Chill in the air | Ben Levine
Tuesday, October 05, 2021 @ 1:42 PM | By Ben Levine
On Oct 5, 2021, two resolutions will be floored at the B.C. law society’s annual general meeting by Jim Heller and Shahdin Farsai, that ask for the following:
BE IT RESOLVED THAT:
a) the membership affirms its commitment to rational and unfettered discourse on any and all issues regarding the directives;
b) the membership affirms that no topic that relates to our profession and the administration of justice should be exempt from open debate;
Kyla Lee does not address the principal reason the resolutions in question became necessary, which is that the right to free speech has been undermined by a small group of lawyers, using deplorable tactics. Her argument that the resolutions are an unjustifiable attack on the rights of trans persons is meant to distract, and to take control of the narrative. In fact, the resolutions are only concerned with the directives in a subsidiary way.
The principal aim of the resolutions is to address the suppression of free speech, exemplified by the unconscionable character assassination of Shahdin Farsai and her blacklisting as a bigot by a small group of lawyers, in response to her writing a reasoned legal argument of which they do not approve. In addition, those same lawyers have pressured two leading Canadian legal publications into submission, for daring to publish that argument. Of course the ultimate outcome has been to send a message to the rest of us: question us, speak freely, and risk ruin.
The directives in question, issued in December 2020 by both the provincial and Supreme Courts of B.C., direct counsel to provide correct gender pronouns for themselves and parties when appearing in court.
Given customs and conventions in court typically develop slowly, over years, the sudden issuance of the directives came as a complete surprise to many law society members who were now being told, without consultation, how they now had to identify themselves. Many felt the new directives raised legitimate legal questions that were worthy of discussion. In February 2021, one of those lawyers, Shahdin Farsai, wrote a legal essay pointing out, in a reasoned way and with reference to case law, the possible legal problems attendant with the directives. Specifically, her essay addresses issues of compelled speech, privacy rights and judicial independence. Despite what Kyla Lee suggests, it is not some sort of hateful screed against trans persons.
The Advocate was going to publish it. Before they could do that, they received significant pressure from a very small but vocal group of lawyers, not to publish, and were threatened they would be taken to the B.C. Human Rights Tribunal if they did. In response they declined to publish.The editor wrote an editorial detailing the pressure they received, and raised concern about the right to free speech. It’s very much worth the read (Vol.79 Part 2 March, 2021 p.169).
Canadian Lawyer did dare publish it, however a few days after publication, a small number of lawyers from across Canada, about 200, including, amazingly, three B.C. law society benchers, sent them a letter insisting it was hate speech, demanded they take it down, and that they issue a public apology. Canadian Lawyer complied.
Perhaps most amazingly of all, two benchers incorrectly posted on their social media feeds that Shahdin Farsai’s essay, and by extension Shahdin Farsai herself, were bigoted, despite the fact there was no evidence to support that claim. Even if they believed it, they should have exercised discretion and not engaged, for a host of reasons. Suffice it to say it demonstrated, at the very least, poor judgment. They risked causing irreparable damage to the dignity and reputation of a young member of the profession they were elected to protect.
That is the background leading to the impugned resolutions.
Many lawyers are not sure what is exactly so hateful about Shahdin Farsai’s article that would warrant such harsh and malicious treatment. I would hazard to say almost all lawyers support making the court a more welcoming place for all persons, including trans persons. Making the courts more welcoming, and engaging in free discourse about the directives are not mutually exclusive exercises.
The suppression of speech and blacklisting of our members has led to division. The resolutions would have been unnecessary had discourse about the directives been fostered. Likely, had a wider consultation taken place, this whole unfortunate public display would have been avoided. The directives would surely have garnered more legitimacy in the minds of many of the membership. Of note is that I’ve observed and been told by other lawyers that many, if not most, lawyers are not complying with, nor are judges enforcing, the directives. This of course acts to foster further division and to undermine respect for the administration of justice — an unintended result. It’s a good example of why shutting down discourse is a bad idea. I know some might say we should just accept it all without argument, and move on, but that’s not how a healthy legal system functions.
Responding with ad hominem and unfounded accusations of bigotry against colleagues would have been unthinkable only a few years ago. Not only are these tactics indefensible, they demonstrate the weakness of Kyla Lee’s argument, put in bold when she makes the hyperbolic and denigrating claim discussing the directives is tantamount to defending slavery. Of note is that it’s only those opposed to open discourse that have accused their opponents of bigotry. Those in support merely want an affirmation of the importance of free speech. It’s a sad commentary that has become necessary.
It should concern us all that, in the minds of many lawyers, affirming s. 2 of the Charter amounts to bigotry.
Benjamin Levine, principal at Levine & Co., in Prince George, B.C., has experience of over 20 years practising law in Prince George. He has focused his practices on matters of family, civil and criminal law.
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