Equality, diversity and inclusion has become a hot topic as bencher election campaigns mobilize. The Law Society of Ontario’s statement of principles requirement returns to the forefront of intra-professional debate. Licensees are required to “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,” according to the LSO. An election bloc, calling itself StopSOP, has recruited bencher candidates running to reverse the SOP policy.
The bloc alleges that the LSO’s core mandate is to regulate competence and ethics standards and the SOP policy exceeds that purpose, especially with regard to an obligation “to promote” EDI. According to the group, the SOP is unconstitutional and compels speech within an inherently political sphere. To StopSOP, the SOP is tyranny — its word, not mine.
There are a few reasons to raise an eyebrow here. First, every licensee drafts their own SOP, and the ambit of possible SOPs set by the policy is extremely broad. Dictionary.com defines “promote” as “to help or encourage to exist or flourish.” Our existing obligations, for example, under Ontario’s Human Rights Code and the LSO’s Rules of Professional Conduct, already help EDI to exist. In my view, a simple sentence affirming those existing obligations is a compliant SOP.
It’s difficult to imagine how that could be involuntary or, well, difficult. There is nothing stopping a concerned licensee from qualifying their SOP to reflect their views. You can craft an SOP permitting the same views you had previously. While some of our colleagues have written broad and aspirational SOPs, it can be trivial, if you want it to be.
Second, and more obviously, Ontario lawyers were all already compelled to swear or affirm a prescribed statement at our respective calls. We took oaths to “champion the rule of law and safeguard the rights and freedoms of all persons” among other things. No one objects to these obligations, and these obligations already capture what one would write in an SOP.
Third, while StopSOPers allege that the policy is unconstitutional, that claim is uncertain. The Supreme Court of Canada considered law societies’ authority to regulate free speech in Doré v. Barreau du Québec, 2012 SCC 12. The court held that professional obligation can outweigh freedom of expression, and it refused to quash a lawyer’s suspension for an uncivil letter to a judge. The Court of Appeal for Ontario considered the oath of citizenship as compelled speech in McAteer v. Canada, 2014 ONCA 578 (leave to appeal refused). There, the court ruled that the compelled oath did not infringe freedom of expression under the Charter, for one thing, because the complainants could still freely express their dissenting views.
For many of us, EDI words are new, the language unfamiliar. We can all understand StopSOP’s initial misgivings. We do not all face equality barriers, we do not all live in diverse communities and we do not all ponder the inclusiveness of our everyday workplaces. For many of us, a gut feeling will give us pause and prompt us to ask why an SOP should apply to us. It’s not obvious. But that’s the point.
Recently, it’s come to light that men’s and women’s barristers’ robing rooms at Osgoode Hall are appallingly mismatched in size. Even in the heart of Toronto, one of the most progressive cities in the world, among professionals devoted to upholding rights, among the most ardent of social justice advocates, women robe in a de facto broom closet, while men enjoy a lavish excess of full-length lockers and a lounge area, all smelling of rich mahogany. Women at large have been seeking equality for more than a century, yet, without anyone doing anything wrong, women in law still get less.
The disparity exemplifies why some among us are impatient for this mere token from the profession, something recognizing that unequal treatment exists, that unseen and unspoken circumstances and assumptions mean that some get less for no good reason. We can all do better and it’s not obvious how. That’s all the SOP is about. It’s just a good thing to do.
If you want your SOP to be about more, then do coffee or lunch with a colleague — woman, minority or anyone from somewhere different than you. Talk about experience. Talk about aspirations. If anything, that’s the purpose behind the EDI initiatives broadly, to encourage reflection and discourse about how we can best conduct ourselves as licensees, irrespective of anyone else’s background.
Fred Wu is a litigator. He does not tweet legal advice from @effwu.