Law Times

LAW TIMES 6 COVERING ONTARIO'S LEGAL SCENE | APRIL 15, 2019 www.lawtimesnews.com COMMENT T his week, voting begins for the Law Society of Ontario's bencher election. Speculation (and hopes) have emerged that turnout this elec- tion cycle will be higher (more than a dismal 33.84 per cent), thanks to younger candidates who have decided to run and so- cial media engagement (though it's estimated 60 per cent of can- didates are not on Twitter). Nearly 120 candidates sent in candidate profiles to our site, and there have been a lot of late nights and early mornings (by candidates and journalists alike) chatting on issues facing lawyers and paralegals. The list is exhaustive: access to justice, governance, entity regulation, rural versus urban lawyers, licensing and on and on. The moments that made me most delighted were when people who were vastly differ- ent agreed to hear each other out and, in the process, developed more robustly developed their own viewpoints and demon- strated the civility for which the profession is known. The Ontario legal community is a close-knit and inter-connect- ed bunch, and they've kept us (and each other) on their toes, in the massive lead-up to the election. It's finally here. And, with it, come important questions about the future of the profession and its self-regulation model. "There are those that argue if [the LSO] is only to govern in the public interest, why bother having elections? Why not just appoint people?," says bencher candidate John Nunziata. "Right now, there are lay benchers that the provincial gov- ernment appoints, and there's a reason behind that." Each voter has a chance to chart the future of the profes- sion, by the simple act of partici- pating in the process. For that reason, no matter who you choose to support, vot- ing is in itself the greatest state- ment of all. LT BY K ADY O'MALLEY L et's start with the good news: Accord- ing to the Communications Security Establishment, even if foreign cyber sabouteurs are already plotting to med- dle in the upcoming vote, they current- ly consider interference "of the scale of Russian activity against the 2016 United States presidential election" to be "im- probable." That said, the agency has also con- cluded that it is "very, very likely" that Canadian voters will experience "some form of foreign cyber interference ahead of, and during" the upcoming campaign, which is currently set to get underway in late August or early September, depend- ing on exactly when the governor general fires the starter pistol. In fact, as the report notes, a sizeable number of Canadians may have already been bamboozled by exactly the type of disinformation that could undermine the integrity of the electoral process back in 2016, when more than 3,000 Facebook users shared what CSE describes as a "fic- tional report" that claimed 11 Canadian soldiers had been killed in the course of a "failed raid" on a Russian base in Ukraine. Despite being 100-per-cent false — the very quintessence of "fake news," in fact — it nevertheless found its way into thousands of Facebook feeds, including, almost certainly, some belonging to Canadian users. The likely goal, according to CSE, was to "portray Ca- nadian troops, who are pres- ent in Ukraine in non-combat roles, as reckless and ineffec- tive in their operations." That's the sort of assertion that could easily be picked up and amplified by a multitude of sources, which, depend- ing on how convincing the lie, could include otherwise reliable news sourc- es, could conceivably make some Ca- nadians lose support for that particular mission and potentially even change their mind on how they will eventually cast their ballot. Take a look at the SNC-Lavalin scan- dal, and specifically, Prime Minister Jus- tin Trudeau's seemingly high-risk move to hit his chief political adversary, Con- servative Leader Andrew Scheer, with a defamation notice. The letter, which was signed off on by well-known libel lawyer Julian Porter, fo- cused on a statement posted to his Face- book page that claimed Trudeau had "led a campaign to politically interfere" with the criminal prosecution of the embattled Quebec-based engi- neering firm. It also challenged the inclu- sion of the phrase "corruption on top of corruption on top of corruption," which, as per Por- ter, "was meant and understood to mean that Justin Trudeau had engaged in dishonest and corrupt conduct that would contravene the Criminal Code of Canada." For his part, both Scheer and his lawyer seem serenely confident that they could successfully defend the state- ment in court — so much so that they've challenged the prime minister to carry out his threat, which, they suggest, would finally allow the allegations to be aired in a forum not controlled by a Liberal ma- jority. Even if that's correct, however, the entire episode adds a whole new layer to concerns over what — and who — has the means and motivation to inf luence the outcome of the next election. It's not entirely implausible to imagine an undecided voter who doesn't usually pay close attention to the federal politi- cal scene spotting the Scheer statement in their curated newsfeed, perusing it as writ- ten without the caveats, corollaries and context usually included in media cov- erage of such commentary, and coming away with the conclusion that the prime minister did, in fact, break the law by po- litically interfering in a criminal case. That, in a nutshell, is the dilemma faced not just by Trudeau but by any poli- tician who has had to contend with un- founded allegations, baseless accusations and strategic misrepresentations. Threatening legal action against any and all purveyors of unproven claims isn't just impractical, as it would inevitably end up casting far too wide a net and would lead to the suppression of legitimate criti- cism and commentary, both organized and ad hoc. At the same time, treating the online arena as a no-rules playground for ev- eryone from Russian bots to overzealous opposition research teams could be a fast track to eroding not just public confi- dence in the democratic process but the underpinnings of the democratic process itself. LT Kady O'Malley is a member of the parliamen- tary press gallery in Ottawa and writes about politics, procedure and process for iPolitics. She also appears regularly on CBC television and radio. Digital meddling in the election? Never a dull moment Editorial Obiter Gabrielle Giroday Gabrielle.Giroday@thomsonreuters.com ©2019 HAB Press All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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