A Call to Rebellion for Ontario Legal Professionals

So today I'm talking to two of my compatriots, I suppose, in this ongoing discussion in Canada about free speech issues, including compelled speech. I met Jared Brown and Bruce Party. Jared's a practicing lawyer and Bruce is a professor at Queen's University in the law school there. I met them both when we manifested a mutual interest last year in Bill C-16, which we all regarded as a piece of legislation that was infringing on the rights to free speech of Canadian individuals in a manner that hadn't been ever attempted before.

More recently, the Law Society of Upper Canada, soon to be known as the Law Society of Ontario, has put forward a requirement for all its members, so all of the lawyers in Ontario, to produce a document of principle. We all have been talking about that; the three of us have been talking about that we regard as another but far more egregious example of compelled speech. So I'm going to let Jared introduce himself and say a little bit about who he is. He testified with me at the Canadian Senate last year. Bruce Party also testified at the Senate on Bill C-16 and Bruce was also the lawyer that I debated. He played devil's advocate at Queen's University. Some of you watching this will be familiar with that video.

So Jared, I'll let you introduce yourself and then Bruce. Bruce recently wrote a column for the National Post on this new requirement by the Law Society, and so we're going to let him begin the discussion proper. On to you, Jared.

"I'm an everyday litigator. I'm a commercial litigator in Toronto. I've been practicing for about 15 years, doing increasingly more and more human rights tribunal work, things like that. Obviously, I stepped into the breach on C-16, and as far as I can tell, I may have been the only practicing lawyer that actually spoke out against the legislation. There were certainly a lot of lawyers, including the Canadian Bar Association, that were arranged in favor of the legislation, but as far as I can tell, boots on the ground, I think I was the only one. So I've got a pretty benign practice, but certainly have taken up the fight of people."

Bruce responds, "Thanks for that. Well, this issue arose for me a couple of weeks ago when I received an email from the Law Society. All lawyers get these emails to do various things, but this was different because it announced a new requirement for this year. Now, Jared, I think, was aware of this developing before I was, but like many other lawyers in the province, this was the first indication that this new requirement existed.

Essentially, the email said—one of the things that it said, among others—was that every licensed lawyer now is required to draft and submit what they are calling a statement of principles. That statement is required to express your agreement and the value you place on inclusion, diversity, and equality, and the fact that you will actively promote those values. That, to me, just sprung off the screen as a radius example of forced speech of the same kind that we were talking about under Bill C-16, but worse. This one actually requires you to make a full-fledged statement that will be subject to their approval in order to maintain your license.

In other words, this is not a matter of it being suggested to you that you might also want to do this; this is a condition of your ability to practice law in the province of Ontario. So this struck me as a matter that needed to be publicly discussed amongst lawyers in the province because this is a slow march to a dark place, I think, and that's where it all began."

Jared continues, "Yeah, well, it was concerning to me when I encountered this. I mean, I'm a member of a college as well, a college of psychologists, and my sense of this is that if the lawyers fall in line and go along with this, the probability that this will be required of every professional in Ontario and then very rapidly every professional in Canada is extremely high. Because if the lawyers, who are a relatively disagreeable bunch and who are very familiar with the law and with common law in general, are willing to have their political beliefs dictated to them by their college, then the probability that the rest of us will be able to withstand that, I think, is extremely low."

Bruce adds, "Well, a strong independent bar is always supposed to be the defense—or at least one line of defense—against tyranny or government overreach. By having the lawyers, under the guise of their regulatory body, being compelled to speak or share opinions, it's obviously something scary. I think it's something that lawyers should wake up to, and they need to push back against compelled speech, which was obviously the issue on Bill C-16, as a particularly nefarious infringement and intrusion."

Jordan comments, "Well, I mean, it's one thing to put restrictions on what people can say. I know you can't incite someone to crime, for example, but it's a completely different thing to require people to espouse a particular political stance, especially when it's being reviewed by what's essentially an arbitrary committee. The punishment is so draconian as potentially losing your right to practice, and that's enforced as a mandatory. The first step was to make that mandatory rather than as a suggestion.

Let's just emphasize at this point the distinction between restrictions on speech, which are not good things and are debatable, and this is a category of oppression. This is compelled speech. This is a requirement that makes you say something you may not agree with. As I mentioned, it will be in the column a statement from the Supreme Court of Canada. And maybe I'll just read out one of those to make the point, because even the court has said explicitly that this is not on in a free society. The words of the Supreme Court: '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,' which, of course, is not in question here."

Bruce interjects, "That was, sorry, Jordan, that was the cornerstone of not only the opinion piece that I put up on my website about Bill C-16 but also the cornerstone of the presentation that was made to the Senate. This is a particularly egregious infringement on freedom of expression. You're having to mouth opinions and ideas that may not be your own, and the government is forcing you to do it. And obviously, in this instance, you've got your regulatory body, which holds your license and your ability to carry on in the livelihood in the chosen profession that you're in, telling you that you've got to start voicing these opinions."

Jared adds, "So, wouldn't we talk before? One of the things that you pointed out, and Bruce you had commented on this as well, is that the Law Society administration theoretically did some background work before deciding that this was a necessity, and they produced a report essentially proclaiming that the people who are practicing law in Ontario are essentially racist in their orientation. This is why this piece of administrative, let's call it law or requirement, has come into practice. But it isn't obvious that their own data support that conclusion. I mean, you can easily read what they wrote as providing pretty compelling evidence that the legal profession, the demographics of the legal profession, for what that's worth, are transforming quite rapidly."

Bruce continues, "The thing that concerned me as well from a psychological perspective about this sort of thing is that lawyers who agreed to participate in this process are basically admitting their racism and misogyny on a conscious and unconscious basis as they're convicting themselves. They're guilty to begin with; they don't have an opportunity to prove their innocence. By going along with these requirements, they're basically admitting through their action that the accusations that are being thrown at them, both individually and as a collective, are not only accurate but require immediate remediation."

Jared states, "Well, I mean, the requirement that's being rolled out right now is the result of, I think it's about a 58-page report that had 13 recommendations that were passed by convocation, which is the governing body of the Law Society. The report itself was entitled 'Strategies to Address Issues of Systemic Racism.' I mean, that statement on its own is saying that our industry, as well as the Law Society organization itself, is systemically racist. Clearly, that's a very bold statement and one that I think requires some level of scrutiny.

The group that came up with this report is an esteemed group. These are all highly respected, well-accomplished individuals, and there is a body of data that they've produced as well as some qualitative anecdotal stories as to some of the issues that are being faced by what they call racialized licensees. I mean, the data is something that a lot of people aren't going to look at, but I do encourage people to look at it and see what the basis is for that finding that we're a systemically racist industry and profession. I can assure you that most lawyers won't—58 pages of something that happened back in December. But there’s a lot of shocking information in there and there are obviously some shocking findings, but it has me concerned because my industry has now been deemed racist by the body that governs it."

Jordan adds, "One of the things that's really appalling about that and also about the requirements for the statement of principles is that there's a pronounced ideological bent to them. The first is the idea of systemic racism because the way that you prove systemic racism is, let's say, questionable methodologically to say the least. The basic concept is that you divide the population up by racial, ethnic, and sex-based identification, which you can do in a very large number of ways, by the way, and then you compare any organization to that population-based division. If the ratio of individuals categorized in the general population isn't the same as the ratio of individuals in that profession, then you can automatically make a case for systemic racism.

That's a very, very weak methodology. No credible scientist would regard that, and I would regard that as proof of anything. Worse, I can't imagine that any claim like that would stand up in something resembling a court of law, if it was possible to take a group to court, because there are all sorts of reasons why there might be differential representation in a group, and that is assuming that that's what the data shows. In many respects, this is actually not what this data shows."

Bruce remarks, "I take your point about the methodology, but even so, even if you accept that methodology, it's not crystal clear that that's what the numbers actually suggest. When I get back for a moment to your implication point—I mean, I agree that the requirement to make this statement in this context essentially could be interpreted as though you are required to make a confession about what it is that you've done wrongly in the past and what it is you will do now in the present to correct it as an individual.

There is also the trouble that once you have written the statement in compliance with the requirement, then you have on the record a statement of what it is that you believe, and thereafter, your future actions can be compared to that statement so as to show that you are not acting in compliance with what you have said you believe, or that on one occasion or the other you haven't been telling the truth."

Jared continues, "I've heard some lawyers say in response to this requirement that, 'Oh well, this is not a big deal because I'm just going to write the statement. They'll put it in the file and it will sit in some corner of the Law Society computer, and who cares, it's no big deal.' But it actually is a very big deal because they are hurting you towards both a certain way to think, a certain way to express yourself, and in a certain restriction on your behavior and your expression in terms of how you say you believe in this kind of law."

Bruce adds, "Right, but also you're subscribing to the idea that the system is racist, that the industry and the profession themselves are racist, and to me, that implies hopelessly corrupt. That shocks me, and I don't think I want my industry advertising that unless, of course, we've got an issue here. It's not entirely clear to me from reading the report that we do."

Jordan interjects, "What you just said, which I think is very important, is that the Law Society is essentially an arm of the state. It has coercive power given to it by the state to license lawyers. It is the gatekeeper. So you have no choice, whereas, as you said during the association with Trinity Western, it's entirely voluntary. If you don't want to go to that school, you don't have to go to that school.

It's ironic in the extreme that it is the Law Society which has imposed such a requirement in circumstances that are much more objectionable than the Trinity Western situation."

Bruce concludes, "It's quite disconcerting to me, to say the least, to see that it's actually lawyers that are doing this and that they are not capable of seeing or unwilling to see for some reason that I don't really understand that this is an egregious assault on the rights of, well, I would say of lawyers in Ontario but also of the individual citizens in Canada. The fact that it's lawyers that are involved in this is really what I find much more terrifying in some sense than the unfounded or likely unfounded accusation that the entire profession is racist."

The discussion continues as they explore these pressing issues, highlighting the potential ramifications for lawyers and the broader implications for free speech in Canada.