For decades, those of us who have come from away to live in Ontario have puzzled over a strange conundrum. Why isn’t the Law Society serving the residents of Ontario called the Law Society of Ontario?
Why does Ontario’s Law Society cling to an arcane tradition of insisting its name must remain as the Law Society of Upper Canada?
As a lawyer, I am required to pay membership fees to an organization whose title includes the name “Upper Canada.” However, the fact it is the regulatory body for lawyers who live in northern areas of the province that never were part of the territory of Upper Canada is truly bizarre.
I am not the only one who feels this way. In 2012, there was a motion to the LSUC’s May 2012 annual general meeting drafted by lawyer Tom Vincent and supported by 10 other signatories to update the law society’s name to the “Ontario Law Society.”
Sadly, this effort failed.
This is a shame because a new name would include those northern areas of the province that weren’t included when the borders of Upper Canada were established in the 18th century.
Back in 2012, as I understand it, the main two-pronged argument supporting a reference to Upper Canada was that the LSUC was the oldest law society in the Commonwealth and the name represented an important tradition. Ultimately, the motion to change the name was shot down.
There are profound reasons for divesting the LSUC of its colonial vestiges. Irrespective of the geographic confusion that the 220-year-old name garners, the name risks becoming increasingly contentious due to its negative colonial connotations.
Upper Canada was formed in 1797 and ceased to exist as a political entity in 1841, a time period that oversaw mass appropriation of indigenous land, largely through bloodshed.
The Province of Upper Canada was created by the United Kingdom to govern the central third of British North America (as it then was called) and to accommodate Loyalist refugees of the United States after the American Revolution.
It included all of modern-day Southern Ontario and all those areas of Northern Ontario that had formed part of New France, essentially the watersheds of the Ottawa River and Lakes Huron and Superior. The “Upper” prefix in Upper Canada reflected the territory’s geographic position being closer to the headwaters of the Saint Lawrence River than that of Lower Canada (or present-day Quebec) to the northeast, but Upper Canada excluded any lands within the watershed of Hudson Bay.
As a lawyer who has worked with and advocated on behalf of indigenous peoples in Ontario, I am ashamed that the regulatory body governing lawyers remains strongly associated by virtue of its title with a very dark period in Ontario’s history.
The 50-year period of Upper Canada’s existence, from 1791 to 1841, was characterized by the negotiating and signing of many unfair and unbalanced treaties between First Nations communities and successive Crown agents on behalf of the United Kingdom, with the silent endorsement of Upper Canadian governors, governments and the primarily European male land owner-voters who kept them in power.
This was a period when many indigenous peoples were treated in unjust ways, increasingly herded on to smaller land tracts called reserves and denied access to lands and waters their ancestors had used for millenia.
In an effort to address many of these concerns as well as to create a formal response to the abuse inflicted on indigenous peoples through the Indian residential schools system, the Truth and Reconciliation Commission of Canada was established in June 2008.
In June 2015, the commission released a report with 94 calls to action that are addressed primarily to the federal, provincial and territorial governments but also to municipal governments, the corporate sector and the broader Canadian society.
Thus, all organizations and institutions with powers that have oppressed indigenous peoples have a duty to respond to the TRC report in a meaningful way.
This is especially true in regards to law societies — organizations that vow to uphold access to justice and have a crucial role in preventing the oppression of indigenous peoples by the state.
To emphasize this point, the TRC devoted a call to action specifically to law societies, calling on the Federation of Law Societies of Canada “to ensure that lawyers receive appropriate cultural competency training.” Given the TRC’s recommendations, it seems bizarre that the LSUC continues to cling to its traditional name.
Recently, the Law Society of British Columbia has taken a progressive approach toward First Nations reconciliation. In April 2017, the LSBC announced that it would remove a statue of Justice Matthew Begbie, who had sentenced six Tsilhqot’in chiefs to death before confederation. The Truth and Reconciliation Commission’s report was a catalyst for this change and, recently, LSBC president Ken Walker stated that the society wants all of its members to read over the 94 calls to action.
In 2015, the LSUC released two separate public statements addressing the TRC report and emphasizing its commitment to act upon the commission’s calls to actions.
It is time for the Ontario government and the LSUC to revisit this issue and view its name using a contemporary lens. As the legal profession evolves, so should the organization that governs it. With the incorporation of paralegals into the LSUC and the growing ethnic and social diversity of the profession, it seems absolutely inappropriate to defend its original name on the basis of tradition.
David McRobert is a lawyer practising environmental, energy and indigenous law based in Peterborough, Ont. and public affairs co-ordinator for the Aboriginal Law section of the Ontario Bar Association. This piece was produced with research and writing contributions from Jordan Shay, student-at-law.