What counts as good character?

Can an aspiring lawyer who has admitted to sexually abusing children be of good character?

It’s a question that the Law Society of Ontario (LSO) and the Ontario Court of Appeal are grappling with as they go back and forth in the unusual case of a man who has admitted to past abuse, but is trying to become a licensed lawyer. 

Becoming a lawyer requires years of education and a significant amount of money. But to become a licensed lawyer, you also need to have “good character.” A legal regulator, such as the LSO, has a duty to protect the public interest in its licensing activities and in the management of professional standards. Anyone who wants to be licensed must complete an application, which includes a good character questionnaire, says Ben Kates, a litigation partner and the chair of the regulatory practice group at WeirFoulds in Toronto.

“That questionnaire will look to flag certain elements of past behaviour that could be a cause for concern when it comes to good character,” he tells host Alison Crawford in the latest episode of Verdicts & Voices. 

“Depending on how the department views that answer, there may be an investigation, and that investigation then could lead to a good character hearing.”

Last year, the Law Society of Ontario refused to license a man identified only as “AA” who had confessed to sexually abusing three children, including one of his own. The man argued that he was now of good character because time had passed without any further offences. He has had therapy, expressed remorse, and submitted psychological and medical reports that suggest his risk of reoffending is low.

However, he also failed to disclose the facts of his sexual abuse against children when he first sought to be licensed back in 2012.

Under the Law Society Act, the LSO doesn't have discretion to admit or issue a license to someone who meets the criteria for membership, nor can it refuse a license without it going to a hearing, Kates says.

“Essentially, if there is cause for concern about whether an applicant meets the good character criteria, they will refer it to a hearing. And then we have what is properly referred to as a licensing hearing, but more commonly known as a good character hearing.”

The standards followed to determine good character are taken from the 2009 case, Claude Hyman Armstrong v. Law Society of Upper Canada.

Nadia Liva, a partner at Liva Freeman Dent, LLP in Toronto, who has handled more than 60 cases before the Law Society Tribunal, says the Armstrong factors consider the nature and the duration of the misconduct, whether the applicant can show remorse, what rehabilitative efforts that individual has gone through, and the success of those efforts.

“The applicant must also show what conduct they've engaged in since the misconduct to show what their character is today.”

That’s because the test isn’t a question of ‘are you always of good character,’ but rather, ‘are you of good character today?’

“It's not a test to perfection. It's not a test that considers the risk,” she says.

“It is truly a moment in time when you are before the panel as they consider you.”

When AA’s second license application was denied in 2019 (he had withdrawn his initial application in 2017), he appealed to the Tribunal and was granted a license. The LSO appealed that decision, which was upheld, prompting the LSO to bring an application for judicial review.

The divisional court said there was nothing wrong with what had come before. The LSO appealed to the Ontario Court of Appeal, which found there had been errors made and sent the matter back to the divisional court to be re-heard, says Kates, who was co-counsel for the LSO before the Court of Appeal.

The latest development is that AA has filed an application for leave to appeal to the Supreme Court of Canada, so he can avoid a rehearing and simply obtain a license if he is successful.

Kates says there’s a lot that courts and tribunals have to consider when concerns about an aspiring lawyer’s character arise in cases like this, including upholding public confidence in the legal profession.

“That was essentially the crux of what it said was the problem with the decision [to grant AA a license].”

Essentially, he says the Court of Appeal went through a “mechanical recitation” of the Armstrong factors, but didn't take a step back and consider it through the lens of public interest.

“The duty to promote and protect the public interest of the law society is intertwined with upholding public confidence in the legal profession and thereby public confidence in the administration of justice.”

So, how important is transparency in these kinds of matters, and what should members of the public have the right to know about a lawyer they may hire to represent them?

“The Law Society Tribunal believes in and upholds the open court principle, which is, ‘we put it all out there for you,’” Liva says.

“However, there are certain interests that we, as a society, hold dear, and it's the protection of the children.”

That trumps the open court principle in this case because of the odd circumstances of one of AA’s victims, who doesn’t even know she was sexually abused.

“His eldest daughter, who is now an adult, is unaware of the misconduct her father engaged in, in relation to her,” Liva says.

There has been psychological information provided, and the girl’s mother (AA’s ex-wife) has also spoken up about the appropriate time to tell the child, who is now an adult, about what happened.

“When looking at that individual's interests and the harm that could be caused, the Tribunal balanced the openness principle with the interests of that one individual in particular and decided that that person's interest trumps the openness principle as I understand it,” Liva says.

Listen to the full episode to learn more about what could be improved about the good character hearing process, if there are concerns that the current process to determine a lawyer’s good character is too subjective, and more about AA’s case.