It is uncontroversial to state that Canadian society at large is increasingly secular. But for Ontario lawyers, that trend now has very practical, serious and immediate implications.
The question is whether lawyers have to pass a moral test to practice. Or, to put it another way, is moral conformity with secular values a precondition to practicing law? A new requirement for Ontario lawyers to adopt a Statement of Principles suggests a troubling move in this direction.
The Law Society & the Statement
The Law Society of Upper Canada (“LSUC”) is the body that regulates lawyers and the practice of law in Ontario. LSUC sets standards for learning, competence, ethics and professionalism, and has the authority to discipline lawyers for violating those standards. Each year lawyers file a report with LSUC identifying areas of practice, hours spent on professional development, financial reporting, and compliance with other rules and regulations.
In a 2016 Report by LSUC on systemic racism within the legal profession 13 recommendations were made, three of which are being implemented this year:
- Inclusion/diversity survey (optional)
- Human Rights and Diversity Policy for workplaces with 10 or more lawyers or paralegals
- Statement of Principles
The Statement must acknowledge an “obligation to promote equality, diversity and inclusion generally” and in individual “behaviour towards colleagues, employees, clients and the public.” The creation, submission and adherence to this Statement of Principles is mandatory.
There are a number of important questions to ask about this new requirement.
What Is the Statement’s Purpose?
According to LSUC, the intention of the statement is to “demonstrate a personal valuing of equality, diversity and inclusion” in the individual lawyers’ practice and workplace. But recall that the Statement must acknowledge an obligation to promote these values generally as well.
Lawyers already have a special responsibility to respect the requirements of human rights laws in force in Ontario, and specifically to honour the obligation not to discriminate with respect to employment or in professional dealings. What additional purpose does the Statement of Principles then serve? It goes beyond the special responsibility by governing behaviour outside of that scope, and it requires not just adherence to the law, but agreement with and promotion of the law.
The Statement moves LSUC from governing professional interactions to governing personal beliefs and interactions. LSUC wants all lawyers in Ontario to personally hold and promote a particular set of values.
It is unclear when or if LSUC will examine the content of statements. At this point lawyers only have to say whether they have a statement; however, that statement must be made available upon request. For now, the only certainty is that where a lawyer reports “non-compliance” in the Annual Report (i.e. fails to provide a Statement), the lawyer will be unable to complete the Annual Report and will be “advised of her obligations in writing”; an ominous but vague warning. Generally, failure to complete an Annual Report by the required deadline results in a late filing fee and a summary order suspending the lawyer’s licence until the report is filed and fee paid.
Problems of Interpretation: Diversity, Inclusion, Equality
An important question needs to be asked at this stage: are the values of diversity, inclusion and equality at odds with a Christian worldview? Clearly Christians should affirm that all humans are made in God’s image (Gen. 1:26-28) and thus have inherent dignity, worth and are deserving of respect. The Bible also speaks to the kingdom of God as transcending all human barriers of language, culture, race and nation (Rev. 5:9, 7:9-10) and Christians ought to be vocal and unequivocal in denouncing and condemning racism.
However, one of the challenges for the Christian lawyer is that LSUC does not always share these definitions, and certainly does not ground them in Scripture. In fact, in repeated court pleadings, LSUC’s definition of equality, diversity and inclusion is one that explicitly excludes evangelical Christians and Biblical beliefs. The court pleadings I refer to come from the Trinity Western University (TWU) law school cases.
For those unfamiliar with the case the brief context is as follows. TWU is a private Christian university in British Columbia that planned to open a law school. LSUC refused to recognize the school, denying its law graduates the ability to enter practice in Ontario. It has taken this position because of TWU’s adherence to an opposite-sex definition of marriage, and marriage as the only appropriate institution for sexual intimacy. LSUC describes these beliefs as discriminatory, offensive and sufficient justification for excluding its graduates from the practice of law in Ontario. LSUC has taken a strong position against TWU because it views TWU’s beliefs as an affront to its own values, characterizing TWU as an institution at odds with the goals and principles LSUC seeks to promote.
Considering LSUC’s position toward TWU, and how it defines equality, diversity and inclusion in the TWU case makes it eminently reasonable to be concerned that LSUC is using the Statement of Principles as a tool of moral conformity; or at least as a means to pressure its members to agree with and personally promote LSUC’s vision of equality, diversity and inclusion. But can LSUC do this? What about lawyers’ Charter rights?
Does the Statement Violate Charter Rights?
It is difficult (especially for a lawyer!) to answer this question in a short paragraph, but also impossible to pass over this concern. The Charter protects freedom of conscience and religion, thought, belief, opinion and expression, so there is a strong argument to be made that this new Statement obligation violates the law because it violates Charter rights. It is one thing to require obedience to the law; it is something entirely different to require agreement with all elements of the law, let alone promotion of the law.
Academics have already commented in media columns that the Statement is compelled speech, the most egregious form of free expression violations, and that the Statement falls outside of what LSUC is allowed to do in its role regulating lawyers. Taking one Charter right as an example, free expression is intended to facilitate truth-seeking and is necessary for the exchange of ideas, debate on public policies and values and is considered central to a functioning democracy. On this summary basis alone there is much fodder for legal debate about the Statement. But that doesn’t necessarily answer the key question of how to respond.
What Is the Christian to do?
Where does this leave the Christian lawyer? What is he or she to do? There are a few options: submit a prepared Statement provided by LSUC, refuse to submit a Statement being prepared to face potential discipline, take legal action, or provide a unique statement that accurately reflects a biblical Christian understanding of equality, diversity and inclusion.
There is room to debate what would be the most effective means of responding to this new requirement and that will vary with the individual conscience, but in my view the last option provides a unique opportunity to bear witness. There is a complete vacuum within the legal community when it comes to Biblical literacy, even as our Charter recognizes the supremacy of God (truly, that is in our Charter – you should read it).
While not a king or governor, LSUC is in a position of authority over lawyers, and it is calling upon members of the legal community to make a declaration: whose principles will you promote?
This is an opportunity to express what it means to recognize the supremacy of God, how the Christian understands and sees all people as having inherent dignity, even (perhaps especially) when we disagree. It is an opportunity to gently and respectfully articulate the principles by which Christians live and work. It is an opportunity for all of us – lawyers and non-lawyers – to consider the principles by which we live, being prepared to give a reason for the hope we have. Are you prepared?