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Lawyers, principles and equality

The Law Society of Upper Canada adopted 13 measures to combat long-standing exclusion and marginalization of women, religious minorities and racialized and indigenous persons. One requires lawyers and paralegals to adopt and abide by a statement of principles that “acknowledges (their) obligation to promote equality, diversity and inclusion generally, and in (their) behaviour towards colleagues, employees, clients and the public.”

Some claim that the law society is overstepping its authority. However, the measures fulfil the law society’s obligation to govern conduct within the professions, to facilitate access to justice and to protect the public interest. Some claim that the required statement of principles infringes freedoms of expression and belief. But this was not the intent, as has been made clear.

After four years of research and deliberations, the law society found that systemic racism in the legal professions continues to exist. Action is essential. The statement of principles is designed to require reflection on professional obligations as a step toward a more equal and inclusive profession.

Lawyers occupy a unique role in the administration of justice. They act as gatekeepers to the legal system and uphold the rule of law. The rule of law demands equality of all individuals, before and under the law, with equal protection and benefit of the law. Inequality is fundamentally at odds with this. Equal access to justice for Ontarians necessitates equality among all players in the legal system. 

The Rules of Professional Conduct state that a “lawyer has . . . a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals and to respect human rights laws in force in Ontario.”

This special responsibility does not merely require that lawyers refrain from intentional discrimination. Human rights laws require more than non-discrimination and include positive duties to take corrective action to ensure that the Human Rights Code is not being, and will not in the future be, breached.

Our rules also provide that “[a] lawyer has a duty to uphold the standards and reputation of the legal profession and to assist in the advancement of its goals, organizations and institutions.”Asking lawyers to assist in the advancement of the goal of equality, diversity and inclusion is fully consistent with this rule. 

When lawyers are called to the bar, they swear an oath to “ensure” access to justice and to “champion” the rule of law. The oath requires active participation in advancing the principles that underlie our legal system. Equality is fundamental to both the rule of law and access to justice. Promoting equality, diversity and inclusion is inherent in the promise to enhance access to justice and champion the rule of law.

Lawyers regularly make required declarations in aid of important goals such as combatting mortgage fraud. Is requiring a statement acknowledging professional obligations in aid of fundamental equality values any less important or valid?

The new measures are the result of years of thoughtful work by hundreds of lawyers, paralegals, law students, legal academics and legal associations. They were approved by Convocation, the law society’s board of directors, after vigorous and lengthy debate that included the arguments now being made.

These measures embody an overdue policy choice to address systemic racism in the legal professions. Their adoption without a dissenting vote reflects overwhelming approval of the balance struck in response to a serious problem.

It is time to move forward to redress systemic inequities that have long been a detriment to our profession and legal system.

Malcolm Mercer is a partner and general counsel at McCarthy Tétrault LLP. He practises in the field of civil litigation, with an emphasis on commercial and corporate matters and professional negligence. He is also a bencher of the Law Society of Upper Canada.

Sandra Nishikawa is counsel with Legal Services and Inquiries at the Ontario Human Rights Commission and is also a bencher of the Law Society of Upper Canada.

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