I cannot support the statement of principles for at least two reasons: It violates the right to free speech and the right to religious liberty.
The Law Society of Ontario has implemented a policy requiring its licensed lawyers and paralegals to create and abide by an individual statement of principles. In this statement, licensees must acknowledge their obligation to promote equality, diversity and inclusion, generally, and in their behaviour toward colleagues, employees, clients and the public.
Before this policy took effect, there was robust debate, pitting supporters against critics. The LSO bencher elections are just around the corner and the polarization has re-emerged. I cannot support the statement of principles for at least two reasons: It violates the right to free speech and the right to religious liberty.
The LSO has a legitimate interest to regulate the profession and, perhaps, ensure that the legal profession is free of sexism, racism and homophobia. This role is so vital that the LSO and indeed Ontario society must work hard together to fight these vices.
The SOP, however, does not just romanticize equality, but it compels its licensees to profess that they have carried out and believe in a policy. This is unconstitutional coercion.
As a Canadian licensed driver, I have an obligation to obey speed limits on the roads. However, I should not bear further obligations to profess, publicly or privately, that speed limits are good and that I have personally followed them. The government cannot compel me to speak a certain way, even if what it wants me to speak is right and true. It is rarely the content of propaganda that makes it unlawful but the coercive means used in its propagation. The values of diversity, inclusion and equality can themselves be betrayed by a government actor who insists on using coercion and force to implement their importance.
While the LSO has the mandate to regulate lawyers, it has no mandate to regulate the Ontario or Canadian public. The LSO cannot do indirectly what it cannot do directly. The Ontario public bears no obligation to promote inclusion, diversity and equality, and since the public does not have that obligation, a state actor should not compel lawyers to behave in a way that promotes those values to the very public that has no such obligation.
Cultural and religious communities, which are part of the Ontario public, do not have an obligation to enforce or promote equality, inclusion and diversity, in the same sense that the SOP requires. Insisting that a lawyer behaves inclusively before the Ontario public pits lawyers against the very public they are called to serve. Ontario lawyers attend exclusive Friday prayers, celebrate mass on Sunday and worship in temples. These are social institutions with constitutionally protected rights to religious discrimination.
As a visible minority (Ushi tribe, Zambia and Katanga) in Canada, I see why the SOP could be appealing to racialized lawyers. However, no matter how aggrieved we are with historical injustices and discrimination, we must not allow a state-sponsored violation of fundamental liberties to be used to address these. Lawyers play an essential role in our society; that role, however, does not include becoming state agents that parrot state-sponsored speech.
Lawyers are called to serve the public. This public, unfortunately, includes racists and some criminals. The idea that lawyers exist to help only a particular kind of Canadian is repugnant to the rule of law. When we impose morality and decency as the prerequisite to providing or receiving legal services, we are insulting a central tenet of a free and democratic society.
I am skeptical whether the SOP would promote diversity in the legal profession. Nothing promotes diversity better than diversity in the institutions that matter. The LSO must become a visible partner in demanding judicial diversity from politicians who appoint judges. Having a racially diverse bench is a much more noticeable way to promote diversity in the legal profession than asking every lawyer to sign a piece of paper professing that they have behaved in an inclusive or diverse manner.
As an Alberta lawyer, I don’t believe a law society in Canada, as a state actor, should force lawyers to profess that they not only believe in inclusive values but also that they will openly promote these values inside and outside the legal profession. Both Ontario and Canada already have legislation in place that prohibits discrimination; there is no need for the law society to come up with new rules, particularly if the new regulations violate the Charter. There is no need for this extra licensing burden on lawyers.
If we already have a plethora of statutes that prohibit discrimination by lawyers, why should lawyers have this additional burden of making a declaration? The LSO wants to go beyond its mandate by trying to regulate areas that it has no duty to regulate: the diversity of opinions regarding equality and inclusion in a free and democratic society.
Elias Munshya practises law at MUNSHYA LAW, an Alberta law firm based in Calgary and Red Deer.
