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In A Biological Sense

By Michael Frisch

The Ontario Law Society Hearing Division has found misconduct in a lawyer’s affidavit

Mr. McCallum swore an affidavit in a civil action involving alleged sexual abuse of a girl in a foster home by her foster father. The affidavit was for the purpose of a status hearing at which the issue was whether the action should be dismissed for delay.

Mr. McCallum accused the plaintiff’s lawyer of misrepresentation for saying that the sexual abuse took place while the plaintiff was “in childhood”. Mr. McCallum testified that the plaintiff was “a sexually mature young woman, not a ‘child’ as conventionally understood”. This statement gave rise to this conduct application.

 Mr. McCallum now says that he intended to observe that the plaintiff was sexually mature in a biological sense and that his concern was that plaintiff’s counsel intended to evoke disgust by impliedly alleging pedophilia in referring to “childhood”.

 The Law Society alleges that Mr. McCallum failed to act honourably and with integrity in making the statement.

Findings

 We conclude that, in making the impugned statement, the plaintiff was “unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.” As the merits were not in issue, fairness did not justify making the impugned statement. The impugned statement had no probative value.

While it may well be that Mr. McCallum did not recognize the implications of his impugned statement, we do not accept that making the impugned statement was a mere error of judgment. It does not appear that judgement was actually applied. Mr. McCallum’s affidavit is replete with hyperbole, derision and contempt. His approach was ill-tempered and self-indulgent. He does not really recall why he said what he said. There was no legal basis to have done so.
 
We therefore conclude that making the impugned statement tended to bring discredit upon the legal profession and that Mr. McCallum acted dishonourably in doing so from the perspective of the administration of justice.
 
We conclude that Mr. McCallum breached Rule 2.1-1 in making the impugned statement from the perspective of his obligations to the administration of justice as well as from the perspective of his obligations to his client.  
 
A penalty hearing will be scheduled. (Mike Frisch)

Posted in:
Bar Discipline & Process