Your Letters to the Law Society and Annual Report Submissions

    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. 

    Here is your opportunity to share your letter with your colleagues, if you wish. You may also share the wording you use on your Annual Report, when you say "No" to the Statement of Principles.

    Content will be reviewed in advance for relevance and suitability, and we reserve the right to decline any submission at our discretion.

    All submitted content reflects the opinions of the writer only, and not necessarily those of the StopSOP team. 

    Please include your full name and location of practice, and provide a Word version of your letter, if possible. 

    Forward submissions to admin@stopsop.ca.
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    • OPEN LETTER TO THE TREASURER AND BENCHERS OF THE LAW SOCIETY

      November 2, 2017

      Dear Treasurer and Benchers;

      Re:  The mandatory Statement of Principles on “Diversity and Inclusion” required by the Law Society’s December 2, 2016 Resolution

      I am writing to you as Benchers to express my profoundest concerns about the “Statement of Principles” decision of the Benchers of December 2, 2016 regarding Recommendation 3(1) of the Working Group, dealing with “Diversity and Inclusion”.  More than that, I have reviewed in great detail the Law Society’s process and decision on the issue, including the transcript of the Law Society’s proceedings of December 2, and it seems to me based on the way things went that the Law Society’s position is now firm and fixed and straightforward – “sign the paper”!  I am therefore advising you, to be clear, that I will not “sign the paper”, not now, not ever.  You can activate your “compliance” measures against me.  You can initiate disbarment proceedings against me if you want.  Whatever.  I will not sign.  Let the chips fall where they may.

      Indulge me please in a few words of background.  As a young kid growing up, I loved reading anything and everything, and I always assumed, without ever even thinking about it, that here in Canada I could think for myself and believe what I thought was right.  That is a wonderful feeling, and part of my soul.  And I’ve always believed that that was also a very special part of being a member of the very special profession of lawyer.

      Back then I knew about the 1948 United Nations Declaration of Human Rights and its affirmation that: “Everyone has the right to freedom of thought [and] the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference”. 

      But I thought then that that was mostly an issue for other people in far away countries, not something that I would ever have to really worry about – not here in Canada!

      Now the Law Society is demanding that I openly state that I am adopting, and will promote, and will implement “generally” in my daily life, two specific and pretty significant words or “principles”, words that are quite vague but sound important. When I first read that a year ago I was completely floored.  What is going on here? This sounds like I’m supposed to sign up to some newly discovered religion, or some newfangled political cult.

      Since then, I have studied the Law Society’s process and decision, and the surrounding issues, in great detail, always hoping that I will discover that it is all just a bad dream.

      It looks like what started out as a laudable effort by the Law Society to address racism has morphed, at least in Rec. 3(1), into something else – into me and thousands of other lawyers in Ontario being forced to adopt what sounds like someone else’s political ideology.

      It seems that the Law Society’s main justification for attempting to compel me by force of law to publicly avow allegiance to this “Statement of Principles” is that this Statement is supposedly merely a “restatement” or “reiteration” or “acknowledgement” of lawyers’ “existing obligations under the Human Rights Code (according to the transcripts of the December 2 meeting, that’s what five leading Benchers say).  Well, I’m sorry, but after practising thirty years as an egalitarian polycultural social justice lawyer I know a bit about the Ontario Human Rights Code.  And the Code tells us what we must not do, but it does not tell us what we must do, and especially it does not tell us what we must think.  The core justification for the Law Society’s decision is, I believe, based on an egregious legal error and an astonishing misrepresentation of the Code.

      I know and greatly respect many of the leaders in this initiative, but I think that maybe some well-intentioned people got a little carried away, and maybe some well-intentioned people were a little misled.

      I believe that a judicial review court challenge of the Law Society’s decision on Rec. 3(1) would succeed.  I believe that the Law Society’s astonishing misrepresentation of the Human Rights Code would not withstand judicial scrutiny.  Never mind, on top of that, the fact that the Law Society gave pretty much no consideration to the Charter right to freedom of thought and belief and opinion – which the Supreme Court, according to the recent Dore decision, is likely to be not too pleased about.

      I have been thinking about a judicial review, and I might do it.  Yes, I would face the prospect of the Law Society paying a million dollars to a senior law firm to spend many years grinding me down, when frankly I wouldn’t even be able to afford a lawyer.  And in any case, the times being what they are, few senior lawyers would be willing to take on (what would now be) the politically highly unpopular task of representing me and saying that just because the words “Diversity and Inclusion” seem cute and cuddly, that doesn’t mean that they’re the law, or that there aren’t some real problems beneath that superficial warmth and fuzziness.  I will have to see what I can do.

      In any case, whether or not I or someone else initiates a judicial review, I will not “sign the paper”.[1]

      THE LEGAL OPINION DATED NOVEMBER 16, 2016

      I recognize, of course, that the Benchers had before them a legal opinion supporting Rec. 3(1), and it seems that that legal opinion had a great deal of influence, based on the transcript of December 2.

      Unfortunately, despite the fact that the Working Group had been working on the issue for several years, the legal opinion is dated about two weeks before the Benchers’ meeting, and I understand that it was actually first delivered to the Benchers only about two days before the Benchers’ meeting. 

      The legal opinion is 35 pages long (single-spaced) and is very dense and quite challenging to really understand.  How the Benchers, who are all very busy people, and who have many other Law Society issues on their plate with which to deal, could be expected to responsibly digest and evaluate this legal opinion in that time-frame is beyond me.  Furthermore, the legal opinion seems to have been crafted with some pretty significant “weasel wording” – such as the constant use of the key term “consistent with”.  That is a phrase that usually means “does not contradict” but is often used to insinuate that something “is the same as”.  Some of that appears to have happened here, in my view, with major (negative) consequences.

      The Human Rights Code

      A key part of the legal opinion is the suggestion, repeated several times, that Rec. 3(1) is basically a non-issue, because it simply restates or reiterates already existing legal obligations (which, I repeat, I believe is legally false).   For example, the opinion states that:

      1.  “We have concluded [that] … licensees are already bound by human rights … diversity and inclusion principles under … the Code” (p. 3);
      2. “The reality is that licensees are already bound by human rights … diversity and inclusion principles under the … Code.” (p. 22); and
      3.  “Conceptually, requiring licensees to adopt a human rights statement of principles is likely to make tangible, more personal and more readily accessible what is currently a generic human rights obligation towards the professions that already exists in … the Code.” (p. 23).

      To be blunt, there is no such currently existing obligation in the Human Rights Code

      It is extremely significant and telling that the author of the legal opinion points to no actual wording in the Human Rights Code to support his position, and to no court precedents, and to no decisions of the Ontario Human Rights Tribunal (or any Human Rights Tribunal in any other jurisdiction), and to no publication of the Ontario Human Rights Commission, and to no academic articles by law professors, to support his suggestion that adopting, abiding by, and promoting principles of “Diversity and Inclusion” is an existing obligation under the Code.  That is because, as far as I can tell from my experience and after fairly extensive research, there are none.

      It therefore appears that the central legal justification given for Rec. 3(1) is founded on …  nothing.

      If Rec. 3(1) were in fact an existing obligation under the Code it is astounding that no court or human rights tribunal has ever said that, or anything like it.

      It seems to me that there was a bit of political “wishful thinking” happening in this legal opinion, and in how it was used.[2]

      And, as an aside, in thirty years of legal practice, I have never heard of such a thing as “a generic human rights obligation”, or even of any “generic legal obligation”, for that matter.  A word search of the entire massive database of legal precedents on CanLII seems to verify my experience.  Using the word “generic” in this case seems to be a way to extrapolate from something that is there (in the Code) to something else that isn’t there (in the Code) – because maybe one wishes it was there.

      Further, the author of the opinion seems to actually contradict himself when he notes elsewhere in the opinion (on p. 5), correctly in my view, that “The Code regulates conduct in certain social areas and in respect of certain prohibited grounds.  It does not regulate thought, belief or conscience.  Individuals are free to think and believe what they want … . it is at the point of conduct that their freedom is constrained.” Well, it seems quite clear, to me at least, that merely “constraining” my “conduct” is very different from “requiring” me to “adopt” and “promote” certain specific “principles”.

      I could add that, several years ago, the author of the legal opinion was commissioned by the Ontario government to conduct a major review of the Ontario Human Rights system, and he delivered an extensive, 146 page report.  Nowhere in that report is there any suggestion that adopting and abiding by and promoting the principles of “Diversity and Inclusion” is a legal obligation of anyone, lawyers or otherwise.

      The Rules of Professional Conduct

      In addition to the key reference to the Human Rights Code, there is also the suggestion in the opinion, and in the discussions of December 2, that the Law Society’s existing Rules of Professional Conduct already contain the Rec. 3(1) obligation. That is apparently based on the fact that the existing Rules require lawyers to “recognize” and “protect” the diversity of Ontario.  Well, I can “recognize” and “protect” something without me personally believing in it, living it, or promoting it.  Big difference.  The existing Rules give no justification for Rec. 3(1).

      The overall – and shocking – conclusion is that the Law Society’s main justification for attempting to compel me to publicly adopt and live by and promote certain specific principles - to “join the political cult” – namely, that that is nothing more than an already existing legal obligation, has no legal basis and is false.

      The Charter right to freedom of thought and belief and opinion

      I believe that the Law Society’s Rec. 3(1) requirement violates the Charter right to “freedom of thought, belief [and] opinion” of myself and of tens of thousands of other lawyers.

      The Working Group did not appear to even think this was an issue.  The Charter is not even mentioned in its 48 page Report, nor is the idea of freedom of thought and belief and opinion.

      The Law Society clearly has the delegated legal authority, under the Law Society Act, to manage the profession in the public interest, and this authority is quite broad (Dore).  However, the law is clear that the Law Society must give very serious consideration to the Charter if its decisions appear to impinge on the rights in the Charter

      And yet the Law Society barely considered the Charter value of freedom of thought, belief and opinion.  The reason for this omission, it appears, as described above, is the view, stated (erroneously) in the legal opinion, and emphasized by five Benchers in the meeting of December 2, that Rec. 3(1) merely restates existing legal obligations.   The logic appears to be that if Rec. 3(1) simply restates existing legal obligations, then “there’s nothing new here”, so there’s no need to really think about how this might affect Charter rights.

      The author of the legal opinion notes that the Supreme Court of Canada has recently set out in the Dore case that where a regulatory body with delegated legal authority, such as the Law Society, is making a decision that impinges on a Charter value, the statutory decision maker must “balance the severity of the interference of the Charter protection with the statutory objectives”.

      Specifically, according to Dore, the court will test whether the decision-maker’s analysis “centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives.” [para. 7, emphasis added]   And, “the decision-maker should ask how the Charter value at issue will be best protected in view of the statutory objectives.  This is at the core of the proportionality exercise …”. [para. 56, emphasis added]   And, the decision-maker must “demonstrate that they have given due regard to the importance of the [Charter] rights at issue.” [para. 66]

      In fact, the legal opinion never even asks or considers, and the Law Society never even asks or considers, whether Rec. 3(1) “interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives”.  And neither the legal opinion nor the Law Society even ask or consider “how the Charter value at issue will best be protected”.

      Further, if the Law Society had been serious about a “balancing” exercise, should it not have given some thought to the possible or likely negatives of Rec. 3(1)?  For example, what about the lawyers (and I suspect there are probably tens of thousands in Ontario) who would support a wide range of anti-racism measures in the profession, but who might not actually want to state outright that they actually “believe in” the rather vague and politically loaded and charged words of “Diversity and Inclusion” – Rec. 3(1) turns them into liars to themselves, and cannot help but make them cynical about what the Law Society is forcing them to do, and about “Diversity and Inclusion”, and about the Law Society itself.  And what about the effect on the perception of lawyers among the public, who will surely know that thousands of lawyers are publicly saying they believe in something when everybody knows that many of them really don’t?  The Working Group and the Law Society gave virtually no consideration to these real and serious issues. 

      I am not setting out here in detail what the Law Society should have done – I am saying that what the Law Society actually did is nothing like what it should have done.

      In this case, the legal opinion, and the Benchers, simply “sidestep” the Charter issue, and decline to give it any serious consideration, because they keep coming back to and repeating the same justification – that Rec. 3(1) does nothing more than reiterate and acknowledge obligations already existing under the Code and the Rules.[3]  [4]

      The result of all of this is that Rec. 3(1) does not seem to have any legal leg to stand on.  It is based on a serious legal mistake and misrepresentation, and on a willful blindness to some serious issues of basic Charter rights.  It seems to be riding a political freight train that got a little out of control.

      WHAT KIND OF NEANDERTHAL COULD POSSIBLY HAVE RESERVATIONS ABOUT “DIVERSITY AND INCLUSION”?

      Now, here’s a different but related issue in the circumstances. I suspect that there are some Benchers and some people “out there” who will roll their eyes and say “It’s 2017, only some kind of Neanderthal would have any hesitation about endorsing “Diversity and Inclusion”.  And of course he’ll hide behind that hoary old chestnut, the so-called ‘freedom of thought and belief’”.    

      So imagine a lawyer who had hitherto been vaguely and in a general way more-or-less supportive of “the principles” of “Diversity and Inclusion” but who was quite taken aback, on first reading the Law Society’s Working Group Report, to discover that he/she was now going to be legally forced to publicly declare unqualified allegiance to those “principles”.  

      And further imagine that that lawyer reads and watches quite a bit of news and what’s out there, and is fully aware that anyone who raises any questions at all about the idea(s) of “Diversity and Inclusion” is savagely attacked in all manner of fora and in many vicious ways and is basically made a pariah and an outcast.

      Now imagine that that person, after a great deal of research, reading and reflection on this topic and these issues, had the following thoughts occur to him/her:

      1)      First impressions matter, and in terms of first impressions, “Diversity and Inclusion” scores big.  Most people would agree that the words “Diversity and Inclusion” definitely have a feel-good ring to them, suggesting open-mindedness, and a desire to be genuinely respectful of other people.  So anyone who appears to hesitate in fully endorsing “Diversity and Inclusion” seems a little suspect, to say the least; and

      2)      Nevertheless, “Diversity” seems like an extremely vague concept.  More than that, it seems to be vague in a special way.  It’s like “vagueness squared”.  “Diversity”, when used as it is in many situations, seems to mean that anything that is different is good, simply because it’s different. Really?  It’s almost a bit like saying “Everything is good.”   Sure, “diversity” can be interesting and fun – if one is deciding which restaurant to go out to for an evening.  But what we are grappling with here is something quite different and very serious - this is about the practice and the profession of law – for close to 60,000 lawyers in Ontario, now and in the future.  One wants to gently say “Excuse me, can I just ask, diversity of what? And why? And how much?”  And “Inclusion of what? And why? And how much?”; and

      3)      It may be possible that sometimes “Diversity” is a good thing and maybe sometimes “Diversity” is a bad thing, depending on the circumstances, on what one means by “Diversity”, and on what one is trying to achieve. And sorting that out seems like it might be quite complicated; and

      4)      It seems to be the case that proponents of “Diversity and Inclusion” are usually a bit reluctant to say what they really mean by those terms, and seem to be a bit reluctant to discuss whether there are any limits or constraints on the idea, or what any limits or constraints might be. Maybe that’s because it’s politically easier to gain support for something when one can appear to be offering something to everyone, and not having to say “no” to anyone;[5] and

      5)      The “idea” or “principle” of “Diversity” seems to have had no real “intellectual history” (that is, no political theorist, or political activist for that matter, really thought much about it) until 1978, when a single lone (and politically conservative) United States Supreme Court judge pulled the “Diversity” idea pretty much out of nowhere in the Bakke case as a form of political compromise, and said “this is a big deal”.  Since then, the idea has had a most unusual and checkered history.  Does this imaginary person really want to “pledge allegiance” to an idea or “principle” that, on closer examination, was more or less “thrown up by circumstances” and seems more of a political strategy than a genuinely thoughtful political “principle” that one should “believe in”; and

      6)      The idea of “Diversity”, when one looks a little below the surface, thereafter (that is, after 1978) became often quite closely interwoven with various strands of the “ideologies” of postmodern neo-foucauldianism (which is essentially about attacking all knowledge claims as being to a large extent expressions of privileged power, and about living a life of narcissism -- “it’s all about me”) and some fairly extreme “social constructionism”, neither of which “ideologies” this person we’re imagining is necessarily a big fan of;[6] and

      7)      One can be open-minded and very willing to learn from the ideas of “Diversity and Inclusion”, even if one is unwilling, for principled reasons, to fully and publicly and formally “adopt” and “promote” them; and

      8)      This imaginary person might well support – quite strongly - the goals that underlie the Law Society’s “Diversity and Inclusion” initiative, but might still think that, all things considered, trumpeting “Diversity and Inclusion” might not be a necessary or particularly smart way to try to advance them; and

      9)      The Law Society’s “Diversity and Inclusion” initiative seems to have the intention of forcing a particular currently popular political ideology into all aspects of a lawyer’s mind and daily life, an intention which seems both clear and deeply chilling.  The Working Group Report says:  “The Working Group recommends that in order to ensure that licensees infuse the principles of … diversity and inclusion into their everyday practice the Rules of Professional Conduct … be reviewed to determine how this objective can be achieved.” [emphasis added] (p. 16)  And:  “The Working Group believes that requiring licensees to make a clear commitment to … diversity and inclusion will encourage licensees to consider their individual roles in creating lasting change.” [emphasis added] (p. 19) This is actually pretty shocking to this imaginary lawyer.  “This sounds like the Law Society taking over my mind and turning me into its robot”; and

      10)   Proponents of “Diversity and Inclusion” often seem to have a, or various, “hidden agendas”, which can be “masked” by the extremely vague and broad and pleasant-sounding term itself.  In the case of the Law Society’s December 2 decision, what was for several years portrayed to the profession as an effort to combat specifically racism, was, at the end of the Benchers’ December 2 meeting, in the space of ten minutes, with no substantive discussion, suddenly “extended as appropriate to all equality-seeking groups” [emphasis added] – whatever that might mean.  This seems to be a “bait and switch” maneuver of breath-taking proportions.  And the scope and vagueness of the new obligations – adopted in ten minutes with no serious thought or consideration - to “all equality-seeking groups”, is equally stunning. That seems to be what the vague term “Diversity and Inclusion” lends itself to – and is often “used for”; and

      11)   The vagueness and initial attractiveness of the “Diversity and Inclusion” idea lend themselves to a two-layered political or institutional strategy by proponents, in which “Diversity and Inclusion” are first adopted in principle, and then a murky and unaccountable and potentially ideologically-driven “enforcement process” is created.  That seems to be happening at the Law Society.  Once all lawyers are legally forced to say that they are adopting the principles of “Diversity and Inclusion”, the Law Society can implement a special department of staff to enforce the new requirement.  In this case, the Law Society’s Working Group recommended, and the Law Society accepted, that “enforcing compliance” would be in the hands of “a specialized team of Professional Regulation staff members to address complaints of racial discrimination.  The members of this team would undergo extensive training on issues of race and racism in order to prepare them to effectively handles these types of complaints.” (p. 34)  Given some of the rather wild ideological ideas that are currently out there under the banner of “Diversity and Inclusion”, a lawyer could reasonably have some worries about what perspectives that “specialized team” would hold, and what views that “extensive training” would instill, and that lawyer could reasonably live in fear of the day that the Law Society’s “specially trained” D&I squad knocks on his/her door for his/her mandatory “re-education” sessions; and

      12)   It seems that a main concern of the Law Society throughout this process was a desire to increase and enhance the “mentoring” possibilities for young or junior “racialized” members of the profession, and rightly so.  Mentoring, as this imaginary lawyer sees it, is, among other things, a complex process of knowledge transfer, from mentor to mentee.  In a professional setting such as legal practice, the knowledge being transferred is very often multifaceted, nuanced and complex.  And yet very often the knowledge transfer must take place in conditions of stringent time constraints, high pressure and high stakes.  And sometimes the knowledge being transferred is not what the younger or junior lawyer expected or necessarily wants to hear.

      Very often, such mentoring knowledge transfer essentially takes the form of “actually, no, don’t do it that way, do it this way”.  In a perfect world, that would be part of a discussion of “why” and of various alternatives (and often it is) but in the existing non-perfect world of actual legal practice that is often not possible.

      A genuine mentoring relationship therefore requires a significant amount of trust on the part of the mentee that recognizes various interactions are set in a broader context.

      However, the “principles” of “Diversity and Inclusion” – as they are set out and imposed by the Working Group and the Law Society -  undermine and poison that relationship and that trust because they are oblivious to the nature and nuances of real mentoring. 

      A part of the problem is the concepts of “Diversity” and “Inclusion” themselves. They are simultaneously extremely vague and yet now, thanks to the Law Society and Rec. 3(1), are considered fully mandatory and enforceable. And they suggest that “Everything is good, and you can’t tell me anything”

      If a senior lawyer says, in a moment of great time pressure and high stakes and on a complex issue:  “No, don’t do it that way, do it this way”, the younger lawyer will now feel entitled and encouraged (thanks in part to Rec. 3(1)) to say, in effect: “Well, I disagree, that’s your biased and privileged and power-contaminated opinion, but you are being insensitive and disrespectful and not respecting diversity and you are not being inclusive.  And by the way, you’ve just committed a micro-aggression, your underlying assumptions are not valid because they are socially constructed, and you are not being culturally competent.”

      Some of those accusations may in fact be partly true – but some may be false.  And any attempt to say the latter is automatically, under the rules of “Diversity and Inclusion”, not allowed.[7]

      The smart senior lawyer may, quite reasonably and sensibly, and with a new-found sense of cynicism, say to himself/herself “Well, good mentoring is actually quite hard work, and if I am supposed to deal with all this, on top of all the other pressures of practice, well, who needs it?” and quietly cut back on his/her plans for mentoring, in both big and little ways (without openly saying so).

      In fact, after the Law Society decision and because of it, that is what this imaginary lawyer has already done.

      The Law Society’s “overkill” on Diversity and Inclusion can therefore (and probably will) actually in some ways undermine the mentoring results which the Law Society desired; and

      13)   Analytically, one might conclude that the Law Society may have adopted Recommendation 3(1), at the end of the day, mainly because of simple, crass “politics” – if enough people, who strongly support something (whatever it may be), forcefully advocate for something, with enough tenacity, aggressiveness, and procedural skill, how, at the end of the day, can elected representatives, for many of whom it’s just not worth the effort of raising questions, resist? And anyway, at the end of the day, who can publicly not support the “cute and cuddly” words of “Diversity and Inclusion”? and

      14)   Perhaps the profession of law in Ontario is changing from one in which freedom and independence of thought are celebrated to one in which they are suppressed and punished, based on political ideology.  If so, perhaps smart people out there, either young or more mature, who are considering entering the profession may want to take note and rethink their plans, and perhaps some individuals who are presently proud members of the profession may want to think about changing to some other field of endeavour.

      Now suppose that this imaginary person, after reflecting on all of the above, concludes that some, or most, or all, of the above ideas seem to have some considerable validity, to varying degrees.

      Would that person be justified in relying on the idea (and the constitutional right) of freedom of thought and belief and opinion, and on that basis refusing to “sign on to” the Law Society’s “pledge of allegiance” to “Diversity and Inclusion”?  I say yes.

      I suspect that there are quite a few of such “imaginary lawyers” out there who have considered some of the above thoughts, to varying degrees.  I can’t speak for anyone else, but I can speak for myself, and I say that “no”, I won’t bow down to your attempt to force me to adopt, and abide by, and promote, principles that to me seem open to a lot of real and serious questions but that you happen to think are best.  I prefer to think for myself, thank you very much.

      As a life-long advocate for social justice and the marginalized, often at considerable personal cost, I feel very saddened that it has come to this.

      In Canada, of all places.  And the Law Society, of all organizations.

      And now, if you’ll excuse me, I think I hear the faint creak of the Law Society’s tumbril headed my way, so I have to go and pretty myself up for my public professional decollation.[8] 

      Sincerely,

       

      Murray Klippenstein

       



      [1]              The issue of how the Law Society will enforce compliance with Rec. 3(1) is one of several aspects of this issue on which the Law Society has used a lot of lawyerly “weasel wording”.  When one reviews the Working Group Report, the Bencher meeting transcript, and public statements on behalf of the Law Society, it is very clear that the Law Society has said that adopting and abiding by and promoting the principles of “Diversity and Inclusion” is “mandatory” and that enforcement of compliance is planned, but at the same time, the Law Society seems afraid to come out and say so clearly and consistently.  In the Working Group’s Report, under the heading “Progressive Compliance Measures”, the Working Group says that it “recognizes that there must be mechanisms to deal with non-compliance. … The Working Group envisions a graduation of responses, such as meeting with representatives of workplaces to discuss concerns … to disciplinary approaches if there is deliberate non-compliance despite multiple warnings.” Well, I am respectfully telling you right now, I am not going to comply with Rec. 3(1), not now, not ever, based on principle and on what I believe is my and our right of freedom of thought and belief.  So, frankly, I’m not sure there’s any point to “meetings” – perhaps I can be spared those, and you can just start with the disciplinary proceedings?

      [2]               Could a court in the future “interpret” the Code as containing an obligation that no court or tribunal has so far seen in it?  I suppose anything is possible.  A court might say “times have changed, this is an important social issue, let’s do that”.  But courts are, in general, supposed to look at the law, not politics.  And reading a positive political obligation of “Diversity and Inclusion” in the nature of Rec. 3(1) into the Code would be a heckuva stretch – because there’s nothing whatsoever in the Code to suggest or support that (and, to repeat, the author of the legal opinion does not identify any such basis whatsoever).

      [3]               In fact, one wonders whether the legal opinion, dated November 16, 2016, was brought in late in the day, “after the fact”, to try to buttress the pre-existing politically motivated (but, on reflection, legally vulnerable) conclusions of the Working Group’s Report dated September 22, 2016, regarding Rec. 3(1) (which Report, as mentioned, itself makes no mention of Charter rights at all).

      [4]              There is another problem with the legal opinion and how it deals with (however inadequately) the Charter right to freedom of thought and belief.   The author of the legal opinion states that the “standard of review”, or legal test, that would be applied by a court in reviewing the Law Society’s decision would be one of “reasonableness”.  But the Court in Dore notes that the “reasonableness” test applies when a decision-maker is exercising its discretion “under [its] home statute” (para. 46 and 47).  In this situation, however, in regard to Rec. 3(1), the core justification given in the legal opinion, and by the Benchers, on the question of the Charter was that Rec. 3(1) was merely a reiteration of obligations already existing under the Human Rights Codeand the Human Rights Code is not the Law Society’s “home statute”. In that situation, the “standard of review” that the Court will apply is not “reasonableness” but “correctness” (see Dunsmuir, para. 124).  Therefore, the Court will ask: was the Law Society’s interpretation of the obligations under the Human Rights Code correct?  And on that question, the answer is “no”. 

      [5]               Here’s the very first line in the Working Group’s Report:  “Inclusion is not about bringing people into what already exists, it is making a new space, a better space for everyone.” [emphasis added] …

      [6]               Suppose this imaginary person’s rough and ready intellectual assessment of neo-foucauldianism and social constructionism is: “one-third perceptive and valuable, one-third debatable, and one-third nonsense”.

      [7]               This imaginary lawyer fully accepts that there is much that is not right about current mentoring in the profession, and that the Working Group has usefully and importantly drawn attention to some of the problems, and has identified some good ideas for progress – but at the same time, it seems to this imaginary lawyer that the Working Group’s and the Law Society’s ideologically driven “overkill” – with Rec. 3(1) being an example – was unnecessary and in many ways harmful, to which possibility the Working Group and the Law Society did not want to give any consideration.

      [8]               I suppose I should maybe apologize for the grim and somewhat forced jocularity of that last comment.  I guess that that is my attempt at what I believe is known as “gallows humour”.  As you can tell, I’m not so good at humour.