Law society’s new policy compels speech, crossing line that must not be crossed
NationalPost.com – Full Comment – At the core of free speech is the liberty to criticize the content of the law. For no one is this more important than lawyers
October 3, 2017. BRUCE PARDY
Every lawyer gets emails from the Law Society: reminders to file reports, pay fees, or use assistance programs to cut back on the booze. But a recent message almost made me choke on my sandwich. “New obligations for 2017” was its subject line, “Actions you need to take.” All lawyers, it said, must prepare and submit a personal “Statement of Principles” attesting that we value and promote equality, diversity and inclusion. According to the advisory, “The intention of the statement of principles is to demonstrate a personal valuing of equality, diversity, and inclusion with respect to the employment of others, or in professional dealings with other licensees or any other person.”
My first instinct was to check my passport. Was I still in Canada, or had someone whisked me away to North Korea, where people must say what officials want to hear? Forced speech is the most egregious violation of freedom of expression, protected by section 2(b) of the Charter of Rights and Freedoms. In free countries, law governs actions rather than expressions of beliefs. People can be required to obey the speed limit and pay taxes, but they may not be compelled to declare that the speed limits are properly set or that taxes are a good thing. The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”
Was I still in Canada, or North Korea, where people must say what officials want to hear?
The email might as well have announced that the thought police had taken over the Law Society of Upper Canada (soon to drop its historical moniker and become known, probably, as the Law Society of Ontario). In 2012 it created a working group to investigate systemic racism in the legal profession. In 2016 the working group reported, wait for it, that there is systemic racism in the legal profession. (It is doubtful whether the data upon which the report relied actually supports this conclusion, but that is not the point of this column.) The Law Society accepted its recommendations for action, three of which are being implemented this year. One of those is the requirement for personal Statements of Principles, which require not just compliance with the law but concurrence.
At the core of free speech is the liberty to criticize the content of the law. “However admirable the objectives and provisions (of the law) may be,” the Supreme Court said, “no one is obliged to approve of them: anyone may criticize them… and seek to have them amended or repealed, though complying with them so long as they are in effect.”
For no one is this more important than lawyers, who are the last line of defence against authoritarian orthodoxy. Had this requirement been imposed upon another of the governed professions, nurses say, or engineers, they would hire a lawyer to protect their right to think and speak for themselves. This time, it is the lawyers themselves whose ability to argue about the law’s propriety is threatened.
It is not enough that we obey. Now we must also agree and actively promote
The contours of anti-discrimination laws have long been the subject of debate within legal circles. For example, Richard Epstein, a prominent American legal scholar, in his 1992 book Forbidden Grounds: The Case Against Employment Discrimination Laws, argued for the repeal of such laws on the grounds that they “set one group against another, impose limits on freedom of choice, unleash bureaucratic excesses, mandate inefficient employment practices, and cause far more invidious discrimination than they prevent.” Whether Epstein is right or wrong is part of the debate. The Law Society’s new requirement effectively prohibits Ontario lawyers from engaging in that debate. Instead, they must betray their integrity and submit a Statement of Principles that professes values that they may not hold.
This policy crosses a line that should not be crossed. It is not enough that we obey. Now we must also agree and actively promote. The late Alan Borovoy, former general counsel of the Canadian Civil Liberties Association, said that the greatest threat to liberty is not from without but from within. “The source of the most insidious peril,” he said a decade ago in a speech at Queen’s University, “is not evil wrongdoers seeking to do harm, but parochial bureaucrats seeking to do good.” I suspect Borovoy would be shocked that his warning would apply so acutely to the governing body of the legal profession.
The Law Society does not say how it will punish lawyers who do not comply. It states only, and ominously, that they “will be advised of their obligations in writing.” Perhaps compelling speech upon penalty of actual sanctions would be unconstitutional. How should lawyers respond? They have a number of choices. They could conform. That might suggest that lawyers are unable or unwilling to defend themselves. They could decline. That might determine whether elected “Benchers” actually represent them. Or they could just submit a copy of this column.
National Post
Bruce Pardy is professor of Law at Queen’s University and a member of the Law Society of Upper Canada.
http://nationalpost.com/opinion/bruce-pardy-law-societys-new-policy-compels-speech-crossing-line-that-must-not-be-crossed
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