How amusing it is that the case most cited in the current discussion (it is, I grant you, a small discussion) about the Law Society of Upper Canada’s egregious foray into compelled speech is a Supreme Court of Canada number from 1984, the very title of George Orwell’s creepy novel about “thoughtcrime.”
That was a labour law case between the National Bank of Canada and the Retail Clerks’ International Union and the Canada Labour Relations Board.
The bank, itself a creation of a merger between the Provincial Bank and the Canadian National Bank, had closed a unionized branch and incorporated it in a non-unionized branch.
The union complained to the Canada Labour Relations Board, which found that the bank had closed the branch for “anti-union reasons,” infringed the Canada Labour Code and ordered various remedies.
The board ordered the bank to do a number of things enabling the union to function (such as holding meetings during working hours, having a bulletin board and the like), all of which the Supreme Court found to be reasonable.
But the board also ordered the bank to send a letter that the board drafted and which couldn’t be altered, under the signature of the CEO, to all employees, and to pay the union a total of $144,000 over three years for its sins.
The court set aside both these remedies.
The proposed letter would have said the board had found the branch closure “was aimed … at denying the employees … the fundamental right to bargain collectively” and that “it is paramount that for the benefit of all management and staff I clarify, in my capacity as chairman and Chief Executive Officer” that “all management personnel of this bank, regardless of their hierarchical level, have the responsibility of respecting the choice of those employees who opt for free collective bargaining.
“We intend to deposit the sum of $144,000 in a fund over the next three years as a concrete manifestation of our commitment to this principle…”
The bank argued that the letter was humiliating and unreasonable. The Court agreed.
It was then that the late Justice Jean Beetz, writing in agreement with his colleagues, said this:
“…The letter…does not mention that, like the creation of the fund, it was imposed by the board, and the person signing it cannot disclose this coercion without infringing the order…The creation of the fund and the letter are thus open to the interpretation that they result from an initiative taken by the National Bank of Canada, and reflect the views and sentiments of the bank and its president…
“There is nothing to show that such were in fact their views and sentiments,” Beetz wrote.
“However admirable the objectives and provisions of the Code may be, no one is obliged to approve of them: anyone may criticize them, like any other statute…
“This type of penalty is totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes.”
What the Law Society is doing is very similar.
It is forcing its 50,000 lawyer and 8,000 paralegal members to create and adopt a mandatory “statement of principles” acknowledging their “obligation to promote equality, diversity and inclusion.”
In a letter to members last month — the “statement of principles” must be in place by Jan. 1 next year — the LSUC even offers helpful samples.
One is simple: A commitment to the reduction of barriers created by racism, unconscious bias and the like and to better representation of Indigenous and “racialized” lawyers; a commitment to advance reconciliation with Indigenous peoples and to improve the relationship, and an “acknowledgment of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.”
(A “racialized” person is an Ontario Human Rights Commission construct, defined as “the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life.”)
The second suggested template goes on for four pages.
But wait, there’s more: The Law Society will require, from firms with at least 10 lawyers or paralegals, an “inclusion self-assessment” every two years; will then publish “an inclusion index”; will “enact, as appropriate, progressive compliance measures” with companies and lawyers who don’t comply. The compliance measures are undefined, and of course, the society says it will try first to “foster co-operation” and “engage in reactive measures only when necessary.”
It was Queen’s University law professor Bruce Pardy who first publicly blew the whistle on this grotesquerie, and in the pages of the National Post.
“Was I still in Canada, or had someone whisked me away to North Korea, where people must say what officials want to hear?” he asked in a piece last month upon receiving the Law Society advisory that he must get his statement of principles together to show his “personal valuing” of equity, diversity and inclusion.
Since then, one lawyer, Joe Groia, has asked the Law Society to consider an exemption for “conscientious objectors,” and another, Lakehead University law professor Ryan Alford, has filed an application in Ontario Superior Court seeking an injunction to halt the Law Society until the matter can be fully argued. Alford says the directives compel lawyers “to communicate ideas and in particular…to communicate political expression…. Compelled expression is alien to Canada’s political traditions and the traditions of all free states.”
I hope Pardy, Groia and Alford are right and that compelled speech, always totalitarian, is still alien in Canada, but my hunch is Jean Beetz was a lot more confident when he wrote that than they are.
