Every year, lawyers in Ontario are required to fill-out an annual report and submit it to the Law Society of Ontario (LSUC), the legal regulator in Ontario. The report addresses trust accounts, client identification and the scope of one’s practice. This year, however, a new question has been added along with a new “obligation.”
The 2017 annual report, which is due March 31st, requires lawyers to confirm that they have a written Statement of Principles that confirms an obligation to “promote equality, diversity, and inclusion.” I just completed my annual report, and when I was asked if I had a Statement of Principles, I checked off “no.” I’m not the only one to do so, but here’s why I chose not to check off “yes.”
First, I have no opposition to equality, diversity or inclusion. I do have concerns with how the LSUC has defined those terms. Over the past few years, it rejected a bid by Trinity Western University, an openly Christian university, to open a law school. Further, it aggressively litigated that dispute all the way to the Supreme Court of Canada. So, in the LSUC’s view, the concepts of equality, diversity, and inclusion may not leave room for Christians or others who have different views on marriage and sexuality.
But my concern with the Statement of Principles goes much deeper than that. It requires me to “promote” a particular ideology. The LSUC, in response to significant pushback from lawyers and the general public, has argued that the Statement of Principles is simply recognition of existing professional requirements by lawyers. Here’s the problem: there are no such obligations. They have been fabricated out of thin air.
Lawyers are prohibited from discriminating against colleagues, employees, clients, members of the public or other lawyers. We are not required to promote or advance any particular type of ideology. Further, these obligations are limited to our practice of the law; they do not spill-over into our private lives. For example, I am a member of a Christian church. To be a member of that church, you must be a professing Christian, and you must subscribe to a particular set of theological and doctrinal views: Not very inclusive. In that church, only men can hold certain office: Not very equal. I am also a member of a private men’s organization that is devoted to promoting Greek culture: Not very diverse. By being members of both those organizations, could I be failing to meet my “obligation” to promote diversity and inclusion?
The fabricated obligation to “promote” these values also doesn’t fit in with my professional life. Most of my clients are religious individuals, organizations, churches, and charities. That being the case, I have regularly assisted clients with issues that may be considered contrary to the LSUC’s views of equality, diversity, and inclusion. When I do so, am I again failing in my obligation to promote these views? I acted for interveners supporting Trinity Western University in six cases, including the two that were before the Supreme Court last year.
Oops, is that a violation of the obligation?
Beyond the incoherence of the fabricated “obligation,” the real issue is that the LSUC is going far beyond the authority the Ontario Legislature conferred upon it. The LSUC was created to regulate the practice of law in Ontario. It sets educational standards, professional standards, and rules of conduct. The LSUC cannot impose an ideology or philosophy on its members.
The LSUC is not a voluntary association. I am required to be a member of the LSUC. If one day, the LSUC compels its members to promote an ideology or philosophy that I cannot agree with, my only option is to withdraw from the practice of law in Ontario.
If the leadership of the church or men’s club I discussed above take those organizations in a direction that I am uncomfortable with, I have the option of simply withdrawing my membership. However, the nature of the LSUC is such that my ability to earn a living and practice my profession is tied to my membership in the LSUC. It’s very much like unions. The difference with unions, however, is that the Canada Labour Code provides an accommodation if someone has a religious objection to membership in a union. The LSUC however, won’t let conscientious objectors opt-out.
I’m always reluctant to invoke 1984 when talking about government overreach, but there isn’t a better word to explain the LSUC’s Statement of Principles: It’s Orwellian. It forces members to accept, adopt and promote an ideology under the penalty of professional discipline that could result in losing one’s ability to earn a living. The implications here are severe: Get in line or give up your profession.
Last year, the LSUC voted to change its name from the Law Society of Upper Canada to the Law Society of Ontario. The move was done in part because the name was anachronistic, colonial and archaic. The LSUC needed a more modern name that is relevant and understood. Perhaps it should have changed its name to the Law Society of Orwell.
In the annual report, if you check “no”, as I did, you must provide an explanation. The explanation I provide is below:
I am in favour of equality, diversity and inclusion as properly defined. I have concerns however about how the LSUC has defined those terms, for example, in relation to Trinity Western University' proposed law school. LSUC's definition of diversity and inclusion do not include differing views on marriage and sexuality.
In any case, I ensure that my interactions with colleagues, employees, clients, the public and other counsel are consistent with the principles of equality, diversity and inclusion, as properly defined, and I ensure that those interactions are consistent with my obligations under all legislation and regulatory bylaws and policies.
I recognize the LSUC's statutory authority to regulate the practice of law and ensure that certain professional standards are met, but I reject that the LSUC has authority to require me to "promote" a particular ideology, even if I happen to agree with that ideology.
My obligation as a lawyer and member of the LSUC is to comply with the Rules of Professional Conduct, the Ontario Human Rights Code and the Solicitor's Act. Nothing in that legislation or in the Rules of Professional Conduct require me to "promote" or "advance" any particular ideology, including equality, diversity and inclusion. I have acted for employers or service providers who were faced with human rights complaints alleging that they discriminated against employees or members of the public. If I have an obligation to "promote" or "advance" equality, diversity and inclusion, I would be failing in that obligation by representing them.
Finally, imposing an obligation to promote a particular ideology and craft a written statement violates a number of my Charter rights including:
- my freedom of conscience
- my freedom of religion
- my freedom of expression
- my freedom of thought
- my freedom of belief
- my freedom of opinion
- my right to equal treatment under the law on the basis of religion.
Convivium means living together. We welcome your voice to the conversation. Do you know someone who would enjoy this article? Send it to them now. Do you have a response to something we've published? Let us know!