The Law Society of Ontario (LSO) is once again facing a court challenge claiming that it has violated Section 2 of the Charter of Rights and Freedoms, which protects the right to freedom of conscience, speech and religion. This court challenge follows the LSO’s successful defence of its decision to refuse to accredit the proposed law school at Trinity Western University (TWU) because of a requirement that attendees sign a covenant agreeing not to engage in homosexual activities. The LSO took the position that this prevented equal access to the legal profession in Ontario by excluding individuals who identified as LGBTQ.
The new battle relates to a statement of principles that the LSO requires lawyers to provide as of last year. It’s another example of the LSO attempting to enshrine principles of diversity, anti‑oppression and anti‑discrimination in a profession that is known for its lack of inclusiveness and diversity. In this case, the opposition to advancing these values is coming from other lawyers and is proving to be divisive for the governing council of the LSO — the democratically elected body that oversees its governance
What is the statement of principles?
The statement of principles, according to the LSO, is meant to reaffirm existing obligations of lawyers under the rules of professional donduct to behave in a non‑discriminatory way and complies with human rights legislation. It is one of 13 recommendations made in a report produced by the LSO on how to address systemic racism in the profession.
The requirement is that each lawyer sign onto a statement that acknowledges “their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.” While template statements are provided, lawyers are free to draft their own statement — in their own words.
The statement of principles mirrors pre‑existing obligations under the rules of professional conduct, which require lawyers licensed to practice law in Ontario to:
a) respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on the basis of grounds protected by human rights legislation.
b) ensure that no one is denied services or receives inferior service on the basis of the grounds set out in this rule or that its employment practices do not offend this rule.
Lawyers must also “encourage respect for and try to improve the administration of justice.“
Opposition to the statement of principles seems to be rooted in the notion that it is compelled speech, violating Section 2(b) of the charter which protects the right to freedom of expression. The opposition takes issue with the reference to “promote” in the statement of principles requirement. They indicate that no lawyer should be obliged to promote a political perspective or agenda.
The rules of professional conduct were not amended by the statement of principles. The obligation to “encourage, respond for and try to improve the administration of justice” is a longstanding obligation of lawyers. In my view, this includes promoting equality, diversity and inclusion generally, and is in keeping with the special responsibility that lawyers have under the rules of professional conduct. An individual who does not want to abide by these principles should not be licensed, for the very reason that justice is for everyone and is meant to be inclusive — even if the reality is that it is often inaccessible and exclusive.
To many racialized lawyers in Ontario, me included, the opposition to the statement of principles came to the forefront after the most recent elections for the LSO governing council. A slate of lawyers opposed to the statement of principles was elected with overwhelming support from those lawyers in Ontario who bothered to vote (only 29.97 per cent of lawyers did vote). The results demonstrated that lawyers in Ontario were either overwhelmingly in opposition to taking steps to ensure diversity in the legal profession, or were too apathetic to care that recommendations designed to help racialized lawyers were under threat.
The court challenge: is the Statement of Principles compelled speech?
Despite the divisiveness within the LSO, the Supreme Court of Canada decision in TWU v Law Society of Upper Canada (now known as the LSO), provides some hope that at least the statement of principles would be upheld in the face of the court challenge. In TWU, the Supreme Court found that:
As a public actor, the [LSO] has an overarching interest in protecting the values of equality and human rights in carrying out its functions… The [LSO was] entitled to interpret the public interest as being furthered by promoting a diverse bar. Access to justice is facilitated where clients seeking legal services are able to access a legal profession that is reflective of a diverse population and responsive to its diverse needs.
The statement of principles does require lawyers to make certain statements. However, in TWU the Supreme Court found that the LSO is responsible for promoting the public interest in the legal profession through furthering principles of diversity and reasonable limitations to the right of freedom of expression and religion may be justified.
The LSO dispute and public faith in the legal system
When I first heard of the statement of principles requirement, I too was opposed to it, but not for reasons related to freedom of speech. I found it to be a recommendation that paid lip service to actually doing something that addressed the challenges that racialized lawyers face. It wasn’t enough. Seeing the opposition to the statement of principles reinforces that the profession has a long way to go in enshrining meaningful diversity.
The LSO conflict over the statement of principles is reflective of the current political environment, both in Canada and globally. Freedom of speech is seen as something that “trumps” equality rights. But this is certainly not how the charter was crafted — it has always sought to balance the rights that it protects.
The divisiveness on this issue will impact the public’s perception of the legal profession and its commitment to justice for everyone. The apathy of lawyers not impacted by the issue directly, together with the overzealousness of lawyers opposing the statement of principles communicates to racialized lawyers and the public that the profession — and access to justice — is not meant for everyone.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
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