation 3.1 obligation is to INCULCATE in us, the 60,000+ members of the Society, certain “progressive" socio-political values championed by a small, vocal minority of its Benchers? To paraphrase paragraph 58 of the E.T. decision, the Law Society's Recommendation 3.1 obligation is "aimed at securing acceptance by the [members] of the morality of the " Social Justice Benchers'  "concept of equality, diversity and inclusion generally".

      

    T.       SUMMARY  

    1. The Law Society has not shown that racism is systemic in the legal professions. The Law Society has only proven that the overwhelming majority of members, both racialized and non-racialized, do not have concerns about racism in the professions that would justify the need for the Recommendation 3.1 requirement.

    2.  If the Law Society had clear and convincing evidence that racism was systemic in the professions of law in Ontario it would have provided it to the members. This it has not done because such clear and convincing evidence does not exist.

     

    By Donald W. Kilpatrick