Canada

Ontario lawyers at odds over plan to tackle racism in their profession

Critic of new Law Society of Upper Canada rule taking the regulator to court to try and block it

Meagan Fitzpatrick - CBC News

November 08, 2017

Some lawyers in Ontario are at odds with their regulatory body, the Law Society of Upper Canada, over a new requirement that they say violates their constitutional rights. (CBC)

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."

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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.

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.

Shawn Richard, president of the Canadian Association of Black Lawyers, helped develop the policy and said it's just a starting point when it comes to breaking down barriers. He said the statement of principles is justified given what lawyers swear to in their oath and their existing professional obligations.

But Alford and other lawyers who object to the rule see it differently. They say it exceeds the law society's authority and infringes on their constitutional rights. They want a court to weigh in on it.

Critics argue rights violated

The statement of principles rule was adopted late last year and implemented this year. Members were recently reminded via email of their obligation to sign it by the end of 2017. They can write their own or use templates provided for them.

The law society has not specified what sanctions members will face if they don't comply.

Alford and other objectors said they don't disagree with the law society's objective of tackling racial discrimination in the profession, it's how the law society is going about it that they find problematic.

Ryan Alford is an associate professor in law at Lakehead University and is leading a court challenge against the Law Society of Upper Canada. (Lakehead University)

"The law society is behaving lawlessly. It is ignoring the limitations in the Law Society Act and that is very alarming to people, probably lawyers more than anyone else," said Alford.

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.

The group is a registered charity that says its mission is to protect freedoms under the constitution and it is funding Alford's court challenge.

Anglin and Alford said they know their opposition to the requirement might be "misinterpreted" as opposition to the promotion of diversity and equity in their profession.

"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.

Hadiya Roderique, who wrote an essay in the Globe and Mail about the roadblocks she faced as a person of colour in Toronto's competitive legal world, told CBC News she's in favour of the statement of principle requirement. 

She said those challenging it may not realize the impact that could have.

"If you're one of the lawyers who is objecting to this, how do you think all of the people of colour and the women at your firm feel? What kind of a message are you sending to your employees? What kind of people are going to want to join your firm?" she said.

Court challenge arguments 'weak'

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.

"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.

"I find that very disturbing and for me, it just confirms the need for this sort of measure," said Ryder.

'Real action is the order of the day'

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.

Shawn Richard is president of the Canadian Association of Black Lawyers. His group helped develop the Law Society of Upper Canada's strategies to reduce racism in the law profession. (Canadian Association of Black Lawyers)

Julian Falconer, a lawyer who co-chaired the law society's committee that came up with the statement of principles, said the court challenge won't deter the law society and that it will "stay the course."

"We made a commitment to the profession as a whole that we are not going to simply engage in platitudes, that real action is the order of the day," he said.

Falconer wouldn't comment on the merits of what Alford is arguing in his application, but he indicated he's not surprised by the challenge.

"I have spent close to three decades involved in advocacy in the area of ensuring and maintaining an anti-racist society. I expect to spend another several decades doing that," said Falconer.

"That is the way our society is, a real resistance to change."

ABOUT THE AUTHOR

Meagan Fitzpatrick
Reporter

Meagan Fitzpatrick is a multi-platform reporter with CBC in Toronto. She previously worked in CBC's Washington bureau and covered the 2016 election. Prior to heading south of the border Meagan worked in CBC's Parliament Hill bureau. She has also reported for CBC from Hong Kong. Follow her on Twitter @fitzpatrick_m

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