Apply the principles of the Gladue decision to good character requirements for lawyers

The 19^th century French ecclesiastic, preacher, journalist and political activist Henri-Dominique Lacordaire famously said, “between the rich and the poor, between the master and the servant, between the strong and the weak, it is freedom that oppresses and the law that sets free.”

When viewed through Lacordaire’s lens the purpose of law in a free and democratic society is to liberate. Our laws create a safe and just environment in which human conduct is regulated and power is constrained so that maximum freedom and safety is attained by all.

The legal profession plays a pivotal role in the creation and preservation of an equal and just society. That is why it was such a head scratcher when a segment of the profession lost their minds over the law society’s proposed statement of principles. In case you have forgotten, after years of study, the law society mandated that all licensees make a commitment to some simple principles: not to discriminate, abide by workplace policies, promote equality and observe human rights legislation.

It is a good thing that refraining from chicken-little-style, hyperbolic rhetoric was not a principle the legal profession was being asked to disavow because the law society’s initiative was described as chilling,  Orwellian and worse than cold war McCarthyism.

These reactionary criticisms all missed the mark. No lawyer should have difficulty in pledging to uphold the important principles of equality and justice – this is, after all, is what most of us do, on a daily basis. No one, not even the most contrarian lawyer, should have any qualms about signing off on the oh-so-controversial principle that discrimination and racism are bad.

The real criticism of the law society is that statements of principle can only go so far to advancing the cause of equality and fairness. Sometimes action is needed. The law society managed to whip up a controversy with its very modest proposal but in the end the statement of principle is not much more than yet another form that most lawyers will robotically sign.

But the law society will have an opportunity to put their purported principles into action. On May 9, 2018, a motion will be made to force the law Ssociety to pay more than just lip service to fairness and equality when examining a prospective licensees good character.

You see, every lawyer must be of good character to gain admission to the bar. Despite the fact that the law society itself has found little evidence that past misconduct is a meaningful predictor of future behavior, the good character requirement is designed to protect the public, to maintain high ethical standards and to maintain public confidence in the legal profession. And despite the fact that there are many lawyers who have skeletons in their closet, including criminal convictions, the law society defines good character pretty broadly to include an examination if someone has ever been found guilty of or been convicted of any offence under any statute (excluding speeding and parking ticket).

This may seem to make sense until you actually reflect on the statement of principles we all had to sign and then it all starts to seem unfair. Because the good character requirement disproportionately impacts indigenous people. And that is what the May 9 motion is all about.

It is a notorious fact that indigenous individuals are over-represented in the justice system. This means that, despite the fact that indigenous people are not more likely to break the law than anyone else, they are more likely to be stopped by the police, prosecuted, and punished. The Supreme Court of Canada acknowledged this reality almost 20 years ago in the ground-breaking Gladue decision.

The Supreme Court has also recognized that the history of colonialism, displacement, and residential schools can lead to higher rates of indigenous poverty and marginalization and that those historic factors provide an important context for understanding an indigenous individual’s circumstances.

The May 9 motion calls for the law society to take into account these same factors when examining the good character requirement and to review its evaluation process. In simple terms the motion seeks to compel the law society to buy in to its own statement of principles.

Removing and contextualizing systemic barriers that operate against Indigenous people is vital in order to foster a diverse and representative legal community. And it is particularly important given that the Truth and Reconciliation Commission identified that indigenous communities often harbor a distrust of Canada’s legal system. I wonder why.

Imagine a young, Indigenous law student who has overcome significant adversity, obtained an increasingly expensive legal education, landed a scarce articling position, all despite historic and systemic disadvantages. Imagine doing all of this in the face of uncertainty as to whether the law society will even admit you to its privileged ranks because of past run-ins with the law – run-ins that may have never occurred but for your Indigenous background. And then imagine the continued stigma of an opaque good character evaluation process that turns a blind eye to the important context of systemic barriers.

It is actually unimaginable that an institution so important to the creation and maintenance of a safe and just environment could ever operate in such a manner.

It is time for the law society to put into practice the 20-year old lessons delivered by the Supreme Court of Canada in Gladue. It’s time the law society signed onto its own statement of principle.