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Statement of principles challenged in court

|Written By Alex Robinson
Statement of principles challenged in court
Hafeez Amarshi says he is surprised by opposition to the statement of principles, which he sees as a benign requirement.

As the Law Society of Upper Canada’s statement of principles is set to face renewed scrutiny at Convocation and in the courts, organizations representing racialized lawyers are questioning why the issue has been reopened in the first place.

The statement of principles is being implemented this year as part of an effort to battle barriers faced by racialized licensees in the legal profession. It requires lawyers and paralegals to adopt and abide by a statement of principles that acknowledges their “obligation to promote equality, diversity and inclusion.”

The requirement was one of 13 recommendations approved together by Convocation in Dec. 2016 and that came out of a report that identified barriers faced by racialized licensees.

The report was the product of four years of research and consultation done by an LSUC working group, and for some organizations, it was largely a compromise that did not go far enough. Those organizations now do not want to see one part of the initiative picked apart, and yet Convocation is set to consider an exemption to the requirement at its next meeting after Bencher Joe Groia asked it to do so.

The requirement has faced some backlash from lawyers and legal scholars, who argue it imposes beliefs on licensees and is a violation of freedom of conscience, leading to Groia’s request and a court challenge filed by a Lakehead University law professor.

“What’s the point of having the report if we’re just going to shelve it or stick our heads in the sand?” says Hafeez Amarshi, president of the South Asian Bar Association of Toronto. “We spent four years working on this report.”

The Canadian Association of Black Lawyers recently sent a letter to the law society, also supporting the statement of principles and questioning why the issue would be reopened, particularly considering a discussion already happened on the issue at the Dec. 2016 meeting when the recommendations were approved.

In the letter, the association acknowledged that the statement of principles will not be popular among all lawyers but that it is essential.  Groia’s motion will ask benchers to consider an exemption for conscientious objectors of the requirement.

Bencher Anne Vespry, who is seconding Groia’s motion, says the motion will give benchers the opportunity to reconsider the statement of principles without threatening any of the other recommendations.

Benchers had to vote on all 13 recommendations as an all-or-nothing package. Vespry was among the benchers who was critical of the statement of principles, and she voted to consider the requirement separately.

“When you pair really important and useful proposals or recommendations with others that might not stand as much scrutiny, and you say oppose this piece and we will lose everything — that can be very persuasive,” says Vespry, who is a racialized lawyer.

While benchers are set to debate the issue again, Lakehead University law professor Ryan Alford has turned to the courts to try to put an end to the statement of principles. He has asked the Ontario Superior Court for an interim injunction to stop the law society from enforcing the requirement, and he has requested a declaration that it is both unconstitutional and outside the law society’s statutory authority.

“When you ask people to swear that they have any particular value — even if that view is one that we would all agree is unproblematic — you’re coercing people to reveal what is innermost,” says Alford. He has asked the court to declare that the requirement is contrary to the rule of law and unsupported by the regulator’s Rules of Professional Conduct. The professor’s application argues the requirement is disproportionate, inoperable and unconstitutional.

“A lot of people in the legal profession find the fact that the law society would be doing that particularly problematic, given that the law society is representative of a profession that is meant to be guardians of the constitution [and] defenders of the rule of law,” he says.                                LT

  • Resist the Thought Police

    Retired Litigator
    Maybe all of the benchers should be required to read (& file a report on) George Orwell's "1984." This requirement is outrageous and should be resisted by all lawyers, even those (like myself) who are considered "racialized." Fortunately, I've retired, but if I had not, I would absolutely refuse to participate in this "politically correct" nonsense. Hopefully the courts will assist us in pushing back against the Thought Police. I also agree completely with the Comment (below/above?) from "Interregnum."
  • Please don't tell me how I must think.

    Raymond Colautti
    Speaking for myself, while affirm the values contained in the Statement of Principles myself, I do find it offensive and dangerous for the Law Society, my professional governing body, to dictate how I must think. We are all governed by laws of general application such as the Human Rights Code which prohibits discrimination. I fail to see how this Statement of Principles are necessary or appropriate, in the absence of any hint or complaint of discriminatory conduct on my part. I do not see the need to be preached to by my governing body on this point, or forced to sign and post this document on my premises as a condition of continuing to practice my profession. Enough of these culture wars.
  • Requesting exemption acknowledges obligation

    Carl John Wais
    In requesting an exemption on the grounds of conscientious objection, is one not at the same time acknowledging his obligation to the Law Society to create and adopt a Statement of Principles?
  • Poorly planned and pointless

    JG in TO
    I attended an OBA webinar on Nov 13, “Law Society requirements for 2017: Equality, Diversity and Inclusion”. The panel was comprised of LSUC Bencher Raj Anand, Equity Advisor Marian MacGregor, Equity Advisory Group Chair Paul Saguil, and licensee Richa Sandill. During the Q&A period (where they responded to apparently preselected questions submitted prior to the event), a panel member (Mr. Anand or Ms. MacGregor) adamantly maintained that the Statement of Principles they’re making us adopt “is not directed at people’s thoughts”, just at their actions or behaviours. However, that directly contradicts what LSUC says on its website (helpfully provided as a slide during the presentation): the Preamble under “Key Concepts of a Statement of Principles” states, “The intention of the statement of principles is to demonstrate a PERSONAL VALUING of equality, diversity, and inclusion...” (emphasis added). In my opinion, that stated intention is specifically aimed at dictating how lawyers and paralegals have to THINK, not just how we are to behave. The merits of the principles are irrelevant. LSUC cannot act as an Orwellian “Big Brother” and dictate how it’s members must think. I find it unconscionable that LSUC is proceeding with this feel-good initiative, regardless of a possible Charter violation and despite a pending court challenge. It is particularly disturbing since there’s no real upside to this initiative — the only “benefit” being the Benchers’ ability to clap themselves on the back and say they now have proof on paper they didn’t ignore the recommendations of their Challenges Faced by Racialized Licensees Working Group. This exercise is not raising the esteem of LSUC and its Benchers in the eyes of its members; nor is it playing well with the public (see, for example, Marcus Gee’s Nov. 10 editorial in the Globe, “Lawyers should be held to standards — not beliefs”; the title says it all!). In the face of all this push back, LSUC should put this initiative on hold until it can be more thoughtfully - and Constitutionally - considered. We should not (as is the current plan) have to adopt a Statement of Principles in order to complete our Annual Report in January 2018.
  • Do Ya Think?

    David Cavilla
    You might have thought that it may have occurred to someone, somewhere in this wonderful process that, "Gee, maybe telling people how to think and what they must believe might be a problem"? Evidently not. That the promulgator of this Orwellian directive is a Law Society is even more mind boggling.
  • Thank You, Groia

    It's disheartening to see the Law Society so eager to impose its values on current and prospective lawyers. At the risk of sounding dramatic, Canadians died to protect this nation from totalitarian forces. Being compelled to agree with a set of values is totalitarianism. Accordingly, it should be opposed. Just because the set of values in question is viewed as progressive, doesn't make the imposition of it any less tyrannical. Granting an exemption to conscientious objectors is wholly reasonable and should have been implemented alongside the Statement of Principles. The fact that it wasn't considered initially is suspicious; it demonstrates a lack of respect for the values enshrined in the Charter. As an Ontario law student, I would rather transfer to another province than engage in compelled speech.

Law Times Poll

A group of benchers opposed to the Statement of Principles will need to win the support of their colleagues to repeal the requirement. Do you think they will be successful in repealing the statement of principles in the coming year?