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The Fate of the LSO Inclusion Index
The Inclusion Index is the latest causality in a war over equity in the LSO
HARRY MYLES (3L) WITH ASSISTANCE FROM ALYSSA WONG (2L)
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On June 28, 2022, the Law Society of Ontario (LSO) Convocation (a monthly meeting of LSO benchers) approved a motion not to release the Inclusion Index (“the Index”), an initiative meant to chart equality, diversity, and inclusion (EDI) progress in the legal profession. Ultra Vires (UV) investigated why the Index was not released and, in the process, discovered a far more significant rift within the LSO about the future of equity and how to address systemic racism within the profession.
The Index was developed in 2019 following Recommendation 6 of the Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Profession report. The purpose of the Index was to measure the LSO’s progress in breaking down barriers faced by racialized lawyers and paralegals. Many firms capitalize on EDI branding; however, currently, there is limited regulation and accountability of equity within the profession. The Index would thus provide a measure of transparency and accountability.
After the June 28 decision not to release the Index, UV received an email from two licensees questioning the Convocation’s decision. UV proceeded to investigate the issue over the next four months.
Under Recommendation 6, the LSO would develop and publish an Index every four years based on questionnaires answered by licensed individuals in workplaces of at least 25 licensees. To create the first Index, the LSO collected licensee information in the 2018 Annual Report about self-identity (based on race, ethnicity, gender, sexuality, etc.), experiences related to inclusion, respect, and safety in the workplace, along with workplace EDI policies/programs.
Using a series of metrics, workplaces would be given a diversity score (based on demographics), a commitment score (based on EDI programming), and an inclusion score (based on the workplace culture/environment). Workplaces would then be given an overall ranking and the label of superstar, accidental superstar, inclusive, diverse, accidentally inclusive, accidentally diverse, commitment only, and needs improvement.
To uncover what happened with the Index, UV first considered a Freedom of Information request to the LSO. Unfortunately, after speaking with several people knowledgeable in access to information law, UV concluded the LSO would likely not be a covered “institution” under the Freedom of Information and Protection of Privacy Act. This in itself raises questions regarding the accountability of LSO decision-making. As a result, Alyssa Wong (2L) and I proceeded to read through the public minutes and transcripts of the LSO Convocations from 2019, 2020, 2021, and 2022. Several records were only available upon request, but the LSO did not respond to UV’s inquiry.
Little was mentioned about the Index in the available materials until the May 26 and June 28 Convocations. Prior to the June meeting, the Index faced staunch criticism. In the May 26 Convocation, Bencher Murray Klippenstein claimed that the Index sought to “enforce a system of de facto race and gender quotas” such that legal professionals “would be hired, promoted and appointed, not based on their competence, their smarts, their skills, their hard work and their contribution, but, instead, based on the skin colour, facial features and sex chromosomes that they were born with.” This statement seems to imply that hiring, promotion, and appointments are currently meritocratic. Bencher Klippenstein also noted the Index was based on an ideology of “wacky wokeism.” Klippenstein later issued a statement of claim on June 17, 2022 with himself as the plaintiff and the LSO as the defendant to access the Index. Klippenstein alleged the conclusions were invalid due to improper data collection.
During the June 28 meeting, the benchers debated the recommendation by the Equity and Indigenous Affairs Committee (EIAC)— the body responsible for the Index—to not release the report. At the meeting, Dianne Corbiere, the Chair of the EIAC, explained that a confidential peer review of the Index found it was not transparent enough, and the methodology was flawed. Furthermore, the Index was an outdated reflection of EDI progress in the profession since it was based on data collected in 2018.
UV obtained the EIAC report on the Index presented to the June Convocation. The report explained the onset of the pandemic in March 2020 impacted progress on the Index, which prompted the peer review by Michael Ornstein, Sujitha Ratnasingham, and Scot Wortley. The peer reviewers presented their findings to the EIAC in May 2022, with the relevant conclusions presented to the Convocation in June. Unfortunately, UV could not obtain the May 2022 findings as all committee materials and minutes are confidential.
During the June 28 Convocation, several Benchers argued for a total abandonment of the Index. Bencher Sam Goldstein called the Index a “race audit” that would divide the profession into “people who are white and people who are not white.” Bencher Michael Lesage felt the index would be a “naming and shaming” of firms and essentially become a form of advertising for the firms that ranked highest, which Bencher Lesage thought would likely be some of the largest firms in the province. Finally, Bencher D. Jared Brown stated: “let's release this turd to the public. Let's show them what you guys have been working on. That's transparent.”
Bencher Julian Falconer noted that the above criticisms (from Benchers Goldstein and Brown) came from the slate that campaigned against the statement of principles (SOP) in 2019, another equity initiative proposed by the LSO. In the SOP, licensees would have acknowledged existing human rights obligations (i.e., to not discriminate in practice) and reflected upon how such duties were relevant to one’s practice. The StopSOP slate (now FullStop) subsequently mobilized to repeal the SOP, claiming it amounted to compelled speech. In the June 2022 meeting, Bencher Falconer noted that the slate consistently campaigned against equity initiatives without providing positive suggestions or alternatives. In the end, a majority of 40 benchers voted in favour of not releasing the Index.
While it appears as though the Index was not released due to stale results and flawed collection, the actual data is still unknown. This fact raises questions by some in the profession about transparency and whether the Index data should still be released as a demonstration of commitment to racial justice. Furthermore, questions remain as to the timeframe from the LSO to address these lingering issues.
More broadly, however, it is clear the Inclusion Index was caught in the crossfire between warring factions of the LSO. Those, like members of the StopSOP slate, oppose equity initiatives of many kinds due to “wacky wokeism,” “stifling” political correctness, and a perceived culture war. In September 2022, John F. Fagan—a StopSOP slate member—penned an article celebrating the June demise of the Inclusion Index, claiming the actual “fastest and proper way to conquer any residual racism in the Ontario legal or paralegal professions” is to “confront [...] individual instances of provable discrimination based on ethnicity [...] by the traditional methods of accusation, proof, due judicial or quasi-judicial findings, and enforced due consequences for proven discriminators.”
Those in opposition to these licensees, such as Professor Joshua Sealy-Harrington, claim lawyers like Murray Klippenstein think the legal profession is “post-racial” and fail to accept the fact that systemic racism is still alive and well. As demonstrated by John Fagan’s article, some feel that “residual racism” is best fought via the tried and true methods of the law, relying on the belief that the legal system can effectively address social ills. However, as law students and lawyers know, the wheels of justice move far too slowly, and our legal system is likewise founded on white supremacist settler colonialism. Moreover, the Inclusion Index sought to address systemic racism within the profession (like subtle structural barriers in practice), whereas the method proposed in Fagan’s article addresses individual, intentional discrimination. As a result, other methods, like equity initiatives, are required.
It appears as if the LSO is caught in the middle of a staunch tug-of-war, preventing it from addressing systemic racism and other equity concerns. Will one side have to emerge victorious for meaningful action to occur? Or can a compromise be reached? Only time will tell.
Food Insecurity Amongst Professional Students and Graduate Students
A call for U of T to help mitigate food insecurity on campus
VIVIENNE STERN (2L)
Food insecurity, defined by University of Toronto researchers as the “inadequate or insecure access to food due to financial constraints,” affects 15.95 percent of households across Canada and 40 percent of Canadian post-secondary students. Although country-wide food insecurity rates have remained steady for the past three years, it is increasingly a problem for low income, BIPOC, international, and professional and graduate students at U of T —especially in light of the COVID-19 pandemic.
Food insecurity can manifest in a multitude of ways, from the quality of the food being consumed, to the quantity. Students in particular are known to budget less money for food in comparison to “non-negotiable” costs such as rent and tuition, which can lead to an increase of fast food or less nutritious food in their diets. These types of changes in dietary patterns can negatively affect one's health, possibly causing heart disease or high blood pressure in the future. However, students cannot be blamed for making such food choices when backed into a corner due to food insecurity. Furthermore, considering the recent rise in grocery store prices (especially in the produce and frozen food aisles), food insecurity is particularly a cause for concern. The question is, what can be done to lessen the impact of food insecurity in the short and long-term?
Food banks are one of the quickest ways to mitigate food insecurity in the short-term. The University of Toronto Students’ Union (UTSU) began the UTSU Food Bank in 2001 to help address food insecurity among students. After the UTSU Food Bank was shut down due to the pandemic, the U of T Emergency Food Bank was created. The Emergency Food Bank provided students with weekly food box deliveries and giftcards for groceries. Since creation, it has delivered over 6,650 food boxes and gift-cards to 600 student households. However, the U of T Emergency Food Bank has “temporarily run out of funds” and stopped its programming for the time being.
In the long term, data on the demographics of people accessing food banks on campus, which is currently scarce, is necessary in order to tackle the root problem. The Varsity recently published an article about the benefits of recording such data, highlighting the need to make informed decisions on how to upgrade food bank services and tying the issue “to large societal inequalities.” Another avenue to help tackle food insecurity is by developing partnerships with community organizations to help fund and support food security initiatives. As of today, the U of T Emergency Food Bank has formed more than 15 solidary partnerships. Further, one of the ultimate goals is to de-stigmatize food insecurity on campus, coupled with a change in mindset about how food services should be prioritized. The UTSU recommends that U of T look at food services as “a fundamental right” rather than an “ancillary service”.
The systemic and complex nature of poverty necessitates a reconstruction of services for students, and the current system does not provide enough support to vulnerable communities. With a “chronic lack of sleep coupled with microwavable noodles” being known as the characteristic student experience, food insecurity is perpetually romanticized. Further, many food banks and other food-related services are encumbered by administrative barriers.
U of T, and universities generally, takes pride in delivering education to the next generation. This includes providing an environment where students can excel, which necessarily includes addressing student food security. Although services for physical and mental well-being have improved in recent years, there is clearly a long way to go. With the holiday season coming up and as temperatures continue to drop, take a moment and help in any way you can—whether it is through volunteering your time during winter break, donating to your local food bank or community fridge, or using your voice to push incentives to aid food security on campus.
RIGHTS REVIEW
2022–23 Rights Review Editorial Board Co-Editors-in-Chief: Martha Côté (3L) and Julianne Schmidt (2L) Senior Editors: Duncan Crabtree (2L) and Ally Mastantuono (2L) Junior Editors: Fatima Aamir (2L), Hannah Beltran (1L), and Vidit Desai (1L) Online Editor: Jason Quinn (1L)
By Fatima Aamir (2L)
PEOPLE FORCED TO FLEE: HISTORY, CHANGE AND CHALLENGE BY NINETTE KELLEY. CREDIT: OXFORD UNIVERSITY PRESS On October 28, 2022, the International Human Rights Program (IHRP) and David Asper Centre for Constitutional Rights co-hosted a book forum on Ninette Kelley’s People Forced to Flee: History, Change and Challenge (“People Forced to Flee”) (Oxford University Press, 2022). In the introduction to the event, University of Toronto Law Professor Rebecca Cook explained this event was co-hosted by the IHRP and Asper Centre to explore displacement not just as an international law problem, but to consider the domestic “scaffolding” required for durable solutions.
History of Asylum
Kelley brought important expertise to this book, having served in senior management positions at the United Nations High Commission for Refugees (UNHCR) in addition to Canada’s own Immigration and Refugee Board (IRB). She began the event by delving into the history of asylum, noting that prior to the mid-20th century, asylum occurred in an ad hoc and partial manner, and was often offered on the basis of shared identity or on whether refugees could benefit their host country. As a result, the 1951 United Nations Convention Relating to the Status of Refugees (“the Convention”) was conceived as a global framework aimed at providing the broadest protection for refugees. However, Kelley pointed out that there are gaps between countries’ commitment to the Convention and refugee protection. Importantly, People Forced to Flee does not only examine the traditional legal category of refugees, but also internally displaced people who face similar barriers to integration, such as government neglect and discrimination.
Rethinking Local Integration
Refugees face a host of barriers to integration, including a lack of education and employment opportunities—in addition to poor access to healthcare and social services. People Forced to Flee documents how the sheer scale of international displacement during the Syrian refugee crisis forced many host countries to reckon with these issues. Kelley analyzes this event as a major catalyst for change, providing the impetus for development agencies to become more involved in local integration efforts. Over the long term, humanitarian assistance has gone towards the improvement of institutions, providing more sustained relief for refugees in comparison to mere emergency relief. Yet, it is not always clear to host countries whether a political crisis that produces refugees will be permanent. During the Q & A of the event, Kelley acknowledged this, citing crises such as the Israel-Palestine conflict. This uncertainty affects host countries’ ability and political will to plan for long-term
integration. Nonetheless, increased humanitarian assistance as well as a greater role of the private sector in some cases, improves the capacity of countries to host refugees over the long-term. In addition, Kelley noted that recent improvements in data collection have placed the UNHCR in a better position to understand the socio-economic vulnerabilities of displaced communities, which is critical in crafting future policy to meet their needs. Nonetheless, Kelley was careful not to paint an overly rosy picture. She pointed out that while there has been an overall positive trajectory, international responsibility-sharing for supporting refugees remains uneven, citing lack of political will as a critical factor. Further, while humanitarian assistance has improved outcomes for refugees, it is insufficient to address the root causes of their displacement and provide durable solutions. Fen Hampson, a panelist at the event and President of the World Refugee and Migration Council, pointed out the increased frequency and scale of forced displacement due to worsening crises like climate change. He noted Canada’s immigration backlog of nearly two million people and that provinces seem to lack the resources to accommodate newcomers—with many in big cities like Toronto ending up in homeless shelters. In the face of ongoing challenges to the integration of displaced peoples, Kelley emphasized the need for long-term, effective solutions tailored to local contexts, recognizing that these are more sustainable when they benefit both forcibly displaced persons and their host countries. The panelists at the event added to Kelley’s insights with their diverse perspectives on what such integration might look like. Professor Yin-Yuan Chen, a trained social worker and IHRP and Asper Centre alumnus, brought a socio-legal perspective in his critical examination of the health inequities experienced by non-citizens. He pointed out that parallel health systems are unsustainable over time, especially as the health needs of refugees generally converge with those of the local population. In addition, most refugees live among local communities, rather than inside camps. To work towards greater integration, however, he questioned whether integration of healthcare delivery is sufficient, instead suggesting we may need greater integration of healthcare financing. He explained that refugees, asylum-seekers and trafficked individuals might be integrated into the healthcare system, but their source of healthcare coverage is federal funding through the Interim Federal Health Program (IFHP), rather than through provincial or territorial funding, as it is for other residents of Canada. Chen has often criticized this dichotomy for posing serious barriers to healthcare for forcibly displaced peoples, including having service providers turn away IFHP beneficiaries, or charging them additional fees at the point of healthcare delivery. Fen Hampson added that socio-economic institutions have a unique role to play in promoting integration that benefits both displaced persons and their host country. He recommended that the private sector provide better access to capital and credit for displaced persons to better enable them to become successful entrepreneurs, and that universities address their barriers to access. Ghizaal Haress, another panelist, visiting scholar, and scholar-at-risk at the University of Toronto Faculty of Law and Munk School of Global Affairs and Public Policy, added that refugees themselves must be involved in the process of designing these solutions to better address their needs and to empower them with a sense of ownership over their own lives. Haress explained that refugees do not just leave behind danger and violence when they flee their homes, but also tightly knit social networks, their cultural connections, and their property and assets. The participation of refugees in designing solutions is thus important to better account for the unique hardships they experience and the deleterious impact to their mental health as a result of displacement, including from trauma, losing their sense of place and belonging, and experiencing ongoing identity crises in their new homes.
Limits to International Burden-Sharing: Canada as an Example
Following Kelley’s recognition of the uneven burden-sharing of refugee protection worldwide, Erin Simpson, another panelist and a practicing refugee lawyer in Toronto, discussed the ways wealthy countries like Canada erect legal barriers for asylum-seekers. Specifically, she focused on Canada’s ineligibility, inadmissibility, and cessation provisions in the Immigration and Refugee Protection Act (IRPA). Ineligibility concerns a refugee claimant's ability to have the IRB hear their claim in the first place. Simpson explained how the U.S.-Canada Safe Third Country Agreement (STCA)—a policy she and other lawyers argued was unconstitutional at a recent Supreme Court hearing—renders refugees ineligible to claim if they arrive in Canada through the U.S., as Canada considers the U.S. to be a “safe third country.” Examples of how this eligibility provision keeps refugees out of Canada are the cases of women seeking protection from gender-based violence who arrive at the Canada-U.S. border. Under the STCA, these women are ineligible to seek refugee protection in Canada as the U.S. is considered a “safe” country. However, the U.S. arguably does not protect these women, as it interprets the Convention narrowly and fails to see gender-based persecution as a ground for refugee protection, while Canada does. Canada finding these women “ineligible” effectively precludes them from accessing protection altogether. During the Q & A, Simpson delved further into the recent constitutional challenge launched against the STCA at the Supreme Court. The case was put together over the course of nearly six years, with an evidentiary record of over 30,000 pages from individuals who were returned to the U.S. under the STCA and put in jail for seeking Canada’s protection. While the Federal Court had acknowledged how these returns violated individuals’ s. 7 rights under the Canadian Charter of Rights and Freedoms (the Charter), the Federal Court of Appeal’s response was rather abhorrent, as it stated that psychological suffering to the Applicants was not relevant to the s. 7 analysis because they were refugees and were already suffering. Receiving leave to appeal the Federal Court of Appeal’s decision thus felt like a monumental moment. Simpson explained that the outcome of this Supreme Court decision will affect whether, how often, and in what ways refugee advocates will use s. 7 arguments in future cases.
The IRPA’s inadmissibility provisions similarly pose a barrier for refugees seeking protection in Canada as they seek to exclude individuals deemed to be a threat to Canadian security. Panelist Fen Hampson noted later in the event that security tends to overshadow humanitarian concerns as Canada’s government agencies struggle to find a “balance” among their competing duties to offer refugee protection and “protect” Canada from international threats. However, Simpson pointed out that these inadmissibility provisions can be broad in their reach and risk going far beyond “protection.” For instance, though these provisions target individuals who have had “membership” in any organization deemed to be a terrorist group, “membership” is defined broadly to include anybody associated with the group, regardless of how minor of a role they might have played, or whether they had any say in its operations at all. Cessation is another mechanism by which Canada regulates and restricts access to refugee protection. It involves revoking an individual’s refugee status if they are seen to re-avail themselves of the protection of their country of origin. If a refugee is a permanent resident (PR), the consequences of cessation become even more severe, as it results in the automatic loss of their PR status, regardless of how many years they had been living in Canada. Simpson gave examples of reasons for which individuals have had their refugee status terminated, including for obtaining a national passport or returning to their home country to see a dying parent. In addition to these severe provisions, Simpson noted that the Canadian legal system can also create barriers for refugees through narrow interpretation of the law, narrow interpretation of the Charter, and the administrative leeway given to Immigration, Refugees and Citizenship Canada and Canada Border Services Agency officers tasked with the administration of the IRPA.
NINETTE KELLEY WITH A SYRIAN REFUGEE CHILD IN 2013. CREDIT: ALI HASHISHO/REUTERS VIA TORONTO STAR
Lack of Resources & Political Will: Way Forward?
At the conclusion of the event, panelist Hampson asked Kelley about what seems like a “dire financial situation for the UNHCR,” inviting her to speak more about resourcing and inquiring whether an assessed contribution framework for states— much like the way the UN conducts peacekeeping—might be useful. Kelley responded that in her experience, anything involving assessed contributions and the budget committee of the United Nations has proved to be a “political nightmare,” doubting that changing the way the UNHCR is financed is the most effective way to support forcibly displaced peoples going forward. Instead, she interrogated the role of the UNHCR in supporting long-term goals. Kelley argued that international agencies like the UN need to take a more critical look at when they might withdraw from certain situations altogether and instead transfer their responsibilities to local delivery organizations to support more sustainable and contextualized development approaches. The UNHCR, after all, is built for emergency operations, she explained—it lacks the capacity, time and necessary expertise to support long-term development goals. Kelley’s honesty might sound radical to some, but it reflects a refreshing look at the limits of our existing ways of supporting forcibly displaced peoples and opens up creative new possibilities.
Editor’s Note: The recording of the event is available on the Faculty of Law's YouTube channel. You can access a digital version of Ninette Kelley's book, People Forced to Flee: History, Change and Challenge (Oxford University Press, 2022) on the UNHCR website for free.
