In the background materials posted on the Law Society website for Convocation in December of 2017, a brief of supportive letters was included. None of the many letters written by lawyers and legal associations which expressed concern about the Statement of Principles, or the EDI initiative generally, were included.
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Feb21WedFebruary 21, 2018
HON DOUG LEWIS
P.C., Q.C., L.S.M., PCPA FCA
January 30, 2018
Law Society of Ontario 130 Queen Street West. Toronto, Ontario MSH 2N6
Attention: Paul Schabas, Treasurer;
Benchers of the Law Society of Ontario
As a member I have followed the debate with respect to the Statement of Principles with interest. As a member of the Law Society and a Member of Parliament I participated in the Parliamentary debates on the Charter of Rights and Freedoms and voted for the measure. However, I am completely opposed to the Statement of Principles because it purports to require the members to think and conduct themselves in a certain manner. I shall not advance that argument further at this time because Convocation has received plenty of public and member comments with respect to this action.
However, what I will argue is that in the rush to judgment at Convocation in December 2016 the Benchers did not follow the basic rules of parliamentary procedure. The mandatory requirement for members to create and adopt a Statement of Principles is out of order and unenforceable.
The Law Society of Upper Canada Act Section 62 (0.1) gives Convocation the power to make by-laws. Section 10 provides for Convocation to authorize and provide for "the preparation, publication and distribution of a code of professional conduct and ethics.” Section 26 provides for Convocation to "prescribe oaths and affirmations for applicants for a licence or any class of applicants for a licence.”
That is the authority for Convocation - to enact Rules of Professional Conduct. However, at Convocation on Friday, December 2nd , 2016, Convocation adopted the following motion: "That Convocation approve the thirteen recommendations as outlined in the Working Together for Change Strategies to Address Issues of Systemic Racism in the Legal Professions Report.”
Convocation approved the recommendations of a committee. If Convocation intended to provide for a specific amendment to the Rules of Professional Conduct and prescribe an oath and affirmation it should have worded the motion properly as an amendment to the Rules of Professional Conduct. It didn't and therefore Convocation cannot simply state that it has enacted a by-law or an amendment to a by-law and therefore made the Statement of Principles mandatory.
The legal profession and the public looks to the Benchers to 'govern” in a clear and concise manner. However, when the legal profession and the public looks to the Rules of Professional Conduct there is no reference to the Statement of Principles. It is not good enough to say that Convocation approved the thirteen recommendations of a committee when, in fact, the legal profession and public should be able to look to the by-laws.
Any member of the profession or the public who looks to the published Rules of Professional Conduct for guidance in this matter can’t find any reference to the Statement of Principles. I suggest that we look foolish.
In preparing this letter I reviewed Roberts Rules of Order and my well worn copy of the Fifth Edition of Beauchesne's Parliamentary Rules and Forms. There is a sound reason for separating the adoption of committee reports and the enactment of legislation.
Committees do not always report using the exact wording required of legislation or by-laws. The wording of the motion adopting a committee report or recommendation does not always meet the requirement of the wording of legislation or by-laws.
For example, when the Minister of Finance introduces a budget it is in the form of a motion asking the House of Commons to approve a motion of the Minister of Finance. When approved it will require the Minister of Finance to introduce a bill enacting the measures required in the motion.
The bill when introduced is debated and sent to a committee for detailed examination as it is legislation. When approved by the Committee it returns to the House for approval.
While I can't find the exact wording anywhere, the essence of parliamentary democracy is that it is one thing for a committee to study a subject and report back to a legislative body. It is entirely a different matter for the same legislative body to enact a by-law enforcing an action recommended by a committee. They are separate functions.
In this instance Convocation adopted a recommendation by a committee without the proper wording referencing it as an amendment to the by-laws and the Rules of Professional Conduct. What Convocation should have done is received the report and then at a later date adopted a by-law approving an amendment to the Rules of Professional Conduct to provide for a Statement of Principles. That would have provided for the necessary time and debate to properly consider how to enact the Statement of Principles as a rule of Professional Conduct.
Furthermore, there is no reference as to when the requirement to "adopt and to abide” by the Statement of Principles comes into effect. How can the Law Society enforce a by-law which doesn’t provide as to when it comes into effect?
In short, while I object to the substance of what Convocation has done, if Convocation wishes to require members to do something, at least do it properly.
Hon. Doug Lewis, Counsel
Office of the Treasurer
130 Queen Street West Toronto. Ontario
February 6, 2018
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Dear Mr. Lewis:
Thank you for your letter dated January 30, 2018 and your comments relating to the Statement of Principles.
Our communications to the professions in 2017 were very clear in advising that all licensees are required to create a Statement of Principles and to confirm in their annual report, to be completed early this year, that they have a Statement of Principles. The communications included links to various resources to assist licensees in complying with the requirement. Through this and the other initiatives flowing from the Challenges report, the Law Society is committed to addressing the barriers faced by racialized licensees in Ontario.
Paul B. Schabas Treasurer
HON DOUG LEWIS
P.C., Q.C., L.S.M., PCPA FCA
February 11, 2018
Mr. Paul Schabas
Treasurer, Law Society of Ontario
I acknowledge your reply to my letter of January 30, 2018 with respect to the Statement of Principles.
I note that you did not deal with my position that the procedures followed by Convocation in adopting the Statement of Principles as mandatory was not in order.
In a democracy notice (communications) follows decisions reached through due process.
In a democratic process the “end justifies the means” argument is never justifiable and never a substitute for proper governance and due process.
Hon. Doug Lewis, Counsel