Affidavi

I have repeatedly argued, here and elsewhere, that the Law Society of Ontario’s requirement that its members “acknowledge[] [an] obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public” by means of a “statement of principles” is wrong in principle, illegal, and unconstitutional. Fortunately, Ryan Alford and Murray Klippenstein are challenging the validity of the Law Society’s demands, backed by the Canadian Constitution Foundation. For my part, I have provided an affidavit for their application (which has been served on the Law Society, but not filed with the court just yet), primarily to illustrate that the “statement of principles” policy applies far more widely than do non-discrimination obligations under the Ontario or federal human rights legislation, to which the Law Society has been endeavouring to misleadingly equate it.

But of course the affidavit is also an opportunity to explain why I oppose the Law Society’s demands, and will not comply with them, so I thought it worthwhile to reproduce an adapted version of it here. (I have removed some of the affidavit-y bells and whistles, so that it reads more like a normal post, and have added some links.) Of course, since an affidavit is meant to be a personal statement, not legal argument, it is a more personal and less argumentative text than my normal posts. Here goes.

---

I am a Senior Lecturer (a position equivalent to that of an Assistant or Associate Professor) at the Auckland University of Technology Law School. I hold degrees in civil law and common law (BCL/LLB (Hons)) from the McGill University Faculty of Law, as well as a Master’s degree (LLM (Legal Theory) and a doctorate (JSD) from the New York University School of Law.

I was called to the Bar in June 2010 and have been a member of the Law Society of Upper Canada, now the Law Society of Ontario, (the “Law Society”) in good standing ever since. However, I am not and have never been a practicing lawyer. From September 2010 to August 2016, I was a full-time student; since August 2016, I have been a full-time academic. I have no clients and no employees. To my knowledge, no one among my co-workers is a fellow licensee of the Law Society. I have resided in New Zealand since August 2016, and have not resided in Ontario since August 2010.

My Interest in Freedom of Conscience and the Rights of Others

My research interests range broadly across constitutional and administrative law, with a focus on Canada. Among the areas on which I have published is the freedom of conscience and religion. My LLM thesis, subsequently published as a peer-reviewed article, was concerned with religious exemptions and the Rule of Law, exploring the importance of individual conscience in reconciling the claims of religious believers and the demands of legal conformity. Another of my peer-reviewed articles argued that the reference to the Queen in the Canadian citizenship oath infringes the freedom of conscience of those republicans who are required to take it.

In addition to scholarship, I have written about freedom of conscience and religion in multiple posts on the award-winning blog Double Aspect, which I created in 2012, of which I first was the sole author (until July 2018) and now am a co-author. In particular, I have been critical of various attempts in Québec to deprive state employees of their right to wear so-called “ostentatious religious symbols”. I have also published an op-ed on this issue. I also published multiple posts on freedom of conscience of republicans objecting to the citizenship oath.

In this work, as well as in writing on a number of other issues (notably relating to freedom of expression in the electoral context), I have consistently championed the rights of individuals and groups with whom I profoundly disagree, including many whose views I reject. I have defended religious exemptions and other forms of accommodation for religious believers, but I am agnostic. I have defended the freedom of conscience of republicans, but I am a monarchist. I have defended the freedom of expression of student movements and trade unions, but I strongly disagree with the aims of both.

The Statement of Principles Requirement

At the December 2, 2016 meeting of Convocation, the Law Society adopted the requirement that each licensee “create and abide by an individual Statement of Principles that acknowledges [his or her] obligation to promote equality, diversity and inclusion generally, and in [his or her] behaviour towards colleagues, employees, clients and the public”.

I learned of the adoption of the Statement of Principles requirement after the fact, via an e-mail sent by the Law Society on September 13, 2017, entitled “New Obligations for 2017 — Actions you need to take”. That e-mail said that: “You will need to create an abide by an individual Statement of Principles that acknowledges your obligation to promote equality, diversity generally, and in your behaviour towards colleagues, employees, clients, and the public.” Until then, I had not received any correspondence from the Law Society on that topic or which alluded to it, and was not aware that Convocation had adopted the Statement of Principles requirement.

This requirement is applicable to me as a licensee of the Law Society, even though I am not, and never have been, practicing law in Ontario, and, to my knowledge, have no colleagues, students or subordinates who, are licensed to practice law in Ontario. As the Law Society explains on a “Frequently Asked Questions” page on its website, “[i]f you are licensed by the Law Society, you must meet this requirement regardless of whether you are currently practising law or providing legal services”.

I have not complied with the Statement of Principles requirement. I have provided the following explanation for my refusal to do so in my 2017 Lawyer Annual Report:

No existing legislation, primary or delegated, imposes on me or on any lawyer in Ontario an obligation to promote equality, diversity and inclusion. In particular, human rights legislation and the Rules of Professional Conduct prohibit engaging in discrimination, but say nothing of promoting any particular values or ideals. The Law Society has no right to be demanding that its members acknowledge an obligation that does not exist, and one that could not be constitutionally imposed, since in a free society, the state or its instrumentalities, such as the Law Society, have no business imposing values on individuals, much less demanding that individuals promote values. The Law Society’s policy in this matter is no less totalitarian than the arbitrator’s letter denounced by a majority of the Supreme Court in National Bank of Canada v Retail Clerks Int’l Union, [1984] 1 SCR 269.

I have elaborated these views in a series of blog posts, listed below, which I invite the Law Society to read:

https://doubleaspect.blog/2017/10/12/lawless-society-of-upper-canada/
https://doubleaspect.blog/2017/10/19/ones-own-self-like-water/
https://doubleaspect.blog/2017/10/29/profession-of-power/
http://nationalmagazine.ca/Articles/November-2017/The-Law-Society-of-Upper-Canada-should-stick-to-it.aspx
https://doubleaspect.blog/2018/01/21/the-detestable-attestation/

Reasons for My Objection to the Statement of Principles Requirement

I consider myself a conscientious objector to the Statement of Principles requirement, and will not comply with it in the future. As noted above, I have a longstanding interest in freedom of conscience, and have displayed a consistent and public commitment to the rights and freedoms, especially those having to do with belief and expression of belief, of individuals and groups whose religious, moral, or political opinions I do not share. I claim the same freedom for myself.

I regard the Statement of Principles requirement as a violation of my freedom of conscience, freedom of opinion, and freedom of expression. The requirement states that I must promote specific values: equality, diversity, and inclusion. I believe that promoting values requires me to hold them. Otherwise, this promotion would be insincere; indeed, it would be a lie. And it is my sincerely held belief that, as a free individual, I must only hold those values that I freely choose for myself, and must not embrace those values imposed by an authority exercising coercive powers conferred by the state — i.e. the Law Society.

My fundamental belief that a free individual must choose his or her own values, think for him- or herself, and reject the authorities’ views of what he or she must believe in, which animates my scholarship and blogging on freedom of conscience and compels my refusal to comply with the Statement of Principles requirement is a product, in part, of family upbringing, and in part of my broader philosophical views.

As to the former, I was born in what was still the Union of Soviet Socialist Republics, and my parents took pride in ensuring that my brother and I grew up speaking Russian at home and aware of Russian history after our move to Canada. Part of my parents’ endeavours — indeed a very substantial part — involved exposing us to the stories of Soviet dissidents, people who, in various ways, stood up to a brutally repressive regime for their right to believe and to say their own, rather than the regime’s truth. The circumstances of a free and democratic society such as Canada are hardly comparable to those of the Soviet Union, but the moral imperative to live the truth as one sees it is no less pressing in this more benign setting.

As to the latter, I have been heavily influenced by Lord Acton’s liberalism, and, in particular, his admiration for “[t]he true apostles of toleration” — “not those who sought protection for their own beliefs, or who had none to protect; but men to whom, irrespective of their cause, it was a political, a moral, and a theological dogma, a question of conscience involving both religion and policy”. Hence my advocacy for the freedom of conscience and expression of those with whom I disagree; but one can still, I trust, be a defender of toleration while claiming its benefits for oneself. Lord Acton summarized the role of freedom of conscience in modern history thus:

With the decline of coercion the claim of Conscience rose, and the ground abandoned by the inquisitor was gained by the individual. There was less reason then for men to be cast of the same type; there was a more vigorous growth of independent character, and a conscious control over its formation. The knowledge of good and evil was not an exclusive and sublime prerogative assigned to states, or nations, or majorities.

It is my most deeply and conscientiously held belief that I must defend “the ground gained by the individual”, and the individual’s prerogative to maintain his or her independent character. I must resist if I can, and certainly lend no support to the attempts of “states, or nations, or majorities” — including a majority of the Benchers of the Law Society — to claim for themselves the “sublime prerogative” of knowing good and evil, and cast those subject to their jurisdiction all of the same type.

In addition to this overall outlook, I believe that my professional position as a scholar means that I must resist any attempt to make me adhere to or promote specific values chosen by an external authority. Academic freedom — which I regard not only as an entitlement but also as a responsibility — is a right, and arguably a duty, to pursue truth, however uncomfortable or unpleasant it might be to authorities and others. This pursuit, in my opinion, is incompatible with an undertaking to promote specific values. If my research leads me to conclusions that I or others regard as incompatible with or even opposed to a given value, so much the worse for the value in question.

I would add that, at a high level of generality, I find the values to which the Statement of Principles requirement refers attractive. However, my understanding of these general values is quite different from that which animates the Statement of Principles requirement. I believe in equality before the law, and reject the value of an equality of outcomes. I believe that diversity is primarily desirable if it embraces a plurality of views and perspectives on human flourishing, and not only of demographic backgrounds. Similarly, I believe that inclusion must extend to those who think, and not only those who look, unlike the majority. As a result, expressing support for these values, at the command of the Law Society, would risk communicating adherence to beliefs that I do not hold, and would thus force me to express statements I would not otherwise express.

Concluding observations

As explained above, I refuse to comply with the Statement of Principles requirement. I regard it as incompatible with my rights and duties as a free person, my professional responsibilities as a scholar, and, above all, my conscience.

If the requirement that I hold and promote values chosen by the Law Society is not repealed or invalidated, I will cease being a member of the legal profession in Ontario. This is not an outcome I desire — I would not have paid substantial fees for years for the privilege of this membership which is not necessary for my academic position and from which I derive no financial gain if I did not value the connection with the profession. However, I simply cannot remain a member of the legal profession in Ontario if to do so would violate some of my most deeply held conscientious beliefs.

---

We’ll see what happens with this. In any case, I am very grateful to Professor Alford and Mr. Klippenstein, as well as Asher Honickman who is litigating the case, and the CCF for fighting the good fight. And don’t forget that, in parallel, there is another front on which this fight can be fought ― the upcoming election for benchers of the Law Society. Vote, and throw the bums who imposed the “statement of principles” requirement out!