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.
All submitted content reflects the opinions of the writer only, and not necessarily those of the StopSOP team.
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Dec10TueDecember 10, 2019
November 16, 2017
Equity and Diversity Initiative
The Law Society of Upper Canada
The Law Society of Ontario
130 Queens Street West
Response to the Law Society’s “Strategies to Address Issues of Systemic Racism in the Legal Professions”
My name is Donald Kilpatrick and I practice in London, Ontario. The following are my comments regarding the Law Society’s report and recommendations regarding what is said to be systemic racism in the legal professions.
A. Systemic Racism
It is extraordinary to allege that racism is “systemic” in the legal professions in Ontario and an insult to the non-racialized lawyers and paralegals practising in Ontario.
As lawyers, we understand the need for evidence. Proving extraordinary allegations should require an extraordinary amount of relevant and material evidence. But if the test in this case is even just a balance of probabilities, that test has not been met by the Law Society.
One of the statistics used by the Law Society Appears in Appendix A at the end of the Final Report on page 50. The statement is the following:
“Similarly, 43% of racialized licensees identified ethnic/racial identity as a barrier/challenge to advancement, while only 3% of non-racialized licensees identified ethnic/racial identity as a barrier.”
Therefore, according to the Final Report, one could very well say the following,
“Conversely, 57% of racialized licensees did not identify ethnic/racial identity as a barrier/challenge to advancement.”
Based on that statistic alone, it is difficult to understand how the Law Society can justify vilifying most of the 58,000 lawyers and paralegals in Ontario by labelling them as racist.
Words are important and if the Working Group thought there was some evidence of racism in the professions, it could have chosen to say that, i.e., that there exists “some” racism in the professions but it is not surprising that the Working Group chose to use the inflammatory term “systemic racism”.
If the Working Group had said there was evidence of some, though not “systemic”, racism, and had made recommendations that were reasonable and proportionate to the degree or extent of racism found then the response of the profession would have been much different.
There are a number of challenges that racialized licensees appear to have encountered. The statistics for the racialized and non-racialized licensees for these particular challenges or problems are compared. There are two points, though, that I believe should be made:
I. Difficulties and Challenges
a) anyone who has practised law in Ontario will have encountered most, if not all, of the following: difficult files, as well as difficult and disagreeable clients, employers, employees, associates, opposing counsel, judges, etc. Everyone must deal with these difficult situations, it is part of the job;
b) the practice of law is not for everyone and anyone who has practised for any length of time will know colleagues from law school who are no longer practising law.
II. The Survey
The online survey of the profession was sent out in November 2013. The Stratcom Report states as follows:
“Whereas 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 [was] intended to generate insights applicable to all licensees as a community and as a collection of subgroups.” [emphasis added]
I am not a statistician but it would appear there is good reason not only to doubt the reliability of the information generated by the survey but also question whether it sufficiently engaged the professions and whether the Working Group heard from the professions at large. There are two reasons for this:
1. The Response Rate
Presumably, the survey was sent to all 58,000 licensees. Here is what we are told by the Stratcom Report:
a) the number of licensees accessing the survey was 5454, which is 9.40%; and,
b) the number of licensees completing the survey was 3296, which is 5.68% of the 58,000 licensees.
With less than six percent responding to the survey, how could the survey possibly “generate insights applicable to all licensees as a community and as a collection of subgroups”?
Stratcom Strategic Communications, while giving the figures for the completion of the survey, did not seem to be concerned about the low response to the survey. Stratcom says that the online survey was advertised to all members of the Law Society in good standing and only 3296 licensees completed the survey. What Stratcom was concerned about was not the low response to the survey but rather that racialized licensees responded in greater numbers, proportionately, than had non-racialized licensees.
In its report, Stratcom said,
“This [the overrepresentation by racialized licensees in the survey] is not unusual in quantitative studies, and can be corrected for, provided the source and scale of the numeric over or under-representation of particular subgroups are understood. A typical remedy is to “weight” the survey data so that the results align with the known (or precisely estimated) proportions from a census or other prior reliable quantitative study.
We undertook a two-step method to achieve an overall representative sample. First, we used a weight raking (sample balancing) algorithm to adjust the samples of lawyers and paralegals separately …. The weighting process yielded a sample that produces representative, unbiased estimates of the views and opinions of Law Society licensees.”
Some people may accept this survey as realistic giving, as Stratcom says “representative, unbiased estimates of the views and opinions...”, but I do not.
Even if in the world of statistics a response rate of 5.68% is sufficient to render valid the findings of this survey, which to me, not being an expert, it is questionable, given the issues being investigated and the extraordinary recommendations of the Working Group, this is not simply a matter of numbers and percentages. When the survey report came back showing that 5.68% of the 58,000 licensees completed this survey, would it not have been better for the Working Group to have concluded that they were simply not getting the attention of the professions and the professions were not engaged at all in the project?
Another way of looking at the response rate is that 54,705 licensees chose not to participate in the survey. That is 94.32% of the licensees in this province.
Let’s put aside, for a moment, the responses of the 3296 licensees who completed the survey and ask ourselves what message is being sent to the Law Society by the 94.32% of the members of the two professions who chose not to participate.
Regardless of whether a 5.68% participation rate is reliable or not, what is very clear is that almost the entire membership of the Law Society have not been heard on this very important question, i.e., whether racism exists in the two professions.
2. Who Responded?
Here is what the Stratcom Report tells us about the 3296 licensees who completed the survey:
The research design required responses from both racialized and non-racialized licensees, but due to the subject matter of the study – which was widely known to LSUC members and stated clearly in the survey invitation – there was a large response from licensees who self identify as racialized, compared to the proportion of the total population they actually comprise.”
If only 5.68% of the licensees completed the survey and that small group of licensees was over-represented by racialized licensees, what tiny percent of the Law Society non-racialized licensees in Ontario participated in the survey? And, consequently, how reliable are the comparisons given in the Working Group report, e.g., the various difficulties encountered by racialized and non-racialized licensees?
3. Community and Consultant Engagement Process
The Consultant Engagement Process consisted of 20 key informant interviews, 14 focus groups with racialized licensees, two focus groups with non-racialized licensees and a survey of the professions – seven times as many focus groups with racialized than non-racialized licensees. Of the 16 focus groups, one took place in London, one took place in Ottawa and the other 14 in Toronto. How does that property canvass the 58,000 Law Society licensees practising in the province of Ontario? Is there is an algorithm for this?
The Community Engagement Process consisted of “information collected by 52 prominent and experienced racialized legal professionals”. This, apparently, was “information”, not collected from these 52 professionals but by them.
The Consultation Process consisted 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 licensees from across the province and 46 written submissions to the Working Group. (It is not clear to me whether the group of 1000 included members of the public as well as racialized and non-racialized licensees.)
In the paragraph quoted above dealing with the goal of the survey the purpose of the witness interviews and focus groups is explained:
“Whereas 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 ……” [emphasis added]
If the interviews and focus groups are not intended to represent the whole of the membership of the professions in determining whether systemic racism exists in the professions maybe it does not matter where the 16 focus groups were held, but if so, what purpose is served by having “insight into the concepts, narratives, ideas and experiences of the study population”?
Those “concepts, narratives, ideas and experiences”, i.e., complaints, anecdotal evidence, may be fine at the outset in drawing the attention of the Law Society to what may be a problem but, surely, alleging that racism is systemic throughout the membership of the Law Society cannot be established and proven by anecdotal evidence.
In fact, the Stratcom Report clearly says as much, saying that that is not the purpose of the interviews and focus groups, i.e., that they are not intended to represent the membership of the professions. That is because the plural of “anecdote” is not “data”.
4. What Is the Evidence of Systemic Racism in the Professions
Only 5.68% of the two professions responded to the survey. Is it reasonable for the Law Society to declare that racism is systemic in the professions based on a survey completed by about 6% of the 58,000 members of the two professions?
Why should we believe that the survey tells us anything at all other than that no information whatsoever, nothing other than their nonparticipation, was received from almost the entire membership of the Law Society.
The Community and Consultant Engagement Process
The information generated by this process was, it is said, qualitative which, presumably, means the information is not quantitative, i.e., one cannot take the information generated by this process and apply it to the 58,000 licensees.
5. Here Are Two Things That Are Not Evidence of Systemic Racism in the Legal Professions in Ontario
The Academy Awards
I do not expect the report of the Working Group to read like a factum but what is the purpose, what is the probative value of making reference to the Hollywood film industry? What does #OscarsSoWhite have to do with the very important issue that the Law Society is investigating?
Is the Working Group saying to us, “Look, racism is everywhere, even in Hollywood, therefore it must be systemic in the legal professions in Ontario.” ?
Black Lives Matter Toronto
The same question can be asked about BLM. Again, what on earth does Black Lives Matter and its allegation of “state-sanctioned violence” have to do with the legal professions in Ontario?
Evidence is important. The report of the Working Group is not a magazine article. The report is not meant to address racism in society. It’s meant to address the question whether racism exists in the legal professions in Ontario. References to Hollywood film awards and political and social action groups add nothing to the discussion and, in fact, may cause some to doubt the probative value of the other information in the report.
6. Reasons to Doubt the Existence of Systemic Racism
Increase in the Number of Racialized Lawyers
According to the Law Society,
“Since 2001, the proportion of racialized lawyers in the Ontario the 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.”
Surely, 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.
Percentage of Racialized Paralegals
For paralegals in Ontario, the figures show that in 2014 racialized paralegals represented 34% of the paralegal profession in Ontario. That figure is higher than the percentage of racialized Ontarians. What are we to make of that figure other than there is no real problem?
The Discrimination and Harassment Counsel Program (DHC)
The Working Group has recommended that the Law Society’s Discrimination and Harassment Counsel Program (DHC) undergo a review of its function, processes and structure. In a discussion of Recommendation 12 the following statement appears:
“…………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 in sex, respectively.”
After comparing these figures to complaints based on race made to the Ontario Human Rights Tribunal it is surprising that the Working Group, rather than expressing some doubt as to whether there is systemic racism in the professions, questions the DHC program statistics saying:
“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.” [emphasis added]
The figures gathered over the ten-year period do not support the argument that there is systemic racism in the professions but the Working Group does not seem willing to accept that there may be valid evidence tending to show that they are wrong. I would think that in investigating any complex subject such as racism in the legal professions that it would be inevitable that there would be some evidence, some being statistical evidence, that would tend to prove the contrary. I am sure that happens all the time.
The refusal of the Working Group to acknowledge that maybe all of the evidence available does not support their argument is troubling.
7. The Recommendations of the Working Group
The Law Society, in my opinion, has not shown that there is a need for the 13 recommendations in its report called Strategies to Address Issues of Systemic Racism in the Legal Professions.
Recommendation 3 is entitled, “The Adoption of Equality, Diversity and Inclusion Principles and Practices”. The recommendation consists of four parts. I would like to deal with the first part which reads as follows:
“The Law Society will:
1) require every licensee to adopt and 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;”
As members of the Law Society we are bound by the Rules of Professional Conduct and we are also governed by Ontario’s Human Rights Code. We know what conduct or behaviour the Rules and Code proscribe.
We are told what we must do and must not do.
However, what the Law Society cannot do is tell us what to believe. The problem with Recommendation 3 is not only compelled speech, which would be bad enough. It is also compelled thought.
In a society as diverse as one finds in Ontario, there are a great number of religious beliefs, creeds, creeds
In a society as diverse as one finds in Ontario, there are a great number of religions. As well, religious or not, most people are guided by some personal code of morality, I believe in what is right and wrong, social mores, an understanding of what is accepted as proper behaviour in public and private, etc.
The simple fact is that everyone in Ontario does not agree on some very essential matters, some of which are covered by the Human Rights Code.
There are many people in Ontario, including many licensees, who do not support all of the moral, religious and ethical bases for the interests protected by the Human Rights Code.
And, further, many licensees do not subscribe to or accept the authority for the social engineering in which the Working Group is attempting to engage in by means of its many recommendations.
For example, although I am a pro-choice atheist in favour of gay marriage, i.e., someone whom the Working Group would embrace, there are colleagues I have known for decades who do not subscribe to all or even any of those three beliefs, i.e., they are opposed to a woman’s right to obtain an abortion, they believe in God and they are opposed, some adamantly, to according any rights or recognition at all to the LGBTQ community.
It is not illegal in Canada to believe in God, nor should religion be the source of mockery as our new Governor General would seem to think.
Many licensees believe in God, are members of congregations and attend places of worship. Many licensees belong to faiths the core beliefs of which command them to oppose abortion considering it to be murder, to oppose gay marriage quoting the Bible as justification for their position, to oppose granting wives equal authority with their husbands, etc., and many of the freedoms and interests protected by the Human Rights Code are not only not condoned by members of their faith, these freedoms and interests are assailed and railed against.
Licensees who are morally or religiously opposed to abortion and gay marriage are not breaking the law. They are entitled to their beliefs whether or not these beliefs are in accord with the beliefs of the chattering classes.
The Law Society has the right to be concerned about how licensees treat each other, their clients, the judiciary, etc. but the Law Society has no right to re-educate licensees to correct beliefs that are contrary to the accepted beliefs of the Society.
When the Law Society tells us that we have an obligation,
“to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public;” [emphasis added],
the necessary and unavoidable corollary of the obligation to promote “equality, diversity and inclusion generally” is an obligation to do nothing that would tend in any way to hinder, impede, refuse, delay or deny the freedoms and interests contained in the three concepts “equality, diversity and inclusion generally”.
In short, if I were a Roman Catholic and did not hide it from my friends, colleagues, clients and the public generally would not my being a member of the Roman Catholic faith be seen as acting in a manner contrary to the first part of Recommendation 3, failing or refusing to promote “equality, diversity and inclusion generally”?
Is there any question that the Roman Catholic faith is a faith which quite vocally and vociferously, opposes a woman’s right to abortion on demand, a faith that considers gay people as being, if not sinners, disordered, or whatever the current epithet is?
Is there any question that many core beliefs of the Roman Catholic faith are totally opposed to a number of freedoms and interests covered by the concepts of “equality diversity and inclusion generally” and the Ontario Human Rights Code?
If I am a member of the Roman Catholic faith and support the church through my attendance and financial contribution, am I failing to “promote equality, diversity and inclusion generally”?
Surely, licensees in Ontario are entitled to have religious beliefs but are they entitled to be guided by and express their beliefs?
The real question is, “What kind of “inclusion generally” is the Law Society talking about?”
Or, in other words, “Who is included?” Whose rights and freedoms are protected and whose rights and freedoms will be seen as contrary to the “inclusion generally” concept of the Law Society?
Inclusion and Social Engineering – Affirmative Action and Quotas
Here is a further question. What is the basis for believing that the legal professions in Ontario should reflect the diversity of the Ontario population? Are barriers to entry and advancement in the legal profession the only reason that the legal profession does not reflect the diversity of the population?
Could it be that some minority populations of the province have only reached their current numbers in recent years? How long does it take to finish law school, from JK to the call to the bar? If, for example, Ruritanians began emigrating to Canada in significant numbers 15 years ago, why would anyone expect there to be a significant number of lawyers in Ontario today of Ruritanian descent?
Also, are we allowed to wonder whether perhaps people from certain ethnic and cultural backgrounds are more likely to become lawyers or engineers or doctors or university professors than people from certain other ethnic and cultural backgrounds?
Are we allowed to ask that question?
It appears to be a goal of the Law Society to encourage the law schools to make even more use of affirmative action to reconstitute the membership of the professions over time to ensure that the racial and ethnic makeup of the professions reflects as closely as possible the racial and ethnic makeup of Ontario.
8. Other Important Concerns and Considerations
1. Recommendation 2
Recommendation 2 is entitled, “Reinforcing Professional Obligations”. This recommendation provides as follows:
“2. The Law Society will work with stakeholders, such as interested legal workplaces, legal associations, law schools and paralegal colleges to develop model policies and resources to address the challenges faced by racialized licensees.”
The following two paragraphs appear in the Final Report [emphasis added]:
“One comment received by the Working Group advised that the Law Society should require law schools to remove obstacles against racialized licensees. The Working Group notes that the Law Society does not have authority over law schools; however, law schools are encouraged to participate in the Diversity and Inclusion Project outlined in Recommendation 2.”
“One comment proposed that equity-seeking legal associations should have access to the data collected by the Law Society and that data should be made public at the law school level. The Working Group is of the view that the data should be disseminated to the public through the annual statistical snapshots and that the inclusion index will provide equity-seeking associations and law schools with insights into diversity and inclusion in various workplaces.” [emphasis added]
If the Law Society identifies certain minority communities in Ontario whose representation in Ontario law schools is lower than their percentage composition of the population of the province, what will it do? What is the long-term goal in assembling, keeping and analysing data concerning the composition of the law school student bodies? What does it intend to do with this data?
If the representation of certain under-represented religious, ethnic and cultural communities in the provinces law schools is compared to those communities who might be seen as “overrepresented”, what will happen?
Is it just a matter of time before a law firm in Ontario is told by the Law Society that its racial, ethnic and cultural composition does not match the community in which it is located? Is it just a matter of time before the Law Society tells such a law firm that the next three lawyers it hires must be from X, Y or Z racial, ethnic or cultural group and that the failure to do so would constitute professional misconduct?
Is there any doubt about where this is initiative going?
Given the zeal of the Working Group, perhaps members of some minority communities in Ontario should be concerned. Will “overrepresented” racial, ethnic and cultural communities in Ontario be facing quotas? Given the Law Society’s goal of engineering the makeup of the legal professions, quotas would be the simplest way to do that.
2. White Privilege
The spectre of “white privilege” is referred to by one of the persons consulted by the Working Group. The concept is ridiculous.
Let’s take a moment and think about who is “privileged” in the population of approximately 14 million people living in the province of Ontario.
One group, our own, lawyers in particular, is absolutely and undeniably privileged. Any person who is licensed to practice law in Ontario, particularly as a lawyer, is privileged regardless of the person’s race, religion, ethnic origin or cultural background.
It is easy to forget that we, including the people who are complaining about racism, are members of an elite sector of our society. It is easy to forget that being a lawyer in Ontario not only opens the door to a lifetime career in an ancient and honourable profession, it also enables any lawyer willing to work hard to earn a very decent living.
The sky is the limit.
Racism and bullying and all manner of nasty social behaviour can happen at any level of society. But it is hard to see these licensees as victims. They are lawyers, for heaven’s sake.
Let’s keep this whole question in proper perspective. We as lawyers, all of us, racialized and non-racialized, are very fortunate and privileged people.
In the past there have been groups that have been quite openly discriminated against in the legal profession. What they did was simple. They worked hard and succeeded and they became the kind of lawyers that the rest of the profession, the bar, not only admire but want to work with.
3. Economic Diversity
The real inequality and exclusion that should be addressed is not racial or ethnic or cultural, it is economic. The wealthier one’s family is, the further one will likely go in school. That is true regardless of student loans and grants.
If we are going to try to help anyone, we should be trying to help people who truly do need help, people who are stuck where they are because of their lack of income, employment, i.e., because they are poor.
Generally speaking, poor people do not become lawyers. Some laudable changes in college or university funding have recently been made by the Province of Ontario in paying the tuition of lower income students. This is a huge step forward. It should be extended to all students and all college and university faculties.
Children born in poor families and growing up in Ontario are not as likely to consider finishing university and becoming lawyers, doctors, engineers, etc. as middle and upper middle class children because of the cost. The current range of annual tuition costs in Ontario law schools, and I think I have these figures correct, range from $16,863.70 at the University of Ottawa (Windsor University is about $1.75 more) and the University of Toronto, where the tuition is $33,104.86.
That is just the tuition.
If the Law Society wants to overcome the adversity that many people encounter in becoming lawyers in Ontario, an adversity that faces thousands of people, it should not only support free tuition at all Ontario public colleges and universities, it should establish an outreach program so that children in elementary school are told, by lawyers, that they have a chance of becoming lawyers too.
4. Racial and Ethnic Law Associations
It seems counterproductive for minority lawyers in Ontario to form special organizations based on their colour or ethnic origins. A number of these organizations are referred to in the Final Report. Racialized lawyers cannot complain that they are not treated equally at the same time as they form groups composed exclusively of racialized lawyers from their own particular race, ethnic group or culture. Does not membership in such an organization tell the rest of the professions that they are, in fact, different?
5. Martin Luther King Jr.
Nowadays so many people, especially younger people identify themselves not by who they are as individuals but by their appearance, often by the colour of their skin, which was exactly what my generation was told to ignore when we were growing up decades ago.
The Final Report includes a quotation by Yolanda King, a daughter of Martin Luther King Jr.:
“What we need to do is learn to respect and embrace our differences until our differences don’t make a difference in how we are treated.”
I prefer a statement made by her father in Washington, DC in 1963:
“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
6. My Response to Diversity, in a Nutshell
“You’re black. I’m white. So what? Who cares about skin colour?”
I am not willing to draft a Statement of Principles. In requiring such a statement the Law Society is engaging in compelled thought and compelled speech and has no right to do so. Furthermore, the Law Society has not shown that racism is systemic in the legal professions in Ontario.
Donald W. Kilpatrick
[PLEASE NOTE: This letter gives the percentage of members completing the online survey as 5.68%. That figure was based on a total membership of 58,000. In fact, the 2013 membership was 51,996 and the correct completion rate is 6.3%