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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Jul9MonJuly 9, 2018 Stephen R. Morrison LL.B., C. Arb, C. Med, FCIArb
November 14, 2017
Treasurer and Benchers
Law Society of Ontario
130 Queen Street West
Toronto, Ontario M5H 2N6
Dear Mr. Treasurer and Benchers:
I am writing with respect to the recently announced requirement that all licensees create and adopt a Statement of Principles on Equality, Diversity and Inclusion. When I first learned of this mandatory requirement, I was deeply offended that my profession’s governing body would presume that its members shared a malignant worldview that can only be managed by forcing them to adopt a written statement of principles. Since then, as I have thought more about it, spoken with many colleagues, and read the published views of others, my sense of outrage and despair has only grown, despite being entirely sympathetic to the policy’s underlying objectives. It is the methodology that I find so disturbing.
I have read the comments of Prof. Bruce Pardy, recently published in the National Post, and I share his concern that this amounts to “forced speech” and is a serious violation of our constitutional rights under section 2(b) of the Charter. Such an imposition, coming from a parliamentarian, would be deeply disturbing; coming from the governing body of the legal profession in Ontario, it is shocking. I also agree with Prof. Arthur Cockfield’s assessment that this measure is Orwellian and represents an unacceptable intrusion into our individual liberty.
Our profession has traditionally been a bastion against repressive regimes that attempt to tell it citizens what they must think and say. Yet, here we are doing exactly the same thing to our own members. As Prof. Pardy said, “In free countries, law governs actions rather than expressions of beliefs.” The Supreme Court of Canada has said that forcing someone to express opinions that they do not have is totalitarian and alien to the tradition of free nations like Canada. And members of our profession have consistently discouraged governments from passing laws that can neither be effectively policed nor enforced. Such laws, by their very nature, diminish respect for the rule of law itself. Yet again, here we are seeking to impose a requirement on our members that cannot be regulated in any meaningful way.
As Jonathan Kay observed in a recent op-ed piece, we did not elect our Benchers to become a “shadow human rights tribunal”. And I regrettably share his conclusion that this coercive move is an embarrassment to the Law Society. As he notes, “Compelled speech always feels inherently totalitarian – even when the speech being compelled reflects values you sincerely believe.” In my view, this measure exceeds the mandate of our governing body, and I join with those who, in good faith, have suggested that this decision should be reversed. Nor do I believe that the solution is merely to provide an exemption for conscientious objectors. No one should be required to conscientiously object to the violation of their constitutional rights. The entirely laudable objectives of the underlying policy can be achieved without this divisive and intrusive measure.
Based on the feedback that I have received from other licensees, this measure is being received as an outrage or, even worse, as a bad joke. I have yet to speak directly with another licensee who supports it. While many will probably check the right box on their annual return, merely to avoid the potential repercussions of not doing so, this coerced compliance should not be confused with assent. Respect for our governing body is being eroded, and I anticipate that this will be manifested at the next election of Benchers. Moreover, there will undoubtedly be legal challenges to the provision, and we gain little by litigation which pits our membership against its leaders. And, most significantly, I fear that the negative reaction to this measure will undermine support for the remainder of the important equality, diversity, and inclusion initiatives. I urge Convocation to reconsider.
Yours very truly,
Stephen R. Morrison
LL.B., C. Arb, C. Med, FCIArb