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Nov. 2, 2017 - Jordan B. Peterson Podcast
01:02:12
Update: Law Society of Ontario Compelled Speech
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Anyway.
Okay, well, let's go for it.
So, Jared, you're going to bring us up to date?
Yeah, so obviously a lot's been happening since we last spoke on this issue.
And to some extent, I guess what surprised me was not the amount of lawyers and paralegals and licensees that have not only reached out, but apparently written to the Law Society on this statement of principles issue.
But more importantly, the public.
I'm getting a lot of outreach from the general public.
I mean, you can look at the comments on the YouTube video that we put up.
The general public is concerned and they are very much watching.
In terms of the legal actors, lawyers, paralegals, I understand there are a lot that have written to the Law Society.
The types of people that are reaching out to me are a broad cross-section.
Of the industry, very experienced lawyers, very well-established lawyers, constitutional scholars are doing their thing, but I'm also getting paralegals who sense that there's a problem, and they're also writing.
One of the things that I think has been interesting through all of this is that the tone of the comments or the feedback I'm getting has migrated.
In first instance, it was an issue with, okay, Yes, this compelled speech idea sounds objectionable.
Those same people and some new people are beginning to reach out and the commentary is changing to some extent.
It is now that they're beginning to examine the underlying report itself and they're coming to me with questions about, well, what does it mean that there is systemic discrimination and racism within the legal industry?
And what's interesting is I've actually got racialized licensees that are beginning to not only reach out, but also publicizing their opinions on these things.
And they're starting to grapple with that larger question of, well, what does it mean when our industry is systemically discriminatory?
So people are becoming aware.
There's an awareness that's coming about.
And I think a lot of that has to do with the media that's been coming out in tandem with what we did on YouTube.
Yeah, so the, well, and the problem with the systemic racism charge is that, well, it's vague, that's for sure, and then it targets everyone equally, in some sense, within the profession, and requires systemic adjustment, that's the other thing, and obviously has to be supported with hard data, and it isn't self-evident that the data to support that claim is valid, I would say, by any stretch of the scientific imagination.
So...
I've had a great deal of feedback as well from both lawyers and the general public.
And they are of a mind, I think, as Jared described, about their concerns over the forced speech aspect of this requirement.
I think we should make note of The kind of response that has been generated from supporters of this policy in response to the kinds of concerns that have been raised.
And a lot of those people who are insisting that this is a legitimate requirement are saying that, you know, although it's called a statement, it is not forced speech.
It simply governs conduct.
And if I might, I'll just read out a quote attributed to the Treasurer on this question that appeared in the Law Times.
The treasurer was quoted as saying, with respect to the statement of values, this is a conduct obligation to recognize that we have to commit to these values and it's not a speech obligation or a thought obligation.
Now just on the face of it, that statement seems strange to say the least.
To say that what we have to do is to commit, and yet that's not either a thought proposition or a speech proposition.
Right.
Even if you have to commit in a statement and indicate that you have.
Right.
So it begs the question of what's the definition of commit?
Correct.
Yes.
And the way that they're portraying it is that this is simply a...
An articulation of the obligations that lawyers already have in both the Rules of Professional Conduct and in the Human Rights Code, which is clearly not the case.
Nowhere in the Rules of Professional Conduct or in the Human Rights Code is there any obligation upon anyone to promote anything.
Well, and also, if you already have that obligation, then why is it necessary to add this additional layer of, let's call it, obedience?
Yes, well, let's just note the two contradictions in the portrayal of this.
On the one hand, it is described as not a big deal, There are no immediate sanctions to follow.
You don't have to send the statement in.
You just have to write it.
You just have to put it in your own file somewhere and not worry about it.
It's no big thing.
Why are you so concerned about it?
And on the other hand, they are emphasizing how central this is to the project they have set out.
And there are many people who have suggested, essentially, that if you are not willing To do this statement and indicate your agreement with a certain set of values, then you should not be allowed to be a lawyer and practice in Ontario.
Right, well that certainly seems to be the end game and my sense has been watching this that because of the public pressure they're backing off to some degree in their public statements by moving forward into the future at some indeterminate date the actual sanctions that will be applied so that right now from a public relations perspective it looks like this isn't a draconian We might as well also remind people that they might wonder why I'm here.
My concern when I first encountered this was that I know with that sinking feeling you get when you can predict the future accurately and you don't like your prediction that if the Law Society prevails with this that The rest of the professional organizations in Canada will follow in lockstep very,
very rapidly and will end up in a situation where every professional in Canada is required to pen a statement of principles that are essentially required by their colleges Well,
let's just read that out.
One of the recommendations in this roster of recommendations that Convocation has passed is recommendation nine and the third part of recommendation nine reads as follows the law society will require each licensee to complete three hours of an accredited program focused on equality and inclusion within the first three years following the adoption of these recommendations and one hour per year there every year thereafter which will count
towards professionalism hours for that year so in other words It is exactly as you've described, Jordan.
There will be training now so that you have the right attitude about these matters.
Right.
And I can just imagine what that training will be like.
Well, there was some commentary in the underlying report about unconscious bias training.
And I know, Jordan, that you've had some discussions about that in some of your public works.
Yeah, well, there is absolutely no evidence whatsoever that unconscious bias training produces the results intended.
First of all, the relationship between unconscious bias, say as assessed by the implicit association test, Which is a pathological misuse of a psychological instrument.
Even the people who designed it have grudgingly admitted that.
There's a relationship between those implicit prejudices, so to speak, which aren't even recognized universally by psychologists as implicit prejudices.
The relationship between them in any case of behavior is very, very small.
It accounts for very little of overt behavior.
And then the evidence that you can train people out of those unconscious biases is zero.
So this is a misuse of science and education at every level from a scientific perspective.
It's the inappropriate politicization of a very new line of inquiry in social psychology.
And if the people who designed the IAT, in my estimation, had an ounce of, what would you say, intellectual integrity, they would denounce the misuse of their test.
Because it doesn't Yeah, it's very unlikely.
And so, you know, I've already decided that with regards to my clinical license, if I was required to undertake this kind of re-education program and to pen a statement of principles of that sort, that I'd just give up my license.
Because there's no way I'm doing that.
So the public, that's the one thing I wanted to let you know, is that you're not alone, Jordan.
The groundswell of...
Of public feedback that I'm seeing and receiving directly into my office has been significant.
People recognize exactly what we talked about on the last video, that the legal industry and lawyers in particular are supposed to be that bulwark against this type of overreach.
And so they really very much, there's a large segment of the population that are worried.
They see that if the lawyers fall down, then the rest will follow.
Can we just make a note of one argument that has been made in favor of the statement, which is that lawyers are already subject to a set of ethical obligations.
And this is just one more, an extension of the same kind of idea.
But there is a significant difference between the kind of ethical obligations that exist, which are essentially neutral, non-political obligations that relate to the way that our adversarial adjudication system is supposed to work.
So just for example, Every lawyer has an ethical obligation to avoid a conflict of interest.
You can't represent both sides in a dispute because that would be contrary to the way our adversarial system is supposed to function.
That doesn't make any sense.
You can't represent both sides in a dispute.
But that ethical obligation doesn't have political content.
It doesn't matter whether you are a socialist or a conservative or a classical liberal or anywhere on this political spectrum.
If you are functioning in this legal system, it only makes logical sense that you must proceed without, in the absence of, a conflict of interest, which is a substantially different proposition than the proposition that these requirements are based on, which are, as Jordan that you mentioned earlier, these are politically charged and have substantive political content in them.
The Law Society is essentially saying that unless you adhere to a certain ideology that you are not fit to practice law.
Well, it's also an admission that this is and this is I think the more perhaps even the more dangerous element of this is that to undertake re-education with regards to your political beliefs surrounding or even factual beliefs surrounding equity diversity and inclusivity is Is to act out by implication the fact that you need that re-education because you're part of the problem of systemic racism.
And, you know, it's very psychologically significant to act out an admission of your guilt.
Because what happens is, generally speaking, is that people then retroactively alter their self-images and start to wonder about such things, you know?
Because they're either cowards for going along with the requirements or liars for producing a statement of principle.
that they don't actually agree in or they start to tilt their beliefs in the direction that's required by the demands and that's usually what happens and so and I'm quite convinced that the people who do this sort of thing who make these requirements know that and that it's a it's a manipulation on their part to tilt political belief overtly and so You can't act these things out without it having psychological consequences and moral consequences, let's say.
So it's very intrusive.
The other thing, Bruce, that's important to remember is the dichotomy between belief, thought, and conduct.
Currently, lawyers in Ontario are subject to the rules of professional conduct.
And right now we have an obligation to act in a certain way and to refrain from acting in other ways.
And one of the rules of professional conduct is, you know, thou shalt not discriminate.
And I don't think anybody would argue with that, in that thou shalt act in accordance with the human rights regime and associated codes across Canada.
Nobody could argue with that.
But this statement of principles is crossing the line into thought and opinion.
And one of the recommendations I would note in the report, recommendation number one, they're actually proposing Now,
I find that fascinating because you're going to amend a rule of conduct to include, all of a sudden, an affirmation of thought.
And to insist upon promotion as well, which is obviously very ill-defined.
Yes, so let's just go back to the words, just to make this point.
So again, I'm going to go back to a quote attributed to the treasurer in the Law Times piece.
He says this, the statement of values is an obligation to promote equality, diversity and inclusion generally, which is nothing more than the obligation lawyers have already.
But when you go to the Rules of Professional Conduct, it says, a lawyer has a special responsibility to respect the requirements of human rights laws in force in Ontario, and to honor the obligation not to discriminate on the grounds of race, and says to be place of origin, color, et cetera, et cetera.
That's exactly as you just said, Jared.
This describes an obligation to observe the law, and this law consists of prohibitions.
That is the obligation that lawyers are under.
No doubt about it that they must do so, but it does not include an obligation to endorse, and it does not include an obligation to promote.
Right, and we should also point out, just in case it needs to be said, that none of the three of us disagree with the idea that people shouldn't be discriminated against for reasons that have nothing to do with their competence.
Agreed, agreed.
And that's not what this is about.
It is not what this is about, and it might also be useful to talk for a moment about Also about the word equality.
Because equality has two competing legal meanings.
And the law society has not defined which one of them they mean explicitly, but it's clear by implication which one they mean.
And the two choices are formal equality or substantive equality or equality of results.
And the two things are quite different.
Formal equality simply means that the same rules of conduct apply to everybody, regardless of background, of Of wealth, of lineage, of heritage, and so on.
Same rules apply to everybody in the same way.
Equality of result means that everybody ends up in the same place.
And note that these two ideas of equality are diametrically opposed and inconsistent with each other.
Because if you have formal equality applying the same rules to everybody, because everybody is different, you're going to have different results for everybody.
If you insist upon the same results for everybody, that means you need different rules for everybody for them to end up in the same place.
So you cannot have both formal equality and substantive equality together.
And traditionally, the rule of law has included the notion of formal equality.
If you have a properly functioning rule of law, that means you have the same rules applying to everybody without regard to who they are.
Well, the problem with equality of outcome, which is now often termed equity, is that you can group people, each individual, in a multitude of different ways, and it's impossible.
To produce equality of outcome across all those different dimensions of the comparison.
So it's a never-ending struggle to produce equality of outcome.
It's technically impossible.
And societies that have tried that have had, well, it's been absolutely catastrophic.
And divisive, terribly divisive.
It is also contrary to that fundamental legal proposition that justice is blind.
Justice is supposed to be blind to all of those Personal certain characteristics that one has, whether it's race or color or gender or wealth or background or lineage or political connection, whatever it happens to be, a properly functioning judicial system doesn't take account of who you are.
It simply takes account of the rules that exist and tries to ensure that those rules are enforced equally in the same way with an even hand against everybody.
And the so-called, well, the data that has been generated is also predicated on the implicit acceptance of an equality of outcome doctrine, because the fact that every group isn't equally represented at outcome is the data point that's being used to indicate systemic racism.
That's right.
Yeah, and so then you also think, well, what if you What if you're in a situation where, as a professional and an informed professional, you don't agree with the conclusions drawn from the dataset that there is indication of systemic racism?
I mean, is that now a belief that you don't get to have?
Because if you are forced to write this statement of principles and alter your conduct, Then you're acting out the proposition that you accept the conclusion that the reason there are some differences in representation across groups is because the whole legal enterprise is systemically racist.
And you're also thereby admitting your own culpability in relationship to that and the corruption of the entire legal system.
It seems to me that you shouldn't be required to admit to that if you don't agree with it.
And that's the arc of the commentary, as I mentioned at the outset, is that it started in one place, and the feedback I'm getting now is very much in that place, that people are beginning to question, okay, what does it mean, the findings of this report for me personally and for my industry, and what does the data say?
And people are digging down on it.
In fact, I just read an article the other day That said that there's actually been a doubling in the representation of racialized licensees within the industry between 2011 and 2014.
You know, that's not something I think a lot of people recognize is that, yes, while the report may have touched on something in terms of findings, there's also some things to celebrate.
Well, the other thing too is that you have to specify in a report like that if you're going to consider this something approximating a scientific investigation and it wasn't conducted in a manner that would meet those requirements in my estimation that there's going to be a lag in ethnic representation as the population demographics change because the demographics of the population from immigration are going to change more rapidly Then the representation of people in the professions
just because of the necessity for the new immigrants to take time to be incorporated into the culture.
And so the real point of data should have been the rate at which newcomers are being integrated into the profession rather than the absolute numbers of people who are there already.
And that's self-evident.
And so the fact that that isn't being considered deeply in the data is also indicative, in my opinion, of the political slant of the interpretative framework through which the data was analyzed.
Can we also make note of the irony of the way that the word diversity is being used and the means by which are being used to promote diversity?
Because in a sense, The objectives of these recommendations is the opposite of diversity.
Real diversity, genuine deep diversity, includes diversity of thought, diversity of opinion, diversity of worldview, diversity of ideology, including all the other agencies of diversity.
And diversity is a very, very important thing for a pluralistic society.
If you don't have diversity in a pluralistic society, then you must be living under some kind of tyranny.
Right.
Because everybody is different and everybody deserves to be allowed to be different and to think different things and to behave in different ways as long as they don't encroach upon the rights of other people.
But the vision that seems to lie underneath these provisions is a very singular one.
A vision that everybody will think and adopt progressive values, that a proper law firm consists of a group of progressively thinking lawyers that look like a rainbow.
Yeah, so there's an appalling proposition underneath that too that's actually factually incorrect.
So the fundamental racist proposition is that racial groups differ sufficiently so that you can identify them as separate entities and that they should be treated in that manner.
But the data suggests very, very strongly that even in situations, say, like where men and women differ in temperament, On average, that the overlap between men and women is larger than the differences and the differences within the groups, so the differences between women and the differences between men within their own groups are larger than the differences between men and women.
So you don't get true diversity by selecting across groups.
That isn't how it works.
In fact, that's actually a fundamentally racist or sexist claim, right down to the core.
And to predicate, to assume that what you get is diversity of opinion by selecting for diversity, let's say, of race is, well, first of all, it's wrong.
That is just technically incorrect.
And second, I don't see how that's distinguishable from the claims of the Jim Crow types of the 1950s, who said, well, you know, black people and white people are so different that they should remain segregated.
It's like, they're not that different.
But within the groups, they're very different.
But between the groups, they're not that much different.
The differences between men and women aren't non-existent.
But even then, you wouldn't select on the basis of those differences to produce diversity of opinion.
But it's not the diversity of thought model that organizations, including our own governments, are pursuing at this point.
The Law Society is not alone in assuming that people who all think alike but that have different racial or gendered backgrounds is in fact diversity.
The Ontario Securities Commission has been mandating that type of diversity on boards of directors for publicly traded companies.
The federal government in its cabinet appointments is pursuing that type of diversity that really is Not a diversity of thought, so to speak, or opinion, but a diversity of, well, in the federal government's case, gendered.
Yeah, well, the other thing that's going to happen is that if we, you know, the people who hold the political views that are pushing these ideas forward are convinced beyond argument that what they're going to do is to, what the instantiation of these policies is going to result in is increased racial harmony and, let's say, harmony between the sexes.
I think you can make a very strong case for exactly the opposite, which is the more that we define people by race and gender, the more that people are going to be defined by race and gender.
And I don't see that at all.
I really don't see that as a recipe for social harmony.
I don't think it's worked in the United States at all.
Quite the contrary.
And we actually have a pretty harmonious society already.
By any reasonable standard, any reasonable world standard.
And I think that this will inflame tensions between groups unnecessarily.
Well, I actually had a lawyer reach out to me, a racialized licensee, and say exactly that.
That their main concern with what they were seeing, not only in the compelled speech component on the statement of values, but also the underlying recommendations of the report, is he thought that that was going to inflame tensions or animosity towards people in his group and and I had never thought of it that way but he was quite concerned that this was actually going to to generate animus against those that actually sought to protect.
So that's a that's one viewpoint that I hadn't hadn't expected.
So should we discuss for a moment the motion that is being brought to complication?
Joe Groya who is a lawyer and a venture has put together a motion to change the nature of the statement of values requirement, and perhaps I'll just read out the key provision of this motion.
Moved that convocation approve that no licensee who has a conscientious objection to the adoption of a statement of principles shall be required to comply with Recommendation 3.1, And they shall be exempted from the requirements of Recommendation 3-1 to adopt and abide by a statement of principles.
Now, Joe is a fellow that has my utmost respect.
He's done a great deal of good inside complication, I think, as a bencher, and I admire his willingness to put forward this motion, which It means he's sticking his head up from a crowd that doesn't really want to stick their heads up.
Absolutely.
But nevertheless, there are some difficulties with the motion.
Jared, do you want to speak to that first?
Well, yeah.
So the motion itself, somebody was talking to me about it, and they said the problem is that It makes it appear that if one elects not to file the statement of values, so if the motion is passed and they then decide I'm not going to file the statement of values on that basis, that you would be seen or it would be interpreted as you being a conscientious objector to the values that the Law Society statement of values is asking us to affirm.
Rather than an objection to this idea of compelled speech or being forced to disclose or divulge What may be in your head or what your thoughts and opinions may be.
And I hadn't thought of it that way, but when you look at the motion, yes, it very much can be interpreted that way.
Right.
And so, in essence, it does not save you from having to perform the forced speech obligation.
It just gives you another thing to indicate, which essentially requires you to stick your head up and be counted one way or the other.
In other words, the law society is still succeeding at dividing people between those people who are willing to do the statement and those people who refuse to do it but have to say that they refuse to do it.
So there is still forced speech in here even if the motion passes.
Yeah.
I don't think it gets us to where we need to be.
And as you said, I think Joe's a tremendous person, deserves a lot of respect.
He's fighting his own free speech battles before the Supreme Court of Canada in early November.
As you may know, he was accused of crossing some imaginary line about the conduct of his defense of an individual before the courts.
And that is a very novel idea.
And so the industry is watching with some interest to see what the Supreme Court of Canada says about whether or not there is a line in the sand as to the type of advocacy you can pursue.
So he is a Joe is somebody to watch and someone respected.
But I think the motion comes up slightly short of where it needs to be.
I don't think it gets us to the place that I think we need to be, which is that the law society should not be meddling or even asking what the thoughts and conscience is of its members.
Right, so as of right now, there is nothing sort of on the table that, as far as we are concerned, that offers the possibility of eliminating the objectionable aspect of this forced speech obligation.
You know what's interesting?
Go ahead, Jordan.
Okay, well, we'd also talked a little bit about the fact that, you know, we had concentrated specifically on the statement of principles as the objectionable element of the recommendations, but the recommendations as a package are also objectionable because they're all fed by the same underlying philosophy of...
Well, systemic racism, let's say, and the promotion of equity, diversity, and equality as the highest of moral values.
So, do we want to talk a little bit about the rest of the recommendations?
Yes, sure.
I'll read out the first one, perhaps.
The first one gives a flavour for the whole host of them.
So, the first one goes like this.
The Law Society will review and amend, where appropriate, The rules of professional conduct and the paralegals rules of conduct and commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge, and promote principles of equality, diversity, and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal and paralegal profession.
There are those words again.
Okay, so you also mean, if you abide by that, that you have to accept the definition of diversity as essentially predicated both on race and sex?
Yeah, well, yes.
Well, of course, they haven't defined diversity, but consistent with the rest of the regime, yes, in the way that we have previously described, that is the meaning of diversity that they're going for.
Right.
And also the meaning of equality, as I suggested earlier.
Right, right.
And of course, there are internal contradictions in the statement because they're going to amend the rules of professional conduct so as to reinforce obligations that don't now exist.
What they really mean to say is we're going to change them so as to create new obligations.
The requirements under human rights legislation that this recommendation refers to, again, do not include the obligation To acknowledge and promote.
They are conduct laws that everybody is subject to, but they prohibit certain things.
So, like the statement, this first recommendation that gives the flavor of all the rest of them suggests that the Law Society is essentially moving into a new area of regulating competence.
If I can put it this way, Instead of being a neutral regulator of competence in the political sense, they have now more or less taken on the mandate of regulating competence in the political sense, in the ideological sense.
They are essentially saying, here are some values that a regulator is going to require you to comply with.
These values essentially are progressive values, so that if you are not a progressive lawyer, we do not think that you have the right to practice law in this province.
And as the only values that are going to be the subject of a statement of values, they are elevating those to a position of prominence, and I would suggest beyond all others.
Yes, sure.
These values, because of their Being listed in a special way seem to be put above other more fundamental values like the rule of law, like formal equality, like...
Competence.
Well, competence, you would think, would be the core mandate of the law of society itself, and by competence I mean skills, Knowledge and compliance with ethics.
Professionalism.
This also seems to me to be reflective of a constant push on the part of political ideologues of the progressive type to mandate that of all the rights that Canadians enjoy or perhaps the obligations they have to undertake that The rights that are associated with equality, diversity and inclusivity are going to be made paramount in relationship to all of the other rights.
And that seems to me to be an utter catastrophe.
Well, the proponents of the statement of values, the people that I've seen writing commentary pieces, none of them seem to disagree that there is a compelled speech component inherent in the statement of values.
What they do is they say, okay, but under Section 1 of the Charter in an Oakes test analysis, that infringement on freedom of conscience, freedom of thought, freedom of expression is reasonable to attain the objective of equality, which is also a competing right under the Charter.
And inevitably, and I think they have a point, anytime the Supreme Court of Canada is engaged in a Section 1 analysis on freedom of speech, That butts up against the competing equality right.
They tend to find that, save and accept for the most egregious infringements, that the equality right shall prevail or be the tipping factor.
And so, like I said, it's interesting that the proponents, they don't disagree.
Oh yeah, we're putting a compelled speech component on you, but it's all for an objective.
It's justified.
Let's just also note this though, because the first part of Section 15, It is really a section about formal equality, the equal application of laws to everybody, which is not the kind of equality they're talking about.
So they are shifting the ground on what equality means and then saying, and that kind of equality justifies the infringement of these other rights under Section 1, as you say, Jared.
Okay.
So do you want to continue, Bruce, with this?
Yes.
So let me read another one.
Let me just find it here.
I want to read the one.
Here we go.
This is Recommendation 10.
I want to read this one because it just reinforces the proposition that we spoke about, which is that the Law Society is changing the nature of competence to encompass a certain set of political values.
So they're doing this explicitly.
Recommendation 10 says as follows.
The Law Society will include the topics of cultural competency, equality, And inclusion in the professions as competencies to be acquired in the licensing process.
So if you are a young lawyer, a young law school graduate, and you are applying to be licensed by the Law Society, then these are among the things that you must show to them that you are competent in, that you believe and agree and follow these particular values.
It'll be on the bar exam.
Yes.
Yeah.
Shall I continue on?
There's the same, I believe I read out already the requirement for the continuing education matter.
Let's move to one of the recommendations that are being put in place this year.
The statement of values is one and the other one that is mandatory for legal workplaces of over 10 lawyers goes like this.
The Law Society will require a licensee representative of each legal workplace of at least 10 licensees in Ontario to develop, implement and maintain a human rights diversity policy for their legal workforce addressing at the very least fair recruitment,
retention and advancement which will be available to members of the profession Okay, so there there's a measurement issue because a measurement and enforcement issue.
So the measurement issue is, well, what is fair and how is it defined?
So is it defined by the racial makeup of the firm over the next 10 years?
So if it doesn't shift in the required direction, let's say, or the gender makeup of the firm, if it doesn't shift in the required direction, does that mean you're out of compliance?
The measurement details in this sort of thing really matter.
Who defines fair and then what's enforced?
Are the firms going to be subject to an external analysis that examines their diversity makeup over some period of time?
And is there going to be provisions about how rapidly the ethnic and sex makeup of the firm has to transform across time?
Like the devil's in the details in this sort of thing.
They're proposing actually that a member of the workplace conduct an inclusion self-assessment every two years to get at the measuring component.
And so what's an inclusion self-assessment?
Exactly.
What do you think that means?
What do you do?
Do you list your race?
Do you examine your soul to determine whether you're oriented in the proper inclusiveness direction in relationship to race and gender?
Because I'm a measurement guy, fundamentally.
I don't understand how these things are going to be assessed.
They're not easy to assess.
And then there's the enforcement problem.
I really don't know what the word inclusion means.
I have ideas about what equality can mean.
I have ideas about what diversity can mean.
I don't know what inclusion means.
I really just don't understand the word.
I don't know how you measure it.
I don't know what you mean by that.
The Law Society has been collecting data for years on these types of demographics on the basis of a voluntary survey basis.
And so what they're actually proposing to go further is that within these legal workplaces, that these workplaces conduct inclusion surveys.
Now there was a tremendous amount of conversation at the convocation meeting that adopted these recommendations about compelling people to self-identify within some sort of demographic group or the other and that there would be some there's there would be some risk resistance particularly among racialized licensees of doing so so they're going to make it voluntary but that then goes to the issue of what's the quality of the data that they're getting Jordan if it's a voluntary Self-reporting
exercise and not everybody's reporting because as they said at convocation, some groups may be disinclined or fearful of identifying themselves for whatever reason.
What's the quality of the data they're getting and then how are they going to act on that data?
Yeah, or maybe even unwilling to identify themselves.
Well, that's what I mean.
It's like, I don't see why it should be required of me that I reveal my, well, which aspects of my identity?
What am I going to reveal?
So, I mean, obviously I'm white, whatever the hell that means.
So, but there's all sorts of other aspects of my identity that, for example, I might want to keep private.
Even the existing data on which they founded the finding of systemic discrimination, The empirical data was based on voluntary survey data.
So we're not even certain that we're getting what I would say is confident census type quality data.
So shall I read you another one of these recommendations?
Recommendation 12.2 says that the Law Society will revise the rules of professional conduct and the paralegal rules of conduct, where appropriate, so that systemic discrimination is clearly identified As a breach of professional conduct requirement.
So say that again.
Yes, I will.
The Law Society will revise the rules of professional conduct where appropriate so that systemic discrimination is clearly identified as a breach of professional conduct requirements.
Okay, so that means that at some point in the future, a law firm could be assessed for its compliance with equality, however that's defined, perhaps as equality of outcome, but we don't know, or with regards to rate of transformation of demographic membership.
And if you're found not to be in compliance, whatever that means, then that means that you've engaged in professional misconduct.
Yes, but interesting that they used the word systemic discrimination because I thought that meant we're talking, we've used that term in the past to talk about the profession and that's the way they use that term in the report, that the profession has a problem of systemic discrimination.
So I'm just puzzling over the use of that term in this particular recommendation because it suggests that if you are or your firm is Well,
they're going to be doing a benchmarking exercise.
I mean, that's part of it, is that you're going to have to submit these inclusion assessments to the Law Society And then they're actually going to review that as against the industry as a whole in terms of finding out where you're at on your inclusivity.
And so my concern would be that they find systemic discrimination within an organization because it falls short of what the industry-wide standard is in terms of its diversity layout.
Mandate.
Right, and so what that'll mean fundamentally is, let's say that you have a firm that has, that it's a small firm, say 10 people, and all of the people in it happen to be Caucasian, just for the sake of argument.
So that'll mean that you'll be mandated to hire by race for the next while.
Well, it's a systemically discriminatory organization, I think.
Okay, so let's say that you are mandated to do that.
How is that legal?
How is that possibly legal to be mandated to hire by race?
Only by virtue of the mandate that the Law Society has from the government to regulate the legal profession.
I mean, that's what it has to rest on.
If you read the statutory mandate of the Law Society, it would seem to fall outside the marching orders that the Law Society has, at least as it is presently worded.
Perhaps I can read you that.
This is Section 41 of the Law Society Act.
Sorry, let me read first section 4.1.
This is the function of the Law Society is to ensure that all persons who practice law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide.
So unless you can fit this into the phrase professional conduct, then Then, under this section, there is no mandate to do these kinds of things.
I was going to read section 41, which lists the standards of professional competence that the Law Society is supposed to ensure.
And section 41 says, a licensee fails to meet standards of professional competence for the purpose of this act if, and there are a number of things listed, but the ones that are relevant here are, A, if there are deficiencies in the licensee's knowledge, Skill or judgment?
Or the licensee's attention to the interests of clients?
And those are the only two bits of that section that apply to this question, and they don't apply.
They don't describe the nature of these obligations that are being contemplated.
Okay, so if I was applying for a job at a law firm that was compelled by this mandate to diversify itself racially, and I was a qualified candidate and I got wind of the fact that that requirement had been put in place, couldn't I go after the firm for discrimination because they made race one of the basis of hiring?
That they were compelled to make race one of the basis of hiring?
The Human Rights Code and the Charter of Rights and Freedoms allow for certain forms of discrimination when it's for the purposes of an ameliorative exercise.
For instance, if there is systemic discrimination identified, the Charter will permit discrimination against a group in order to remedy what may be perceived as a systemic discrimination issue.
Addresses and exempts affirmative action type programs as being found to be discriminatory.
It allows them, it permits them.
So the answer would be yes, you could raise that.
But the law firm and the law society, if they would have to then bring forward evidence that this is part of an affirmative action type program that is exempted, you're allowed to discriminate on that basis.
Can we for a moment just turn to one of the justifications that have been given for this whole slate of recommendations, this whole program, which is that your membership in the Law Society is a voluntary thing.
You don't have to belong to the Law Society.
This is not the state coming down and requiring all its citizens to do a certain thing.
You have chosen to be a member of the Law Society and therefore you must take these obligations on Voluntarily.
Which, of course, is a ridiculous thing to say.
Because the Law Society takes its mandate from the government.
The government has given the Law Society the job of being the gatekeeper of the right to practice law.
And if you are to practice law in this province, you must be a member and you must adhere to the rules of conduct that they require of you.
To suggest that your...
That your engagement with the Law Society is something that you do voluntarily just because you wish to do so, and that makes it a voluntary organization, is innate.
Right, so the voluntary aspect is that you can give up your hard-won livelihood if you don't want to be subject to these rules.
Yes.
So I suppose you could make a case that that's voluntary, but I mean, it's certainly the case that it stretches the definition of what normal people would consider voluntary.
Well, it turns the idea that you would have a right To practice in any profession if you have the proper skill and training and competence to do so.
That question is up for grabs now because they're essentially saying, well, actually, what you also have to do is go along with our vision, the way things are supposed to be and the way you're supposed And if you don't choose to go along with that way, well, then you're free to go off and do something else.
And what if those values migrate over time?
So it is right now, you know, these values that we're looking at in the statement of the principles here.
But what if they migrate over time?
What could they become?
You know, and I think it sets a precedent.
That we might want to push back against.
Well, it's worrisome because the values are very ill-defined.
And so an ill-defined, like a box that could contain anything ends up containing a very strange number of things.
You know, Bruce pointed that out very clearly when he talked about his inability to understand what constitutes inclusivity.
It's like, okay, so let's say that we could define equality and diversity if we were willing to, even using racial and gender categories, which I think is an unbelievably catastrophic error.
But, okay, inclusivity.
Well, if that's definitionless, then it's a place to put any other requirements that might come along.
I really can't say what does inclusivity mean.
Is that more like the nonverbal behavior that you might manifest?
Or does it refer to more subtle interactions within the firm?
That's kind of what it sounds like.
I don't know.
Yeah, so at least it might be worthwhile trying to find out what they mean by inclusivity.
If they really want to be inclusive, they would get rid of the bar admission exams.
They would get rid of the law school underlying requirements.
I mean, that essentially makes your organization inclusive, doesn't it?
Well, my suspicions, too, is that if you went and analyzed the success rate with regards to the bar exam, that you'd find that it produced systemic discrimination as well.
Because the probability that an objective test produces exactly the same results across all conceivable groups is zero.
So, and you know, you see this sort of thing happening in the United States already where competency requirements produce group differences, especially if you analyze enough group differences.
And so what happens then is the competency requirements are gerrymandered to eliminate the group differences.
And that's all part of an assault, I would say, on the idea of objective competence.
Are there more statements that are worth analyzing?
Let's just have a look here.
I mean, there's a whole roster of them, but I think those are the ones that are most pressing.
Well, I thought there was an interesting one.
It was recommendation 12, sub 4.
They want to create a specialized and trained team to address complaints of discrimination.
Now, I mean, I don't argue that any act of discrimination that is, you know, contravention of human rights legislation should be stamped out.
It should be identified and dealt with.
But my understanding is that we've got bodies that are I mean, I read that and I say that that's a SWAT team.
There's a SWAT team that's going to swoop in on the non-compliant systemically discriminatory organizations and sort them out.
That concerns me to some extent, particularly, like I said, because we have this We have these bodies already in place that are supposed to deal with these types of things.
And they're duplicate bodies.
So you have the classic court system plus the human rights tribunals, which already have their own problems.
The word in that recommendation that causes me real concern is the word address.
This team will address complaints of discrimination.
Now, that doesn't say whether or not they are the investigator or whether they are the adjudicator.
Or whether or not they are a combination of the two, whether or not they are judge, jury, and executioner all rolled into one.
I would be much more comfortable if they were procedurally precise to say exactly what the function of this so-called team was supposed to be.
But what's it for?
We've got a Human Rights Commission that can come into any organization or workplace in Ontario without a warrant and do whatever it is this group wants to do.
So I question creating another layer of bureaucracy, but Well, I agree.
I agree.
But, I mean, one of the needs for this might be because of the point that we made earlier, which is that the requirements that the Law Society is now creating are not the same as they are under the Human Rights Code, right?
So the Human Rights Commission and Tribunal might not have jurisdiction because that's not what the Act says.
And if these do create extra and additional requirements that are not now Don't now apply to lawyers, then you do need an extra bureaucracy to enforce them because nobody else has the jurisdiction to do so.
Right, and then you can presume, I think, without any fear of error, that the people who would constitute such a team would be the ones who would be most zealously in favor of precisely this kind of progressive, let's call it, movement.
You would expect.
Oh yes, definitely.
That's how it works.
Well, if they're in favor of compelled speech and think that that's justified, then I would question what other fundamental rights and freedoms they might...
Dean to stamp upon.
Alright, so maybe we should move from this.
One of the things we discussed was perhaps asking for more public involvement in our campaign, let's say.
And so I believe that we're going to provide contact information for the benchers, is that correct?
And ask members of the public to listen very carefully to the discussions that we've had and to indicate to the benchers their concern about this In terms of its relationship to the broader public, potential relationship to the broader public.
Sat?
The Law Society's mandate is to govern the profession, but within the, I guess, the best interest of the public, to protect the public.
And so the public very much is a stakeholder in what's happening right now within the legal industry and the Law Society.
And so absolutely, I would encourage the public to make any concerns that they may have known And write to the people that make these decisions and let them know their thoughts because this is a public trust to this industry to some extent.
And so the public very much should be vested in what's happening.
Yeah, well, it's a fundamental public trust because it deals with the underlying structure of the legal system.
And so this is partly why this is so worrisome to me because I know perfectly well that if the lawyers fold on this...
And the Law Society succeeds in pushing forward these requirements and then enforcing them across time that every professional organization in Canada is going to follow suit.
And after that, well, once the professional organizations follow suit, then there's no reason to assume that this isn't going to spread more widely.
Yes, the main justification underlying all of this that the Law Society is relying upon Is the public interest.
So if the public doesn't think this reflects their interest, they had better say so.
And the licensees, obviously, anything they can do to reach out, I think, is of some assistance.
I think the current motion that's before the Law Society is to a great extent a byproduct of that groundswell of support or opposition, I guess you'd say, from lawyers and paralegals.
And if they can direct those efforts and continue them, I think it can be of some assistance.
Alright, so we've broadened the scope of what we regard as worthy of opposition.
Partly because the attempts, let's say, so far to ameliorate the worst elements of the policies that are being promoted are insufficient for the task and even if they were put into place, like the motion that you described, it would be a victory at 10% or something like that and not move the underlying pathological principles in my estimation far enough.
It's something like that.
It wouldn't eradicate the threat that we've been trying to warn people about.
Correct.
That's right.
There is no immediate prospect Right now of getting rid of the forced speech element of this policy and the other elements are consistent with that requirement and are being carried along and although only three of these recommendations are being put in place immediately, the rest will follow in due course and there's no reason to think that they won't be done aggressively and with force.
All right.
Well, I guess, do you guys have anything else to say?
I mean, maybe thank you to the people who've already been paying attention.
Well, let's just thank the people who have gone ahead already and contacted their ventures, contacted the Law Society to register their objection, to ask questions.
A lot of people have done very good things and are thinking well about this.
They're thinking intelligently.
They're thinking broadly.
My hat's off to them.
There are a great number of people who are very clear about this.
And some are reticent to make too much of a fuss.
Some are quite happy to say what they think.
And I respect both of those positions.
But I guess the message overall is there are a great many people who think this.
And the worst outcome would be that Nobody acts upon what they think and this just sort of happens without us noticing.
I've been heartened by what I see to be singular acts of courage in the people that have taken action, written to the Law Society and even just reaching out to my office and to others.
It's not easy to do and I support and commend those that are doing that.
And people have written articles and Blog posts, there are some really excellent pieces of work on this topic, and perhaps we could even refer, you know, provide links to some of those sources.
But they're really worth reading.
They're very well done, very thoughtful pieces, and they have a ring of truth to them.
From all over, too.
I've seen things from outside the jurisdiction.
Alberta, I think New Zealand.
There's a great blog by a professor at the University of Auckland in New Zealand who's written on this.
It's well worth a read.
Yeah, well, these things do have international significance because my observation has been that if one major jurisdiction or organization in the West moves forward in this hypothetically progressive direction, The probability that it will spread because of rapid electronic communication and pretty decent organization on the part of the people who do push these things forward, that it emerges everywhere with extraordinary rapidity.
So anyone who shares the basic axioms of our legal system is involved in this, whether they like it or not.
Right.
Alright, well, I guess we'll see what happens.
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