Professor Bruce Pardy is not a constitutional law expert. His scholarship in peer-reviewed journals is largely on environmental law. Yet, over the past several months, the Queen’s Law professor has commented in the lay media on constitutional law issues.
In one instance, on October 3, 2017, the National Post published Pardy’s opposition to the Law Society’s new Statement of Principles requirement, citing selected Charter free speech jurisprudence as his underlying support. A policy that compels lawyers to privately acknowledge equality-related obligations, Pardy argues, is compelled speech and akin to authoritarian rule.
Publicly sharing opinions in the Post is not per se problematic. At least, no problem would arise if his legal analysis were competent. Instead, Pardy fails in four ways.
First, Pardy fails to consider Doré v Barreau du Québec (2012 SCC 12), the leading case on law societies’ administrative authority to regulate free speech. Second, even if he missed Doré, he fails to even mention that Charter rights are not absolute, but tempered by the reasonable limits clause.
Third, the Statement of Principles may not even be “expression” under the Charter; it is unclear whether the Statements “attempt to convey meaning” per Irwin Toy Ltd v Québec ( 1 SCR 927), when they are not necessarily shown to anyone ever.
And, fourth, Pardy forgets that every lawyer, upon their Call to the Bar of Ontario, already must swear or affirm a prescribed statement.
This irked me. Vaguely recalling required reading from law school, and twenty minutes on Google, dismantled his analysis. Such obliviousness to trite law in a public forum must not have come from a lawyer, much less a law professor, I thought. I must have misunderstood the article’s purpose.
A possible explanation: Pardy was using law words merely to garner ostensible authority with a wider, more deferential readership. No scholarly journal could publish his critique, but the National Post would.
The true problem here was not the sloppy legal analysis. If Pardy himself accepted his legal argument, he might have brought judicial review proceedings against the Law Society, as Lakehead University’s Professor Ryan Alford did. But I do not believe Pardy was concerned with substantive merits at law.
The broader, more insidious issue is lawyers gaining superficial media credibility then recklessly perverting the law to shape public opinion. Pardy is not the sole offender, just the most obvious and consistent example.
Lawyers have ethical obligations when in positions of perceived authority. I take no issue with Pardy expressing political views. We can all acknowledge that, at their core, Pardy and his ilk seek to engage with important political dialogue. However, where law and public politics intersect, engaged lawyers should — at the very least — describe the law accurately.
After all, some people might take Pardy seriously.