Delay Does Not Allow Character Requirement Waiver

The Ontario Law Society Tribunal Hearing Division denied the motion of a bar applicant to waive the good character requirement for admission and proceed to grant her a license.

Summary

In the context of a good character proceeding, AB brought a motion for a stay of the good character hearing process on the grounds of inordinate delay; because she was wrongly asked a question in the licensing application, which triggered inappropriate disclosure of a youth criminal conviction; and the investigation itself was an abuse of process ‒ She also requested an order that she proceed to licensing, bypassing the good character hearing and not repeat articling or bar examinations ‒ The motion is dismissed ‒ While there has been inordinate delay and significant prejudice, the high threshold of bringing the administration of justice into disrepute has not been met; the investigation was not an abuse of process; and even if the application question was improper, AB would have disclosed the youth conviction ‒ The Tribunal does not have jurisdiction to in effect waive the good character requirement and cannot order that AB proceed to licensing.

Application

 In November 2016, while in her last year of law school, AB applied to become a licensed lawyer. She completed articling in September 2018 and by June 2019 had passed the barrister and solicitor licensing exams. She is not yet a licensed lawyer because a third requirement of licensing, confirmation that she is of good character, is not yet complete.

The character issue

In December 2005, AB was found guilty of first-degree murder committed two years earlier when she was 15 years old.

In June 2006, AB was sentenced under the YCJA to the maximum youth sentence of 10 years. Six of those years were to be served in custody and the remaining four years to be served under conditional supervision.

Justice Duncan presided over the criminal trial and the sentencing hearing. He also presided over annual reviews of the sentence. He noted that AB and the co-accused made exceptional strides toward rehabilitation. Conditional supervision, scheduled to end in June 2016, ended on December 15, 2014; as a result, the initial 10-year sentence was reduced to precisely 9 years.

 AB completed an undergraduate degree in 2013 and a law degree in 2017. She intended to practise law in Ontario.

Application question with respect to disclosure of juvenile offense

The “Completing the Lawyer Licensing Process Application” guide (the 2016 guide) provided the following guidance with respect to how to answer Question 1:With respect to Question 1 of the Good Character section of the application, answer “no” if: …

(d) under the Young Offenders Act or Youth Criminal Justice Act, you were found guilty of an indictable conviction offence and it has been five years since all dispositions in respect of the offence were made or completed, whichever is applicable.

AB understood that subsection (d) applied to her circumstances. She testified that she received incorrect legal advice at the time she completed the application: to simply be candid on her application. She was also advised by another lawyer to wait five years and then answer Question 1 in the negative. Of the conflicting advice she received, she followed the former in an effort to be transparent about her past.

Her answer to the bar application character section

On December 15, 2005, I was found guilty under the Youth Criminal Justice Act, of the first degree murder of my mother. There were two other co-accused Young Persons. I received a ten-year sentence that was terminated early on December 15, 2014, for good behaviour. I received a youth sentence because Justice Bruce Duncan took into account my abusive childhood and CAS involvement. It will be 5 years from the completion of all dispositions on December 15, 2019. I have a [young] son and am happily married, and am by all accounts a prosocial, contributing member of society. It would be a setback to postpone my licensing until after December 15, 2019. I feel it is more appropriate to be transparent and candid about my conviction, particularly as my crime does not relate to the practise of law and took place 13 years prior (January 18, 2003), when I was 15 years old.

Applicant sought relief in light of the significant delay in the process

We considered the nature and purpose of the proceedings, the length and causes of the delay and the complexity of the facts and issues in this case. We find that there was delay at the investigative stage but both parties have contributed to the delay since the investigation concluded.

…We are not satisfied that there are facts and legal issues in this matter that are sufficiently complex to have warranted the passage of seven years (November 2016 until December 2023). We say this knowing that this is the first time that a matter of good character investigation into a youth conviction has appeared before this Tribunal. It raises issues of balancing the Law Society’s interest in maintaining public confidence of its regulation of the legal professions with the privacy and procedural fairness rights of the applicant.

No authority to grant the relief sought

To grant the relief sought by AB would require bypassing the Law Society’s  authority and the legislative and by-law licensing requirements and acting beyond our own authority. Put simply, we would be exceeding our jurisdiction. We have no authority to waive the legislative good character requirement for licensing. The Tribunal’s role is to conduct a hearing to determine whether the good character requirement has been satisfied.

Wikipedia has a detailed post that appears to describe the crime at issue, which is known as the Bathtub Girls murder

The Bathtub Girls murder took place in Mississauga, Ontario, Canada, on January 18, 2003. Two sisters, whose identities along with the victims are protected under Canada’s Youth Criminal Justice Act (YCJA) as they were minors at the time of the crime, conspired to murder their alcoholic, neglectful mother and make it appear as if she had accidentally drowned while taking a bath, in order to claim the insurance money. The death was not considered suspicious for almost a year.

Eleven months after the murder, a young male came forward to the police, informing them that one of the sisters said that the girls drowned their mother. Thus, an investigation began that included testimony gained when the young man was wired for audio and video, assessment of text messages and internet searches on a computer they owned, and interviews of their friends. The girls were arrested in January 2004. In late 2005, they went to trial and were convicted of first degree murder. In June 2006, they were sentenced to ten years, six years of incarceration and four years of community supervision, the maximum sentence for juveniles under the YCJA. Both have since completed their sentences and been released.

The crime was the subject of a 2014 movie Perfect Sisters. (Mike Frisch)