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No freedom to remain silent

Speaker's Corner
No freedom to remain silent

The heated debate over the Law Society of Upper Canada’s decision to require licensees to adopt a statement of principles related to diversity and inclusion has become a distraction from the work that needs to be done. While I am in favour of the requirement, the real issue, from my perspective, is not compelled speech; it is that all lawyers, and especially white lawyers like me, do not have the freedom to remain silent on these issues if we hope to maintain the public’s confidence, irrespective of the obligations our regulator establishes. In the legal profession, promoting diversity is not about political speech or belief; rather, the public rightly expects that the justice system reflects our broader community, and so diversity is at the core of what it means to be a lawyer.

We should not rely on or expect people of colour to educate people like me; the onus is on white lawyers to do the work necessary. My hope is that lawyers, especially white lawyers, will become agents advancing these issues rather than spectators. But I believe that many people are uncertain — and, in some cases, uncomfortable — as to how to best approach issues of diversity and inclusion in the profession. 

Uncertainty is not a bad thing. In fact, uncertainty in this context can be a good instinct, as long as it does not prevent one from moving on to take action. The mischief is so often caused by claims of certainty (about race, about culture, about individuals). 

We would be better served by understanding that truth in this context is a function of debate and discussion among a broad (and broadening) group of speakers, rather than approaching the issue from the perspective that we are trying to discern a single “truth.” Similarly, discomfort can be a signal that a person wants to do the right thing, respectfully, and caution (but not inaction) in these matters can be a sign of such respect.

I do not purport to have the solution to the crisis we as a profession face. However, I hope identifying certain values that I think we can collectively share will help to frame the discussion in a productive way. 

The first of these values is humility. To me, humility in the context of diversity and inclusion means a willingness to listen to others (and more particularly to racialized people), to learn and to explore our limits, imperfections and assumptions. 

Humility is an active, not a passive value. It requires one to take steps to develop cultural competence, to question assumptions one has about different cultures as well as the manner in which “things are done” in the legal profession or in the workplace and to initiate conversations and change. Humility also means amplifying the voices of people of colour when appropriate to facilitate them being heard.  

The second value that I think is vital to this discussion is compassion, which includes respect and appreciation of other people and other experiences. Compassion also includes the understanding that race and culture are not monolithic or homogeneous. Different people will understand their experience and their culture differently, and that difference does not render those experiences invalid. 

Under the umbrella of compassion I include not simply compassion for others (which is critical) but also compassion for one’s self: One should recognize and affirm the steps that one is taking to address these issues without becoming complacent. No one can ever be an expert on all cultures and differences, so treating one’s self with compassion while acknowledging that there is more that can be learned and experienced is important.  

Third, solidarity is key. This does not mean ignoring differences, and especially not ignoring the different experiences of racialized people. However, discussions over the statement of principles are marked by unfortunate “we” statements that aim to exclude people who may have legitimate concerns but who do not ascribe to one’s preferred absolute values related to free speech, equality or otherwise (e.g. “we” value free speech and this requirement is an assault on our values). Many who oppose the statement of principles most vocally are properly criticized for their inflammatory rhetoric, as are some who defend it. 

As Hadiya Roderique — who wrote a thoughtful and well-publicized essay on her experiences in the Toronto legal community as a woman of colour and a person from a less privileged socio-economic background — recently told the CBC: “If you’re one of the lawyers who is objecting to this, how do you think all of the people of colour and the women at your firm feel? What kind of a message are you sending to your employees? What kind of people are going to want to join your firm?” I agree. 

Similarly, critical comments could be made about some who assert that anyone who objects to the statement of principles is a racist. The value of solidarity is best expressed by trying to expand on who is included in that “we” when we speak, rather than deliberately shutting down debate by casting another person’s views as unconscionable; that can be challenging, including for me. As a person who values equality over free speech in the context of a regulated profession that I believe has the authority to pronounce on that profession’s core values, I have fallen prey to these same tendencies. They are not helpful.

In practical terms, there are many things one can do to manifest these values. Some small ideas include: embracing as a firm and as an individual some of the changes the law society is making such as taking a course on cultural competence and establishing appropriate policies robustly; respectfully asking someone how to pronounce their name if it is unfamiliar to you, rather than mispronouncing it; having the courage to acknowledge one’s colleagues’, clients’ and others’ experiences and asking about them; and deliberately raising diversity as a value whenever possible, including in discussions about hiring and advancement decisions, but not only in those contexts. 

The important thing is that we do something.

Michael Fenrick is a partner at Paliare Roland Rosenberg Rothstein LLP and adjunct faculty at Osgoode Hall Law School.

  • Am I missing Something

    Charles Ball
    I am disturbed that the lawyer feels he needs to identify his skin colour. That is indeed one of the complaints against the forced declarations. Ideas and principles should stand on their merit. It should not matter what the skin colour of the declarant is. I am opposed to the Human Right Commission. I believe that human rights legislation should be upheld in the court system. If I argue for that and identify my skin colour, people might assume that the colour of my skin dictates my opinion. ( I routinely refuse to identify my sex, sexual orientation, religion or skin colour to the Law Society. I believe it is none of their business.) White privilege is a term bandied about today as if it is a truism. This author seems to adopt that by his comment about his own skin colour thereby pointing out one of the great dangers of the declaration. Judging people based upon the colour of tier skin is wrong - period.
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