G-7 Lawyers Meeting

  • July 18, 2019

Merci Madame la Présidente. Chère collègues, honoured guests, ladies and gentlemen.

I’m honoured to appear before you today at this assembly of G-7 lawyers, on behalf of the 36,000 members of the Canadian Bar Association.

I want to thank France in its G-7 presidency for shining a much-needed spotlight on our common problem of inequality. As President Macron noted in his speech to the UN General Assembly last fall, the imbalance created by inequality is at the root of current global instability.

I would also like to thank the French government for shaking up the G-7 model, bringing in new stakeholders, including my fellow leaders of the G-7 bar associations, to develop solutions to the problem of inequality.

The Universal Declaration on Human Rights, which turned 70 last year, begins with the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” saying this is the “foundation of freedom, justice and peace in the world.”

This is a fine and noble ideal, but 71 years later equality is still simply that – an ideal, and not a reality.

Equality is an abstract concept – it exists only because of inequality. Without inequality there is balance, or stasis.

In a 1989 ruling, our Canadian Supreme Court noted that the purpose of human rights legislation is to eliminate inequality.

In that ruling, the court said, “Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.”

One doesn’t eliminate inequality by treating people the same. Picture a short person and a tall person standing behind a wall, wanting to see a game being played on the other side. Giving them each a stool of the same height to stand on would be treating the two the same. But the short person needs more help than the tall person to see over the wall. Equal treatment of people who start out from unequal positions only perpetuates the inequality.

Eliminating inequality means acknowledging the reason for the imbalance, and addressing it. But the reasons for imbalance are rarely as obvious as “short person” versus “tall person.”

I’ve been asked to address why we lawyers must be proactive in the fight against inequality.

First of all, it is arguably part of the job description. The Federation of Law Societies of Canada has a Model Code of Conduct, adapted from one created by the CBA, which sets out the behaviour expected of members of the profession. It says, “A lawyer must encourage public respect for and try to improve the administration of justice.”

According to the Model Code, a lawyer’s responsibilities “are greater than those of a private citizen,” because a lawyer’s words have weight, and can carry influence that might weaken or destroy public confidence in legal institutions.

Practising law implies a basic commitment to equal justice for all, the Code continues, and lawyers should not hesitate to speak out against injustice. It says, and I quote, “A lawyer, by training, opportunity and experience, is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned.”

People who enter the profession tend to have a core belief in social justice. They’re trained to see right and wrong – not necessarily as absolutes, but as anchors against which to judge an action or inaction.

We’re also members of society: We too are the people. We live and aspire and work and breathe the same air as everyone else. We understand that having all citizens contribute and succeed to the best of their potential is a benefit not only for those individuals but for society as a whole.

And yet, while the legal profession understands the need for equality, we don’t always embody it.

Twenty-six years ago the Canadian Bar Association published a report on gender equality in the profession titled Touchstones for Change. That report quotes Rosalie Abella, who is now one of nine justices on the Supreme Court of Canada. This is what she had to say about her view of the legal profession in the early 90s:

Not all lawyers wear three-piece suits, blue and grey are not the only sartorial choices, not everyone wants to do estate or real estate or corporate work, not everyone is part of the old-boy network, not everyone comes from an economically comfortable home, not everyone is able-bodied, not everyone is white, and not everyone is male. In short, the profession is becoming more reflective of the community it serves. This change can be the profession’s greatest strength if it acknowledges and draws on the concerns, aspirations and talents of its newest recruits.

The CBA report found that the legal profession was not “environmentally friendly” to women, who were entering it in numbers equal to men but leaving it quickly, and in far greater numbers. Those who stayed did not advance at the same rates as their male colleagues.

Justice Abella also said that the law is a profession which bends only creakingly to change, and this past year has shown me the truth of this statement. Twenty-six years after the Touchstones report called for the profession to embrace women and members of other equity-seeking groups as equals, I spent a great deal of time learning from members of those groups that while there has been some progress, very little has changed.

For years diversity has been the siren call of equality – the theory being that if we promote diversity, if we open up the tent to allow everyone in, then we will have solved the problem of inequality. But we’re coming to understand that without inclusivity – without equal treatment to accompany equal opportunity – members of those groups who have traditionally faced discrimination are still the short people behind the wall, who got the same stool to stand on as the tall person.  Inclusivity is the path to diversity.

Our Touchstones report pointed out that there is no such thing as a neutral perspective. To quote the report: “A white view of the world is not neutral. A masculine view of the world is not neutral. A heterosexual view of the world is not neutral.” On a bigger stage, we can say that a Western view is not neutral. A capitalistic view is not neutral. We all see the world through the lens of our own and our society’s experience, and must work harder to recognize the unique perspectives others bring to a global understanding of the world.

As lawyers we believe in the rule of law. Laws are the foundational superstructure of a civilized society. They must be sound in order to provide the foundation for all that comes after. Lawyers rely on logic and precedent, we build our arguments upon it, if A then B. Good law creates an orderly, predictable outcome, provides the firm ground for one step to proceed to another.

But in the not-so-distant past, and into the present in parts of the world, laws have worked against equality. Laws have kept women from voting for the politicians who make the rules under which they live. Laws said certain people, because of their colour or religion or sex, did not have the same rights as others. Laws have allowed unchecked industrial progress to ride roughshod over the environment, jeopardizing the current and future viability of hundreds of species, including our own.

That’s why as lawyers we have to not only work to uphold the law as it is, but to fight for good law – Law that does not just provide for equality, but refrains from creating inequality. Law that is not just non-discriminatory, but inclusive. Law that doesn’t simply level the playing field, but raises it where necessary.

More than seven decades after the UN Declaration on Human rights, and despite the progress that has been made in many parts of the world, we are still seeing historic levels of inequality – for example, in income, in quality of life, or in responses to climate change.

There is an inspirational quote, widely misattributed to Gandhi, about being the change you want to see in the world. If we believe in equality, we must embody it, we must model it to greater society. Gatherings such as this, where we acknowledge the problem and discuss its potential solutions, are a first step. The second step is to pack up the things that we we’ve learned here and take them home, and do something with them – as lawyers, as citizens of our countries and as members of the human family.

Thank you again for giving me the opportunity to address this gathering today. I believe in the work we are doing, the priorities of this year’s G-7 meeting, and I wish us all success in our endeavours. Thank you.