An earlier version of this opinion article first was published in the Law Times on May 29, 2017. Just before going to print, the Convocation of the Law Society of Upper Canada voted to jettison its 220-year use of “Upper Canada” from its name beginning in January 2018.
Back in 2015, Prime Minister Justin Trudeau was asked why he had decided to appoint women to half the positions in his new federal Liberal Cabinet. His response was pithy and searing: because it's 2015. Justin Trudeau's response was met with cheering and praise from pundits, political observers, academics and others. And of course he was right. It has been an unfortunate reality for 150 years in Canada that federal and provincial Cabinets have been dominated by male Euro-Canadians, and qualified women and ethnic MPs and MPPs have been overlooked by Prime Ministers and Premiers in their Cabinet-making processes. This has served to give the impression that successive federal and provincial cabinets in Canada for the past 150 years have resembled an elite old boys club more than governing Cabinets.
For decades, those of us who have come from away to live in Ontario have puzzled over a strange conundrum. Why isn't the Law Society serving the residents of Ontario called the Law Society of Ontario? Why does Ontario's Law Society cling to an arcane tradition of insisting its name must remain as the Law Society of Upper Canada (LSUC)?
It's 2017.
As a lawyer, I am required to pay membership fees to an organization whose title includes the name “Upper Canada.” However, the fact it is the regulatory body for lawyers who live in northern areas of the province that never were part of the territory of Upper Canada is truly bizarre.
I am not the only one who feels this way. In 2012, there was a thoughtful motion to the LSUC's May 2012 Annual General Meeting drafted by lawyer Tom Vincent and supported by 10 other signatories to update the law society's name to the “Ontario Law Society”.[i] I supported that motion and was quoted in media reports in The Globe and Mail and other outlets at the time as advocating the change.
As reported in media coverage, Vincent said in his brief AGM presentation that the LSUC's current name “doesn’t reflect who we are or where we are.” Another name change advocate, Toronto lawyer Omar Ha-Redeye, explained that “by having a name that doesn’t clearly embody Ontario or the services provided, the law society is not fully meeting its mandate.” [ii]
I first advocated that the LSUC change its name as a law student in 1986, writing in the Obiter Dicta, the provocative newspaper run by the students attending Osgoode Hall Law School. I also managed to engage Ontario Attorney General, Ian Scott, himself a former bencher, in a heated discussion of the issue when I started articling in the Ministry of Attorney General (in 1988. Scott was sympathetic but warned it would be an uphill battle. (And sure enough, he was dead right. ) Then in 1989, I raised the issue at the end of a short lecture on the Law Society's role in self-regulation of lawyers by then-LSUC Treasurer Allan Rock during the Bar Admission course. His response ridiculing me left me incredulous. But the fact that half my colleagues booed my comments left me wondering if they wanted to identify with an old boy and old girls club of sorts. When I ran for LSUC bencher in 2011, my published platform included a commitment to update the law society's name to the “Ontario Law Society.”
Back in 2012 the main two-pronged argument invoked by the LSUC benchers who support the current name was that the LSUC is the oldest law society in the Commonwealth and the name is a tradition. One widely quoted argument included the fact that as of May 2012 the Jesuits of the province, an elite group of Catholic priests, still had the “Upper Canada” in its name. However, within two years of the LSUC's debate the Jesuits had updated their name to the “Canadian Jesuits” and references to Upper Canada are pretty well scrubbed from their web site and social media.[iii]
Advocates of the LSUC's current name deny any possible confusion and cite the considerable financial costs (an estimated $1.5 million in 2012) that would be associated with changing its name: presumably requiring hiring social media experts to search “LSUC” and replace it with, for example, “Law Society of Ontario (LSO)” on its website, updating letterhead, and other Herculean tasks.
Ultimately, the motion to change the name was shot down by “an overwhelming majority” of the estimated 50 members of the LSUC, primarily governing Benchers, who attended LSUC's AGM in May 2012 and represented less than 0.1% of the estimated 49,000 members[iv] of the LSUC eligible to vote at its AGM.[v]
But guess what? Even if the name of the LSUC is changed to the LSO and the law society breaks faith with some of the Jesuits and Crown Loyalists expelled from the USA who still identify as "Upper Canadians", it still will be the oldest law society in the Commonwealth with a slightly different name. And the new name would serve to indicate that will include those northern areas of the province that weren't included when the borders of Upper Canada were established in the 18th century.
There are other profound reasons for divesting the LSUC of its colonial vestiges. Irrespective of the geographic confusion that the 220 year-old name garners, the name risks becoming increasingly contentious due to its negative colonial connotations. Upper Canada was formed in 1797 and ceased to exist as a political entity in 1841, a time period that oversaw mass appropriation of indigenous land, largely through expansionist settlement and land development and bloodshed.
The Province of Upper Canada was created by the United Kingdom to govern the central third of British North America (as it then was called) and to accommodate Loyalist refugees of the United States after the American Revolution. It included all of modern-day Southern Ontario and all those areas of Northern Ontario which had formed part of New France, essentially the watersheds of the Ottawa River and Lakes Huron and Superior. The “upper” prefix in Upper Canada reflected the territory's geographic position being closer to the headwaters of the Saint Lawrence River than that of Lower Canada (or present-day Quebec) to the northeast but Upper Canada excluded any lands within the watershed of Hudson Bay.
Upper Canada as a geographic, political and economic entity existed from December 1791 to February 1841 until the Act of Union 1840, proclaimed by the Crown on February 10, 1841, merged Upper Canada with Lower Canada to form the short-lived United Province of Canada. This entity eventually was replaced in 1867 by the geographical entities of Ontario and Quebec formed by the British North America Act, 1867 (now the Constitution Act, 1867).
As a lawyer who has worked with and advocated on behalf of indigenous peoples in Ontario, I am ashamed that the regulatory body governing lawyers remains strongly associated by virtue of its title with a very dark period in Ontario's history. The fifty-year period of Upper Canada's existence was characterized by the negotiating and signing of many unfair and unbalanced treaties between First Nation communities and successive Crown agents on behalf of the UK, with the silent endorsement of Upper Canadian governors, governments and the European male land owner voters who kept them in power. This was a period when many indigenous peoples were treated in unjust ways, increasingly herded onto smaller land tracts called reserves and denied access to lands and waters their ancestors had used for millennia.
In an effort to address many of these concerns as well as to create a formal response to the abuse inflicted on Indigenous peoples through the Indian residential school system, the Truth and Reconciliation Commission of Canada (TRC) was established in June of 2008. In June 2015, the commission released a report with 94 Calls to Action that are addressed primarily to the federal, provincial and territorial governments but also to municipal governments, the corporate sector and the broader Canadian society. Thus, all organizations and institutions with powers that have oppressed indigenous people have a duty to respond to the TRC report in a meaningful way. This is especially true in regards to Law Societies – organizations that vow to uphold access to justice and have a crucial role in preventing the oppression of indigenous peoples by the state.
To emphasize this point, the TRC devoted a call to action specifically to law societies, stating, “We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”
Given the TRC's dozens of recommendations, it seems bizarre that the LSUC continues to cling to its traditional name.
Recently, the Law Society of British Columbia (LSBC) has taken a progressive approach towards First Nations reconciliation. In April of 2017, LSBC announced that it would remove a statue of Justice Matthew Begbie who had sentenced six Tsilhqot’in chiefs to death before confederation. The Truth and Reconciliation Commission’s report was a catalyst for this change and recently LSBC President Ken Walker stated that the society wants all of its members to read over the 94 calls to action.
In 2015, the LSUC released two separate public statements addressing the TRC report and emphasizing their commitment to act upon the commission’s calls to actions.
When I was a law student and then an articling student, the role of LSUC was described to me in various terms by esteemed members of the bar. Given my biology training, the role of the LSUC all seemed to boil down to this. Prior to the appointment of June Callwood as the first lay bencher on the LSUC by then Attorney General Ian Scott in 1986, the LSUC was a bunch of aging alpha wolves, mainly males but some females, who guarded the young wolves and made sure they didn't eat all the chickens (the public) at one time. Thanks to the bizarre rules around the election of LSUC benchers which allow these aging wolves and their large firms to largely determine who is elected as a bencher, the tradition continues. Sure, some of the wolves may be from other continents but they are mainly alpha wolves and move in the right circles. In any case, like all wolf packs the alpha wolves control the key behaviours and priorities of the pack. Challenge the alpha wolves and you are sent “packing”. And so it has been on this name change issue. Advocates have been sent packing.
I had the good fortune to attend a private high school in Montreal by the name Lower Canada College. But the idea that I am required to pay membership fees to an organization governed by alpha wolves who relish its title as including “Upper Canada” when it is the regulatory body for lawyers who live in northern areas of the province that never were part of Upper Canada is bizarre. Indeed, it was hard to know whether to laugh or cry when proponents of the name change witnessed the LSUC's alpha wolves shooting down the 2012 motion to update the law society's name drafted by lawyer Tom Vincent.
I know what you are thinking: What is it with these anti-traditionalists, and apparent anti-monarchists who don't want to honour such a rich legacy? Perhaps it is our growing knowledge of Ontario's history, politics, culture, and its darker side in its treatment of First Nations and other minorities. Perhaps it is our training in philosophy, politics or science or our lack of training in religious studies. Perhaps it is because most immigrants, and out of province residents who arrive in Ontario as well as students greet us with stunned silence when we mention they should contact the Law Society of Upper Canada so that they can get a free 30-minute initial consultation with a lawyer. But we should hardly be surprised when they call back and ask us to spell out the name of the LSUC for them in a follow-up email.
Much has changed since 2012. It is time for the Ontario government and the LSUC to revisit this issue and view its name using a contemporary lens. As the legal profession evolves, so should the organization that governs it. With the incorporation of paralegals into the LSUC, the growing ethnic and social diversity of the profession and the Law Society's efforts to reach out to the LGBTQ community, it seems absolutely inappropriate to defend its original name on the basis of tradition.
David McRobert is a lawyer practicing environmental, energy and indigenous law based in Peterborough, Ontario and Public Affairs Coordinator for the Aboriginal Law Section of the Ontario Bar Association. With research and writing contributions from Jordan Shay, Student-at-Law.
Endnotes
[i] See Motion presented to LSUC's May 2012 Annual General Meeting drafted by lawyer Tom Vincent and supported by 10 other signatories to update the law society's name. (www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147487295) As noted by the LSUC on its web site, "motions at the Law Society’s Annual General Meeting (AGM) are made by members of the Law Society, and not the Law Society itself. A motion must be in writing, signed by at least ten members, none of whose licence is suspended at the time of signature, and submitted by the required deadline. For a motion that is submitted by the deadline to be made at the AGM, it must be proposed at the AGM by one of the ten or more members who originally signed the motion, and then seconded by any other member whose licence is not suspended. Should a motion carry at an AGM, the motion must be communicated to Convocation at its first regular meeting after the AGM, and must be considered by Convocation within six months of the AGM. A motion carried at an AGM is not binding on Convocation. See: For the record: LSUC, Motions and the AGM, undated (circa April 2015), https://www.lsuc.on.ca/with.aspx?id=2147501326
[iv] Law Society of Upper Canada, How many lawyers and paralegals are there in Ontario? [undated] (http://www.lsuc.on.ca/faq.aspx?id=1275) As per the LSUC web site, the Law Society of Upper Canada is the largest law society in Canada, with almost 50,000 lawyer licensees (49,048 as of November 25, 2015 with 24,417 in private practice; 13,931 otherwise employed (education, government, etc.); 10,700 not employed in Ontario (retired, outside of Ontario, etc.)). 28,706 lawyers are male and 20,342 are female.