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Without Dignified Restraint

By Michael Frisch

The Ontario Law Society Appeal Division has upheld findings of misconduct and a three month suspension for incivility in two criminal matters

With respect to the Street matter, the hearing panel found that the Lawyer’s comments to Justice Brewer constituted professional misconduct. There were no circumstances that justified the Lawyer’s criticism that Justice Brewer was biased, not doing her job, or had an improper motive. The Lawyer’s criticisms were expressed without the dignified restraint required by Doré v. Barreau du Québec, 2012 SCC 12. And, while it is important for defence lawyers to raise the issue of racial profiling where it exists, a strong belief that the police and Crown were racially motivated cannot justify an unrelated attack on the judge.

The hearing panel also found that the Lawyer’s comments about Mr. Rinaldi were uncivil and constituted professional misconduct. The Lawyer’s comments ‒ that the Crown was more interested in making a criminal out of the accused (as a Black man) than getting at the truth; that the Crown was abusive in his cross-examination of the accused’s spouse because she was Black; that the Crown would lie under oath if questioned about his conversation with the accused’s spouse; and that the Crown was bellowing like a “bad-ass dog” ‒were derogatory and disrespectful. There was no reasonable foundation for any of these comments. They were offensive, unnecessary, and unjustified, particularly since the Lawyer was invited to bring an abuse of process application but declined.
 
With respect to the Ram matter, the hearing panel found that the Lawyer’s comments in which he suggested that Ms. Allan had tampered with the disclosure disc constituted professional misconduct. The Lawyer did not have a reasonable basis for his comments nor a good faith belief that the Crown had engaged in disc-tampering. The panel found that these accusations were made not merely with carelessness or even recklessness, but with deliberate intent. They were not made in the heat of the moment but after the Lawyer’s initial objection to undisclosed documents, after the lunch break during which Ms. Allan had offered to check the disc, after she then advised that it contained the missing documents, and after the Lawyer’s conversation with his client.
 
The hearing panel also found that the Lawyer breached his duty to be courteous, civil and act in good faith with respect to his dealing with the witness in cross-examination. The comment about the witness’s “little mind” and reference to the witness’s “Mommy or Daddy” were disrespectful and demeaning and sought to infantilize the complainant. There was no reasonable basis upon which these comments could have been made in good faith.
 
Conclusion
 
Ultimately, the hearing panel concluded that a three-month suspension was required to meet the goals of specific and general deterrence; rehabilitation; and the maintenance of public confidence in the legal profession. We cannot say that the penalty is unfit.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process