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    • Mar9Fri

      Further open letter concerning the Law Society's requirement for a written Statement of Principles

      Originally dated December 5, 2017 March 9, 2018 Paul Lepsoe

      Further Open Letter to members of the Bar of Ontario from Paul Lepsoe Concerning the Law Society’s requirement for a written Statement of Principles

      December 5, 2017

      Dear friends and colleagues:

      This follows my earlier letter of November 15 to my fellow members of the Bar of Ontario concerning the Law Society of Upper Canada’s1 new requirement for each member to prepare a written personal, individual Statement of Principles (“SOP”).

      In that letter, I called for this requirement to be at least suspended before year end at the last meeting of the Benchers (“Convocation”) on December 1. I explained,

      “the Law Society’s requirement opens the door to a significant undermining of the independence of the Bar. It puts at risk something that is fundamental for the profession…. I sincerely do hope that my profession will continue to remove barriers to equality, diversity and inclusion. The concerns that I raise are not with these objectives, but with the new requirement as a means to achieve them.”

      This new letter sets out what has occurred since November 15, particularly what happened at Convocation on December 1 which I attended and where most of the membership may not be aware. My concerns remain.

      Law Society Email of November 21

      On November 21, the Law Society sent out another email to the membership on this topic. It is called “additional clarification” for the mandated SOP, consisting of a new “Guide” for what had originally been sent out by the Law Society by email on September 13. In their email of November 21, the Law Society states, “We have heard from many of you….” (although none of these submissions were made public by the Law Society).

      In the November 21 email, there appear to be very significant watering down of the September 13 material. However, Professor Cockfield, who had written an article in October referring to “the Law Society’s Orwellian dictate”2, has indicated that his position has not changed. The law professor Ryan Alford and his supporters indicated that, despite the email of November 21, they are continuing his constitutional challenge in the court application. Benchers Joe Groia and Anne Vespry had presented a motion in October to be voted on in the December 1 meeting, to provide for conscientious objection exemption from the otherwise mandatory SOP. They indicated their intention to proceed on December 1, despite the November 21 email. (What happened to their motion on December 1 is set out below.)

      There was certainly no change that an SOP is required for retired members, including those who may be now quite elderly but who have remained members of the Bar.

      Benchers Barbara Murchie and Andrew Spurgeon had given notice on November 9 that they would present a motion on December 1. It would have set aside the mandatory SOP, to be replaced by one for members essentially to recognize existing legal obligations. After the email of November 21, Ms. Murchie and Mr. Spurgeon indicated that they would not pursue their motion. Ms. Murchie explained in an email, “Andrew and I brought the motion because there was misunderstanding about the Statement of Principles. We felt that clarification was required. We thought our motion to amend was one way to provide that clarification. Once the Guide was published, we felt our motion was no longer necessary.”

      Material for Convocation on December 1

      Prior to the Convocation of December 1, the LSUC committee that is behind the mandatory SOP distributed a report to the Benchers and posted it publicly. The report consists essentially of the new “Guide”, attaching copies of “letters received from organizations” supporting the SOP.

      There were apparently extensive and numerous individual submissions to the Law Society raising concerns in relation to the mandatory SOP. However, these submissions were not made public by the Law Society.

      Through various sources, I have seen several such individual submissions. They are all respectful and thoughtful.

      Therefore, the written submission of the Ontario Bar Association (“OBA”), dated November 24, stands out. According to the OBA, anyone (such as, presumably, Prof Cockfield, Joe Groia and me) who raises concerns in relation to the mandatory SOP “does violence to the hard work and intention” of those advocating for the SOP, and all of us engage in “misinterpretation and misinformation” [emphasis added]. The OBA staffer assigned to attend the Convocation on December 1 assured me that the OBA submission, over the signature of OBA president Quinn Ross, had gone through the extensive OBA internal approval process before it was issued. “Violence” ?

      Convocation on December 1

      As mentioned, the Murchie/Spurgeon motion had been pulled prior to Convocation on December 1. That left debate on the Groia/Vespry motion alone. Joe Groia spoke only briefly. Given he had represented an unpopular client and paid for it with a penalty of suspension from practice, I think his experience spoke for itself.

      Anne Vespry is less known. Her comments were very moving, and one of the very few of the Benchers along with Joe Groia who seemed to understand an independent Bar. She descripted herself as “brown” and “butch”. She referred to her experiences in the 1980s where, in her view, a few courageous lawyers asserted their independence about unpopular or non-majoritarian positions concerning AIDS and the forbidden importation of lesbian literature then considered pornography.

      Nonetheless the motion went down 16 for, 38 against.

      Thus the SOP requirement remains. Many members who still know little or nothing of all this may be surprised in January to discover they were already to have done their SOP as of December 31, as part of the Annual Report process due to be submitted the next quarter.

      It appears this debate will now continue for a divisive and long time, including expensive litigation for the Law Society.

      Paul Lepsoe Barrister & Solicitor Ottawa, Ontario



      1 The Law Society is still Law Society of Upper Canada. The Law Society staff report that they will change the name to Law Society of Ontario as of January 1, 2018. However, their material does not acknowledge that a change of name requires an Act of the provincial legislature, which has not yet even been introduced.

      2 Contributed to The Globe and Mail, October 17, 2017.