Experience With Racism Mitigates Sanction

The Ontario Law Society Tribunal Hearing Panel imposed a three-month suspension and a fine, concluding that Respondent’s experiences with institutionalized racism mitigated the sanction

In reasons for decision dated April 26, 2023, we found Mr. Guiste engaged in professional misconduct when, in defending his clients in the Street and Ram trials, he failed to treat the Court and others with courtesy and respect, failed to serve his client to the standard of a competent lawyer, and acted without integrity. We dismissed Mr. Guiste’s motion for a stay based on abuse of process.

Respondent

Mr. Guiste was called to the bar in Ontario in 1993. At the time of the events that led to the finding of misconduct, he had 20 years’ experience practising criminal and civil litigation in the Greater Toronto Area. As stated in the reasons on the merits, Mr. Guiste is Black and often represents Black and racialized people, who have historically not been well-served by the justice system. We accepted his evidence that this is not an easy task.

Mr. Guiste submitted that race played a role in the Ram and Street trials. Mr. Guiste was defending Mr. Street, a Black man, and Mr. Ram, a racialized man, on domestic violence charges. Both men believed they were wrongly accused. Mr. Guiste intended to advance a motion alleging racial profiling against the police in both cases. As stated in our reasons on the merits, Mr. Guiste described the importance of principles established in R. v. Brown in defending his clients where racial profiling is alleged.

Misconduct

•           Mr. Guiste’s attacks on the judge’s impartiality, integrity and competence in the Street trial were disrespectful and demeaning and without any reasonable basis. His intemperate language was not justified by his duty of resolute advocacy nor his expressive rights under the Charter, nor was it justified by the context in which his comments were made. Further, we found the comments were not made in good faith.

•           Mr. Guiste’s comments that the Crown in the Street trial, Mr. Rinaldi, was racially motivated were offensive and uncivil and without any reasonable foundation or legal purpose. We found that none of Mr. Guiste’s attacks on Mr. Rinaldi were made in good faith nor were they justified by his expressive rights under the Charter. We found that Mr. Guiste did not honestly believe that Mr. Rinaldi was racially motivated when he made his comments and that alleging racial motivation could serve no purpose that advanced his client’s cause.

•           Mr. Guiste was uncivil when he made a serious allegation of prosecutorial misconduct against the Crown in the Ram trial, Ms. Allan, without a good faith or reasonable basis. He alleged that Ms. Allan had tampered with the disclosure disk which, if proven, would have been a criminal offence.

•           Mr. Guiste failed to be civil and act in good faith with a witness in the Ram trial by making comments that were disrespectful and demeaning and sought to infantilize the witness.

•           Mr. Guiste failed to serve his client, Mr. Ram, to the standard of a competent lawyer by failing to:

o   know general principles of law and procedure;

o   create and implement a sound strategy for Mr. Ram’s defence;

o   understand and take necessary steps to obtain disclosure of the DVP;

o   prepare for numerous aspects of the trial and adapt to developments and rulings;

o   attend to the evidence throughout the trial and consider the sufficiency of the evidence before closing his case; and

o   prepare for trial and execute a defence strategy.

•           Mr. Guiste failed to act with integrity and encourage public confidence in the administration of justice by disrespecting the court, opposing counsel and a witness without a good faith or reasonable basis and by failing to properly prepare to effectively defend his client at trial.

Priors

Mr. Guiste has two prior findings of professional misconduct, the first in 2006 for swearing a false affidavit and the second in 2011 for incivility. It is the second finding of misconduct that is most relevant to this penalty determination.

•           used sexually explicit, rude and profane language, and raised his voice during a mediation in a campaign of rude, aggressive and intimidating behaviour;

•           communicated in an abusive, offensive and otherwise unprofessional manner with two different opposing counsel and their staff; and

•           failed to treat the Court with courtesy and respect in his submissions to the judge.

Mitigation

The length of the suspension is mitigated by extenuating circumstances. Mr. Guiste’s constant struggle against institutional anti-Blackness and his exposure to anti-Black racism in his life, his practice and before the courts has impacted his advocacy around unconscious bias and his temperament. He serves a marginalized community that is not well served by the profession in general. Further, we could not conclude he was likely to reoffend.

(Mike Frisch)