https://youtubetranscript.com/?v=FPpPnGA8rkQ
Anyway, okay. Okay, guys. Well, let’s go for it. So, Jared, you’re gonna bring us up to date. Yeah, so, uh, obviously a lot’s been happening since, um, since we, um, we last, uh, spoke on this issue and, um, to some extent, I guess, um, 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, um on this statement of principles issue But more importantly the public i’m getting a lot of uh outreach from the general public Um, I mean you can look at the 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, uh, uh actors lawyers paralegals Um, they I understand there are a lot that have written, um to the law society The types of people that are reaching out to me Um are a broad cross section of the industry, uh, very experienced lawyers, uh, very, um, well established lawyers constitutional scholars are uh 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 that i’m or the feedback i’m getting has migrated In first instance, it was a an issue with um, okay Uh, yes, this compelled speech idea Uh, it sounds objectionable Those same people and some new people are beginning to reach out and the 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 that the that there is systemic discrimination and racism within the legal industry? And what’s interesting is i’ve actually got racialized licensees that are that are beginning to not only reach out but also publicizing their opinions on these things and and they’re starting to grapple with that larger question of Well, what does it mean when our industry is systemically? Uh 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 with the media That’s been coming out in tandem with with what we did on 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 is valid by I would say by any stretch of the scientific imagination so I’ve had a great deal of feedback as well from 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 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 of 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 a thought proposition or a speech proposition Right even you have to commit in in a statement and indicate that you have right So it begs the question of what’s the definition of commit? uh correct, yes, and 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 and in the human rights code Which 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 if if we if you already have that obligation then why is it necessary to add this additional layer of of Let’s call it obedience Yes, well, let’s just let’s just note the the the two the two um 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 it’s it’s 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 that they have set out And and 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 Measure and you might as well also remind people that and they might wonder why i’m here My concern when I first encountered this was that I know 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 Um required by by their their colleges espousing a particular political and and not only political but philosophical and worldview philosophy Or risk losing their licenses and I mean I know in the legal in the law society already you have to There’s a requirement that you have to undertake training in relationship to equity diversity and inclusivity, right? That’s part of what they’re requiring Well, let’s just read that out one of the recommendations in this roster of recommendations that complication 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 within the first three years Following the adoption of the 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 so well, there was some commentary in the underlying report about unconscious bias training And and I know jordan that you’ve you’ve had some discussions about that in some of your uh, 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 the 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 and 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 This is a misuse of science and education at 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 of of of in What would you say intellectual integrity they would denounce the misuse of their test because it doesn’t fit the requirements That psychologists have laid down for validity or reliability and that’s partly why it’s not admissible in court, for example so well the committees that are selecting our our judges currently are being um, put through unconscious bias training and so I question Whether or not the law society will will heed the warning that you just put out there But yeah, it’s very unlikely and and so, you know, i’ve already decided that with regards to my clinical license if I was required to Undertake this kind of reeducation program and to pen a statement of principles of that sort that I 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 the the groundswell of Of public feedback that 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 that the legal industry and lawyers in particular Are supposed to be that that bulwark against this type of overreach and so they really very much There’s a 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 you know lawyers are already subject to a 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 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 the the 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 as jordan that you mentioned earlier these are Politically charged and have substantive political content in them that 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 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 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 for going along with the 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 and consequences moral consequences, let’s say So it’s very intrusive The the other thing bruce it’s important to remember is I mean the dichotomy between belief thought and conduct currently lawyers in ontario are subject to the rules of professional conduct and and I 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 shall act in accordance with the With the human rights regime and and associated codes across canada Nobody could argue with that but this statement of principles is crossing the line into thought and opinion and and one of the recommendations I would note in the in the report recommendation number one They’re actually proposing to review and amend where appropriate the rules of professional conduct the paralegal rules of conduct and commentaries to reinforce the professional obligations of all licensees to recognize Acknowledge and promote principles of equality diversity and inclusion now I find that fascinating because you’re going to you’re going to amend a a rule of conduct To to include all of a sudden a an affirmation of thought And and yeah, well and and to insist upon promotion as well Which is obviously very ill defined Yes, so let’s let’s just go back to the words just just to make this point so again, i’m going to go back to a a quote attributed to the treasurer in the law times piece he says this Uh, 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 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, etc, etc. That’s exactly as you just said jared this describes An obligation to observe the law and that and this law consists of prohibitions That is the obligation that lawyers are under No doubt about it that they must do so but that 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 you know It’s not what this is about and it might also be useful to talk for a moment Also about the word equality because equality has two competing legal meanings and 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 results means that everybody ends up in the same place And 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, right? 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 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 it’s technically impossible and And societies that have tried that have had well, it’s been absolutely catastrophic And it is 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 Characteristics that one has whether it’s race or color or gender or wealth or background or lineage Or or or political connection, whatever it happens to be a 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 are 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 Yeah, and so the 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 with the Conclusions drawn from the data set 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 Enterprise is the whole legal enterprise is systemically racist and thereby you’re also thereby admitting your own Culpability in relationship to that and the corruption of the entire legal system And that seems to me that you shouldn’t be required to admit to that if you don’t agree with it And 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? Uh the findings of this report for me personally and for my industry And 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 Well, the report may may have touched on something in terms of findings Um, there’s also uh 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 which 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 than the Than the than representation of people in 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 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 to promote diversity because in a sense Um the objectives of these recommendations is the opposite of diversity Real diversity genuine deep diversity is diverse includes diversity of thought diversity of opinion diversity of world view 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 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 um But the 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 Uh that that looks like a rainbow um So there’s 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 Um 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 And 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 or sexist claim like 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 so And and but within the groups they’re very different But between the groups they’re not that much different the differences aren’t Aren’t are like 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 so But it’s not the diversity of thought model that that organizations are including our own governments are pursuing at this point the the law society is not alone in that in assuming that that um People who all think alike but that have different racial or gendered backgrounds Um is in fact diversity. I mean the ontario securities commission Has been mandating that type of diversity on on boards of directors for publicly traded companies You know the the federal government in its cabinet Appointments is pursuing that 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 And you know that the people who hold the political views that are pushing these ideas forward are convinced beyond 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 But 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 by any reasonable standard any reasonable world standard And I think that this will inflame tensions between groups unnecessarily Well, 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 uh inflame tensions or animosity Towards people in his group and and I 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? Uh, the motion that is being brought to complication Joe groya who is a lawyer and a bencher? uh 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, um Joe is a fellow that has my utmost respect uh, he’s a he’s a he’s done a great deal of good inside complication, I think as as a bencher and I admire his willingness to put forward this motion which Means he’s sticking his head up from a crowd that doesn’t really want to stick their heads up. Absolutely But nevertheless there there there are some difficulties with the motion. Jared. Do you want to speak to that first? Well, yeah, so the motion itself the I somebody was talking to me about it and they said the problem is is that Um, it makes it appear that if one Elects not to file the statement of values So if you if the motion is passed and they 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 is asking us to affirm And and it 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 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 uh, to to Perform the forced speech obligation. It just gives you Another thing to indicate which essentially requires you to stick your head up and 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 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 You know, and as you said, I think joe’s uh, joe’s a tremendous person deserves a lot of respect He’s fighting his own free speech battles before before the supreme court of canada in early november as you may know he he was accused of crossing some imaginary line about the conduct of his defense Of an individual before the courts and 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 uh, what the thoughts and uh, and conscience is of its members, right? So as of right now, there is nothing sort of on the table that uh in as far as uh, we are we are concerned that that offers the possibility of Eliminating the objectionable aspect of this forced speech obligation on the foot You know, it’s interesting. Go ahead. 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 uh philosophy of of well systemic racism, let’s say and and the promotion of equity diversity and Equality as the highest of of of moral values. So do we want to talk a little bit about the the rest of the recommendations? Yes, sure. Yes. Let’s well, let’s let’s uh, i’ll read out the the first one perhaps the first one Uh gives a flavor for the whole 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 paralegal’s 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 now um There are those words again 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 uh, uh, yeah, well, yes Well, of course they haven’t defined diversity but consistent with the rest of the regime Yes that that that In the way that we have previously described that that is the meaning of diversity that they’re going for right and also the meaning of equality as I Yeah so um 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 they are conduct laws that everybody is subject to but they prohibit certain things. So um So like the statement this first recommendation that gives the flavor of all the rest of them uh suggests that the the law society is essentially moving into a new area area of regulating competence if I can put it this way instead of being a a neutral regulator of competence in the political sense They have now more or less taken on the mandate of Regulating competence in in the political sense in the ideological sense They are essentially saying here are some values that the regulator is going to require you to comply 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 Uh to a position of prominence, uh, and I would suggest beyond all others Yes, sure these these these values because of their 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 like Competence like like well competence you would think would be the core mandate of the laws of the society itself and by competence I mean skills knowledge and compliance with ethics professionalism yeah, well and this this also seems to be to be reflective of a constant push on the part of 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 of the the 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 so well the proponents of the uh of the statement of values the people that i’ve seen writing commentary pieces Um, 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 one of the charter and an oaks 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 a competing right under the charter and inevitably And I think they have a point Uh, anytime the supreme court of canada is engaged in a section one analysis on freedom of speech That that butts up against the competing equality, right? They tend to find that save and except for the most egregious infringement That the equality right shall prevail or be the the tipping factor and so it’s it’s 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 uh, it’s It’s justified Also note this though because the first part of section 15 It is is really a section about formal equality the the equal application of laws to everybody Which is not the kind of equality they’re talking about So they they are they are shifting the ground on what equality means and then saying and that kind of kind of equality Justifies the infringement of these of these other rights in under section one as you say, okay So do you want to continue bruce with this? Yeah, so so let me let me read. Um Another one, um, let me just find it here Uh, I want to read the one here we go. This is recommendation 10 this is I want to read this one because It just reinforces the proposition that we spoke about which is that the law society is 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, uh, law school graduate and you’re 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 you you believe and agree and follow these particular values it’ll be on the bar exam. Yes Yeah Shall I continue on? Yep. There’s the uh, there’s the same. Uh, I Believe I read out already the requirement for the continuing education Matter let’s let’s move to one of the recommendations that are that’s being put in place this year The statement of values is is one and the and the other one that is mandatory For work legal workplaces of over 10 lawyers goes like this The law society will require a 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 at least Fair recruitment retention and advancement which will be available to members of the profession and the public upon request So okay, so 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 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 doesn’t shift in the required direction Does that mean you’re out of compliance? Like the the details in this sort of the measurement details in this sort of thing really matter Who defines fair and then what’s enforced and who’s going to like it? Are this are the firm’s going to be subject to an external analysis? That it examines their their diversity makeup over some period of time and is there is there going to be provisions about how rapidly the the uh 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 uh that a member of the workplace conduct. Uh an inclusion self-assessment every Every two years to to get at uh the measuring component And so what’s an inclusion self-assessment? I mean exactly. What do you think that means? Does that mean that what do you do? Do you lift list your race? I mean Do you do you do you examine your soul to determine whether you’re? You’re oriented in the proper inclusiveness direction in relationship to race and gender like I don’t understand. I don’t because i’m a measurement guy fundamentally, you know 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 Is I don’t I 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 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 for years on these types of demographics on the basis of a voluntary survey basis And so what they 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 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. I don’t see why why it’s it should be required of me that I reveal my Well, what what 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 is confident sense 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 requirements So say that say that again, yes, yes I I 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 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 Is guilty of systemic discrimination and that is a matter of reaching your conduct obligations Does that does that mean that every single lawyer in the firm is guilty of that? Because that’s what systemic would imply Yes, I don’t know it also begs the question of how many people you need to be systemically racist before you actually have a system 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 rides wide standard is in terms of its um, well its diversity lay 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, your systemic your just it’s a systemically discriminatory organization, I think 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 the legal profession I mean that that that’s what it has to rest on if if you read the the statutory mandate of the law society It would seem to fall outside the marching orders the law society has at least as it is presently worded I can perhaps I can read you that this is this is uh, Uh section 41 of the law society act Uh, 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 to do these kinds of things I was going to read section 41 which lists Uh 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 licensees 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 if I was applying for a job at a law firm that was uh compelled by this mandate to diverse itself 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 the human rights code in the charter of rights and freedoms allow for certain forms of discrimination when it’s uh, When it’s for the purposes of an ameliorative exercise um 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 a systemic discrimination issue this I mean specifically Addresses and exempts uh affirmative action type programs as as being found to be discriminatory. It allows them it permits them So the answer would be yes, you could raise that uh, but the but the law firm and the law society if they they would have to then bring forward evidence that this is part of a You know an affirmative action type program that is exempted and 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 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 is a ridiculous thing to say because the law society takes its mandate From the government the government has has given the law society the job of being the gatekeeper um of of the of the rights to practice law and if you are to practice law in this province you You must be a member and you must adhere to the rules of conduct that they that they require of you just so just to suggest that that your that your uh Your engagement with the law society is something that you do Uh voluntarily just because you wish to do so and that makes it a voluntary organization It is is inane right? So the voluntary aspect is that you can give up your hard-won livelihood if you don’t want to Uh be subject to these rules. Yes, so I suppose you could make a case that that’s voluntary, but I mean It’s it’s certainly the case that It stretches that it certainly stretches the definition of what normal people would consider voluntary well, it it turns it turns the idea that you Uh, you would have a you would have a right to practice in any profession if you have the proper Uh skill and training and competence to do so uh that question is 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 to think 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 one of those values migrate over time So it is right now, you know these 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 that we might want to push back against well it’s worrisome because the The values are very ill defined and so an ill-defined book like a box that could contain anything ends up containing a very strange number of things and 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 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 don’t I really can’t say what what does inclusivity mean? Is that more like the nonverbal behavior that you might manifest? You know or or is it does it refer to more subtle interactions within the firm? That’s kind of what it sounds like I don’t know So 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 that essentially makes your organization inclusive doesn’t it when you get rid of the Barriers my suspicions too is that if you went and analyzed the The success rate at with regards to the bar exam that you’d find that it produced systemic discrimination as well because the probability that a 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 So and that’s all part of an assault. I would say on the idea of objective competence so I agree. Okay. Are there are there more are there more statements that are worth analyzing? Let’s just have a look here Um, I mean there’s a there’s a whole a whole roster of them, but I think those are the ones that are Most pressing. Um, well, well, I thought there was an interesting one. It was it was recommendation 12 sub 4 They want they want to create a specialized and trained team to address complaints of discrimination now I mean, I don’t argue that having discrimination in any act of discrimination. That is, you know, uh Contravention of of human rights legislation should be stamped out It should be it should be identified and dealt with but my understanding is that we’ve got Bodies that are responsible for that already not only the spear court, but also the the human rights tribunals So I I wonder what that 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 Uh systemically discriminatory organizations and and sort them out that 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 ontario plus the human rights tribunals Which already have their own problems? The the word in that recommendation that causes me real concern is the word address this 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 judged jury And executioner are 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 I mean, 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 this whatever it is these this this group wants to do so I I question creating another layer of bureaucracy, but Well, I agree. I agree But what I mean what 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 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 if these do create extra and additional requirements that are not now uh Don’t now apply to lawyers Then you do need an extra bureaucracy to 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 Um 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 you would expect. Oh, yes, definitely that that’s how it works So well, 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 they might? deem to stamp stamp upon All right, 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 Um, and so I believe that we’re going to provide contact information for the benchers Is that correct and 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 is is mandated is to 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 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 um this is this is something like this is a public trust of this industry to some extent and so the public very much it has It should be vested in what’s happening. Yeah well, it’s a fundamental public trust because it it deals with the the underlying structure of the legal system and so It this is partly why this is so worrisome to me because I know perfectly well that if if the lawyers fold on this and the law society Succeeds in in pushing forward these requirements and then 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 there’s no reason to assume that this isn’t going to spread more widely Yes, so the the the the main justification Underlying all of this that the law society is relying on is the public interest So if 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 is of some assistance I think the current motion that’s before the law society Is to a great extent a by-product 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 All right, so we broadened the 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 percent or something like that and and not not move the underlying Uh 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 that’s right. There there is no immediate prospect right now of Of getting rid of the forced speech element of this policy and the other elements are consistent with that that requirement and are being carried along and And although only three of these recommendations are being put in place immediately The rest will follow into force and there’s no reason to think that they won’t be done aggressively and uh, 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 and let’s just thank the people who have gone ahead already and And contacted their ventures contacted the law society to to register their objection to ask questions A lot of people have done very good things Uh, and and are thinking well about this they they’re thinking intelligently they’re thinking broadly they they Apply my hats off to them. There are a great number of people who 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 Um, but but I guess the message overall is there are a great many people who think this and the the 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 uh, but 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 to my office and to others Um, it’s not easy to do and and I you know, I I support and and commend those that are doing that And people have written people have written Articles and uh and blog posts. There are some really excellent pieces of work on this topic and perhaps we could even refer um, you know make Provide links to some of those sources, but 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 there from outside i’ve seen things from outside the jurisdiction alberta, I think new zealand There’s a great there’s a great blog by a professor at the university of akeland in new zealand who’s written on this It’s it’s well worth the 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 That it emerges everywhere with extraordinary extraordinary rapidity So anyone who shares the basic axioms of our legal system is is involved in this whether they like it or not Right All right, well, I guess we’ll see what happens And maybe we’ll provide an update again in a couple of weeks