Major Misconduct
The Ontario Law Society Hearing Division found misconduct in a former military officer’s assertion that he was presently a Major in his dealings with miltary police
On August 2, 2021, the Lawyer, Dennis Kashmeel Keevantoza McKöena, misrepresented himself to the military police as a serving member of the military. On August 18, 2021, he was charged with personating a public officer pursuant to s. 130 of the Criminal Code. These events also formed the basis of a complaint to the Law Society filed on February 23, 2022 on behalf of the Judge Advocate General (OJAG or JAG).
The Lawyer states that he was in a dissociative state during the August 2 conversations and, for that reason, was unable to recall identifying himself by his former rank of Major or as a member of the OJAG and why he denied doing so when asked by Law Society’s investigator. He told us his denials were the truth as he knew it at the time. When the investigator played a recording of one of the conversations to him, he testified that his surprise and shock caused him to continue to deny the allegations. Given his mental state, he argues that he never intentionally misrepresented himself to the military police, never intentionally misled the Law Society during its investigation, and never intentionally failed to conduct himself with honour and integrity in accordance with Rule 2.1-1 of the Rules of Professional Conduct.
The Lawyer also failed to report that he was charged with committing the criminal offence of personating a public officer to the Law Society as soon as reasonably practicable as required by ss. 2(1)(a)(i) and 2(3) of By-Law 8 and Rule 7.1-4.4. The Lawyer says he always intended to report the charge but his mental health conditions, the ongoing pandemic, and his need to care for a seriously ill child explain his failure to do so.
The Lawyer spoke movingly about his challenges in living with Post-Traumatic Stress Disorder (PTSD) with dissociative features and depression. We accept the Lawyer’s mental health and family challenges are serious and genuine. However, on the evidence before us, we are unable to find the Lawyer met his burden to show, on a balance of probabilities, that his mental illness explained or caused him to misrepresent himself and to mislead the Law Society in breach of his professional obligations. We also find he failed to report the criminal charge to the Law Society as required. Our reasons for these findings follow below.
The client had a traffic matter
Client A retained the Lawyer to represent her with respect to a traffic summons. On July 21, 2021, the military police (MPs) stopped her car on the Petawawa military base. Her former spouse, a senior non-commissioned officer (NCO) in the CAF, was suspected of driving while impaired. Client A was neither driving nor in the car at the time of the traffic stop. Her former spouse was detained but not charged. However, Client A received a traffic summons for having an uninsured vehicle because the vehicle was registered in her name.
The conversations
The Lawyer testified that he believed he had identified himself as a former Major or former JAG officer to the MPs. In the June 23 interview he told the investigator:
In fact, the only reason I’m able to be retained and – and – and represent this person is because I’m no longer in the military as a military lawyer. And I brought – I made this point clear in my conversation with – with the MP’s that the reason why I know that they’re – the – the legislation they’re purportedly using to charge my client is incorrect is because my client is not a member of the military. My client – they don’t have jurisdiction over my client, and my client was not on the base.
The recording of the call contradicts him. It confirms the Lawyer identified himself as Major four times and as a JAG officer twice. Further, all the military police witnesses testified that they believed they were speaking to a JAG officer. It appears that they did not understand that a JAG lawyer could not or would not represent a civilian client in those circumstances.
A second call
MCpl. Belisle testified that the Lawyer told him he was a JAG for Petawawa and demanded a synopsis of the incident, disclosure, as well as an explanation of the statutory authority supporting the charge. The MCpl. testified that the Lawyer would not listen to his explanations. In the end, and because it was not general practice to receive a call from JAG on a traffic offence, MCpl. Belisle told the Lawyer he would consult his chain of command. Ultimately, the MCpl. discovered the ticket had not been forwarded to the court and it was now out of time to do so. Therefore, the charge never proceeded.
The Law Society investigation
The Lawyer responded promptly to the investigator’s March 15, 2022 letter advising him of the investigation and requesting information about the allegations. In his March 22 response, he confirmed that he had served in the CAF as a military lawyer with the OJAG and retired in 2012 with the rank of Major. With respect to the allegations, the Lawyer wrote that he told the Petawawa military police he was retained by Client A and was calling about the charge against her, which he considered suspicious. His response then continued:
I have no doubt in my mind that these false allegations that were made against me is a direct result of raising legitimate legal concerns about the conduct of the CFNIS and the CFMP publicly noted failures of their conduct in performing thorough and proper police investigation into serious high profiled sexual assault incidents by senior ranking military officers.
I had every intention of reporting this matter and the allegations or charges made against me to the Law Society of Ontario (LSO) membership as required. Unfortunately, while addressing these false charges against me, I was also attending to a serious and urgent health matter concerning my family member due to Covid – 19 contagion. I had planned to provide a full and accurate report to the LSO once urgent health issue was contained.
Mental health defense
We find this evidence implausible for two reasons. The Lawyer initiated the first call and did not hesitate or pause before identifying himself as Major McKöena from the outset. Second, if fear for his personal safety or the safety of others triggers his dissociation, he has not explained how or what was threatening or unsafe about making the first or second phone call, particularly when he intended to speak with individuals far below him in rank and authority. The tone and content of his communications are inconsistent with either a freeze or fawning response. Rather, in our view, his manner, tone and demands are consistent with what he described as the military’s attitude that “senior officers are never wrong.”
The Lawyer has failed to establish, on a balance of probabilities, that his mental health conditions are a credible defence to the allegation that he misrepresented himself to the military police on August 2, 2021. Having made that finding, we are unable to find his mental health conditions are a defence to the allegation he misled the Law Society during its investigation. We also have found the Lawyer failed to report the criminal charge to the Law Society as soon as reasonably practicable.
A date will be set for a hearing on penalty. (Mike Frisch)