Law Times

Page 6 June 11, 2018 • Law Times www.lawtimesnews.com Election results show it's time to rethink polls BY IAN HARVEY A nd the winner is Doug Ford. Surprised? It depends on which poll you tracked. After the Liberal collapse in Ontario's provincial election lead-up, polls most consistently had the NDP and PCs neck and neck in popular support. One showed PC leader Doug Ford having a sizable lead in terms of seat pro- jections, because of where those voters were located. Then there was another poll showing a 14-point NDP lead. The media went into a frenzy, mak- ing seat projections for an orange sweep, while talking heads nodded sagely. However, the bottom line was that both polls had vastly different predic- tions. That's a cause of consternation for market researchers like John Wright, a 40-year veteran of the polling industry, author of three bestsellers and the voice of the Angus Reid Group and Ipsos for 26 years before going solo with Dart In- sight and Communications. Both he and Ford took exception to a couple of polls showing the NDP with a massive lead on the Progressive Conser- vatives published during the campaign. Ford was furious, calling one of them a "lie," pointing to buried data deep in the report showing the PC at 40 per cent and the NDP at 36 per cent before they were "weighted" up. And here's the underlying issue. In Thomson Newspa- pers Co. v. Canada (At- torney General) [1998 SCC 25593], the court found there's a psychology at play in publishing some polls because it gives momentum to one side over the other. Campaign workers are either buoyed or def lated, while some voters may gravitate to the "leading" side because they want to be part of the "win- ning" team. Thomson, which owned the Globe at the time, lost at Ontario Court and the Court of Appeal, but it went on to win 5-3 at the Supreme Court. Wright, who was involved in that bat- tle, says the Canada Elections Act pro- hibiting publishing polls in the last three days of a federal election was struck down as an infringement of free speech, in part because there was an assumption that the industry would police itself. Sadly, in some cases, the dark art of polling has drifted perilously toward alchemy, says Wright, who, with his colleagues, has been fighting for self regulation for more than a decade. And now they have it. Canada's Marketing Re- search and Intelligence As- sociation's code of conduct rolled out June 1. Membership in the MRIA now requires a pledge to comply with rules designed to stop misreporting and misrepresentation. Failure to comply can lead to dismissal from the MRIA. It's important, says Wright, because this is a global issue and Canada is tak- ing the lead. In Britain, for example, the House of Lords has just sternly cau- tioned pollsters there to get their act to- gether or face legislation over the same issue of skewed polls. Transparency is a critical component and requires reporting more than the top line of a poll, Wright says. Compa- nies must also publish their methodol- ogy and their weighting formula. What kind of poll was it? Online? Ro- bocall? To a mobile or landline? Time of day also factors in since more retirees are likely to be home in the morning or af- ternoon. How many are young, activist voters who probably lean left? Complex and often proprietary algo- rithms are employed to discern what the raw data means, Wright says, and they balance the sample so it isn't skewed to- ward young, left-leaning voters, older, more conservative voters, women, men or retirees. The dark art of polling is in how to weight each sample to arrive at a bal- anced picture. More nefariously, that process can also be used to deliver a dis- torted result, favouring one party over another, so-called Hamburger Polls, be- cause you're served what you want to see. Of course, the only poll that really matters is now on the record and none of us is in the dark about how voters really feel. We'll also quickly forget how wrong — or right — those polls were leading up to the vote. LT uIan Harvey has been a journalist for more than 41 years, writing about a diverse range of issues including legal and political affairs. His email address is ianharvey@rogers.com. COMMENT u EDITORIAL OBITER By Gabrielle Giroday ©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reli- ance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $205.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $199 + HST per year for online only. Single copies are $5.00. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Keith Fulford at .............. 416-649-9585 . . . . . . . . . . . . . . . . . . . . . . or fax: 416-649-7870 keith.fulford@thomsonreuters.com SALES AND BUSINESS DEVELOPMENT Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Sales Manager Paul Burton ............................................ 416-649-9928 paul.burton@tr.com Consultant, Strategy and Business Development: Ivan Ivanovitch ...................................... 416-887-4300 ivan.ivanovitch@tr.com Business Development Consultant: Kimberlee Pascoe .................................. 416-996-1739 kimberlee.pascoe@tr.com Account Executive: Steffanie Munroe ................................... 416-315-5879 steffanie.munroe@tr.com Law Times Thomson Reuters Canada Ltd., One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com LT.editor@thomsonreuters.com • @lawtimes Director/Group Publisher . . . . . . . . . Karen Lorimer Managing Editor . . . . . . . . . . . . . . Jennifer Brown Editor . . . . . . . . . . . . . . . . . . . . . . Gabrielle Giroday Copy Editor . . . . . . . . . . . . . . . . . . Patricia Cancilla CaseLaw Editor . . . . . . . . . . . . . . . . . . Leah Craven Art Director . . . . . . . . . . . . . . . . . . . Phyllis Barone Production Co-ordinator . . . . . Jacqueline D'Souza Electronic Production Specialist . . . Derek Welford The modern condition I once heard a very smart insight, that if we look back at the circum- stances of our own lives over one-year increments, momentous change would be difficult to discern. However, when we look at 10- year increments, it becomes easier to make out significant shifts in ourselves and in public attitudes. Now, more than ever, the ability to telescope back from the issues of the day is crucial. In this issue of Law Times, that shift is showing. Take the upcom- ing challenges on mandatory minimum sentencing for child pornog- raphy convictions. "Not all offenders are the same. Some are less morally blamewor- thy than others," says Samara Secter, a Toronto defence lawyer who notes that mandatory minimums "sacrifice individualized sentenc- ing at the altar of generalized deterrence." Take surrogacy law, a morally thorny issue if there ever was one. Fertility lawyers have taken different positions in Law Times about whether or not compensation for surrogates (and egg and sperm do- nors) should be criminalized. This week, Cindy Wasser argues that "ever since the Assisted Human Reproduction Act was enacted in 2004, Canadian parents have been at risk of facing 10 years in prison, a $500,000 fine or both for reimbursing donors or surrogates for any expense that might be deemed unreasonable or for providing them with any form of gift or payment." This could soon change. Or look at even more subtle shifts around old chestnuts such as women's engagement in certain aspects of the economy. As one fea- ture notes, a federal IP strategy highlights the need for women to receive more education about intellectual prop- erty. Many women already understand the need for IP strategies, says Ottawa lawyer Janet Fuhrer. The real need, she says, is to have more intellectual property professionals who are women. This week, the narrative around lawyer Joseph Groia — and the battle over what constitutes civil behaviour in a trial that ended in acquittal in 2007 — ended with a barn-burning Supreme Court ruling. Sometimes, change comes quickly. But as Groia can attest, more often, it is a slow, grinding process. LT Queen's Park Ian Harvey

• Cover