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- Why I am Opposed to SOP, by Melanie MacEacheron, Ph.D. (Social Psychology), LL.B., Member of the LSO
- Further open letter concerning the Law Society's requirement for a written Statement of Principles
- Open letter calling for suspension of the Law Society’s requirement for written SoP
- Letter to Joseph Groia in support of Motion for Conscientious Objection
- Motion to Allow Conscientious Objection & Remarks to Convocation, Dec. 1, 2017
Why I am Opposed to SOP, by Melanie MacEacheron, Ph.D. (Social Psychology), LL.B., Member of the LSOMarch 19, 2019
I write from a personal and logical perspective only. I am, for example, not an expert on human rights law nor the legality of the SOP and so don’t comment directly on these.
Various jurisdictions extend a (non-absolute) right to silence and to not have to mount a defense of oneself, even to those who might be considered their least esteemed citizens. Even people caught in the act of a heinous crime, we as lawyers particularly know better than to assume are guilty. The right to silence implies a presumption of innocence: this person may have something to say in his defense. And the powerful state (government) could compel inculpatory speech from this person, so he must be allowed to say nothing beyond perhaps his name and address-- at least until he sees one of us, who can make sure he gets to say his true words, or not even "dignify (a charge) with a response" (per an Introduction to Criminal Law professor, as I recall his wording).
Here, instead, we would be compelled, by our governing organization (under threat of losing our professions, and part of our reputations, as well as our abilities to support ourselves and our families), to in a sense state we're innocent of something (and more). That is, we must declare a "… Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public". We are already subject to human rights laws, as is everyone else. But even assuming we have these just-noted extra obligations (the truth/falseness of which others can speak to better than I), shouldn’t we be presumed innocent of not abiding by them until and unless proven guilty? Of course we should. But then why would we, and only we in Canadian history, be forced to publicly state these to be our principles? Could it be because we are particularly suspect of deviating from these obligations (or of wanting to)? And if even we aren't presumed innocent, or allowed all the rights that help reinforce that presumption, where does that leave others with less power/less understanding of their rights?
Like anyone else, we are indeed subject to human rights law. The SOP goes further than that law requires, presumably for a reason. What reason? There are at least two, theoretical possibilities. We may be assumed to be (would-be) discriminators, and so forced to avow diversity promotion, in an attempt to have cognitive dissonance operate on us to 'change us into' non-discriminators. Another theoretical possibility, is that taking the step of compelling one SOP for lawyers is a precedent-maker: whenever our governing body in future (or other governing bodies, such as the provincial or federal government) wants a low-cost (for it) means of seeming to do something to help, say, a less fortunate group, it can force its members to publicly avow a belief-- whether they hold it or not, and whether they hold that compelled speech is acceptable or not-- on penalty of occupation, income, and reputation loss. Instead of that governing body having to take hard (for it) actions that perhaps should be taken, to help such groups (or say ‘no’ to doing so, and thus themselves incur disapprobation).
Where will the (first) SOP end? In addition to being followed up with additional SOPs, there are other theoretical possibilities. At some point something currently considered acceptable, such as a lawyer of one human grouping representing a client of another, may become socially unacceptable at least to some. The easiest thing for our governing body to do, in order to be seen as doing something when approached by such individuals finding a relevant policy (or lack of policy) unacceptable, may become to restrict our freedom as lawyers based on the fact we all publicly stated we "promote ... diversity". That is, that phrase is so vague it allows for a broad range of interpretations-- perhaps including many our regulator does not even currently desire. (Does such vagueness also not indicate the SOP may be unenforceable and/or meaningless?)
That a chilling effect on speech and behaviour (and thought, which informs both) is presented by compelled speech, seems obvious. Simply the vagueness of the mandated principles, plus the fact that, even as a non-practicing lawyer I still must create a SOP, tells me two things. First, that my very thought and belief – not just how I practice-- are being mandated, and that future speech that is deemable as ‘anti-diverse’ may very well become disciplinable. I have Asperger’s traits (and perhaps the condition itself). Note this condition is heritable and life-long. Asperger’s traits served me well when I practiced. They included a need and sincere regard for rules, the ability to recall and relate many rules at once, the ability to see the same reality from a perspective different enough that I detected the logical impossibility of things others took for granted, and decreased understanding of what is required for social approval (which forced me to wrestle with unpopular ideas). These gifts that I brought to my short span of legal work (for employers for whom I do not speak), assisted with criminal appeals, helped women in Sub-Saharan Africa live more freely from domestic assault, and involved research —including for the LSO—on ethical issues. I like to tell one youngster I know who has Asperger’s, that because we live in a free society he is free to be and safe being different, and to say what might offend. That is an inextricable part of his and my brains—our souls, if you like. He—and I—have no choice but to be different in this way. And to occasionally vex others, and say out loud, when the Emperor has no clothes. And isn’t that a necessary essence of at least some in our profession? Doesn’t precisely that help the unpopular criminal defendant, whose rights are still vital and who might be innocent? But I don’t think this youngster can become an Ontario lawyer now. He would say slightly the ‘wrong’ thing – once – and risk being accused of anti-diverseness, and losing not just his license but his reputation as a person who is actually very committed to equality. Actually, when he’s old enough to understand, he would likely just see this abrogation of right and call it out—and reject the profession. Of course, he is gravely missing out. But you, Ontario, are really missing out, too: He and others born like him would have made great lawyers.
I don’t practice currently, and so have relatively greater freedom to speak, though not without possible career or personal implications. But for me, writing this will not mean that people working under me may lose their jobs, and it is at least somewhat unlikely I will lose my current one. Consider the many, however, for whom this is much less of a certainty, and who may not have spoken up against SOP for that reason. If I didn't speak up, and adopted a SOP, I believe I would be passively condemning as somehow inappropriate those lawyers conscientiously objecting (or wishing they could and still keep their jobs), as well as rendering them lower in number-- making them more targetable. I will never do this. I would rather, with greatest disappointment, lose my practice license.