Parishti Project

Nobody asked me.

But if they had asked me, I would have told them not to do it (or at least not to do it this way).

Today, the 2024 Annual General Meeting of the Canadian Bar Association passed resolution 24-03-A, which does three things:

1. Adds a definition for equity;
    
2. Globally replaces the word equality with the word equity in CBA Bylaw 1; and
    
3. Globally replaces the phrase equality-seeking with the phrase equity-deserving in CBA Bylaw 1.

None of this looks harmful at first glance. What is the problem?

Let's discuss each change in turn.

1. Equity already has a legal definition.

Equity is not a new concept. The courts of equity have traditionally tempered the courts of law by crafting equitable remedies when legal remedies were unreasonably harsh under the circumstances.

For example, a pregnant convict sentenced to execution might be granted a stay until after she delivered because prompt execution would also punish her fetus.

We do not separate our courts by law and equity anymore. Most courts now offer both legal and equitable remedies.

Most modern equity remedies are marks of social progress (the ability to reroute accused to addiction treatment facilities, for example).

But equitable remedies are still discretionary, and that allows for the introduction of bias, such as the reluctance of courts to ruin the lives of young male rapists with a conviction. In these cases, equity comes at the expense of justice. They also abandon the requirement that parties seeking equitable remedies must come to court with clean hands, and the hands of a rapist are not clean.

2. CBA Bylaw 1 no longer entitles members to equality.

Equity is created as a substitute (not a supplementary) remedy for equality. The proposed resolution could have been phrased to give members to equality as a minimum right, and equity as a preferable right, but it did not do so. The resolution eliminated the right to equality.

So while our hypothetical rapist might hope for an equitable remedy to save him, our victim can no longer hope for an equal one to save her.

3. All groups deserve equity. Some already have it. Others are still seeking it.

3a) Deserving creates a gatekeeper.

Use of the word deserving suggests that there exist groups, or individuals, who are undeserving of equity. Whose job will it be to sort the deserving from the undeserving?

Perhaps those groups who seek equity without clean hands are undeserving? Or perhaps this is a space into which decision-makers can insert their own biases on a daily basis?

3b) Undeserving groups/individuals are not entitled to equality.

Equality was eliminated by paragraph 2.






* Nothing in this post should be construed as support for increased incarceration. The example given here is used only to demonstrate discretionary bias.