Law society statement of principles enforced

No exemption on promotion of values

Lawyers and paralegals in Ontario will be required to adopt and abide by a controversial statement of principles in order to remain licensed by the Law Society of Upper Canada.

The rule was officially adopted late last year, one of many reforms to address systemic racism in the province’s legal profession. But it has not yet been enforced and a recent motion sought to allow members to abstain from making the statement on grounds of conscience or faith.

After a heated and protracted debate at the law society’s governing convocation, this motion failed at midday Friday, meaning the rule is valid and will be enforced. The official tally was not immediately available, but the vote was not overwhelmingly against. Many expressed support for the exemption for conscientious objectors, proposed by prominent Toronto lawyer Joe Groia.

Friday’s debate was not mainly about the content of the statement. Benchers on all sides repeatedly declared that support for diversity and equality was a fundamental value universally shared in the legal community. The objection was on the requirement to declare one’s obligation to promote these values, which Groia described as compelled speech.

Even if someone means it, they should not be forced to say it, he argued. If they do not mean it, the statement is hollow and false. Groia said the law society should “find other and better ways to advance those goals” of equality and diversity.

One bencher compared it to a U.S. case about forcing children to stand for the Pledge of Allegiance, which was rejected as a violation of free speech.

The reasons offered in support of Groia’s failed motion were varied.

Some were practical, such as the inevitable litigation when a lawyer decides to violate this rule and challenge it in court. This will come after a string of other cases that the LSUC has fought in court at no small expense.

Some were procedural, pointing out that the law society first said the content would not be formally dictated, but then offered a number of templates without being clear on what other versions might be acceptable.

Groia himself questioned whether the mandatory statement would even do anything to achieve or promote the goals of equality and inclusion.

“What do we gain by offending so many men and women of conscience and faith?” he said. “Why do we stubbornly refuse to fix the mess we have created?”

One of the most striking defences of Groia’s motion came from bencher Anne Vespry, an Ottawa lawyer who compared the statement to Bart Simpson writing “I will not be a bad boy again” on the blackboard — an empty gesture.

She argued that, while it is possible some objectors to the statement are trying to conceal their own prejudice, many supporters are “wrapping themselves in the flag of equality and diversity” as a way to bully others into submission. She said she used to think disagreement was always the product of inadequate evidence, misunderstanding, poor application of rules, wilful blindness or malice. But she has come to realize that conscience and faith can lead people of good will to vastly different perspectives that are not captured by simple rules.

She described herself as brown, biologically female, gender butch, queer, with a learning disability, mild physical disabilities depending on what the situation requires and mild to moderate post-traumatic stress disorder. She also used to work for Glad Day Bookshop, which sells literature aimed at a queer audience and has been at the centre of many legal fights over obscenity laws and free expression.

“I believe in free speech. I believe that controlling speech is a bad thing. When someone else controls our dialogue, people suffer,” she said. “Government censorship, government control of language killed people. People died because they did not get access to information.

“Ambiguity is antithetical to clarity,” she said and the statement of principles is “classically ambiguous language,” which can be interpreted “to mean kind of nothing at all.”

Before the vote, she said the failure of the motion would mean she will “look for a new career.”

Bencher Raj Anand observed that the stars have to align perfectly in order to achieve even the most modest reforms against systemic racism and this one should not be derailed because some people see it as an affront to their rights.

“Diversity and inclusion is not a zero-sum game,” he said.

Bencher Sandra Nishikawa, counsel at the Ontario Human Rights Commission who voted against the motion, said the debate had become academic. She said it elevates the abstract value of free speech over the real concerns of real marginalized people.

“We are not in a face-saving exercise here,” she said. “Equality is fundamental to everything we do.” The Law Society of Upper Canada won’t allow members to abstain from its statement of principles.