Lawyers face their own fight on free speech
We can't defend our clients if we don't defend ourselves, argues Jay Cameron
Cameron: Ontario lawyers now face their own free-speech battle
Jay CameronJAY CAMERON
Published on: November 23, 2017 | Last Updated: November 23, 2017 12:32 PM EST
Apparently, it’s no longer enough for lawyers in Ontario to know the law and their ethical obligations. Starting this year, the Law Society of Upper Canada requires every lawyer in the province to “create and abide by an individual Statement of Principles that acknowledges (their) obligation to promote equality, diversity and inclusion generally” – and to do so as part of their 2017 Annual Statement.
The Annual Statement is a licensing requirement.
Many lawyers have publicly rebelled at the Law Society’s attempts to coerce both their speech and their behaviour. And given the current debate about free speech in our universities, the measure bears examination.
In following the story, I reviewed the Law Society’s Barrister’s Oath (bylaw 4, section 21). The language is fairly typical, including pledges to act ethically, not promote lawsuits on frivolous pretences, conduct all cases faithfully, etc. One line of the oath stood out to me, however: “I shall champion the rule of law and safeguard the rights and freedoms of all persons.”
It would certainly seem that the Law Society cannot require lawyers to waive their constitutional rights to freedom of thought, belief, opinion and expression by signing a “personal” inclusivity statement against their will, and at the same time require them to take a solemn oath to “champion the rule of law” (what about the Canadian Charter of Rights and Freedoms?) or “safeguard the rights and freedoms of all persons” (what about the rights and freedoms of lawyers?).
The statement creates a new paradigm, and a new work reality for every lawyer, and it would seem that the Lawyer’s Oath needs to be re-written, and re-sworn by every lawyer to reflect new obligations. The year 2017 is nearly over, and the annual statements are due soon. Any lawyer who intends to conform under duress and create an “individual” statement, should also be willing to swear to the following:
1. I pledge to renounce my own ideas (which I suddenly realize are bad, now that my licence may be at stake) and embrace those of the Law Society (which I never realized were so good until I realized I may have a hard time feeding my family if I don’t agree with them);
2. I pledge to embrace insincerity, and say things I don’t mean, and mean things I don’t say, and do so in a manner that sounds convincing and compelling to all around me;
3. I pledge to promptly call the practice adviser if I go off-script in regard to the promotion of inclusivity, or if I lose the leaflets that say what I’m supposed to think that is;
4. I pledge to seek counselling if I begin to suffer depression from mouthing platitudes that aren’t mine – but solemnly recognize and agree that I would rather eat and be a hypocrite than not eat at all;
5. I pledge to retweet whatever the Law Society of Upper Canada tweets within eight hours (three hours if it has to do with inclusivity), and pledge to neither fondly remember nor yearn for any of my former freedoms; they are shadows that I have already forgotten.
The coerced signing away of one’s rights and individuality as a condition of practising law in Ontario is profound. Alexis de Tocqueville famously warned us about the tyranny of the majority, and its obsession not with liberty, but with the god of equality that it pursues above all else. Coerced worship of the idol is a sign of the death of a “free and democratic society,” which the charter establishes as Canada’s ideal.
The current oath includes a pledge to uphold the freedoms of all persons. That includes lawyers. It’s time for every lawyer in Ontario to consider carefully this: If they can’t determine to stand for their own rights, how will they stand for anyone else’s?
Calgary lawyer Jay Cameron is Litigation Manager with the Justice Centre for Constitutional Freedoms (www.jccf.ca). Twitter: @Juriscameron
UPDATE!
From P.NP4 of the Ottawa Citizen, Saturday, December 2, 2017, and from here:
An Ottawa lawyer compared the controversial statement of principles to Bart Simpson writing 'I will not be a bad boy again' on the blackboard — an empty gesture
Free speech threatened by new rules, lawyers say
Lawyers and paralegals in Ontario will be required to adopt and abide by a controversial statement of principles in order to remain licensed by the Law Society of Upper Canada.
The rule was officially adopted late last year, one of many reforms to address systemic racism in the province’s legal profession. But it has not yet been enforced, and a recent motion sought to allow members to abstain from making the statement on grounds of conscience or faith.
After a heated and protracted debate at the law society’s governing convocation, this motion failed at midday Friday, meaning the rule is valid and will be enforced.
The official tally was not immediately available, but the vote was not overwhelmingly against. Many expressed support for the exemption for conscientious objectors, proposed by prominent Toronto lawyer Joe Groia.
Friday’s debate was not mainly about the content of the statement. Benchers on all sides repeatedly declared that support for diversity and equality was a fundamental value universally shared in the legal community. The objection was on the requirement to declare one’s obligation to promote these values, which Groia described as compelled speech.
Even if someone means it, they should not be forced to say it, he argued. If they do not mean it, the statement is hollow and false. Groia said the law society should “find other and better ways to advance those goals” of equality and diversity.
One bencher compared it to a U.S. case about forcing children to stand for the Pledge of Allegiance, which was rejected as a violation of free speech.
The reasons offered in support of Groia’s failed motion were varied.
Some were practical, such as the inevitable litigation when a lawyer decides to violate this rule and challenge it in court. This will come after a string of other cases that the LSUC has fought in court, at no small expense.
Some were procedural, pointing out that the Law Society first said the content would not be formally dictated, but then offered a number of templates without being clear on what other versions might be acceptable.
Groia himself questioned whether the mandatory statement would even do anything to achieve or promote the goals of equality and inclusion.
“What do we gain by offending so many men and women of conscience and faith?” he said. “Why do we stubbornly refuse to fix the mess we have created?”
One of the most striking defences of Groia’s motion came from bencher Anne Vespry, an Ottawa lawyer who compared the statement to Bart Simpson writing “I will not be a bad boy again” on the blackboard — an empty gesture.
She argued that, while it is possible some objectors to the statement are trying to conceal their own prejudice, many supporters are “wrapping themselves in the flag of equality and diversity” as a way to bully others into submission. She said she used to think disagreement was always the product of inadequate evidence, misunderstanding, poor application of rules, wilful blindness, or malice. But she has come to realize that conscience and faith can lead people of good will to vastly different perspectives that are not captured by simple rules.
She described herself as brown, biologicaly female, gender butch, queer, with a learning disability, mild physical disabilities depending on what the situation requires, and mild to moderate post traumatic stress disorder. She also used to work for Glad Day Bookshop, which sells literature aimed at a queer audience and has been at the centre of many legal fights over obscenity laws and free expression.
“I believe in free speech. I believe that controlling speech is a bad thing. When someone else controls our dialogue, people suffer,” she said. “Government censorship, government control of language killed people. People died because they did not get access to information.”
“Ambiguity is antithetical to clarity,” she said, and the statement of principles is “classically ambiguous language,” which can be interpreted “to mean kind of nothing at all.”
Before the vote, she said the failure of the motion would mean she will “look for a new career.”
Bencher Raj Anand observed that the stars have to align perfectly in order to achieve even the most modest reforms against systemic racism, and this one should not be derailed because some people see it as an affront to their rights.
“Diversity and inclusion is not a zero sum game,” he said.
Bencher Sandra Nishikawa, counsel at the Ontario Human Rights Commission, who voted against the motion, said the debate had become academic. She said it elevates the abstract value of free speech over the real concerns of real marginalized people.
“We are not in a face saving exercise here,” she said. “Equality is fundamental to everything we do.”
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