By Elias Munshya, LLM, MBA, M.DIV.
The Law Society of Upper Canada (LSUC) is now requiring that its licensed lawyers and paralegals create and abide by an individual Statement of Principles that acknowledges their obligation to promote equality, diversity, and inclusion generally and in their behavior towards colleagues, employees, clients and the public (emphasis mine). Apparently, this is part of its implementation of resolutions adopted by the LSUC’s Convocation in December 2016.
Jennifer Quito, a lawyer who has been involved in the study and adoption of the resolutions has written for lawtimesnews.com on “Correcting the Record on LSUC Diversity Statement” (http://www.lawtimesnews.com/author/jennifer-quito/correcting-the-record-on-lsuc-diversity-statement-14815/#).
I wish to respond.
First, the fight against bigotry is positively praiseworthy. The LSUC must be commended for coming up with several initiatives aimed at uprooting racism, bigotry, and discrimination. We share with our colleagues in Ontario the desire to see an inclusive legal profession that is respectful of diversity. However, those who support the Statement must know that our opposition to the Statement is not a personal attack on them. We oppose the Statement in so far as it claims to offer a remedy it cannot provide. We oppose it because it fundamentally betrays the very ideals we desire to promote: an inclusive diverse community.
Second, Quito writes that the Statement does not violate the Charter right to freedom of expression. However, the Charter has several other rights. The Statement requires lawyers to commit to behaving in a certain way toward the public. The issue here is that the public has Charter-protected rights that we as lawyers must not infringe. After declaring that the Statement does not violate the Charter, Quito goes further by stating that the Statement would “comprise a reasonable and demonstrably justified infringement of this right”. Under no circumstances should lawyers ever justify infringement of the public’s Charter rights.
Quito’s argument that the Statement directs “action, not belief” is not comforting either. I can’t really do well with splitting hair, but any regulatory requirement that requires licensees to “acknowledge something” actually coerces both belief and action. While lawyers have the obligation to not discriminate, lawyers do not have the obligation to tell the public not to discriminate in the areas, such as religion, where it is permissible for some members of the public to discriminate. The lawyer’s obligation to the rule of law includes an obligation to encourage the rights of the public –rights we may find objectionable, useless or unjustifiable. Lawyers are not the police of public opinion or public action.
Third, Quito writes that the resolutions including the Statement have their genesis in “robust quantitative and qualitative research”. The issue with the so-called Statement is a constitutional one. Charter rights are Charter rights. You cannot justify infringement of those rights on the basis of “robust research” and neither can you intimidate those opposing the Statement by claiming the sword of robust research. Any research that justifies the violation of Charter rights, no matter how robust you claim it is, is still a violation.
Fourth, Quito’s dismissal of those opposed to the Statement as a “handful of licensees”, demonstrates a kind of elitism and arrogance endemic in the legal profession including among the so-called “racialized lawyers”. If this handful is raising some concerns, it would be prudent for the profession to listen and to make changes where needed rather than dismiss those opposed. The question is not really that we do not need diversity, but whether it should be the state’s role to enforce compliance in the manner of the Statement.
Fifth, Quito tries to clarify that non-compliance will not result in the loss of a licence. That which violates Charter rights cannot be justified simply by assuring people that they will not lose the licence. The Statement, in its present shape and form, should not be there in the first place as it is completely unnecessary and violates the Charter. The idea that we should not be concerned because non-compliance will not lead to loss of a licence is not comforting. In fact, the very assurance that lawyers will not lose their licence raises suspicions about the state actor’s real motive. If this requirement is meaningless and non-compliance attracts no penalties, why have it in the first place? Strange that Quito states that “instead of attracting a penalty, non-adherence will result in the continued opportunity to comply.” However, non-violent coercion is still coercion.
Sixth, Quito asks why we are opposed to the Statement when the law, regulations and codes exist that impose the duty upon lawyers to not discriminate? That is exactly the point. The law already exists. Lawyers already take the oath of office. Why should the LSUC require the Statement when non-compliance attracts no penalty? Aren’t the plethora of rules, regulations, codes, and laws enough to arrest discrimination among Ontario lawyers? Alternatively, there is something being added to the Statement that goes beyond what is required by the barristers’ oath. For me, it is this expectation that I must, by my behavior, towards the public acknowledge inclusiveness, equality, and diversity when the public has the right to exclusiveness, dissimilarity, and uniformity.
Lastly, Quito then casts the Statement in terms of racialized licensees facing systemic barriers. We all agree that racialized licensees face systemic barriers. I most probably do. However, a Statement that obligates lawyers to police public inclusion, diversity, and equality does not help break the barriers. And that is why we have the duty to resist the Statement.
I agree with Quito that we as lawyers have a great privilege. However, we need to listen to each other very deeply. Perhaps we need to throw away some of this elitist “robust research”, and ask what others are really saying about the Statement. The answer could be simple: some licensees in Ontario and across Canada are concerned that the LSUC wants to do more than just promote inclusiveness, diversity, and equality. It wants to control people’s beliefs, thoughts, and attitudes. Hence the pushback.
Elias Munshya is a member of the Law Society of Alberta. He is a civil litigation lawyer at a boutique law firm in Calgary, Alberta and writes for www.eliasmunshya.org on law, culture, politics, and theology.