Racism, equity, diversity and inclusion and the rule of law

Welcome to the Rule of Law Matters podcast, the podcast all about what the rule of law means and why it matters. This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by setting and enforcing professional standards for lawyers in our province. 

There are a few more topics we want to cover in Season 1 so we have decided to add a few bonus episodes. Stay tuned, we'll be releasing them over the next couple of months. Today we've brought together three special guests to have a little round table chat on racism, equity, diversity and inclusion and the rule of law. 

Let me introduce you to our guests. Dr. Carol Liao is an associate professor at the Allard School of Law and the UBC Sauder Distinguished Scholar of the Dhillon Centre for Business Ethics at the Sauder School of Business. In 2021, Carol received the Influential Women in Business award from Business in Vancouver and was name as one of Canada's Top 100 Most Powerful Women by the Women's Executive Network. 

Next we have Andrea Hilland. She's a staff lawyer in the Policy Department at the Law Society of BC, a role she's been in since 2013. She provides staff support for the Law Society's Truth and Reconciliation Advisory Committee and the Equity, Diversity and Inclusion Advisory Committee. 

Last but not least we have our Rule of Law Matters podcast host, Jon Festinger. Jon is a lawyer and teaches at the Allard School of Law and Thompson Rivers University's Faculty of Law. Jon practices in the areas of digital, media, entertainment, communications and sports law. Here's their discussion.       

Carol Liao

First I just want to say thanks of much for inviting me. I am a fan of this podcast. I think it's great and it's exciting to get to chat with the three of you. I'll also just say you know Andrea, congratulations on recently being named Queen's Counsel and also Jon, I don’t know if you know, Andrea and I did our masters together at UBC Law in 2009.  

Jon Festinger

I did not know that.  

Carol Liao

Yeah, and you may also not know this Andrea but Jon mentored my husband, Kyle Fogden, when he articled at Davis & Co. in 2003 so the legal community in BC is very small. 

Jon Festinger

Well that's a good starting point for, in terms of our exclusivity I suppose, we've just revealed all the connections and maybe we should, maybe we should talk about the implications of that for better or worse. Since Carol and I have been colleagues for a while, I'll jump in and just ask her how she thinks we can reconcile our concept of the rule of law with what's actually happening in the world and which sometimes seems to be perpetuated by the law and lawyers and that is the distinct lack of equality that exists in our society. 

Carol Liao

Yeah, I mean you started off on a very big topic and so I'm happy to talk about that, right, because the rule of law is said to grant everyone equality before the law but we know that laws have historically disadvantaged certain groups, right, and when, you know so when we think about the rule of law it's important to understand these histories, those that we've been born into and those we've inherited and you know how these fundamental principles that we hold dear as lawyers like how every person is equal before the law and how the justice system is supposed to be accessible, fair and open to everyone, those are important principles and difficult to disagree with as a theory. But it's hard to claim that they are a reality when these principles weren't applied evenly in the past at all and when you have racist laws in place, the notion that everyone is equal before the law just simply isn’t true in application. 

So you know Canada's a settler colonial state. This means the country was built on and still operates under colonial rule so you know Canada's no stranger to racist laws. As a country we have a history of violent dispossession against Indigenous peoples, we had the Sixties Scoop and Residential Schools, we still have the Indian Act. We had over 200 years of legalized slavery. You know the anti-Asian laws you know were prevalent as well. We had Japanese Canadian internment camps under the War Measures Act where Japanese Canadians were prisoners in their own country and their homes and businesses were sold off. We had the Chinese head tax. No other group in Canadian history's ever been forced to pay a tax solely on their country of origin you know and we had the Exclusion Act where Chinese immigration to Canada was completely banned you know and Vancouver's mayor and council leading up to it passed a motion advocating that the federal government legally bar Asiatics from entering Canada, right, and they succeeded. 

And you know so we forget this history, right, but this legislation was kept in place until 1947 and it had devastating effects on Canada's Asian community, right, covenants saying no Orientals were placed on thousands of properties in Metro Vancouver and Victoria during the exclusionary era and it still remains on the books. It wasn't until 1985 that the province changed the laws to declare racist clauses void, right, and I could go on. So there's this long period of exclusion up until the 1950s. You know you said you became a lawyer in 1981 Jon?

Jon Festinger

Yeah, I did.

Carol Liao

Right, so you know 30 years prior to that people you know their, people were banned from practicing law. There were many large scale anti-Asian demonstrations in Vancouver and the legislated exclusion of Asians from certain professions including law, pharmacy, teaching, politics, the Law Society of BC had restrictions that barred Chinese Canadians from the legal profession. You know South Asian and Chinese Canadians weren't able to vote in BC until 30 years after white women were given the right to vote. Japanese Canadians not until 1949 you know and these milestones were only achieved after decades of collective action from disenfranchised groups. 

So you know sorry, I don’t mean to go long there on the history of it but this history is important to then understand how that gets reflected in our current legal systems and our profession, right, this history of racial segregation, discrimination and devaluation in this province you know and indeed in Canada, it's you know really difficult to fathom, right. We don't like we, we don’t like to admit it, this BIPOC history of Canada, right, but it echoes in our institutions and organizational cultures. It influences how bias, stereotyping and discrimination plays out, whether law is enforced fairly or arbitrarily, you know whether we're all viewed as equal before the law. 

Jon Festinger

We generally don't want to acknowledge it. It is very much part of our history. Is there a way to get ahead of it? Is it simply just being motivated by the Charter and taking that to its logical conclusion or are there things that we're again choosing not to see and choosing not to address and still not getting ahead of what needs to be done?    

Carol Liao

Oh, I have a lot to say on that. I mean it's sort of this differentiation between equality and equity, right. I mean that's the heart of it, isn't it, the challenge of understanding the difference. And you know I have colleagues that have dedicated their lives to studying this issue from a constitutional perspective and a rule of law perspective.

I'm a corporate law professor so I look at this a bit differently, right. Equality can mean several things, equality of right, equality of opportunity, equality of condition or outcome, and in terms of equality and equity, you know it sounds quite similar but they do have different applications, right. They're all tied to fairness, fairness under the law and equality could mean each person's given a right to participate, a right to the same resources or opportunities, right, justice is blind, impartial, objective, but in my equity work and for the past several years I've worked with organizations alongside my industry partner Shona McGlashan talking about equity, diversity and inclusion in leadership. I think the point about equity is that sometimes justice should not always be blind equality. Sometimes justice demands that we treat individuals differently to ensure equal outcomes.

Jon Festinger

If the playing field is perpetually tilted, then saying hey there's equal, there's equality of opportunity on the tilted playing field is not right. You can still kick the ball but you're always kicking the ball uphill but that's just the playing field. Is that the problem we're talking about and that you're addressing?

Carol Liao

Well exactly, you can't build anti-racist communities by being colour blind because colour blindness more often than not protects the status quo. It is suggesting that the best way to end discrimination is by treating individuals as equally as possible without regard to race, culture or ethnicity but you know within the context of enduring structural and systemic racism, colour blindness serves as a convenient way to disengage from conversations about race and racism entirely. It also suggests that racism does not exist so long as you ignore it, right. A colour blind form of equality is not just denying race but also the racial disparities, inequities and history of violence and ongoing trauma perpetuated within a racist society. 

So in our, you know the workshops that we do to corporate boards, right, Shona and I address colonialism, misogyny and systemic racism that's immersed within our culture and corporate culture too and it impacts, the impacts it has on historically marginalized groups you know and we point executives towards the overwhelming research in order to raise awareness and have those difficult conversations on how to elicit change within organizations right. So knowing the difference between equality and equity I suppose is quite important in that regard. 

Jon Festinger

So I wonder then if this isn't when we should engage, you and I Carol, should engage Andrea in this question of you know our profession and where it's been and how that's affecting where it's going. When I was, when I was a young lawyer, I had a mentor and colleague who taught me a great deal and who I, he's now passed, who I really cared about and respected very much but in 1981 or 1982, he would say things like what I like about you Jon is that you dress British and you think Yiddish because I am a Jewish lawyer. And there is this history of law and lawyers and law societies perpetuating stereotypes and hewing to those stereotypes. And I know Andrea it's putting you on a bit of a spot but maybe you could start with how you look at the history of law societies and our law society and then go to what we can, should and probably must do in the future.

Andrea Hilland

Well first, in terms of where the Law Society has been on this, the rules were explicitly prohibiting certain races and demographic groups from participating in the legal profession. Asian lawyers were prevented from practicing law and also the provincial voters list was used as the acceptable members and so Indigenous people were precluded from participating in the legal profession based on that. And so there was explicit exclusion from the legal profession and so now, you know we're trying to encourage and support diverse lawyers in participating in the profession. 

But there's also, there's that you know who was allowed in the door in the first place kind of shaped how the legal profession looks now, right, and so the Law Society was involved both in the video "But I was Wearing a Suit" where we looked at stereotypes against Indigenous lawyers and the assumption that they were not lawyers and also with the Federation of Asian Canadian Lawyers did a similar video project which the Law Society supported on Asian lawyers and kind of the stereotypes that are there and so it's like who looks like a lawyer is not this because there was a history of exclusion. And so now trying to fix that is, it's really difficult to fix something that's kind of been the norm for so long and so in terms of what Carol was saying about equality and equity, you kind of have to level the playing field and to provide support. And a lot of what the Law Society has been involved in so far is more about educating lawyers and I think mostly the education is aimed at kind of reversing stereotypes. It's a lot of work and it's just a starting point but that's where we are now.

Jon Festinger

Carol you're, you know you've come up through this; what were your experiences?

Carol Liao

You know I spoke about some of them on the, in the documentary and also I gave a closing speech at the FACL Gala but I mean I grew up, I was born in '78, I grew up in the '80s in Chilliwack and you know my first, my parents were, are from Taiwan and you know and I was born here but soon after they arrived in the country. You know I have a lot of reflections kind of on my experience but you know I will just say that the legal profession has a lot to sort of address and if you think about what happened in the Law Society of Ontario recently with their Stop SOP and I don’t know if you've been following all that stuff from before but I mean these are just things that I hope never appear here in BC.

I think that there needs to be sort of an understanding on how racism manifests itself in different ways, right. Like it used to be quite blatant and actually with COVID-19 and the you know anti-Asian racism that came from that, it was another reminder of very overt you know violent racism but you know in many other ways it's quite covert, right, and systemic and structural. I mean with the social movements that we've seen in Black Lives Matter and Truth and Reconciliation, Stop Asian Hate, these efforts of many people have helped bring a lot of difficult conversations about colonialism, racism and intersectionality to the forefront, right. 

Racism didn't just randomly appear but are manifestations of what's been built into our systems from very checkered and violent history. It's also important not to conflict these movements, you know or conflate them. You know they are distinctive in their righting of historical wrongs and the uneven ridiculousness of racism. You know among other things, these movements aim to eradicate ignorance and the you know examples including the over-representation of incarcerated Black and Indigenous peoples in Canada is a legacy example of structural racism, right. Indigenous adults make up 30 percent of the Canada's prison population despite only representing 5 percent of the Canadian population while Black adults represent 3 percent of the Canadian population but more than 7 percent of federal offenders. 

Speaking about I guess Asian exper…you know like I can't speak for all Asians as I say you know but talking about it specifically for challenges you know there's the racialization of poverty and we, Asian people deal as well with this model minority myth, right. If you look at the disaggregated data, we see Korean, Chinese and Southeast Asian poverty rates at double and triple the poverty rates of white people and how that's directly linked to structural racism in the labour market and from the pandemic, long term unemployment has had the sharpest increase among Black, Arab, South Asian, Southeast Asian, Chinese, Filipino groups by one and a half to almost double that of white workers. You know and with this model minority myth, most people don’t assume Asian people in Canada are poor or lower income, you know and working class Asian people are not given the same kinds of support. You know this is something that Justice Avvy Go noted and so on a regular basis in her years of advocacy on behalf of immigrant and racialized communities. 

You know and so you know for me, for those that, some of us that have broken through some barriers, I think there's an immense pressure to overproduce and almost meet that model minority myth and the challenge I think for a lot of you know racialized people is the bias that is involved in every part, in the entry level process, in advancement. There is, you know there is gender and racial devaluation, there's internalized misogyny, there's intersectionality. 

You know white privilege and white supremacy I know are concepts that can make people uncomfortable but I really think that the Black Lives Matter movement has really helped people recognize the systems that we live in, particularly how racism affects how laws are applied, right. And as we sort of said, here in Canada I think there's this deep reluctance to talk about race until it's blatant as murder or hate crimes caught on video you know which we all can easily say we oppose, right, I hope, but there's this false sense of Canadian exceptionalism that forgets that racist history and our present day systems and how they're shaped by that history and we exist in this society where white people enjoy structural advantages over other groups on both the collective and individual level, right. 

Jon Festinger

Well it's, there's this interesting trek that I've observed, and I don’t know if you and Andrea agree with but when we talk about systemic racism, people want to focus on the individual you know and you get the incredibly racist but some of my best friends are X so you just, you switch the frame of reference. And when there's an individual case of racism, then people will switch the frame of reference to but we're not a racist society and will generalize. And so it's this very slippery way of sort of masking, I'll just say it, white supremacy. And constantly changing the frame of reference to defocus on what is actually happening and focus on the other side of the coin, that's what I see sort of time and time again in the, in this kind of non-dialectic that's happening when people are not talking to each other about the real issues. Now I agree completely Carol that when we actually engage that's when we make progress but there is a lot of avoidance of engagement, even now.

Carol Liao

Oh yeah, absolutely. And I mean that's why I think awareness is you know a crucial first step, right, it's kind of the table stakes, the baseline in what you need to start which is just education and awareness. And then you know but then you can't get off the hook just after you become aware, you actually have to you know do things. The one thing that I think helps people maybe understand a bit better in terms of privilege and that is you know one thing I talk about in some of my sessions is this idea default coding you know which is how, in the absence of other information, people are assumed to be white, male, straight, able bodied, you know and Shona and I in those sessions, you know we give an example how even the way we describe ourselves, you know if Shona were to meet a stranger in a lobby she'd say oh, you'll see me, I have short brown hair, green eyes, whereas if I were describing myself, I'd never would consider not describing myself as Asian, right, like they'd think it was odd if I didn't, right. 

The default is that the person's white and having privilege doesn't mean you have an easy life. People get quite defensive over the implication of that. It just means that you have advantages that are granted or available you know only to a particular group. And so when we think about privilege, you know questions we can ask to sort of make us understand you know where, you know if you apply for a job do you expect to be assessed on your merit and qualifications? You know growing up did you see people like you portrayed positively or at all in the media? You know if you are approached by a police officer do you expect to be treated fairly and with respect? How about in a courtroom? Right. Can you show affection to your partner in public without fear of reprisal? Do you feel safe on public transit or you know a taxi late at night, right? Like what does this history reveal about our structures and our institutions central to our social, political and legal systems right? 

And we have to also know misogyny, white supremacy, these notions cut across gender and racial lines, right. You can be Asian and have strong white preferences. Maybe some you're aware of but many that you're not, right? And since this is about law, I will just say the law operates through people, it does not function without people as its agents. Like it's just a set of rules that require humans to realize them. And so when we then talk about bias and how it has seeped in really, I mean 'cause the, the research on it, when you get into it, it's just overwhelming, right. It's shocking.  

Jon Festinger

Well that's why people want to change the frame of reference.

Carol Liao

Absolutely.

Jon Festinger

Because you know, because the research is there, the data is there, it's essentially incontrovertible so let's talk about the personal and avoid that. 

Carol Liao

Yeah, so you see where I'm kind of going here then when we talk about the rule of law and the application. I mean 'cause there's the theoretical, there's the, you know what should be, and like I said, that's difficult to disagree with in a lot of contexts. I mean you've referred to this you know in your podcast before, and I agree. We should all be equal under, of course we should, right, like you know and these are, it should, you know it should be impartial, it should be objective but we're not impartial, objective humans. There needs to be that awareness and there's, first of all, there's the lack of representation, right, tone at the top matters, the diverse legal profession, diverse judiciary, diverse you know like all across, right, like all the power structures need to be disrupted. 

But we also need the shift in culture too. Anti-racist communities don't happen overnight. There is a level of commitment and you know integration I think on this, the understanding of history and how that resonates and needs to sort of be disrupted, like that trajectory needs to be disrupted. You know the question is do we want to live in a world where the circumstances of your birth dictate your future? Bias plays out in real, in the real world with real consequences and our brains are wired to make shortcuts, right, so consciousness raising on unconscious bias is fundamental to combating it and we need to question our assumptions recognizing that they may not be rooted in evidence or truth. 

You know there are a few thousand studies showing bias across industries, in policing, in teaching, in medicine, sports, early childhood education, you know in law of course and sentencing and management. Like they've done studies down to how we hold babies, the differences. We think that this is a male baby so we hold this baby differently than if we think it's a female baby. I mean the, so understanding that, that individual buy in right here is critical for change to be realized, for us to ever move any numbers in terms of representation, etcetera, in a more significant manner, right, because it is a powerful way to both foster change and also to prevent change. Like when you go into some of those hiring rooms, you can be quite shocked with how much that can play out in the assessment of an candidate, particularly when you're in a type of profession where you know like academia where different, there's different measures of merit across several different pockets. 

I mean sometimes it's much easier in business where it's like how much business are you gonna bring in, right, like in a way there's some comfort in that very linear analysis sometimes whereas in others, you know people can just pick and choose what they think is important at that time of day. 

Jon Festinger

That in a sense brings us to Andrea and a couple of you know obvious questions that flow directly in terms of admission to the Law Society first and then we can talk about the Law Society's role and focus in terms of the public. But in terms of admission to the Law Society, Andrea, you've talked about how the history has not been all that great. Where are we at now and what could we do in the Law Society to improve?

Andrea Hilland

Where we are now, I mean we're tracking demographic data and there are slight increases over time. I think there's kind of a perception that oh, if we just you know keep it going at this rate, eventually diverse people will catch up in representation in the profession. And I think I mean the standards are the same for everybody to get through, you have to jump through the same hoops. We do have you know the PLTC has been the same for as long as I've known it. I think they're still using the same course books that we used when I was going through 20 years ago. And we were talking about the kind of default client is the able bodied white man, you know just all of those things I think we could improve even how we examine people and what kind of exercises they have to go through including you know having the default character in the case study be somebody who's non-white, non-able bodied, you know all those things. 

But in terms of supporting you know we do have the Indigenous mentorship program. I think one of the things that Carol touched on earlier, which is a huge issue, is just recognizing that people are capable, right. And so there's this bias or stereotype that certain people are not.

 And I'll give examples from my own life, like when I applied for the masters' program, the student advisor said you know we don’t have an Indigenous category so you're gonna have to have the requisite GPA and I'm like like I know that, I have that actually. And so I think a lot of times my life would have been a lot easier if I wasn't visibly Indigenous and you know I just think there are assumptions that Indigenous people are not capable. And so I've met that several times in my career and if you could just look at my GPA and my work history and not filter it through your biases against Indigenous people I think I would be way further ahead.

Carol Liao

I mean I'll say this, you know the legal profession is not unique in, it's not an island and when you look at other industries in terms of representation, you know like it, I don’t think that we're gonna discover the legal profession being uniquely, you know like and I mean my field again is corporate law and there, when we talk, when we bring it to this idea to the rule of law and processes to advance equity and how have laws tried to incorporate equity, diversity and inclusion and how they've failed, I mean what you'll see is that in a lot of these professions, there's a deep resistance for change, right, and the Law Society of Ontario example is one with their whole drama with the Statement of Principles but you know I'm happy to rattle off some stats to show you what the landscape in the corporate sector, which I don’t think is much different from the legal profession. 

Board seats are one way to measure power, right, in Canada and the lack of board diversity is a major issue in the corporate sector. Numbers are pretty stark even though we've come a long way from when I began studying this well over you know a decade ago, right, you know despite all the hype about diversity. I mean 81 percent of these companies have diversity policies but we have, and we have a comply or explain regime in Canada meaning boards are required to disclose gender diversity numbers, right. Like we have this in most provinces and it was implemented in Ontario in 2015. BC doesn't have it and neither does one other province but you know like but essentially though you know in Canada, with all the talk, the change has been completely incremental. You know all, at survey of all TSX listed companies that are subject to the diversity disclosure requirement found 21 percent women, 5 percent racialized, less than 1 percent Indigenous board seats. You know 4 percent of TSX listed CEOs are women. You know it's really easy to spin the numbers as highlighting it was an improvement from the year before but these are the best numbers? It's far worse in private companies where there's far less gendered representation and no mandatory disclosure. 

And you know as for racialized and Indigenous peoples, I suppose I'm grateful the information is even made available and we need to understand we're still taking baby steps when it comes to diversity. Gender a few years back was treated like all we were able to handle in terms of manageability of a problem as many of the regulatory agencies claimed and yet diversity is so much broader and an intersectional understanding of diversity is important. But so if you look in terms of racialized persons, in 2012, it was 2.8 percent you know board seats. It took five years to get to 3.3 and again years to get to 5.5 but more than one in five Canadians is racialized and in urban areas the numbers are much higher. And what we're seeing is that several countries have now employed mandatory quotas in order to get that done, like Norway 40 percent women are required on boards, you know Belgium, Italy, State of California, six countries have soft law quotas meaning it's mandatory but there's no punishment if you don’t attain, and this is just gender parity. But the trend is towards hard law quotas, right, and California also just recently requires companies to have at least one board member from an underrepresented community by the end of 2021 and at least two or three, depending on the board size, by the end of 2020. 

There's no excuse for not having racially diverse boards. There's also, to me, no excuse for not having racially diverse law firms. And you know it's just a matter of time, I think, and this is what I tell you know all the executives we talk to, it's not just a matter of time for the law to follow so the question is do you want to be a leader or do you want to get dragged along on where the law follows. 

And you know so I've said a lot on corporate, let me just give you one second, academia. Leadership in academia, 50 percent white men, 40 percent white women, 8 percent racialized men and 2 percent racialized women and Indigenous men. Indigenous women don't even make the chart. So I don’t think the legal profession is you know gonna be some magical island of equality in terms of these stats, right, like I don’t think that we're that different. 

Jon Festinger

I think we know we're not. And the question is what can we do about it and that brings us back to Andrea and I want to come back at some point, I think we have to talk about intersectionality because we have not mentioned the LBGTQ community and how that fits in but Andrea, looking at the future, what can we in the legal profession do? And is it simply a matter of reflecting society or do we want to do more and better than that?

Andrea Hilland

I definitely think we need to do more and better than that and one of the things is just, I mean indoctrination into the legal culture is one thing. I think we don’t see the legal profession as a culture and I think it is one and I think it is really difficult for diverse lawyers to try to fit themselves in there. And I think that's part of the reason that we have, I mean we don’t measure the attrition rates but I think there is an attrition and you know we talked about the number of sole practitioners right, why is that? I think a lot of times it's because they're not hired at firms and for whatever reason. I know I've been rejected from firms for you know various, I don’t know their reasons exactly but just there are biases against diverse lawyers and you know they go off on their own and those kinds of things. 

I think there needs to be a shift in the legal culture in appreciating the diversity that is there and understanding that diverse lawyers are perfectly capable and competent and can be a benefit to your firm. But like Carol said, often, you can have a policy but whether or not you actually implement it, whether you actually embrace it, whether you're, you know it's just there for optics or whether it's actually there for cultural change, that's the question and I think that's where we need to get to. 

But it is baby steps of self-reflecting first to look at who's at the top and I include the Law Society in this as well, right. How many directors do we have who are diverse and how many are women and how many are intersectional and I, you know I think there's an underrepresentation there. I think we need to be self-critical and make changes based on the reflection. You can't just reflect and move on, you actually have to do something about it if you notice there's an issue. 

Jon Festinger

Andrea, one thing that you said you know struck me, it's a brilliant point, and it's not talked about nearly enough because it's not convenient to talk about it in this time and that is absolutely law and law practice certainly as I experienced it coming in and coming up is a culture and it's a culture of a certain kind of indoctrination and it's a culture with a whole series of normative definitions of what makes a good lawyer and very much that tends to map, in my opinion, to white male, educated and from upper middle class background. And I think it would be very hard to argue that that isn't, there are obviously others who are included but for them to make their way to the center is very, very difficult. And we have to decide as a profession whether we want to take that on because if we don’t take that on, we are gonna be missing out on some of the best lawyers, the best advocates, the best people and we are going to continue to be disconnected from the society that we serve. 

We are in a service profession, we should not be in a business, we should be in a service profession, whether that's what really happening or not, and we kind of may be making a mess of it and getting to the point where the only way to address where we've gotten to is through regulation and not self-regulation. And that's, I think that's the conundrum that the law profession, the legal profession and the Law Society find themselves in right now.

Carol Liao

Yeah, these are great points. I mean to me it's intention, attention and dedication and it's gonna require a lot of very uncomfortable conversations from people in power and you know to do the heavy lifting that is required in order to ensure that we have a just and equitable profession for ourselves and also for our society. And I mean you're so right Jon too on how there's this culture of conformity, right, or this cult of relatability and there is a misunderstanding on what inclusion means in organizations now, right. Like I think they just think add diversity and stir and just hope it works out, right, but actually you know when we think about what it actually means for people to really tap into diversity's true benefits, it means having a seat at the table, being able to set the agenda, feeling valued, being heard and actually having your ideas taken into account and having upwards mobility and support and mentorship throughout, right. 

But I'm often, you know the one thing that I actually really try to convey a lot of times to people is how there's often I sense this need for those kind of at the top to pit equity groups against each other, right, suggesting that minorities should be battling each other for scraps, right, like you know and to me you know that's just a road that really leads to nowhere. It's not the oppression Olympics, it's not a game show that we sort of allow those that are sitting up at the top sort of pick and choose who they get to feel sorrier for while owning the status quo. 

And you know I feel like, I think when we have these conversations, the idea is not that then we tick a box or that you know we're sort of done on the issue, oh, we've dealt with that and now we can go back to how we were, oof, 'cause that was sort of stressful you know but that it actually emboldens us and makes us go huh, this is a problem throughout you know and this is something that I need to now sort of incorporate in my thinking on where I'm coming from and where I'm going and who does this impact and what are my blind spots and who am I including at the table, who's comfortable speaking at the table you know and who am I amplifying and who am I supporting? You know like and these are things that can't just be isolated to some you know one equity workshop you know or one podcast or things like that. 

Jon Festinger

I mean this stuff ends up often either being showcased, okay, we've done a podcast, great, look, we've covered that subject. That doesn't work. Other times I think we ghettoize the problem, we say it's over there and other times we do this kind of social Darwinism thing that you've been talking about, let's you know well there is equality of opportunity so let's just have, let's see who, let's see what cream rises to the top. All of those things are insidious, all of those things are deeply problematic and just allow us to feel comfortable. 

This is stuff that we can't feel comfortable with, this is stuff that, at least not in my lifetime, is gonna go away. It's gonna be a long battle and a long battle of change. And that kind of brings me to kind of one other part of this that we haven't talked about yet, we've been talking about it in a real way, and that is speaking out. You know the FACL video was amazing because it was individuals speaking out about their experiences about what's real.

Carol Liao

I'm hoping after what has been I would say a terrible, terrible time in terms of racism here in Vancouver, I mean this is why I don’t kind of want to repeat, and I'm not assuming people have heard me speak before but I mean I have broken myself open enough times I think to have people hopefully be aware to the extent that people have heard me, you know like that I don’t want to, I kind of don't, I almost have to get myself prepared to do that again, right.

But you know in that there is gonna, for many I mean this was the reflection for many with the Black Lives Matter movement too which is just like thanks for you know like feeling bad for us, now show me your, show me a picture of your board, you know now show me what you're doing you know a year or two out, right, like I mean talk the talk, walk the walk, like just do us that favor and you know when the COVID-19 anti-Asian racism, which was really a modern day Yellow Peril was just at its peak here too, 

I mean I really, I really was grateful when eventually people were publicly speaking out against this. It made me feel safer to leave my house, right, in that if something were to happen you know at least there would be a community there to hear me but it took a while to feel like that was the case. But I mean I suppose for these kind of discussions that we have where you know all walks of life can listen to this, it's more about that individual introspection and that role that they can play in their organizations with actually some obligation put on those that have the power and influence to be able to elicit change to do so. 

Andrea Hilland

I mean I think we can effect change by changing ourselves, right, and so I think right from the regulator we are trying to encourage more diverse staff members and also board members and also tribunal members. So having the diversity within the organization I think will help to make that ground shift because I think having diverse people in the room changes the room, right, and so I think that's a first step and I think also the deeper, it's you know rule changes and things that need to happen to better support diversity.

I know the Equity, Diversity and Inclusion Committee provided input into the definition of discrimination and harassment in the model code which is the rules for lawyers and that's one aspect that the rules can look at. But there's also I think the definition of competence could specifically reference intercultural competence and those kinds of things. So there are things within the Law Society rules that we could adapt to better recognize that there is racism and that that's an ethical breach in the practice of law.

Jon Festinger

And there it is, we all are given opportunities, I can think of many in my career where the opportunity to say something and more importantly do something is laid out in front of you to either stop the perpetuation of a stereotype, ensure that someone who deserves to be hired is hired, speak out against views that are, that are either overtly or masking sexism or racism of some kind and do we take those opportunities? 

I think that's the individual challenge, do we speak out, do we, we are all faced with the opportunity all the time and how often do we each stay silent and say this isn't the time. And I think that too is a really big part of change because if we talk about it, if we say it, and yes, there's always gonna be some risk and some career risk, absolutely, but being a bystander is what gets us to this very uncomfortable place in my view.

Andrea Hilland

I just want to say that's part of the model minority, right, and I think that's still, like don't speak up too much, don't rock the boat too much, if you're seen as an agitator then you're not going to get the respect from the rest of the profession and that's part of the problem, right, that's part of the bystander problem. 

There's also, in terms of bystander, I know a lot of people will say well I didn't know if they wanted me to step in. Well, just do it, like if, under, for me as an Indigenous person, so many times I've felt to have to carry and to have to be articulate and say something in the heat of the moment and I'm not prepared for that. I do want somebody to say something, I don’t want to be the person to always have to say something. I think that's kind of an excuse to be a silent bystander and just stand back and say well I wasn't sure if I, you know it's kind of paternalistic to step in. No, please, we invite you to step in.

Carol Liao

Absolutely. Use your privilege to help me. You know like when I'm in, I'm in the room and it's almost sometimes that everyone should feel, they should feel a pressure to say something rather than to later on go into your office and say thanks for saying what you said. Most junior racialized female in the room on this issue 'cause I agreed with you and they're like you agreed with me, you're senior, white, male with tenure and you were letting me just flap in the wind there and you said nothing, you said nothing at the time. So as much as I appreciate the feedback after and the support after, it would have been really great to have had you say something at the time, right, and not put all the burden on me and then applaud me from the sidelines silently. 

I totally hear where you're coming from Andrea. I'll just end with a, like a quote here that I love very much. You know it was from Cara Ng and Khelsilem and you know it's for us, those of us with privilege and thinking about what we can do you know there can be, as you said Jon, like a great deal of defensiveness but you know I think this quote really states it well. They say "The language of privilege implies excess or a surplus of something that needs to be taken away but the right to live a life free of oppression is not an indulgence. Rather it is an existence we should all be able to enjoy. Let us be clear that we do not begrudge those who have lived their lives free from racial and other forms of discrimination. We just hope that they are fighting alongside us for a world where that fundamental tenet of human dignity is secured for us too." 

You know and so in sitting with that and thinking about the challenges that we face as a society, you know the question I have is how do we get from here to there with the trajectories and debates reverberating and taking up time and resources which we have in scarcity. Right, like what constitutes reform? And so you know I'm hopeful and you know like I think with these kind of conversations it helps to sort of break some of these things open a bit and hope that it ignites I think you know broader action to foster change for the good in our legal profession for sure.  

Vinnie Yuen

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