In the background materials posted on the Law Society website for Convocation in December of 2017, a brief of supportive letters was included. None of the many letters written by lawyers and legal associations which expressed concern about the Statement of Principles, or the EDI initiative generally, were included.
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Sep24MonSeptember 24, 2018
Annual Report Q.13
The Law Society of Upper Canada (the "LSUC") has asked me to prepare and abide by a Statement of Principle that "acknowledges my obligation to promote equality, diversity and inclusion generally, in my behaviour towards colleagues, employees, clients and the public” (the "Purported EDI Obligation").
Unfortunately, the LSUC has not provided any authority for the existence of the Purported EDI Obligation, nor responded to my repeated requests for an explanation of the source of this purported obligation. Indeed, it is telling (and disconcerting) that the "Guide to the Application of Recommendation 3(1)" cites section sections 6.3-1 and 2.1-2 of the Rules of Professional Conduct (the "Rules") as authority for this obligation, since neither provision, or the commentary thereto, so much as mentions such an obligation or could credibly be interpreted as imposing such an obligation. Indeed, with respect to section 6.3-1, the conclusion that the obligation not to discriminate in that section imposes a positive obligation to "promote equality, diversity and inclusion generally" is contradicted by the opinion of the LSUC's own legal counsel, dated November 16, 2016, which concluded that "promoting means “to encourage” and encouraging equality, diversity and inclusion is indeed something more than not discriminating". One might think, if there were a legal basis for this obligation, the LSUC could point to an authority which expressly states that members have a duty to "promote equality, diversity and inclusion generally, in my behaviour towards colleagues, employees, clients and the public”, That it has not done so, and indeed is compelled to rely, in part, on an argument that its own counsel has expressly rejected, strongly suggests that no legal basis for the Purported EDI Obligation exists.
In that light, given that the LSUC has identified no authority for the proposition that, as a licensee, I have an obligation to "promote equality, diversity and inclusion generally, in my behaviour towards colleagues, employees, clients and the public", I cannot, in good conscience, acknowledge such an obligation, nor prepare a Statement of Principles that does so. Indeed, to acknowledge a non-existent obligation would violate my duty under section 2.1-1 of the Rules to discharge my obligations honourably and with integrity (which obligation is set out expressly in the Rules). Honesty and integrity, in this context, demands that I assert that I cannot comply with the obligation to prepare a Statement of Principles in the form demanded by the LSUC because the LSUC has mandated that such a Statement of Principles acknowledge an obligation which does not exist.
If such an obligation does lawfully exist - for example, if the LSUC were to amend the Rules to lawfully impose such an obligation - I would, of course, acknowledge it, and prepare a Statement of Principles. Similarly, if the LSUC could provide actual authority for the existence of an obligation to "promote equality, diversity and inclusion generally, in my behaviour towards colleagues, employees, clients and the public" (perhaps by responding to my repeated requests that they do so), I would happily acknowledge such an obligation and, again, prepare an appropriate Statement of Principles. But in the absence of any authority for such an obligation, I cannot do so, I cannot reasonably be expected to do so, and I am disappointed that a regulatory body with a statutory duty to promote the rule of law would ask me to do so.
Finally, it has been suggested (by a former Bencher who, I believe, supported this initiative) that preparing a Statement of Principles is the least one can do to promote equality, diversity, and inclusion. I agree with that, insofar as, short of doing nothing, I cannot imagine a less meaningful, more counterproductive, way to promote equality, diversity and inclusion than the approach adopted by the LSUC. This is, literally, the least that one can do. I certainly believe in equality (as I understand it) and live my life in accordance with that value, amongst others - though whether my understanding of that term conforms with that of the LSUC is not obvious (seeing as the meaning of terms like "equality", "diversity" and "inclusion" are contested, and contestable, and have been for millennia and that the LSUC hasn't
provided any guidance as to the content of the Purported EDI Obligation nor any commentary in the Rules explaining the Purported EDI Obligation - no doubt because it doesn't exist in the Rules). Whether I prepare a Statement of Principles or check the above box will affect my behavior not at all, nor do I expect that preparing a Statement of Principles or checking a box will affect the behavior of many (if any) other members. The imposition of an annual obligation to do so, even if there were a legal basis for the Purported EDI Obligation, smacks of an exercise of "doing something" for the sake of being able to say that the LSUC is "doing something", even if that "something" is a meaningless exercise in, literally, box checking. It is a cynical exercise, unworthy of the LSUC and its members.