Essay: The Evidence

    A.        Systemic Racism, the Statement of Principles and the Charter

    1.  The Law Society has determined that racism is systemic in both legal professions, i.e., among the 50,000 lawyers and the 8,000 paralegals practising in Ontario.

    2.  “Systemic racism” means racism that is widespread and institutional and has a meaning similar to that of “systemic discrimination”, the OHRC definition of this being:

    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.”

    3.  What is the “structure” of our “organization”. Presumably, it would be the Law Society itself.

    4.  Having found racism in the professions, the Law Society has approved 13 recommendations, one of which, Recommendation 3.1, is the requirement that licensees adopt and abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion.

    5.  The constitutionality of Recommendation 3.1 has been challenged on the basis that requiring such a statement to be made by licensees infringes the freedom of expression guaranteed to them by section 2 (b) of the Charter, which reads, in part, as follows:

     Fundamental Freedoms 
    2.   Everyone has the following fundamental freedoms:
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 

    6.  In answer to the constitutional challenge, the Law Society will likely make the following argument. Firstly, it will be submitted that the Statement of Principles does not infringe section 2 (b). Alternatively, it will be argued that even if the Statement of Principles requirement does infringe section 2 (b), such infringement would be justified pursuant to section 1 of the Charter, which reads as follows:

     1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    7.  The first argument will be that requiring licensees to commit in writing that they will adhere to the principles of equality, diversity and inclusion requires no more than confirmation of their existing obligation to commit to these principles, a proposition with which many licensees strongly disagree. The alternate argument will be that if the Statement of Principles is an infringement of Section 2 (b), that the infringement is minor, causing little or no real harm to licensees but an essential part of the cure for the scourge of systemic racism, the evidence of which is briefly outlined below.

    8.  Here is what jumps out at us. Before the Law Society can start arguing that our freedom of expression, just about the most fundamental right we have, is not protected by the Charter, surely the Law Society would have to prove racism is flagrant and widespread and that such evidence would have to be clear and compelling.

    9.  Were the Law Society to have established that there exists some racism among members of the professions and clearly identified it, such a finding and the remedial measures proposed to deal with it, proportionate to the degree of racism found, 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, i.e., that there is systemic racism in the professions, that we are racist, you and I. Is there any other way to interpret a finding of systemic racism?

    10. What should the evidentiary standard be? To prove systemic racism would require evidence that would survive the most rigorous scrutiny. Has the evidence of the Law Society convinced you that there exists not only “some” racism in the professions, that allegation alone requiring relevant and material proof, but that there is “systemic” racism in the professions, i.e., racism everywhere? And what should be the test of that evidence? Should we not require the same degree of scrutiny be applied to this evidence which affects us so drastically, just as we would carefully scrutinize any evidence that would have drastic consequences for clients? Are we being like the client of the lawyer who represents himself?

    11. Are we to accept that systemic racism exists because Stratcom tell us that they have proved it exists, even though much of the racism was found to be unconscious. Does “unconscious” mean “unintentional”? This paragraph appears on page 8 of the Stratcom Report:

    “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-hyphenated 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]

     B.       The Evidence of Systemic Racism in the Legal Professions

    1.  The Law Society hired Strategic Communications Inc. (Stratcom) to do the research about racism in the professions. Stratcom held interviews, focus groups and conducted an online survey. Its report is dated March 11, 2014.

    2.  There is good reason to question the reliability of the information generated by the interviews and focus groups. For example, there were 16 focus groups. One was held in Ottawa and one in London and the other 14 in Toronto. The rest of the province seems to have been overlooked. (See the Stratcom Report, Table 2, page 5.)

    3.  In November 2013, Stratcom sent an online survey to all licensees. The Stratcom Report uses as a benchmark the total licensee figures in the 2010 Snapshot of the Professions but weren’t the 2013 Snapshot figures available in 2014 before their report was completed – or, if not the 2013 figures, the 2012 figures?

    4.  Survey Participation by Lawyers – At present there are 50,000 lawyers in Ontario but in 2013 there were 38,593 lawyers (see 2013 Snapshot) of whom 1707 completed the survey, which is a response rate of 4.4 %. (See Stratcom Report, Table 5, page 27. The figures for lawyers and paralegals are not given but it is possible to extrapolate from the data.)

    5.  Survey Participation by Paralegals – At present there are 8000 paralegals but in 2013 there were 5428 paralegals, of whom 1589 completed the survey, a response rate of 29%.

    6.  Survey Participation by All Licensees – In 2013 the total membership of the two professions was 45,021 and, with a total survey response rate total of 3296, the combined response rate of the two professions was 7.3%, using the 2013 figures.

    7.  How can this quite stunning lack of participation in the survey not mean that the findings and conclusions of Stratcom are of little value, unless you believe in the magic of algorithms? Should not the Law Society strive to hear from the entire membership of the two professions?

    8.  It is clear from the Stratcom Report that they were concerned about the lack of participation, the almost total lack of participation by the professions. Count the number of times they tell us that online survey was “advertised”. Why not just admit that the survey didn’t work, didn’t get our attention, didn’t lead to our participation and then find a way that would allow them to hear from all of us?

    9.  Survey Participation by Racialized and Non-Racialized Licensees – In terms of racialized and non-racialized licensees, of the 3296 who completed the survey, 1665 (51%) of the sample) were racialized and 1631 (49% of the sample) were non-racialized. That means that 19% of racialized licensees and4.5% of non-racialized licensees completed the survey.

    10. 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).

    11. 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.) 

    12. Although the great majority of licensees did not respond to the survey, only 4.5% of lawyers and 19% of paralegals did so, we are told that the process of “weighting” the figures “results in a sample that produces representative, unbiased estimates of the views and opinions of law society licensees”. (See Stratcom Report, Section 4.3, page 23.)

    13. We are told that there are two interdependent sources of information, on the one hand the qualitative information, i.e., the self-reported information from the interviews and focus groups and, on the other, the survey results. Neither source of information can stand on its own. Each is dependant on the support of the other. What is there about the survey results that would lead us think that they are reliable?

    C.        Misgivings Expressed by Some Racialized Licensees – Stratcom Report Page 21

    1.  “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]

    2.  So, what did the Law Society do when told by Stratcom that some racialized members of the professions felt that ”the very act of studying racialization as a distinct phenomenon may produce stronger perceptions of its importance than are warranted in reality” or, in simple terms, that the research may tend to cause problems rather than solve them? What were the concerns of these licensees? Did they explain how they thought this research might affect them on a day-to-day basis in their interaction with their non-racialized colleagues? Is this not important?

    D.        Data Compiled by the Discrimination and Harassment Counsel (“DHC”)

    1.  In a discussion of Recommendation 12 the following statement appears in the Law Society’s Final Report:

     “…………Although the DHC Program does not maintain self-unification information about complainants, it is noteworthy that for the 10 year period of 2003 to 2012, only 16% of complaints of discrimination were based on race, 3% on ethnic origin and nominal number on ancestry and place of origin while 26% and 50% of complaints were based on the grounds of disability and sex, respectively.” [emphasis added]

    2.  The Law Society compared the DHC 16% to the 56% of OHRC complaints based on race and concluded that the DHC figures did not accurately reflect racism in the professions saying that racialized licensees must not be taking their complaints to the DHC. But, could there be another interpretation of the figures? Maybe lawyers and paralegals don’t encounter racism within the professions as much as members of the public do in their day-to-day lives?

     “The lower proportion of race-based complaints to the DHC Program warrants a review of the DHC Program to identify possible barriers to accessing that program, more particularly by members of the racialized, indigenous and disability communities.”

    E.        Law Society Disciplinary Statistics

    1.  There did not appear to be any references in the Law Society material to the statistics about complaints based on race filed with the Law Society’s Complaint Services department. How many such complaints have there been?

    F.         43% & 57% – Barriers and Challenges  

    1.  The research apparently showed that “43% of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement”. Conversely, this means that 57% of racialized licensees did not identify ethnic/racial identity as a barrier/challenge to advancement.

    2.  How Many Racialized Licensees Identified Barriers and Challenges? – The 43% and 57% figures are taken from the part of the survey entitled Section C Barriers to Entry & Advancement, questions 17-24. (See Stratcom Report, Appendix F.)

    3.  If “43% of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement”, that would be 43% of the 1665 racialized licensees who completed the survey (.43 × 1665 = 716). The researchers heard that there were barriers and challenges from only 716 of a total of 8793racialized licensees or 8.1%.

    4.  As appears from paragraph B9, above, 81%of racialized licensees did not respond to the survey. Was that because for them racism was not a problem? And it is important to remember that 57% of the racialized licensees who completed the survey did not identify “ethnic/racial identity as a barrier/challenge to advancement.”

    5.  How serious should we believe the barriers and challenges to be when only19%of the racialized licensees completed the survey and 57% of that 19% cohort said that “ethnic/racial identity” was not a barrier?

    6.  Also, are we to believe that it doesn’t matter whether 8%, 20% or 40% of licensees complete the survey, that it’s not important because one can simply adjust or “weight ” the figures. Are we to believe that what the 8%, 20% or 40% reported in the survey can be assumed to accurately and reliably reflect what the entire 100% of us would have reported had we all completed the survey?

    7.  How important is it that the survey results are accurate and reliable, that they represent the views and beliefs of all licensees? Are we to believe that these figures prove not only that racism exists but that “systemic” racism exists in the legal professions in Ontario? Even using the lower burden of proof, a balance of probabilities, it is clear that the Law Society has not presented sufficient justify the suppression of a fundamental freedom under the Charter of Rights, the freedom of expression.

    8.  Most of us are lawyers. Most of the Benchers are lawyers, too. Should we not expect from them a standard of evidence that properly reflects not only the gravity of the allegations made, “systemic” racism, meaning by definition that there is racism in the Law Society, the very body that administers the professions, but also evidence that reflects the gravity of the consequences that the Law Society intends to impose upon us, infringing our freedom of expression as found in section 2 (b) of the Charter?

    G.        Comparing the Stratcom Report to the Law Society’s 2004 Kay Report

    1.  The following appears on page 2 of Appendix A to the Stratcom Report:

    “In a 2004 report to the Law Society (the "Kay Report"), Professor Fiona Kay found that racialized lawyers are more likely than non-racialized lawyers to report experiencing disrespectful remarks by judges or other lawyers. Twenty-six percent (26%) of racialized lawyers reported experiencing disrespectful remarks by judges and other lawyers occasionally, routinely or frequently, compared to 21% of non-racialized lawyers.”

    2.  Here’s what we are told on page 13 of the Kay Report regarding response to its 2003 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 observation be made about the Stratcom Report, that participation was “voluntary, anonymous and subject to self-selection bias. If Stratcom talks about self-selection bias in their survey results, we must have missed it. (Presumably, the same observation could be made about the voluntary participation in the focus groups and interviews.)

    4.  As well, 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, including a quote from the Law Society Treasurer, Mr. Paul Schabas:

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

    6.  In the Stratcom Report the response rate was about 8% and a breakdown of that 8% is set out above. The 8% who responded did so voluntarily. They chose to complete the survey, for whatever reason they may have had, reasons that are unknown to us. The other 92%, almost all of us, for whatever reasons we may have had, chose not to complete the survey.

    7.  Wouldn’t the response of the 8% who chose to participate in the Stratcom survey be the result of self-selection, the participation of people who volunteered to do so and, therefore, would that not mean that the information from that 8% should not be applied to the other 92% because of self-selection bias?

    8.  Shouldn’t the information from the Stratcom Report 8% participation be treated the same way as the information from the Kay Report 35.78% participation, which latter report on page 11, determined that:

    “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.”

    H.       Conclusion

    1.  The Law Society has not proven that racism is systemic in the legal professions in Ontario, regardless of whether the test is beyond a reasonable doubt or on a balance of probabilities.

    By Donald W. Kilpatrick