Over the past couple of weeks I've become Canada's most notorious law professor. I filed an application requesting the Superior Court of Ontario review the legality and constitutionality of the new requirement imposed by the Law Society of Upper Canada (LSUC) that lawyers and paralegals "demonstrate a personal valuing of diversity, equality, and inclusion."
My application has left some legal commentators positively perplexed. How can I oppose something as trivial as affirming my support for diversity? As Shawn Richard, one of the architects of the Law Society's policy, asked: "What are you conscientiously objecting to?"
More than anyone else, I have a responsibility to answer that question.
A coerced statement
I am not against the Law Society's efforts to promote equity, diversity and inclusion. More importantly, I'll happily take action voluntarily to promote these goals. Note it well: actions, not words.
My problem is not with the Law Society's policy, but with its methodology. The LSUC can and should promote these values in the context of regulating lawyers' conduct. But as an arm of the state, the Law Society cannot coerce me or any lawyer to say what my values are.
The late Justice Jean Beetz provided the pithiest explanation why the regulation of thoughts, values and beliefs is considerably more intrusive than the regulation of conduct. He noted that if the government requires us to do something that we disagree with, we can always do it under protest. But forcing us to state our agreement with a statement made by the government deprives us of the power to say or do otherwise. For that reason, Beetz concluded that forced speech was "totalitarian and as such alien to the tradition of free nations like Canada."
For similar reasons, in the United States, Justice Robert Jackson wrote in West Virginia v. Barnette that "if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." And, as Justices Black and Douglas noted in their concurrence: "Words uttered under coercion are proof of loyalty to nothing but self-interest," and are therefore pointless.
That decision allowed children who belonged to the Jehovah's Witnesses to return to school without having to salute the flag. In Canada, governments continued to persecute them for refusing to sing O Canada – which they believed would endorse bellicose nationalism – until the Supreme Court of Canada put a stop to it in 1959.
In the decades that followed, Canadians have done much better, especially in the legal profession. I applaud the Law Society for being careful not to coerce those entering the legal profession to swear an Oath of Allegiance, for fear of violating their rights.
It's easy to forget that decades of progress can be wiped out in an instant. Citizens who belong to religious groups subjected to significant persecution — especially those who have recently arrived as refugees from totalitarian states — can easily imagine the dangerous consequences of a values test compelled by forced speech.
Speaking out against forced speech
I have received many expressions of support recently from members of these groups. Some of these have come from racialized licensees. As you might imagine, those who have best reasons to be afraid of the consequences of forced speech are often the least likely to speak out against it.
I hope that as a cranky old white man I can make myself useful by defending their rights. I'm honour bound to do it in any event, as the Law Society made me promise to take action against injustice when I swore the required oath at my call ceremony. I promised then to defend the rights of everyone.
Of all the measures taken up by the Law Society to address discrimination — including those addressing the hiring practices of law firms — this requirement does the least, while at the same time casting a pall over the freedom of conscience and expression of every licensee. We shouldn't settle for empty words and expressions of self-interest when real action is possible.