EDI Initiative as a Threat to Traditional Freedoms
Background: In September 2017, Ontario lawyers were informed by the Law Society of Ontario that they were expected to comply with a set of strategies adopted by the Law Society to address barriers to admission and within the profession faced by racialized licensees and other equality seeking groups. The strategies comprise the EDI Initiative. One of these strategies was the requirement (Recommendation 3(1)) requiring Ontario lawyers “to create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity, and inclusion generally, and in your behaviour towards colleagues, employees, clients, and the public.” This Statement of Principles is referred to as “SOP.” Another strategy is the requirement that, for any legal workplace that has ten or more licensees (lawyers), the workplace must have a Human Rights and Diversity Policy that addresses fair recruitment, retention, and advancement of racialized persons and minorities.
Rules of Professional Conduct: The Rules of Professional Conduct set out a lawyer’s professional and ethical obligations. These include the following:
- A special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario (Rule 2.1 - Commentary).
- The obligation not to discriminate on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability with respect to professional employment of other lawyers, articled students, or any other person, or in professional dealings with other licensees or any other person (Rule 6.3).
- A respect for the dignity and work of all persons and to treat all persons equally without discrimination (Rule 6.3 - Commentary).
The new strategies of the Law Society of Ontario go beyond the requirements of the Rules of Professional Conduct by requiring Ontario lawyers to be part of the Law Society’s “accelerating culture shift” initiative and, in particular, the requirements of the Statement of Principles.
SOP (Recommendation 3(1))
Recommendation 3(1) of the Law Society of Ontario requires all Ontario lawyers to create and abide by an individual Statement of Principles (SOP) that acknowledges the lawyer’s obligation to promote equality, diversity, and inclusion generally, and in the lawyer’s behaviour towards colleagues, employees, clients, and the public. The promotion of equality, diversity, and inclusion is nothing less than requiring all Ontario lawyers to subscribe to a set of personal values which our Regulator (Law Society) wants advanced in our profession. This promotion of personal values goes beyond respecting the dignity of individuals, respecting human rights laws, and treating all persons equally without discrimination.
Personal Values vs. Conduct
In effect, SOP imposes a mandatory obligation on individual lawyers to personally value equality, diversity, and inclusion, the definitions and interpretations of which will be in the exclusive domain of the Law Society of Ontario. Also, compliance will be monitored by our Regulator with enforcement determined by it. The Law Society has attempted to characterize equality, diversity, and inclusion in its Statement of Principles as simply a set of behavioural “standards or criteria.” It is seeking collective behavioural conformity to its set of values on the basis that it does not engage the thought, belief, or opinion of individual lawyers. This is a fiction. It denies the reality that equality, diversity, and inclusion are personal values and, as such, are inherently thought, belief, and opinion. As Justice Sharpe, in the case of E.T. and the Hamilton-Wentworth District School Board stated, “Equality, inclusivity, and acceptance of differences are values, not facts.” As such, the requirement to adhere and promote such values engages the freedoms of lawyers under the Charter of Rights and Freedoms.
Charter of Rights and Freedoms
Under the Charter of Rights and Freedoms (section 2), everyone has the following fundamental freedoms:
- Freedom of conscience and religion;
- Freedom of thought, belief, opinion, and expression...
The mandatory nature of the Law Society’s prescribed set of values is an infringement of these freedoms. Compelling a lawyer to adopt and promote this particular set of values makes the lawyer an agent of its Regulator in carrying out the Regulator’s policy initiative. Whose equality, diversity, and inclusion? It will be the Law Society’s definition of these terms which will require conformity by Ontario lawyers. It does not define “diversity,” but on its website the Law Society makes clear the type of “equality” that it is looking for. It is not the type that “treats all people the same for all purposes,” rather it is the type of “equality” which will be achieved by imposing measures and remedies to achieve a social goal. The Law Society is not looking to create an equal opportunity for all citizens, including minorities, to enter the profession and advance within the profession. Its goal is to achieve an equality of outcome that prefers racialized persons and other minorities in gaining entrance into the profession and being promoted within it. This will be achieved by quantifying and measuring outcomes mathematically. It is reasonable to infer that quota-based outcomes are what the Law Society has in mind in achieving the results it desires. What is not referenced in the materials is the place of merit and industry as values relevant to admission into the profession and promotion within it.
The materials and presentation of the EDI Initiative by the Law Society of Ontario lead to the conclusion that the plan is to require lawyers to adopt the values of equality, diversity, and inclusion in its Statement of Principles without triggering any alarm bells. Who can possibly be against such values? However, all indications are that getting lawyers to “sign on” to this Initiative is step one in a well-designed plan. The materials indicate that lawyers will be expected to “cooperate and engage in any efforts of the Law Society... to advance EDI in the legal profession and in the broader community.” Therefore, it is reasonable to anticipate that the future efforts of the Law Society, when it gives more definition and interpretation to the values of equality, diversity, and inclusion it has in mind, will give rise to conflicts with the personal values of individual lawyers and interference with the thoughts, beliefs, and opinions of lawyers.
More disturbing still is the fact that the promotion of equality, diversity, and inclusion is a requirement that goes beyond the workplace (colleagues, employees, and clients) and extends into the lawyer’s public life. The Statement of Principles specifically states that a lawyer is obligated to “promote equality, diversity, and inclusion in..... the public.” For religious lawyers, it means that however the principles of equality, diversity, and inclusion come to be defined by the Law Society of Ontario, it is expected that those definitions will be taken into the lawyer’s church, synagogue, or mosque and promoted there as well. For all lawyers, it will mean these values as defined by the Law Society will have to be promoted in a manner and way that will be directed by our Regulator as it rolls out its plan.
Personal Values v. Ethical Values
Like most professions, lawyers share common ethical values such as honesty, integrity, and good faith. Ethical values are behavioural standards which govern how lawyers relate to one another, with their employees, and in their relationship with their clients. They are most pertinent to the delivery of legal services and the administration of financial matters. But ethical values are not the same as personal values. Equality, diversity, and inclusion are not ethical principles or morals. They are social or economic constructs into which a Regulator pours its requirement to carry out its particular social and economic agenda (referred to as a “Culture Shift” by our Law Society). These constructs engage the thoughts, beliefs, and opinions of individual lawyers. As such, lawyers may hold different views on these matters and disagree about what is good for themselves, their families, their profession, and society generally.
The Statement of Principles proposed by the Law Society of Ontario in its EDI Initiative is the first foray into the personal lives of Ontario lawyers. Today, it is the personal values of equality, diversity, and inclusion. It is unknown what additional social and economic constructs it may make mandatory for lawyers in the future. What is certain is that allowing the Law Society of Ontario to open this door will result in individual lawyers acceding more and more of their individuality and autonomy to its Regulator in the years ahead. This is already happening.
The EDI Initiative by the Law Society of Ontario as formulated in its Statement of Principles is profoundly disturbing. Fundamentally, it lacks the transparency and integrity one would expect of one’s governing body. It is so badly conceived and poorly presented that it needs to be abandoned completely. It requires all lawyers of conscience to STOP SOP in order to maintain and protect the cherished independence and freedoms lawyers have inherited and to which they have been entrusted.
By Michael A. Menear