Opponents to LSUC's 'compelled speech' policy lose 38-16

Opponents to LSUC's 'compelled speech' policy lose 38-16

In a relatively split decision earlier this month, Ontario’s regulator for legal practitioners squashed a motion allowing lawyers and paralegals to choose whether to submit a controversial “statement of principles’ to the law society by the end of the year.

More than a quarter of LSUC benchers were opposed the policy, which would see the mandatory obligation of the more than 50,000 licensed legal practitioners in the province to submit a document affirming, among other things, their acknowledgement to concepts such as unconscious bias and discrimination.

On Dec. 1, a total of 38 benchers voted against a motion filed to allow lawyers opposing the aims of the policy to be exempt if they chose to not comply with the requirement. In total, 16 benchers were in support of the motion.

The statement of principles is a part of a larger move by legal regulators to advance the rights of visible minorities within the profession. It appears to command a wide range of support from a variety of groups, such as the Challenges Faced by Racialized Licensees Working Group, the Ontario Bar Association, and many others. The recent motion being quashed is being hailed as a step forward for diversity and inclusion. For many supporters it goes without saying the aim of the statement of principles is to benevolently help disadvantaged members of the profession rather than to sow division.

As a result of this recent vote, it remains written into regulatory law that lawyers and paralegals in Ontario must abide by their own self written obligation to promote inclusion, equality, and diversity and to acknowledge that they hold unconscious biases.

At present it is unclear whether punishment, if any, will arise for non-compliance in the future. Supporters of the statement of principles say the document is about conduct and not about beliefs.

“What is clear to me is that a great many men and women of conscience and faith are still troubled by this mandatory requirement,” said Bencher Joe Groia, who originally filed the motion.

According to Reuters legal journalist Alex Robinson, Groia also claimed his motion was supported by other groups in society, and not just “old white men”.

A sizable number of academics and legal scholars have long opposed the statement of principles. Some go as far to claim the policy is tantamount to compelled speech befitting despotic regimes. Other moderate commentators say it is merely lip service and virtue signalling.

It isn’t just ivory tower analysts who are upset. There is evidence to suggest lawyers who are visible minorities also oppose the LSUC’s statement of principles, such as Ottawa family lawyer and LSUC Bencher Anne Vespry, who is herself a described ‘racialized’ practitioner.

“I believe I have a duty to act in a way that does not discriminate, but I do not believe that I have a duty to promote anything except maybe my own business,” Vespry told the Star, adding she will “stand up for this motion and any other motion that will make the recommendations make better sense.”

The Statement of Principles is expected to be challenged in court in the future, namely for purportedly violating the Charter of Rights and Freedoms. Leading the battle is Lakehead University professor Ryan Alford.

The LSUC enjoys a fair bit of support on this issue among many legal groups and the organization continues to offer a thorough guide and several templates “to provide licensees with a template guide "to what might be included in a personal statement of principles”.

The guide is filled with a number of “I will” statements which can be adopted by lawyers who want to remain compliant. These are a few:

I am aware that under the Ontario Human Rights Code every person has the right to be free from discrimination and harassment in employment.

I acknowledge my obligation not to tolerate, condone or ignore any form of Human Rights Code-based harassment or discrimination in my legal workplace, or in professional dealings with other licensees or any other person.

I agree to encourage a culture of inclusion and diversity in order to help attact and retain the best talent and better serve my client’s needs.

It also provides a specific commitment to advance reconciliation and to acknowledge that Canada is home to “three distinct orders: Common, Civil and Indigenous.”

uLawPractice, an Ottawa-based legal accounting software company which runs this blog, is currently assessing whether it will be advantageous for the software service to provide an automated template solution for practitioners wishing to submit a speedy Statement of Principles in order to ensure full compliance. If you are interested, please fill out the form below.