Smoke and Mirrors – The Systemic Discrimination Narrative at the Law Society of Ontario.

I have been authorized to publish this correspondence, sent by a member of the LSO to the Treasurer and the Chair of the Equity and Indigenous Affairs Committee at the LSO, providing a review of the data on which the Law Society erected the narrative that the legal profession in Ontario is systemically discriminatory to racialized licensees.

Mesdames:

Recent media coverage concerning diversity in the Law Society of Ontario (LSO) prompted me to look into the source and validity of that claim.

One of the three stated objectives of the Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions report is “better representation of racialized licensees, in proportion to the representation in the Ontario population, in the professions, in all legal workplaces and at all levels of seniority.” The statistical data provided in that report underscores one aspect of the underrepresentation that needs to be addressed: “the proportion of racialized lawyers in the Ontario legal profession … 18% in 2014. This is compared to … 26% of the Ontario population who indicated in the 2011 National Household Survey that they are racialized.” The LSO’s Equity, Diversity and Inclusion Initiatives (https://lso.ca/about-lso/initiatives/edi) call for accelerating diversity.

This data and variations of it have been widely reported by the news media. For example, the Globe and Mail reported on July 17, 2020 (https://www.theglobeandmail.com/business/article-why-are-there-still-so-few-black-lawyers-on-bay-street/), “According the Law Society of Ontario … 19.3 per cent of the province’s lawyers in 2016 identified as racialized, a full 10 points lower than the population at large.” In a similar vein, a Ryerson publication from February 2020 (https://theeyeopener.com/2020/02/ryersons-new-law-professors-champion-accessibility-diversity-and-technology/) states, in the context of “underrepresentation of racialized minorities,” that racialized lawyers “comprised only 19 per cent of the total population of Ontario lawyers.” The message is clear: systemic racism in the legal profession is responsible for the underrepresentation of racialized licensees.

I believe this narrative is problematic for a number of reasons. The proposition that racialized licensees should mirror exactly their share of the Ontario population at any given time in order to achieve equity is a questionable benchmark. It lacks crucial contextual information. Membership in the Law Society is incremental by year of call. According to census data, visible minorities comprised just 13% of Ontario’s population in 1991, 15.8% in 1996, 19.1% in 2001, 22.8% in 2006, 25.9 in 2011, and 29.3% in 2016. In years prior to this, it was considerably less. Visible minorities made up only 4.7% of Canada’s population in 1981, 6.3% in 1986, and 9.4% in 1991. The Ontario figures for those years may have been slightly higher, but not by very much. Cohorts from previous periods, when the racial make-up of Ontario’s population was markedly different from today’s, could never mirror the present racial make-up of the population. It is illogical, therefore, and unrealistic to suggest that the global membership of the LSO should do so for there to be equity.

Moreover, it is not clear what membership statistics are being used to convey the message of underrepresentation of racialized licensees. According to the LSO’s 2019 Annual Report (http://annualreport.lso.ca/), of the 55,360 lawyer members only 37,900 are practising law. Presumably, a significant number of non-practising lawyers are over the age of 65, a group that numbers 9,457, almost all of whom were called to the bar prior to 1980. Are non-practising lawyers from that age group (or any age group for that matter) being factored into the equation? If so, for what reason? Non-practising members do not interact with people who seek legal services. They are not the face of the Law Society. As for paralegals, the Statistical Snapshot of Lawyers from the Lawyer Annual Report (LAR) 2015 (https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/l/lawyer-snapshot_2015.pdf) indicates that that 34% of licensed paralegals in Ontario were racialized, which is significantly greater than their share of the population at the time (29.3% in 2016). So why is there a pressing need for “better representation” of racialized paralegals?

Publishing global statistics regarding the racial make-up of the LSO’s membership relative to the Ontario population, and calling for “better representation” of racialized licensees, promotes the notion that systemic racism is responsible for the allegedly “skewed” make-up of the membership of the LSO when, in fact, it is not. The equity of the racial make-up of the membership of the LSO cannot be measured simply with reference to the proportionate representation of racialized people in the Ontario population today. That is a misguided approach. Rather, the crux is whether racialized people are being admitted into the LSO in proportion to their share of the population at the relevant time. Calling for “better representation” suggests that they are not and that the rate at which racialized people are being admitted should be increased. However, the notion that racialized people have been disadvantaged in entering the legal profession is simply not borne out by the relevant data.

The Statistical Snapshot of Lawyers from the Lawyer Annual Report 2015 (https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/l/lawyer-snapshot_2015.pdf), which provides detailed statistics by year of call, indicates that, at least since the year 1997, racialized lawyers have been called to the bar in significantly greater proportion than their share of the province’s population at the time of call: 21.0% for 1997-2006, 28.3% for 2007-2011, and 32.1% for 2012-2014. In 2015, the intake of visible minorities was 34.8%, which is 5.5 points greater than their share of the population in 2016 (29.3%). In 2015, 30.5% of the lawyers under age 35 were racialized, and of those between 35-44 (i.e., clearly pre-2011 calls), 26.1%.

In summary, It does not appear that racialized people are entering the profession in numbers that are disproportionately small. In fact, they are overrepresented in that regard and have been for at least two decades. Moreover, as already mentioned, they are significantly overrepresented among the total paralegal membership. Which begs the question whether such overrepresentation is appropriate and equitable in light of the LSO’s position that it “seeks to ensure that both the law and the practice of law are reflective of all the peoples of Ontario” (http://annualreport.lso.ca/). Given that the underpinning of diversity and inclusivity is that society’s institutions should resemble the racial make-up of the population, one would assume that the principle of proportionate representation applies to all races in a non-discriminatory manner. If that is not the case, then that should be clearly articulated together with a compelling rationale.

The narrative of systemic racism that needs to addressed by “accelerating diversity” appears to have found its way into the admissions practices of Ontario law schools, where it is impacting dramatically the rate of acceptance and representation of racialized and non-racialized people. The available data indicates that racialized people are being accepted in numbers far greater than their proportionate share of the province’s population and that non-racialized people’s representation is far below their share. Consequently, the make-up of the student body of law schools, who are the effective gate keepers for the LSO, do not presently resemble the racial make-up of the province’s population. Examples follow.

Windsor University Law School’s 2019 diversity survey indicates that the class of 2022 is 50.7% racialized, with males accounting for only 39.7% of the student population (https://www.uwindsor.ca/law/sites/uwindsor.ca.law/files/summary_report_diversity_survey_2019.pdf). The racialized population of Windsor in 2016 was 20.5%, and their share of the population in the surrounding area was even smaller. Even on a province-wide scale (racialized people accounted for 29.3% of the population in 2016), the advantage of racialized people is a staggering 21.4 points. Yet this racial make-up, one that is so clearly out-of-keeping with the racial make-up of both the surrounding community and the province, is heralded by that law school as a significant achievement: “Windsor Law is proud to be one of the most diverse law schools in Canada.” Surely it is incumbent on those who hold such views to explain why a student body where non-racialized people are so grossly underrepresented is a source of pride.

The University of Western Ontario Law School reports that the class of 2022 is 37% racialized (https://law.uwo.ca/future_students/jd_admissions/PDFs/Diversity%20Survey%20-%20Comparative%20Profiles%202020-2022_WEBSITE_FINAL.docx.pdf). Again, this bears little resemblance to the racial make-up of the city (about 20% racialized) or the region. It is also significantly higher than their share of the province’s population. The same pertains to Queen’s University Law School (https://law.queensu.ca/programs/jd/class-stats), where the class of 2022 is 39% racialized, which is almost 10 points higher than their share of the province’s population in 2016. Kingston’s racialized population is only 7.9% and the region’s is even smaller.

According to data provided by the University of Toronto Law School (https://www.law.utoronto.ca/about/jd-first-year-class-profile), the first year class profile for 2020 is 42% racialized. According to data provided by Osgoode Hall Law School (https://www.osgoode.yorku.ca/admissions-survey/), the class entering the fall of 2019 was 49% non-racialized. Both figures are considerably higher than Ontario’s racialized population (29.3% in 2016). Granted there may be an issue as to whether the make-up of a law school’s student body should reflect the region’s population (the GTA’s visible minority population was 51.4% in 2016) or the province-wide population, but that discrepancy should not be used to the disadvantage of non-racialized students on a province-wide basis, as clearly it is.

Therefore, based on the statistics provided by these five law schools (I have not been able to locate statistics for the remaining law schools but I assume the trend is similar), racialized students are significantly overrepresented in law schools. The intake of non-racialized students is markedly disproportionately small and thus, by the standards adopted by the LSO (namely, that the practice of law should be “reflective of all the peoples of Ontario”) manifestly inequitable. If racialized students were underrepresented to that degree it would be treated as evidence of systemic racism that would require taking remedial action. Since the laws schools are effectively the gate keepers for those seeking to enter the legal profession, their admission practices will likely result in the intake of LSO licensees resembling Ontario’s population less and less. While the LSO may not be actively creating this state of affairs, it will be inheriting it so it can’t simply be ignored.

In summary:

1. The LSO’s Equality, Diversity and Inclusion initiative requires clarity and clarification. Objectives should be framed in a non-discriminatory manner and should not impact racialized / non-racialized persons seeking admission inequitably.

2. The proposition that racialized licensees should mirror exactly their share of the Ontario population is a questionable benchmark. It lacks important contextual information, namely, that the racial make-up of the LSO’s membership is not the result of discriminatory practices, but rather the result of rapidly changing demographics. As such, it promotes an unfounded narrative of systemic discrimination in the LSO’s admission practices.

3. It is misleading to suggest that racialized people have been admitted into the LSO in disproportionately small numbers and that, therefore, their intake should be accelerated. This is especially so with respect to paralegals.

4. If proportional intake by race of new licensees is the target, equity requires that proportionality should apply to both racialized and non-racialized people.

5. The admissions practices of law schools must be addressed with those institutions as they are the effective gate keepers for the legal profession. Disproportionate representation of racialized and non-racialized people at that level undermines the LSO’s objective of equitable treatment of licensees.

Respectfully submitted,

D. Jared Brown quoted in the Lawyer’s Daily on rescinding his adherence to the new Bencher Code of Conduct

I was interviewed by the Lawyer’s Daily regarding my concerns with the Bencher Code of Conduct (the “Code”) implemented by the Law Society of Ontario on the eve of my election as Bencher last year in a highly contentious election.

Below I summarize my main concerns with the Code.

The Lawyer’s Daily article can be found here:

https://www.thelawyersdaily.ca/articles/20613/lso-code-of-conduct-stifles-free-speech-benchers-argue

The Code is incorporated into a document called the Governance Practices and Policies (“GPP”) found here:

Click to access governance-practices-policies.pdf

My primary concerns with the Code and the GPP document into which it is incorporated are twofold:

1) The Code seeks to fetter the discretion of Benchers and restrict the exercise of their judgment on highly political issues contrary to their fiduciary and common law duties as Benchers; and,

2) The complaints mechanism deviates from typical governance documents by placing a single individual (the Treasurer) in the role of investigator, judge, jury, and executioner.

After my election as Bencher, I immediately voiced my concerns with the Code upon being advised that my adherence was a new requirement of becoming a Bencher.

I provided a limited adherence by stroking out the most offensive section.

In January 2020 I delivered notice that I was rescinding my adherence to the Code in its entirety.

Part 1, section 1(4), page 4 of the GPP purports to require benchers to govern the practice of law and the provision of legal services in accordance with certain fashionable political stances favoured by the last Bench.

4. In keeping with the statutory principles above, Convocation is committed to
    governing the practice of law and the provision of legal services in a manner that will
    a. achieve a reduction of barriers created by racism, unconscious bias and
        discrimination;
    b. achieve better representation of Indigenous licensees, racialized licensees and
        licensees from all equality seeking groups in the legal professions; and
    c. advance reconciliation, acknowledging a collective responsibility to support
        improved relationships between Indigenous and non-Indigenous peoples in
       Ontario and Canada.

While the Law Society is supposedly an evidence based regulator, it requires that Benchers govern with regard to the concept of unconscious bias.  A concept of questionable scientific validity given we have no known means to reliably identify it, test for it, or intervene to influence it.  My thoughts on the concept of unconscious bias can be found here:

https://litigationguy.wordpress.com/2017/01/30/unconscious-bias-training-proceed-with-caution/

I further question whether it is the role of a public interest regulator to govern with the primary objective of manipulating the demographics of the professions to achieve better representation of certain groups vs other groups, as seems to be required of Benchers by section 1(4) of the GPP.

Finally section 1(4) requires that Benchers govern to advance reconciliation, an undefined term with potentially significant and contentious political implications.

There is also concern that the Code introduces conflict for Benchers by requiring them to elevate their fiduciary duties to the Law Society organization above the statutory public interest mandate.

Why did the last Convocation enact the Code?

We know the last Bench was quite comfortable restricting the expression, thought, and conscience rights of their colleagues with the Statement of Principles.

So its no surprise they’d set out to restrict the privileges and judgment of future Benchers on highly political matters.

I note that former Benchers Anne Vespry and Rocco Galati had concerns that the Code would restrict their ability to speak out against the Law Society or its policies.

Despite the assurances of people like former Bencher Peter Wardle, it is being used for precisely that in the case of Bencher Goldstein who was cautioned by Treasurer Mercer for publicly stating his belief that the Law Society was operating a deficit (a true statement).

The Code is being weaponized both inside and outside Convocation to attack Benchers and it is having a chilling effect on debate and expression.

I believe it was the objective of the proponents of the Code to bring Benchers in line and compel them “to speak with one voice” (as was stated by former Bencher Rebecca Durcan at the time), and to constrict the discretion, judgment, and expression rights of Benchers.

Both Treasurer Donnelly and the new Chair of the Audit and Finance Committee Bencher Joseph Groia voted against adoption of the Code at the time.

I believe the new Code Working Group struck by Treasurer Donnelly is confirmation that the Code needs to be revisited and I look forward to working with my colleagues to address these issues.

D. Jared Brown quoted in the Law Times on unaccountable Equity groups at the Law Society of Ontario

“Equity advisory groups are accorded a special status in this place,” said Brown. “They have no fiduciary duties to the public, or the membership, no duty of confidentiality, and, I suggest to you, no accountability.

https://www.lawtimesnews.com/resources/professional-regulation/benchers-defend-status-quo-for-equity-partners-decline-to-censure-social-media-critics/326807