The badge of good character

Log in to listen to this article

It's great to have you back for another episode of Verdicts & Voices, a weekly legal affairs podcast from the Canadian Bar Association. And I'm your host, Alison Crawford.

Right across the country, law societies require all licensed lawyers to be of good character. But what does that actually mean? And how do they figure that out? Joining me to tackle these tricky questions are two fine people who are experts in this area of administrative law.

Nadia Liva practices criminal law along with regulatory and disciplinary defense. She's recognized for, among other things, her experience defending lawyers at disciplinary hearings. And Ben Kates is the chair of the regulatory practice group at the firm WeirFoulds. And both are in Toronto.

Welcome to the podcast.

Nadia Liva

Thank you for inviting us.

Ben Kates

Thanks for having us.

Alison

So, Ben, I'd like to start with you. How does a law society determine if a lawyer is of good character?

Ben Kates

Well, that is a big question to start on. First of all, it varies by law society. So, my familiarity is with the Law Society of Ontario. There are different practices all across the country and they vary in terms of, you know, the minutiae, the publicity, there are different elements to it. But essentially, speaking about the Law Society of Ontario, there's an application process. Anyone who wants to be licensed – and I should emphasize, as a lawyer or as a paralegal, when we talk about licensees, it's both legal professions – needs to fill out an application, and that includes a good character questionnaire.

And essentially, that good character questionnaire will look to flag certain elements of past behaviour that could be a cause for concern when it comes to “good character.” And depending on how the department views that answer, there may be an investigation, and that investigation then could lead to a good character hearing.

So, under the Law Society Act, the Law Society doesn't have discretion to admit someone, to issue a license to someone who meets the criteria for membership. And they don't have the ability to refuse a licence without it going to a hearing. So 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.

Alison

Nadia, how often are good character assessments… How often are lawyers not successful in meeting that requirement?

Nadia Liva

So, just from the application perspective, when you identify an issue on your licensing application, the law society in its investigative process may decide, when you give enough information, they complete their investigation, that it doesn't have to actually go to hearing. So not every answer to, yes, I have a criminal record or yes, I have a civil judgment against me or yes, I've been fired, will necessarily lead to a good character hearing. So that's sort of one group of people. So, of the students that have come to me in the past, I would say probably 70% don't end up having to go to hearing because we're able to address the issues during the investigative process. Of the remaining percentage, I would say 80%, 90% actually are successful. The ones that I've represented. And I'm not tooting my own horn, but done properly and with the right sort of information, a hearing panel can determine whether someone is of good character, in my opinion.

Alison

And what standards do they use? Like, I've heard of this, the Armstrong standards. So, what are those?

Nadia Liva

The Armstrong factors consider the nature and the duration of the misconduct, whether the applicant is able to show remorse, what rehabilitated efforts that individual has gone through and the success of those efforts. And then the applicant must also, sort of, show what conduct they've engaged in since the misconduct to show what their character is today. Because the test is not, are you always of good character? But rather, the test is, are you of good character today?

Alison

Yeah, and no test can guarantee if you'll be of good character in the future.

Nadia Liva

No, it's not a test to perfection. It's not a test that considers the risk. It is truly a moment in time when you are before the panel as they consider you.

Alison

So, what happens, Ben, if someone wants to appeal a finding when a lawyer is found to not be of good character, and a lawyer wants to appeal that? Where do they go from the law society?

Ben Kates

So, the first step, the Law Society Tribunal, which is the adjudicative body for these things, consists of two different divisions. There's a hearing division and there's an appeal division. So, there's actually room for an internal appeal within the Law Society framework if someone is unhappy with the result of a good character hearing. And that can be either the applicant or the Law Society. But from there, unlike discipline matters, there's no statutory appeal route to Divisional Court. And so, it comes by way of application for judicial review.

Alison

I see. So, it goes from a law society tribunal to a Divisional Court in Ontario. And then, after that, you could seek judicial review from the Ontario Court of Appeal.

Ben Kates

Well, that would be an appeal of the judicial review. So, there's an application for judicial review that comes out of the Law Society Tribunal Appeal Division. And then the next appeal route after the Divisional Court would be an appeal to the Court of Appeal.

Alison

So, last year, the Ontario Law Society refused to license a man who had confessed to sexually abusing three children, including one of his own. And he's been only known as AA because no one wants to identify the child involved. The man argued that he was now of good character because time had passed without any further offenses. He'd had therapy and expressed remorse. He even submitted psychological and medical reports that suggested that his risk of reoffending was low. And he appealed to the Law Society Tribunal. Now, Ben, I understand you had a role in this. Would you be able to explain that?

Ben Kates

Yes, and first I should mention, so I was counsel, one of the co-counsel for the Law Society on the appeal before the Ontario Court of Appeal. And I should emphasize, give the disclaimer, that any opinions are my own and not that of the Law Society, of course. So, he was referred to a hearing, in that the Law Society was not satisfied that he was of good character. And then when I talk about the Law Society, I’m talking about the licensing body, the prosecutorial arm, not the tribunal. So, then there was a hearing before the hearing division, and he actually was granted a licence. And it was the Law Society that appealed to the appeal division. Again, the appeal division upheld that granting of a licence. And then the Law Society brought an application for judicial review to the Divisional Court. The Divisional Court said there was nothing wrong with what had come before. And then there was an appeal to the Ontario Court of Appeal. And it was at that juncture that the Court of Appeal pronounced that there had been errors below and sent the matter for a rehearing before the hearing division.

Alison

Yeah. And what's the latest on that?

Ben Kates

The latest on that is that Mr. AA brought an application for leave to appeal to the Supreme Court of Canada. So, the story remains untold.

Alison

Didn't the Ontario Court of Appeals say it would go back to the Law Society Tribunal for another hearing?

Ben Kates

Correct. So, he is attempting to appeal that Ontario Court of Appeal decision, in which case he would not have to have a rehearing, he would simply receive a licence if he were successful.

Alison

What consideration do courts and tribunals have to give when it comes to the law to upholding public confidence in the legal profession when a case like this comes up? I'll start with you, Ben.

Ben Kates

Well, if you ask the Court of Appeal, I would say a lot. And that was essentially the crux of what it said was the problem with the decision below. So, what the Court of Appeal essentially did was engage in a review of the statute, the text, the context, the purpose of the good character requirement. And it said, looking back at all sorts of jurisprudence that has come, whether at the Law Society Tribunal or different courts, that one of the roles, the duty to promote and protect the public interest of the Law Society, is intertwined with upholding public confidence in the legal professions, and thereby public confidence in the administration of justice. And so, one of the key areas that it focused on was that the Law Society Tribunal, when it granted AA his license, essentially went through a mechanical recitation of the factors that Nadia cited, the nature and the duration of the misconduct, the remorse, et cetera, passage of time and whatnot, and didn't take a step back and consider it through the lens of public interest. And that was one of the errors and one of the bases on which it sent the matter back to the hearing division.

Alison

And, Nadia, that's one thing I found—there are several things I found unusual. First of all, I think the average person on the street would say, oh, if you've admitted to this kind of conduct, I don't think I want you to be my lawyer. The anonymization, I suppose, of his name, to me, that seems a little odd. I know why. But what do you think that does in terms of transparency and the need for transparency in these kinds of matters?

Nadia Liva

Well, the Law Society Tribunal believes in and upholds the open court principle, which is, we put it all out there for you, just to sort of simplify it. However, there are certain interests that we, as a society, hold dear, and it's the protection of the children in this case, specifically, that sort of trumps the open court principle in this case, because his eldest daughter, who is now an adult, is unaware of the misconduct her father engaged in in relation to her. There has been psychological information provided and her mother, who is now the ex-wife of AA, also has spoken up as to what she feels is appropriate and the appropriate time to tell the child, now an adult, of what happened. And so, 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 it is in that person's interest, that person's interest trumps the openness principle as I understand it.

Alison

And where does the, sort of, the right of the public to know who they're hiring as counsel?

Ben Kates

There has never been an anonymization order made and given effect in circumstances where AA actually practiced law. So, the original order that was made in 2022 before the hearing division was in the context of a preliminary motion before a decision had been made. There was another order that was made at the Divisional Court that was an interim order where the court balanced the interests that Nadia was referring to, but commented that the balance might be quite different were AA to receive a licence. Now the Divisional Court in its ultimate decision did not disturb that order, but that's one of the things that the Court of Appeal had a few things to say about. And when you get to the Court of Appeal decision, the decision was made, rather, to maintain the anonymity in a context where he was not receiving a licence. So, I think a court has yet to squarely grapple with the issue. The key balancing issue here is, as you discussed, the public's right to know who they're hiring and whether the person they're hiring has engaged in this type of conduct and the protection of the victims, both of which are legitimate concerns here. And I think it's interesting when you… I sort of think of good character hearings as fulfilling a couple different functions. Obviously, there's the sort of gatekeeping function. Is this the type of person that should be admitted into the professions? But it's also kind of a transparent vetting and scrutinizing of the character of this individual. And that in itself, I think, serves a purpose, if you are able to know who that person is. Because if I'm someone prospectively looking to hire a lawyer, I can punch the name into CanLII and find out whether this is a person that's been the subject of a good character hearing. And even if they have been granted a licence, I have the agency to decide for myself if this is someone I want to enter into that sort of sacrosanct relationship with. But when you have anonymity, there's a disconnect there.

Alison

Yeah. It just even seems weird. It does seem sort of weird here, you know, Ben and Nadia, that we're talking about this case, and his daughter still doesn't know.

Ben Kates

I'll use a neutral term and say that it's an odd scenario. When you look at the criteria… And I will say that what the court of appeals said was that, you know, we've got these Armstrong factors, which are really just a framework of analysis. They aren't meant to be a scorecard, boxes to check. And the tribunal really, I think there was a direction very much not to treat it that way. But it's useful to sort of have a rubric for consistency and certainty in decision making. And one of the criteria is the passage of time. And one might think that if not enough time has passed to let the victim know about what's going on, perhaps not enough time has passed to make the choice to enter this profession.

And I think it's important to emphasize that it is a choice. This is voluntary. Being a member of any profession is a privilege, not a right. And so, this applicant has made the decision to have themselves scrutinized in this way. That was an active choice. They didn't have to do that. And in so doing, they have put their entire life, including their family, under the microscope.

Alison

Yeah. Nadia, is there anything you would recommend for future hearings that might prove to improve the process? I know we had mentioned in-person appearances, perhaps.

Nadia Liva

I'm somewhat old-school in that I've been around for a couple of decades and I remember the pre-COVID hearings. I mean, I sometimes refer to good character hearings as a sniff test. You know, it's a meet and greet. It's a way of sensing who a person is and I... I'm also a criminal defense lawyer. So, when I'm in the room with someone, there's almost a physical reaction I have to people. There's a gut instinct that gets triggered when I'm speaking to them, when I'm hearing their voice one-on-one, when I can see the entirety of their physicality, not just their upper body. I can, I pick up cues. And I think, now that we've sort of gone online, there are cues that we don't pick up any longer that, I don't know, maybe it's just the way that I've come up through the system. I find that helps me to determine is the person nervous? Is the person at ease? How are they sitting in their chair? I can't see that when I'm only looking at the upper half of their body. Are they standing when, you know, when they're standing, are they twitching around? Are they moving? Or are they calm when they're talking about their past?

There are things that we pick up when we're in a room with someone I don't think that we can necessarily pick up online. It's why we don't plug this in through a computer and just say, you know, how long has this gone on for? Have you done certain things? It's much more of a human process. And I think being in a room together is a way of doing that.

Alison

What about you, Ben? What do you think?

Ben Kates

Well, mean, in-person hearings, I feel like that's a little bit above my pay grade. A lot of administrative tribunals have moved to virtual and there's, you know, there's a tension between access to justice and in-person hearings. As a litigator, I love in-person hearings. I want to be in-person. And it's just more fun. But, you know, when you have applicants who are far-flung all over the province, there are all kinds of countervailing issues. And the adjudicators, of course, are all over the province as well. And there's lots of case law such as it is that states very clearly that virtual hearings don't compromise the assessment of credibility and whatnot. So that's something that would have to be dealt with.

Unsurprisingly, I'm a fan of the direction of the Court of Appeal. I think that this was a helpful decision for putting the public interest back front and center in these good character hearings. I do feel like there had been a bit of a tendency to focus on the individual factors rather than the person as a whole. So I'm optimistic that it took a case like this, where the result was sort of incongruent with what one would expect. And that's not to say that there needs to be a bright line that people who have committed certain offenses can never be lawyers. I think there's very intentionally not a bright line rule because there are all kinds of exceptions that can exist. And that's not to say that… When someone engages in the type of behavior that AA engaged in, it will be a very exceptional case, I would think, that this person would be admitted to the legal professions. And they would have to build a very compelling case to show why what had happened should not be their defining feature. But as I said, I'm optimistic that a refocus on the public interest will bring some coherence back to these processes.

Alison

How about you, Nadi, anything to add before we wrap it up?

Nadia Liva

I think what's interesting about AA, I see actually the more offending behaviour being the lack of candour than the underlying conduct. And we see that in a variety of cases. Like, there's some terrorist, convicted terrorist cases, where you see one individual having not been candid about their conduct throughout the process, whereas somebody else was. And the person that had candour and that was honest throughout was found to be of good character, while the other individual who lacked candour… Because I think truth is what matters. It matters to the public. They want to know that their lawyer is going to be honest, no matter what the situation.

Alison

Are you saying there are lawyers who have been—have had activities that are—like, terrorist activities?

Nadia Liva

They've been found guilty of terrorism, yes.

Alison

Oh, okay. Did not know that, but you learn something new every day. Okay.

Ben Kates

I'll add to that, that there are those cases have incredibly compelling journeys of how that person got to where they were, where they engaged in or attempted to engage in those crimes, and where they are at the point of being able to be licensed. Now, I think I part ways a little bit with Nadia in terms of it being about the lying only. I think the underlying offence here is so abhorrent and engages trust and protection of vulnerable people, that this would be a tough case, I would think, to show that this is a person who meets the good character requirement. But again, it's fact-dependent and it's not a bright line rule. We believe that people are capable of redemption. Now, I hesitate when it comes to things like pedophilia and abuse of minors. It would have to be a pretty perfect case. Again, I'm not the adjudicator here, but I would think it would have to be a pretty perfect case and a pretty exceptional circumstance for someone like that to meet that threshold.

And that sort of feeds back into the decision itself, because one of the other bases on which the original decision was overturned was there was this condition attached to AA's license that he was not able to meet with children alone. And what the Court of Appeal said is well, again, there's an incongruence there, that someone who can't be trusted… The corollary of that is they can't be trusted alone to be alone with children, and there's an incongruence between that and a finding of good character.

Alison

Right. Well, look, I think this is a good place to leave it. We certainly have—you know, there's more to watch on this case as we see what happens at the Supreme Court and perhaps another hearing at the tribunal. But I'd like to thank you both for coming in and bringing really valuable perspectives to this issue. It's an issue that has really caught the attention of the public as well. So that's why I'm so happy you were able to come in and clearly describe the different roles and different courts and tribunals. And it's been very valuable. So, thank you so much.

Ben Kates

Thanks again for having me.

Nadia Liva

Thank you.

Alison

Ben Kates is a litigation partner and the chair of the regulatory practice group at WeirFoulds in Toronto. That means he represents and advises industry regulators and sometimes serves as a prosecutor in disciplinary and fitness-to-practice cases. And Nadia Liva is partner at Liva Freeman Dent, LLP, a veteran in the business. She has handled more than 60 cases before the Law Society Tribunal.

And this, in my opinion, has been another terrific episode of Verdicts & Voices, and I really hope you enjoyed it. We will be back next week with another story about artificial intelligence, this time from the judge's perspective.

Verdicts & Voices is produced by the Canadian Bar Association, and I'm your host, Alison Crawford.