By Law Society of Saskatchewan Equity and Access Committee
Image Credit: IISC, Artist: Angus Maguire
The Universal Declaration of Human Rights articulates that “[a]ll human beings are born free and equal in dignity and rights” and that “[e]veryone is entitled to all the rights and freedoms . . . [set out], without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Respect for human rights is codified in Chapter 6 of the Law Society of Saskatchewan Code of Professional Conduct which notes that lawyers have “special responsibility to respect the requirements of human rights laws in force in Canada . . . [and] to honour the obligations enumerated in human rights laws.” As the population of Saskatchewan becomes increasingly diverse, the legal profession is also evolving. To advance access to justice and legitimacy and responsiveness in the administration of justice, the Law Society considers equity, diversity, and inclusion in all aspects of its mandate and operations.
Equity is a principle that promotes fair conditions for all persons to fully participate in society. It recognizes that while all people have the universal right to be treated equally, not all will experience equal access to resources, opportunities, or benefits.
As a principle, equity must also translate into processes. An image often used to explain the difference between equality and equity is a fence blocking the view of the ball game on the other side. Three individuals of different heights may all be offered a box of equal height to stand on, but this does not make the ball game visible to those too short to see over. But boxes at a height corresponding to the needs of each individual will equitably allow everyone to see over. And an even more effective solution is to replace the existing sight barrier with a fence that would provide protection as well as an unobstructed view. As recognized in human rights law, achieving equality does not necessarily mean treating individuals or groups in the same way.
“Equity-seeking groups” are communities that face significant collective challenges participating in and being included in society. This marginalization can be created by attitudinal, historical, social, and environmental barriers based on age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex, sexual orientation, or other diverse background.
As recognized in the Universal Declaration on Cultural Diversity, diversity forms across time and space and “is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind.” Cultural diversity “implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of [I]ndigenous peoples.”
The realization of rights for diverse individuals may require the use of specific measures to ensure fairness. A representative profession means that the characteristics of the profession reflect the diverse characteristics of the wider population. Statistics Canada notes that by 2036, according to all diversity indicators used, there will be an increase in ethnocultural diversity in Saskatchewan in all scenarios. Respect for human rights means promoting full and equitable participation within this diversity and eliminating discrimination and bias.
While a wealth of studies establish that diversity fosters a range of advantages including improved decision-making, problem-solving, creativity, innovation, and productivity, diversity alone does not mean individuals have the same opportunities for contribution, achievement, and advancement. Distinct perspectives must be embraced and included, and differences integrated for positive impact. This reflects not only the fulfillment of human rights, but also advances principles of justice.
Within the legal profession, equity, diversity, and inclusion efforts take on special significance as the profession has a particular role in upholding and advancing the rule of law and access to justice. The rule of law safeguards legitimate justice processes and human rights compliant outcomes. At the global level, this is recognized in Sustainable Development Goal 16 and target 7 which calls for “responsive, inclusive, participatory and representative decision-making at all levels,” including an indicator that specifically identifies “[p]roportions of positions (by sex, age, persons with disabilities and population groups) in public institutions (national and local legislatures, public service, and judiciary) compared to national distributions” (emphasis added).
The judiciary and legal profession are important public institutions that achieve legitimacy and trust when they reflect and are responsive to the diversity of the people they serve. As has been noted in studies on women in the legal profession, the contributions from increased diversity and inclusion are many, both tangible and intangible. This includes improved justice outcomes through more inclusive decision-making and deeper understanding in specific types of cases as well as strengthened justice experiences for individuals accessing justice services. To garner representative legitimacy, those involved in developing, upholding, and enforcing the law must reflect the diversity of individuals to whom the law applies. The inequitable composition of professionals within the justice system acts as a barrier to access to justice.
The presence of diverse individuals can also counteract actual bias as well as perceptions of bias within the administration of justice. Diverse individuals bring knowledge, interpretations, and lived experiences that differ from the dominant norm, facilitating stronger deliberation and impartial decision-making. While it may be argued that judicial officers in particular simply apply the law, studies consistently demonstrate that legal professionals too are human and subject to bias, similar to other professions. A study with 619 circuit court judges in Illinois found that implicit biases “are present and impact outcomes depending on the race, gender, poverty and legal representation status of the hypothetical parties.” In Canada, former Chief Justice Beverley McLachlin recognized this as well: “Judges are first and foremost human beings. As such, their conclusions on the facts and the law are shaped by their training and their personal experiences.”
The benefits from equity, diversity, and inclusion within the legal profession are many and support justice goals but are yet to be fully realized. The Law Society of Saskatchewan has launched a survey to understand member perspectives and personal experiences (including the impact of COVID-19), and to focus efforts to advance programs and initiatives that promote a diverse, equitable, and inclusive legal profession. Results of the survey will be made available and inform the work of the Law Society Equity & Access Committee.
 Office of the High Commissioner for Human Rights, Universal Declaration of Human Rights, 10 December 1948, available: http://undocs.org/A/RES/217(III). This is reinforced in core international human rights treaties Canada has ratified or acceded to, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination against Women.
 Law Society of Saskatchewan, Annotated Code of Professional Conduct, March 2021, available: https://www.lawsociety.sk.ca/wp-content/uploads/2021/02/Annotated-Code-of-Professional-Conduct-final-00221148xB6EE0-1.pdf.
 Office of the High Commissioner for Human Rights, Universal Declaration on Cultural Diversity, 2 November 2001, available: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CulturalDiversity.aspx.
 Statistics Canada, ‘Population Projections for Canada and its Regions, 2011-2036’, 25 January 2017, available: https://www150.statcan.gc.ca/n1/pub/91-551-x/91-551-x2017001-eng.htm.
 International Bar Association, ‘Diversity and Inclusion Policy’, available: https://www.ibanet.org/Document/Default.aspx?DocumentUid=0ed5be7f-3ca7-4864-aff9-4aca249651fe.
 United Nations, ‘Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’, available: https://sdgs.un.org/goals/goal16.
 International Development Law Organization, ‘Women Delivering Justice: Contributions, Barriers, and Pathways’, 2018, available: https://www.idlo.int/sites/default/files/pdfs/publications/IDLO – Women Delivering Justice – 2018.pdf.
 Supreme Court of Illinois, ‘Illinois Supreme Court Announces Findings, Next Steps Following Judicial Decision-Making Study’, 6 November 2017, available: https://courts.illinois.gov/Media/PressRel/2017/110617.pdf.
 Supreme Court of Canada, ‘Judging in a Democratic State – Remarks of the Right Honourable Beverley McLachlin, P.C.’, 2004, available: https://www.scc-csc.ca/judges-juges/spe-dis/bm-2004-06-03-eng.aspx.