Open letter to members of the Bar of Ontario from Paul Lepsoe calling for

suspension of the Law Societys requirement for a written

Statement of Principles

November 15, 2017

Dear friends and colleagues:

I am writing this letter to my fellow members of the Bar of Ontario concerning the Law
Societys new requirement for each member to prepare a written personal Statement of
Principles. I am calling for this requirement to be at least suspended at the last meeting of
the Benchers before year end, which will be held on December 1. This action is necessary
to allow more time for an informed discussion of the implications of this measure and
careful consideration of the most appropriate way of achieving the Law Societys objective
of addressing barriers to equality, diversity and inclusion within the legal profession.

The Law Societys requirement has been the subject of considerable comment and
controversy among lawyers and in the media. Particularly noteworthy is the article by
Arthur Cockfield, Professor of Law at Queens University, entitled Why Im ignoring the
Law Societys Orwellian dictate.1 Professor Cockfield is editor of the text Introduction to
Legal Ethics, and teaches ethics at the law school. I agree with Professor Cockfield.

I write this letter with a sense of urgency, although not because of the possible
consequences of the Law Societys requirement for my livelihood. Having been fit and
active throughout my life, I have recently been diagnosed with the same type of brain
cancer as U.S. Senator John McCain and the late Gord Downie. I am limited to engaging
on this issue only in writing because, unfortunately, the early course of the disease has
affected my speech and I am unable to speak at the level required to participate in detailed
oral debate and discussion.

Why, you might ask, am I spending my time and energy both of which may be in limited
supply on this issue? The answer is simply that I believe sincerely that the Law Societys
requirement opens the door to a significant undermining of the independence of the Bar.
It puts at risk something that is fundamental for the profession to which I have devoted
my career and, more importantly, that is of central importance to safeguarding the rights
of individuals in a free society.

The New Requirement

The Benchers approved the new requirement in principle at Convocation in December

2016, when they adopted the recommendations from the final report of the Challenges
Faced by Racialized Licensees Working Group, Working Together for Change: Strategies
1Contributed to The Globe and Mail, October 17, 2017.
https://beta.theglobeandmail.com/opinion/why-im-ignoring-the-law-societys-orwellian-
dictate/article36599997/?ref=http://www.theglobeandmail.com. See also the lead editorial in
The Globe and Mail on November 10, 2017: Prove that you think like us, or else.

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to Address Issues of Systemic Racism in the Legal Professions. The requirement is for
every licensee to adopt and to abide by a statement of principles acknowledging their
obligation to promote equality, diversity and inclusion generally, and in their behaviour
towards colleagues, employees, clients and the public [emphasis added]. It applies to all
licensees, including members of the Bar who have retired or are working outside of
Ontario.

While there were initially few details about this requirement, extensive material was
eventually prepared by Law Society staff and issued to the profession via email
announcement on September 13 and through material posted on the Law Societys web
site and a one-hour webinar at the end of October. The Law Society states that the new
regulatory obligation requires licensees to make a clear commitment to equality, diversity
and inclusion and that The intention of the statement of principles is to demonstrate a
personal valuing of equality, diversity and inclusion in your practice and in your legal
workplace [emphasis added].2

The Independence of the Bar

I am very concerned that this requirement puts the Law Society on a path that leads,
ultimately, to a significant erosion of the independence of the Bar. This essential
foundation of our legal system is directly threatened by a requirement that goes beyond
the accepted duty of lawyers to obey the law and comply with rules governing certain
aspects of their behaviour. The new and highly problematic aspects of this requirement
are the imposition of a positive obligation to promote certain state-prescribed principles
and its extension into the realm of prescribing and constraining thought and expression
by demanding that lawyers demonstrate personal commitment to, or valuing of, these
principles.

It is worth reminding ourselves that the independence of the Bar from the dictates of state
power has roots that go back to the very beginning of the Law Society. Christopher Moores
history of our professions governing body, spanning the years 1797-1997, makes this point
eloquently in relation to the central role of our nineteenth century predecessors in the
fight for responsible government and the reinforcement of the rule of law:

the independence of lawyers established by the founding of the Law Society

in 1797 was crucial to the political freedom of Baldwin and other reform-
minded lawyers. A call to the bar conferred an unusual degree of independence
from pressure by the Crowns representatives in Upper Canada. [emphasis
added].3

This issue remains a live one to this day, particularly in relation to the role of the regulator
in policing our profession. On November 6, just last week, Groia v. Law Society of Upper
2 See the Frequently Asked Questions on Equality, Diversity and Inclusion, posted on the Law
Society of Upper Canada web site: www.lsuc.on.ca.
3 Christopher Moore, The Law Society of Upper Canada and Ontarios Lawyers: 1797-1997

(Toronto: University of Toronto Press, 1997) p.77.

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Canada was argued at the Supreme Court of Canada. The issue is essentially how much
control the regulator should have to review and sanction the conduct of an individual
lawyer in representing a client. In the underlying case, no one had complained about Mr
Groias conduct: not the counsel prosecuting Mr Groias client, not the judge, not Mr
Groias client (who had been acquitted in any event). Rather, the subsequent Law Society
proceeding against Mr Groia was initiated by the Law Society itself. It appears that a Law
Society staffer saw something about the case in the media, and on that basis the
proceeding against Mr Groia began. Eventually, the Law Society panel found against Mr
Groia and imposed the penalty of a suspension from practice.

At subsequent appeals and at the Supreme Court, the Law Society conceded that Mr Groia
had not acted dishonestly nor in bad faith. At the Supreme Court hearing last week, the
Court repeatedly asked counsel for the Law Society to explain why they alone had initiated
and pursued disciplinary action against Mr Groia when all would agree that while he may
at times, in a very long trial, have misstated a complex point of the law of evidence, he did
not do so deliberately. Despite being pressed to answer in the hearing, including by the
Chief Justice of Canada, the essence of the response by the Law Society counsel was that
at times Mr Groia had been rude to the prosecutor.

Independence from state control over thought and expression is of course essential to
lawyers ability to act freely and effectively on behalf of their clients. This perspective
reminds us that although the debate about the Law Societys new requirement has largely
been conducted among members of the Bar, this issue is really not about the lawyers;
rather, it concerns the fundamental right of each citizen to have a lawyer whose views are
truly independent of state control and whose personal values and political expression are
not subject to direction or review by state power.

A citizens right to an independent lawyer is very important. Clients may disclose to their
lawyers the most intimate aspects of their lives, including matters pertaining to their
marriages and relationships with children, finances, and other aspects of their personal
and professional activities. They may be asking their lawyers whether something they have
done might be a crime. Their future well-being and even their freedom may depend on the
ability of their lawyers to act fearlessly and forcefully on their behalf. And this relationship
is protected by confidentiality such that lawyers are bound never to reveal their clients
information to the government or anyone else without their clients permission (subject
of course to common sense exceptions such as the lawyer him or herself being part of a
criminal act of the client).

The importance of this independence and impartiality has been brought home to me as a
litigator. I have acted for many charities or entities seeking charitable status.4 In some
instances, my clients views or the nature of their activities were not shared or supported
by some government officials. In any event, as a Christian lawyer acting for these entities,

4For example, The Priory of Canada of the Most Venerable Order of St. John of Jerusalem [St. John Ambulance] v.
Canada (Minister of National Revenue), 2004 FCA 345; Earth Fund v. Canada (Minister of National Revenue), 2002
FCA 498; Canadian Magen David Adom for Israel v. Canada (Minister of National Revenue), 2002 FCA 323,
Rothstein, J.A. dissenting; Crichton Cultural Community Centre v. The School of Dance, [2004] O.J. No. 1536, 2004
CanLII 26717 (ON SC); The School of Dance v. Municipal Property Assessment Corporation and City of Ottawa
(Unreported, 2003)

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many of which were of different faith origins or completely secular, I felt that I was acting
in a way that was completely independent of whatever my own views, values and beliefs
may have been. This independence and impartiality would be jeopardized now that I am
apparently obliged to prepare and endorse a mandatory personal statement of principles.

So when citizens risk losing their right to an independent lawyer, they risk losing
something very important. Threatening that independence is so contrary to the role of a
lawyer in our system that I cannot accept a requirement that I report on a statement of
personal principles or values, regardless of whether I may in fact agree with much or
indeed all of the principles at issue at the time.

The Special Circumstances of Small Claims Court Judges

Further, I am concerned that Law Society staff may have overlooked the implications of
the new requirement for the one group of Ontario lawyers who are both lawyers and judges,
namely the approximately 350 lawyers who act on a part-time basis as judges in the Small
Claims branch of the Superior Court of Justice of Ontario. I happen to be one of these
lawyers. It is hardly glamorous work. For example, compared to the regular full-time
judiciary, our pay is modest and there is limited tenure. We remain lawyers subject to all
Law Society requirements. Yet, this arrangement has worked well for many decades.

Almost half of the civil claims in Superior Court are handled in the Small Claims branch.
In most cases, at least one side is self-represented. For a practicing lawyer the amounts at
stake might not seem like a lot of money, but for many litigants in Small Claims Court
these amounts may be all, or more than, they have. The objective is to revolve these
disputes fairly and as quickly as possible. Thus as judges we have a focus on mediation or
so-called settlement conferences to try to resolve these disputes and help litigants avoid
becoming mired in the legal system.

In this context, it is difficult to see how imposing a vague speech code on me as a lawyer
would help the public appearing before me as a judge to understand and accept my
impartiality in the context of this dual role. We are also judges with the power to impose
imprisonment for contempt of court. I had thought my role as judge is to try to do justice
between the parties on the basis of facts and the law, without the power of the state as
represented by the Law Society requiring me to create a statement of principles setting
out my personal commitment to specified values.

Additional Problems with Substance and Process

In addition to my primary concern with the threat to the independence of the Bar, there
are several other related problems with the Law Societys requirement. Other people have
also raised these concerns in their comments on this requirement.

The requirement is unclear and perhaps incoherent, as demonstrated by the ongoing

debate among many members of the Bar who have struggled to understand it. There is

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evidently considerable uncertainty and confusion about the meaning of key terms,
including elements of the obligation imposed on lawyers. For example, the legal opinion
commissioned by the Law Society states that We had difficulties interpreting the word
generally in the Recommendation.5 After offering several possible interpretations, the
opinion letter recommended that the Law Society clear up this ambiguity and added that
the authors conclusion that the present language is not inconsistent with the LSA [Law
Society Act] or the Code [Ontario Human Rights Code] was reached without necessarily
knowing the Law Societys exact intention here.6

The mandatory nature and possible sanctions associated with the requirement are also an
area of uncertainty. While phrased as a regulatory requirement, the consequences of
indicating non-compliance and providing a reason on the Annual Report appear to be
limited, at least for the time being, to a letter from the Law Society reminding the licensee
of the requirement and identifying resources to assist in drafting the Statement of
Principles. Another recommendation of the Challenges Faced by Racialized Licensees
Working Group that was adopted by Convocation speaks of progressive compliance
measures but no details are currently available. A failure to adhere to a Law Society
requirement ultimately makes the lawyer subject to disbarment, otherwise the
requirement is meaningless. It is unclear whether or not the Law Society anticipates that
this new requirement will eventually be backed by this sanction.

Finally, the details of this requirement were developed by Law Society staff and hastily
released late in the year without an opportunity for consultation with members of the Bar.
By way of comparison, consider the Law Societys approach to its recent proposal in
October to change its name. The Law Societys name has been the Law Society of Upper
Canada since its foundation 220 years ago in 1797. Upper Canada was of course the name
of what is now known as Ontario.

Shortly after the decision by the Benchers to seek the legislation needed to drop the words
Upper Canada from the name, Law Society staff emailed the profession an online survey
on possible alternative names that was due within four days (simply keeping the existing
name was not a choice offered). Over 17,000 licensees responded. On that basis the
Benchers voted in November to adopt a new name.

In contrast with this very limited engagement with the profession on the name change,
the Law Society did not inform lawyers about the details of the requirement for a
Statement of Principles until the September email, nor has it explained all that is entailed
in its use of state power in this way. There has been no formal mechanism to survey
opinion or solicit input or comments, beyond brief answers to questions offered at a one-
hour information session presented by webinar on October 30.

The significant concerns and confusion evident in the debate to date and the widely
different interpretations of the substance and implications of this requirement that have
5 Pinto Wray James LLP, Letter to the Law Society of Upper Canada Re: Opinion on Working
Groups Recommendations re Challenges Facing Racialized Licensees, November 16, 2016,
p.25.
6 Ibid, p.25.

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been advanced by members of the profession provide clear evidence of deficiencies in both
substance and process. At a minimum, there is an urgent need for the Law Society to step
back, suspend this requirement now, and allow time for detailed consideration of
important issues through a full and informed dialogue with members of the Bar.

My Personal Vantage Point: Values and Experience

Finally, I would like to place this letter within a more individual perspective. Regardless
of the analysis presented on an issue such as this, there is a risk that the debate may turn
to personal attacks on the basis of perceived biases or interests. There may also be
insinuations that those questioning the requirement are arguing from a position of
privilege that they seek to defend, or that they fail to recognize or understand the
challenges faced by those who confront obstacles to equality, diversity and inclusion.

I sincerely do hope that my profession will continue to remove barriers to equality,

diversity and inclusion. The concerns that I raise are not with these objectives, but with
the new requirement as a means to achieve them.

I have my own immigrant experience, since my father immigrated to Canada from what
was still early post war Norway less than three years before my birth. As a new immigrant,
my father also faced challenges of inclusion and the acceptance of diversity as he
integrated into Canadian society.

Our extended family has also had immigrant experience with Canada. Second cousins had
immigrated to British Columbia just before the Second World War. After war broke out
and Norway had been invaded, our cousin Robert Lepsoe joined the Royal Norwegian Air
Force, then in exile in Canada, and trained as a pilot in Muskoka, Ontario. He was sent to
Europe and became attached to the British Royal Air Force as a Spitfire pilot. Robert
Lepsoe was shot and killed in the air in an operation over occupied Holland in 1944. He
was 22 years old. This is how my cousins immigrant experience in Canada unfolded.

Fortunately, Robert Lepsoe is not forgotten. Some years ago, the B.C. government
introduced a program of naming geographic features in that province after those who had
given their lives for Canada. There is now a Mount Lepsoe near Trail, B.C., named after
our cousin Robert Lepsoe. I have yet to visit it, but I hope soon, with my children, to
honour him and his sacrifice.

Conclusion

The last meeting of the year of the governing body of the Law Society, the Benchers, is 0n
December 1. So there is still enough time to scrap or at least suspend this requirement
before it is implemented at the end of the year.

I call upon lawyers and members of the public who recognize the importance of a truly
independent Bar to urge the Benchers to take this step. We can then work together to

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reconsider how better to achieve the objective of moving towards greater equality,
diversity and inclusion while safeguarding the fundamental principle of the independence
of the profession to which I and many others have committed ourselves with passion and
dedication throughout our working lives.

Paul Lepsoe*
Barrister & Solicitor
Ottawa, Ontario

*I gratefully acknowledge the assistance of many in the preparation of this letter in my present
circumstances, including in particular my friend and former Queens housemate Steven Kennett,
BA(Hons)(Queens), MPhil(Oxford), LLB(Toronto), LLM(Queens). I remain entirely responsible for the positions
contained herein.