What is at stake?
In a recent email to all lawyers and paralegals licensed in Ontario, the LSUC announced a new “mandatory” requirement for licensees, which it described as follows:
You will need to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public. You will be asked to report on the creation and implementation of a Statement of Principles in your 2017 Annual Report.
The LSCU has explained that:
The intention of the statement of principles is to demonstrate a personal valuing of equality, diversity, and inclusion with respect to the employment of others, or in professional dealings with other licensees or any other person. (emphasis in original)
Why is this a problem?
We expect most lawyers are sympathetic with the general goals of ensuring equal access to justice and eliminating racial and other forms of invidious discrimination from the legal profession. But whether or not one agrees with the LSUC’s principles, or even the LSUC`s specific interpretation of them, this is an unconstitutional imposition of compelled speech that exceeds the Law Society`s statutory mandate and violates Sections 2(a) and 2(b) of the Charter of Rights and Freedoms.
The LSUC is requiring lawyers to go beyond obeying anti-discrimination and other human rights laws. It is forcing them to personally endorse a specific interpretation of a set of principles that have political and philosophical dimensions. It is, in the LSUC’s own words, requiring licensees “to demonstrate a personal valuing of” its specific interpretation and application of the ideas of “equality, diversity, and inclusion.”
Even being asked to state principles with which one agrees is a form of unconstitutional compelled speech. The government, in this case through the monopoly powers it has given to the Law Society, cannot make citizens write down and disclose their innermost beliefs, values, and principles, and it certainly cannot force us to “demonstrate a personal valuing” of a specific template of principles drafted by an arm of the government.
What has the Supreme Court of Canada said about compelled speech?
The Supreme Court of Canada has said that requiring people to sign statements of this sort – even well-intentioned statements, with which they may agree – is unconstitutional and “totalitarian”:
However admirable the objectives and provisions of the Code may be, no one is obliged to approve of them: anyone may criticize them, like any other statute, and seek to have them amended or repealed, though complying with them so long as they are in effect. Remedies Nos. 5 and 6 thus force the Bank and its president to do something, and to write a letter, which may be misleading or untrue. This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada. (emphasis added)
National Bank of Canada v. Retail Clerks’ International Union (1984)
Are there any other problems with the new obligation?
The new Statement of Principles requirement exceed the LSUC’s mandate as set out in the Law Society Act and the obligations set out in the Code of Professional Conduct. In other words, the LSUC does not have the legal authority to impose this new requirement.
For more on this, please see Prof. Leonid Sirota’s discussion here.
What, exactly, are lawyers being required to endorse?
The LSUC has attempted to define some of the terms in the new Statement of Principles, but they remain vague enough that licensees can’t really know the practical consequences of what they are endorsing and agreeing to do.
For example, the Law Society’s own legal opinion says that they “had difficulties interpreting the word “generally,” in the requirement that licensees promote these values not only in their professional life but “generally” and recommended that the LSUC “clear up this ambiguity.” The LSUC did not.
No lawyer would advise a client to sign a statement so vague, especially without knowing the consequences.
What effects will the Statement of Principles have on lawyers’ and paralegals’ freedom of expression?
Our society guarantees freedom of speech and conscience as goods in themselves and also to preserve the ongoing free, public, and vigorous exchange of views that is necessary for the development of law and society. The new requirement will violate some lawyers’ freedom of conscience and will chill speech and expression of other lawyers, even ones who may agree with the underlying principles, as they can’t know what actions or statements will violate the Statement of Principles they have been forced to draft, and won’t want to risk discipline by the Law Society.
For example: Would campaigning to repeal the requirement be a violation of the requirement?
Depending on how they are interpreted, even well-intentioned concepts like diversity, equality, and inclusion are subject to quite different and contested interpretations; and depending on how they are applied, they can produce a range of possible policies that are and should be open to reasonable disagreement in a free society. Forcing licensees to say that they will promote and “demonstrate a personal valuing” of a specific interpretation of broad principles circumscribes lawyers and paralegals freedom to engage in a robust and democratic debate of the ideas and policies they may give rise to.
What good will the Statement of Principles do?
The LSUC has not shown that the new Statement of Principles requirement will do anything practical at all, let alone anything significant enough to justify violating licensees Charter rights. To put it in constitutional terms, there is no "rational connection" between the new requirement and the Law Society's goals. If there is a problem with diversity, equality, or inclusion within the legal profession, mandating that lawyers sign and personally adopt a template statement and file it away in a drawer hardly seems likely to remedy it.
What have others said about the Statement of Principles?
Here are some other sources that discuss problems with the Statement of Principles requirement (note, we do not endorse any specific statement or view in these links):
Prof. Leonid Sirota:
Prof. Bruce Pardy:
Journalist Jon Kay:
A two-part podcast by Prof. Jordan Peterson, with guests Bruce Pardy and lawyer Jared Brown:
- "A Call to Rebellion for Ontario Legal Professionals" (Oct 10, 2017)
What can I do if I object to the new requirement?
If you are a licensee of the LSUC, you will be required to draft your Statement of Principles by December 31, 2017, and to report on whether you have done so in your 2017 Annual Report, which is due by March 31, 2018.
It is up to you to decide whether you want to comply with the new requirement, but if you do not, the LSUC has said you will have an option in your Annual Report to explain why you have not done so. One option would be to tell the LSUC simply: “I object to this requirement in principle and believe it to be unconstitutional.”
If you are a member of the general public and not a licensee of the LSUC, your voice is still important as the LSUC’s mandate is to serve the public. You can write to the LSUC to express your views, positive or negative, about the Statement of Principles requirement:
Law Society of Upper Canada
Mailing address and directions:
And, of course, you can donate to the Canadian Constitution Foundation, which is supporting Prof. Ryan Alford’s challenge to the new requirement. As a registered charity whose mission is to defend our constitutional rights and freedoms, we rely on donations from people just like you to fight for your rights.