by Shree Paradkar
The law: a set of rules we agree upon to ensure peaceful coexistence. Throw in charter rights of equality and we have a fair, neutral system, right?
Not so fast.
Whether or not the legal system serves its communities justly, Ontario’s legal professionals are embroiled in a bitter dispute that challenges notions of equality – among themselves.
At the core, this question: Is asking lawyers to acknowledge obligations to promote equality all about social justice, or does it constitute an infringement on their freedom of conscience and expression?
On Monday, Ryan Alford, a law professor at Lakehead University, filed an application at the Ontario Superior Court to challenge the new “statement of principles” by
the legal profession’s regulatory body, the Law Society of Upper Canada.
The society, recently named the Law Society of Ontario, made it mandatory for licensees (lawyers and paralegals) to show in their annual reports that they are abiding by rules that “acknowledge their obligation to promote equality, diversity and inclusion generally, and in (their) behaviour towards colleagues, employees, clients and the public.”
Four years of consultations with racialized licensees, outside consultants and experts in the field of diversity led to this statement of principles; it is but one of 13 recommendations.
Well, what a lot of ballyhoo over a check mark that won’t do much to improve the lot of racialized licensees, who face systemic racism and discrimination.
The consultations heard they are not valued; barriers they face include assumptions of incompetence from judges, from clients, from colleagues – which then leads to denial of professional opportunities.
It’s not clear how legal firms claiming to support equality on paper establishes credible accountability.
Other recommendations include requiring firms with 10 or more licensees to develop and implement a human rights and diversity policy and requiring them to send a diversity self-assessment to the law society every two years.
The Canadian Association of Black Lawyers (CABL) said in a statement that while it did not think the recommendations went far enough toward effecting change, it supported them in the spirit of compromise.
Although the motion was debated and passed in December 2016, it has been playing out like the pitched battles that spill out on digital media, when demands for equality are framed as violations of free speech, but this time with legalese – and legal action – thrown in.
“We think that the debate has been framed as freedom of expression and conscientious objection – in a vacuum,” said Shawn Richard, CABL president.
“The question has to be asked – well, what are you conscientiously objecting to? You’re conscientiously objecting to reducing discrimination? You’re conscientiously objecting to promoting diversity? Inclusion? Equality?”
One law professor called the statement of principles an Orwellian dictate.
Another called it an unconstitutional compelled speech.
The law society says it is not policing lawyers’ thoughts or beliefs, it is asking that their conduct be in accordance to long-standing codes.
“It’s an obligation to promote equality, diversity and inclusion generally, which is nothing more than the obligation lawyers have already,” Paul Schabas, the law
society treasurer, told the Law Times.
Do the society’s rules spell this out? Apparently, it’s not just a matter of clicking control-F to find the right words.
The injunction filed Monday says this obligation is not supported in the existing code of conduct.
Alford, who filed the injunction, said on Wednesday that the “requirements that impose a duty on lawyers to state their personal agreement with a value – however laudable – will be unconstitutional.”
The words “acknowledging” and “promoting” are causing most grief.
On one side, “Why can’t lawyers simply acknowledge their obligation to equality?”
On the other, “Why are they being told they have a duty to promote equality?”
Emphasizing an obligation to equality in a plan to fight racism is a step so mild it begs the question, why was it even made?
That came down to a question in a 2013 survey asking lawyers to rate their support of this statement:
“It is important to reduce discrimination, but the professional’s main responsibility is to the client and making sure they’re being served by competent lawyers and paralegals.”
This is an obviously problematic statement that linked competence to race.
It suggests either you have a competent (white) lawyer or a racialized (incompetent) one.
Richard had a problem with it right away.
“I don’t think reducing discrimination and being served by competent licensees is an either/or proposition, but the statement presumes that to be true.”
When a large majority of white and minority licensees either strongly agreed or somewhat agreed with that statement, it showed Richard, “you have to start with what our obligations are.”
Shree Paradkar writes about discrimination and identity.
You can follow her @shreeparadkar.
Copyright 2017-Torstar Syndication Services