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Appeal Rejected

By Michael Frisch

The Ontario Law Society Tribunal Appeal Dvision rejected the Law Society’s appeal of a decision to admit an applicant

The Law Society appealed a decision finding the Respondent to be presently of good character and eligible to be licensed as a Lawyer ‒ The Respondent had engaged in incidents of sexual abuse of minor children in 2009 and previously applied to be licensed in 2012, but was not forthcoming about these incidents, and discontinued his application – He later re-applied for a licence to practise law and was found by the Hearing Division to be presently of good character ‒ They further ordered a restriction that he not meet with minor children while unsupervised  – The Law Society appealed this decision, arguing that the Hearing Division erred in its assessment of the evidence and in relation to the restriction on the Respondent’s licence ‒ The panel found that the Hearing Division did not misapprehend the evidence; that there had been no procedural unfairness in the ordering of a practice restriction, as this issue was clearly dealt with during the hearing; and that this restriction was not inconsistent with the finding of good character ‒ The appeal was dismissed, and parties were invited to make submissions regarding costs.

Facts

In a two-month period in 2009, AA engaged in sexual abuse of young children, including one of his own, on three occasions. It involved sexual touching of the children by him, and sexual touching of him by them.

After these incidents he went to law school, and then applied in 2012 for licensing by the Law Society of Ontario. In that application, he did not disclose his sexual misconduct, and he was about to be called to the bar in 2014 when the Law Society was alerted by an anonymous note about the earlier incidents.
 
 In the investigation that ensued, AA dishonestly withheld medical records and other information about his serious sexual misconduct.
 
AA discontinued that licensing application in 2017. Two years later, he reapplied, and it was this second application that led to the hearing panel decision that came before us on appeal.
 
In an agreed statement of facts, the respondent admitted his sexual misconduct and his dishonesty in the first licensing application. He accepted his onus to prove present good character, and he asserted that he satisfied this onus through his full acknowledgment of responsibility and disclosure as well as other actions since 2017, together with expert and fact evidence of other witnesses about his likely future behaviour.
 
In opposing the licensing application, the Law Society relied on AA’s sexual behaviour in 2009. The regulator also asserted that his conduct since 2017 and his own expert evidence did not support his assurances that he had fully acknowledged and addressed the behaviours that led to concerns about his character.
 
In its reasons, the hearing panel summarized the evidence of AA’s seven witnesses, as well as the extensive medical, psychological, psychotherapy, psychiatric and other documentation relating to the assessment and treatment he received in 2010-12 and since 2017. The witnesses included AA; a member of a therapy group he attended; the clinical assistant to his now-retired psychologist; a religious mentor; his father; and AA’s common-law spouse.
 
The panel found that since 2017, the respondent had been open and transparent about acknowledging his sexual misconduct, obtaining treatment for it, and providing information to the Law Society and others as necessary. He had confronted his past and made a conscious decision to reverse the self-deception, be candid and “live with remorse”. He had the support of independent health care professionals with whom he had participated in therapeutic rehabilitation, as well as his religious mentor, who described him as “‘deeply regretful’ and looking for purpose”.
 
Alongside AA’s treatment and rehabilitation efforts, the panel took note of other aspects of his conduct during what it regarded as a significant time period that had elapsed since the proven misconduct in 2009 and since his full disclosure in 2017. There was no evidence or allegation of similar acts, and the panel considered that the respondent had made “sincere and concerted” attempts to address both the sexual misconduct and his dishonesty in concealing it.
 
The hearing panel also made factual findings, dismissing concerns raised by the Law Society that while working as a clerk in his father’s firm, AA dishonestly allowed himself to be mischaracterized as a licensee or otherwise engaged in unauthorized practice.
 
After reaching the conclusion that the respondent was a person of good character, the hearing panel formalized AA’s undertaking to meet with minor children only under supervision by making this a term of his licence.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process