The Jordan B. Peterson Podcast - Compelled Speech

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00:00:57.420 So, today we're going to talk to you about the brighter future you deserve.

00:01:27.400 Today, I'm talking to two of my compatriots, I suppose, in this ongoing discussion in Canada about free speech issues, including compelled speech.

00:01:41.820 And I met Jared Brown and Bruce Pardee.

00:01:46.520 Jared's a practicing lawyer, and Bruce is a professor at Queen's University in the Law School there.

00:01:54.220 And I met them both 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.

00:02:14.020 And more recently, the Law Society of Upper Canada, soon to be known as the Law Society of Ontario, has put forward a requirement for all of its members.

00:02:27.300 So, all of the lawyers in Ontario to produce a document, a 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.

00:02:42.500 So, I'm going to let Jared introduce himself and say a little bit about who he is.

00:02:46.640 He testified with me at the Canadian Senate last year, and Bruce Pardee also testified at the Senate on Bill C-16, and Bruce was also the lawyer that I debated.

00:02:56.340 He played devil's advocate at Queen's University, and some of you watching this will be familiar with that video.

00:03:01.140 So, Jared, I'll let you introduce yourself and then Bruce.

00:03:03.940 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.

00:03:14.500 On to you, Jared.

00:03:15.480 I'm an everyday litigator.

00:03:18.100 I'm a commercial litigator in Toronto.

00:03:19.580 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.

00:03:32.240 And as far as I can tell, I may have been the only practicing lawyer that actually spoke out against the legislation.

00:03:40.060 There were certainly a lot of lawyers, including the Canadian Bar Association, that were arraigned in favor of the legislation.

00:03:47.520 But as far as I can tell, boots on the ground, I think I was the only one.

00:03:52.060 So I've got a pretty benign practice, but certainly have taken up the fight, if you will.

00:03:58.540 Bruce?

00:04:01.160 Thanks, Jordan.

00:04:04.000 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.

00:04:15.200 But this was different because it announced a new requirement for this year.

00:04:20.220 Now, Jared, I think, was aware of this developing before I was, but like many other lawyers in the province, this was the first indication that this new requirement existed.

00:04:30.080 And essentially, the email said, one of the things it said, amongst others, was that every licensed lawyer now is required to draft and submit what they are calling a statement of principles.

00:04:46.220 And that statement is required to express your agreement and the value you place on inclusion, diversity, and equality, and the fact that you will actively promote those values.

00:05:04.900 And that, to me, just sprung off the screen as an outrageous example of forced speech of the same kind that we were talking about under Bill C-16, but worse.

00:05:21.800 This one actually requires you to make a full-fledged statement that will be subject to their approval in order to maintain your license.

00:05:32.520 In other words, this is not a matter of it being suggested to you that you might ought to want to do this.

00:05:40.660 This is a condition of your ability to practice law in the province of Ontario.

00:05:45.100 So, this struck me as a matter that needed to be aired 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.

00:06:01.820 Yeah, well, it was concerning to me when I encountered this.

00:06:06.260 I mean, I'm the member of a college as well, a college of psychologists.

00:06:09.500 And my sense of this is that if the lawyers fold 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.

00:06:25.460 Because if the lawyers, who are, you know, a 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.

00:06:43.960 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.

00:06:52.640 And by having the lawyers under the guise of their regulatory body being compelled to speak or share opinions, it's obviously something scary.

00:07:05.840 And I think it's something that lawyers should wake up to and they need to push back against.

00:07:09.660 Compelled speech, which was obviously the issue on C-16, is a particularly nefarious infringement and intrusion.

00:07:17.880 Yeah, well, it's, I mean, it's one thing to put restrictions on what people can say.

00:07:22.700 I mean, I know you can't incite someone to crime, for example, but it's a completely different thing to require people to espouse a particular political stance, especially when it's being reviewed by what's essentially an arbitrary committee.

00:07:38.580 And when the punishment is 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.

00:07:53.040 Well, let's just emphasize this point, the distinction between restrictions on speech, which are not good things and are debatable and so on.

00:08:04.740 But this is a different category of question.

00:08:06.580 This is compelled speech.

00:08:07.940 This is a requirement that makes you say something you may not agree with.

00:08:12.300 And as I mentioned in the column, statements 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.

00:08:30.620 In fact, 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 question here.

00:08:49.520 Yeah, sorry, Jordan, that was that was the cornerstone of not only the opinion piece that I, I put up on my website about C16, 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.

00:09:13.140 And then obviously, in this instance, you've got your regulatory body, which, which holds your license, and your ability to carry on the livelihood in the chosen profession that you're in, telling you that you've got to start voicing these opinions.

00:09:27.800 So, Jared, when we talked before to 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.

00:09:41.880 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, this racist and perhaps misogynist as well, which is why this piece of administrative, let's call it law requirements has come into practice.

00:10:07.040 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.

00:10:23.320 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.

00:10:42.260 It's like they're guilty to begin with, and 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.

00:11:03.140 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 convocation, which is the governing body of the law society.

00:11:20.780 And the report itself was entitled Strategies to address issues of systemic racism in the legal professions.

00:11:27.960 I mean, that statement on its own is saying that our industry, as well as the law society organization itself, is systemically racist.

00:11:36.500 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.

00:11:46.540 You know, the group that came up with this report is an esteemed group.

00:11:50.320 These are all highly respected, well-accomplished individuals, and, you know, 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.

00:12:07.200 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.

00:12:19.320 Profession, I encourage people to look at it, study the report.

00:12:23.800 I can assure you that most lawyers won't, 58 pages, something that happened back in December.

00:12:29.000 But there's a lot of shocking information in there, and there's obviously some shocking findings.

00:12:34.760 But, yeah, no, it's got me concerned because my industry has now been deemed racist by the body that governs it.

00:12:42.900 Yeah, well, and one of the things that's really appalling about that, I think, and also about the requirements for the statement of principles is that there's a pronounced ideological bent to them.

00:12:56.920 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 methodologically, to say the least.

00:13:10.540 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.

00:13:22.220 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.

00:13:42.820 And that's a very, very weak methodology.

00:13:45.360 No credible scientist would regard that as proof of anything.

00:13:51.480 And worse, I can't imagine that any claim like that would stand up in something resembling a court of law if it was possible to take a group to court.

00:14:01.980 Because there's all sorts of reasons why there might be differential representation in a group.

00:14:06.760 And that is assuming that that's what the data shows.

00:14:09.660 And in many respects, that's actually not what this data shows.

00:14:14.620 So I take your point about the methodology.

00:14:17.220 But even so, even if you accept that methodology, it's not crystal clear that that's what the numbers actually suggest.

00:14:25.100 But can I get back for a moment to your implication point?

00:14:28.000 I mean, I agree that the requirement to make this statement in this context essentially could be interpreted as though you are 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.

00:14:46.280 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.

00:14:58.240 And thereafter, your future actions can be compared to that statement so as 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.

00:15:12.940 So I've 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 a statement.

00:15:20.840 They'll put it in a file.

00:15:22.140 It'll sit in some corner of the law society computer.

00:15:25.160 And who cares?

00:15:26.620 It's really no big deal.

00:15:27.600 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, and 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.

00:15:48.700 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.

00:16:03.320 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.

00:16:14.440 But, I mean, Jordan may have some comments, obviously, about writing a statement and a declaration and what that means.

00:16:20.920 But I just find that, you know, having to affirm in a statement that our industry is hopelessly corrupt is not something I'm willing to do at this point.

00:16:30.920 Well, one of the things I've learned over the last year is that apologizing or admitting guilt to ideologues is an unbelievably dangerous thing to do.

00:16:39.960 Because all it's taken, as Bruce basically alluded to, is a statement of guilt.

00:16:46.840 And, you know, the other problem from a psychological perspective is that, and there's a very clear psychological literature on this.

00:16:54.040 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.

00:17:11.220 Not that those aren't, you know, in certain contexts and carefully defined also important.

00:17:17.260 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.

00:17:29.640 You'll do that unconsciously, and there's a bunch of reasons for that.

00:17:33.060 And one reason is that you've now made a coherent and credible argument in favor of that set of principles.

00:17:40.020 And you will find that convincing because articulating yourself in that manner actually changes your character.

00:17:47.140 And the second 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.

00:18:00.320 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.

00:18:10.460 And so the cognitive dissonance here would be, well, I'm just going to write this statement of principles.

00:18:15.520 What difference does it make?

00:18:17.300 However, that is a statement of principles.

00:18:19.480 And so it's intrinsically dishonest and character damaging to craft a statement of principles with which you do not agree.

00:18:29.000 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.

00:18:36.420 And the latter thing is what people tend to do.

00:18:39.460 And then the idea that this is just going to sit in some musty file drawer, that's completely naive in my estimation because basically what's happening,

00:18:49.040 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,

00:18:59.820 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.

00:19:17.960 It's not just going to hang there in the air.

00:19:20.320 It's going to be enforced.

00:19:22.160 Yes.

00:19:22.620 And that is part of the transition, I would say, from the law society regulating competence to regulating values.

00:19:33.200 I mean, it used to be at one point that the law society was there to make sure that you had the skills to be able to practice law.

00:19:39.740 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.

00:19:49.760 And one good comparison of this is the case involving the Trinity Western Law School, the graduates of that law school.

00:19:58.680 This is a private law school out in Virginia.

00:20:00.380 And they require all their faculty and students to sign on to a pledge that contains certain values.

00:20:08.920 They promise not to do certain things like have premarital sex and all kinds of other things.

00:20:14.440 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.

00:20:29.480 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.

00:20:43.160 They have indeed imposed a set of values on the people within their own institution.

00:20:48.460 It's just that they have chosen different values, which means that their objection to Trinity Western was not really at all about the imposition of the values.

00:20:55.340 They just don't like the values that Trinity Western chose.

00:20:59.480 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 voluntary participants, which we should point out, because you certainly don't have to go to Trinity Western or sign the agreement.

00:21:14.720 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.

00:21:28.300 And also to have to undergo what would essentially be a bureaucratic inquisition.

00:21:32.540 And those are not pleasant.

00:21:33.960 Those are seriously not pleasant if you fail to comply.

00:21:39.560 And there's other parts of this.

00:21:42.980 Before we leave Trinity Western, 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.

00:21:52.860 It has coercive power given to it by the state to license lawyers, and it is the gatekeeper.

00:21:58.920 So you have no choice.

00:22:00.940 Whereas, as you said, Jordan, the association with Trinity Western is entirely voluntary.

00:22:07.040 If you don't want to go to that school, you don't go to that school.

00:22:08.940 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 Trinity Western situation.

00:22:24.100 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.

00:22:39.840 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.

00:22:50.280 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.

00:23:06.620 Which 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 wholeheartedly?

00:23:21.480 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.

00:23:33.300 If the whole society has already agreed and the lawyers go along with it, that it's an intrinsically racist association?

00:23:39.760 And how is that going to do anything but damage racial and sex-related, what would you call them, relationships in Canada?

00:23:49.780 I just can't see that as anything but, you know, it's supposed to be something that brings us together with regards to, let's call it, inclusiveness.

00:23:57.020 But I can't see this as anything other than something that's going to be extraordinarily divisive.

00:24:02.760 Well, interestingly, you were raising the issue of why are lawyers going along with it or why aren't they recognizing the danger?

00:24:10.040 You know, there was some talk about this at the convocation meeting where these recommendations were passed.

00:24:15.380 There were some dissenting voices and very, very well-put dissenting voices.

00:24:20.000 But, you know, just within my own professional network, most lawyers don't know what's going on.

00:24:25.420 They got the email.

00:24:26.940 They didn't think anything of it.

00:24:28.520 We get, you know, 12 of these things a month.

00:24:30.740 It's just an additional requirement, another piece of paper.

00:24:33.080 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 principles, we're going to provide two templates that would satisfy us.

00:24:46.380 And, of course, 98% of the lawyers that I practice with who are already time crunched, what are they going to do?

00:24:52.620 They're going to file either template A or B, get on with their life.

00:24:55.960 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.

00:25:10.540 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.

00:25:17.340 Yeah, well, you know, go ahead, Bruce.

00:25:20.160 No, I was not 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.

00:25:31.280 It's actually more.

00:25:32.300 I mean, I don't want to overstate this, but it has a lot of similarities to McCarthyism, yes, to that old statement that, you know, I am not now nor have I ever been a member of the Communist Party.

00:25:44.740 That was the template in the McCarthy era.

00:25:48.120 This is the template.

00:25:48.880 You have to say certain things, and look how meaningless it becomes in terms of actual substance.

00:25:54.900 If it's a template and you just sign on, then they have literally put words in your mouth, and that is the thing that cannot be allowed to happen.

00:26:04.580 Yeah, well, I agree with that in a couple of ways.

00:26:07.520 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.

00:26:14.460 Because the idea that 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 in some manner apply to everyone equally.

00:26:33.100 It's just, it's absurd almost beyond comprehension.

00:26:35.860 I mean, principles actually happen to be important, right?

00:26:38.860 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.

00:26:50.840 Like, there's virtually nothing more important from the perspective of psychological integrity than your principles.

00:26:57.480 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, is, it's like, it reminds me of the Soviet era, where there were templates of guilt.

00:27:13.460 You know, 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'd done that, well, you were done.

00:27:27.520 And so, it's really quite, 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.

00:27:40.820 And it seems to me to be a way of sliding it in under the door, as Jared pointed out, people are busy.

00:27:47.480 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.

00:28:00.580 And 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.

00:28:17.020 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 lopped 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?

00:28:44.080 You don't know if there's other people who might be feeling uneasy about this, and there's no real way of telling.

00:28:51.580 Well, particularly in our profession, my understanding is that the majority of lawyers in the province of Ontario are generally practicing in a small firm environment or sole practitioners.

00:28:59.760 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.

00:29:11.300 So, we have a unique, I think we have a unique industry in that regard.

00:29:17.100 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, you know, I have certainly heard from a good number of lawyers now who are all extremely concerned, shocked, alarmed at this.

00:29:39.380 So, 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.

00:29:52.860 So, there are possibilities here that if people do act upon their concerns and decline to comply with this requirement, that the change in this situation actually is a possibility.

00:30:10.500 Well, Bruce, there's also the people that we're servicing.

00:30:14.460 I mean, in the private practice world, clients.

00:30:17.640 Clients are going to watch this.

00:30:18.940 They want to know what we're doing.

00:30:20.080 I think they want their lawyers to stand up on their principles, if you will, and push back against something.

00:30:26.020 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.

00:30:33.760 My clients are relying on me to be this bulwark against this type of thing.

00:30:37.720 And I think a lot of lawyers should take note of that, that there might be something here worth fighting for.

00:30:43.260 Yeah, I totally agree.

00:30:44.820 I mean, really, your lawyer credibility is at stake here.

00:30:47.660 If you can't stand up and protect yourself when your own fundamental rights are being threatened, then why should clients believe you have the ability to do so on their behalf?

00:30:59.840 Or the inclination to do so.

00:31:02.120 You know, because by swallowing this hook, line and sinker, let's say, and acceding to what's essentially an ideological demand, then you also brand yourself as an avatar of that particular ideology.

00:31:15.520 And so that's another reason to not be trusted.

00:31:18.820 You know, 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.

00:31:32.720 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.

00:31:44.520 In fact, I think it's an extraordinarily weak argument that that's the case.

00:31:48.180 There's flaws in it at virtually every level of analysis.

00:31:51.120 So, and it certainly runs contrary to the central themes of English common law, for example.

00:31:58.840 So, we make note, just for a moment, of the fact that the law society is playing this a little bit close to their chest 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.

00:32:16.320 They have 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.

00:32:29.540 And that was discussed to some extent at the convocation meeting.

00:32:33.640 There was concerns, what happens?

00:32:35.320 What is the recourse here?

00:32:36.920 And I'm left to speculate, but what your obligations are typically is to file what's called a member's annual report, of which this is going to be a component of it.

00:32:45.940 But by not filling out a portion of your member's annual report, I'm sure that you're going to face at a minimum what's called an administrative process or suspension.

00:32:55.220 And it may even turn into something much larger than that.

00:32:58.280 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.

00:33:08.460 Yeah, well, that's also rather troublesome in and of itself, you know, because it's just not reasonable to specify a requirement and then leave the penalty undefined.

00:33:20.400 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.

00:33:41.360 Because if you're a professional and then the board goes after you, like it's a horrifying experience.

00:33:47.020 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.

00:33:58.100 So, you have someone who's immediately put in a tremendous position of weakness in order to, let's say, push back against this.

00:34:05.760 Well, in the law society, it's all public as well.

00:34:08.280 So, I mean, the role of the law society, from what I understand, is to protect the public from the big bad lawyers.

00:34:13.480 That's why we are a self-regulating industry.

00:34:15.940 And one of the things that the law society does is it makes its disciplinary process public.

00:34:21.840 So, things like administrative suspensions or disciplinary action are things that would be known to the public.

00:34:27.520 So, you're out there potentially being tarred and feathered on this thing and people are going to know.

00:34:32.160 Yeah, well, it's extremely important for a professional to maintain a pristine reputation.

00:34:37.420 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.

00:34:53.720 So, that means the process is the punishment.

00:34:56.760 And that's very much the case with these mid-level organizations where it seems to me that proclivity for a more totalitarian view of the world is like leaping forward in leaps and bounds.

00:35:11.580 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 requirement, what it is that we would suggest that they do?

00:35:26.040 Jared, do you want to take that on?

00:35:27.840 Well, it seems to me you approach that in your article at the National Post in a pretty adept way.

00:35:32.780 And my first inclination is that you don't file.

00:35:36.160 I mean, the act of filing in itself, as we've already discussed, is half of the admission of guilt, if you will.

00:35:41.800 And, I mean, I think that not filing sends a good statement.

00:35:47.520 But then, you know, you want to obviously let them know why you're not filing.

00:35:51.640 So, perhaps you have to send something that would let them, the law society, the regulator, know why you're not filing.

00:35:57.920 I mean, those are the things that come to mind.

00:35:59.280 And you discussed them, I think, quite well.

00:36:02.440 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.

00:36:09.560 I think that's a very good idea.

00:36:10.840 Yeah, some kind of short statement.

00:36:12.720 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.

00:36:23.000 Because then they are actually going three quarters of the way of what they've been asked to do.

00:36:29.540 I mean, there's no reason why, even if the statement says something that you believe, that you should be filing it.

00:36:35.560 Because it's still forced speech.

00:36:37.100 They're still requiring you to make that statement.

00:36:38.680 And it's none of their business.

00:36:42.200 And, I mean, I thought about that myself.

00:36:44.000 I thought maybe you do a Google memo, you know, a more Google memo.

00:36:48.160 But then I thought, no, you're playing the game.

00:36:50.600 You are declaring your thoughts to the regulator.

00:36:54.300 And I think that's reprehensible.

00:36:55.760 Yeah, I agree.

00:36:57.780 They don't have any right to the content of your thoughts.

00:37:01.000 Not unless you're willing to voluntarily put them forward.

00:37:04.120 And that's definitely a difference, a very big difference between, well, 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.

00:37:17.040 And the idea that they should have privileged access to your deepest principles is, I agree, that's absolutely reprehensible.

00:37:25.140 There's no excuse for it whatsoever.

00:37:26.640 Whether you agree with the principles they want you to agree with or not, it's reprehensible.

00:37:31.240 Yes, oh, yes.

00:37:32.440 Let's emphasize this point.

00:37:35.300 This is not essentially a debate about whether or not those values are good or bad, desirable or undesirable.

00:37:43.400 This is about the forced speech, first and foremost.

00:37:46.660 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.

00:37:53.400 Even if you do agree with them and endorse them, the idea that you must say so is just not on.

00:38:00.360 It crosses a line into a dark place that does not bode well for the future of freedom of speech in this country.

00:38:11.640 Go ahead, John.

00:38:13.620 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.

00:38:28.900 And so clearly our actions are already governed by a code of conduct and by the legislation generally.

00:38:36.000 So for them to request the statement of principles, it really is just asking you the way you think.

00:38:41.780 And so it's not like this is needed.

00:38:45.260 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, are two quite different things.

00:38:58.400 Can I read again what the Supreme Court said on this question?

00:39:00.920 The Supreme Court says this, however, admirable the objectives and provisions of the law may be.

00:39:10.760 No one is obliged to approve of them.

00:39:14.840 Anyone may criticize them and seek to have them amended or repealed, although complying with them so long as they are in effect.

00:39:24.100 So this is not a question of whether lawyers are subject to Human Rights Code and anti-discrimination laws.

00:39:29.940 That is not the question here.

00:39:32.160 The question is whether or not you are required to endorse them and say that you agree, which is quite a different thing.

00:39:38.100 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 in its early stages of development,

00:39:52.440 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.

00:40:02.020 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.

00:40:14.780 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.

00:40:33.100 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?

00:40:42.360 So, but it's a terrifying proposition from the perspective of an informed Western individual,

00:40:49.800 because one of the bedrock presuppositions, let's call it a principle of our legal structure,

00:40:57.040 is that you're judged on your guilt or innocence as an individual, not as the member of a class.

00:41:02.540 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.

00:41:11.160 And if you look into the history, let's say, of those classes, whatever they are, economic, professional, racial, gender-based, whatever,

00:41:20.120 the probability that sometime in the past, some members of our so-called class did things that were morally reprehensible or illegal is 100%.

00:41:29.680 And if we're going to be judged on the basis of the actions taken by people that we didn't even know,

00:41:36.140 merely because we happen to be vaguely associated with that group,

00:41:39.660 then we're all guilty of all sorts of terrible things all the time.

00:41:43.520 And that puts us completely in the hands of people who want to make those guilt-based, those group guilt-based accusations.

00:41:49.360 And that's a very, very bad, it's almost impossible to overstress how bad an idea that is.

00:41:56.120 Yes, absolutely.

00:41:59.460 I mean, there is no one that you can identify who, in terms of group association and in terms of lineage as well,

00:42:08.420 I mean, this is also a casting the net back into history to see, you know, which group did wrong to which group.

00:42:17.340 But, of course, there is no one who doesn't have somewhere in their ancestral lineage, you know,

00:42:24.300 wrongs done by somebody you're related to, to some other person.

00:42:29.260 And if that is the criteria for guilt, as you have said, then everybody is guilty.

00:42:35.020 And the whole thing starts to become silly.

00:42:37.280 Yes, well, when everyone's guilty, that means that the people who hold the right to punishment become all-powerful.

00:42:43.340 Yes, and all discretionary, too, yes.

00:42:46.000 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,

00:42:53.040 or your confession, if you will.

00:42:56.000 So, okay, so here's another thing that I thought I might do is I'm going to put together an anonymous list

00:43:02.820 so that lawyers who are willing to indicate their objections to this requirement can sign up.

00:43:13.340 And that way I can tweet and also stay in contact with you guys on a regular basis how many signatories I've obtained.

00:43:21.660 And I won't make that public.

00:43:22.980 I'll make sure that it's not crackable.

00:43:24.540 And that way it will help people discover how many other people are also concerned about this

00:43:33.760 and indicate to what degree there might be strength in numbers.

00:43:38.720 And so I'll set that up very carefully, and I'll put the link to that in the description of this video.

00:43:43.360 And so I guess we've decided on three potential modes of action.

00:43:49.580 And Jared's fundamental suggestion, if I remember correctly, was to not file the statement of principle

00:43:58.400 and also write a letter indicating precisely why.

00:44:03.580 And I guess that would be...

00:44:04.920 Well, if I could just modify that a little bit.

00:44:07.340 I think it might be most effective if you file the piece of paper as your statement, but don't make it a statement.

00:44:14.480 Just say on the, quote, statement of principles that you object to filing a statement of principles.

00:44:21.060 Or if they wish, as I suggested in the column, they're more than welcome to send in a copy of the column from the National Post.

00:44:26.920 Anything that indicates that you're not doing this, you haven't just forgotten.

00:44:32.540 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.

00:44:38.460 Okay, so that can be very straightforward.

00:44:40.620 That means that it wouldn't necessarily be very time-consuming.

00:44:43.560 You could take the time to delineate why you're opposed to this, or you could send in the column,

00:44:51.180 or you could just state that you're opposed to this.

00:44:53.740 Yeah, I don't think they should go to great length.

00:44:56.720 I think it's very simple.

00:44:58.400 If they just say something like, this is forced speech, and I choose not to comply, or send in the column,

00:45:07.300 or something that stands for the proposition that I'm declining this request.

00:45:13.900 It can be very short.

00:45:15.020 It does not have to be a full reasoned justified thing.

00:45:19.440 Yeah, I object to be justified.

00:45:21.400 Most lawyers know how to do that if they've been in a courtroom.

00:45:24.080 Yes, exactly. That's right. It should be something they're quite accustomed to doing.

00:45:29.280 And then I'll put up this link for the list so that we can start to collect signatories

00:45:34.500 and decide who, and let people know how many people are actually, let's call it philosophically

00:45:40.980 and professionally opposed to this particular set of maneuvers.

00:45:45.180 And to be clear, I don't want to know anybody's politics.

00:45:47.900 I don't want to know anything other than are they uncomfortable with the idea of being compelled to do something,

00:45:53.560 to speak something.

00:45:54.660 And I mean, that's important.

00:45:55.800 And there's going to be a lot of people who are concerned about anonymity,

00:45:58.320 and I fully respect that.

00:46:00.300 But they need to know that there is people out there that are like-mindedly objecting to this.

00:46:05.900 Right. Now, one question that obviously comes up about this,

00:46:10.580 and I don't know if, Jared, you want to speak to this,

00:46:12.540 but I understand that there have been conversations between lots of various people

00:46:17.020 about whether or not a legal action is a possibility on this.

00:46:22.740 Do you want to just make some very general comments about that?

00:46:25.300 Well, I think it's, I mean, this may come to a head,

00:46:29.340 and I have had discussions with many people within my own professional network,

00:46:33.320 and I'm trying to expand that network.

00:46:34.800 And I've had at least one person, very senior lawyer, come forward and say,

00:46:40.960 I'm prepared to challenge this.

00:46:42.560 I'm prepared to be the person that takes the slings and arrows through a challenging process.

00:46:48.120 And I mean, I imagine it would have to flow through the law society initially,

00:46:52.560 but at some point you are entitled to judicial review of regulatory decisions.

00:46:58.200 So it would get pushed out into the general court system at some point.

00:47:02.380 But yeah, absolutely.

00:47:03.460 It can, if, let's say there are people that are willing to go to the mat for this,

00:47:08.680 and that's what I've been able to discern just within my own network.

00:47:13.540 Well, that's reassuring.

00:47:16.940 Well, it's the way lawyers should be.

00:47:18.520 We're supposed to be objectionable, aren't we?

00:47:21.200 Yes.

00:47:22.560 Might as well put that feature to good use.

00:47:25.900 Yes, well, that's exactly it.

00:47:27.360 I would say from a temperamental perspective,

00:47:29.360 lawyers are perfectly positioned to do that

00:47:31.380 because they tend to be rather disagreeable and emotionally stable.

00:47:34.740 And so we do, the rest of us,

00:47:36.960 and I'm speaking as the member of another professional organization,

00:47:42.000 we depend on you guys to be the bulwark

00:47:45.180 against any incursions into our essential rights.

00:47:49.460 And if you guys fold and go along with this,

00:47:52.800 then it's really not a good day for the English common law.

00:47:57.720 That's for sure.

00:47:58.540 And I think the English common law is one of the most remarkable achievements of civilization,

00:48:04.240 of world civilization.

00:48:05.100 It's an absolute gift, an evolved legal system.

00:48:08.240 It works unbelievably well.

00:48:09.780 And to not object to serious challenges to it at a fundamental level

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00:51:25.780 Jared, you're going to bring us up to date?

00:51:27.740 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,

00:51:47.400 but apparently written to the law society on this statement of principles issue, but more importantly, the public.

00:51:54.480 I'm getting a lot of outreach from the general public.

00:51:58.580 I mean, you can look at the comments on the YouTube video that we put up.

00:52:02.660 The general public is concerned, and they are very much watching.

00:52:05.460 In terms of the legal actors, lawyers, paralegals, I understand there are a lot that have written to the law society.

00:52:16.860 The types of people that are reaching out to me are a broad cross-section of the industry.

00:52:23.000 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.

00:52:37.620 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.

00:52:46.620 In first instance, it was an issue with, okay, yes, this compelled speech idea sounds objectionable.

00:52:57.120 Those same people and some new people are beginning to reach out, and the commentary is changing to some extent.

00:53:04.280 It is now that they're beginning to examine the underlying report itself, and they're coming to me with questions about,

00:53:11.180 well, what does it mean that there is systemic discrimination and racism within the legal industry?

00:53:17.440 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.

00:53:28.340 And they're starting to grapple with that larger question of, well, what does it mean when our industry is systemically discriminatory?

00:53:37.420 So people are becoming aware.

00:53:39.580 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.

00:53:47.440 Yeah, so the, well, and the problem with the systemic racism charge is that, well, it's vague, that's for sure,

00:53:55.640 and then it targets everyone equally in some sense within the profession and requires systemic adjustment.

00:54:03.000 That's the other thing, and obviously has to be supported with hard data,

00:54:06.580 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.

00:54:15.440 So I've had a great deal of feedback as well from both lawyers and the general public,

00:54:23.640 and they are of a mind, I think, as Jared described, about their concerns over the forced speech aspects of this requirement.

00:54:36.000 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.

00:54:47.940 And a lot of those people who are insisting that this is a legitimate requirement are saying that, you know,

00:54:55.980 although it's called a statement, it is not forced speech.

00:54:59.100 It simply governs conduct, and if I might, I'll just read out a quote attributed to the Treasurer on this question that appeared in the Law of Times.

00:55:09.300 The Treasurer was quoted as saying, with respect to the Statement of Values,

00:55:14.360 this is a conduct obligation to recognize that we have to commit to these values,

00:55:24.420 and it's not a speech obligation or a thought obligation.

00:55:29.260 Now, just on the face of it, that statement seems strange, to say the least,

00:55:36.500 to say that what we have to do is to commit,

00:55:39.700 and yet that's not either a thought proposition or a speech proposition.

00:55:45.920 Right.

00:55:46.260 Even if you have to commit in a statement and indicate that you have.

00:55:49.540 Right.

00:55:49.840 So it begs the question of what's the definition of commit?

00:55:54.020 Correct.

00:55:54.820 Yes.

00:55:55.360 And the way that they're portraying it is that this is simply an articulation of the obligations that lawyers already have

00:56:04.720 in both the rules of professional conduct and in the Human Rights Code,

00:56:08.720 which is clearly not the case.

00:56:10.980 Nowhere in the rules of professional conduct or in the Human Rights Code

00:56:14.700 is there any obligation upon anyone to promote anything.

00:56:18.180 Well, and also, if you already have that obligation,

00:56:22.620 then why is it necessary to add this additional layer of, let's call it, obedience?

00:56:29.820 Yes.

00:56:30.180 Well, let's just note the two contradictions in the portrayal of this.

00:56:40.800 On the one hand, it is described as not a big deal.

00:56:45.060 There are no immediate sanctions to follow.

00:56:47.020 You don't have to send the statement in.

00:56:49.180 You just have to write it.

00:56:50.380 You just have to put it in your own file somewhere and not worry about it.

00:56:53.200 It's no big thing.

00:56:55.360 Why are you so concerned about it?

00:56:57.240 And on the other hand, they are emphasizing how central this is to the project they have set out.

00:57:02.280 And there are many people who have suggested, essentially,

00:57:06.720 that if you are not willing to do this statement and indicate your agreement with a certain set of values,

00:57:13.820 then you should not be allowed to be a lawyer and practice in Ontario.

00:57:18.260 Right.

00:57:18.540 Well, that certainly seems to be the end game.

00:57:20.700 And my sense has been watching this, that because of the public pressure,

00:57:24.880 they're backing off to some degree in their public statements by moving forward into the future at some indeterminate date,

00:57:33.280 the actual sanctions that will be applied so that right now, from a public relations perspective,

00:57:38.520 it looks like this isn't a draconian measure.

00:57:42.740 And you might as well also remind people that they might wonder why I'm here.

00:57:47.280 My concern when I first encountered this was that I know with that sinking feeling you get when you can predict the future accurately

00:57:57.740 and you don't like your prediction, that if the law society prevails with this,

00:58:03.960 that the rest of the professional organizations in Canada will follow in lockstep very, very rapidly

00:58:10.060 and will end up in a situation where every professional in Canada is required to pen a statement of principles

00:58:16.360 that are essentially required by their colleges espousing a particular political and not only political,

00:58:27.560 but philosophical and worldview philosophy or risk losing their licenses.

00:58:33.160 And I mean, I know in the legal, in the law society already, you have to,

00:58:37.000 there's a requirement that you have to undertake training in relationship to equity, diversity and inclusivity, right?

00:58:43.660 That's part of what they're requiring.

00:58:45.040 Well, let's just read that out.

00:58:46.700 One of the recommendations in this roster of recommendations that Convocation has passed is recommendation nine.

00:58:54.860 And the third part of recommendation nine reads as follows.

00:58:58.600 The law society will require each licensee to complete three hours of an accredited program focused on equality and inclusion

00:59:08.440 within the first three years following the adoption of these recommendations and one hour per year there, every year thereafter,

00:59:16.240 which will count towards professionalism hours for that year.

00:59:19.160 So in other words, it is exactly as you've described, Jordan.

00:59:22.800 There will be training now so that you have the right attitude about these matters.

00:59:29.120 Right.

00:59:29.320 And I can just imagine what that training will be like.

00:59:32.300 Well, there was some commentary in the underlying report about unconscious bias training.

00:59:38.900 And I know, Jordan, that you've had some discussions about that in some of your public works.

00:59:44.100 Yeah, well, there is absolutely no evidence whatsoever that unconscious bias training produces the results intended.

00:59:50.040 First of all, the relationship between unconscious bias, say, as assessed by the implicit association test,

00:59:56.500 which is a pathological misuse of a psychological instrument.

00:59:59.540 Even the people who designed it have grudgingly admitted that there's the relationship between those implicit prejudices, so to speak,

01:00:07.560 which aren't even recognized universally by psychologists as implicit prejudices.

01:00:12.440 The relationship between them in any case and behavior is very, very small.

01:00:16.700 It accounts for very little of overt behavior.

01:00:19.700 And then the evidence that you can train people out of those unconscious biases is zero.

01:00:25.720 So this is a misuse of science and education at every level from a scientific perspective.

01:00:34.700 It's the inappropriate politicization of a very new line of inquiry in social psychology.

01:00:40.680 And if the people who designed the IAT, in my estimation, had an ounce of, what would you say, intellectual integrity,

01:00:49.740 they would denounce the misuse of their test.

01:00:52.000 Because it doesn't fit the requirements that psychologists have laid down for validity or reliability.

01:00:58.420 And that's partly why it's not admissible in court, for example.

01:01:02.180 Well, the committees that are selecting our judges currently are being put through unconscious bias training.

01:01:08.640 And so I question whether or not the Law Society will heed the warning that you just put out there.

01:01:15.180 Yeah, it's very unlikely.

01:01:17.180 And so, you know, I've already decided that with regards to my clinical license,

01:01:21.120 if I was required to undertake this kind of re-education program and to pen a statement of principles of that sort,

01:01:27.780 that I'd just give up my license.

01:01:29.740 Because there's no way I'm doing that.

01:01:31.780 So the public, that's the one thing I wanted to let you know, is that you're not alone, Jordan.

01:01:35.540 The groundswell of public feedback that I'm seeing and receiving directly into my office has been significant.

01:01:42.380 People recognize exactly what we talked about on the last video,

01:01:45.900 that the legal industry and lawyers in particular are supposed to be that bulwark against this type of overreach.

01:01:54.520 And so they really very much, there's a large segment of the population that are worried.

01:01:59.060 They see that if the lawyers fall down, then the rest will follow.

01:02:02.320 Can we just make a note of one argument that has been made in favor of the statement,

01:02:08.360 which is that, you know, lawyers are already subject to a set of ethical obligations.

01:02:15.100 And this is just one more, an extension of the same kind of idea.

01:02:19.920 But there is a significant difference between the kind of ethical obligations that exist,

01:02:24.880 which are essentially neutral, non-political obligations that relate to the way that our adversarial adjudication system is supposed to work.

01:02:34.580 So just for example, every lawyer has an ethical obligation to avoid a conflict of interest.

01:02:40.920 You can't represent both sides in a dispute, because that would be contrary to the way our adversarial system is supposed to function.

01:02:48.540 That doesn't make any sense.

01:02:49.920 You can't represent both sides in a dispute.

01:02:52.120 But that ethical obligation doesn't have political content.

01:02:55.580 It doesn't matter whether you are a socialist or a conservative or a classical liberal or anywhere on this political spectrum.

01:03:05.440 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,

01:03:15.580 which is a substantially different proposition than the proposition that these requirements are based on,

01:03:22.580 which are, as Jordan, that you mentioned earlier, these are politically charged and have substantive political content in them.

01:03:30.580 The law society is essentially saying that unless you adhere to a certain ideology, that you are not fit to practice law.

01:03:39.840 Well, it's also an admission that this is, and this is, I think, the more, perhaps even the more dangerous element of this,

01:03:45.980 is that to undertake re-education with regards to your political beliefs surrounding,

01:03:53.140 or even factual beliefs surrounding equity, diversity, and inclusivity,

01:03:57.760 is to act out by implication the fact that you need that re-education,

01:04:04.220 because you're part of the problem of systemic racism.

01:04:08.060 And, you know, it's very, it's very psychologically significant to act out an admission of your guilt,

01:04:14.780 because what happens is, generally speaking, is that people then retroactively alter their self-images

01:04:22.320 and start to wonder about such things, you know,

01:04:25.160 because they're either cowards for going along with the requirements,

01:04:32.320 or liars for producing a statement of principle that they don't actually agree in,

01:04:37.280 or they start to tilt their beliefs in the direction that's required by the demands,

01:04:41.600 and that's usually what happens.

01:04:43.080 And so, and I'm quite convinced that the people who do this sort of thing,

01:04:46.840 who make these requirements, know that,

01:04:49.140 and that it's a manipulation on their part to tilt political belief overtly.

01:04:55.520 And so, you can't act these things out without it having psychological consequences,

01:05:01.440 and consequences, moral consequences, let's say.

01:05:04.500 So, it's very intrusive.

01:05:07.380 The other thing, Bruce, that's important to remember is, I mean,

01:05:11.000 the dichotomy between belief, thought, and conduct.

01:05:14.640 Currently, lawyers in Ontario are subject to the rules of professional conduct.

01:05:18.300 And right now, we have an obligation to act in a certain way

01:05:24.260 and to refrain from acting in other ways.

01:05:26.940 And one of the rules of professional conduct is, you know,

01:05:29.780 thou shalt not discriminate, and I don't think anybody would argue with that,

01:05:33.080 in that thou shalt act in accordance with the human rights regime

01:05:36.680 and associated codes across Canada.

01:05:39.840 Nobody could argue with that.

01:05:41.540 But this statement of principles is crossing the line into thought and opinion.

01:05:44.980 And one of the recommendations, I would note in the report,

01:05:49.780 recommendation number one, they're actually proposing to review and amend,

01:05:54.240 where appropriate, the rules of professional conduct,

01:05:56.720 the paralegal rules of conduct, and commentaries to reinforce

01:06:00.040 the professional obligations of all licensees to recognize, acknowledge,

01:06:04.300 and promote principles of equality, diversity, and inclusion.

01:06:07.440 Now, I find that fascinating because you're going to amend a rule of conduct

01:06:12.020 to include, all of a sudden, an affirmation of thought.

01:06:17.080 And to insist upon promotion as well, which is obviously very ill-defined.

01:06:24.320 Yes.

01:06:24.640 So let's just go back to the words, just to make this point.

01:06:28.060 So, again, I'm going to go back to a quote attributed to the treasurer

01:06:33.100 in the Law Times piece.

01:06:34.040 He says this, the statement of values is an obligation to promote equality,

01:06:38.760 diversity, and inclusion generally, which is nothing more than the obligation

01:06:43.580 lawyers have already.

01:06:46.000 But when you go to the rules of professional conduct, it says,

01:06:49.980 a lawyer has a special responsibility to respect the requirements of human rights

01:06:54.500 laws in force in Ontario and to honor the obligation not to discriminate

01:06:59.140 on the grounds of race and says to be a place of origin, color, et cetera, et cetera.

01:07:03.220 That's exactly as you just said, Jared.

01:07:05.580 This describes an obligation to observe the law.

01:07:10.420 And this law consists of prohibitions.

01:07:13.340 That is the obligation that lawyers are under.

01:07:15.980 No doubt about it that they must do so.

01:07:18.220 But it does not include an obligation to endorse.

01:07:22.060 And it does not include an obligation to promote.

01:07:24.640 Right.

01:07:24.780 And we should also point out, just in case it needs to be said,

01:07:28.540 that none of the three of us disagree with the idea

01:07:31.660 that people shouldn't be discriminated against for reasons that have nothing to do

01:07:35.720 with their competence.

01:07:37.400 Agreed.

01:07:38.020 Agreed.

01:07:38.640 And that's not what this is about.

01:07:40.440 It is not what this is about.

01:07:41.960 And it might also be useful to talk for a moment also about the word equality.

01:07:47.080 Because equality has two competing legal meanings.

01:07:52.440 And the law society has not defined which one of them they mean explicitly,

01:07:56.620 but it's clear by implication which one they mean.

01:07:59.260 And the two choices are formal equality or substantive equality or equality of results.

01:08:05.320 And the two things are quite different.

01:08:07.320 Formal equality simply means that the same rules of conduct apply to everybody,

01:08:12.280 regardless of background, of wealth, of lineage, of heritage, and so on.

01:08:19.680 Same rules apply to everybody in the same way.

01:08:23.880 Equality of results means that everybody ends up in the same place.

01:08:29.060 And note that these two ideas of equality are diametrically opposed

01:08:33.540 and inconsistent with each other.

01:08:35.020 Because if you have formal equality, applying the same rules to everybody,

01:08:40.160 because everybody is different, you're going to have different results for everybody.

01:08:44.240 If you insist upon the same results for everybody,

01:08:47.140 that means you need different rules for everybody for them to end up in the same place.

01:08:51.440 So you cannot have both formal equality and substantive equality together.

01:08:56.280 And traditionally, the rule of law has included the notion of formal equality.

01:09:01.380 If you have a properly functioning rule of law,

01:09:04.020 that means you have the same rules applying to everybody without regard to who they are.

01:09:09.200 Well, the problem with equality of outcome, which is now often termed equity,

01:09:14.100 is that you can group people, each individual, in a multitude of different ways.

01:09:19.720 And it's impossible to produce equality of outcome

01:09:22.920 across all those different dimensions of the comparison.

01:09:25.580 So it's a never-ending struggle to produce equality of outcome.

01:09:29.200 It's technically impossible.

01:09:30.680 And societies that have tried that have had, well, it's been absolutely catastrophic.

01:09:37.160 And divisive, terribly divisive.

01:09:39.480 It is also contrary to that fundamental legal proposition that justice is blind.

01:09:45.040 Justice is supposed to be blind to all of those personal characteristics that one has,

01:09:52.400 whether it's race or color or gender or wealth or background or lineage or political connection.

01:09:59.480 Whatever it happens to be, a properly functioning judicial system doesn't take account of who you are.

01:10:06.240 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.

01:10:16.960 And the so-called, well, the data that has been generated is also predicated on the implicit acceptance of an equality of outcome doctrine.

01:10:25.760 Because the fact that every group isn't equally represented at outcome is the data point that's being used to indicate systemic racism.

01:10:36.620 And 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?

01:10:53.740 I mean, is that now a belief that you don't get to have?

01:10:56.920 Because if you are forced to write this statement of principles and alter your conduct,

01:11:01.780 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,

01:11:11.860 the whole legal enterprise is systemically racist.

01:11:14.300 And thereby, you're also thereby admitting your own culpability in relationship to that and the corruption of the entire legal system.

01:11:23.560 And that seems to me that you shouldn't be required to admit to that if you don't agree with it.

01:11:29.400 And that's the arc of the commentary, as I mentioned at the outset, is that it started in one place.

01:11:34.500 And the feedback I'm getting now is very much in that place that people are beginning to question,

01:11:39.800 OK, what does it mean, the findings of this report for me personally and for my industry?

01:11:46.460 And what does the data say? And people are digging down on it.

01:11:49.640 In fact, I just read an article the other day that said that there's actually been a doubling in the representation of racialized licensees within the industry between 2011 and 2014.

01:12:00.200 You know, that's not something I think a lot of people recognize is that, yes, well, the report may may have touched on something in terms of findings.

01:12:10.360 There's also some things to celebrate.

01:12:13.200 Well, the other thing, too, is that you have to specify in a report like that,

01:12:17.020 if you're going to consider this something approximating a scientific investigation,

01:12:21.980 which and it wasn't conducted in a manner that would meet those requirements, in my estimation,

01:12:25.900 that there's going to be a lag in ethnic representation as the population demographics change

01:12:31.600 because the demographics of the population from immigration are going to change more rapidly

01:12:36.380 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.

01:12:48.820 And so the real point of data should have been the rate at which newcomers are being integrated into the profession

01:12:57.080 rather than the absolute numbers of people who are there already.

01:13:00.480 And that's self-evident.

01:13:02.420 And so the fact that that isn't being considered deeply in the data is also indicative, in my opinion,

01:13:08.980 of the political slant of the interpretative framework through which the data was analyzed.

01:13:14.040 Can we also make note of the irony of the way that the word diversity is being used

01:13:23.380 and the means by which are being used to promote diversity?

01:13:27.980 Because, in a sense, the objectives of these recommendations is the opposite of diversity.

01:13:35.000 Real diversity, genuine, deep diversity, includes diversity of thought, diversity of opinion,

01:13:40.720 diversity of worldview, diversity of ideology, including all the other indices of diversity.

01:13:47.060 And diversity is a very, very important thing for a pluralistic society.

01:13:51.260 If you don't have diversity in a pluralistic society, then you must be living under some kind of tyranny.

01:13:58.100 Right.

01:13:58.780 Because everybody is different and everybody deserves to be allowed to be different

01:14:02.960 and to think different things and to behave in different ways as long as they don't encroach upon the rights of other people.

01:14:08.060 But the vision that seems to lie underneath these provisions is a very singular one,

01:14:15.700 a vision that everybody will think and adopt progressive values,

01:14:21.360 that a proper law firm consists of a group of progressively thinking lawyers that look like a rainbow.

01:14:29.020 Yeah, so there's an appalling proposition underneath that, too, that's actually factually incorrect.

01:14:36.200 So the fundamental racist proposition is that racial groups differ sufficiently

01:14:41.540 so that you can identify them as separate entities and that they should be treated in that manner.

01:14:46.940 But the data suggests very, very strongly that even in situations, say,

01:14:51.440 like where men and women differ in temperament on average,

01:14:54.820 that the overlap between men and women is larger than the differences and the differences within the groups.

01:15:01.160 So the differences between women and the differences between men within their own groups

01:15:05.600 are larger than the differences between men and women.

01:15:09.120 So you don't get true diversity by selecting across groups.

01:15:12.420 That isn't how it works.

01:15:13.860 In fact, that's actually a fundamentally racist or sexist claim,

01:15:17.880 like right down to the core and to predicate, to assume that what you get is diversity of opinion

01:15:24.880 by selecting for diversity, let's say, of race is, well, first of all, it's wrong.

01:15:29.800 That is just technically incorrect.

01:15:31.960 And second, I don't see how that's distinguishable from the claims of the Jim Crow types of the 1950s,

01:15:37.180 who said, well, you know, black people and white people are so different that they should remain segregated.

01:15:41.960 It's like, they're not that different.

01:15:44.680 So, and, but within the groups, they're very different,

01:15:48.460 but between the groups, they're not that much different.

01:15:50.660 The differences aren't, aren't, are, like the differences between men and women aren't non-existent.

01:15:56.340 But even then, you wouldn't select on the basis of those differences to produce diversity of opinion.

01:16:02.560 So.

01:16:02.780 Yes, yes.

01:16:03.960 But it's not the diversity of thought model that organizations are,

01:16:07.420 including our own governments, are pursuing at this point.

01:16:10.400 The law society is not alone in assuming that people who all think alike,

01:16:16.080 but that have different racial or gendered backgrounds is, in fact, diversity.

01:16:21.520 I mean, the Ontario Securities Commission has been mandating that type of diversity

01:16:25.840 on boards of directors for publicly traded companies.

01:16:30.140 You know, the federal government in its cabinet appointments is pursuing that type of diversity

01:16:36.740 that really is not a diversity of thought, so to speak, or opinion,

01:16:39.860 but a diversity of, well, in the federal government's case, gendered.

01:16:44.540 Yeah.

01:16:44.800 Well, the other thing that's going to happen is that if we, and you know,

01:16:48.680 that the people who hold the political views that are pushing these ideas forward

01:16:53.000 are convinced beyond argument that what they're going to do is to,

01:17:00.060 what the instantiation of these policies is going to result in is increased racial harmony

01:17:04.720 and, let's say, harmony between the sexes.

01:17:07.040 But I think you can make a very strong case for exactly the opposite,

01:17:11.200 which is the more that we define people by race and gender,

01:17:14.220 the more that people are going to be defined by race and gender.

01:17:16.880 And I don't see that at all.

01:17:18.820 I really don't see that as a recipe for social harmony.

01:17:23.000 I don't think it's worked in the United States at all.

01:17:25.220 Quite the contrary.

01:17:26.480 And we actually have a pretty harmonious society already by any reasonable standard,

01:17:31.920 any reasonable world standard.

01:17:33.640 And I think that this will inflame tensions between groups unnecessarily.

01:17:39.160 Well, I actually had a lawyer reach out to me, a racialized licensee,

01:17:44.220 and say exactly that, that their main concern with what they were seeing,

01:17:48.020 not only in the compelled speech component on the statement of values,

01:17:51.060 but also the underlying recommendations of the report,

01:17:53.720 is he thought that that was going to inflame tensions or animosity towards people in his group.

01:18:01.660 And I had never thought of it that way,

01:18:03.640 but he was quite concerned that this was actually going to generate animus

01:18:08.020 against those that actually sought to protect.

01:18:10.520 So that's one viewpoint that I hadn't expected.

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01:19:28.280 So should we discuss for a moment the motion that is being brought to Convocation?

01:19:38.980 Joe Groya, who is a lawyer and a bencher,

01:19:42.380 has put together a motion to change the nature of the Statement of Values requirement,

01:19:48.900 and perhaps I'll just read out the key provision of this motion.

01:19:52.620 Moved that Convocation approve that no licensee

01:19:56.760 who has a conscientious objection to the adoption of a Statement of Principles

01:20:02.460 shall be required to comply with Recommendation 3.1,

01:20:06.460 and they shall be exempted from the requirements of Recommendation 3.1

01:20:10.720 to adopt and abide by a Statement of Principles.

01:20:13.840 Now, Joe is a fellow that has my utmost respect.

01:20:21.680 He's done a great deal of good inside Convocation, I think, as a bencher,

01:20:26.540 and I admire his willingness to put forward this motion,

01:20:31.460 which means he's sticking his head up from a crowd that doesn't really want to stick their heads up.

01:20:37.440 Absolutely.

01:20:37.860 But nevertheless, there are some difficulties with the motion.

01:20:43.080 Jared, do you want to speak to that first?

01:20:45.860 Well, yeah.

01:20:46.460 So the motion itself, somebody was talking to me about it,

01:20:50.620 and they said the problem is that it makes it appear that if one elects not to file the Statement of Values,

01:20:57.760 so if the motion is passed and they then decide I'm not going to file the Statement of Values on that basis,

01:21:03.660 that you would be seen or it would be interpreted as you being a conscientious objector

01:21:08.100 to the values that the Law Society Statement of Values is asking us to affirm,

01:21:13.980 rather than an objection to this idea of compelled speech

01:21:18.300 or being forced to disclose or divulge what may be in your head

01:21:22.420 or what your thoughts and opinions may be.

01:21:24.100 And I hadn't thought of it that way, but when you look at the motion, yes, it very much can be interpreted that way.

01:21:29.500 Right.

01:21:30.180 And so, in essence, it does not save you from having to perform the forced speech obligation.

01:21:38.680 It just gives you another thing to indicate, which essentially requires you to stick your head up

01:21:44.240 and be counted one way or the other.

01:21:46.780 In other words, the Law Society is still succeeding at dividing people

01:21:50.100 between those people who are willing to do the Statement and those people who refuse to do it

01:21:54.960 but have to say that they refuse to do it.

01:21:56.860 So, there is still forced speech in here, even if the motion passes.

01:22:04.500 Yeah.

01:22:06.840 I don't think it gets us to where we need to be.

01:22:10.000 You know, and as you said, I think Joe's a tremendous person, deserves a lot of respect.

01:22:15.040 He's fighting his own free speech battles before the Supreme Court of Canada in early November.

01:22:20.840 As you may know, he was accused of crossing some imaginary line about the conduct of his defense

01:22:29.180 of an individual before the courts, and that is a very novel idea.

01:22:35.820 And so, the industry is watching with some interest to see what the Supreme Court of Canada says

01:22:40.180 about whether or not there is a line in the sand as to the type of advocacy you can pursue.

01:22:44.220 So, Joe is somebody to watch and someone to respect it,

01:22:47.780 but I think the motion comes up slightly short of where it needs to be.

01:22:50.660 I don't think it gets us to the place that I think we need to be,

01:22:54.160 which is that the Law Society should not be meddling or even asking what the thoughts and conscience is of its members.

01:23:02.800 Right.

01:23:02.940 So, as of right now, there is nothing sort of on the table that, as far as we are concerned,

01:23:10.540 that offers the possibility of eliminating the objectionable aspect of this forced speech obligation.

01:23:20.440 You know, it's interesting.

01:23:22.680 Go ahead, Jordan.

01:23:23.460 Okay.

01:23:23.840 Well, we'd also talked a little bit about the fact that, you know,

01:23:26.960 we had concentrated specifically on the statement of principles as the objectionable element of the recommendations.

01:23:33.820 But the recommendations as a package are also objectionable because they're all fed by the same underlying philosophy of, well,

01:23:43.260 systemic racism, let's say, and the promotion of equity, diversity, and equality as the highest of moral values.

01:23:51.980 So, do we want to talk a little bit about the rest of the recommendations?

01:23:56.260 Yes, sure.

01:23:57.260 Yes.

01:23:57.520 Well, let's – I'll read out the first one, perhaps.

01:24:02.020 The first one gives a flavor for the whole host of them.

01:24:06.760 So, the first one goes like this.

01:24:07.880 The Law Society will review and amend, where appropriate, the rules of professional conduct

01:24:13.560 and the paralegal's rules of conduct and commentaries to reinforce the professional obligations of all licensees

01:24:20.440 to recognize, acknowledge, and promote principles of equality, diversity, and inclusion consistent

01:24:28.220 with the requirements under human rights legislation and the special responsibilities of licensees

01:24:33.580 in the legal and paralegal profession.

01:24:36.560 Now, there are those words again.

01:24:39.220 Okay.

01:24:39.800 So, you also mean, if you abide by that, that you have to accept the definition of diversity

01:24:44.140 as essentially predicated both on race and sex?

01:24:48.520 Yeah.

01:24:49.080 Well, yeah.

01:24:49.420 Well, of course, they haven't defined diversity, but consistent with the rest of the regime,

01:24:53.640 yes, that – in the way that we have previously described, that is the meaning of diversity

01:24:59.820 that they're going for.

01:25:00.840 Right.

01:25:01.360 And also the meaning of equality, as I suggested earlier.

01:25:04.020 Right, right.

01:25:04.400 Yeah.

01:25:05.020 Right.

01:25:05.780 So, and of course, there are internal contradictions in the statement because they're going to

01:25:12.120 amend the rules of professional conduct so as to reinforce obligations that don't now

01:25:18.560 exist.

01:25:19.780 What they really mean to say is we're going to change them so as to create new obligations.

01:25:24.720 The requirements under human rights legislation that this recommendation refers to, again, do

01:25:32.400 not include the obligation to acknowledge and promote.

01:25:36.280 They are conduct laws that everybody is subject to, but they prohibit certain things.

01:25:41.980 So, like the statement, this first recommendation that gives the flavor of all the rest of

01:25:49.160 them suggests that the law society is essentially moving into a new area of regulating competence.

01:25:58.000 If I can put it this way, instead of being a neutral regulator of competence in the political

01:26:04.320 sense, they have now more or less taken on the mandate of regulating competence in the

01:26:11.360 political sense, in the ideological sense.

01:26:13.220 They are essentially saying, here are some values that a regulator is going to require you

01:26:19.080 to comply with.

01:26:20.000 These values essentially are progressive values, so that if you are not a progressive lawyer,

01:26:26.220 we do not think that you have the right to practice law in this province.

01:26:30.720 And as the only values that are going to be the subject of a statement of values, they are

01:26:36.160 elevating those to a position of prominence, and I would suggest beyond all others.

01:26:43.000 Yes, sure.

01:26:45.160 These values, because of their being listed in a special way, seem to be put above other

01:26:53.860 more fundamental values like the rule of law, like formal equality, like…

01:27:00.320 Competence.

01:27:02.220 Like, well, competence, you would think, would be the core mandate of the law society itself.

01:27:07.380 And by competence, I mean skills, knowledge, and compliance with ethics.

01:27:12.320 Professionalism.

01:27:13.900 Yeah, well, and this also seems to be reflective of a constant push on the part of political

01:27:21.540 ideologues of the progressive type to mandate that of all the rights that Canadians enjoy,

01:27:28.560 or perhaps the obligations they have to undertake, that the rights that are associated with equality,

01:27:37.620 diversity, and inclusivity are going to be made paramount in relationship to all of the

01:27:41.920 other rights.

01:27:42.640 And that seems to me to be an utter catastrophe.

01:27:45.940 So…

01:27:46.140 Well, the proponents of the statement of values, the people that I've seen writing commentary

01:27:51.360 pieces, none of them seem to disagree that there is a compelled speech component inherent

01:27:57.180 in the statement of values.

01:27:58.460 What they do is they say, okay, but under Section 1 of the Charter in an Oaks test analysis, that

01:28:05.460 infringement on freedom of conscience, freedom of thought, freedom of expression is reasonable

01:28:11.220 to attain the objective of equality, which is also a competing right under the Charter.

01:28:17.640 And inevitably, and I think they have a point, anytime the Supreme Court of Canada is engaged

01:28:22.620 in a Section 1 analysis on freedom of speech that butts up against the competing equality

01:28:29.040 right, they tend to find that, save and accept for the most egregious infringements, that the

01:28:35.240 equality right shall prevail or be the tipping factor.

01:28:39.100 And so, like I said, it's interesting that the proponents, they don't disagree.

01:28:43.260 Oh, yeah, we're putting a compelled speech component on you, but it's all for an objective.

01:28:47.660 It's justified.

01:28:48.200 It's justified.

01:28:48.980 Let's just also note this, though, because the first part of Section 15 is really a section

01:28:56.520 about formal equality, the equal application of laws to everybody, which is not the kind

01:29:01.600 of equality they're talking about.

01:29:03.300 So they are shifting the ground on what equality means and then saying, and that kind of equality

01:29:09.920 justifies the infringement of these other rights under Section 1, as you say, Jared.

01:29:15.300 Okay.

01:29:15.840 So do you want to continue, Bruce, with this?

01:29:17.580 Yes.

01:29:17.840 So let me read another one.

01:29:23.220 Let me just find it here.

01:29:25.380 I want to read the one—here we go.

01:29:28.460 This is Recommendation 10.

01:29:29.520 I want to read this one because it just reinforces the proposition that we spoke about, which is

01:29:34.600 that the Law Society is changing the nature of competence to encompass a certain set of

01:29:41.460 political values.

01:29:42.640 So they're doing this explicitly.

01:29:43.940 Recommendation 10 says as follows.

01:29:46.160 The Law Society will include the topics of cultural competency, equality, and inclusion

01:29:53.020 in the professions as competencies to be acquired in the licensing process.

01:29:58.060 So if you are a young lawyer, a young law school graduate, and you are applying to be licensed

01:30:04.800 by the Law Society, then these are among the things that you must show to them that you

01:30:10.140 are competent in, that you believe and agree and follow these particular values.

01:30:15.960 It'll be on the bar exam.

01:30:17.600 Yes.

01:30:21.220 Yeah.

01:30:22.820 Shall I continue on?

01:30:24.080 There's the same—I believe I read out already the requirement for the continuing education

01:30:34.040 matter.

01:30:35.900 Let's move to one of the recommendations that are being put in place this year.

01:30:40.820 The Statement of Values is one, and the other one that is mandatory for legal workplaces

01:30:46.860 of over 10 lawyers goes like this.

01:30:49.160 The Law Society will require a licensee representative of each legal workplace of at least 10 licensees

01:30:58.240 in Ontario to develop, implement, and maintain a human rights diversity policy for their legal

01:31:06.040 workforce addressing at the very least fair recruitment, retention, and advancement, which

01:31:13.020 will be available to members of the profession and the public upon request.

01:31:17.180 Okay, so there there's a measurement issue, because—a measurement and enforcement issue.

01:31:22.460 So the measurement issue is, well, what is fair and how is it defined?

01:31:27.800 So is it defined by the racial makeup of the firm over the next 10 years?

01:31:32.740 So if it doesn't shift in the required direction, let's say, or the gender makeup of the firm,

01:31:37.120 if it doesn't shift in the required direction, does that mean you're out of compliance?

01:31:40.220 Like, the details in this sort of—the measurement details in this sort of thing really matter.

01:31:45.560 Who defines fair, and then what's enforced, and who's going to—like, are the firms going

01:31:51.580 to be subject to an external analysis that examines their diversity makeup over some period of time?

01:31:59.300 And is there going to be provisions about how rapidly the ethnic and sex makeup of the firm has to

01:32:07.720 transform across time? Like, the devil's in the details in this sort of thing.

01:32:12.700 They're proposing, actually, that a member of the workplace conduct an inclusion self-assessment

01:32:18.400 every two years to get at the measuring component.

01:32:22.880 And so what's an inclusion self-assessment? I mean, exactly. What do you think that means?

01:32:29.380 Does that mean that—what do you do? Do you list your race? I mean, do you examine your soul

01:32:36.600 to determine whether you're oriented in the proper inclusiveness direction in relationship

01:32:43.520 to race and gender? Like, I don't understand—I don't—because I'm a measurement guy, fundamentally.

01:32:49.920 You know, I don't understand how these things are going to be assessed. They're not easy to assess.

01:32:55.320 And then there's the enforcement problem.

01:32:58.380 I really don't know what the word inclusion means. I have ideas about what equality can mean.

01:33:05.820 I have ideas about what diversity can mean. I don't know what inclusion means. I really just

01:33:10.780 don't understand the word. I don't know how you measure it. I don't know what you mean by that.

01:33:15.180 The Law Society has been collecting data for years on these types of demographics on the basis of a

01:33:23.440 voluntary survey basis. And so what they're actually proposing to go further is that within these legal

01:33:31.320 workplaces, that these workplaces conduct inclusion surveys. Now, there was a tremendous amount of

01:33:36.760 conversation at the convocation meeting that adopted these recommendations about compelling people

01:33:42.840 to self-identify within some sort of demographic group or the other, and that there would be some

01:33:47.900 resistance, particularly among racialized licensees, of doing so. So they're going to make it

01:33:55.520 voluntary. But that then goes to the issue of what's the quality of the data that they're getting, Jordan?

01:34:01.820 If it's a voluntary self-reporting exercise, and not everybody's reporting, because as they said at

01:34:08.480 convocation, some groups may be disinclined or fearful of identifying themselves for whatever

01:34:15.420 reason, what's the quality of the data they're getting? And then how are they going to act on that

01:34:19.260 data? Yeah, or maybe even unwilling to identify themselves. Well, that's what I mean. I don't see

01:34:24.140 why it should be required of me that I reveal my, well, which aspects of my identity? What am I going to

01:34:31.920 reveal? So, I mean, obviously, I'm white, whatever the hell that means. So, but there's all sorts of

01:34:38.980 other aspects of my identity that, for example, I might want to keep private. Even the existing data

01:34:44.680 on which they founded the finding of systemic discrimination, the empirical data was based on

01:34:50.900 voluntary survey data. So we're not even certain that we're getting what I would say is confident

01:34:56.980 census type quality data. So shall I read you another one of these recommendations? Recommendation

01:35:04.240 12.2 says that the law society will revise the rules of professional conduct and the paralegal

01:35:11.060 rules of conduct, where appropriate, so that systemic discrimination is clearly identified as a breach of

01:35:19.920 professional conduct requirements. Okay, so that means that at some point in the future, a law firm could

01:35:46.800 be assessed for its compliance with equality, however that's defined, perhaps as equality of outcome,

01:35:53.180 but we don't know, or with regards to rate of transformation of demographic membership, and if

01:36:00.160 you're found not to be in compliance, whatever that means, then that means that you've engaged in

01:36:06.660 professional misconduct. Yes, but interesting that they use the word systemic discrimination, because I

01:36:12.640 thought that meant we're talking, we've used that term in the past to talk about the profession,

01:36:17.860 and that's the way they use that term in the report, that the profession has a problem of systemic

01:36:22.680 discrimination. So I'm just puzzling over the use of that term in this particular recommendation,

01:36:30.020 because it suggests that if you are or your firm is guilty of systemic discrimination, then that is a

01:36:36.960 matter of breaching your conduct obligations. Does that mean that every single lawyer in the firm is

01:36:42.900 guilty of that? Because that's what systemic would imply. Yes, I don't know. And then it also begs the

01:36:48.520 question of how many people you need to be systemically racist before you actually have a system.

01:36:54.440 Well, they're going to be doing a benchmarking exercise. I mean, that's part of it, is that you're

01:36:57.820 going to have to submit these inclusion assessments to the law society, and then they're actually going to

01:37:02.860 review that as against the industry as a whole, in terms of finding out where you're at on your

01:37:08.480 inclusivity. And so my concern would be that they find systemic discrimination within an organization,

01:37:14.380 because it falls short of what the industry-wide standard is in terms of its, well, its diversity

01:37:22.080 layout. Mandate. Right. And so what that'll mean fundamentally is, let's say that you have a firm

01:37:28.780 that has, that it's a small firm, say 10 people, and all of the people in it happen to be Caucasian,

01:37:35.600 just for the sake of argument. So that'll mean that you'll be mandated to hire by race for the

01:37:40.200 next while. Well, you're systemic, you're just, you're, it's a systemically discriminatory

01:37:45.280 organization, I think. Okay, so let's say that you are mandated to do that. How is that legal?

01:37:50.620 How is that possibly legal to be mandated to hire by race? Only by virtue of the mandate that the

01:37:58.420 law society has from the government to regulate the legal profession. I mean, that's what it has

01:38:04.140 to rest on. If you read the statutory mandate of the law society, it would seem to fall outside the

01:38:13.320 marching orders that the law society has, at least as it is presently worded. Perhaps I can read you

01:38:18.160 that. This is section 41 of the Law Society Act. Sorry, let me read first section 4.1. This is

01:38:27.200 the function of the law society is to ensure that all persons who practice law in Ontario or provide

01:38:34.280 legal services in Ontario meet standards of learning, professional competence, and professional

01:38:40.100 conduct that are appropriate for the legal services they provide. So unless you can fit this into the

01:38:46.380 phrase professional conduct, then under this section there is no mandate to do these kinds of

01:38:53.020 things. I was going to read section 41, which lists the standards of professional competence that the law

01:38:59.980 society is supposed to ensure. And section 41 says, a licensee fails to meet standards of professional

01:39:07.200 competence for the purpose of this act if, and there are a number of things listed, but the ones that are

01:39:13.100 relevant here are, A, if there are deficiencies in the licensee's knowledge, skill, or judgment, or the

01:39:22.540 licensee's attention to the interests of clients. And those are the only two bits of that section that apply to this

01:39:28.580 question, and they don't apply. They don't describe the nature of these obligations that are being contemplated.

01:39:35.220 Okay, so if I was, if I was applying for a job at a law firm, that was compelled by this mandate to

01:39:42.480 diverse itself, diversify itself racially, and I was a qualified candidate, and I got wind of the fact that

01:39:49.360 that that requirement had been put in place, couldn't I go after the firm for discrimination, because they

01:39:54.780 made race one of the basis of hiring, that they were compelled to make race one of the basis of hiring?

01:40:00.340 The Human Rights Code and the Charter of Rights and Freedoms allow for certain forms of discrimination,

01:40:05.180 when it's, when it's for the purposes of an ameliorative exercise. For instance, if there is

01:40:13.500 systemic discrimination identified, the Charter will permit discrimination against a group in order

01:40:19.440 to remedy what may be perceived as a systemic discrimination issue. This, I mean, specifically

01:40:25.140 addresses and exempts affirmative action type programs as being found to be discriminatory. It allows them,

01:40:31.880 it permits them. So the answer would be, yes, you could raise that. But the, but the law firm and the law

01:40:38.840 society, if they, they would have to then bring forward evidence that this is part of a, you know,

01:40:44.340 an affirmative action type program that is exempted, and you're allowed to discriminate on that basis.

01:40:49.660 Can we for a moment just turn to one of the justifications that have been given for this

01:40:58.420 whole slate of recommendations, this whole program, which is that your, your membership in the law

01:41:06.700 society is a voluntary thing. You don't have to belong to the law society. This is not the state

01:41:12.500 coming down and requiring all its citizens to do a certain thing. You have chosen to be a member of

01:41:17.820 the law society. And therefore you must take these obligations on voluntarily, which of course is,

01:41:23.700 is a ridiculous thing to say because the law society takes its mandate from the government.

01:41:30.040 The government has, has given the law society the job of being the gatekeeper, um, of, of the,

01:41:36.420 of the rights to practice law. And if you are to practice law in this province, you, you must be a

01:41:42.200 member, and you must adhere to the rules of conduct that they, that they require of you. To, so, to, to, to

01:41:48.080 suggest that, that your, that your, uh, your engagement with the law society is something that you do, uh,

01:41:57.080 voluntarily just because you wish to do so, and that makes it a voluntary organization is, is, is inane.

01:42:04.080 Right. So the voluntary aspect is that you can give up your hard won livelihood if you don't want to,

01:42:09.940 uh, be subject to these rules. Yes. So I suppose you could make a case that that's voluntary, but I mean,

01:42:16.680 it's, it's certainly the case that it stretches that it certainly stretches the definition of what

01:42:23.100 normal people would consider voluntary. Well, it, it, it, it turns, it turns the idea that you, uh, you would

01:42:31.380 have a, you would have a, a right to practice in any profession if you have the proper, uh, skill and

01:42:39.180 training and competence to do so. Uh, that question is, is up for grabs now because they're essentially

01:42:46.960 saying, well, actually what you also have to do is go along with our vision of the way things are

01:42:52.980 supposed to be and the way you're supposed to think. And if you don't choose to go along with that

01:42:57.620 way, well, then you're free to go off and do something else. Right. And what are those values,

01:43:01.120 migrate over time? So it is right now, you know, these, these values that we're looking at in the

01:43:05.780 statement of the principles here, but what if they migrate over time, what could they become,

01:43:10.100 you know? And I think it sets a precedent that, that we might want to push back against.

01:43:14.480 Well, it, it, it, it's worrisome because the, the values are very ill-defined. And so an ill-defined

01:43:22.340 book, like a box that could contain anything ends up containing a very strange number of things. And,

01:43:27.660 you know, Bruce pointed that out very clearly when he talked about his inability to understand what

01:43:33.040 constitutes inclusivity. It's like, okay, so let's say that we could, we could define equality and

01:43:39.860 diversity if we were willing to even using racial and gender categories, which I think is an unbelievably

01:43:45.700 catastrophic error, but okay, inclusivity. Well, if that's definition less, then it's a place to put any

01:43:55.920 other requirements that might come along. I don't, and I really can't say what, what does inclusivity

01:44:00.760 mean? Is that more like the non-verbal behavior that you might manifest, you know, or, or, or is it,

01:44:07.300 does it refer to more subtle interactions within the firm? That's kind of what it sounds like.

01:44:12.380 I don't know.

01:44:15.700 So yeah, so at least it might be worthwhile trying to find out what they mean by inclusivity.

01:44:20.740 If they really want to be inclusive, they would get rid of the bar admission exams.

01:44:25.240 They would get rid of the law school underlying requirements. I mean, that, that's essentially

01:44:30.700 makes your organization inclusive, doesn't it? When you get rid of the barriers.

01:44:34.460 Well, my suspicions too, is that if you went and analyzed the, the success rate at, with regards to

01:44:40.580 the bar exam, that you'd find that it produced systemic discrimination as well, because the

01:44:46.720 probability that a, that an objective test produces exactly the same results across all conceivable

01:44:53.800 groups is zero. So, and you know, you see this sort of thing happening in the United States

01:44:59.380 already where competency requirements produce group differences, especially if you analyze

01:45:05.120 enough group differences. And so what happens then is the competency requirements are gerrymandered

01:45:09.960 to eliminate the group differences. So, and that's all part of an assault, I would say,

01:45:15.240 on the idea of objective competence. So, are there, are there more, are there more statements

01:45:24.840 that are worth analyzing?

01:45:26.620 Let's just have a look here. I mean, there's a, there's a whole, a whole roster of them,

01:45:31.540 but I think those are the ones that are most pressing.

01:45:35.200 Well, well, I thought there was an interesting one. It was, it was recommendation 12 sub four.

01:45:42.160 They want, they want to create a specialized and trained team to address complaints of

01:45:46.360 discrimination. Now, I mean, I don't argue that having discrimination in any act of discrimination

01:45:52.360 that is, you know, contravention of human rights legislation should be stamped out. It should

01:45:57.480 be, it should be identified and dealt with. But my understanding is that we've got bodies that

01:46:04.180 are responsible for that already, not only the superior court, but also the, the human rights

01:46:09.320 tribunals. So I wonder what that, I mean, I read that and I say that that's a SWAT team. There's a

01:46:15.100 SWAT team that's going to swoop in on the non-compliant systemically discriminatory organizations

01:46:20.560 and, and sort them out. That, that concerns me to some extent, particularly, like I said,

01:46:25.140 because we have this, we have these bodies already in place that are supposed to deal with

01:46:29.220 these types of things.

01:46:29.780 And they're duplicate bodies. So you have the classic court system, plus the Ontario, plus the

01:46:34.120 human rights tribunals, which already have their own problems.

01:46:38.140 The word in that recommendation that causes me real concern is the word address. This,

01:46:43.960 this team will address complaints of discrimination. Now, that doesn't say whether or not they are the

01:46:49.900 investigator, or whether they are the adjudicator, or whether or not they are a combination of the

01:46:55.440 two, whether or not they are judge, jury, and executioner, all rolled into one. I would be much

01:47:00.020 more comfortable if they were procedurally precise to say exactly what the function of this so-called

01:47:05.180 team was supposed to be.

01:47:07.020 But what's, I mean, what's it for? We've got a human rights commission that can come into any

01:47:10.460 organization or workplace in Ontario without a warrant and do this, whatever it is, these,

01:47:16.340 this, this group wants to do. So I, I question creating another layer of bureaucracy, but.

01:47:21.000 Well, I agree. I agree. But what, I mean, what, one of the needs for this might be because of the point

01:47:26.820 that we made earlier, which is that the requirements that the law society is now creating are, are not

01:47:32.640 the same as they are under the human rights code, right? So the human rights commission and tribunal

01:47:39.580 might not have jurisdiction because that's not what the act says. And if, if these do create extra and

01:47:46.280 additional requirements that are not now, don't now apply to lawyers, then you do need an extra

01:47:53.940 bureaucracy to, to enforce them because nobody else has the jurisdiction to do so.

01:47:58.720 Right. And then you can presume, I think, without any fear of error that the people who would

01:48:04.480 constitute such a team would be the ones who would be most zealously in favor of precisely this kind of

01:48:11.720 progressive, let's call it.

01:48:14.140 You would expect.

01:48:15.120 Oh, yes, definitely. That, that's how it works.

01:48:17.540 Well, well, if they're in favor of compelled speech and think that that's justified, then I would

01:48:22.880 question what other fundamental rights and freedoms they, they might deign to stamp, stamp upon.

01:48:30.180 All right. So maybe we should move from this. One of the things we discussed was perhaps

01:48:35.120 asking for more public involvement in our campaign, let's say. And so I believe that we're going to

01:48:43.300 provide contact information for the benchers. Is that correct? And, and ask members of the public

01:48:49.380 to listen very carefully to the discussions that we've had and to indicate to the benchers their

01:48:55.500 concern about this in terms of its relationship to the broader public, potential relationship to

01:49:02.620 the broader public. Is that?

01:49:04.500 The law society is, is mandate is to, is to govern the profession, but within the, I guess,

01:49:10.360 the best interest of the public to protect the public. And so the public very much is a stakeholder

01:49:14.800 in what's happening right now within the legal industry and the law society. And so absolutely,

01:49:20.160 I would encourage the public to, to make any concerns that they may have known and write to

01:49:25.260 the people that make these decisions and let them know their thoughts, because this is, this is

01:49:30.840 something like, this is a public trust to this industry to some extent. And so the public very

01:49:35.640 much has, it should be vested in what's happening. Yeah. Well, it's a fundamental public trust because

01:49:41.100 it, it deals with the, the underlying structure of the legal system. And so it, this is partly why

01:49:47.280 this is so worrisome to me, because I know perfectly well that if, if the lawyers fold on this and the law

01:49:54.640 society succeeds in, in pushing forward these requirements and then, and then enforcing them

01:50:00.340 across time that every professional organization in Canada is going to follow suit. And after that,

01:50:05.200 well, once the professional organizations follow suit, then there's no, there's no reason to assume

01:50:10.740 that this isn't going to spread more widely. Yes. So the, the, the, the, the main justification

01:50:17.680 underlying all of this, but the law society is relying on is the public interest. So if, if the public

01:50:26.760 doesn't think this reflects their interest, they had better say so.

01:50:34.300 And the licensees, obviously, uh, anything they can do to reach out, I think is, uh, is of some

01:50:39.840 assistance. I think the current motion that's before the law society is to a great extent to

01:50:44.440 by-product of that groundswell of support or, or opposition, I guess you'd say, um, from lawyers

01:50:50.120 and paralegals. And if they can direct those efforts and, and continue them, I think, um, it can be of

01:50:55.700 some assistance. All right. So we've broadened the, the scope of what we regard as worthy of

01:51:05.300 opposition, partly because the attempts, let's say so far to ameliorate the worst elements of the

01:51:14.140 policies that are being promoted are insufficient for the task. And even if they were put into place,

01:51:20.020 like the motion that you described, it would be, uh, a victory at 10% or something like that,

01:51:26.400 and, and not, not move the underlying, uh, pathological principles in my estimation far

01:51:33.660 enough. It's something like that. It wouldn't eradicate the threat that we've been trying to

01:51:37.260 warn people about.

01:51:38.980 Correct. That, that, that's right. There, there is no immediate prospect right now of, of getting

01:51:47.020 rid of the forced speech element of this policy and the other elements, uh, are consistent with

01:51:53.540 that, that requirement and are being carried along. And, and although only three of these

01:51:59.720 recommendations are being put in place immediately, the rest will follow in due course. And there's no

01:52:04.720 reason to think that they won't be done aggressively and, uh, and with force.

01:52:08.220 All right. Well, I guess, do you guys have anything else to say? I mean, maybe thank you to the people

01:52:19.180 who've already been paying attention and let's, let's just thank the people who have gone ahead

01:52:25.760 already and, and contacted their ventures, contacted the law society to, to register their

01:52:32.080 objection, to ask questions. A lot of people have done very good things, uh, and, and are

01:52:38.020 thinking well about this. They, they're thinking intelligently. They're thinking broadly. They,

01:52:43.660 they, my, my hat's off to them. There, there are a great number of people who, who are very

01:52:50.620 clear about this and some are reticent to make too much of a fuss. Uh, some are quite happy

01:52:57.760 to say what they think. And I respect both of those positions. Um, but, but I guess the

01:53:02.880 message overall is there are a great many people who think this and the, the, the, the, the worst

01:53:09.000 outcome would be that nobody acts upon what they think. And this just sort of happens without us

01:53:14.580 noticing.

01:53:15.520 I've been heartened by, uh, by what I see to be singular acts of courage in the people that have,

01:53:20.500 um, taken action, written to the law society, and even just reaching out to, to my office and,

01:53:25.600 and to others. Um, it's not easy to do. And, and I, you know, I, I support and, and commend those

01:53:31.360 that are doing that. And people have written, people have written, uh, articles and, uh, and

01:53:37.000 blog posts. There are some really excellent pieces of work on this topic. And perhaps we could even,

01:53:42.460 uh, refer, um, you know, make, uh, provide links to some of those, uh, sources, but, but, uh, they're

01:53:48.880 really worth, uh, re, uh, reading. They're very well done, very thoughtful pieces, and they have a ring

01:53:54.200 of truth to them. From all over too. They're from outside. I've seen some things from outside the

01:53:58.400 jurisdiction, Alberta. I think New Zealand. There's a great, there's a great blog by a professor, uh,

01:54:03.880 University of Auckland in New Zealand who's written on this. It's, it's, it's well worth a read.

01:54:08.140 Yeah, well, these things do have international significance because my observation has been that

01:54:12.780 if one major jurisdiction or organization in the West moves forward in this hypothetically

01:54:20.380 progressive direction, the probability that it will spread because of rapid electronic

01:54:26.100 communication and pretty decent organization on the part of the people who do push these

01:54:30.400 things forward, that it, that it emerges everywhere with extraordinarily, extraordinary rapidity.

01:54:38.620 So anyone who shares the basic axioms of our legal system is, is involved in this, whether

01:54:45.000 they like it or not.

01:54:47.520 Right.

01:54:48.040 All right.

01:54:51.440 Well, I guess we'll see what happens.

01:55:18.040 We'll see you next time.

01:55:21.660 See you next time.

01:55:23.240 Bye.

The Jordan B. Peterson Podcast - November 03, 2017

Compelled Speech - Law Society of Ontario

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