The governing board of the Law Society of Ontario (Benchers) is scheduled to meet in Convocation on June 27, 2019. As part of the meeting they will be considering the repeal of the compulsory Statement of Principles implemented in October 2017. The Statement of Principles reads: “I declare that I abide by a Statement of Principles that acknowledges my obligation to promote equality, diversity and inclusion generally, in my behaviour towards colleagues, employees, clients and the public.” Below is my letter to the Benchers.
June 18, 2019
The executive summary of this letter is, along with a substantial number of those who voted in the recent Bencher elections, I am opposed to the Statement of Principles (SOP). I have been since initial notice of the SOP set my human rights advocacy senses tingling at the danger inherent in ticking the yes box on the Annual Report.
The SOP is one in a string of actions that cause concern Benchers might have lost touch with being lawyers, as most are, and regulators of the legal profession on behalf of the people and government of the Province of Ontario. Instead, Convocation has in recent years seemed more interested in acting as judges and politicians on behalf of its constituency of 50,000+.
The fifteen members of the Challenges Faced By Racialized Licensees Working Group are commended for their work, along with the effort of the Equity Initiatives Department, and the resulting recommendations in Working Together: Strategies to Address Issues of Systemic Racism in the Legal Profession. The solution to human rights apprehensions for an identifiable community, however, is not the abrogation of the rights of others. It perplexes me that a group of lawyers concerning themselves with human rights of members of the legal profession could arrive at a solution such as the SOP, and more so that a government authorized regulatory body composed mainly of lawyers would be inclined to implement the SOP as a mandatory measure. The SOP is an appropriate recommendation for consideration by members of the profession, perhaps even for exploration in the practise setting. Recommendations are, after all, in the normal course of events, recommendations for broader consideration. But imposition of the SOP is a violation.
When each of us accepted “the honour and privilege, duty and responsibility of practising law” in Ontario, we took an oath to conduct ourselves honestly and with integrity, to “champion the rule of law and safeguard the rights and freedoms of all persons” in addition to observing the ethical standards of our profession. This is a strong commitment, to which the vast majority of lawyers in Ontario adhere, and for which there is a disciplinary process for those who do not.
The compulsory requirement that every member of the law society implement a personal statement of principles acknowledging an “obligation to promote equality, diversity and inclusion generally” or face undefined potential penalty for ticking the no box suggests authoritarian impulse rather than thoughtful professional governance responding to a sensitive situation. We already have an obligation to respect human rights laws, among other laws, and adhere to the Rules of Professional Conduct.
No packaging or redefinition of the word promote could suggest other than an active engagement in advancing concepts undefined and undefinable.
Equality as a concept is elusive and lacks precise definition, according to the Supreme Court of Canada and as acknowledged by the LSO in its guidance on developing an SOP. Diversity and Inclusion carry similar precision to equality in their understanding. Lawyers were left to assess whether to define the undefined in a manner one hoped would comply, if one made the effort at all to draft a SOP, to simply tick the yes box on the promise the SOP would not have to be produced, or to tick the no box with uncertainty as to what the future might hold as a result.
As a profession, we are committed to champion the rule of law and safeguard the rights and freedoms of all persons. It would be only isolated members of the legal profession who would not stand with clients against a mandatory requirement such as the SOP in another public policy or administrative setting. The violation of freedoms of conscience, thought, belief, opinion and expression would be self-evident. The failure to identify consequences for non-compliance would have set alarm bells ringing.
Lawyers are persons. We fit into the category of all persons on whose behalf we committed in taking our oath. We are neither above nor below the law, nor above or below other persons.
This is a situation in which it is best to apply the human rights concept of formal equality, acknowledging freedoms described in the Canadian Charter of Rights and Freedoms, and remove the SOP requirement.
Substantive equality is already required of us by our oath and under provisions of the Ontario Human Rights Code, without the requirement to promote generally the undefined.
Perhaps, it is also time for Convocation to return to the raison d’être set out in the originating legislation for The Law Society of Upper Canada in 1797, “securing to the province and the profession a learned and honorable body, to assist their fellow subjects as occasion may require, and to support and maintain the constitution.”
If individual lawyers and law firms are held accountable for the commitments made when each of us was called to the Bar of Ontario, contributions such as Working Together: Strategies to Address Issues of Systemic Racism in the Legal Profession, Respect for Religious and Spiritual Beliefs: A Statement of Principles of the Law Society of Upper Canada, and other reports to the profession will help guide us, without the need for fear-inducing and freedoms violating requirements such as the compulsory SOP. Repeal the Statement of Principles requirement.