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Statement of Principles critics: Stop fighting against us

The motto of the Law Society of Upper Canada is “Let Right Prevail.” Unfortunately, for many racialized licensees in Ontario, the general view is that right is not prevailing. Racialized communities are severely underrepresented within the legal profession.

The Challenges Faced by Racialized Licensees Working Group was established in 2012 to gather information and develop recommendations to address these challenges. This gave rise to the final report to Convocation in 2016, Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions, which found that forty per cent of racialized licensees identified their ethnic/racial identity as a barrier to entry to practise, while 43 per cent cited their ethnic/racial identity as a barrier to advancement. These are staggering numbers that merit a second look and a solution. The report proposed 13 recommendations to address the issues of systemic racism within the legal profession.

One of the recommendations that came out of this report is the individual statement of principles regarding diversity. Under the new proposals, all licensees must create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour toward colleagues, employees, clients and the public.

My intent here is not to address the challenges or opposition that some have raised about “forcing” licensees to publish such principles. My esteemed colleague Jennifer Quito has released a thorough analysis of why the requirement is legally defensible and this is not the place for a debate. Rather, in this short article I want to discuss why the statement of principles is important for all licensees and in-house counsel, and what such a statement can look like.

On my end, I have been asked many times why I support an initiative that has “little practical value.” It is correct to say that non-compliance will not result in the loss of a license and licensees will not be required to submit their statement of principles to the law society, but it DOES have value!

In-house counsel come from an environment where we are asked to know and adhere to corporate values, missions, visions and corporate objectives. The violation of these does not necessarily, on their own, subject an individual to any repercussion, but these statements are critical in setting an understanding and expectation of what it means to work or be an employee at “X” company. These statements establish the foundation of the corporate culture within which all business will take place. They set a critical baseline of what will be and what will not be culturally acceptable within the organization and how the organization conducts business and where it hopes to be in the next one, five and 10 years.

Yes, there are often human resource policies, as required by legislation, that go into detail about legislated prohibitions on discrimination harassment, violence in the workplace, etc., but the corporate mission, corporate values and corporate objectives are still critical on their own.

The statement of principles is intended to start building a new culture within law firms, regardless of their size, recognizing and establishing the value of diversity and inclusiveness within that organization and impacting how services will be provided. They are also a constant reminder of our obligations as members of a profession that entrusts us to adhere to the principles of equity and justice. Whether they have teeth or not, they are important and there is a value associated with this.

Let’s keep in mind there are still legislative protections against discrimination, which apply in the provision of all services and in employment relationships, which provide the teeth. We as in-house counsel especially understand the value and importance of such principles, so I do not expect that there will be as much opposition from this segment of the bar as we have seen from the private practice bar.

So, assuming you agree with me (us) that there is a problem, that racialized lawyers are facing barriers preventing them from the same opportunities as others and you want to develop your own principles, what should these look like? You can find templates, FAQs and other valuable information on the law society’s website. You can also take what others are publishing as an example and build from it. Here is one set of potential personal statement of principles provided by the law society:

As a licensee of the Law Society of Upper Canada, I stand by the following principles:

  • A recognition that the Law Society is committed to Inclusive legal workplaces in Ontario, a reduction of barriers created by racism, unconscious bias and discrimination and better representation of Indigenous and racialized licensees in the legal professions in all legal workplaces and at all levels of seniority;

  • My special responsibility as a member of the legal profession to protect the dignity of all individuals, and to respect human rights laws in force in Ontario;

  • A commitment to advance reconciliation, acknowledging that we are collectively responsible to support improved relationships between Indigenous and non-Indigenous peoples in Ontario and Canada; and

  • An acknowledgement of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.

Here are my two cents: if you read the four statements above and you cannot agree to something like this, and if you think that you should not have to develop and adhere to such principles because they remove your freedom of speech, you are very likely a part of the problem and a brick in the wall holding racialized lawyers back. You may also mistakenly believe that your freedom of speech should and does trump our right to be free from discrimination and from the right to have an equal opportunity to practise law, but the majority of the votes of benchers and a majority of the lawyers in Ontario, racialized or not, think you are wrong and have voted against you twice already.

It may be time to stop fighting against us and join us in the fight for achieving an equitable, diverse and just legal profession. 

  • Not LSUC's Business

    Christopher Black
    Your argument that those who resist the SoP to people are "part of the problem" holding 'racialized licencees' back commits a lot of fallacies. 1. It begs the question that systemic racism is a problem in the law profession. This is an outrageous claim, and and should be backed up by evidence. The only 'evidence' I have seen LSUC point to was a survey that had a low response rate, and that 60% of respondents said that they had not experienced systemic racism that prevented career advancement. That is not persuasive. 2. The Law Society has not followed the proper procedure to compel licencees to do this. (ie duly passing a new rule of professional conduct, or amending the bylaws). It is also an open question whether or not such an action is ultra vires the Law Society Act in any case. 3. The Law Society asks us to promote vague terms live 'diversity', 'equality' and 'inclusion' but refuses to define them. How can they ask licencees to promote these values if we do not know what 'promoting equality' is. 4. The Law Society has produced ZERO evidence that the SoP's intrusion on licencees expression is rationally connected to its objective of reducing 'systemic racism in the profession' (whether it exists or not), and whether it is proportionate response to such a problem. I would think that a Court may find that current human rights legislation is sufficient protection, and that a SoP is unnecessary, or so insignificant that it would not meaningfully advance the goal to justify the intrusion on other's speech.
  • Anonymously Principled

    Omar Ha-Redeye
    While I would agree that with us or against us positions are unhelpful, the calls against compelled expression are equally misguided. The Statement of Principles is surrounded by misinformation, misunderstandings, and worst of all, some pretty horrible misinterpretations around the law as it relates to compelled expression. I've outlined a few of these issues here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3091758 The equality, diversity, and inclusion initiatives require everyone to work together.That also starts by lawyers putting their names behind their positions when they write comments on a legal website.
  • Anonymously Principled

    Omar Ha-Redeye
    While I would agree that with us or against us positions are unhelpful, the calls against compelled expression are equally misguided. The Statement of Principles is surrounded by misinformation, misunderstandings, and worst of all, some pretty horrible misinterpretations around the law as it relates to compelled expression. I've outlined a few of these issues here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3091758 The equality, diversity, and inclusion initiatives require everyone to work together.That also starts by lawyers putting their names behind their positions when they write comments on a legal website.
  • Groupthink

    Lorne
    This us-versus-them mentality ('you are just part of the problem') is unhelpful and frankly foolish. The law society has no right to tell me what I should say or do. I swear an oath to be admitted to this profession after earning that privilege due to effort and education on my part. I practice with integrity and uphold the law with practice performed at the best of my ability. Other than abiding by a Code of Conduct, which in all cases are practical efforts of decency and respect, my career is guided by my choices and not dictated by enlightened socialists who have too much time on their hands. This Statement of Principles is a demand to acquiesce to some fatuous belief of 'moral' superiority and suitable conduct by an advantaged group that always misses a good chance to shut up. This demand that law society members adhere to specific beliefs is a perversion of their privilege in governing this profession. Unjust discrimination is always wrong, and advancing and supporting interests of the poor and unrepresented is a calling we are all asked to participate in as humans - especially poignant in this season of giving. However, you have no business compelling me to state something I do not need to; such an ask is oppressive and hypocritical (are YOU being diversive and inclusive?)... and I should always remain free to say or not say what I want. I am grateful that the benchers in Alberta are not as nuts as that in Ontario.
  • Identity politics

    Sam Lloyd
    Identity politics has no place in the law.
  • Constituition Act guarantees freedom of thought and belief

    Michael Lamb
    This is not only about free speech. The highest law of the land; the Constitution Act provides me and every citizen with the freedom of thought and belief. The Law Society and the author may BELIEVE their principles are sound but how does that mesh with the law which says we are ALL free to BELIEVE whatever we want! And if I am correct the results of the study does not show that 43% of licensees experienced discrimination; it was 43% of the respondents which represented approximately 3800 lawyers. Hardly a rampant discriminatory profession of 58000 lawyers and certainly not "staggering"! I should add that I personally and professionally treat everyone equally. My practice is as diverse as it can get. However, with all dues respect, I BELIEVE the Law Society has exceeded its mandate and the requirement is contrary to law. We already have the Constitution Act and human rights legislation which protects everyone including lawyers against discrimination.
  • Criticism of Law Society's New "Statement of Principles" Requirement Is Well Founded

    John F. Fagan
    Whether The Law Society's new proposed high-profile proactive approach is the best way in which to try to overcome, once and for all, any residual racism in today's Ontario legal profession, is a question of policy, on which reasonable members of the profession may differ, even as they all agree that any such residual racism must be overcome. The Law Society should not be trying to compel members of the profession to express belief in, or agreement with, any given policy approach in this matter. It saddens me when the critics of The Society's new "statement of principles" requirement are dismissed as confidently as they are by the writer of this column. If freedom of speech in our society is to be lost, it will be lost in incremental stages, with members of various minorities being, in the end, the worst hit.
  • Equitable, diverse and just

    Simon
    One could write a statement of principles that simply restated their obligations under law and pursuant to the Rules of Professional Conduct and this would not impact their free speech. It would, however, allow clients and colleagues to know that it is that lawyer’s intention to do the bare minimum to support racialized licensees and other underrepresented groups in our profession. Those clients and colleagues could then decide if this was where they wished to partner. I, for one, believe we can and must do better. If you do not, don’t put that in your principles. It’s a free world - including choosing the lawyer one works with.
  • Freedom of speech is worth protecting

    JSJ
    Most people who object to the forced statement of principles do not disagree with the content of the statement. They disagree with the Law Society's apparent view that it is acceptable to force licensees to subscribe to particular beliefs or political views, irrespective of the specific content. You essentially argue that it is ok to force speech in this case because you agree with the particular beliefs being mandated (and anyone who disagrees is a bad person and "part of the problem"). But if speech is only "free" when you (or LSUC benchers) agree with it, then it is not free at all. Your suggestion that there is a conflict between freedom of speech and the rights of minorities to be free from discrimination (such that one right has to "trump" the other) is also wrong. There is no inherent conflict. The conflict stems from the specific measures adopted by the Law Society.