Includes both pro- and anti- statement of principles members
The Law Society of Ontario named new members of its equity and Indigenous affairs committee this month.
The benchers will play a role in creating the LSO’s policies toward equity and Indigenous affairs at a time when the current approach is under scrutiny, ahead of a key debate about the statement of principles in September.
“[I]t is clear that the views of benchers are more divided in this area and, in my view, we must take particular care to have the right voices and perspectives at the table – both from within and from outside of Convocation,” Treasurer Malcolm Mercer said when announcing the committee appointments on Aug. 8, according to a written record. “The appointments proposed …. are intended to have voices and perspectives at the right tables. I do not propose to make recommendations at this time to the Equity and Indigenous Affairs Committee as to how to proceed with its work as I think that discussion within the newly constituted committee is appropriate first.”
Bencher Dianne Corbiere will lead the committee as chair, while Atrisha Lewis and Jorge Pineda were named vice-chairs.
The new members of the committee are benchers Robert Bateman, Robert Burd, Etienne Esquega, John Fagan, Julian Falconer, Murray Klippenstein, Cheryl Lean, Isfahan Merali, Gina Papageorgiou, Chi-Kun Shi, Tanya Walker, Doug Wellman, and Alexander Wilkes.
The group includes several members — including Fagan, Klippenstein, Lean, Pineda, Shi and Wilkes — who oppose the statement of principles requirement, which was put in place by their predecessors.
Fagan told Law Times he wanted to join the committee because he fears the LSO’s approach so far only “put off” solving the possible equity problems into the future. Instead, he said, he’d want to do “actually useful things, within the LSO’s mandate.”
“As may be inferred by my having been a member of the ‘StopSOP’ slate of candidates in the recent LSO bencher election, I am not happy with how the LSO has been seeking to deal with these issues and possible issues in recent years,” said Fagan in an email to Law Times. “I am hopeful that my membership on the equity and Indigenous affairs Committee will be of assistance in this regard.”
For instance, Fagan said his priority would be to “find out as much as I could about any possible roadblocks that might still exist for lawyers and/or paralegals from traditionally excluded groups in their access to, and/or their getting ahead in, the legal professions,” and try to address the roadblocks.
“Then, too, I am concerned about how Indigenous people and our mainstream legal system are interacting with each other, and I want to be helpful, within the LSO's mandate, in trying to address ongoing problems in this regard,” wrote Fagan.
Backdrop: Debate on diversity
But while many new committee members oppose the statement of principles’ requirement — which requires lawyers to profess written support for equity and diversity — other committee members voiced support of the statement of principles at the last debate about the issue in June.
Papageorgiou spoke in favour of the statement of principles requirement in June, saying the profession would either be making a statement “that we don’t care” or that “we are going to stand for something and lay out the welcome mat” to racialized licensees.
“I frankly don't understand why we would eliminate something and start all over again when the report has already been done and it's been done consistent with all the other research that's out there,” said Papageorgiou.
Esquega also weighed in on the topic, in support of the statement of principles.
“Historically, we know that the red carpet was not rolled out for Indigenous people. We heard the red carpet earlier was rolled out for others. We know that's not the case,” said Esquega. “So when we consider these problems it's no wonder why it's a barrier for Indigenous people to access the legal systems and institutions.”
Pineda, on the other hand, argued that the welcome mat is already out, based on his experience as a Hispanic man.
“When I wrote the LSAT and applied to law school they rolled out the welcome mat. When I moved back to Ontario to practise law, they rolled out the welcome mat. …. And I recoil at the suggestion that there is widespread racism among the profession. I recoil at that. I recoil as being labelled racialized. Racialized is the politicization of race. Racialized implies that I'm oppressed and that I'm a victim, and I recoil at that suggestion,” he said in June.
Papageorgiou, Esquega and Pineda were not the only benchers to present diverging views on the state of diversity in the profession, and the LSO’s role in promoting it.
“With all due respect to people who I do look forward to being colleagues with for four years, so don't get too mad at me, with all due respect to you, you need to reflect the voices of the people undergoing the burdens,’” said Falconer. “That's why racism will continue to manifest itself. We call it systemic racism because the system operates to keep people out, the system operates repeatedly to disadvantage and keep them out …. I hear what you want to dismantle, but I don't hear what you want to build.”
But Lean called the idea that the LSO is racist “appalling.”
“The Law Society has deemed itself systemically racist and I interpret that to mean that all of the previous benchers and treasurers who have acted over the years for this society have constructed a racist organization and institution. I don't accept that,” she said at the June meeting. “In the last number of years how many racialized candidates have been called to the Bar? It's huge. Does that show that we're acting in a racist manner and not admitting people? You know, the facts — it just doesn't stand up. Certainly, I'm not here saying that racism doesn't exist, and it doesn't exist in our profession, I'm not saying that. But to claim that everyone associated with the Law Society of Ontario is a racist and in need of re-education, I find that appalling.”
Statement of principles: Compromise possible?
As benchers with clashing views prepare to work together on one committee, several have spoken on the need for compromise and unity.
Walker, for instance, told Law Times in May that she is looking forward to working together with the StopSOP benchers to find a replacement for the statement of principles.
“Diversity is very important to me. I hope that we continue to place as much importance on diversity as we have in the past few years,” she said.
Corbiere, a returning bencher who served as chair or co-chair of the equity and Indigenous affairs committee for four years, has said that she is planning on working with the benchers for the next four years “on understanding that we have to do more as a profession, that Indigenous people expect us to do more as an example.” She said she would support a proposal to make the statement of principles optional because she felt there was no choice but to compromise.
“I supported the statement of principles because we consulted broadly, and I stand by the statement of principles, and I think it's just one part of necessary work that has to be done,” Corbiere said in June. “But I do recognize that others have come here with a mandate from the 5,000 of the 50,000 people that voted for them to get rid of it, and they committed as long as it's not mandatory then the work is done. So as a concession, even though one of our partners, the Indigenous Bar Association and the Indigenous Advisory Group said that we shouldn't amend the statement of principles without consulting and the Indigenous Bar Association said, and I quote, ‘Amending statement of principles is an unwanted compromise.’ But it is a compromise nonetheless.”
Lewis also said she would support a compromise.
“I support a mandatory statement of principles. I will support [making the SOP optional] in order to take repeal off the table, and I make that decision in terms of the practical realities, how I know that the votes are going to shake out at Convocation. But I do want to note, as the Indigenous Bar Association noted in their letter…. racialized lawyers do not have the luxury of opting out of being racialized,” said Lewis in June.
But bencher and committee member Merali in June rejected both a compromise proposal to make the statement of principles optional, as well as the motion to repeal the statement of principles requirement all together.
“This motion I believe is just the beginning of the dismantling of the law society's informed and significant work over the last four and a half years, which I was honoured to be a part of,” said Merali. “I believe a strong dissent is critical to maintain on the record…. I cannot, unfortunately, in good conscience support any fracturing or regression of the important and needed work that we have achieved on equity, diversity and inclusion.”
Wilkes told Law Times he plans to go into the committee with an open mind.
“Malcolm [Mercer] has assembled an incredible EIAC that I am thankful to be a part of,” he said in an email to Law Times. “At this early stage, I feel my best course of action is to attend committee meetings well read and with an open mind, and see what I can contribute as things progress.”
After the June treasurer election, Shi called for reconciliation between the pro- and anti-SOP benchers.
“I know that there are a lot of us who are concerned about the differences in this Convocation, but having met with most of you, I say that I think we are going to be just fine because of all the dedication, talent, energy and the will to serve in this Convocation,” she said in June.