Lawyers in Ontario will not receive any new guidance from the law society this week on whether they can opt out of professing support for equality and diversity.
Lawyers in Ontario will not receive any new guidance from the law society this week on whether they can opt out of professing support for equality and diversity.
The statement of principles will remain as the status quo for now, after hours of debate at the Law Society of Ontario ended in an impasse on Thursday.
That means the future of the so-called SOP— which supporters say is a step toward addressing “longstanding and significant” challenges faced by racialized lawyers and paralegals — remains unclear.
Lawyers opposing the statement of principles — mandatory written statements promoting
equality and diversity — scored a decisive victory in an election this past spring. But while the slate of opponents secured 22 of 40 regulatory board seats for elected lawyers in April, the StopSOP group did not repeal the statement of principles requirement on Thursday.
“We had a good debate, where people expressed their views — it’s a difficult issue that genuinely divides people,“ law society leader Malcolm Mercer told reporters. “It’s complicated because there are a number of different possible outcomes. It’s hard to make procedure work easily, when it isn’t a simple yes or no question. I would prefer if we came to a conclusion …. People were tired and needed a chance to reflect on the unusual situation in which we find ourselves. It’s not a failure, it’s simply a reflection that procedurally this is complicated. As you can see, Convocation is divided closely. So, sorting out a way forward requires some more thought.”
The Law Society of Ontario was set to vote on the statement of principles requirement on June 27. But the meeting was adjourned amid pushback against parliamentary procedure maneuvers used by both pro- and anti-statement of principles benchers.
As Law Times earlier reported, the meeting opened with a complex agenda. Voters chose to re-elect statement-of-principles supporter Malcolm Mercer for a second year as treasurer, rather than statement-of-principles opponent Chi-Kun Shi. A point of order was also raised as to whether benchers Murray Klippenstein and Ryan Alford had a conflict of interest with the vote on the statement-of-principles requirement.
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From there, the meeting got more complicated. Mercer intervened multiple times amid cross-talking, confusion, several tied votes, and questions of abuse of process. Benchers challenged Mercer’s decisions with appeals more than once.
Mercer told benchers at Convocation they had three options — repeal the statement of principles, make it voluntary, or keep the requirement. However, to make a decision, the benchers had to navigate an amendment to another proposed amendment to a motion to repeal the statement of principles.
Benchers initially voted down a proposal to make the statement of principles voluntary with no requirement for the law society to collect or report information on compliance. But a proposal to make the statement of principles voluntary — this time including the requirement that the law society collect data on compliance — was approved by benchers.
However, the voluntary statement of principles was short-lived, despite support from several lay benchers (members of the public).
The successful amendment to make the statement of principles optional was tacked on to a motion to completely repeal the statement of principles. In light of the amendment, Klippenstein withdrew the entire motion to repeal the statement of principles. Then, a vote on the standalone prospect of a voluntary statement of principles —a similar prospect to the one that was previously approved — failed. Thus, the benchers re-instated the status quo of a mandatory statement of principles.
The treasurer fielded requests to re-introduce motions on both the voluntary statement of principles and the repeal of the statement of principles, as well as requests to postpone voting for a future meeting, as debate stretched into the evening hours and swing-vote benchers needed to leave. Ultimately, the law society ended at an impasse, or, as Mercer said, an “infinite loop.”
Convocation’s unwillingness to accept a compromise concerned some lawyers, including bencher Joseph Groia, a supporter of changing the statement-of-principles requirement to a voluntary suggestion.
"We need for the good of the profession and the good of the public to put this issue to rest," Groia said at the meeting.
Bencher Teresa Donnelly, a supporter of the statement-of-principles, said changing the SOP-requirement from mandatory to voluntary was better than repealing it, because it was an opportunity for an important compromise that reaffirmed the LSO's commitment to equity, diversity and inclusion.
Bencher Andrew Spurgeon said he would be willing to compromise and support a voluntary statement of principles in the name of preserving self-regulation.
"The concern about losing self-regulation is very strong in my mind...if the governed withdraw their consent there will be no one there to defend self-regulation. And I see consent ebbing,” he said.
But other supporters of the statement of principles said they could not allow a compromise to make the statement of principles optional, amid concerns about racism in the profession.
Bencher Jack Braithwaite said diluting the mandatory statement of principles was a "continued slap in the face" to racialized groups and "amounts to saying nothing."
Thursday’s debate raised many arguments about the statement of principles as “compelled speech,” with D. Jared Brown comparing the statement of principles to authoritarianism during the meeting.
Bencher Marian Lippa said, “a bigot is still a bigot even if they sign a paper they are not."
But even in the face of a voluntary — not compelled — statement of principles, opponents raised larger issues about whether their research supported the idea that there was systemic racism facing lawyers. Jorge Pineda, a #StopSOP bencher,said that as a Hispanic man, he has seen the welcome mat rolled out by the legal profession.
Despite criticisms that the statement of principles did not have the “teeth” needed to address racism, bencher Robert Burd said Thursday’s debate was evidence of the requirement’s effectiveness.
"What is the statement of principles really going to achieve? I've heard people say, 'It's not going to end racism.' Of course not," he said. "We have brought systemic racism from the background to the foreground …. if that isn't accelerating a culture shift, I don't know what is."