Civility, Public Interest, Courts, Zealousness & Discretion in Groia v LSUC 2016

Introduction

     The Ontario Court of Appeal recently released its decision in the professional disciplinary proceedings involving lawyer Joseph Groia.   This blog is my initial take on several aspects of the recent Court of Appeal judgment. 

     In summary, the majority of the Court upheld the sanctions earlier imposed by the Law Society of Upper Canada’s disciplinary appeal panel.   Mr. Groia, now an elected bencher of Ontario’s Law Society, has been defending himself against allegations of professional misconduct, including breaches of civility, for the last several years.  These current proceedings resulted from Mr. Groia's conduct as defence counsel in the earlier Felderhof  litigation.

     Before beginning the discussion, below, a few disclosures.  As a lawyer previously employed at Ontario’s Superior Court, I occasionally worked on administrative matters with the dissenting judge in this Court of Appeal case.  Mr. Justice Archie Campbell, who heard a 2002 review of this matter, was also my articling principal in 2001 – 2002, though I had no involvement in these proceedings. Last, the appellant Mr. Groia has been a prominent advocate for his views of the role of civility in Canadian law, and has been an invited guest speaker in a course I have taught at Queen’s University in the past. 

     With all that being said, here are some first impressions and discussion of the Court of Appeal decision.

1.      Whatever the "duty of civility" may be, it does not appear codified in the   Rules of conduct.

     Not surprisingly given the disciplinary subject matter, the word “civility” appears frequently, 136 times, in the judgment.   Both the majority and dissent decisions share the views that “civility” is itself a “codified duty of professional conduct enshrined in the professional rules”. [1]  This assertion may be a little misleading and confused by inaccurate paraphrasing in the judgment itself.

     For example, the majority states, “that lawyers’ conduct be characterized by courtesy, civility and good faith in dealing with the courts and all participants in the justice system, including fellow lawyers”.[2]

     However, the ‘Advocacy’ Rule cited to support this proposition, 4.01 (1), does not use the term “civility”.  The other rules, 4.01 (6) and 6.03 (1), headlined as the ‘Courtesy’ and ‘Courtesy and Good Faith’ Rules respectively, do in fact use the word ‘civil’.  However, neither of the Rules specifically use the term “civility”, as the Court’s paraphrasing of the Rules on this point, quoted above, might suggest. 

     In fact, a word search of the Rules, dozens of sub-rules and interpretive Commentary over 106 pages of the applicable pre-2014 Rules, reveals that the term “civility” never appears.[3]  It could be that the Court meant that it was possible to infer a broader “civility” obligation based on the use of the term ‘civil’ in the 2 sub-rules noted above, and on other related Rules and Commentary.  However, it is misleading to suggest that “civility” or a “duty of civility” was explicitly codified or otherwise “enshrined” in the past Rules of professional conduct for lawyers in Ontario.

2.         The statutory duty to act in the "public interest" post-dates the impugned conduct. 

     The phrase “public interest” appears 19 times in the Court of Appeal judgment.  In fact, the focus on the public value of professional lawyer self-regulation is the starting point for the majority. Paragraph [1] of the majority judgment strikes the theme by stating,  “for almost 220 years, the Law Society has governed the legal profession in the public interest under statutory authority granted to it by the legislature of Ontario.” 

     This statement is problematic in a couple of ways.  First, this emphasis on the "public interest’" in professional legal regulation ignores the complicated role lawyers have played throughout Canadian history. For example, some observe a strong association between the development of the legal profession and the promulgation of at least some public and democratic values.[4]  However, there is a dispute in Canada between those who conclude that the legal profession has also historically sometimes acted in ways that seemed to promote private, elite and state interests.[5]  I noted some examples of these behaviours in my earlier blog on lawyer involvement in Canadian political scandals.

     Second, it is also true that the “public interest” has become an important modern value underlying the regulation of the Canadian Bar.  However, the statutory function of the regulator under Ontario’s Law Society Act was only changed to explicitly reflect this more recent sensibility in 2006.[6]  That is, the Law Society of Upper Canada did not have a clear statutory discretion to act to protect the "public interest" until after the events which gave rise to the disciplinary proceedings against Mr. Groia. 

3.         Where does “civility” apply and who defines it?

     A major point of contention in the decision is the extent to which the trial judge managed, or failed to manage, lawyer behaviour in the courtroom.  In this respect, the majority and dissent differ on their view of the respective roles of the Law Societies and the Courts to oversee in-court lawyer conduct.  The majority states that this is not a novel question (para 239), and the regulator’s authority to discipline lawyers for in-Court behaviour is well established.  

     For his part, Justice Brown in dissent accurately points out (paras 264 – 267) that some of the legal precedents cited in support of the majority proposition,[7], dealt only with out-of-court behaviour and might therefore be distinguishable on this basis.  Like the rule in real estate, Justice Brown says, what matters is "location, location, location".  

     In this case, the dissent's point is that within proceedings in Court, it is the constitutionally protected independent role of judges to manage lawyer behaviour.  I think this an important distinction that is likely to be relevant in an appeal.  It also underscores a related observation about the role of the Courts in recognizing and defining what the  “civility” obligation is in the first place.   

     In reading the impugned language employed by Mr. Groia, many laypeople might find his words and behaviour quite mild, compared to a colloquial understanding of what more generally constitutes public perceptions of “incivility”.  I frequently have law students ask me, by contrast, what is the scope of the “civility” obligation in law?  Some are perplexed to discover it is only better understood by reference to sources external to Law Society conduct Rules. 

      In this decision, "civility" is further defined by reference to jurisprudence, or to a document of the Advocates’ Society, the Principles of Civility for Advocates (paras 13 & 135).  It may seem odd that in arguing for a substantial public role for the Law Society to regulate lawyer conduct as a matter of “civility”, Courts often rely largely on their own jurisprudence to better define it.  Alternatively, the content of the “civility” obligation is sometimes defined by reference to a policy document, not from the legal regulator, the legislature, or from another public body, but rather from a private professional lawyers’ organization.

     In any event, the Court was disinclined to accept the argument that the definition of “civility” is vague  or ill-defined (paras 162 - 177), and instead suggested that its determination is highly contextual and "fact-driven" (para 164). As a matter of fact, it is worth noting, as the dissent points out, the quantum of incivility seems quite low, judging by the number of such proceedings before Law Societies.  In the last few years, there have been only 11 proceedings to actually regulate “civility” as a matter of lawyers’ professional conduct in Canada (para 305).

4.                  There is no duty of "zealous" advocacy recognized in Ontario’s professional rules.

     Like the use of the term “civility”, noted at the start, the Court of Appeal frequently refers to and incorporates the term “zealous” to describe advocacy before the Court.  To be fair, this is likely in part because it appears as an aspect of the appellant’s submissions.  In this respect, the word “zealous” appears 51 times in the judgment and the Court frequently, 20 times, uses the term the "duty of zealous advocacy", (eg para 42). 

     However, like the term “civility”, the word “zealous” also does not occur in Ontario’s professional conduct Rules.   More accurately, the phrase and obligation, at r. 4.01 (1), is to represent a client “resolutely”.  There is I think, a substantial distinction between the 2 terms, ‘resolute’ and ‘zealous’, as well as perhaps some inferential import in the choice of the Law Society not to employ the older term in its formal Rules.  Though used by Mr. Groia, reliance by the Court on the term "zealous" and its distinction from "resolute" advocacy was not addressed in the judgment, and may also reflect the continued influence of historical models of lawyering in modern Canadian legal culture.

5.      No discretion shall go untrammelled?

     As a final point, the majority assertion that the authority of the Law Society to enforce disciplinary standards in the public interest is “unqualified” (para 102), should give some pause.  If the Court means that there are no apparent restrictions within the legislation, that is one thing.  However, the general public law in Canada has followed instead the proposition, set out more than 50 years ago in the landmark case of Roncarelli v Duplessis, that there is no such thing as an unqualified or absolute discretion in Canadian law.  Ultimately, clarification of this point, and the others raised above, may have to await further consideration on a possible appeal.*

Conclusion

     Those are a few initial thoughts on this significant decision, which seems a likely candidate for further consideration before the Supreme Court.  Some may have surmised that my overall view is sympathetic to the conclusions of Justice Brown’s dissent in Groia, if not the totality of that reasoning.  Justice Brown’s reasons turn on an understanding of what may or may not be the appropriate role of the individual official in regulating participants to proceedings as a matter of judicial independence that, in my opinion, deserves some further consideration.  

     However, I also think the Ontario Court of Appeal, both majority and dissent, missed a chance to more explicitly consider the interrelation between judicial independence and its natural complement, the principle of an independent Bar, which does not receive much direct consideration in the judgment.  In the end, that will be the subject of a future blog, but will have to wait for another day.

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*  Update: On February 2, 2017, the Supreme Court of Canada announced it had granted leave to appeal this Ontario Court of Appeal decision.

[1] At paragraphs 119, 128 and adopted by the dissent at paragraph 254.

[2] At paragraph 3, my emphasis.

[3] It does appear once in the bibliography of the pre-2014 Rules, in reference to an article from the 1970s.

[4] See, for example Wes Pue’s article, “Death Squads and ‘Directions over Lunch’” in In the Public Interest, The Report and Research Papers of the Law Society of Upper Canada’s Task Force on Rule of Law and Independence of the Bar (Toronto: Irwin Law Inc, 2007).

[5] See, for example, Michael Mandel’s work, The Charter of Rights and the Legalization of Politics in Canada, rev ed (Toronto: Thompson Education Publishing, 1994).

[6] Law Society Act, RSO 1990, c L8 as amended by SO, 2006 ch 21 Sched C, s 7, which added a duty to act to protect the public interest at 4.2 (3), effective May 1, 2007.

[7] Inter alia, Doré v Barreau du Quebéc, 2012 SCC 12, [2012] 1 SCR 395; Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 24.7

The Crown Duty to Call Witnesses in Canadian Criminal Proceedings

     An Ontario Judge recently addressed the duty of Crown Counsel to call witnesses in criminal proceedings. In her 2016 decision in Hillis, Justice Pomerance of the Superior Court determined that the duty to call material witnesses is part of the Crown's litigation tactics, not part of prosecutorial discretion and is therefore reviewable as part of the Court's trial management authority.   This decision is an important precedent that clarifies an existing ambiguity in the obligations of Crown Counsel in criminal proceedings.

     Based on precedent, eg Krieger (SCC 2002) & Anderson (SCC 2014), it was reasonably clear that  exercises of prosecutorial discretion, in bad faith or for an improper purpose, were subject to scrutiny as an abuse of process.   However, the scope and limits of the duty to call witnesses, and how it fit into the prosecution role, was somewhat uncertain based on existing Canadian law.

     On the one hand, all Crown Counsel were required act in accordance with their longstanding public duties as 'mini-Ministers of Justice' to call credible material witnesses,  Boucher (SCC 1954).  On the other hand,  the Supreme Court's reasoning in other cases suggested that the Crown was still expected to act adversarially, and that there was no duty to call any specific witness, Cook (SCC 1997). 

     The potential inconsistency between these two positions seemed to a large extent to turn on the determination of 'materiality'.  In this respect, early assessments about credibility and materiality of witnesses by the defence and prosecution would depend on alternate 'theories of the case'.  In any contested criminal proceedings, both the Crown and the defence are likely to have different theories, the substance of which would usually be in opposition.  However, the ultimate determination of materiality and credibility always remains uncertain, at least until the judicial official renders their judgment, accepting and rejecting certain evidence. 

     I have heard it said that some Crowns might not call a witness or witnesses because the prospective evidence did not advance the prosecution theory of what happened.  I have always thought that such a position seemed inconsistent with the public duty of Crown Counsel, to act fairly in their pursuit of justice.  Moreover, such a view did not seem to appropriately account for the role of the judge, as the ultimate trier of fact and law.

     The recent decision clarifies that exercises of prosecutorial discretion may still be subject to review on the narrower 'abuse of process' standard.  However, Justice Pomerance also found that the Crown decision to call, or not to call certain witnesses, is an aspect of the Crown's litigation tactics and is subject to scrutiny by the Court on a wider standard of fairness (paras 41 - 45).  In this case, the Judge remedied the potential unfairness by requiring the Crown to call the witnesses directly.

     The determination that Crown Counsel must also act fairly in calling witnesses in criminal proceedings is a welcome clarification of the law in this area. This finding also reinforces the balanced role played by all Crown Counsel, to act adversarially in the public interest, but also to assist the Court in finding the truth.

Duffy Trial & Political Judgement in Ottawa*

The trial of Canadian Senator Mike Duffy, which resumes this week, got me thinking about a past interaction I had with him in an online forum in 1998.

Before being sent to Canada's upper Chamber a few years ago, Mike Duffy was a successful political journalist. The 1990's were tumultuous times for the conservative movement in Canada.  Many members of the old Progressive Conservative (PC) Party were anticipating Joe Clark's return to federal politics.  The PCs faced a majority Liberal government and a strong competitor for the right wing vote in Canada, in the shape of Preston Manning's new Reform Party.  Some thought the return of former Prime Minister Clark might revive the ailing fortunes of the PCs at the Federal level

Online forums were something of a novelty in 1998 and, I suspect, had only a few participants.  When I typed out a question, I was nonetheless surprised that I received an almost immediate reply.  I asked then 'Mr.' Duffy what he thought of Clark's political comeback.  He responded by criticizing the former Prime Minister's political acuity.  To paraphrase, Duffy said that in politics you can do a makeover of someone, do their hair, cap their teeth, but, and these typed words I remember clearly,

"there's no fix for bad judgement."

Ironic words now, given that questionable judgement seems to be at the heart of the criminal proceeding against Duffy. This includes his judgement in claiming money for allegedly inappropriate housing expenses as a Conservative Senator.  It may also include the judgement of staff members of Prime Minister Harper's own office, who may have tried to make the scandal go away by secretly writing a personal cheque to cover Duffy's outstanding expenses.

These events are doubly ironic, perhaps, given that the Conservatives first came to power in 2006, based in part on promises to enhance transparency and to hold government, and all its officials, better accountable.

Duffy was wrong about one thing.  There is, at least, one fix for bad judgement by political leaders.  Politicians are directly accountable to the people in a democracy.  In the Fall of 2015, Canadians voted out the Conservatives and elected a majority Liberal government. 

Senator Duffy's recent conduct will also be under further scrutiny again this week, and a court of law will soon render its own judgment on the entire affair.

*UPDATE: On April 21, 2016 the Court acquitted Senator Duffy of all charges.  The judge in the case expressed criticism of the Prime Minister's office and its actions, and accepted Senator's Duffy's testimony and evidence as credible.  Though suspended from his official duties, following this decision, Senator Duffy can resume his position in Canada's Upper Chamber.

Inside Politics from 'E-day' to 'Shy Tories'

     ‘Inside baseball’, is an expression that describes something that is so detailed in sports that only true aficionados would understand, see here.  In American politics, a comparable expression is 'inside the Beltway', named for the highway that circles Washington.  Similarly, some Canadian pundits describe Ottawa centric issues as 'inside the Queensway'.

     The fact is, like sports commentators, political analysts often use a range of unfamiliar language. Below I identify and describe some of these terms and phrases, that are ‘inside politics’, which people will likely hear in the next few days before the 2015 Canadian National election.

     Election or 'E'-day, on Monday October 19, will be the final showdown in a long political season.  Broad details of the campaign, like party platforms, major debates and advertising are all part of what is sometimes called the ‘air campaign’. On E-day, all parties shift focus from the ‘air’ to play on the ‘ground’.

     The ‘ground’ battle in politics largely involves the employment of as many volunteers as possible to ‘pull’ or ‘get out’ the vote.  That is, each political party makes a maximum effort to encourage its own identified supporters to mark their ballots.

      The increased likelihood that supporters will vote is called ‘vote efficiency’.  Though ideology plays less of a role in party affiliations in Canada, left-leaning New Democrats have traditionally been viewed as more committed political activists, with a very efficient vote because they are better at turning out their supporters on E-day. In modern times, the same high commitment may be true of some Canadian Conservative voters, whose core base of supporters are characterized as both strongly loyal and motivated, see here.

       However, most political wisdom has it that ‘people do not vote for an opposition party, they vote against a government’.  Canada’s 42nd election appears unusual in that there has been a large increase in the number of people who have voted before the official E-day, in advance polls held last weekend, see here.  If the high turnout in advance polls reflects increased participation after E-day on Monday, and the accepted wisdom is sound, this may presage a change in government.

      Canada has a ‘first past the post’ electoral system, see here.  No matter how many candidates are in a specific riding, the one who gets to the ‘finish line’ of the most votes, will win.  In a campaign with 3 or more candidates, this means that someone can win with a ‘plurality’, or less than a majority, of the votes. In fact, pluralities are more the rule than the exception in Canada.

      For the last 100 years there have been a host of 3^rd parties that have split the vote, making actual majority support difficult for anyone in Canada at the Federal level.[1]  In 2015, this means that there are even some ridings with four-way races, where a successful candidate may only need 25%, or less, of the votes cast, see here.

       It's sometimes said that the only poll that matters is the one on E-day. One phenomena to watch for in 2015, apparent in other elections, may be what has been described as the ‘shy Tory’ vote, see here.   That is, advance polling has repeatedly understated the level of actual support a governing Conservative party may garner on E-day, since supporters may be reluctant or ‘shy’ to admit their voting intentions to pollsters.

      If this 'shy' voter factor is real, it’s not clear that it applies only with respect to conservative voters.  For example, advance polls in one recent Canadian provincial election also appeared to understate support for the Liberal incumbents, who went on to win a 'stunning' victory, see here.  Moreover, in the face of sustained advertising targeting Canada's Liberal Leader, see here, its possible that people might also be 'shy' about admitting their support, but will vote for him anyways.

      In any event, the end of any political campaign is something like the playoffs in sports. While sportscasters and political pundits may similarly employ ‘inside’ language to describe things, 2015’s Federal election also features a more direct overlap.

     Canada’s major league baseball team, the Toronto Blue Jays, have a scheduled playoff game of their own on October 19, when they will play in the 3rd game of the American League East Championship series.  Even though there is a possibility that divided political views will result in a minority Parliament, it seems likely a strong majority of Canadians will, at least, be supporting the Blue Jays on E-day - Go Blue Jays!. 

Update:  On Monday October 19, 2015, the Conservative Party lost its bid for re-election to Justin Trudeau's Liberals, who won a majority victory.  Turnout for the election approached 68% of registered voters, the highest in 20 years at the Federal level in Canada. The Blue Jays, playing at the same time, beat the Kansas City Royals 11 - 8 in the American League Championship series.

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 [1] Since the early 20^th century this includes, inter alia, Progressives, the CCF party, the Reconstruction Party, Social Credit, New Democrats, Reform Party, Bloc Quebecois and Green Party.

Who Gets Stornoway If There's a Tie for Second Place?

The big electoral prize in any election is always the capacity to form government. However, the closeness of Canada's 2015 federal campaign between Conservatives, Liberals and New Democrats also raises an unlikely, but real possibility, of a tie in the number of seats won by two second-place parties. 

Opposition is an important consolation for an electoral runner-up in Canada's Parliamentary system.  Official status brings both prestige and profile as a 'government in waiting', and the very real benefits of money and resources for administration and research.  Compared to conventions for determining the winner though, there are only a few practices in place to choose who is entitled to take the residence at Stornoway, the official home in Ottawa of the Leader of 'Her Majesty's Loyal Opposition'.[1] 

Based on the limited precedents,[2] and the uncertainty of outcomes in the current 3-way election, there are a few possible scenarios in the event of a second place tie.

Scenario 1

The governing Conservatives win and Liberal and New Democrats tie for second place in the number of seats. 

Unlike concerns about who would form government, determined by the Governor-General, Opposition status is determined by the Speaker of the House of Commons.  The key factor in making such a decision in the event of a tie would likely be incumbency.[3] 

That is, the party that served in the Opposition role in the previous Session of Parliament would likely be awarded Official Opposition status if the second place parties had the same number of seats.  In this hypothetical, this would mean the current Opposition, led by Thomas Mulcair's New Democrats, would retain their official status

Scenario 2

Current Opposition, the New Democratic Party, wins election and the Conservatives and Liberals tie for second. 

In this case the incumbency principle would not apply.  Though there appears to be little precedent, I would argue that a reasonable corollary to the incumbency principle would be to award Official Opposition status to the party with the higher standing in the last Parliament.  In this hypothetical, as the former government, the Conservatives would consequently win the right to occupy Stornoway.

Scenario 3

Justin Trudeau’s Liberals win and Conservatives and New Democrats tie for second in the number of seats. 

What would happen in this situation seems uncertain.  As the incumbent Opposition, New Democrats would likely argue that they should form Opposition.  However, the Conservatives might well have an argument that, as the defeated government, their status in the previous session meant that the incumbency principle should be superseded. 

In this case, few precedents and no clear rules might mean other considerations are taken into account.  For example, the Speaker might well apply other minor factors to help determine the matter, such as who amongst the second place parties had the higher share of the popular vote.[4]

To be fair, all 3 scenarios described above appear improbable.  However, it’s worth remembering that unusual things do sometimes occur in Canadian politics.  Who would have predicted in advance, for example, the unexpected and seemingly unprecedented request by Prime Minister Harper for prorogation in 2008, in the face of the prospect that he would be defeated in the House of Commons within a few weeks of the previous election?   

In a similar unlikely, but not impossible circumstance, that there was a tie for second place in the 2015 election, who would form the Official Opposition and be entitled to the keys to Stornoway, is not entirely clear.

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[1] Usually the party that wins the second highest number of seats in Parliament. For a good overview see Stewart Hyson, “Determining the Official Opposition in New Brunswick and the House of Commons”, (1996) Canadian Parliamentary Review, Vol 19 No 3.  A

[2] Though not exactly factually consistent with the scenarios set out below since ties occurred during the legislative session, rather than immediately following an election, the two modern precedents occurred in New Brunswick in 1994, see Speaker’s Ruling “Tie or Equal Number of Members in Two Opposition Parties” Journals of the Legislative Assembly of the Province of New Brunswick, Third Session of the Fifty-second Legislative Assembly, December 16, 1994, pp 330-335, and; briefly at the Federal level in 1993, ibid.

[3] Supra note 1.

[4] In 1983 the Alberta NDP was granted opposition status in part on the basis of its popular vote.  Another possible factor that might apply immediately following an election might include party status, if there was an organized party as compared to a number of independents

The Labour Day Tradition in Canada

     Labour Day is a milestone in Canadian life.[1]  For many in Canada, true summer begins early on the Victoria Day long weekend in May, and ends on the Labour Day weekend.  Like the USA, Canada celebrates Labour Day on the 1st Monday in September.  Though the holiday is widespread, many other countries celebrate it at different times, most frequently on May 1. 

     For many Canadians, Labour Day is the end of holidays and one last chance for a swim at the lake, to enjoy a family BBQ in the waning summer sun, or to watch one of Canadian footballs' classic regional rivalries, see here. For me, as a suburban Toronto kid, the holiday weekend often meant going to the carnival, agricultural fair and international air show held at the Canadian National Exhibition, see here.

     In 2015, Labour Day also marks the midway point of Canada's 42nd National Election, see my previous post on holidays and elections, here .  Of course, Labour Day has always been closely connected to both politics and law in Canada.  

     Given the antipathy of many modern conservatives towards labour unions, some might be surprised to hear that it was Tory Prime Minister John Thompson who declared the day a National Holiday in 1894.  However, the close connection between organized labour and Conservatives also extends back, at least, to Canada's 1st PM, Conservative John A. Macdonald.[2]

     In 1872, Macdonald's chief political rival was leading anti-union efforts to repress a printer’s strike that was hurting his own newspaper business.  With an election in the offing, Macdonald came out in support of the unions, whose leaders had been jailed under Canada's antiquated criminal laws.

      Macdonald saw his chance to gain "a little cheap political capital",[3] and promptly passed the Trade Union Act in June 1872.[4]  For the 1st time in Canadian history, participation in a labour union was no longer a criminal act. PM Macdonald cheerfully declared to crowds that "as a maker of cabinets, he was himself an industrial worker", and consequently won broad labour support.[5]

     Of course, the origins of Labour Day are only one part of a long story that stretches to the present day.  Like millions of other Canadians on the long weekend, I will probably enjoy a little family time, watch for the 1st signs that the leaves have started to turn their Fall colours, and enjoy the last of the good weather. But I will also give a thought to the many who laboured over decades, to improve working conditions, and helped to build modern Canada.

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[1] For example, see Joanna Dawson, “The First Labour Day” Canada’s History, http://www.canadashistory.ca/Magazine/Online-Extension/Articles/The-First-Labour-Day, retrieved September 4, 2015,

[2] See Mark Chartrand, “The First Canadian Trade Union Legislation: An Historical Perspective” (1984) Ottawa LR 16 267.

[3] See Richard Gwyn, Nation Maker Sir John A Macdonald: His Life, Our Times, (Toronto: Random House, 2011) at 196, quoting Macdonald's political rival ,George Brown.

[4] 35 Vict, c. 30.  Also see An Act to amend Criminal Law relative to Violence, Threats and Molestation, 35 Vict, c 31.

[5] Supra note 3.

Incumbents Usually Lose Holiday Elections

I spent Sunday morning of the August long weekend watching TV coverage of the call for Canada's 2015 federal election.  The current campaign has been run through the typical Canadian summer holiday in August.  At 11 weeks, the unusually long campaign means that it will also continue over the Labour day holiday in September, and through Canadian Thanksgiving in early October.

In some political circles, the received wisdom is that people don't follow political campaigns during the summer, or over other significant holiday periods.  A quick look back at past federal elections though, suggests that the theory that Canadians are inattentive to politics during their vacations may be flawed. 

In fact, Canadians have generally not been kind to those who have held elections during holidays. For example, at the federal level, you have to go back to 1953, to Louis St. Laurent's Liberals, to find a successful summer campaign by an incumbent.* There is a similar trend for campaigns that have extended over the week between Christmas and New Year's.  For example, the election of 1980 occurred partly over the Christmas holiday of 1979 and led to the defeat of Prime Minister Clark's Progressive Conservative government.

In total, there have been 14 Canadian national elections that were held in whole, or in part, over traditional holiday periods since 1867.  In these campaigns the government has lost 9, won 4 and was returned with 1 minority (1972).  More recently, 2006 was a loss for the governing Liberals (over Christmas), while partial summer campaigns in 1993 and 1984 both saw incumbents routed at the polls. 

Some think that holidays mean that Canadians are too busy with travel, family and friends to turn their attention to the political scene.  However, the historical pattern of loss for incumbents suggests that explanation is flawed. Canadians may well tune out official campaigns during holiday periods.  But, perhaps instead they engage in informal (and maybe more civil) discussion about policy issues, within their immediate social circles.  If this is true then it seems that, as an historical matter, a holiday campaign has often proven a chance for electors to come to a collective decision that leads to change.

No one knows what will happen on election day on October 19. But if the historical trend holds, messing with the Canadian traditional summer vacation and other holidays in 2015 could spell trouble for the governing Conservatives.

Update:  On Monday October 19, 2015, the governing Conservative party lost Canada's 42nd election to Justin Trudeau's Liberal party, which won a majority government.  *Note: The 1974 campaign ended on July 8, so was a partial summer campaign that ended in a majority victory for incumbent PM Pierre Trudeau.