THE GATEKEEPER'S JURISDICTION: THE LAW SOCIETY OF ONTARIO AND THE PROMOTION OF DIVERSITY IN THE LEGAL PROFESSION.

• Author: P'ng, Justin
• Position: Canada

I SYSTEMIC DISCRIMINATION IN THE LEGAL PROFESSION 84 II THE LAW SOCIETY'S EVOLVING MANDATE 85 III THE LAW SOCIETY IS ENTITLED TO DEFERENCE 88 IV RECOGNIZING A STATUTORY MANDATE TO PROMOTE DIVERSITY 89 A. Protecting the Public Interest by Promoting Diversity 89 B. The Independent Duties of the Governing Principles 92 C. Ensuring Equal Access to the Legal Profession 93 D. Public Confidence in the Legal Profession 95 E. Ensuring Standards of Practice that Respect Diversity and Equality 97 V THE CONSTITUTIONALITY OF THE STATEMENT OF PRINCIPLES 98 A. Freedom of Expression is not Violated 99 B. Freedom of Conscience is not Violated 102 C. Charter Rights are Protected Under the Dore/Loyola Framework 104 VI CONCLUSION 107 This article will address whether the Law Society of Ontario ("LSO") has a legitimate duty based on its statutory mandate to promote diversity in the legal profession. The question of legitimacy underlies how this pursuit would fall within the scope of the LSO's jurisdiction based on its governing statute, the Law Society Act ("Act"). (1) For background, part I will explore the systemic challenges of discrimination in the legal profession, followed by an overview of the LSO's evolving efforts to promote diversity and the resulting tensions. Parts II to IV will provide a doctrinal and policy analysis of the LSO's statutory mandate to determine whether it requires the promotion of diversity. Part V of this article will examine the justification and constitutionality of the particular course of action chosen by the LSO to fulfill this mandate, more specifically the Statement of Principles requirement that applies to all licensees.

The debate over the LSO's role in this area has notably flared up since the Challenges Faced by Racialized Licensees Working Group ("Working Group"), struck by the LSO in 2012, published their final report in late 2016 ("Working Group Report"). (2) As will be discussed further, the Working Group was tasked with a mandate to identify challenges experienced by racialized licensees and develop strategies to address these challenges. (3) Upon the conclusion of their work, an immediate and furious backlash erupted over their recommendation that would require every lawyer to "adopt and to abide by a statement of principles acknowledging [their] obligation to promote equality, diversity and inclusion." (4)

This article will contribute to that debate by evaluating the LSO's jurisdiction with respect to actions that can broadly be categorized as "promoting diversity." To fall within this category, such actions would have to be designed to achieve any of the Working Group's three enumerated objectives for its recommendations: 1) "inclusive legal workplaces"; 2) "reduction of barriers created by racism, unconscious bias and discrimination"; and 3) "better representation of racialized licensees, in proportion to the representation in the Ontario population." (5) The importance of this analysis is not simply limited to extending the debate over a particular regulatory decision, but is aimed at clarifying the core values of the legal profession. How these issues are ultimately resolved will have a profound impact on licensees, their practice, and the broader relationship between the legal community and the public.

The LSO is often characterized as a gatekeeper by virtue of its historical role in controlling admission into the legal profession, (6) a description that is as technically accurate as it is pigeonholed. Being a gatekeeper implies a fixed sentry-like position with the narrow objective of policing a gated community, as opposed to the greater equity-seeking role advocated for by the Working Group. As the controversy over the Statement of Principles recommendation aptly demonstrates, the gatekeeper's jurisdiction is in desperate need of clarification.

I SYSTEMIC DISCRIMINATION IN THE LEGAL PROFESSION

To understand why promoting diversity would have any connection to the LSO's statutory mandate, it is necessary to review the context ultimately leading to the Working Group and its recommendations. Pursuant to its mandate, the Working Group studied the experience of racialized licensees, both lawyers and paralegals, through a lengthy consultation process (with "racialization" referring to the process in which race is socially constructed as "real, different and unequal in ways that matter to economic, political and social life" (7)). Their overall conclusion was a finding of "widespread barriers experienced by racialized licensees within the legal professions at all stages of their careers," (8) including "discrimination and stereotyping faced in the everyday professional experiences of racialized licensees." (9)

As the organizers of the consultation put it, "racial identity is a pervasive factor in shaping the experiences, choices and career outcomes of racialized lawyers." (10) This prevailing narrative emerged from their findings, which included 40% of racialized licensees identifying racial or ethnic identity as a barrier to entry in the profession and in its practice, compared to only 3% of non-racialized licensees.11 Of those participants, 52% agreed they did not advance as quickly as their similarly qualified non-racialized colleagues, (12) while 65% of all participants agreed racialized licensees faced challenges their non-racialized counterparts did not. (13) 52% of racialized licensees also described having witnessed an occasion where these challenges had a "material impact" on a racialized licensee's entry or advancement in the profession, including differential treatment based on race and being subject to inappropriate or racist remarks during interviews. (14) Qualitatively, racialized licensees spoke of discrimination as a "feature of daily life" for many of them, including being subject to negative stereotypes and occasional overt racism. (15) The practical consequences included being consistently underestimated, excluded from work files, and being given less support. (16)

These findings reflect a lived reality that has long characterized the experience of racialized lawyers. In its 1997 Bicentennial Report and Recommendations on Equity Issues in the Legal Profession ("Bicentennial Report"), the LSO took note of the familiar-sounding observation of "blatant examples of mistaken identity where clients, judges, and colleagues assumed [racialized lawyers] were not lawyers." (17) And while the proportion of racialized lawyers has progressed over time to just under one-fifth of the profession, this percentage still trails the approximately one-quarter racialized proportion of the general Ontario population. (18) That discrimination and lack of diversity has persisted is testament to the enduring nature of systemic discrimination, to which the legal profession has proven no exception.

II THE LAW SOCIETY'S EVOLVING MANDATE

The mandate of the LSO under section 4.1 of the Act is to ensure that "all persons who practise 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", and that these standards apply equally to practitioners. (19) In executing this function, the LSO "shall have regard to" five principles listed in section 4.2. These are that the LSO has a "duty to maintain and advance the cause of justice and the rule of law," a "duty to act so as to facilitate access to justice," a "duty to protect the public interest," a "duty to act in a timely, open and efficient manner," and an obligation to make its standards "proportionate to the significance of the regulatory objectives sought to be realized." (20) As for how this is practically applied, the LSO is empowered to make by-laws governing licensing, including by prescribing "qualifications and other requirements," (21) a code of professional conduct and ethics, (22) and guidelines for professional competence. (23) In other words, the LSO may execute its mandate by prescribing certain obligations for lawyers, as it has done so through the Rules of Professional Conduct. (24)

For proponents of the LSO using its mandate to take a greater role in promoting diversity in the legal profession, the evolution of its mandate indicates that such a role is already provided for, although the movement in this direction has been uneven. A sanitized view of this history can be found in Groia v Law Society of Upper Canada, where the Court of Appeal for Ontario ("ONCA") grandiosely declared, "for almost 220 years, the Law Society of [Ontario] has governed the legal profession in the public interest under statutory authority." (25) It would be more accurate to say however, that only relatively recently in its history has the LSO recognized a public interest mandate for itself.

A significant turning point came with the Role Statement adopted on October 27, 1994, in which the LSO affirmed it "exists to govern the legal profession in the public interest" with the "purpose of advancing the cause of justice." (26) By modern standards, this affirmation would be considered pro forma. At the time it was circulated in 1994 however, a full third of respondent lawyers rejected the notion that their interest should be subordinated to those of the public, and half denied that the LSO existed to advance the interests of the public over those of lawyers. (27) Indeed, it was only in 2007 that the Act was amended to include the current statutory mandate and governing principles. (28)

With respect to promoting diversity, the LSO gradually developed a more active position beginning in the 1990s. As the Bicentennial Report notes, the LSO adopted a Statement of Policy in 1991 that recognized discrimination in the profession, declared that "lawyers have a responsibility to take a lead in eliminating discrimination," and formalized a commitment by the LSO to "intensify its efforts to eradicate discrimination in the...