LSUC's diversity statement: Unconstitutional?

By Yves Faguy October 23, 201723 October 2017

LSUC's diversity statement: Unconstitutional?

Licensed under Creative Commons by puroticorico


The soon-to-be-renamed Law Society of Upper Canada has caused significant controversy in the legal profession over its new requirement that licensees abide by a statement of principles promoting equality, diversity and inclusion. The requirement is part of a broader effort on the part of the law society to remove barriers encountered by racialized licensees, as proposed by a working group whose recommendations were adopted late last year.

Why the fuss? Critics say that requiring lawyers to adopt a statement on diversity and inclusion violates freedom of expression, as protected under the Canadian Charter.  The main objection here is that it amounts to forcing them to express opinions they may or may not share – very different, according to Bruce Pardy of Queen’s than having to comply with a law all the while having the right to disagree with it: “The Supreme Court of Canada has said that forcing someone to express opinions that they do not have “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes,” he writes.  What’s more, writes Léonid Sirota, oaths like these are questionable from a constitutional point of view, and the legal profession should show some backbone by refusing to comply with orthodoxy imposed on it from above. Defenders of the requirement — Adam Dodek, among them — respond that these objections are a stretch too far, particularly as the law society is merely trying to promote Charter values and therefore the statement amounts to “nothing more than a positive affirmation.” To Jennifer Quito, the statement of principles “directs action, not belief” and merely upholds obligations not to discriminate already covered under Ontario’s professional conduct rules.  Even if there is a violation of freedom of expression, it is justified, she writes: “Requiring lawyers to confirm their human rights obligations is not deleterious, and in any event, it would be far outweighed by the salutary effects.”

So far, freedom of expression and thought appears to be alive and well in the legal profession.

Photo licensed under Creative Commons by puroticorico

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