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    • Feb21Wed

      What Happened at the LSO's Convocation on Dec. 1, 2017

      Motion for Conscientious Objection to SoP Denied February 21, 2018 Michael A. Menear


      I was present when the Benchers of the Law Society of Ontario convened last Friday, December 1, 2017, to consider its Recommendation 3.1, which included a provision requiring all lawyers practising in Ontario, “to create and abide by an individual Statement of Principles that acknowledges the lawyer’s obligation to promote equality, diversity, and inclusion” in their professional conduct. It is an effort to demonstrate to minority groups, and the public, that there is a place for racialized licensees and other equality seeking groups in the profession of law.

      At issue was a Motion by Bencher Joe Groia to amend the Recommendation by allowing an exemption for lawyers who, as a matter of conscience or religious faith, could not agree with this requirement.

      The Benchers’ Hall was packed with spectators, beyond its seating capacity, who were permitted to stand along the inside perimeter of the room. When Recommendation 3.1 was reached, lively debate among the Benchers ensued. There was considerable debate about the mandatory nature of the Statement of Principles and, in particular, the requirement that the specific values of equality, diversity, and inclusion had to be adopted and promoted by all individual lawyers in Ontario.

      Many Benchers argued that Recommendation 3.1 amounted to “compelled speech” and as such transgressed the fundamental rights of citizens to freedom of thought, belief, opinion, and expression. These Benchers supported the Motion for an exemption to accommodate conscientious objectors. The spokespersons for the LSO Committee for Equity and Indigenous Affairs, which opposed the Motion, argued that Recommendation 3.1 did not infringe these freedoms because it only forced the behaviour and conduct of lawyers to conform to the requirements of the EDI Initiative. This Equity Committee seemed curiously oblivious to the fact that equality, diversity, and inclusion are personal values and, as such, are inherently thought, belief, and opinion. Even the Benchers supporting the Equity Committee (and opposing the Motion) quickly abandoned this fiction and admitted that the requirement to adopt and promote equality, diversity, and inclusion was “forced expression.” These Benchers in support of the Equity Committee spoke passionately about the importance and need to move ahead with the EDI Initiative, despite its compulsive nature. This led to the Benchers’ addressing the Motion of Mr. Groia in its proper context: Given the mandatory nature of Recommendation 3.1, and the fact it is compelled speech, should a lawyer be exempt from the requirement if he or she objects to it as a matter of conscience or as a matter of religious faith?

      The debate was lively on this issue, too. What was most clear was how little importance and value was placed on matters of conscience and religious faith in the context of the Law Society’s desire “for change” and compelling lawyers to be part of a “culture shift.” It appears that, in a debate on public social issues, the sanctity of a person’s “conscience” and the sacredness of a person’s “religious faith” are to be subordinated to the social cause at hand. It is apparent they have virtually no place in a debate on the merits of these issues and they offer no safe place for dissent. The majority of Benchers were unsympathetic with an exemption for conscientious objection and, on this basis, Mr. Groia’s Motion was defeated. As a result, there is full conscription of Ontario lawyers to the social agenda of equality, diversity, and inclusion as outlined in Recommendation 3.1.

      Mr. Groia’s Motion had the added benefit of providing the spectators present with a glimpse of the process which resulted in the LSO Equity Committee’s putting Recommendation 3.1 forward for approval. Many Benchers described a process in which its Committee had taken more than four years to produce the Statement of Principles and other measures in its avowed “culture shift” for lawyers. What was seriously put into question by many Benchers in the course of the debate was the competence of the Equity Committee and its staff who were responsible for the EDI Initiative. This is also apparent from the public documents it has produced. A review of its Guidelines; the Clarification to its own Guidelines; and the background data upon which its finding and recommendations are based lead to a strong impression that the work done by this Committee is seriously flawed. For example, the premise that the profession of law in Ontario suffers from “systemic racism” and that all lawyers suffer from “unconscious bias” against minority groups is highly suspect, but such are the language, beliefs, and motivations of Equity and Diversity groups everywhere. Once the LSO created its Equity Committee, it was committing itself to the type of outcome in Recommendation 3.1. Despite such flaws, and in the face of serious concerns and obligations raised by its own members, other lawyer practitioners, and the media, the majority of Benchers decided to advance the “culture shift” and adopt recommendation 3.1 without exemption.

      Why? The Benchers know there are laws against discrimination already in place that apply to lawyers, as they do to all citizens. Also, there is the Ontario Human Rights legislation to which lawyers must adhere. In short, the law already requires lawyers to accept, tolerate, and accommodate minority groups, and entry into the profession by members of such groups. But LSO Recommendation 3.1, by its request that lawyers “promote” equality, diversity, and inclusion, is designed to go further than this. How much further? Until the minority groups, their causes, their conduct, and their lifestyles are actually affirmed by all lawyers practising in Ontario. This means that some lawyers, as a matter of conscience and religious faith, who cannot make such an affirmation, will be forced from the profession of law. At present, the LSO has not decided or ruled on the sanctions to be imposed on a lawyer who will not comply with Recommendation 3.1 (which requires subscribing to its Statement of Principles). That sanctions are coming is not in doubt. At the Convocation meeting, Bencher Rocco Galati brought a Motion to “add teeth” to Recommendation 3.1. Other supporters of Recommendation 3.1 bemoaned the fact that the current version has no clear penalties for non-compliance. The Equity Committee and its supporters were agitatedly eager to get on with enforcement against those lawyers who do not comply with Recommendation 3.1. They want complete and uniform compliance with this Recommendation across the legal profession, even though it will mean forcing some lawyers of conscience and religious faith out of the profession in the process. Herein lies the paradox and the irony: That an initiative to promote equality, diversity, and inclusion, in fact, will end up being exclusionary. This Initiative, while trying to bring members of certain minority groups into the profession will, in the process, force members of other minority groups (conscientious objectors, religious persons, and others) out of the profession. This is what happens when the purpose of law becomes misconstrued. For the Equity Committee and most of the LSO Benchers, the law has become an instrument of social change and cultural advancement. This is not the proper, historic, nor traditional role of law in society. In the Robert Bolt version of A Man for All Seasons, on the life of Sir Thomas More under King Henry VIII, More states, “The law is not a ‘light’ for you or any man to see by; the law is not an instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely.” Thomas More lost his head trying to keep that causeway broad, open, and free against the tyrrany of a King and his agents. All dissenters and other conscientious objectors get ready to be pushed off the causeway; or get ready to stand your ground.

      Finally, many Benchers sensing the problems inherent in the EDI Initiative urged slowing down the process by further consultation and discussion. In particular, it was proposed that the measures for which there was consensus in the overall EDI Initiative proceed to implementation as approved, but that the implementation of the requirement of the Statement of Principles be delayed. The majority made clear that there is no stopping this process, and probably initial efforts in the future to slow it down to allow sober reflection and consideration on implementing progressions of the Initiative and enforcement of the same will not be effective. The train has left the station and there is no turning back. This will have to play itself out. The LSO has made its bed (by establishing such an Equity Committee) and it will have to sleep with it. It is reasonable to predict that the Committee and its supporters will give the Benchers many sleepless nights in the months and years to come.

      Michael A. Menear, lawyer London, Ontario