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
This is an open letter to the benchers of the Law Society of Upper Canada (the “LSUC”) with respect to the new Guide to the Application of Recommendation 3(1) (the “Guide”) which purports to provide clarity on the new requirement that members prepare a “statement of principle” as described in Recommendation 3(1) (the “Recommendation”) of the Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Profession report (the “Report”) as part of the Equity, Diversity and Inclusion Initiative (the “EDI Initiative”). Unfortunately, it only reinforces the concerns that many members of the LSUC, myself included, have already expressed with respect to the Recommendation. In particular, as discussed below, the Guide fails to substantively address the two principal critiques of the Recommendation, namely that (i) the purported obligation to “promote equality, diversity and inclusion generally”, which the Recommendation mandates that members acknowledge, has no basis in the Rules of Professional Conduct (the “Rules”) and is otherwise unfounded in law, and (ii) the Recommendation potentially infringes the freedoms of conscience and religion and of thought, belief, opinion and expression of members, guaranteed by Paragraph 2(a) and (b) of the Charter of Rights and Freedoms (the “Charter”).
The Recommendation has no basis in the Rules and is Unfounded in Law
A significant concern raised by many members and commentators is that the requirement for members to acknowledge “their obligation to promote equality, diversity and inclusion generally, and in their behaviour toward colleagues, employees, clients and the public” appears to be unfounded in the Rules or other applicable law. No such obligation is contained in the Rules, the commentary thereto, the Ontario Human Rights Code (the “Code”), any jurisprudence interpreting the Rules or the Code or, indeed, in any applicable body of law. Indeed, as far as I can tell, there is no provision of any law in Canada, or any jurisprudence interpreting such laws, which purports to impose upon anyone an obligation “to promote equality, diversity and inclusion generally”.1
The Guide cites, as a source for this purported obligation, Section 6.3.1. of the Rules. But neither Section 6.3.1, nor the commentary thereto (nor any other provision of the Rules), impose on members an obligation to “promote equality, diversity and inclusion” whether generally, or in respect of their colleagues, employees, clients or the public. Rather, it imposes “a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, not to discriminate… with respect to professional employment of other lawyers, article student, or any other person or in an professional dealing with other licensees or any other person. Both the Rules and the Code focus on obligations of non-discrimination and neither refer to an “obligation to promote equality, diversity and inclusion generally”. The inability of the LSUC to identify any legal authority for the proposition that lawyers have an obligation “to promote equality, diversity and inclusion generally” is decisive proof that such an obligation does not exist - if it did, one would think the LSUC would be able to produce authority for it.
The Guide asserts that “the reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations in respect of human rights” and that “equality, diversity and inclusion are promoted (in other words advanced) by
addressing discrimination in all its forms.” This would seem to suggest that the LSUC believes that the purported obligation to “promote equality, diversity and inclusion generally” is simply a restatement of the existing legal and professional obligation not to discriminate, found in both the Code and the Rules. In effect, the Guide tries to leverage a specific obligation contained in the Rules not to discriminate into support for the existence of a general obligation to promote equality, diversity and inclusion generally. This is an interpretation which runs contrary to the general interpretive presumptions against tautology and of implied exclusion– the imposition of the specific obligation not to discriminate implies the absence of a more general obligation to promote equality, diversity and inclusion generally. Furthermore, it should be obvious that an obligation not to discriminate is not the same as an obligation to promote equality, diversity and inclusion generally. Non-discrimination is a subset of the universe of actions that promote equality, diversity and inclusion, but an obligation to promote equality, diversity and inclusion generally imposes an obligation to comply with the entire universe of such actions, not merely to not discriminate.
I note that I am not alone in rejecting the LSUC’s conclusion on this point. Both Arthur Cockfield and Alice Woolley – both prominent legal scholars and writers on the subject of legal ethics – have questioned the existence of an obligation to promote equality, diversity and inclusion generally. Somewhat surprisingly, given the text of the Guide, the conclusion that the obligation to promote equality, diversity and inclusion generally goes beyond what is required under the Rules is supported by the conclusion of the legal opinion of Pinto Wray James (the “PWJ opinion”), dated November 16, 2016, obtained by the LSUC in conjunction with the introduction of the Recommendation. That opinion concluded:
“that promoting means “to encourage” and encouraging equality, diversity and inclusion is indeed something more than not discriminating.” [emphasis added]
Not only is the LSUC asking members to acknowledge the existence of an obligation that is not found in the Rules or the Code and that is different from the obligations actually found in the Rules and the Code, but they are asking members to acknowledge the existence of an obligation that the LSUC’s own legal advisors has concluded goes beyond the obligations imposed by the Rules and the Code.
In that light it’s hard to understand how the LSUC can credibly claim that the Recommendation references existing obligations. If that is what the LSUC intended, why did it not ask members to acknowledge those existing obligation not to discriminate in accordance with Section 6.3.1 of the Rules and the corresponding provisions of the Code? Are we truly to believe that an organization that regulates people who interprets laws and use words for a living can be so cavalier, particularly having regard to the time and effort devoted to this project, with its own quasi-legislative language? That the LSUC chose to use language, in describing the obligations contained in the Recommendations, that is different from the language contained in section 6.3.1 of the Rules leads to the inevitable conclusion that it intended the Recommendation to mean something different than the current language contained in the Rules. Furthermore, even if one accepts the proposition set out in the Guide that the Recommendation refers to existing obligations under the Rules and the Code(which proposition, as noted above, is questionable), it is inappropriate to ask members to acknowledge the LSUC’s interpretation of section 6.3.1 of the Rules (or the corresponding obligations under the Code) – which interpretation might be contested - rather than asking them to acknowledge the actual obligations under section 6.3.1 of the Rules.
Personally, I would have no problem being asked to acknowledge my obligations not to discriminate, in accordance with the Rules and the Code. But the LSUC is asking me (and other members) to acknowledge an obligation which does not exist, which has no basis in law and which is materially different from the actual existing obligations in the Rules and the Code. I cannot, in good conscience, acknowledge an obligation that does not exist, and it reflects poorly on the LSUC that it has asked it members to do so.
The Recommendation Appears to Impose a Belief Requirement
Section 3 of the Guide states that the Recommendation “does not create any obligation to profess any belief or to seek to persuade anyone about anything”. The Guide also states that “The Statement of Principle need not include any statement of thought, belief or opinion”. These claims are clearly intended to address concerns among members that the new Statement of Principle and the Recommendation violates, inter alia, the freedoms of conscience and religion and of thought, belief, opinion and expression of members guaranteed by Paragraph 2(a) and (b) of the Charter. Without addressing the substance of the Charter claims (which have been addressed by other commentators), I simply note that the foregoing statements in the guide contradict express guidance provided by the LSUC with respect to the Recommendation.
For example, the LSUC website contains a page titled “Key Concepts of a Statement of Principles” (https://www.lsuc.on.ca/with.aspx?id=2147504073) (the “Key Concepts”). It states, expressly, that:
“ A statement of principles… should consist of:
· a preamble explaining the grounds for and intentions of the statement of principles; and
· a set of principles adopted to help achieve these objectives of valuing equality and enhancing diversity and inclusion” [emphasis added]
The Key Concepts document goes on to say that:
“the intention of the statement of principles is to demonstrate a personal valuing of equality, diversity and inclusion…” [emphasis added]
Clearly, contrary to the claims in the Guide, the LSUC has expressly told members that the Recommendation imposes an obligation to demonstrate “a personal valuing of equality, diversity and inclusion”. Given the express language of the Key Concepts, the claim that the Statement of Principles need not include any statement of thought, belief or opinion is untenable. The Key Concepts expressly require that a Statement of Principles demonstrate a personal valuing of equality, diversity and inclusion. Does the LSUC truly believe that one can demonstrate a “personal valuing” of any particular value without believing in such value?
Now, other commentators, such as Alice Woolley, have suggested that the language in the Key Concepts, while troublesome, should not be read as informing the content of the Recommendation. With due respect for Prof. Woolley, it’s hard to see how one can conclude that language that the LSUC identifies as a “Key Concept” that reflects the intention of a statement of principles can be ignored in given meaning to the Recommendation. Barring a significant change to the Key Concepts document and the existing guidance, the Recommendation clearly embraces a belief requirement. If this was not intended, then the LSUC needs to amend the Key Concepts documents and its previously issued guidance to conform with the claims made in the Guide.
Summary and Comment
As is apparent from the foregoing, the Guide has done little to allay my concerns (of which the foregoing are only the two most important) with respect to the Recommendations or the LSUC’s implementation thereof. On the contrary, it reinforces my belief that the purported obligation that members are being asked to acknowledge is unlawful and my concerns that the Recommendation may be unconstitutional. Frankly, the notion that the Guide might alleviate the concerns that members have raised is somewhat insulting to our intelligence, as if lawyers – of all people – wouldn’t read critically a document prepared by their regulator.
If one accepts the interpretation of the Recommendation set out in the Guide as accurately reflecting the intentions of the LSUC, it seems to me that the LSUC could have achieved its substantive goals with far less opposition from members had it proceeded with the degree of care and precision one might normally expect from a collection of lawyers. If the purpose of the Recommendation is to have members acknowledge existing legal and professional obligations, why not ask lawyers to acknowledge those existing legal and professional obligations, rather than asking them to acknowledge a new obligation expressed in general language not found in the Rules (or the Code) and which differs markedly from the language of those existing obligations? If the intention is not to create an obligation to profess a belief, why impose a requirement that statements of principles demonstrate “personal valuing” of certain values as a “Key Concept” in such statements? To my mind, many of the valid concerns raised by members with respect to the proposal reflect not opposition to the underlying policy objectives themselves, but concerns about the clumsy and ham-handed manner in which the LSUC has sought to implement them.
Seen in that light (and in the light of pending legal challenges), I would strongly recommend that the LSUC consider revamping this proposal, not with a view towards abandoning it, but with a view towards rewriting the Recommendation so that it is actually based on the Rules and the Code (and other applicable law). Such a revamped Recommendation might, for example, ask members:
“To adopt and abide by a statement of principles acknowledging their responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honour the obligation not to discriminate on grounds set out in the Ontario Human Rights Code 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.”
Such a revamped Recommendation would require members to acknowledge an obligation which is well-founded in law (specifically Section 6.3.1-1 of the Rules, from which the above language is drawn). Furthermore, to the extent that the revamped obligation merely imposes an obligation to prepare a statement of principles acknowledging their existing legal and professional obligation not to discriminate, rather than demanding that members demonstrate personal valuing of equality, diversity and inclusion, it would be better positioned to withstanding Charter scrutiny.
Absent changes along those lines, I’m hard pressed to see how I can, in good conscience, comply with the Recommendation. And I suspect that I am not alone.
1. I have only found a single case which even uses the words “promote”, “equality”, “diversity” and “inclusion” in the same paragraph. Given that R.C. v. District School Board of Niagara, 2013 HRTO 1382, deals with the right of Gideons and Atheists to promote their respective creeds by distributing bibles or texts in public schools, I would suggest it is an unlikely source of authority for the purported obligation for lawyers to “promote equality, diversity and inclusion generally”.