Lawless Society of Upper Canada

The LSUC’s attempt to make lawyers “promote diversity and inclusion” is lawless and incompatible with a free society

The Law Society of Upper Canada (soon to be renamed something less historic), prepares to require its members ― of whom I am one ― to supply it with

individual Statement[s] of Principles that acknowledge[] [our] obligation to promote equality, diversity and inclusion generally, and in [our] behaviour towards colleagues, employees, clients and the public.

Bruce Pardy has written an excellent op-ed in the National Post to denounce this imposition as an essentially totalitarian attempt at thought control by the legal profession’s governing body. (He and Jared Brown also discussed the issue with Jordan Peterson; I am not fully on board with some of the things said in that conversation, but it is worth listening to.) While prof. Pardy’s op-ed makes the essential points, I will canvass a couple of further issues on this blog. In this post I will discuss the scope of the Law Society’s demand and what seems to me be the lack of legal justification behind it. I will have at least one other post to address the freedom of expression and freedom of conscience issues the demand raises, and probably another one about some broader concerns regarding the regulation of the legal profession.

The first point I want to make here is that it is important to be clear about just how far the purported obligation that the Law Society wants us to acknowledge extends. (I say “purported” because, as I shall presently explain, the obligation is, for the moment, a fictional one.) It is not merely a requirement that we act consistently with the values of equality, diversity, and inclusion insofar as they are embodied in legislation in force for the time being. No “statement of principles” would be necessary to accomplish that. The idea is to make us go beyond what the law actually requires. Yet in a free society people cannot be forced to do things that the law does not require, still less to hold or uphold beliefs.

People in free societies disagree ― including about the value and, even more so, about the scope and implication, of things like equality and inclusion. (Just compare human rights legislation in different jurisdictions. The differences between these laws are testimony to disagreements that can arise even among those who accept the general principle of such laws.) These disagreements are resolved for the time being by the enactment of legislation, and it is antithetical to the Rule of Law to demand that people who might not share the values, or the version of the values, that underpin the legislation in force for the time being act on those values beyond what the legislation actually requires.

Worse yet, the purported obligation is said to exist not only in the course of our practice of law (and any “behaviour towards colleagues, employees, clients and the public” that we engage in qua lawyers), but also “generally”. The fact that, as the Law Society’s “FAQ” repeatedly state, the obligation is said to fall not only on those engaged in legal practice but on all licensed lawyers, including, for instance, those who are retired, reinforces the natural reading of the obligation as covering aspects of our lives that go beyond the practice (and business) of law ― perhaps our every waking moment. This, once again, is utterly at odds with the idea that the demands that a free society makes on its members are limited, and typically do not extend into a certain private sphere, except of course to restrain actions that would actually violate the rights of others.

In concrete terms, I take it that, according to the Law Society, I have a duty to devote my scholarship to the promotion of equality, diversity, and inclusion. Certainly any topics or argument deemed, by the Law Society, to be antithetical to these ideas, would be verboten. Perhaps I must devote my personal life, and not only my professional activity, to the promotion of the Law Society’s preferred ideals. There is, after all, no natural limit to the generality of the word “generally”. Will the Law Society police my Twitter and Facebook accounts to see if they are sufficiently egalitarian, diverse, and inclusive?

The second point I want to make here is that it is not clear what the source of the Ontario lawyers’ purported “obligation to promote equality, diversity, and inclusion” even is. So far as I can tell, neither the By-Laws of the Law Society nor the Rules of Professional Conduct impose one. The closest they come to doing so is in commentary to Rule 2.1-1, which provides that “[a] lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity”. The commentary states that

[a] lawyer has special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice, including a special responsibility to recognize the diversity of the Ontario community, to protect the dignity of individuals, and to respect human rights laws in force in Ontario.

Of course, the Commentary is not the Rule. But, in any case, “recognizing diversity”, “protecting human dignity”, and respecting the law ― all in the course of practice of law ― are much lesser obligations than promoting diversity and inclusion, and not only in one’s practice but generally.

Now, the “five strategies to break down barriers faced by racialized lawyers and paralegals” adopted by the Law Society from one of which the demand for a “Statement of Principles” derives, also say that

The Law Society will review and amend, where appropriate, the Rules of Professional Conduct … and Commentaries to reinforce the professional obligations of all licensees to recognize, acknowledge and promote principles of equality, diversity and inclusion consistent with the requirements under human rights legislation and the special responsibilities of licensees in the legal … profession[].

But even if the Law Society “will review and amend” the relevant rules, it does not seem to have done so yet. Thus, quite apart from any substantive issues with the Law Society’s demands, the fact is that the governing body of Ontario’s legal profession is demanding that lawyers “acknowledge” obligations that do not yet exist in law. Since the Law Society is now considering its rebranding options, may I suggest the Franz Kafka Appreciation Society?

But there is more. Even if, or when, the Law Society wants to amend its Rules of Professional Conduct to actually impose an generalized obligation to “promote principles of equality, diversity and inclusion”, it is not clear that will have the authority to do so. The Law Society Act, as it now stands, provides that

[i]t is a function of the Society to ensure that all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide. (Section 4.1(a))

It adds that

[s]tandards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. (Section 4.2.5)

It is not clear to me that the imposition of an obligation to promote certain values, be they ever so laudable, and especially of an obligation that extends beyond the practice of law or the provision of legal services are within the Law Society’s lawful powers under this legislation. The standards of professional conduct that the Law Society is authorized to impose have to be “appropriate” for the provision of legal services (and “should be proportionate” to the objective of regulating the provision of legal services). Admittedly, “appropriate” is a capacious word, and the deferential approach of Canadian courts to reviewing administrative decision-making means that it might take a lot of persuasion to get a court to hold that policing a lawyer’s beliefs and actions unrelated to the actual practice of law is not an “appropriate” way of regulating the provision of legal services. Still, I for one have a hard time seeing how it is appropriate for a professional regulatory body to transform itself into a committee for the promotion of virtue and the prevention of vice and, should it eventually come to litigation, it might be worth trying to raise this argument, in addition to those based on the Canadian Charter of Rights and Freedoms, which I will discuss in the next post.

In any case, quite apart from what the courts may or may not do, the Law Society, if anyone, shouldn’t be trying to strain the limits of its statutory powers. The Law Society Act provides that it “has a duty to maintain and advance … the rule of law” (s 4.2.1), which among other things requires public authorities to act within their lawful powers ― not to test their boundaries. The Rule of Law also prevents public authorities from imposing on those subject to their coercive powers obligations that do not exist in law. On many views, at least, the point of these strictures is to preserve a sphere of autonomy within which individuals can act without being supervised or hassled by the authorities. The Law Society’s attempt to make those subject to its regulations into the torchbearers for its favoured values is at odds with these commitments, which one would hope most lawyers would adhere to even apart from their statutory recognition. One can only hope that the profession will resist its regulators, who have sacrificed their longstanding principles in a quest to make everyone embrace newer and supposedly more progressive ones.

UPDATE: Annamaria Enenajor insists that I was wrong to claim that the Law Society is  demanding that we “supply it” with copies of the “Statement of Principles” that it wants us to produce. I take the point that the Law Society’s explanation does not actually say that we must supply it with our statements. I find the idea that we merely need to tell the Law Society that we have created the statements it demands, without proving that this is so, more than a little odd, which is why it hadn’t occurred to me originally, but it could well be correct. That said, I do not think that whether or not the Law Society wants to see our statements changes anything to the analysis.

Smoke and Mirrors

The new process for appointing judges to the Supreme Court is nothing to be happy about

Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a triumph of transparency and depoliticization, this new process is an elaborate mechanism of smoke and mirrors set up by a government that wants to look like it is committed to improving the state of the Rule of Law and of Canada’s judicial institutions ― and to act like it is not.

The new process starts with a seven-member “Advisory Board” appointed by the government, which will receive applications from lawyers and judges who put themselves forward for an appointment, and is also asked “to actively seek out qualified candidates and encourage them to apply.” After consulting “with the Chief Justice of the Supreme Court of Canada and other key stakeholders the Board considers appropriate,” the Board will put together a list of three to five candidates and provide an assessment of how they meet the criteria for an appointment ― both the baseline laid out by the Supreme Court Act and the government’s wish list for a perfect judge. After a further round of consultations ― including, once again, with the Chief Justice ― “the Minister of Justice will present recommendations to the Prime Minister who will then choose the nominee.” Finally, the Chairperson of the Advisory Board, the Minister of Justice, and the chosen candidate (whom the government documents refer to as the “nominee” even though his or her appointment at that point, is a fait accompli or at least a foregone conclusion), will meet with Members of Parliament, the latter in a “question and answer session” moderated by a law professor.

Is this really a victory for transparency? In an excellent round table published by Maclean’s, Dennis Baker ― who, as we’ll see, is in many ways skeptical of the new appoitnment process, says that the “Government deserves credit for making the process more transparent and open.” Paul Daly is delighted that judges will no longer “actively lobby behind the scenes for elevation to the Court.” I am not so sure. There is simply no objective way to weigh the sixteen ― yes, sixteen ― criteria on the government’s wish list, and to classify the indefinite number of candidates whom the Advisory Board will consider according to these criteria. The same goes for the Prime Minister’s ultimate choice between as many as five candidates. Whatever reasons the Board and the government may give for their choices will be no more than exercises in ex-post self-justification, which does not count as transparency in my book, though the illusion of transparency the process creates may if anything be even worse than the current clearly opaque process. As for judges lobbying the Advisory Board or the Justice Minister behind the scenes, I see nothing in the government’s announcement preventing that from happening.   

In some ways, to be sure, the new process will be more transparent than those that were used before. In particular, it is pretty clear (although not explicit) that the Advisory Board’s shortlist will be public, which past shortlists were not (until leaked, or dug out by, the media). For my part, I do not find this change an improvement. I feel for those candidates who will be encouraged by the Board to apply and not shortlisted, and for those shortlisted and ultimately shortchanged. John Pepall asks whether MPs who take part in Parliamentary hearings with the Justice Minister “[w]ill … be told how unsuccessful applicants fell short of the ideal? That should do wonders for the administration of justice,” he says ― sarcastically of course.

The other supposed achievement of the new appointment process is that, in prof. Daly’s exultant words,

[n]o longer will political appointments be made because of party allegiance or ideology rather than legal acumen. … Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

With respect, this strikes me as an unlikely prospect. First, as already noted, the Prime Minister retains substantial discretion under the new process, having reserved for himself the prerogative of choosing from among up to five candidates, and the large number of subjective, imponderable criteria supposed to guide that choice mean that any selection can be retroactively justified in suitably lofty language. Nothing stops this discretion from being used ― or abused ― to appoint the candidate seen as the most ideologically friendly, or indeed the one deemed to best satisfy some set of demographic desiderata having nothing to do with legal acumen. The government’s reported frustration at being unable to find a judge corresponding to such demographic criteria to replace the retiring Justice Cromwell gives little hope that they will not overshadow ability “to ‘do law'” as it goes forward with its Supreme Court appointments.

And second, even if the Prime Minister has no intention of doing this, the fix is already in by the time he receives the Advisory Board’s short list ― and it is his government’s design of the Board that assures that this is the case. In the Maclean’s round table, Troy Riddell says that

The dominance of the legal profession on the [Advisory Board] coupled with the other non-legal members appointed by the government is suggestive of the kind of candidates the government wishes to choose (and those whom they do not want to choose—namely those with more conservative ideology). [The new process] is an improvement over the old system, but “politics” broadly defined will stay play a role.

Lori Hausegger responds by saying that

the representation [on the Advisory Board] of the Canadian Bar, the Canadian Judicial Council and the Federation of Law Societies—not to mention a progressive conservative as chair … —suggests [excluding “someone with a more conservative ideology”] is not the government’s main focus.

However, as prof. Riddell points out,

Organizations representing lawyers and judges tend to see themselves as “guardians” of the constitution—their vision of the constitution and the relationship between courts and Parliament is likely not as liberal as some activists would desire, but it is more liberal than what would be espoused by a conservative-oriented jurist. The overall result could be a lack of ideological diversity on the Supreme Court bench, which I think would be unfortunate.

I think prof. Riddell is right, and indeed I would put the point more strongly. The legal profession and the judiciary already are ideologically homogeneous. This is why Stephen Harper found it so difficult to appoint judges to his liking. An advisory Board dominated by representatives of an ideologically homogeneous profession will be homogeneous itself, and, as any such group, will reproduce and reinforce its members’ preferences in its decisions.

Like prof. Riddell, I think this unfortunate, because I believe that courts benefit from ideological diversity just as much as they benefit from demographic diversity. However, the lack of such diversity as such is not a significant criticism of the new appointments process, because it is every bit as possible for appointments made at the Prime Minister’s unfettered discretion to be just as homogeneous. The reason I belabour this point, rather, is that it shows that the pretense that the new process is somehow de-politicized to be a sham.

There is more to say about the new process, but this post is getting long, so I’ll try to be brief. I will note that I have already explained, in some detail, why I think that bilingualism should not be required of newly-appointed Supreme Court judges. In a nutshell, while I take the point that competency in both official languages is an aspect, and a very important aspect even, of legal competence, judicial appointments inevitable involve tradeoffs, because all potential judges have their strengths and weaknesses, and I would not foreclose the possibility that a candidate’s strengths elsewhere outweigh his or her linguistic shortcomings. The requirement of bilingualism ― and the government’s wish list, which states that it “has committed to only appoint judges who are functionally bilingual,” makes it very clear that it is a requirement and not, as prof. Daly says, merely “a desirable characteristic” ― is a serious mistake.

And then, there is the question of just how heavily demographic considerations, such as gender, background, or disability will weigh in the new process. Although the government has hinted that such factors will matter ― and, other things being equal, a demographically diverse court is better than a homogeneous one ― it is rather encouraging to see that “[e]nsuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society” is only one of the sixteen criteria on the government’s wish list, and indeed the very last one. As for the Advisory Board chairperson’s mandate letter, it does not mention this issue at all. Perhaps the government knows that its winks and hints will be enough ― but perhaps its approach really is a little less identity-focused than some of its fans might have hoped for, and its skeptics (yours truly included) feared.

This is ― perhaps ― a silver lining. But otherwise, the news of the shiny new appointment process for Supreme Court judges portends nothing good. The process conceals Prime Ministerial power as much or rather more than it diminishes it, while needlessly exposing unsuccessful candidates ― many of them, no doubt, sitting judges ― to public humiliation. It does not prevent the government from appointing judges on the basis of political or considerations or other factors unrelated to legal ability, and indeed ensures that ideology will continue to play a key role in judicial appointments. And it foolishly elevates bilingualism into a determinative consideration for appointment, reducing the pool of eligible candidates and doubtless depriving the Supreme Court of many fine judges. It is, in short, nothing to be happy about. As for the further question of whether it is also unconstitutional, I hope to return to it later this week.

A Diversity of Diversities

There has been some rather unpleasant controversy over judicial appointments of late, following the appointment of professors Grant Huscroft and Bradley Miller to the bench in Ontario. The Globe and Mail‘s Sean Fine has been busily pushing the narrative of “conservative” appointments, focusing on the new appointees’ criticism of Canadian courts and laws. On Twitter, La Presse’s Yves Boisvert chimed in, claiming that we are witnessing a “worrying Americanization of judicial appointments by the Harper government.” And in response to some criticism (on which more in a moment), Mr. Fine sarcastically suggested that “Canadians mustn’t use the P-word when discussing judicial appointments” ― the p-word being “politics,” I suppose.

In an excellent op-ed in the Globe, Lorne Sossin and Grégoire Webber have pushed back against the “conservative appointments” narrative. The focus on the new judges’ political inclinations, they say, is in part “the product of the partisan era of judicial politics in which we are living in Canada,” especially in the wake of l’Affaire Nadon, but it is also the product of the media’s “filtering all other stories about the justice system through a partisan lens.” The media, Dean Sossin and prof. Webber suggest, are only interested in the aspects of the new appointees’ public record that might suggest sympathy for the government, while labelling them as “conservative” is misleading insofar as it may suggest partisanship.

At the same time, there is concern about a lack of “diversity” among the Harper government’s judicial appointments ― diversity being understood along the lines of gender and ethnicity. As Dean Sossin and prof. Webber note, only three of the 17 recent appointees in Ontario (among whom were profs. Huscroft and Miller) are women. As Stephen Lautens explained in the Canadian Lawyer back in September, the federal government claims that it appoints relatively few women judges because few women apply ― but it doesn’t release the actual numbers that would back up its claims. In the provinces that do release them, however, women are just under half of the applicants to provincial judgeships, and are appointed in very nearly the same proportion as they apply. The suspicion, then, is that something is rotten in the state of federal judicial appointments.

There are two ways of looking at the problem. From the perspective of the applicants, the issues is, or strongly seems to be (I guess we cannot assert with perfect confidence since we don’t have the numbers), outright discrimination. Whether the reason for it is pure sexism or rather an inclination to treat gender as a proxy for ideology (I personally suspect that the latter is at least a significant part of what is going on), it’s stereotyping, it’s offensive, and just wrong. People are being told to apply for judicial positions, but they are not being told that deck is stacked against them. That’s not how a decent government would behave.

We can also consider the apparent homogeneity of newly-appointed judges from the standpoint of the justice system or of society at large. It is often suggested that the judiciary should be a “reflection” of the community, meaning presumably that it demographic composition should (roughly?) parallel that of society. So, for instance, half of all judges should be women. But this idea of “reflection” is a bit misleading. Nobody really thinks that judges should be a mirror image of the community along every dimension. Judges are necessarily older, for one thing ― as well as more educated, more professionally successful, more judicious while less judgmental, and so on. Even the average judge should be nothing like the average Joe, or the average Jane. In fact, I’m not sure why it would matter that the judiciary look like the community. Some might say it’s a matter of legitimacy, but if we assess the legitimacy of judges by their looks, we are, it seems to me, in a bad way.

What really matters from a systemic or societal perspective, I would argue, is not the diversity of appearance, but diversity of opinion. After all, we pay judges not to look pretty ― in fact we make them wear robes that make them look slightly bizarre but, importantly, all the same, almost ― but to think. Now the views of the judges, as of any other human beings, are in part shaped by personal background and life experiences (as the Supreme Court recognized R. v. S. (R.D.), [1997] 3 S.C.R. 484). It is for that reason, rather than out of a symbolic if not aesthetic concern with the appearance of the judiciary, that it is important that there be a diversity of backgrounds among the judges. But background, at if understood in terms of characteristics such as gender or race is not the only thing that shapes the judges’ views. So do professional experiences, for example ― commercial lawyers, prosecutors, and academics live in somewhat different worlds, with somewhat different habits of thought, which to some extent shape the way they approach adjudication.

And, to come back to where I began this post, ideology is one of the things that shape judicial thinking ― and, because of that it is actually a good thing that there are a judges of different ideological backgrounds. The lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.

It is also important to keep in mind that individual judges, especially at the appellate level, do not so much decide as argue. A judge whose votes are driven by his ideology alone and who fails to justify them in any sort of persuasive way will have no influence on his colleagues. His presence on the bench will be regrettable, but mostly harmless. (The same goes, of course, for a judge who fails to justify her votes otherwise than by reference to a party’s gender, etc.) “Conservative” academics are in rather short supply in Canada. They won’t just take over the judiciary. If Messrs. Fine and Boisvert are so concerned about them, is it because they worry that they will persuade their colleagues? Actually, that’s not terribly likely to happen. What is more probable, however, is that by scrutinizing their colleagues’ reasoning and calling out unwarranted assumptions and weak arguments adduced to justify generally accepted but actually unsupported views, they will stop some of the excesses of groupthink, and generally make for better law.

It would of course be wrong to assess potential judges only on their background characteristics, whether it is to appoint them or to reject them on that basis. And it is similarly wrong ― one might perhaps even speak of “Americanization” ― to assess them by their ability to pass some ideological litmus test. Judicial diversity is important and desirable ― not only diversity of gender and ethnicity, but also of experience and of thought, a diversity of diversities, if you will. That’s a lesson both the Harper government and for some of its critics.