The Emerging Principle of Independence of the Bar in Canada

1.     Introduction

     It’s been a good year, or so, for the jurisprudential development of independence of the Bar.  This blog surveys several recent cases in Canada that have refined the understanding of the principle.  These decisions have helped to scope out the limits of independence for both individual lawyers and for the institutional aspects of the Bar.

     Given these recent developments, and the fact several of these cases are still before the Courts, it remains to be seen if this process of refinement will continue, and what the final scope and limits of independence of the Bar in Canada might look like.  However, what appears to be emerging is a better understanding of this principle, which also focuses on its public value in the context of Canadian legal culture.

2.     Individual Independence of the Bar

      My brief survey starts with the Canada v FLSC (FLSC) case from early 2015, where the Supreme Court upheld a BC Court declaration reading down federal legislation, (here and here), so it did not apply to lawyers and law firms.  These laws required counsel to collect information about the identity and finances of clients, imposed disclosure obligations on lawyers and provided broad search and seizure powers to governmental authorities.

     The Court determined that this legislation interfered with the constitutionally recognized right of clients to solicitor-client privilege and found it to be of no force and effect as it applied to lawyers.  However, the majority also went one step further to imbue an aspect of the individual independence of the Bar with further legal legitimacy.

     In FLSC, the appellant argued for a broad recognition of the principle of Bar independence.  Although the Supreme Court declined to decide this wider issue, the majority did determine that the principle of a lawyer's commitment to a client's cause was one that was vital to the operation of the legal system.  This aspect of the legal duty of loyalty that all lawyers owe to clients was also precise enough to be recognized as a new principle of fundamental justice.  In this respect, the Court found the principle essential to the solicitor-client relationship and vital to maintaining confidence in the integrity of the administration of justice.

      A similar subject matter, the privacy rights of lawyers' clients, was also the focus of two more recent 2016 decisions of the Supreme Court.  In Canada (National Revenue) v Thompson and its companion, Canada (Attorney General) v Chambre des notaires du Québec, the Court also recognized the value of legal professional secrecy.  These cases disallowed statutory provisions of tax law that permitted a wide authority for the Canada Revenue Agency to demand disclosure of names and financial information of lawyers' clients.  Further comment about these cases, by former Ontario Law Society Treasurer Vern Krishna, can be found here.

     While 'independence' can be regarded as an absolute concept, the more common public law approach is that there are few, if any, unqualified legal principles in Canadian law.  I examined this point, along with several others in my last blog on the June 2016 Ontario Court of Appeal decision in Groia v LSUC (Groia).

     In that case the lawyer, Mr. Groia, faced limits on his independent professional conduct imposed by what the Court identified as his 'civility' obligations under the Rules of conduct, though as I pointed out, the term does not appear in the professional lawyer rules in Ontario.  The tension between 'civility' and the possible limits on the independent obligations of lawyers to be 'zealous' or 'resolute' advocates for clients remains a live issue for the Bar, as discussed further in this recent blog by Heather Douglas.

     A few days after the Groia decision, the Court of Appeal also released a decision that supports the proposition that whether acting with 'civility' or with 'zealousness', lawyers also face a  "reasonableness" limit in their legal submissions and proceedings before the Court.  In its decision in Best v Ranking the Ontario high Court sanctioned the lawyer involved, for acting unreasonably in advancing a weak civil case at the direction of the client, by imposing personal liability for costs on counsel.  Lawyer and former OBA President James Morton has commented on this decision in his own recent blog, see here.

3.  Institutional Independence of the Bar

     While much of the focus on independence of the Bar has centred on individual lawyerly duties, there has also been some examination of the organizational aspects of independence of the Bar.  For example, while examining specific 'civility' obligations, the Groia decision also touches on institutional aspects of independence.   In particular, the case shines a light on the role of Law Societies in the professional self-regulation of the legal profession in Canada.  In this respect, Canada is pretty distinct in its reliance on lawyer self-regulation, through statutorily authorized, but independent bodies, that are led and elected largely by the profession itself. 

     While it has been suggested that independent Canadian Law Societies have a wide, potentially "unqualified" discretion to regulate the legal profession (in Groia), I think there remains some question about the scope and limits of this authority.  For example, while it is the role of modern legal regulators in Canada to oversee lawyers, this authority intersects with the judicial power to manage lawyer conduct.  As University of Ottawa's Amy Salyzyn points out in a 2014 paper, see here, there remains some ambiguity in the respective roles of Law Societies and the Courts in the regulation of lawyers in Canada.  While touching on lawyerly individual duties to their clients and the courts, the Best v Ranking decision, noted above, also provides a further example of this ambiguity.

     From the organizational perspective, the broader question about the institutional role of legal regulators is at the heart of a series of current cases, in multiple Canadian jurisdictions, involving the status of British Columbia's Trinity Western University's (TWU) Law School. Under Canada's federal structure, each province and territory has individual responsibility for the legal profession, and each has a separate legal regulator.  Each jurisdiction must therefore determine whether potential applicants meet the requirements for Bar membership. 

     At issue in this case is a community covenant that TWU requires students to sign, prohibiting sexual activity except as between a husband and wife.  This issue has spawned litigation in several provinces from those opposed to accreditation of TWU's Law School because, it is argued, its community covenant is discriminatory on the grounds of sexual orientation, prohibited under Canada's Charter of Rights and Freedoms.  At present seven of ten Canadian provinces have accredited the Law School, so its graduates can be called to the Bar in those areas.  The matter remains before the Courts or subject to review in Nova Scotia* and British Columbia. 

     Last week, Ontario's Court of Appeal upheld that provincial Law Society's decision not to accredit TWU's Law School, see news report of this decision, here.  The matter seems likely to be before Canada's Supreme Court soon, see here.  In determining this issue, I think it likely that the Supreme Court may take the opportunity to comment on and further refine the principle of Bar independence as it touches on the distinct institutional role that Law Societies have played in Canada. 

*Update: On July 26, 2016, the Nova Scotia Court of Appeal released its decision in this case.  The Court found the previous actions of the local Barristers' Society, that refused recognition of the TWU law school, was outside the authority of the provincial legal regulator in the circumstances.   That decision can be found here.   There are several aspects of the case that deal with the institutional independence of the Bar which, in my view, are inconsistent with the recent Ontario decision that dealt with the same underlying issue.  The disparity between the two decisions increases the likelihood that this matter will soon be heard by the Supreme Court of Canada.     

4.  The Public Purpose of Independence of the Bar

     There is some dispute in Canada about whether, and to what extent, the legal profession has historically acted in the public interest, as I've noted before.  However, the recent case law has more and more closely identified the public interest as an important value underlying Bar independence.   In my view, all of the decisions noted above directly or implicitly invoke an appeal to the public interest as a primary value underlying the role and function of the lawyers in Canada's legal system. In addition, there have been several other recent cases that have further refined aspects of this connection.

      Recent cases that connect independent lawyer functions to the public interest include the Hillis decision from Ontario's Superior Court, which I discussed in a previous blog.  That case determined that the Crown duty to call witnesses in criminal proceedings was subject to review by the Courts on a fairness standard, given both the individual public function of prosecuting attorneys and their broader role as 'mini-ministers' of justice. 

     At a wider level, the Court's decision in R v Moodie (Moodie) challenging inadequate legal aid funding is another example.  There the failure of criminal defendants to qualify for state funded counsel is highlighted as an issue of public access to justice.  Alice Woolley presented an interesting discussion of some of the implications raised by Moodie in a blog that can be found here. 

      Last, I think the case of lawyer Edgar Schmidt, from the Federal Court in March 2016, raised several important issues related to the public interest and the individual government lawyer's role.  In that case a Department of Justice lawyer raised concerns that legitimate legal risks in terms of constitutional compliance were not being considered appropriately, by the Minister or by Parliament, and sought a review of government policy.  

     One of the important issues raised by this case is the challenge faced by lawyers in all organizational settings, to ensure that the 'client', whomever that may be, receives and appreciates the legal opinions of counsel.  Though Mr. Schmidt lost his case, the matter also remains subject to appeal, and raises what I think is a novel point of public interest in the development and promulgation of legislation. 

5.     Conclusion

     The cases above suggest that the principle of independence of the Bar appears to be evolving in a highly dynamic fashion in Canadian law.  Where is this dynamic evolution taking us?  Hard to predict the future, but what appears to be emerging is a description of the function and purpose of Bar independence in Canada that acknowledges its individual and institutional dimensions for a broad public purpose (maybe purposes).

     If this characterization of the jurisprudence is accurate, then it is interesting to note that the development of the principle of independence of the Bar is undergoing a similar kind of jurisprudential refinement as the principle of judicial independence has experienced in Canada, since at least the implementation of the Charter, over 30 years ago.  In fact, this parallel development of lawyer and judge autonomy reflects the interrelation between the different aspects of independence, that can be traced back at least several hundred years.  Whatever the precise final outcome, the developments highlighted above suggest a new and clearer focus on Bar independence, which also seems to be becoming more embedded  as a recognized principle of law in Canadian legal culture.

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.

---

*  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.

---

 [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.

---

[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.

---

[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.