Ontario’s Statement of Principles: overreach or overdue?

By Gavin & Brooke MacKenzie Winter 2017

Ontario’s Statement of Principles: overreach or overdue?


Ontario’s Law Society has sparked a vigorous debate over its decision to require lawyers, including retired and non-practising members, to adopt a Statement of Principles. Lawyers must declare that they have an “obligation to promote equality, diversity, and inclusion generally, and in their behaviour towards colleagues, employees, clients, and the public”. Our columnists weigh in.

Gavin: The Law Society’s express purpose is to “accelerate a culture shift” and to educate lawyers about their obligations to bring about “cultural and attitudinal change”. But aren’t principles personal? Don’t lawyers have the right to think and speak for themselves?

Brooke: Absolutely – but I’ve found the opposition to the Statement of Principles to be hyperbolic, and to misconceive both the problem and the proposed remedy. Queen’s Professor Bruce Pardy wrote in an op-ed in the National Post that upon learning about it he felt the need to check his passport to make sure he wasn’t in North Korea. “Godwin’s Law” states that once someone invokes an analogy to Nazi Germany, they lose the argument. I think that should apply equally to comparisons to North Korea and Orwell’s 1984. I also have concerns, but we need to do what we’re trained to do as lawyers: consider the intent of the policy, examine the facts, and then get into a fight about it.

G: Well, I admit that I am being provocative, but I have to wonder what the Law Society is accomplishing with this approach. It seems to me to be doomed to be ineffective. The mechanism the Law Society has adopted has provoked a debate that distracts from the goal of advancing equality in the profession. The Rules of Professional Conduct already require us to recognize the diversity of the Ontario community and to respect human rights laws. If you discriminate in hiring or promotion based on race (or gender, or sexual orientation, or religion) you can be disciplined. That is as it should be.

B: True, but disciplining individual lawyers for discrimination is an inadequate remedy for a pervasive problem. The Law Society commissioned an independent study that found systemic racism in the legal profession. The problem isn’t that law firms are making personnel decisions explicitly based on race, but unconscious bias in decision-making and systemic obstacles to advancement.

G: Okay, but mandating a “Statement of Principles” seems to many lawyers to be Orwellian in that it compels thought and speech. The Law Society can prescribe conduct, but can it prescribe beliefs?

B: No, but “Statement of Principles” is a misnomer. It’s not compelling thought and speech or prescribing beliefs. All we are required to do is affirm our existing obligation to recognize the diversity of the Ontario community. While I’ve heard some lawyers take issue with accepting an obligation to “promote” (as distinct from the current obligation to “recognize”) diversity, this is splitting hairs – and it nonetheless refers to our conduct rather than our beliefs. The Law Society should have made this clearer, but this is conduct regulation, not thought regulation.

G: It seems the Statement of Principles is really a Statement of Platitudes.

B: That would have been a much better name!

G: Mandating a “Statement of Principles” undermines the meritorious cause the Law Society is trying to advance. It’s not going to change anyone’s views. The Law Society’s objective is to persuade lawyers to bring about cultural change. You don’t persuade people by compelling them to say they agree with you. That just results in no one listening to what you have to say.

B: Agreed. If the goal was for lawyers to think critically about the values at issue, providing a template for us to sign and file away was not the solution. We need to candidly discuss what our professional obligations in respect of equality, diversity, and inclusion ought to be, and what active steps we should take to ensure our profession represents the public we serve.

Ironically, I think opposition to the “Orwellian” Statement of Principles has brought us closer to achieving this objective by sparking this debate.

G: Ah, now I get it – the Law Society has achieved its goals by being not only Orwellian but Machiavellian too!

Gavin MacKenzie & Brooke MacKenzie practise together in Toronto as MacKenzie Barristers with a focus on civil appeals and professional responsibility issues. The opinions expressed are their own.

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