Trailblazer Reprimanded

A reprimand has been imposed by the Tribunal Hearing Division of the Upper Canada Law Society on these agreed facts. 

  Ms. An is an experienced criminal defence lawyer. In 2013, she represented an accused at a trial that proceeded over 17 days in October to December 2013. The accused was convicted of 16 counts of fraud.

Before the accused was sentenced, the accused retained new counsel and brought an application for a mistrial on the basis of ineffective representation by Ms. An. Ms. An was not a party to that application. However, her affidavit was in evidence and she was cross-examined.

A mistrial was declared on the basis that the accused “was denied his right to be the final arbiter of whether he would testify, and to know that it was his decision to make.” The trial judge concluded that Ms. An made this decision rather than the accused. As the trial judge put it in his reasons “At the very least, I have no doubt that even if [the accused] left that decision to his trial counsel, he did so without understanding that whether to testify was ultimately his decision to make, regardless of counsel’s advice.”

The Law Society did not assert that Ms. An was bound by the findings made by the trial judge. The trial judge’s reasons were adduced before us as part of the narrative of events. That said, Ms. An accepted that her client did not understand that it was ultimately his decision whether or not to testify.

In the Agreed Statement of Facts, the parties agreed that:

(a)  Ms. An did not discuss the decision to be made and whose decision it was.

(b)  The accused did not understand that the decision was his and he believed, without saying so to Ms. An, that he had no choice but to accept her decision.

(c)  Ms. An thought that her client understood that it was his decision to testify (or not) and simply accepted her advice.

(d)  Ms. An recognizes in retrospect that she made erroneous assumptions to accept what she believed to be an implied consent, and did not take adequate steps to ensure that her client understood the decision to be his and that he had a choice, notwithstanding her legal advice.

Significantly, Ms. An believed that her client understood that it was his decision whether or not to testify. She was wrong. This error arose because Ms. An did not take adequate steps to ensure that her client understood his right.

There are two other aspects to the professional misconduct that have been admitted. Ms. An admits that her client did not understand that the decision whether to have a preliminary inquiry or a jury trial was his decision. Ms. An accepts that she was the decision-maker believing or assuming that her client was simply content to accept her recommendation. Again, Ms. An admits that she did not adequately ensure that her client understood his options and that the decisions were his alone to make. Ms. An further admits that she did not adequately prepare for trial in failing to sufficiently review disclosure and witness statements with her client and in failing to recognize that evidence from her client was required when a motion to exclude his statement was denied.

There was significant mitigation involving family stressors and more

  Ms. An testified that she grew up wanting to help people. Perhaps because she helped her family with legal and other issues, because she learned English more easily, a sense of justice was always important to her. She chose to become a criminal lawyer to help the most disadvantaged people. She wanted to be an advocate for vulnerable people who are subject to the criminal justice system.

Becoming a lawyer was not easy. Ms. An did not have the advantage of family resources to support her. She worked her way through law school. She articled for a criminal law firm and was called to the bar in 1998. She went immediately into sole criminal law practice. Her early work came in significant part from the Korean community. As she developed a reputation, she attracted significant work. She has handled first-degree murders, attempted murders, drug offences including ‘Guns and Gangs’ cases, human smuggling, kidnapping, domestic assault, fraud, weapons charges and gang rape.

As one of a few senior Asian Canadian women and as the first Asian Canadian woman in criminal law practice, Ms. An has been a trailblazer. She has been recognized as such by the Law Society. Her success has required dedication and hard work. She has had to endure and overcome prejudice and racial slurs. Ms. An’s experience as a Korean woman in a changing Canadian society parallels challenges faced by lawyers from minority communities of prior generations. Ms. An’s challenges no doubt reflected a combination of race, gender, and culture. One of the witnesses was a young East Asian Canadian lawyer who spoke of his own challenges and the support and mentoring that he received from Ms. An and its importance to him. Ms. An continues to act as a mentor and educator for a number of Asian Canadian law students.

Ms. An was one of the founding members of the Federation of Asian Canadian Lawyers (FACL) in 2007. She has continued to work closely with FACL as an advisor and speaker. She has been an invited speaker at a number of law schools, both on criminal law and on the challenges and opportunities facing lawyers like her. Ms. An’s character letters include a letter from The Honourable Justice Maryka Omatsu, the first woman of East Asian heritage to be appointed to a Canadian court. Her letter confirms Ms. An’s contributions to FACL and that Ms. An represents her clients with determination, zeal and success. Another letter confirming Ms. An’s work with and contributions to FACL was provided by one of the early FACL board members. He described Ms. An’s tireless work to get the organization running and raising its profile.

Ms. An has provided pro bono services in a number of Korean community matters, some of which she described in her evidence. Ms. An particularly noted her ongoing work seeking to liberate Reverend Lim, a Korean Canadian, who has been incarcerated in North Korea and is serving a life sentence.[5]

Ms. An has also contributed significantly within the Korean Canadian community and the Korean diaspora. Since 2009, she has been the president of the Toronto chapter of the Toronto Korean Women’s International Network (KOWIN), having founded the chapter in 2009. Ms. An is vice-president of the National Unification Advisory Council (NUAC) which is chaired by the President of South Korea. She has been vice-president of the Korean Canadian Women’s Association (KCWA), the chair of the Fundraising Committee of the Peaceful Unification Council of North and South Korea and the Canadian representative of the Overseas Koreans Foundation. Senator Yonah Martin,[6] Deputy Leader of the Opposition in the Senate, has written advising that she has “witnessed [Ms. An’s] passion, outstanding leadership and many contributions to the Korean community (of not only the Greater Toronto Area but the national community), to the Republic of Korea, and to the wider Canadian society.” Senator Martin further confirms the significance of Ms. An’s work with FACL, KCWA and other organizations mentioned above.

Ms. An testified with obvious pride that she is a Master of Tae Kwon Do and a fifth dan Black Belt working on her sixth dan.

A life-long friend of Ms. An testified on her behalf, as did her husband. Character letters were filed by these two, as well as by others who have known Ms. An in legal practice. Keeping in mind the caution that friends and family will naturally support a lawyer in disciplinary proceedings, the evidence demonstrates a committed, dedicated, honourable and responsible lawyer and person.

These reasons do not recite all that was said about Ms. An in character letters and in testimony. It is clear that Ms. An is able, accomplished, a leader and a builder and that she has contributed significantly to the country, the legal community and to the Korean community here in Canada and internationally.

She has already “paid a price” for the lapse.

Ms. An described the emotional toll that what she experienced as a public shaming has had on her. Ms. An’s cultural background may have made this more significant for her than it might be for other lawyers. But there is no doubt that any good lawyer would be mortified by the reasons of the trial judge, and a prominently placed negative article in the Toronto Star. For Ms. An, the emotional impact of all of this was clearly compounded by the familial stresses and tragedies she was suffering. As a result, Ms. An has reduced her practice and has sought counselling. Her financial circumstances have become more difficult. As well, she was required to reimburse Legal Aid Ontario nearly $30,000 in respect of the mistrial. 

The Law Society had sought a two-month suspension. (Mike Frisch)