The Jordan B. Peterson Podcast - Compelled Speech - Law Society of Ontario

Episode Date: November 3, 2017

Part 1 of this podcast is the video "A Call to Rebellion for Ontario Legal Professionals": (http://bit.ly/2yo4Jpe). Part 2 is the video: "Update: Law Society of Ontario Compelled Speech": (https://www.youtube.com/watch?v=FPpPnGA8rkQ) On October 10, Professor Bruce Pardy, Lawyer Jared Brown and I uploaded the video A Call to Rebellion for Ontario Legal Professionals: (http://bit.ly/2yo4Jpe) in the wake of the Law Society's new requirement for a mandatory "statement of principles"

music So today I'm talking to two of my compatriots, I suppose, in this ongoing discussion in Canada about free speech issues, including compelled speech. And I met Jared Brown and Bruce Party. Jared's a practicing lawyer and Bruce is a professor at Queens University in the Law School there. And I met them both when we manifested, when we manifested a mutual interest last year in Bill C-16, which we all regarded as a piece of legislation that was infringing on the rights to free speech of Canadian individuals in a manner that hadn't been ever attempted before. And more recently, the Law Society of Upper Canada,

soon to be known as the Law Society of Ontario, has put for a requirement for all of its members, so all of the lawyers in Ontario to produce a document of principle that we all have been talking about, the three of us have been talking about that we regard as another but far more egregious example of compelled speech so I'm going to let Jared introduce himself and say a little bit about who he is.

He testified with me at the Canadian Senate last year at Bruce party also testified at the Senate on Bill C-16 and Bruce was also the lawyer that I debated. He played devil's advocate at Queens University and some of you watching this will be familiar with that video. So Jared, I'll let you introduce yourself and then Bruce. And then Bruce recently wrote a column for the National Post on this new requirement by the Law Society. And so we're going to let him begin the discussion proper onto you, Jared. I'm an everyday litigator.

I'm a commercial litigator in Toronto. I've been practicing for about 15 years. Doing increasingly more and more human rights tribunal work, things like that. And obviously stepped into the breach on C-16. And as far as I can tell, I may have been the only practicing lawyer that actually spoke out against the legislation.

There were certainly a lot of lawyers, including the Canadian Various Association that were arranged in favor of the legislation, but as far as I can tell, boots on the ground, I think I was the only one. So I've got a pretty benign practice, but certainly have taken up the fight, if you will. Bruce. Thanks, Jerome. Well, this issue arose for me a couple of weeks ago when I received an email from the Law Society

and all lawyers get these emails to do various things, but this was different because it announced a new requirement for this year. Now, Jared, I think, was aware of this developing before I was, but like many other lawyers in the province, this is both the first indication that this new requirement existed. And essentially, the email said, one of the things that said most others was that every licensed lawyer now is required to draft and submit what they are calling a statement of principles. And that statement is required to express your agreement and the value you place on inclusion, diversity,

agreement and the value you place on inclusion, diversity, and equality and the fact that you will actively promote those values. And that's me just sprung off the screen as a radius example of forced speech. Out of the same kind that we were talking about under Bill C16, but worse, this one actually requires you to make a full-fledged statement that will be subject to their approval in order to maintain your license. In other words, this is not a matter of it being suggested to you that you might want to do this. This is a condition of your ability to practice law in the province of Ontario. So this struck me as a matter that needed to be haired publicly and needed to be discussed amongst lawyers in the province because this is a slow march to a dark place.

I think, and that's where it all began. Well, it was concerning to me when I encountered this. I mean, I'm the member of a college as well, the college of psychologists. And my sense of this is that if the lawyer is full and go along with this, the probability that this will be required of every professional in Ontario, and then very rapidly, every professional in Canada is extremely high, because if the lawyers who are relatively disagreeable bunch and who are very familiar with the law and with common law in general are willing to have their political beliefs dictated to

them by their college, then the probability that the rest of us will be able to withstand that, I think, is extremely low. Well, a strong independent bar is always supposed to be the defense, or at least one line of defense against tyranny, or against government overreach, and by having the lawyers under the guise of their regulatory body, having the lawyers under the guise of their regulatory body being compelled to speak or share opinions. It's obviously something scary and I think it's something that lawyers should wake up to and they need to push back against compelled speech which was obviously the issue on C16 is a particularly

nefarious infringement and intrusion. Yeah, well, it's one thing to put restrictions on what people can say. I mean, I know you can't incite someone to crime, for example, but it's a completely different thing to require people to expose a particular political stance, especially when it's being reviewed by what's essentially an arbitrary committee. And when the punishment is so as draconian, as potentially losing your right to practice, and that that's enforced as a mandatory,

like the first step was to make that mandatory rather than as a suggestion. So let's just emphasize this point, the distinction between restrictions on speech, which are not good things and are debatable and so on, but this is a different category of question. This is compelled speech. This is a requirement that makes you say something you may not agree with. And I mentioned in the column, a statement from the Supreme Court of Canada and maybe I'll just

read out one of those just to make the point because even the court has said explicitly that this is not on in a free society. Here are the words of the Supreme Court. Forcing someone to express opinions that they do not have is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes, which of course is not in rest of here. Yeah, I mean, that was, sorry, Jordan, that was, that was the cornerstone of not only the opinion piece that I, I put up on my website about C-16, but also in the

cornerstone of the presentation that was made to the Senate, is that this is a particularly egregious infringement on freedom of expression. You're having to mouth opinions and ideas that may not be your own, and the government is forcing you to do it. And obviously in this instance, you've got your regulatory body, which holds your license and your ability to carry on the livelihood and the chosen profession that you're in, telling you that you've got to start voicing these opinions. So, Jared, when we talked before too, one of the things that you pointed out and Bruce,

you had commented on this as well, is that, you know, the law society administration theoretically did some background work before deciding that this was a necessity. And they produced a report essentially proclaiming that the law, the people who are practicing law in Ontario are essentially racist in their orientation, which is why this racist and perhaps misogynist as well, which is why this piece of administrative, let's call it law, requirements has come into practice. But it isn't obvious that their own data support that conclusion. I mean, you can easily read what they wrote as pretty, providing pretty compelling evidence

that the legal profession, the demographics of the legal profession, for what that's worth, are transforming quite rapidly. And so the thing that concerned me as well from a psychological perspective about this sort of thing is that lawyers who agree to participate in this process are basically admitting their racism and misogyny on a conscious and unconscious basis and thereby convicting themselves like they're guilty to begin with. They don't have an opportunity to prove their innocence. And by going along with these requirements, they're basically admitting through their action that the accusations that are being thrown at them both individually and as a collective are

not only accurate but require immediate remediation. Yeah, well, I mean, the requirement that's being rolled out right now is the result of a, I think it's about a 58-page report that had 13 recommendations that were passed by complication, which is the governing body of the law society. And the report itself was entitled strategies to address issues of systemic racism in the legal professions. I mean, that statement on its own is saying

that our industry, as well as the law society organization itself, is systemically racist. And clearly, that's a, to me, I mean, it's a very bold statement and one that I think requires some level of scrutiny. The group that came up with this report is an esteemed group. These are all highly respected, well-accomplished individuals and there is a body of data that they've produced as well as some qualitative anecdotal stories as to some of the issues that are being faced

by what they call racialized licensees. I mean, the data is something that a lot of people aren't going to look at, but I do encourage people to look at it and see what the basis on that finding that we're a systemically racist industry and obviously profession. I encourage people to look at it. Study the report.

I can assure you that most lawyers won't, 58 pages, something that happened back in December, but there's a lot of shocking information in there, and there's obviously some shocking findings. But yeah, no, it's got me concerned because my industry has now been deemed racist by the body that governs it. Yeah, well, and one of the things that's really appalling about that, and I think, and also about the requirements for the statement of principles, is that there's a pronounced ideological vent to them.

And the first is the idea of systemic racism, because the way that you prove systemic racism is, I would say, let's say, call it questionable method logically to say the least, because the basic concept is that you divide the population up by racial, ethnic, and sex-based identification, which you can do in a very large number of ways, by the way. And then you compare any organization to that population-based division.

And if the ratio of individuals categorized in the general population isn't the same as the ratio of individuals in that profession, then you can automatically make a case for systemic racism. And that's a very, very weak methodology. No credible scientist would regard that as proof of anything. And worse, I can't imagine that any claim like that would stand up in something resembling a court of law if you know if it was possible to take a group to court Because there's all sorts of reasons why there might be differential representation in a group and that and that is assuming that that's what the data shows and in many respects that's actually not what this data shows So I take your point about the methodology but but

Even so even if you accept that methodology, it's not crystal clear that that's what the numbers actually suggest. But can I get back for a moment to your implication point? I mean, I agree that the requirement to make this statement in this context essentially put be interpreted as though you were required to make a confession about what it is you've done wrongly in the past and what it is you will do now in the present to correct it as an individual and there is also the trouble that once you have written a statement so as to comply with the requirement then you have on the record a statement of what it is that you believe.

And thereafter your future actions can be compared to that statement. So I have to show that you are not acting in compliance with what you have said you believe, or that on one occasion or the other you haven't been telling the truth. So I heard some lawyers say in response to this requirement that, oh well, this is not a big deal. Because I'm just going to write the statement, they'll put it in the file, in some corner of the Law Society computer, and who cares? It's a big deal.

But actually, it is a very big deal, because they are hurting you towards both a certain way to think, a certain way to express yourself in a certain restriction on your behavior and your expression in terms of what you say you believe in the future about this kind of law and all kinds of other laws. But also, you're subscribing to this idea that the system is racist, that the industry and the profession themselves are racist. And to me, that implies hopelessly corrupt. And that shocks me. And I don't think I want my industry advertising that, unless, of course, we've got an issue here,

and it's not entirely clear to me from reading the report that we do. But I mean, Jordan may have some comments, obviously, about writing a statement and a declaration and what that means. But I just find that, you know, having to affirm in a statement that our industry is hopelessly corrupt is, it's not something I'm willing to do at this point. Well, one of the things I've learned after over the last year is that apologizing or admitting guilt to ideologues is an unbelievably dangerous thing to do, because

all it's taken as Bruce basically alluded to is a statement of guilt. And you know, the other problem from a psychological perspective is that, and there's a very clear psychological literature on this. So, you know, if you have a particular set of philosophical positions, let's say, principles, let's call them. And maybe your principles are something like excellence, meritocracy, and honesty, which strike me as a better set of principles for lawyers

than diversity, equity, and inclusiveness, not that those aren't, you know, in certain contexts and carefully defined also important. If you write a statement of principle, especially one that's going to have to pass muster, then what will happen is you will bring your beliefs and your actions in line with that statement of principle. You'll do that unconsciously,

and there's a bunch of reasons for that. And one reason is, is that you've now made a coherent and credible argument in favor of that set of principles, and you will find that convincing because articulating yourself in that manner actually changes your character. And the second is, is that it puts you into a position

that's often being described as cognitive dissonance, which is one of the most famous findings in psychology. And cognitive dissonance is the unpleasant feeling that you get when you're holding two opposing beliefs, let's say, at the same time, and you notice that. And so the cognitive dissonance here would be, well, I'm just going to write this statement of principles, what difference does it make?

However, that is a statement of principles. And so it's intrinsically dishonest and character damaging to craft a statement of principles with which you do not agree. And so then you can either regard yourself as a coward and a liar, or you can bring your thinking in line with the statement of principles. And the latter thing is what people tend to do. And so, and then the idea that this is just going to sit in some musty File drawer that's completely that's completely naive in my estimation because basically what's happening and I've seen this happening with the creep of ethics committees on university campuses is that once you decide that you're guilty and that you're going to abide by a new set of principles, it now becomes incumbent on the law society as a matter of the intrinsic logic of the movement

to do things like check you out on a year-to-year basis to see how your attitude and behavior is actually in keeping with your statement of principles. It's not just going to hang there in the air. It's going to be enforced. Yes, and that is part of the transition, I would say, from the law society regulating competence, regulating values. I mean, it used to be at one point that the law study was there to make sure that you had the skills to be able to practice law.

And as time has gone on, their overseeing is more and more in the area of what it is that you think, and whether or not that thinking is appropriate. And one good comparison of this is the case in Boeing, the Trinity Western Law School, the graduate of that law school. So this is a private law school out in Virginia. And they require all their faculty and students to sign on to a pledge that had contained certain values. They promised not to do certain things, like have a premarital sex and all kinds of other things.

The law society, on the basis, I think, that it is inappropriate for an institution to impose values upon the people within it, have said that they will not license graduates from that law school. Now, you might agree or disagree with that perspective, but it is hypocritical now that what they have done is the same thing, essentially, except

with a different set of values. They have indeed imposed a set of values on the people within their own institution. It's just that they have chosen different values, which means that their objection to turn you Western was not really at all about the position of the values. They just don't like the values that turn you Western chose. Right, yeah. Well, it's pretty ironic that the argument would be made that an organization doesn't have the right to impose its values on its on its voluntary participants, which we should point out, because you certainly don't have to go to Trinity Western or

scientific agreement. There's lots of law schools you can go to, whereas in this particular situation, you're basically, I mean, to say that a gun is pointed to your head, is too dramatic, obviously, but it's no joke to be faced with the threat of losing your license and also to have to undergo what would essentially be a bureaucratic inquisition. And those are not pleasant, those are seriously not pleasant, if you fail to comply. No, and there's other parts of this. Before we leave to your question, can we just underline what you just said, which I think is very important, which is that the law society is essentially an arm of the state.

It has coercive power given to it by the state, to license lawyers, and it is the gatekeeper. So you have no choice, whereas, as you said, Jordan, the association with Trinity Western is entirely voluntary. If you don't want to go to that school, you don't go to that school. And so it's erotic in the extreme, that it is the law society, which has imposed such a requirement in circumstances that is much more objectionable than the Attorney's Restoration situation.

Yeah, well, it's quite disconcerting to me to say the least, to see that it's actually lawyers that are doing this and that they're not capable of seeing or unwilling to see for some reasons that I don't really understand that this is an egregious assault on the rights of, well, I would say of lawyers in Ontario, but also of individual citizens in Canada. It's like the fact that it's lawyers that are involved in this is really, I find that much more terrifying in some sense than the unfounded or likely unfounded accusation that the entire profession is racist, which are also, you know, now what are people who are to use the hated word racialized, which is also an ideological term, supposed to conclude if all the lawyers in

Ontario just go along with this whole heartedly, they're really supposed to conclude if all the lawyers in Ontario just go along with this whole heartedly. They're really supposed to be able to go into a law firm and trust that their claims are going to be put forward with fairness and clarity and commitment. If the whole society has already agreed and the lawyers go along with it, that it's intrinsically racist association. And how is that going to do anything but damage, racial and sex related? What would you call them? Relationships in Canada.

I just can't see that as anything, but it's supposed to be something that brings us together with regards to, let's call it inclusiveness. But I can't see this as anything other than something that's going to be extraordinarily divisive. Well, yeah, interesting. You were raising the issue of why are lawyers going along with it or why aren't they recognizing the danger.

You know, there was some talk about this at the convocation meeting where these recommendations were passed. There were some dissenting voices and very well put dissenting voices. But, very well-put dissenting voices. But, you know, just within my own professional network, most lawyers don't know what's going on.

They got the email. They didn't think anything of it. We get, you know, 12 of these things a month. It's just an additional requirement, another piece of paper. Now, interesting what the Law Society has done when they pushed this requirement out, is they also said, by the way, if you need some help completing this statement of the statement of principles, we're going to provide two templates that would satisfy us. And of course, 98% of the lawyers that I practice with who are already time crunched, what

are they going to do? They're going to file out their template A or B, get on with their life. And so it's one of those things where you've got time-pressed lawyers or licensees and you've got a bureaucracy adding a new level of requirement to them. And they're just going to go along to get along. And from what I can tell, when I do stop people and ask them about their statement of principles, that's the first time they've actually thought about it. Yeah, well, I know Yeah well go ahead Bruce.

No is it going to say that the fact that it is a template that you can choose between one of two templates. You know that doesn't make it less of a concern. It's actually more. I mean I don't want to overstate this but this has a lot of similar areas to McCarthyism. Yes. but this has a lot of similarities to McCarthyism. Yes? Did I know it's not now, nor have I ever been a member of the Communist Party. That was the template. The McCarthy era.

This is the template. You have to say certain things and look how meaningless it becomes in terms of actual substance. If the template you just sign on, then they have literally put words in your mouth. And that is the thing that cannot be allowed to happen. Well, that I agree with that in a couple of ways. I mean, the first thing is that if they were committed to this in any deep sense, the last thing they would provide was a template. Because the idea that you can you can require from people a statement of

principles that's of such fundamental import that if it is not crafted properly you lose your license and yet that they could produce a template of principles that would see in some manner apply to everyone equally is just it's absurd almost beyond comprehension. I mean principles actually happen to be important, right? From a psychological perspective, your deepest principles are the axioms from which you generate not only your thoughts and your actions, but your perceptions,

your emotional responses and your motivations. Like there's virtually nothing more important from the perspective of psychological integrity than your principles. And to think that those could be reduced to an externally produced template and that that could be imposed as a requirement. So it would be easier for you.

It's like, it reminds me of the Soviet era where there were templates of guilt. If you were accused of something, regardless of whether you were guilty or not, because that really wasn't very relevant, you'd be required to sign a template of guilt essentially, and that would, well, and once you've done that, well, you were done.

Yeah. And so it's really quite amazing that that, from a conceptual philosophical perspective, that that sort of thing could even be considered for a moment as acceptable. And it seems to me to be a way of sliding it in under the door as Jared pointed out, people are busy. And the other thing is, you know, when I made my first videos objecting to Bill C. 16 last year, part of what motivated me was a comment by a colleague and about political correctness on campuses.

He said, well, you know, the consequence of standing up against it from a personal perspective is extremely high, and the probability that your opposition to it is going to have a broad scale, a social consequence, is very low. And so the logical thing to do, especially if you're pressed for time and also if you want to not put your head up above the herd where it can be locked off, is to a not notice because you're too busy. And b, because you're isolated as an individual in this circumstance facing a large group, the easiest thing to do, especially when you're concerned with other things is just to go along with it,

because you're isolated, right? You don't know if there's other people who might be feeling uneasy about this, and there's no real way of telling. Well, particularly in our profession, my understanding is that the majority of lawyers in the provisional Ontario are generally practicing in a small firm environment or sole practitioners. And so you're going to have a lot of people standing on an island

on their own in their own practice. And they're not going to fully appreciate that this is an issue. What other people are thinking. And they're absolutely going to think that they're putting their head above the herd. So we have a unique, I think we have a unique industry in that regard.

Well, let's just make it this point at this moment in time, which is that all those lawyers who think that they may be sticking their head up all by themselves are actually not, because I certainly heard from a good number of lawyers now who are all extremely concerned, shocked, alarmed at this. So the one thing that we want to overcome is the possible inclination to think that any lawyer who is concerned about this is an army of one and that in this situation is not the case. So there are possibilities here that if people do act upon their concerns and decline to comply

with this requirement, the change in this situation actually is a possibility. Bruce, there's also the people that we're servicing. In the private practice world clients, clients are going to watch this. They want to know what we're doing. I think they want their lawyers to stand up on their principles, if you will, and push back against something. And I think that there's something to be said in terms of your differentiation in the marketplace, particularly in private practice, if you do exactly that.

My clients are relying on me to be this bullwork against this type of thing. And I think a lot of lawyers should take note of that, that there might be something here worth fighting for. Yeah, I totally agree. I mean, really, your lawyer cut ability if it's a stake here, if you can't stand up and protect yourself when your own fundamental rights are being threatened, then why should clonics believe

you have the ability to do so on their behalf? Or the inclination to do so, you know, because by swallowing this hookline in synchro, let's say, and exceeding to what's essentially an ideological demand, then you also brand yourself as an avatar of that particular ideology. And so that's another reason to not be trusted. You know, that there's the aspect of inability to stand up for yourself or unwillingness to, but then to come out as an active agent for this particular set of, let's call them, principles, which, and there's absolutely no reason to make the assumption that the new holy trinity of diversity,

equity and inclusiveness constitutes the highest order of moral value. In fact, I think it's an extraordinarily weak argument that that's the case. There's flaws in it at virtually every level of analysis. And it sort of runs contrary to the central themes of English common law, for example. So we make note just for a moment of the fact that the law society is playing a little bit close to their chests in the sense that they have not spelled out what the penalty is going to be for those lawyers who decline to comply with this requirement. They've only said in their materials that those lawyers who are not

in compliance will be advised of their obligations in writing, which of course leaves all the choices open to the law society. That was discussed to some extent at the Convocation meeting. There was concerns what happens, what is the recourse here? And I'm left to speculate, but what your obligations are typically is to file what's called the member's annual report of which this is going to be a component of it. By not filling out a portion of your member's annual report, I'm sure that you're going to face a minimum what's called an administrative process or suspension, and it may even turn into something much larger than that. So I mean, I'm speculating,

but absolutely the law society did not make clear what's going to happen if somebody decides that they don't want to go along to get along. Yeah, well, that's also rather trouble some in and of itself, you know, because it's just not reasonable to specify a requirement and then leave the penalty undefined. And it smacks of political opportunism from my perspective because it means that the law society hasn't put itself on the line with regards to the degree to which they're going to be draconian about this and then can incrementally introduce the penalties

on a per person basis, which is where you would get the least amount of pushback, too, because if you're a professional and then the board goes after you, like it's a horrifying experience, and especially, you know, it puts your family livelihood and your reputation online, and it's very expensive to deal with, and time consuming and troublesome, and anxiety provoking, and all of those things. So you have someone who's immediately put in a tremendous position of weakness in order to, to let's say, push back against this. In the law society, it's all public as well.

So I mean, the role of the law society from what I understand is to protect the public from the big bad lawyers. That's why we are a self-regulating industry. And one of the things that the law Society does is it makes its disciplinary process public. So things like administrative suspensions or disciplinary action are things that would be known to the public. So you're out there potentially being tarred and feathered on this thing and people are going to know. Yeah, well, and it's extremely important for a professional to maintain a pristine reputation. And even the, what would

you call it, even the suggestion that you're not in accordance with even an administrative detail with regards to the law society is you can imagine that that's going to put doubt in the mind of anyone who well knows you or doesn't know you. So that means the process is the punishment. And that's very much the case with these mid-level organizations, where it seems to me the proclivity for a more totalitarian view of the world is like leaping forward in leaps and bounds. So should we consider for a moment what we might suggest to all those lawyers who are concerned about this and don't want to go along with the department what it is

that what that we would suggest that they do. Jared you want to take that on? Well it seems to me you approached that in your article the National Post and in a pretty adept way and my first inclination is that is that you don't file. I mean the act of filing in, as we've already discussed, is half of the admission of guilt, if you will. And I mean, I think that not filing sends a good statement, but then, you know, you want to obviously let them know why you're not filing.

So perhaps you have to send something that would let them the law society, the regulator know why you're not filing. I mean, those are the things that come to mind and you you discussed them, I think, quite well. So it's a good to for them to realize that you didn't just forget you actually consciously decided that it wasn't the thing that you were going to do. I think that's a very good idea. Yeah, some kind of short statement, but not a I mean, I wouldn't be inclined to suggest

that they should draft their own statement of principles that reflects what they actually think. Because then they are actually going three-quarters of the way of what they've been asked to do. I mean, there's no reason why even if the statement says something that you believe that you should be filing it, because it's still forced speech. They're still requiring you make that statement so. And it's none of their business. And I mean, I thought about that myself.

I thought maybe you'd do a Google memo, a more Google memo, but then I thought, no, you're playing the game. You are declaring your thoughts to the regulator. And I think that's reprehensible. Yes, yeah. I agree. They don't have any right to the content of your thoughts,

not unless you're willing to voluntarily put them forward. And that's definitely a very big difference between the assessment of competence, which has already taken place after you've passed the bar, and you're in compliance with the regulatory board's requirements. And the idea that they should have privileged access to your deepest principles is I agree, that's absolutely reprehensible.

There's no excuse for whatsoever. Whether you agree with the principles they want you to agree with or not, it's reprehensible. Yes, oh yes, well, let's emphasize this point. This is not essentially a debate about whether or not those values are good or bad, desirable or undesirable. This is about the first speech, first and foremost, about the idea that you can be required to indicate how you feel about them and that you agree with them and endorse them and so

on. Even if you do agree with them. And endorse them. The idea that you must say so is just not on. It crosses a line into a dark place that does not bowed well for the future of freedom of speech in this country. Yes, the rules of the country.

Go ahead, Jane. The rules of professional conduct for lawyers already have a rule that requires us to act in accordance with the human rights code and principles of not to discriminate, I guess is the word I'm using. And so clearly our actions are already governed by a code of conduct and by the legislation generally.

So for them to request the statement of principles, it really is just asking you the way you think. And so it's not like this is needed. It's like it's the distinction between your obligation to comply with the law and to state that you agree with the law. Which again, going back to the Supreme Court of Canada is there are two quite different things. Guy, can I read again what the Supreme Court said on this question?

Supreme Court says this, however admirable the objectives and provisions of the law maybe, no one is obliged to approve of them. Anyone may criticize them and seek to have them amended or repealed, although complying with them so long as there are in effect. So this is not a question of whether lawyers are subject to human rights code and anti-discrimination laws that is that is not the question here. The question is whether or not you are required to endorse them and say that you agree which is quite a different thing. The other thing that disturbs me about this, and I suppose this is a consequence of my experience with delving deeply into the history of places like the Soviet Union and its early stages of development,

is that there's a class-based guilt phenomena that's lurking at the bottom of this too, which is also absolutely I would say terrifying. So let's just say for a moment although I don't believe this, that there is systemic racism among lawyers, defined the way that this sort of thing is defined. But what this requirement implies is that every single lawyer of that group is now guilty of that phenomena merely as a consequence of being a member of that class of people. And you know, there is something, the idea of class-based guilt is, well, first of all, it's the basis for racism itself, right? So, but it's a terrifying proposition from the perspective of an informed Western individual, because one of the bedrock presuppositions,

let's call it a principle of our legal structure, is that you're judged on your guilt or innocence as an individual, not as the member of a class. And believe me, that is not a road we want to walk down because there's, you know, each of us might be the members of six or seven different classes. And if you look into the history, let's say, of those classes, whatever they are, economic, professional, racial, gender-based, whatever. The probability that sometime in the past, some members of our so-called class did things that were morally reprehensible or illegal is 100%. And if we're going to be judged on the basis of the actions taken by people that we didn't even know merely because we happened to be vaguely associated with that group, then we're all guilty of all sorts of terrible things all the time and that puts us completely in the hands of people who want

to make those group-based accusations. And that's a very, very bad idea. It's almost impossible to over-stress how bad an idea that is. Yes, absolutely. I mean, there is no one that you can identify who, in terms of group association and in terms of lineage as well. This is also a casting that back into history to see which group did wrong to which group. But of course there is no one who doesn't have somewhere in their ancestral lineage, you know, wrongs done by somebody related to some other person. And if that is the criteria for guilt, as you have said, then everybody

is guilty. And the whole thing starts to become silly. Yes, well, when everyone's guilty, that means that the people who hold the right to punishment become all powerful. Yes, and all the specialists, too, yes. And at least in Soviet Russia, they'd prime you up and torture you a bit before they had you swear your statement of principles or your confession, if you will.

So, OK, so here's another thing that I thought I might do is I'm going to put together an anonymous list so that lawyers who are willing to indicate their objections to this requirement can sign up and that way I can tweet and also stay in contact with you guys on a regular basis. How many signatories I've obtained and I won't make that public. I'll make sure that it's not crackable. And that way it'll help people discover how many other people are also concerned about this and indicate to what degree there might be strength in numbers. And so I'll set that up very carefully. And I'll put the link to that in the description of this video. And so I guess we've decided on three potential modes of action.

And Jared's fundamental suggestion, if I remember correctly, was to not file the statement of principle and also write a letter indicating precisely why. And I guess that would be... Well, I think it might be most effective if you file the piece of paper as your statements, but don't make it a statement. Just say on the quote statement of principles that you object to filing a statement of principles. Or if they wish, I have to get to the column, they're more than welcome

to just send in a copy of the column from the national post. Anything that indicates that you're not doing this, you haven't just forgotten, but there is a piece of paper that is filed in place of what they've asked for, but it is not what they've asked for. Okay, so that can be very straightforward. That means that it wouldn't necessarily be very time consuming. You could take the time to delineate why you're opposed to this, or you could say in the column, or you could just state that you're opposed to this. Yes, I don't think there should go to great length.

I think it's very simple. I think they just say something like, this is forced speech and I choose not to comply or send it to column or something that stands for the proposition that I'm declining this request. It can be very short. It does not have to be a full reason. Joy of object. Yeah, I object would be just fine. Most does not have to be a full reason. Just to find out. I am Jack. I am Jack would be just fine.

Most lawyers know how to do that if they have been in the courtroom. Yes, exactly. It should be something they are quite accustomed to doing. And then I will put up this link for the list so that we can start to collect signatories and decide who and let people know how many people are actually let's call it philosophically and professionally opposed to this particular set of maneuvers. And to be clear we don't I don't want to know anybody's politics I don't want to know anything other than are they uncomfortable with the idea of being

compelled to do something to speak something and I mean that's that's important and there's gonna be a lot of people who are concerned about anonymity and I I fully respect that but but they need to know that there is people out there that are like mindedly objecting to this. Right. Now one question that obviously comes up about this and I don't know Jared you want to speak to this but I understand that there have been conversations between lots of various people about whether or not a legal action is a possibility on this. Do you want to just make some very general comment? Well, I think it's, I mean, this may come to a head and I have had discussions with many people within my own professional network and I'm trying to expand that network and I've

had at least one person very senior lawyer come forward and say, I'm prepared to challenge this. I'm prepared to be the person that takes the slings and arrows through a challenging process and I mean I imagine it would have to flow through the law society initially, but at some point you are entitled to judicial review of regulatory decisions, so it would get pushed out into the general court system at some point. But yeah, absolutely. It can if if let's say there are people that are willing to go to the mat for this. And that's what I've been able to discern just within my own network. Well, that's reassuring.

Well, it's the way lawyers should be. We're supposed to be objectionable, aren't we? I will put that feature to good use. Yes, well, that's exactly it. I would say from a temperamental perspective, lawyers are perfectly positioned to do that because they tend to be rather disagreeable and emotionally stable. And so we do the rest of us, and I'm speaking as the member of another professional organization, we depend on you guys to be the bulwark against any incursions into our essential rights. And if you guys fold and go along with this, then it's really not a good day for the English common law. That's for sure. And I think the English common law is one of the most remarkable achievements of civilization,

of world civilization. It's an absolute gift and evolved legal system. It works unbelievably well and to not object to serious challenges it to it at a fundamental level means that we deserve whatever restrictions on our freedoms we accrue as a consequence of our cowardice. And to let that happen when we're really just not paying attention would be the ultimate tragedy.

Jared, you're going to bring us up to date? Yeah, so obviously a lot's been happening since we last spoke on this issue, and to some extent, I guess, what surprised me was not the amount of lawyers and paralegals and licensees that have not only reached out but apparently written to the law society on this statement of principles issue, but more importantly the public. I'm getting a lot of outreach from the general public. I mean, you can look at the comments on the YouTube video that we put up. The general public is concerned and they are very much watching. In terms of the legal actors, lawyers, paralegals,

they, I understand there are a lot that have written to the law society. The types of people that are reaching out to me are a broad cross-section of the industry. Very experienced lawyers, very well-established lawyers, constitutional scholars are doing their thing, but I'm also getting paralegals who sense that there's a problem, and they're also writing. One of the things that I think has been interesting

through all of this is that the tone of the comments or the feedback I'm getting has migrated. In first instance, it was an issue with, okay, yes, this compelled speech idea sounds objectionable. Those same people and some new people are beginning to reach out and the commentary is changing to some extent. It is now that they're beginning to examine the underlying report itself, and they're coming to me with questions about,

well, what does it mean that there is systemic discrimination and racism within the legal industry? And what's interesting is I've actually got racialized licensees that are beginning to not only reach out, but also publicizing their opinions on these things. And they're starting to grapple with that larger question of, well, what does it mean when our industry is systemically discriminatory?

So people are becoming aware. There's an awareness that's coming about. And I think a lot of that has to do with the media that's been coming out in tandem with what we did on YouTube. Yeah, so the, well, in the problem with the systemic racism charges that, while it's vague, that's for sure, and then it targets everyone equally in some sense within the profession and requires systemic adjustment, that's the other thing, and obviously has to be supported with hard data. And it isn't self-evident that the data to support that claim is valid. I would

say by any stretch of the scientific imagination. So I've had a great deal of feedback as well from both lawyers and the general public. And they are of a mind, I think as Jared described about their concerns over the fourth-the-speech aspects 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 to speech. It's simply governs conduct. 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 thought proposition or a speech proposition. Right. You have to commit in a statement and indicate that you have.

Right, so it begs the question of what's the definition of commit? Correct. Yes, and the way that they're portraying it is that this is simply an articulation of the obligations that lawyers already have in both the rules of professional conduct 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 you already have that obligation then why is it necessary to add this additional layer of, let's call it, obedience.

Yes. Well, let's just note the two contradictions in the portrayal of this. On the one hand, it is described as not a big deal. There are no immediate sanctions to follow. You don't have to send the statement in, you just have to write it, you just put it in your own file, so we're not worried about it. It's no big thing, why are you so concerned about it?

And on the other hand, they are emphasizing how central this is to the project that they have set out. And there are many people who have suggested essentially that if you are not willing to do this statement and indicate you are 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 might as well also remind people that they might wonder while I'm here, might concern when I first encountered this was that I know with that sinking feeling you get when you can predict the future accurately and you don't like your prediction that if the law society prevails with this, that the rest of the professional organizations in Canada will follow in lockstep very, very rapidly, and will end up in a situation where every professional in Canada is required to pen a statement of principles that are essentially required by

their colleges, espousing a particular political 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 communication has passed is recommendation 9.

And the third part of recommendation 9 reads as follows. The law society will require each licensee to complete three hours of an accredited program focused on equality and inclusion within the first three years, following the adoption of these recommendations, and one hour per year there every year thereafter, which will count towards professionalism hours for that year. So in other words, it is exactly as you've described Jordan, there will be training now so that you have the right attitude

about these matters. Right and I can just imagine what that training will be like. Well there was some commentary in the underlying report about unconscious bias training and I know Jordan that you've had some discussions about that and some of your public works. Yeah well there is absolutely no evidence whatsoever that unconscious bias training produces the results intended. First of all, the relationship between unconscious bias, say, as assessed by the implicit association test, which is a pathological misuse of a psychological instrument, even the people who designed it have grudgingly admitted that.

There's 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 in 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. you can train people out of those unconscious biases is zero. So this is misuse of science and education at every level from a scientific perspective. It's the inappropriate politicization of a very new line of inquiry in social psychology. And if the people who designed the IAT in my estimation had an ounce of,

what would you say, intellectual integrity? They would denounce the misuse of their test because it doesn't 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 judges

currently are being 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 pan a statement of principles of that sort that I just give up my license. So the public way I'm doing that. So the public, that's the one thing I wanted to let you know is that you're not alone Jordan.

The groundswell of public feedback that I'm seeing and receiving directly into my office has been significant. People recognize exactly what we talked about on the last video that the legal industry and lawyers in particular are supposed to be that bulwark against this type of overreach. And so 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 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 the dispute, because that would be contrary to the way our adversarial system is supposed to function. That doesn't make any sense. You can't represent both sides in a dispute. But that ethical obligation doesn't have political content. It doesn't matter whether you are a socialist or a conservative or a classical liberal or anywhere on this

political spectrum. If you are functioning in this legal system, it only makes logical sense that you must proceed without, in the absence of, a conflict of interest, which is this substantially different proposition than the proposition that these requirements are based on, which are, as Jordan mentioned earlier, these are politically charged and have substantive political content in them.

The law society is essentially saying that unless you adhere to a certain ideology that you are not fit to practice long. 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 reeducation 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 reeducation because you're part of the problem of systemic racism. And 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 towers for going along with the requirements or liars for producing a statement of principle that they don't actually agree in, or they start to tilt their beliefs in the direction that's required by the demands, and that's usually what happens. And so, and I'm quite convinced that the people who do this sort of thing, who make these requirements know that, and that it's a manipulation on their part to tilt political belief overtly. And so, you can't act these things out without it having psychological consequences and consequences. Moral consequences, let's say.

So it's very intrusive. The other thing Bruce, it's important to remember, is I mean, the dichotomy between belief, thought, and conduct. Currently, lawyers and Ontario are subject to the rules of professional conduct. And right now, we have an obligation to act in a certain way and to refrain from acting in other ways.

And one of the rules of professional conduct is, you know, thou shalt not discriminate. And I don't think anybody would argue with that. And that thou shalt act in accordance with the human rights regime and associated codes across Canada. Nobody could argue with that. But this statement of principles is crossing the line into thought and opinion. And one of the recommendations, I would note in the report, recommendation number one, they're actually proposing to review an 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 amend a rule of conduct to include all of a sudden an affirmation of thought. And to insist upon promotion as well, which is obviously

very ill-defined. Yes. So let's just go back to the words, just to make this point. So again, I'm going back to a quote attributed to the treasure in the law of timespaces. He says this, the statement of values is an obligation to promote equality, diversity, and inclusion generally, which is nothing more than the obligation lawyers have already. But when you go to the rules of professional conduct,

it says a lawyer has a special responsibility to respect the requirements of human rights laws enforced in Ontario, and to honor the obligation not to discriminate on the ground to race, and it's just a place of origin, color, et cetera, et cetera. That's exactly as you just said, Jared, this describes an obligation to observe the law and this law consists of prohibitions.

That is the obligation that lawyers are under. No doubt about it that they must do so, but that is not include an obligation to endorse and it is 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, I might also discuss this as a vote. Yeah, it is not what this is about. And it might also be useful to talk for a moment also about the word equality. Equality has two competing legal meanings. And the law society has not defined which one of them they mean explicitly, but it's clear by implication which one they mean. And the two choices are formal equality or substantive equality or equality or result. And the two things are quite different.

Formal equality simply means that the same rules of conduct apply to everybody, regardless of background, 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 way. Equality of results means that everybody ends up in the same place. And note that these two ideas of equality are diametrically opposed and inconsistent with each other, because if you have formal equality, applying the same rules to everybody, because everybody is different, you're going to have different results for everybody.

If you insist upon the same results for everybody, that means you need different rules for everybody for them to end up in the same place. So you cannot have both formal equality and substantive equality together. And traditionally, the rule of law has included the notion of formal equality. If you have a properly functioning rule of law,

that means you have the same rules applied to everybody without regard to who they are. Well, the problem with the equality of outcome, which is now often termed equity, is that you can group people, each individual in the multitude of different ways. And it's impossible to produce equality of outcome across all those different dimensions of the comparison. So it's a never-ending struggle to produce equality of outcome. It's technically impossible. And societies that have tried that have had, well, it's been absolutely catastrophic. And 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 political connection, whatever happens to be a properly functioning judicial system doesn't take account of who you are. It simply takes account of the rules that exist and tries to ensure that those rules are enforced equally in the same way with an even hand against everybody.

And the so-called, well, the doubt that has been generated is also predicated on the implicit acceptance of an equality of outcome doctrine because the fact that every group isn't equally represented at outcome is the data point that's being used to indicate systemic racism. That's right. So then you also think, well, what if you're in a situation where as a professional and an informed professional, you don't agree with the conclusions drawn from the 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. It seems to me that you shouldn't be required to admit to that if you don't agree with it. And that's the arc of the commentary.

As I mentioned at the outset, is that it started in one place and the feedback I'm getting now is very much in that place that people are beginning to question, okay, what does it mean? The findings of this report for me personally and for my industry. And what does the data say? And people are digging down on it.

In fact, they 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 have touched on something in terms of findings. There's also some things to celebrate. Well, the other thing too is that you have to specify in a report like that, if you're going to consider this something approximating a scientific investigation, which, and it wasn't conducted in a matter 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 representation of people in the professions just because of the necessity for the new immigrants to take time to be incorporated into the culture. And so the real point of data should have been the rate at which newcomers are being integrated into the profession rather than the absolute numbers of people who are there already. And that's self-evident. And so the fact that that isn't being considered deeply in the data is also indicative, in my opinion, of the political slant of the interpretative framework through which the data was analyzed. Can we also make note of the irony of the way that the word diversity is being used and the means by which are being used to promote diversity, because in a sense, the objectives of these recommendations is the opposite of diversity.

Real diversity, genuine, deep diversity, is diversity includes diversity of thought, diversity of opinion, diversity of worldview, diversity of ideology, including all the other agencies of diversity. And diversity is a very, very important thing for a pluralistic society. You, 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 the vision that seems to rely underneath these provisions is a very singular one. A vision that everybody will think and adopt progressive values, that a proper law firm

consists of a group of progressively thinking lawyers that look like a rainbow. As opposed to... Yeah, so there's an appalling proposition underneath that, too, that's actually factually incorrect. So, the fundamental racist proposition is that racial groups differ sufficiently so that you can identify them as separate entities and that they should be treated in that manner. But the data suggests very, very strongly that even in situations say like where men and women differ in temperament on average,

that the overlap between men and women is larger than the differences and the differences within the groups so the differences between women and the differences between men within their own groups are larger than the differences between men and the differences between men within their own groups are larger than the differences between men and women. So you don't get true diversity by selecting across groups.

That isn't how it works. In fact, that's actually a fundamentally racist or sexist claim. 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.

But within the groups, they're very different. But between the groups, they're not that much different. The differences aren't 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. But it's not the diversity of thought model that organizations are including our own governments are pursuing at this point. The law society is not alone in assuming that people who all think alike but that have

different racial or gender backgrounds is in fact diversity. I mean the Ontario Securities Commission has been mandating that type of diversity on boards of directors for publicly traded companies, you know, the federal government and in its cabinet appointments is pursuing that type of diversity that really is not a diversity of thought, so to speak, or opinion, but a diversity of, well, in the federal government's case, gendered. Yeah, well, the other thing that's going to happen is that if we, 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

Institution 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 any reasonable standard, any

reasonable world standard. And I think that this will inflame tensions between groups unnecessarily. Well, I actually had a lawyer reach out to me, a racialized licensee, and say exactly that, that their main concern with what they were seeing, not only in the compelled speech component on the statement of values, but also the underlying recommendations of the report, as he thought that that was going to inflame tensions or animosity towards people in his group. And I had never thought of it that way, but he was quite concerned that this was actually

going to generate animus that this was actually going to to generate an amus uh... against those that actually sought to protect so that's a did that's one viewpoint that i hadn't uh... hadn't expected so should we are discussed for a moment uh... the motion that is being brought to complication uh... joe groya who's a lawyer in a and a bencher uh... has a part 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 31, and they shall be exempted from the requirements of recommendation 31 to adopt and abide by a statement of principles. Now, Joe is a fellow that has my utmost respect. He's done a great deal of good inside complication, I think, as a venture, 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 are some difficulties with the motion. Jared, do you want to speak to that first? Well, yeah, so the motion itself, somebody was talking to me about it, and they said the problem is, is that it makes it appear that if one elects not

to file the statement of values, so if the motion is passed and they then decide, I'm not going to file the statement of values on that basis, that you would be seen or it would be interpreted as you being a conscientious object or to the values that the law society statement of values is asking us to affirm. And rather than an objection to this idea of compelled speech

or being forced to disclose or divulge what may be in your head or what your thoughts and opinions may be. And I hadn't thought about that way, but when you look at the motion, yes, it very much can be interpreted that way. Right. And so, in essence, it does not save you from having to perform the force-to-speed obligation, it just gives you another thing to indicate, which essentially requires you to stick your head up and be counted one way or the other.

In other words, the law society is still succeeding at dividing people between those people who are willing to do this statement, and those people who refuse to do it, but have to say that they refuse to do it. So there is still force speech in here, even if the motion passes. Yeah. forced speech in here, even if the motion passes. Yeah. Yeah, I don't think it gets us to where we need to be. You know, and as you said, I think Joe's, Joe's a tremendous person deserves a lot of respect.

He's fighting his own free speech battles before the Supreme Court of Canada in early November. As you may know, he was accused of crossing some imaginary line about the conduct of his defense of an individual before the courts. And that is a very novel idea. And so the industry is watching with some interest to see what the Supreme Court of Canada says about whether or not there is a line in the sand as the type of advocacy can pursue. So he is a, Joe is somebody to watch and someone respected, but I think the motion comes up slightly short of where it needs to be.

I don't think it gets us to the place that I think we need to be, which is that the law society should not be meddling or even asking what the thoughts and conscience is of its members. Right, so as of right now, there is nothing sort of on the table that as far as we are concerned, that offers the possibility of eliminating the objectionable aspect of this forced speech obligation. I'm putting it in.

You know what I'm interested in? Go ahead, Jim. Okay, well, we'd also talked a little bit about the fact that, you know, we had concentrated specifically on the statement of principles as the objectionable element of the recommendations, but the recommendations as a package are also objectionable because they're all fed by the same underlying philosophy

of, well, systemic racism, let's say, and the promotion of equity, diversity, and equality as the highest of moral values. So do we want to talk a little bit about the rest of the recommendations? Yes, sure. Yes, let's, well, I'll read out the first one, perhaps. The first one gives a flavor for the whole host of them. So the first one goes like this. The law society will review and amend where appropriate.

The rules of professional conduct and the 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 consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal and paralegal profession.

Now, there are those words again. Okay, so you also mean if you abide by that, that you have to accept the definition of diversity as essentially predicated both on race and sex. Yeah, well, yes, of course, they haven't defined diversity, but consistent with the rest of the regime, yes, that that in the way that we have previously described, that is the meaning of diversity that they're going for. Right. And also the meaning of equality, as I said yesterday. So, and of course, there are internal contradictions in the statement because they're going to amend

the rules of professional conduct so as to reinforce obligations that don't now exist. What they really mean to say is we're going to change them so as to create new obligations. The requirements under human rights legislation that this recommendation refers to, again, do not include the obligation to acknowledge and promote. They are conduct laws that everybody is subject to, but they prohibit certain things. So, like the statement, this first recommendation that gives the flavor of all the rest of them suggests that the law society is essentially moving into a new area, area of regulating competence. If I can put it this way, instead of being a neutral regulator of competence in the political sense, they have now more or

less taken on the mandate of regulating competence in the political sense, in the ideological sense. They are essentially saying, here are some values that a regulator is going to require you to comply with. These values essentially are progressive values, so that if you are not a progressive lawyer, we do not think that you have the right to practice law in this promise. And as the only values that are going to be the subject of a statement of values, they are elevating those to a position of prominence, and I would suggest beyond all others. Yes, sure. These these these values because of their of their listed in a special way seem to be put above other more fundamental values like the rule of law, like formally quality, like like

like competence. Or like like, well, competence, you would think would be the core mandate of the laws of I myself 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 political ideologues of the progressive type to mandate that of all the rights that Canadians enjoy or perhaps the obligations they have to undertake, that the rights that are associated with equality, diversity, and inclusivity are going to be made paramount in relationship to all of the other rights. And that seems to me to be an utter catastrophe.

So. Well, the proponents of the of the statement of values, the people that I've seen writing commentary pieces, none of them seem to disagree that there is a compelled speech component inherent in the statement of values. What they do is they say, okay, but under section 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 competing right under the charter. And inevitably, and I think they have a point, anytime the Supreme Court of Canada has engaged in a section one analysis on freedom of speech that butts up against the competing equality, right? They tend to find that, save and accept for the most egregious infringement, that the equality, right, shall prevail or be the tipping factor. And so it's, like I said, it's interesting that the proponents, they don't disagree. Oh, oh yeah we're putting a compelled speech component on you but it's uh... it's uh... it's just a fact that it's a little less that also

notice though because the first part of section fifteen it is it is really a section about formal equality the the equal application of laws to everybody which is not the panic quality they're talking about so that they are they are shifting the ground on what equality means and then staying and that kind of equality justifies the infringement of these other rights under Section 1, as you say, Jeremy. So do you want to continue Bruce with that?

Yes, so let me read another one. Let me just find it here. I want to read the one because it reinforces the proposition that we spoke about, which is that the law society is changing the nature of competence to encompass a certain set of political values. So they're doing this explicitly. Recommendation tends as 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 law school graduate and you are applying to be licensed by the law society,

then these are among the things that you must show to them that you are competent in, that you believe and agree and follow these particular values. It'll be on the bar exam. Yes. Yeah. Shall I continue on? Yes. I believe I read out already the requirement for the continuing education matter. Let's move to one of the recommendations that are being put in place this year.

The statement of values is one and the other one that is mandatory for legal workplaces of over 10 lawyers, goes like this. The law society will require a licensee representative of each legal workplace of at least 10 licensees in Ontario to develop, implement, and maintain a human rights diversity policy for their legal workforce addressing at the very least fair recruitment, retention, and advancement, which will be available to members of the profession and the public upon request. Okay, so there there's a measurement issue because a measurement and enforcement issue. So the measurement issue is, well, what is fair and how is it defined?

So is it defined by the racial makeup of the firm over the next 10 years? So if it doesn't shift in the required direction, let's say, or the gender makeup of the firm, if it doesn't shift in the required direction, does that mean you're out of compliance? 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, are this, are the firms going to be subject to an external analysis that examines their diversity makeup

over some period of time? And is there, is there going to be provisions about how rapidly the ethnic and sex makeup of the firm has to transform across time? Like the devil's in the details in this sort of thing. They're proposing actually that that a member of the workplace conduct an inclusion self-assessment every every two years to to get at 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 list your race? I mean, do you examine your soul to determine whether you're oriented in the proper inclusiveness direction in relationship to race and gender. Like, I don't understand, 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.

If I don't, I really don't know what the word inclusion means. I have ideas about what equality can mean. I have ideas about what equality can mean. I have ideas about what diversity can mean. I don't know what inclusion means. I really just don't understand the word. I don't know how you measure it. I don't know what you mean by that. The Law Society's been collecting data for years

on these types of demographics, on the basis of a voluntary survey basis. And so what they're actually proposing to go further is that within these legal workplaces, that these workplaces conduct inclusion surveys, now there was a tremendous amount of conversation at the convocation meeting that adopted these recommendations about compelling people to self-identify within some sort of demographic group or the other, and that there would be some resistance particularly among racialized

licensees of doing so. So they're going to make it voluntary, but that then goes to the issue of what's the quality of the data that they're getting Jordan. If it's a voluntary self-reporting exercise and not everybody's reporting because as they said at convocation, some groups may be disinclined or fearful of identifying themselves for whatever reason. What's the quality of the data they're getting and then how are they going to act on that data? Yeah, or maybe even unwilling to identify themselves. Well, that's what I mean. I don't see

why it's, it should be required of me that I reveal my, well, what, 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, 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 confidence-sensit type quality data. So shall I read you another one of these recommendations?

Recommendation 12-2 says that the law of society will revise the rules of professional conduct and the paralegal rules of conduct, where appropriate. So that systemic discrimination is clearly identified as a breach of professional conduct requirement. So say that again. Yes. Yes. breach of professional conduct requirements. So say that, say that again. Yes, yes, I will. The law society will revise the rules of professional conduct were appropriate so that systemic discrimination is clearly

identified as a breach of professional conduct requirements. Okay, so that means that at some point in the future, a law firm could be assessed for its compliance with equality. However, that's defined perhaps as equality of outcome, but we don't know, or with regards to rate of transformation of demographic membership. And if you're found not to be in compliance, whatever that means, then that means that you've engaged in professional misconduct. Yes, but it's interesting that they use the word systemic discrimination because always 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. 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 guilty of systemic discrimination, then that is a matter of reaching your conduct obligation. Well, 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.

And then 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 writes, wide standard is in terms of its, well, its diversity layer. 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, you're just, it's a systemically discriminatory organization, I think.

So let's say you are mandated to do that. How is that legal? How is that possibly legal to be mandated to hire by race? Well, only by virtue of the mandate that the Law Society has from the government to regulate the legal profession. I mean, that's what it has to rest on. If you read the statutory mandate of the law society, it would seem to fall outside the marching orders

that the law society has, at least as it is presently worded. And perhaps I can read you that. This is Section 41 of the Law Society Act. Sorry, let me read first Section 4.1. This is the function of the Law Society is to ensure that all persons who practice law in Ontario, or provide legal services in Ontario, meet standards of learning,

professional competence, and professional conduct that are appropriate for the legal services they provide. So unless you can fit this into the phrase professional conduct that are appropriate for the legal services that they provide. So unless you can fit this into the phrase professional conduct, then under this section, there is no mandate to do these kinds of things. I was going to read section 41, which lists the standards of professional competence that the law society is supposed to ensure.

And section 41 says, a licensee fails to meet standards of professional competence for the purpose of this act, if, and there are a number of things listed, but the ones that are relevant here are, A, if there are deficiencies in the licensee's knowledge, skill, or judgment, or the licensee's attention to the interests of clients. And those are the only two bits of that section that apply to this question and they don't apply. They don't describe the nature of these obligations that are being contemplated. Okay, so if I was applying for a job at a law firm that was compelled by this mandate

to diversify itself racially. And I was a qualified candidate and I got wind of the fact that that requirement had been put in place. Couldn't I go after the firm for discrimination because they made race one of the basis of hiring, that they were compelled to make race one of the basis of hiring? The human rights code and the charter rights and freedoms allow for certain forms of discrimination when it's for the purposes of an ameliorative exercise. For instance, if there is systemic discrimination identified, the charter will permit discrimination against a group in order to remedy what may be perceived as a systemic discrimination issue. This, I mean specifically addresses and exempts affirmative action type programs as being found to be discriminatory. It allows them. It permits them.

So the answer would be yes, you could raise that, but the law firm and the law society, if they would have to then bring forward evidence that this is part of 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 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 citizens to do a certain thing. You have chosen to be a member of the Law Society, and therefore you must take these obligations on voluntarily. Which of course is a ridiculous thing to say, because the law society takes its mandate from the government, the government has given the law society the job of being the gatekeeper of the rights to practice law. And if you are to practice law in this province,

you must be a member and you must adhere to the rules of conduct that they require. So just to suggest that your engagement with the law society is something that you do voluntarily, just because you wish to do so, and that makes it a voluntary organization, it's in aim. Right, so the voluntary aspect is that you can give up your hard one livelihood if you don't want to be subject to these rules.

Yes. So I suppose you could make a case that that's voluntary, but I mean, it's certainly the case that it stretches, it certainly stretches the definition of what normal people would consider voluntary. Well, it turns the idea that you would have a right to practice in any profession if you have the proper skill and training and competence to do so. That question is up for grabs now because they're essentially saying, well, actually, what you also have to do is go along with our vision of 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 what about those values migrate over time? So it is right now 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? I think it sets a precedent that we might want to push back against.

Well, it's worrisome because the values are very ill-defined. And so an ill-defined box that like a box that could contain anything, ends up containing a very strange number of things. And Bruce pointed that out very clearly when he talked about his inability to understand what constitutes inclusivity. It's like, okay, so let's say that we could define equality and diversity if we were willing to even using racial and gender categories, which I think is an unbelievably catastrophic error, but, okay, inclusivity. Well, if that's definitionless, then it's a place to put any other requirements that might come along. I don't, and I really can't say what it's inclusivity means.

Is that more like the nonverbal behavior that you might manifest, you know, or does it refer to more subtle interactions within the firm? That's kind of what it sounds like. So yeah, so at least it might be worthwhile trying to find out what they mean by inclusivity. So if they really want to be inclusive, they would get rid of the bar admission exams, they would get rid of the law school underlying requirements. I mean, that essentially makes your organization inclusive, doesn't it? When you get really my suspicions too, is that if you went and analyzed the success rate out with regards to the bar exam that you'd find that it produced systemic discrimination as well, because the probability that an objective test produces exactly the same results across

all conceivable groups is zero. So, and you 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 jury-moundered to eliminate the group differences. So, and that's all part of an assault, I would say, on the idea of objective competence. So are there more statements that are worth analyzing?

Let's just have a look here. I mean, there's a whole roster of them, but I think those are the ones that are most pressing. Well, I thought there was an interesting one. It was recommendation 12 sub four. They want to create a specialized and trained team to address complaints for discrimination. Now, I mean, I don't argue that I mean, discrimination in any act of discrimination that is, you know, the contravention of human rights

legislation should be stamped out. It should be identified and dealt with. But my understanding is that we've got bodies that are responsible for that already, not only the spear record, but also the human rights tribunals. So 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 systemically discriminatory organizations and sort them out. That concerns me to some extent, particularly, like I said, because we have these bodies already in place that are supposed to deal with these types of things. Yeah, they're duplicate bodies.

So you have the classic court system plus the human rights tributals, which already have their own problems. The word in that recommendation that causes me real concern is the word address. This team will address complaints of discrimination. Now, that doesn't say whether or not they are the investigator, or whether they are the adjudicator, or whether or not they are a combination of the two, whether or not they are judged, jury, and execution are all world into one. I would be much more comfortable if they were procedurally precise

to say exactly what the function of this so-called team was supposed to be. But what's it for? We've got a human rights commission that can come into any organization or workplace in Ontario without a warrant and do this, whatever it is, this group wants to do. So I question creating another layer of bureaucracy, but... Well, I agree. I agree, but what I mean, one of the needs for this might be because of the point that we made earlier, which is that the requirements that the law society is now creating are not the same as they are under the human rights code. Right? So the human rights commission and tribunal might not have jurisdiction because that's not

what the act says. And if these do create extra and additional requirements that are not now applied to lawyers, then you do need an extra bureaucracy to enforce them because nobody else has the jurisdiction to do so. Right, and then you can presume, I think, without any fear of error, that the people who would

constitute such a team would be the ones who would be most zealously in favor of precisely this kind of progressive, let's call it. You would expect. Oh, yes, definitely. That's how it works. So, well, if they're in favor of compelled speech and think that that's justified, then I would question what other fundamental rights and freedoms they might deem to stamp on. 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. let's say. And so I believe that we're going to provide contact information for the banshers. Is that correct? And ask members of the public to listen very carefully to the discussions that we've had and to indicate to the banshers their concern about this in terms of its relationship to the broader public, potential relationship to the broader public. So that...

relationship to the broader public, potential relationship to the broader public, sad. The Law Society is mandate, it's to govern the profession, but within the, I guess, the best interest of the public to protect the public. And so the public very much is a stakeholder in what's happening right now within the legal industry and the Law Society. And so absolutely, I would encourage the public to make any concerns that they may have known, and write to the people that make any concerns that they may have known and write to the people that make these decisions and let them know their thoughts.

Because this is something like, this is a public trust to this industry to some extent. And so the public very much should be vested in what's happening. Yeah, well, it's a fundamental public trust because it deals with the underlying structure of the legal system. This is partly why this is so worrisome to me because I know perfectly well that if

the lawyers fold on this and the Law Society succeeds in pushing forward these requirements and then enforcing them across time that every professional organization in Canada is going to follow suit. And after that, well, once the professional organizations follow suit, then there's no reason to assume that this isn't going to spread more widely. So, the main justification underline all of this that the law society is relying on is the public interest. So if the public

doesn't think this reflects their interest, they had better say so. And the licensees, obviously, anything they can do to reach out, I think, is of some assistance. I think the current motion that's before the law society is to a great extent to buy product of that grounds well 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've broadened the scope of what we regard as worthy of opposition, partly because the attempts, let's say, so far, to ameliorate the worst elements of the policies that are being promoted

are insufficient for the task. And even if they were put into place, like the motion that you described, it would be a victory at 10% or something like that and not move the underlying pathological principles in my estimation far enough. It's something like that. It wouldn't eradicate the threat

that we've been trying to warn people about. Correct, that's right. There is no immediate prospects right now of getting rid of the forced speech element of this policy and the other elements are consistent with that requirement and are being carried along. And although only three of these recommendations are being put in place immediately, the rest will follow into force, and there's no reason to think that they won't be done aggressively and with force. All right.

Well, I guess do you guys have anything else to say? I mean, maybe thank you to the people who've already been paying attention and have- Well, let's just thank the people who have gone ahead already and contacted their benchers, contacted the law society to register their objection, to ask questions. A lot of people have done very good things and are thinking well about this. They're thinking intelligently, they're thinking broadly, they, they, my hats off to them, there are a great number of people who are very clear about this. And some are reticent to make too much of a fuss. Some are quite happy to say what they think, and I respect both of those positions. But I guess the message of Raleigh is,

there are great many people who think this. And the worst outcome would be that nobody acts upon what they think, and this just sort of happens without us noticing. I've been heartened by what I see to be singular acts of courage in the people that have taken action written to the law society and even just reaching out to my office and to others. It's not easy to do and I support and commend those that are doing that. And people have written articles and blog posts, there are some really excellent pieces of work on this topic and perhaps we could even refer, you know, make

provide links to some of those sources, but they're really worth reading. They're very well done, very thoughtful pieces, and they have a ring of truth to them. From all over too, I've seen things from outside the jurisdiction, Alberta, I think New Zealand. There's a great blog by a professor at University of Auckland in New Zealand who's written on this since it's well worth the read. Yeah, well, these things do have international significance because my observation is being that if one major jurisdiction or organization in the West moves forward in this hypothetically progressive direction, the probability that it will spread

because of rapid electronic communication and pretty decent organization on the part of the people who do push these things forward that it emerges everywhere with extraordinary rapidity. So anyone who shares the basic axioms of our legal system is involved in this, whether they like it or not. Right. All right, well, I guess we'll see what happens. Thank you.

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