More Sinned Against Than Sinning

The Tribunal Hearing Division of the Law Society of Upper Canada took into consideration a unique mitigating factor in declining to suspend an attorney for a second violation of rules governing practice

Ms. Lyons-Batstone is in her early sixties. She has practised for nearly 30 years. Her mother, whom she takes care of, is a residential school survivor who experienced significant abuse. The evidence shows that the intergenerational effects of the Indian residential school system, the legacy of the treatment of First Nations in Canada, have likely negatively affected Ms. Lyons-Batstone and her family in multiple ways. She cares for a parent and a child with disabilities and she also has medical disabilities herself.

Ms. Lyons-Batstone overcame multiple personal and systemic barriers to get excellent grades and become a successful lawyer. She practises primarily for legal aid clients, serving First Nations communities in particular and working on programs to support those communities. It is apparent that the work she does is of particular importance to Aboriginal people in central Ontario, providing them with legal representation by a person with a particular understanding of their communities and culture.

The decision

David A. Wright:– For the second time in just over a year, the Lawyer, Debora Batstone (“Ms. Lyons-Batstone”) was before this Tribunal admitting to breaking Law Society rules. Last time, she practised while suspended and received a reprimand: Law Society of Upper Canada v. Batstone, 2015 ONLSTH 214 (CanLII) (“Batstone 2015”). This time, she did not keep her books and records properly.

Here, the parties agreed on the facts and that Ms. Lyons-Batstone engaged in professional misconduct. The main question was the appropriate penalty. There are significant mitigating factors, notably the circumstances stemming from her indigenous background and medical conditions. Without these mitigating factors she would almost certainly have been suspended in 2015 and be receiving a longer suspension this time.

Ms. Lyons-Batstone submitted that the application should be dismissed following an invitation to attend, while the Law Society proposed a reprimand and a practice review. My concern with both parties’ proposals was that the misconduct here occurred at the very same time that the importance of following Law Society rules was emphasized to her through a reprimand. Given that, and the evidence at the hearing, I decided that progressive discipline required a stronger penalty to achieve specific deterrence and maintain public confidence. I ordered that Ms. Lyons-Batstone pay a fine of $3,500 and I emphasized to her that she would almost certainly receive a suspension if she was before the Tribunal a third time. I ordered the practice review proposed by the Law Society and an additional $3,500 in costs.

The web page of the University of British Columbia has information about the residential schools.

The term residential schools refers to an extensive school system set up by the Canadian government and administered by churches that had the nominal objective of educating Aboriginal children but also the more damaging and equally explicit objectives of indoctrinating them into Euro-Canadian and Christian ways of living and assimilating them into mainstream Canadian society. The residential school system operated from the 1880s into the closing decades of the 20th century. The system forcibly separated children from their families for extended periods of time and forbade them to acknowledge their Aboriginal heritage and culture or to speak their own languages. Children were severely punished if these, among other, strict rules were broken. Former students of residential schools have spoken of horrendous abuse at the hands of residential school staff: physical, sexual, emotional, and psychological. Residential schools provided Aboriginal students with an inferior education, often only up to grade five, that focused on training students for manual labour in agriculture, light industry such as woodworking, and domestic work such as laundry work and sewing.

Residential schools systematically undermined Aboriginal culture across Canada and disrupted families for generations, severing the ties through which Aboriginal culture is taught and sustained, and contributing to a general loss of language and culture. Because they were removed from their families, many students grew up without experiencing a nurturing family life and without the knowledge and skills to raise their own families. The devastating effects of the residential schools are far-reaching and continue to have significant impact on Aboriginal communities. Because the government’s and the churches’ intent was to eradicate all aspects of Aboriginal culture in these young people and interrupt its transmission from one generation to the next, the residential school system is commonly considered a form of cultural genocide.

From the 1990s onward, the government and the churches involved—Anglican, Presbyterian, United, and Roman Catholic—began to acknowledge their responsibility for an education scheme that was specifically designed to “kill the Indian in the child.” On June 11, 2008, the Canadian government issued a formal apology in Parliament for the damage done by the residential school system. In spite of this and other apologies, however, the effects remain.

(Mike Frisch)