ELECTORAL REFORM TOWARDS AN INCLUSIVE CONVOCATION

Transcription

1 Law Students' Society of Ontario Société des étudiants et étudiantes en droit de l'ontario February 3, 2018 ELECTORAL REFORM TOWARDS AN INCLUSIVE CONVOCATION Enfranchisement of Licensing Candidates, New Lawyer Benchers and Student Benchers Prepared by Nima Hojjati Licensing Representative, Law Students Society of Ontario Table of Contents I. INTRODUCTION 2 a. The Goals of the Law Society and Democratic Principles..2 b. The Licensing Fee Taxation Without Representation..3 II. JURISDICTION: LEGISLATION & BY-LAWS..4 a. The Power to Enfranchise Licencing Candidates...4 b. The Power to create New Lawyer Benchers and Student Benchers 7 III. EXAMPLES IN OTHER PROVINCES.8 IV. CONCLUSION 9

2 I INTRODUCTION A - The Goals of the Law Society and Democratic Principles 1. As the Law Society of Ontario (LSO) moves towards equality, diversity, and inclusion in the profession, those same principles need to be incorporated at its level of governance. Licensing candidates, such as articling students and Law Practice Program students, currently have no legitimate representation in the decision-making processes of the Law Society. 2. On November 21, 2017, the Toronto Star published an article titled Law Society dedicated to countering systemic racism in which Treasurer Paul Schabas opined: The Law Society is charged with governing the legal professions in the public interest. It is specifically required to regulate in a way that maintains and advances the cause of justice and the rule of law which means that we are all equal before the law. The public interest also requires that we strive to ensure Ontarians are best served by legal professionals who reflect the full diversity of the province. [emphasis added] 3. Advancing the cause of justice and the rule of law should entail the advancement of democratic principles. The full diversity of the legal profession should be reflected in the LSO s governance and decision making. In the past couple of years, students have often been at the centre of contentious issues within the law society, such as: the future of the Law Practice Program; the Racialized Licensee Report; the proposed changes to the licencing process; the proposed post-articles experiential examinations; and the Dialogue on Licensing initiative. At each interval, Convocation made decisions impacting 2

3 law students or licensing candidates with minimal consultation and no legitimate representation. 4. My own experience with the LSO has led me to the proposals in this report. As a past Law Students Society president at Queen s Law, a member of the Treasurer s Students Roundtable for two Treasurers, the Equity Officer of the Law Students Society of Ontario (LSSO), the LSSO student representative on the Equity Advisory Group for the past two years, and the current Licensing Representative of the LSSO, I have participated in the Law Society s consultation process at every stage involving students and to the very best of my ability since my introduction to the LSO. However, I can confidently say that none of my roles were a legitimate form of consultation, nor were they a legitimate form of student representation towards Convocation. The organisations and the committees I have participated in do not amount to the democratic legitimacy of elected benchers. The letters and the reports that me and my organisations have sent to Convocation are often ignored. Licensing candidates do not have their interests fairly represented by the presence of one or two advocates on the fringes of the Law Society. Nothing speaks louder than a ballot; nothing is more legitimate than an elected representative. B. The Licensing Fee Taxation Without Representation 5. Unlike law students in Ontario, who may practice in other provinces, licensing candidates should be viewed as full members of the LSO. 6. In order to become a licensed member of the LSO, articling candidates in were required to pay about $4, In order to remain licensed in 2018, a lawyer must pay about $2, A catalyst for the democratic model in the United States was the principle of no taxation without representation. Under the current model, articling 3

4 candidates are disproportionally taxed by the Law Society with no representation at Convocation. Democracy should not go to the highest bidder but membership in an organisation bound to the public interest and the rule of law should be cognizant of these principles. 9. If licensing candidates are to be treated fairly, they should not be charged twice as much as licenced members, and at the very least, they should be given the power to vote or to have their own Benchers. 10. Licensing candidates should be enfranchised in the LSO and given the power to vote in Bencher elections. In the alternative, Convocation should learn from other provinces and advocate for the creation of New Lawyer Benchers and Student Benchers. 11. A New Lawyer Bencher would be a distinct Bencher who is a licensee with fewer than 10 years of experience. 12. A Student Bencher would be elected yearly by licensing candidates from among their own numbers. II JURISDICTION: LEGISLATION & BY-LAWS A) The Power to Enfranchise Licencing Candidates 13. Convocation has the power to allow Licensing Candidates to vote in Bencher elections. 14. Pursuant to section 62 of the Law Society Act, R.S.O. 1990, c. L.8, Convocation can make by-laws in regards to a wide range of matters in relation to governance. Section 62 reads: 4

5 By-laws 62. (0.1) Convocation may make by-laws, [ ] 19. defining who is a student, prescribing classes of students and describing each class, and governing students, including, i. governing the employment of students, ii. making any provision of this Act, the regulations, the bylaws or the rules of practice and procedure apply to students with necessary modifications or subject to such modifications as may be specified by the by-laws, and [ ] iii. specifying provisions of this Act, the regulations, the by-laws or the rules of practice and procedure that do not apply to students; (1) Without limiting the generality of paragraph 1 of subsection (0.1), by-laws may be made under that paragraph, [ ] 6. governing the election of benchers under section 15, including prescribing regions for the purpose of subsection 15 (2), prescribing the terms of office of elected benchers, prescribing the number of benchers to be elected for each region, governing the qualifications required to be a candidate or vote in elections and providing for challenges of election results; 6.1 governing the election of benchers under subsection 16 (1), including prescribing the day on which the first election of such benchers must take place, requiring such benchers to be elected for regions and prescribing the regions, prescribing the terms of office of elected benchers, governing the qualifications required to be a candidate or vote in elections and providing for challenges of election results; 6.2 governing the filling of vacancies under subsection 15 (3) and the filling of vacancies under subsection 16 (3); 7. governing the election of and removal from office of the Treasurer, the filling of a vacancy in the office of Treasurer, the appointment of an acting Treasurer to act in the Treasurer s absence or inability to act, and prescribing the Treasurer s duties; 5

6 15. In By-Law 3, Convocation exercised its powers under the Law Society Act in regards to elections as follows: QUALIFICATION OF ELECTORS 16. A licensee whose licence is not suspended on the first Friday in April is entitled to vote in an election of benchers. Eligibility to elect benchers for electoral regions 17. (1) An elector is eligible to elect the bencher for the Province of Ontario A Electoral Region who is to be elected on the basis of the votes cast by electors residing in the electoral region if the elector resides in the electoral region. 16. Section 1 of the Law Society Act defines a licensee as a person licensed to practice law in Ontario as a barrister and solicitor or as a person licensed to provide legal services in Ontario. Part I of By-Law 3 however defines a licensee only as a person licensed to practice law in Ontario as a barrister and solicitor. By-Law 3 distinguishes the meaning of a licensee from its definition in the Law Society Act. This distinction functions to differentiate between people who can vote for Benchers licensed to practice law (Lawyer Benchers) and the Benchers who are licenced to provide legal service (Paralegal Benchers). Under By-law 3 Part I.1, Convocation decided to strip paralegals of their status as licensees as per the Law Society Act, in order to categorise the electorate. 17. Section 17 of By-Law 3 further demonstrates that Convocation can and does categorise voters based on their residence for the purposes of elections and governance. If Convocation can limit votes based on residence, then Convocation can and should categorise voters based on their year of call or their status as a licencing candidate. 18. Although the By-Laws do not specify an exclusion of the vote to licencing candidates pursuant to section 62(0.1)(19)(iii) of the Law Society Act, 6

7 Convocation prevents students from voting in Bencher elections by excluding them via definition. Licensing candidates presumably fall outside of the definition in By-Law 3 of a person licensed to practice law in Ontario as a barrister and solicitor, therefore they are indirectly prohibited to vote. Convocation has the power and the jurisdiction to change that. B) The Power to create New Lawyer Benchers and Student Benchers 19. Under section 15(1) of the Law Society Act, 40 persons who are licensed to practice law in Ontario as barristers and solicitors shall be elected as benchers in accordance with the by-laws. Under By-Law 3, Convocation decided that 20 Benchers will be elected from Region A (City of Toronto) and 20 Benchers will be elected from Region B (outside of Toronto). Convocation has the power to amend By-Law 3 to include New Lawyer Benchers as one of the Bencher categories; one from each region under the current model at the minimum. 20. Voting for New Lawyer Benchers should not restrict the power to vote for other Benchers, nor should it exclude new calls from running for other Bencher positions. New Lawyer Benchers should be viewed as guaranteed representation, not exclusive representation. 21. To create the position of a Student Bencher, legislative amendments may be required in order to satisfy the requirements of section 15(1) of the Law Society Act or to add a new section all together. Section 6(2)(c) of Manitoba s The Legal Profession Act, CCSM c. L107, reads as follows: (6)(2) The rules must (c) provide for the election of the student bencher each year by the articling students from among their number; 7

8 22. The Ontario Law Society Act may need to be amended similarly, followed by amendments to the By-Laws. III EXAMPLES IN OTHER PROVINCES 23. In the Nova Scotia Barristers Society, all members of the Society in good standing are entitled to vote for Council members under their Rules and Articled clerks (articling students) constitute a category of membership, and can presumably vote. 24. In Manitoba, The Legal Profession Act, CCSM c. L107, mandates under section 5(d) for an articling student to be a member of their Governing body as a student bencher, who is elected yearly by articling students from among their numbers (section 6(2)(c)). 25. In the British Colombia Law Society, articling students under their Rule 1-13(1) are entitled to be present and to speak at a general meeting of the Society. Under their Rule 1-16(1), articling students are entitled to be present at Bencher meetings and they may be permitted to speak. 26. In the Law Society of Alberta, students-at-law are entitled to the results of their Bencher elections under their Rule 16(2). 27. The Law Society of Saskatchewan has a requirement under their Rule 32 for a New Lawyer Bencher who has been admitted to the practice of law for fewer than 10 years. 28. The LSO should conduct a thorough comparative analysis of other Law Societies across the country and learn from their lessons. 8

9 IV CONCLUSION 29. If the LSO is committed to its new-found appreciation for equality, diversity, and inclusivity, then changes must be made to Convocation in order to reflect these principles and to reflect the reality of the profession. 30. Licensing candidates must be represented at Convocation. Decisions are constantly being made that will have long-term consequences on us more than on anyone else. We deserve a seat at the table and we have paid for it with our time, our efforts, and our money. We are not temporary members, we are the future of the profession. 9