The new obligation requires every lawyer and paralegal in Ontario to adopt and abide by a statement of principles “acknowledging their obligation to promote equality, diversity and inclusion” and has faced some backlash since the law society started implementing it in September.
Law society Treasurer Paul Schabas says some misleading information had come out of the discussion about the requirement.
“There are people who are calling it compelled speech [and] that it requires you to profess to beliefs that are somehow beyond our mandate as a regulator,” he says. “And we wanted to clarify that this is about your conduct and professional responsibilities in your capacity as a lawyer or a paralegal.”
The guide says that the statement of principles “need not include any statement of thought, belief or opinion.”
LSUC benchers are now set to vote Dec. 1 on a motion that would provide an exemption from the requirement for conscientious objectors.
Bencher Joe Groia is putting forward the motion and has argued that the requirement is compelled speech.
Bencher Barbara Murchie had also proposed a motion that was seen as a compromise. That motion, however, was withdrawn after the guide was released.
Murchie’s motion had proposed changing the wording of the statement of principles requirement so that it required licensees to annually acknowledge they have “special responsibilities by virtue of the privileges afforded the legal profession.”
Those special responsibilities would include recognizing the diversity of Ontario, “protecting the dignity of individuals” and respecting the provincial human rights laws in force.
Murchie says her goal in the motion was to clarify the statement of principles.
“We won’t be arguing about what it means or whether the wording supports the interpretation that some were putting on it,” she says.
In order to meet the requirement, lawyers have to write their own statement or adopt a template the law society will provide and mark on their annual report that they have done so. They will not be required to submit the statement to the law society.
The law society has said it will not penalize lawyers for non-compliance with the requirement this year, but it has not ruled out imposing a penalty in future years.
“It’s intended to provide
everyone in the profession and everyone who is taking an interest in this that this is about the law society’s broader objectives of combating systemic racism in the profession,” Schabas says of the guide.
The requirement is also facing a court challenge launched by Lakehead University law professor Ryan Alford, who is requesting an interim injunction.
Alford is also seeking a declaration that the requirement is unconstitutional and contrary to the rule of law.
Alford also amended his application, adding an alternative request that the court declare that the obligation does not require an endorsement or profession of belief.
Statement of principles: What you need to know
What the motion says:
MOVED that Convocation approve that no licensee who has a conscientious objection to the adoption of a statement of principles shall be required to comply with Recommendation 3(1) and they shall be exempted from the requirements of Recommendation 3(1) to adopt and abide by a statement of principles.
When and where the debate will happen:
The motion will be debated and voted on in the Donald Lamont Learning Centre at the Law Society of Upper Canada at 9 a.m. on Dec. 1. Members of the public can attend, but only benchers can participate in the debate. The meeting will also be available through a webcast on the law society’s website.
Who can vote:
The benchers who have voting rights are the 20 elected lawyer benchers from inside Toronto, 20 elected lawyer benchers from outside Toronto, five elected paralegal benchers, eight lay benchers and four ex-officio benchers.
What legal associations say:
The Ontario Bar Association has expressed support for the statement of principles requirement. OBA president Quinn Ross has said the comments of some opponents have obfuscated the real issue, which is that equality, diversity and inclusion are fundamental to the future of the profession.
The Federation of Asian Canadian Lawyers disagrees with Joe Groia’s proposed motion. The FACL says that in light of the systemic barriers faced by racialized licensees, the organization views the requirement as an important albeit modest step to address systemic discrimination.
The Canadian Association of Black Lawyers has written an open letter to LSUC Treasurer Paul Schabas to express support of the statement of principles requirement, out of concern that the law society’s initiatives to tackle the barriers faced by racialized licensees will be scaled back by Groia’s motion. In the letter, the CABL said that, while the requirement might not be popular among all licensees, it is essential.
The South Asian Bar Association of Toronto has also expressed support for the statement of principles. SABA president Hafeez Amarshi questioned why the debate was being reopened into the recommendation after an LSUC working group spent four years researching and consulting on the initiative.
The Criminal Lawyers Association has sent a letter to Schabas supporting the statement of principles requirement and opposing Groia’s motion. In the letter, CLA president Michael Lacy said the association supports the LSUC’s initiative on the basis that it is an attempt to clarify existing obligations lawyers already have, but it also feels more could be done to eradicate systemic discrimination from the profession. Lacy stressed that the initiative does not detract from criminal defence lawyers’ obligations to zealously defend their clients’ interests, even those clients whose beliefs are inconsistent with the statement of principles.
How will benchers vote?
Law Times contacted 45 elected benchers of the Law Society of Upper Canada last week and asked them to share how they would vote on the statement of principles motion.
Of the 45 benchers contacted, 16 responded.
Of those respondents, 11 (about 68 per cent) said they were undecided or did not want to disclose their position before the debate. Another two (about 13 per cent) said they supported the motion. And another three (about 19 per cent) said they were against the motion.