What the Law Society Should Be Doing: Standing Up to Tyranny

• Date: September 06, 2019

In the Law Times article “Diversity and inclusion fundamental to the OBA” (July 3, 2019), Law Society of Ontario Treasurer Malcolm Mercer said that the Statement of Principles “genuinely divides” people in the profession. The statement suggests that the legal and paralegal professions, numbering over 52,000 lawyers and 9000 paralegals, are aboil with conflict over the Statement. In fact, in 2017, the first year the Statement was required, Law Society statistics (evidence) show that 98% of lawyer members indicated in their annual reports that they have such a statement. The Ontario Bar Association, comprising more than 10,000 members, supports it.

Of the 16,156 votes cast in the 2019 Bencher election, a relatively small group of voters supported the slate of Bencher candidates running against the Statement of Principles; a record low voter turnout of 29.97% (comparing 6 Bencher elections from 1999 to 2019) ensured this slate disproportionate success in the election result.

Of the total voters (16,156), approximately 28%, or just 4523.55 of the total votes went to StopSOP candidates… this hardly seems to qualify as “genuinely divided”.

In our opinion, there are two reasons that, despite earning just 28%/4524 total votes, the StopSop Candidates were elected:

Participation Bias (also known as non-response bias)

This is a risk when participation is optional (i.e. elections). The results paint a very skewed picture, because those who tend to participate are the people with very strong opinions. The people who are content or less passionate about the issues at hand are less likely to respond. This phenomenon creates an inaccurate representation of the total sample.

On the basis of a measly 4524 votes, all the StopSOP candidates were voted in. This indicates that those passionate about removing the statement of principles voted, while those who were content with how things were, or who weren’t bothered by the Statement, did not vote.

Vote Splitting & The Spoiler Effect

This is a problem in plurality voting systems. When two or more candidates have similar ideologies, the voters split their votes between the two, creating a gap for a different candidate to win with less than half of the vote.

The StopSOP candidates earned a bencher position despite receiving only 28% of the total votes. This is possible because the remaining 72% of the votes were spread too thin among the non-StopSOP candidates, creating the gap for the StopSOP candidates to earn their position.

Following the day long debate at Convocation on June 27 about the future and form of the Statement of Principles, on September 11, 2019 there will be another debate at Convocation. Given the StopSOP allegations, reported in the Law Times article “StopSOP reveals why it rejected voluntary statement of principles” (June 28, 2019), it would be useful for the Benchers to bear in mind that the Law Society interprets the Statement of Principles requirement as calling on licensees to reflect on their professional context and how they will uphold and observe human rights law; that there is no requirement to make the Statement public; that the Law Society does not inspect the Statements of members and that there is no penalty for not advising the Society that a licensee has such a Statement.

It is also important to remember that the Supreme Court of Canada has said that, as a public actor, the “…Law Society has an overarching interest in protecting the values of equality and human rights in carrying out its functions…” and is entitled to interpret the public interest as being furthered by promoting a diverse bar. The Statement of Principles does not further the political agenda of the Society; nor does it promote “groupthink and virtue signalling” as alleged by StopSOP Bencher Gary Graham. It asks licensees to reflect on how they will uphold and observe human rights law, an obligation on all licensees under the Rules of Professional Conduct and the laws of Ontario and Canada. This modest requirement does not interfere in the least with the StopSOPers freedom of expression, as their activities over the past many months in opposing the Statement, often with few facts to back them up, have all too amply demonstrated.

The Law Society is accused of tyranny because of the Statement of Principles requirement. Those who attack...