Day 6

Ontario's law society is tying itself in knots over diversity and compelled speech

A requirement that lawyers declare their obligation to promote diversity is proving controversial in Ontario. A decision could come next week.

A decision by regulator's board of directors is expected next week

An exterior of Ontario's Court of Appeal in Toronto.
A Law Society of Ontario requirement that lawyers acknowledge their obligation to promote equity and diversity has proven controversial. (Patrick Morrell/CBC)

In June, the Law Society of Ontario's board of directors held a meeting to discuss a controversial requirement that practising lawyers file annual paperwork with the provincial regulator acknowledging their obligation to promote diversity and inclusion.

The requirement also known as a statement of principles was one of 13 recommendations that came out of the law society's own report on the challenges racialized lawyers and paralegals face in their profession.

But it was met with contentious comments at the meeting, such as "the state is not allowed to put words in people's mouths," and "don't be fooled — this is about denying the existence of racism." 

A slate of lawyers was elected to the board this year on a promise to scrap the requirement. And the board is set to meet again on Sept. 11 to once again discuss and potentially vote on the fate of the statement of principles.

Diversity vs. compelled speech

Opponents of the statement of principles say it's not about rejecting diversity. It's about opposing what they say amounts to compelled speech.

"If you ask someone to obey the law, there's never a problem," said Ryan Alford, a law professor and a law society board member who opposes the statement of principles. 

"But what we've learned in our constitutional tradition is a very delicate balance between asking someone to uphold the law, to obey the law and to believe in, affirm, or promote the law." 

Law professor Ryan Alford says the Law Society of Ontario's requirement that lawyers promote diversity amounts to compelled speech and sets a dangerous precedent. (Amy Hadley/CBC)

Alford told Day 6 that as a lawyer, he obeys Canada's Criminal Code, but he'd refuse to say "the Criminal Code is great." 

"That's the very premise of our legal system  — you can say that something is wrong with the law, and the government doesn't punish you for saying that." 

Atrisha Lewis, who also sits on the board and supports the statement of principles, says that argument is "disingenuous." 

"I think about the ways in which the law society tells us what to think and what to say all the time," she said. 

Lawyer Atrisha Lewis says the Law Society of Ontario's role of advancing equality has already been affirmed by the Supreme Court. (Submitted by Atrisha Lewis)

"When you get called to the bar for instance, you have to swear an oath. And in the oath, you're committing yourself to the principles of justice and the rule of law. No one complains about that." 

Lewis also said the law society's role to advance equity and inclusion has been affirmed in the Supreme Court of Canada's decision in Trinity Western University vs. Law Society of Upper Canada. 

In that case, the court affirmed the law society's right not to accredit a proposed Christian law school because the school's community covenant outlaws gay sex. 

Inclusion not just another idea

Human rights lawyer Anthony Morgan says he doesn't buy the compelled speech argument against the statement of principles.

"We're talking about people's humanity and the inherent rights that we all have to be equal people," he said. 

"So to suggest that this is just another idea … shows their lack of regard for racialized people, where their race is not just an idea." 

White rage is not about individuals expressing direct animus towards racialized people, but it is more about institutions being mobilized to roll back advances for racialized communities.- Anthony Morgan, human rights lawyer

Morgan says he doesn't want to speculate on individual people's motivations for rejecting the principles. But he said institutionally, what's happening at the law society reminds him of what American academic Carol Anderson calls "white rage." 

"White rage is not about individuals expressing direct animus towards racialized people, but it is more about institutions being mobilized to roll back advances for racialized communities," he said.

"Regardless of your intentions, if you look at the outcomes and the impact, that's what we're talking about." 

Human rights lawyer Anthony Morgan says the law society's statement of principles isn't asking lawyers to promote just another idea because it's about people's fundamental right to equality. (Submitted by Anthony Morgan)

Law professor Alford says he believes the public interest is better served by a diverse legal profession, but "the public interest is against lawyers required to promote a particular value." 

"Once that precedent is set … the law society could then say, 'Well then you have to promote other values.'" 

Alford acknowledges racism exists in society so it exists in the legal profession, too. But he added that he hasn't seen any evidence to suggest racism is getting worse in the past few decades in the legal profession. 

Despite multiple reports on representation in the legal profession, Alford says he hasn't seen concrete evidence that racialized lawyers' lack of representation in senior roles is due to racism and not factors like age and years of experience. 

Discrimination 'a feature of daily life' 

The law society's own report found discrimination is "a feature of daily life for many racialized licensees." It also said racialized lawyers and paralegals have a lower success rate in securing job placements and finding their first jobs. 

Another report by the Canadian Centre for Diversity and Inclusion found racialized Canadian lawyers are underrepresented in leadership positions. 

In  2015, that report found 88.9 per cent of senior leaders who responded to the survey were white. In 2016, that number rose to 90.78 per cent.

Voluntary adoption also rejected 

At the June meeting, lawyers were debating two motions: one of them would have repealed the statement of principles altogether. The second option would have made it a voluntary, rather than compulsory, undertaking. 

Alford and many others rejected both options. Alford said he is worried about the possibility that the law society would keep a list of people who did not voluntarily adopt the statement of principles. 

This, too, sets a bad precedent, he said. 

"Imagine in a political context where, we say, 'This value of loyalty, fidelity [to] the Canadian state is of paramount importance' [and] the law society kept a secret list for those who refused to take it," he said.

"Would we really think that it was voluntary in those circumstances? I really think not."

To hear more from Ryan Alford, Atrisha Lewis and Anthony Morgan, download our podcast or click 'Listen' at the top of this page.