The Unasked Issue in the Benchers’ Election

Our non-Ontario readers will be thrilled that in an hour the polls close and you won’t have interminable discussions about Ontario’s election and its implications. This post responds to and builds on Mitch’s prescient post from 18 months ago, and Alice Woolley and Alan Cliff’s posts which dealt with the Ontario Benchers’ Election which wraps up today at 5 PM

My focus isn’t on the substantive issues that Alice focused on yesterday but rather on an underlying governance issue that no-one appears to be talking about. It’s about convocations, cabinets and the tyranny of geography

What are the most important issues facing the legal profession and its regulation? Perhaps you thought access to justice, or diversity or the difficulties facing young lawyers. Or the economic pressures facing the profession or new graduates. What I suspect you wouldn’t have said is the need to ensure that remote rural regions have a voice in professional regulation.

We conclude Bencher Election season here in Ontario, with the emphasis on the candidates and their need to bring their platforms to the attention of an electorate whose attention is elsewhere. What hasn’t been discussed is the makeup of the body that they’re vying to get elected to.

This is the Convocation Room at Osgoode Hall. Elegant, historic and fit for a different era. This picture is from the time of the Great War.

But imagine it with sixty people jammed in. that is a typical crowd for a Benchers Meeting. Because Ontario has one of the largest and most ungainly decision-making bodies of any democratically elected innstitution anywhere. Call it the tyranny of geography. It’s a particularly Canadian ailment.

When Brian Mulroney assembled a cabinet in 1984 after walloping John Turner, his cabinet had forty people in it. Mulroney was determined that every province be represented in Cabinet and that all significant interest groups have their voices recognized and respected. What resulted was a Cabinet that was mainly for show. Real power accreted to the Prime Minister’s Office and to Cabinet Committees – the Policy and Priorities Committee was where real decisions were taken. When Jean Chretien took over, the size of Cabinet fell to twenty three. By world standards, however, Canada still has a bizarrely large cabinet.

Maclean’s reckoned in January that the size of Cabinet could be cut in half. Yesterday Brent Rathgeber introduced Bill 672 to do just that.

So where does this leave the Law Society? I want to suggest that Ontario has fixated on geography in its election to the exclusion of other factors. The Law Society Act fixes the number of lawyer benchers at forty. Add in five paralegal benchers under section 16 and a further eight law benchers under section 23 and you have a decision making body of 53. Current corporate governance theory says that beyond a certain size, boards become unwieldy and dysfunctional. Outside politics, no-one thinks that such a large group can possibly be a nimble or effective decision-maker.

But what the current system does is to over-represent regions, by pushing non-Toronto elected benchers to become Regional Benchers if they top the polls in particular regions.

For the purposes of the election, the province is divided into eight electoral regions. The eight electoral regions are as follows:

City of Toronto Electoral Region
Northwest Electoral Region (NW) – composed of the territorial districts of Kenora, Rainy River, and Thunder Bay.
Northeast Electoral Region (NE) – composed of the territorial districts of Algoma, Cochrane, Manitoulin, Nipissing, Parry Sound, Sudbury, and Timiskaming.
East Electoral Region (E) – composed of the counties of Frontenac, Hastings, Lanark, Lennox and Addington, Prince Edward and Renfrew, the united counties of Leeds and Grenville, Prescott and Russell and Stormont, Dundas and Glengarry, and the Regional Municipality of Ottawa-Carleton.
Central East Electoral Region (CE) – composed of the District Municipality of Muskoka, the counties of Haliburton, Northumberland, Peterborough, Simcoe and Victoria, and the regional municipalities of Durham, and York.
Central West Electoral Region (CW) – composed of the counties of Bruce, Dufferin, Grey and Wellington, and the regional municipalities of Halton and Peel.
Central South Electoral Region (CS) – composed of the County of Brant, and the regional municipalities of Haldimand-Norfolk, Hamilton-Wentworth, Niagara, and Waterloo.
Southwest Electoral Region (SW) – composed of the counties of Elgin, Essex, Huron, Kent, Lambton, Middlesex, Oxford, and Perth.

The scheme was supposed to encourage greater voting and a diversity of views – change has been debated but today’s ballot still leads with regional considerations. I suspect that what this does is to make the benchers’ composition unrepresentative of the profession as a whole: older, more likely to be male, from smaller towns, dominated by litigators, rather than those with general practice backgrounds.

Lest one think that nothing can be done, I simply say look to Ontario’s eastern and western borders.

In Québec, the Bar has redesigned its institutions and operations. It recognized that its board had become unwieldy and dysfunctional. When I appeared in front of it two years back, Québec’s Bar had a General Council with 37 voting and twenty observers. Too large. So instead, a much slimmed down Administrative Council of 16 people, elected for two years renewable for a further two. Fully a quarter of the new Council will represent the public, appointed by the Office des professions after consulting the Bar. The balance will represent lawyers selected by regions. The Batonnier will serve for longer terms, with two Vice-Presidents to help shoulder the load. Other advisory entities will ensure that the various voices of the profession are heard.

Manitoba’s reforms are equally significant. Law Society governance is about to change too. Essentially the Law Society of Manitoba agreed to a model split between public representatives, lawyers elected from the Bar and the last third appointed lawyers (using a skills matrix and also as a diversity tool). They have now settled at a tight board of 24, with the Dean of the local law school and past President being ex officio. Manitoba will also have a bencher elected from new law graduates every year. It too will take legislative change. The goal is to have it in place before the next bencher election in May 2016.

Let’s hope that Ontario can learn, and that this will be the last election with this fixation on regions. If one were redesigning the structure from scratch – which was the thought exercise (S’il vous plaît…dessinez-moi un Barreau!) that the Barreau undertook – one would aim to halve the numbers and streamline the operations. Ancillary bodies help to spread the workload – they ensure that the new Council in Québec will focus on the major issues of principle. The blueprint is there, for the necessary legislative changes. I fully recognize that Ontario will require legislative change as well.

When the results are in later today, one of the priorities of the new Convocation should be to cut the numbers back to what will fit around the historic table.