Canadian Bar Cozies Up to Compelled Speech

Oh, Canada.

Not content with statements of principle in support of diversity – or even ethics rules, such as the hotly-contested-and-likely-unconstitutional ABA Model Rule 8.4(g) – Canada’s largest legal regulator has adopted a rule requiring that each of its members “create and abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.”

The Law Society of Ontario¬†(nee “Law Society of Upper Canada”) offers templates that presumably provide a safe harbor for attorneys who adopt them. The first template reads:

As a licensee of the Law Society of Upper Canada, I stand by the following principles:
  • A recognition that the Law Society is committed to Inclusive legal workplaces in Ontario, a reduction of barriers created by racism, unconscious bias and discrimination and better representation of Indigenous and racialized licensees in the legal professions in all legal workplaces and at all levels of seniority;
  • My special responsibility as a member of the legal profession to protect the dignity of all individuals, and to respect human rights laws in force in Ontario;
  • A commitment to advance reconciliation, acknowledging that we are collectively responsible to support improved relationships between Indigenous and non-Indigenous peoples in Ontario and Canada; and,
  • An acknowledgement of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.

These all sound like perfectly fine principles. But there’s a big difference between principles and mandates – and that’s particularly true when when those mandates are dictating what people are supposed to say and believe.

And it doesn’t matter whether or not I agree with the subject of the mandate. It’s the compulsion that repels; a heavy-handed presumption that requiring something can make it so. We also know that principles driven into mandate encourage the worst sort of nose-counting rigidity. One needn’t look far online to see calls for fairness, equal dignity, and respect turn into demands for quotas and other specific outcomes.

It’s fine if the Law Society wants to elevate and bring attention to these goals. It’s fine if it wants to invest toward realizing them. And it’s fine if it wants to persuade its members that these are worthy goals, and that members should take active steps toward their realization. But when persuasion and aspiration turn into compelled, dogmatic recitation, the regulators of the Bar have surely lost their way.