Quis custodiet ipsos custodies? Who watches the watchmen in our society? That is the case before the court of public opinion in Canada today.
The Law Society of Upper Canada (LSUC) regulates, licenses and disciplines Ontario’s more than 50,000 lawyers and 8,000 paralegals, in order “to maintain and advance the cause of justice and the rule of law, [and] to facilitate access to justice for the people of Ontario.”
Nowhere in the LSUC’s mandate statement does it say the LSUC has the authority to regulate its members’ personal opinions. But a successful “long march through the institutions,” Italian communist Antonio Gramsci’s famous prescription for the path to cultural hegemony in capitalist societies, has apparently produced willing foot soldiers in the LSUC’s leadership echelons.
“Equal Justice vs Social Justice”
The LSUC has, hewing to the Marxist playbook adhered to by identity-politics campus militants, transmogrified their mission to promote actual “justice” into the promotion of “social justice,” a very different animal. Justice guarantees equality under the law and the right to a fair trial for individuals. Commitment to social justice confers a responsibility to protect the feelings of acknowledged victim groups, at whatever cost to the alleged offender and often producing the opposite of real justice. In its new incarnation of “thought crime” police, the LSUC has lost sight of its legitimate function and caused harm.
In 2016, I wrote about the case of Sudbury lawyer Peter Best, who suffered a Kafkaesque ordeal at the hands of the LSUC because, in 2014, he had had the temerity to publish a scholarly essay to his firm’s website arguing for “the abolition of the Indian reserve system and special race-based laws and entitlements for Canada’s Indians.”
Complainants labelled Best a “racist” for holding this and other evidence-based opinions which are deemed inadmissible in the public forum. The LSUC opened a dossier to “investigate” Best, an investigation that dragged on and on. The LSUC hung their procedural hat on the ominously vague rule that LSUC members have “a special responsibility to recognize the diversity of the Ontario community.” Eventually, Best’s name was cleared, as he had committed no actual crime, nor engaged in misconduct of any objective kind, and even the nitpicky Human Rights Tribunal of Ontario could find no fault in Best’s essay.
But, as is generally the case when vulnerable individuals defending their speech rights are up against powerful organizations willing to sacrifice established principles on the altar of identity politics, the process is the punishment. Best’s years-long nightmare doubtlessly serves as an active deterrent to other LSUC members holding reasonable and legal, but minority, opinions.
Now the LSUC has gone further, crossing a bright line into the anti-democratic terrain of “compelled speech,” which has proved shocking to observers. In a recent op-ed in the National Post, Queen’s University Law professor Bruce Pardy denounced the LSUC for a new directive issued to its members, entitled “New obligations for 2017.” The advisory states all lawyers must submit a “statement of Principles” demonstrating “a personal valuing of equality, diversity, and inclusion with respect to the employment of others, or in professional dealings with other licensees or any other person.”
Pardy notes that forced speech “is the most egregious violation of the freedom of expression,” which is protected by section 2(b) of the Charter of Rights and Freedoms. Laws in free countries are meant to govern action—not opinion. The Supreme Court of Canada, Pardy points out, has said compelling individuals to express opinions they do not hold “is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”
Social justice warriors often argue freedom of speech is never absolute. True. One cannot yell “fire!” in a theatre, or defame another with impunity, or incite to violence with hate speech. There are even precedents for compelled speech, such as forced health or side effect warnings on cigarette packages and medications. But these examples compel revelation of facts by corporations. They are not opinions held by individuals, who have both a right of privacy in withholding opinion and a right to freedom of expression in expressing them.
“Last Line of Defence”
As Pardy observes, lawyers are “the last line of defence against authoritarian orthodoxy.” Lawyers are who you call when your own rights are threatened. The alarming implications of this shameful dereliction of professional ethics cannot be overstated. Resistance is called for. It would only take one lawyer/plaintiff to set a legal process in motion to strike the directive down. But in addition, let us hope lawyers en masse demonstrate civil disobedience to this pernicious transgression of foundational principles.
In a bid to shed its retrograde image, the LSUC is poised to change their name to the Law Society of Ontario. They have a far more pressing internal problem than mere elitism. What needs to be changed is not their name, but their guilty-until-proven-innocent tune.
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