Stamping Out Systemic Discrimination in the Legal Professions

This weekend we celebrated the 25th anniversary of the Black Law Students Association of Canada (BLSAC). The organization is one that has held special importance to me throughout law school and following, and one to which I credit much of my momentum in this field.

The conference was held this year in Toronto at the DoubleTree Hilton, immediately adjacent to the construction site of the new provincial courthouse, and historic site of the British Methodist Episcopal Church, one of the key locations of the Underground Railroad.

The Julius Alexander Diversity Moot this year was held at the Ontario Court of Appeal, where competitors examined a fictitious application by a licensee candidate for an appeal of a failed good conduct hearing. The applicant was from the Central African Republic, where she was forcibly conscripted as a child to join the Lord’s Resistance Army. As a member of this group she engaged in numerous war crimes.

After fleeing to Canada, the applicant completed both an undergraduate degree and a law degree in Canada, and applied unsuccessfully to seek admission to the bar. Section 27(2) of the Law Society Act mandates that an applicant be of good character. Section 27(4) sets out that “An application for a licence may be refused only by the Hearing Panel after holding a hearing.”

The Act does not define “good character,” but has been described in Claude Hyman Armstrong v Law Society of Upper Canada as,” an amalgam of virtuous attributes or traits which undoubtedly include, among others, integrity, candour, empathy, and honesty.” The panel before Alan Honner v. Law Society of Upper Canada stated,

[44] The factors to be considered in a determination of good character in admission cases have been set out in the case law as:
(a) the nature and duration of the misconduct;
(b) whether the applicant is remorseful;
(c) what rehabilitative efforts, if any, have been taken, and the success of such efforts;
(d) the applicant’s conduct since the proven misconduct; and
(e) the passage of time since the misconduct.

The appeal panel upheld the decision of the Hearing Division in this case based on the following findings:

  • The LRA is a terrorist organization, and she was an active participant against innocent parties
  • Evidence before the Immigration Division of witnesses, resident in Canada, that the applicant appeared to lead actions which hurt or killed family members
  • Specific raids between 1997-2002 were particularly heinous, and confirmed by independent UN observer reports
  • Concern that the members of the public who had suffered at her hands were entitled to a clear statement of remorse or more supporting evidence that her background had been overcome

The law society has dealt with similar issues of good conduct for past history of terrorism in Parminder Singh Saini v. Law Society of Upper Canada, where an applicant was denied status due to his involvement in hijacking an airplane in Pakistan. The seriousness of the offence in question prevented the applicant from being admitted, despite 25 years passing before his application. In this case it had only been 13 years since the equally egregious crimes occurred.

However, in Saini there was a finding that the applicant continued to pose a danger to the public and was not admitted to Canada. The panel also noted at paras 72-73 that the applicant had been deceptive to immigration authorities and his own lawyer, and had not expressed remorse.

This suggested his conduct issues continued well after the hijacking incident occurred, and the applicant did not have “the moral fibre to do what is right no matter the consequences and the courage to see that the law is upheld.” In this case, the applicant had been entirely forthright about her involvement with the LRA, had not had any ongoing issues of dishonesty, and had been a model citizen in Canada.

Of particular note to the panel in Honner was the rehabilitative effect of going to law school itself,

[56] Honner’s ethical progression was evident from his own testimony about the importance of law school in developing and changing his analysis and thinking. The panel accepts his evidence that law school “burst his philosophical bubble” and allowed him to understand why the actions giving rise to the conviction were morally as well as legally wrong. The evidence showed that Honner spent months and months thinking about whether and why he was wrong. The panel accepts that Honner understands the difference between right and wrong.

However, the panel in James Maurice Melnick v. Law Society of Upper Canada stated,

[97] The legal profession, of all professions, has a special responsibility to recognize cases of true rehabilitation. Since serving his sentence, Mr. Melnick has made significant efforts to move on with his life, building a small business and successfully completing law school and articles. It could be argued that someone with this background would make a more compassionate lawyer, with much to draw on in the way of life experience, determination, and discipline. Mr. Melnick advanced this position himself in his testimony. However, focus on career goals and successful completion of law school, however admirable, are not in and of themselves evidence of true and complete rehabilitation.
As was stated in Re P(DM) v. LSUC, unreported, pg. 57:

The Committee rejects the suggestion that the completion of law school, the articling period and the teaching portion of the Bar Admission course somehow demonstrate the applicant’s rehabilitation. The discipline and skill shown by Mr. P in achieving his academic goals are certainly measures of his intellectual competence but are of little consequence in these proceedings because his intellectual capability and his academic and job performance have never been in dispute.

[emphasis added]

Of course this case has relevance to our shifting immigration patterns, especially where these immigrants may be coming from war torn countries like Syria, and forced to engage in atrocities as children. Some of them may choose to enter the legal professions and their past conduct may be scrutinized.

But this moot problem can also help us reflect on the role of self-governance and the adequate consideration of racial and systemic barriers. Instead of resolving how to weigh the specific factors for rehabilitation, this moot was “to develop critical race litigation skills…. [and] exploring the range of critical race issues that arise in the Moot question.”

Of particular note in this context is the decision in Law Society of Upper Canada v. Selwyn Milan McSween, which found explored the systemic disadvantages experienced by racialized licensees. The dissent by Clayton Ruby and Constance Backhouse, in particular, emphasized the need for judicial notice of anti-black racism in Canadian society, and its applicability to evaluating professional misconduct.

The dissent in McSween noted that an inference that Afro-Caribbean Canadian lawyers face significant economic and professional hurdles compared to their colleagues was a reasonable one. They pointed to the 2008 statement by Lord Ouseley, former head of the Commission for Racial Equality, that the Solicitors Regulation Authority was institutionally racist and had discriminated against Black and Asian solicitors.

This social context raises the question of whether good conduct is evaluated and measured based on the types offences and the unique characteristics of applicants. The psychology literature tells us that first impressions and mental images of others has a significant influence on how we perceive others.

One of the cases presented to me at this moot was Kathryn Leah Smithen v. Law Society of Upper Canada, dealing with an applicant who “disclosed a criminal history of 38 or 39 convictions for fraud-related offences between 1979 and 1993, several outstanding civil judgments, two judgments entered against her in actions involving fraud, two terminations of employment for cause, and two declarations of bankruptcy.”

This history obviously prompted an investigation by the panel, which revealed the following:

(a) In 2000, the Applicant made misrepresentations to immigration authorities and the Canada Revenue Agency by filing a tax return for the 1999 tax year that overstated her income in order to be eligible to post a performance bond for a friend who had been detained by immigration authorities;

(b) From 1992 to 1999 and again from mid-2002 to 2004, the Applicant was intermittently involved in the sex-trade industry as an escort and between February 2002 to December 2003, collected social assistance at the same time she was earning part-time income as an escort, which she did not report to Social Services or the Canada Revenue Agency;

(c) In 2002, the Applicant misrepresented her income in a rental application to a landlord in order to secure a rental unit;

(d) In 2005, during her family law proceedings, the Applicant was found to have made misrepresentations regarding her earnings for the 1999 tax year;

(e) On July 2, 2004, the Applicant obtained real estate transaction documents pertaining to the wife of her former spouse from the office of the lawyer who was representing the wife, and used those documents in her family law proceedings;

(f) On January 16, 2004, the Applicant misrepresented herself as a landlord in order to obtain, without consent or authorization, credit bureau information of her former spouse and his wife and used this information in her family law proceedings against her former spouse;

(g) Madam Justice F. Kiteley presided over the Applicant’s family law matter involving her former spouse. The Applicant was unrepresented before Justice Kiteley with respect to the events that occurred in 1994 and 2005. Justice Kiteley’s April 27, 2006 judgment was critical of some of the Applicant’s evidence, in particular with regard to her income. Justice Kiteley forwarded a copy of her judgment to the Law Society in May 2009.

(h) On October 15, 2007, the Applicant failed to disclose to the Law Society three additional terminations of employment for cause, in her initial Good Character Application, but included the information as appendices to her psychiatric report which was forwarded to the Law Society.

Despite this extensive history, and the fact that this information was withheld from the panel as in Saini, this applicant was not denied admission to the bar. Restrictions were placed on her trust account during the early years of practice, but her rehabilitation efforts, over just 7 years, satisfied the panel on a balance of probabilities.

The submission on this point is the applicant in this case, forced into these crimes out of duress and fear of her life, was not at risk of re-offending now that she was removed from the civil war where she was born. The risk to clients and to the administration of justice appear better here than in Smithen, where there was a direct concern about the handling of clients’ trust funds.

The analysis doesn’t end there. The principles applied in Saini at para 63 are gleaned from Howard Steven Levenson v. Law Society of Upper Canada, and Robert Charles Watt v. Law Society of Upper Canada, and also include,

2. Public confidence in the legal profession is more important than the fortunes of any one lawyer.

3. The ability to practise law is not a right but a privilege.

 10. The reinstatement must not be detrimental to the integrity and standing of the bar, the judicial system, or the administration of justice, or be contrary to the public interest.

The admission of a convicted terrorist to the bar certainly raises some important questions about the public confidence in the legal profession, as would the admission of an individual who had been involved in war crimes as a child and young adult.

But it would also be contrary to the public interest to ignore the fact that individuals caught in these crimes and labels often come from very different social contexts than those in Canada. The floor if you will for bad conduct is not nearly as low here as it can be elsewhere in the world, for a variety of socioeconomic and political reasons. The applicant here was not just an offender, but she was also a victim of some of the most horrible things happening on our planet today.

Ultimately this case did not deal with a real applicant seeking admission after being the victim of a civil war and involved in war crimes, deferring this difficult question – for now. It does help us reflect on who we are as a self-governing profession, and whether our membership and our benchers properly reflect the social and life experiences of Canadian society, and the public at large.

To address this, LSUC is undertaking a formal working group to Address Challenges faced by Racialized Licensees, culminating in a 2014 report. The findings may have also prompted broader changes in the law society, with a shift towards more collaborative compliance than administrative discipline. These changes, coupled with supports emerging within the bar, may address some of the systemic issues identified in McSween.

Yet we should always be aware of our biases, known and unknown, and how it affects the way we perceive others, including our colleagues in the bar. That is a challenge linked to broader societal changes, but as the Division Court illustrated last year in the TWU decision, the bar frequently leads the way to breaking down the next barriers to help create a more fair and equitable society.

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