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It is not enough that we obey. Now we must also agree and actively promote

The contours of anti-discrimination laws have long been the subject of debate within legal circles. For example, Richard Epstein, a prominent American legal scholar, in his 1992 bookForbidden Grounds: The Case Against Employment Discrimination Laws,argued for the repeal of such laws on the grounds that they “set one group against another, impose limits on freedom of choice, unleash bureaucratic excesses, mandate inefficient employment practices, and cause far more invidious discrimination than they prevent.” Whether Epstein is right or wrong is part of the debate. The Law Society’s new requirement effectively prohibits Ontario lawyers from engaging in that debate. Instead, they must betray their integrity and submit a Statement of Principles that professes values that they may not hold.

This policy crosses a line that should not be crossed. It is not enough that we obey. Now we must also agree and actively promote. The late Alan Borovoy, former general counsel of the Canadian Civil Liberties Association, said that the greatest threat to liberty is not from without but from within. “The source of the most insidious peril,” he said a decade ago in a speech at Queen’s University, “is not evil wrongdoers seeking to do harm, but parochial bureaucrats seeking to do good.” I suspect Borovoy would be shocked that his warning would apply so acutely to the governing body of the legal profession.

The Law Society does not say how it will punish lawyers who do not comply. It states only, and ominously, that they “will be advised of their obligations in writing.” Perhaps compelling speech upon penalty of actual sanctions would be unconstitutional. How should lawyers respond? They have a number of choices. They could conform. That might suggest that lawyers are unable or unwilling to defend themselves. They could decline. That might determine whether elected “Benchers” actually represent them. Or they could just submit a copy of this column.

National Post

Bruce Pardy is professor of Law at Queen’s University and a member of the Law Society of Upper Canada.