Granted, Canada is not the United States. But that doesn’t mean it doesn’t offer a vision of what could happen if well-intended people get their way here, as they have there.
A new requirement from the Law Society of Upper Canada aimed at tackling systemic racism in the legal profession has already generated heated debate among lawyers — but this week the controversy hit a new level as a law professor launched a court challenge to try and block the new rule.
The law society is making it mandatory for lawyers and paralegals to abide by what it’s calling a personal “statement of principles” that acknowledges they have an obligation to “promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.”
If this sounds familiar, consider what the American Bar Association is trying to do with its model rule 8.4(g), which, if adopted by state bars, would make it an ethical violation for lawyers to engage in “harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Then again, we have the First Amendment. Canadians do not.
Some critics say that’s “chilling Orwellian language” and that the regulatory body is forcing lawyers to express that they hold certain values. Those opposed to the statement of principle say it amounts to coerced speech, which they argue is a violation of the Charter of Rights and Freedoms.
The lawyers opposing the requirement that all lawyers sign an oath of obedience aren’t arguing that diversity and inclusion aren’t worthy causes, and certainly aren’t contending that they want the right to engage in discrimination. They just don’t want the Law Society of Upper Canada to have the authority to compel them to sign their allegiance to progressive politics.
Certainly, the law society — and professional bodies generally — has a responsibility to regulate the conduct of its members in the practice of their profession. But the statement appears to do more than this. First, it requires lawyers to conduct themselves in a certain way in their private affairs, which the law society has no business regulating. Second, it requires lawyers to not merely comply with law society rules, but to also affirm that they agree with them, which is a form of compelled speech.
What exactly this requirement means, what duties it imposes, what punishment can be levied for failure to swear, or comply, remains a mystery. Perhaps this is a rhetorical exercise of no actual consequence, beyond the fact that lawyers will be required to sign this “Statement of Principle.” But rather than wait until the significance becomes clear, the requirement is being challenged.
Ryan Alford, an associate professor with the faculty of law at Lakehead University, filed an application in Ontario Superior Court on Monday that seeks an injunction to block the requirement.
“We need to have an understanding about whether or not this is within the law society’s powers under the Law Society Act and whether or not it’s constitutional. I think a lot of people just want clarity on this,” Alford said in an interview.
This seems a rather benign effort, if it’s only to determine whether the law society has the authority to promulgate the rule. Others are more directly opposed to the compelled speech element.
Howard Anglin, a lawyer who is fighting the rule, said even if someone agrees with the values of equity and diversity, being forced to demonstrate that support “crosses a line.”
“It starts intruding into the hearts of citizens which is a place we don’t think government or arms of government like the law society should be inquiring,” said Anglin, executive director of the Canadian Constitution Foundation.
And Anglin emphasizes that the action isn’t taken because of an opposition to the underlying concept itself.
“It’s a concern to me but we are going out of our way to stress that our case is not about the underlying principles, it’s about the fact that lawyers are being asked to individually endorse certain principles,” said Anglin.
But if the opponents to the requirement all go under the nickname “Gertrude,” it’s proponents aren’t nearly as shy.
Other supporters of the new rule say the court challenge is a waste of time and they’re disappointed that it’s been launched.
Bruce Ryder, a professor at Osgoode Hall Law School, said he didn’t blink when he read the email about the requirement and that he views it as a “modest step.” He rejects the “weak” arguments put forward by Alford and Anglin.
Whether the arguments are viable is a matter of Canadian law. But the rationale proffered by Ryder should strike fear in lawyers everywhere.
“They make it sound like it’s some kind of tyrannical initiative that is contrary to our fundamental values — they are wrong,” said Ryder, a constitutional law expert.
Ryder said the critics are giving more weight to the “small incursions on their freedoms” than to the serious problem of systemic racism in their profession.
What’s a little freedom for a worthy cause?
The law society’s requirement is quite vague, “to promote equality, diversity and inclusion,” which could cover pretty much any claim to discrimination possible. But a key word is “promote.” The principle isn’t merely to not discriminate, even if against whom remains a blank, but to affirmatively “promote.”
For Canadian lawyers fighting against racial discrimination in the profession, they don’t really care whether anyone believes in their cause, as long as they can force change.
The statement of principles isn’t coercing lawyers to believe any particular thing, said Richard, the president of the Canadian Association of Black Lawyers.
“It’s not the law society’s business to do that. But the law society does have the right to require its licensees to conduct themselves in a particular way,” he said.
Of course, Canada already has broad laws prohibiting discrimination, including the criminalization of hate speech, so this additional bludgeon against lawyers may seem more problematic than it actually is. That said, the contention that it’s worthy to trade-off freedom for equality is a common theme that not only permeates progressive thought up north but here as well.
H/T Nigel Eklund