Over the past couple of weeks I’ve become Canada’s most notorious law professor. I filed an application requesting the Superior Court of Ontario review the legality and constitutionality of the new requirement imposed by the Law Society of Upper Canada (LSUC) that lawyers and paralegals “demonstrate a personal valuing of diversity, equality, and inclusion.”
My application has left some legal commentators positively perplexed. How can I oppose something as trivial as affirming my support for diversity? As Shawn Richard, one of the architects of the Law Society’s policy, asked: “What are you conscientiously objecting to?”
More than anyone else, I have a responsibility to answer that question.
A coerced statement
I am not against the Law Society’s efforts to promote equity, diversity and inclusion. More importantly, I’ll happily take action voluntarily to promote these goals. Note it well: actions, not words.
My problem is not with the Law Society’s policy, but with its methodology. The LSUC can and should promote these values in the context of regulating lawyers’ conduct. But as an arm of the state, the Law Society cannot coerce me or any lawyer to say what my values are.
The late Justice Jean Beetz provided the pithiest explanation why the regulation of thoughts, values and beliefs is considerably more intrusive than the regulation of conduct. He noted that if the government requires us to do something that we disagree with, we can always do it under protest. But forcing us to state our agreement with a statement made by the government deprives us of the power to say or do otherwise. For that reason, Beetz concluded that forced speech was “totalitarian and as such alien to the tradition of free nations like Canada.”
For similar reasons, in the United States, Justice Robert Jackson wrote in West Virginia v. Barnette that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can…