Shaded In Gray

An applicant was granted admission by the Tribunal Hearing Division of the Upper Canada Law Society

The applicant submitted an application for a lawyer licence on March 1, 2013, while he was in his final year of law school. In the good character section of his application he answered two of the questions in the affirmative and indicated that he would provide an explanation in paper format. On September 30, 2015 he wrote to the Law Society (the “good character letter”) disclosing that between 2005 and 2009, during his undergraduate studies, he had been found guilty of two assaults and one instance of academic dishonesty. 

During the Law Society’s investigation into the applicant’s good character, it became apparent that the applicant had also been found guilty of an earlier instance of academic dishonesty while an undergraduate. 

The question for this panel to determine is whether the applicant is now of good character.

Answer is yes notwithstanding the conduct outlined above.

The first academic dishonesty matter had been treated as minor; the second, involving allowing another student to cheat by reading his answers, was not

 In his evidence before us the applicant testified that the incident involved a woman whom he had tutored in the course and who told him that she would fail the exam without his help. “She was a beautiful girl,” he said, and he thought that maybe she would like him if he let her look over his hand. Afterwards, he could not admit that he had been responsible and tried to blame his professor, thus putting her through the ordeal of having to attend a hearing to give evidence, something that he now is ashamed to have done.

Assault One

In the summer of 2008, the applicant attended a medical technician course on the Canadian Forces Borden base. During the course, instructors demonstrated various techniques for carrying an injured person. At the end of the course there was a relay race using the piggyback technique. The applicant was paired with a female candidate. The female candidate alleged that, while she was carrying the applicant, she felt her breasts being gripped for a second by the applicant. She threw him off her back and yelled at him. The applicant denied the allegation. The female candidate filed a complaint the same day. The military police charged the applicant with sexual assault under the Criminal Code and alternatively with an act to the prejudice of good order and discipline. The applicant plead not guilty and a trial was held before a court martial.

In October 2009 the court martial found the applicant not guilty of sexual assault but guilty of the less serious and included offence of assault contrary to the Criminal Code. It sentenced him to a reprimand and fine of $500. An aggravating factor considered on sentencing was that the victim was in a vulnerable position at the time of the incident and that the applicant had taken advantage of the situation without giving any consideration to her physical or psychological integrity.

Assault Two’

The final incident took place in April 2009 while the applicant was completing his final course after his suspension from the university. At the time, he was also awaiting trial on his court martial. The applicant was approached by a woman he was acquainted with from the university, who asked if they had met before. She was smiling and conversing with him and he mistakenly thought she was interested in him. The two students were taking the same bus headed towards Downsview. On the bus, the applicant asked her for her phone number and touched her without her consent.

This incident led to the applicant being charged with sexual assault. The charges were resolved through a guilty plea to simple assault, based on an agreed statement of facts. The applicant received a conditional discharge and two years’ probation, which he successfully completed without incident. He later wrote a letter of apology to the victim.

The applicant’s recounting of the details of this incident changed significantly during the course of the Law Society’s investigation.

 In the applicant’s 2015 good character letter, he stated that he had incorrectly assumed that the female student was flirting with him and tried to hold her hand, while also trying to put his hands around her shoulder. 

During his interview in May 2016, the applicant acknowledged that he had tried to touch the victim’s buttocks area and show her “forms of Jamaican dances and stuff,” as if “it is a night club perhaps.”

In his evidence before us the applicant testified that he asked for the victim’s telephone number and recalled trying to show her dance moves.  He agreed that he had said some things that he is now ashamed of and stated that he feels terrible about the way she would have felt. He also acknowledged that he had touched the victim’s buttocks without her consent. He testified that he now realizes that he had dominated her and asserted his own will unilaterally.

The applicant’s explanation for this misconduct was that at the time, he had suffered from a lack of emotional awareness and empathy for others; and in particular for this complainant, who was victimized and harmed by his actions.  He felt sick about what happened at the time, but described “a force in me” telling him that he had to make it in Canada and find a girlfriend. He also described his behaviour as vicious, uncivilized and immoral. It was clear from the applicant’s explanation, and his obvious emotional distress, that he still struggles to find a satisfactory explanation for his behaviour in connection with this incident.

The tribunal recounted his rehabilitative efforts and concludes

  As is so often the case in the Tribunal’s process, we have to weigh the evidence and the factors we have gleaned from the jurisprudence and apply our collective judgment to a situation which is not black or white but shaded in gray. And, as outlined earlier, certainty is not required. The applicant need only meet his burden on the balance of probabilities.

The applicant has come a long way on what must have been a very difficult road for him. He has satisfied us on a number of elements of good character.  The remaining concern is with his candour and integrity in connection with the application process.

 In considering that last concern we quote from a different part of the good character essay the applicant submitted in 2016:

Despite being under a lot of stress and psychiatric treatment, I decided to go back to University and complete an education that could help me both in personal as well as professional life. I chose to be a professional and even though it would mean that I had to come in terms with my wrongdoings and correct myself and avoid impulsive behaviours that I made when I was under stress and suffering from depression and at times feelings of not fitting in as a result of growing up with cultural barriers. I have been working on my behaviour ever since, trying to figure out how I can avoid misunderstandings and act ethically at all times especially when helping my clients.

Having been through the academic and military tribunals as well as the conditional discharge at a provincial court room has given me the courage to know that I was wrong, that I must be remorseful, that my punishment has been fair, and that I needed sufficient time and the legal education to fit in society and be a productive member of the Ontario legal professionals.

These words appear to be heartfelt and are consistent with the applicant’s evidence before this panel. In them the applicant candidly concedes that he was wrong, that his punishment was fair, and that he continues to work on his shortcomings. In our view, on balance, the applicant has shown sufficient candour and insight to give us comfort that he is now ready to be a professional and that he understands and will meet his professional obligations. 

The application is allowed. We would like to consider whether we need to impose any conditions on the applicant’s licence, given the unusual circumstances of his current arrangements with Ms. Noohi’s office. Although we asked for and received written submissions from the parties on this issue, we would like to hear brief oral submissions as well. We also would like to hear brief oral submissions on costs, at the same time. The Tribunal Office will be in touch with the parties to arrange an appropriate date.

(Mike Frisch)