The recent appeal decision AA v Law Society of Ontario upheld the Law Society Tribunal’s 2023 decision to licence to applicant “AA” after finding him to be of “good character”—even though AA had admitted to have sexually abused three young children in 2009 (and to hiding this information from the Law Society in an earlier licensing application, which he withdrew in 2017 following an anonymous tip disclosing the abuse).
The AA case and other good character hearings stemming from sexual misconduct involving minors have generated considerable discussion both inside and outside the legal profession about how law societies should assess licensing applicants’ good character—and whether we should assess it at all.[1]
I pause here to note: I had been working on a column about the good character requirement more generally when the AA appeal decision was released and I decided it would be more interesting and timely to focus on the particular issue it raises about public confidence in the legal profession. So, I will be writing about the good character requirement in a two-part series, with my next column speaking more generally to its purpose, process, and problems, as well as potential ways forward.
For the past several years, I have assigned the 2013 decision in LSUC v Melnick as required reading to the upper-year students in my Legal Ethics class at Osgoode. That matter concerned an applicant whose teaching licence had been revoked after the 28-year-old middle school teacher engaged in a sexual relationship with a 14-year-old former student in 2004 (he applied to and was accepted to law school before pleading guilty to two criminal charges in 2006, and began law school in 2007 while still serving his non-custodial sentence).[2] The Tribunal’s hearing panel initially found that the applicant had not established he was of good character, but this was reversed by the Tribunal’s appeal panel, which held that the hearing panel had “misapprehended or failed to appreciate the totality of the evidence respecting the applicant’s good character” such that its findings were “unreasonable”. The appeal panel concluded that the applicant “had overcome a gross dereliction of his responsibilities and established his present good character” [emphasis added].[3]
Perhaps unsurprisingly, various media outlets were critical of the Melnick appeal decision, reporting it with headlines such as “Sex offender allowed to practice law in Ontario after he lost teaching licence over child luring conviction” and “London-area teacher who seduced his 14-year-old student now of ‘good character’ to law society”.
Ten years later, we are witnessing the same phenomenon, not only with the AA case but also Tribunal’s recent decisions in Colangelo that granted licensure to a paralegal applicant who similarly had lost her teaching licence after pleading guilty to child luring (this time, in connection with sexually explicit messages and photos she had shared with 16- and 17-year-old students at the high school at which she worked. Sample headline: “Child sex offender can practise as Ontario paralegal”).[4]
The LSO has already announced that it will seek judicial review of the AA decision before the Divisional Court, and seek a stay of the order precluding AA’s licensure until the matter is finally resolved.
If we gauge public opinion based on reader comments on the Toronto Star website (e.g. “How can this man be of good character and he sexually abused children?” and “This decision is a travesty and I strongly hope that the Law Society wins the judicial review”),[5] it appears the public agrees AA should not be a licensed lawyer and supports the Law Society’s decision to keep pushing back through escalating layers of appellate review.
These cases invite the question: why do we bother having a “good character” requirement if we are going to grant licences to former sex offenders (etc.) and anger the public—and perhaps erode public confidence in the legal profession—anyway?
In my opinion, while there are very good reasons for the imposition of a good character requirement, it is all but impossible to apply such a requirement meaningfully and fairly.
More specifically, I suggest it is not possible to apply the good character requirement in a way that will effectively promote public confidence in the legal profession while also holding firm to the ideals of our profession and of our justice system in a free and democratic society.
Although this is not how the Law Society framed its arguments, it seems to me that public outcry in matters like AA, Melnick, and Colangelo is at its core premised in the belief that people who committed certain offences should simply never be granted the privilege of a law licence.
The problem with such a rule, of course, is that it flies in the face of the fundamental tenet of our justice system that rehabilitation is possible. If our law societies were to adopt or apply such a rule, they would be tacitly undermining or objecting to this important principle.
Indeed, good character jurisprudence is clear that the question to be determined is whether the applicant is currently of good character—and expressly (and repeatedly) emphasizes that what is to be assessed is the applicant’s character at the time of the hearing, and not their prior character.
The Law Society’s arguments on good character matters make clear that they understand and accept the governing principles. Rather than argue that the test should be different, or that an applicant can never earn the public’s confidence because of their past conduct, law societies tend to argue that, as a factual matter, the applicant has not yet demonstrated that they have been rehabilitated or are remorseful for their past conduct.
In the AA and Colangelo matters, the hearing panel disagreed with the LSO’s factual arguments and accepted the applicants’ evidence that they deeply regretted their past misconduct and they were no longer the person who committed those misdeeds. In both cases the LSO appealed, and the appeal panel deferred to the factual findings made below and upheld the conclusion that the applicants were of good character. In both cases, the LSO sought or is seeking judicial review.
Based on these examples, I am becoming concerned that the LSO may be pursuing good character matters not because there is necessarily an arguable legal issue to be decided, but because of the optics with the public. That is, I question if the LSO is appealing these matters not because they have a reasonable chance of success on an appeal on the merits, but because it wishes to be seen by the public as taking a hard line and trying to keep apparently unsavoury characters out of the profession (regardless of the applicable legal test or whether public opinion is reasonably based or consistent with our legal system’s commitment to the possibility of rehabilitation).
To elaborate: The LSO’s principal argument before the Tribunal’s Appeal Division in the AA matter was that the hearing panel had misapprehended the evidence in arriving at its conclusion that AA was of good character. It did not suggest that the hearing panel had applied the wrong test for good character or had otherwise made an error in principle.
Accordingly, the Appeal Division’s reasons are predominantly about why it was deferring to the findings of fact made by the hearing panel below, which are subject to the high “palpable and overriding error” standard of appellate review. It held:
- “On all of the points raised by the Law Society, what we have is contested evidence with respect to findings of fact… evidentiary review was the hearing panel’s task, not the role of the appeal panel.”[6]
- “…there was no palpable error. In assessing misapprehension of evidence, it was not our role to ‘dissect, parse or microscopically examine the reasons’ of the fact-finder. The misapprehension of evidence must be plainly seen.”[7]
- “In addition, it is not at all clear that there was any misapprehension of the evidence that affected the result.”[8]
Given the nature of the issues on the appeal and the Appeal Panel’s cautious and deferential approach to them, it seems to me the LSO will face an uphill struggle in seeking to have AA’s good character finding overturned by the Divisional Court.
To be clear, I think the LSO was right not to argue the appeal on the basis that Hearing Panel had made a legal error (which would have been subject to the less stringent “correctness” standard of review). There simply wasn’t an argument there; the Hearing Panel had applied the correct test for assessing a licensing applicant’s good character, which is well established in the Tribunal’s jurisprudence.
Interestingly, however, the LSO’s Notice of Appeal in the AA matter includes an additional ground of appeal that (based on the Appeal Division’s reasons, at least) does not appear to have been advanced at the hearing:
The Hearing Division erred in fact and law in not placing sufficient weight on the importance of maintaining public confidence in the legal professions.
The well-established test considers current good character by evaluating (i) the nature and duration of the past misconduct; (ii) whether the applicant is remorseful; (iii) the extent and success of the applicant’s rehabilitative efforts; (iv) the applicant’s conduct since the misconduct; and (v) the passage of time since the misconduct.[9]
While this test may be intended to serve the purpose of promoting public confidence in the legal professions (which exists alongside other regulatory objectives), it does not consider “public confidence in the legal professions as an independent factor entitled to weight. This would represent a fundamental change to the good character analysis.
Moreover, it is entirely unclear how and on what basis “public confidence in the legal professions” could or should be considered. Would it be appropriate if the Law Society made decisions about which cases to pursue and how to pursue them based on concerns about potential headlines and reader comments in the Toronto Star? Is the question simply: Will the public at large be OK with this person becoming a lawyer? If so, how do we address concerns about biases in public opinion; how public opinion may be based on misinformation, misunderstandings, or a rush to judgment; or how public opinion may be inconsistent with fundamental legal principles such as procedural fairness, non-discrimination, and the possibility of rehabilitation?
While it is of course understandable that the Law Society is concerned with public confidence in the legal professions, there are real questions about how—and how much—to consider this objective in exercising its regulatory authority, and in particular how this objective interacts with the LSO’s statutory duties “to protect the public interest”, “to act in a timely, open, and efficient manner”, and “to maintain and advance the cause of justice and the rule of law”.
My comments above are not intended as an endorsement of the conclusions in the aforementioned cases that the applicants in question were “of good character”. My point is that the Tribunal’s findings were reasonable in light of the established legal test for (current) good character. But this merely begs the question.
Does the test for good character serve the objectives of legal regulation? Is there a fundamental disconnect between what the Law Society wishes the good character analysis would assess and what the legal test actually assesses? Is serious reform required? Should a legal regulator be in the business of assessing applicants’ “good character” at all?
In my next column, I plan to take a step back from these recent and controversial cases to consider the good character requirement more broadly—including its purpose, history, process, and problems—as well as potential reforms to consider going forward.
I am always interested in readers’ comments on my columns, but I am particularly interested in your views on this one seeing as I plan to follow up on this topic in a month or two. Thoughts on the good character requirement and cases mentioned above—both from members of the legal professions and of the public—are welcomed in the comments below.
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[1] The AA decision raises additional interesting issues about (i) when a licensee or licensing candidate’s identity should be anonymized in good character and discipline proceedings and (ii) whether conditions on a licence restricting services that can be provided to a particular demographic group (e.g. children) can ever be appropriate, both of which are beyond the scope of this column (and likely each warrant columns of their own).
Because I can, however, I will address the latter point briefly. AA’s licensing is subject to a condition that he cannot meet with children unsupervised. My personal view is that if you can’t be trusted to provide services to everybody, you shouldn’t be allowed to provide services to anybody. In my view, such a restriction necessitates differential treatment or limits access to services based on a protected ground. For example, until about a decade ago it was not uncommon for male health professionals found to have committed serial sexual misconduct to be permitted to continue practising subject to restrictions or prohibitions on treating women—meaning that women either did not have access to all licensed providers that men had access to, or that women would receive services in a different manner than men (e.g. with one more person in the treatment room observing and listening to their private concerns, if the professional required supervision). To me, this is both fundamentally unfair and arguably discriminatory. To illustrate another way, I suggest it would be absurd if a professional found to have acted in a racist manner to be permitted to practice so long as they were supervised when meeting with BIPOC clients, or for a professional with a history of making anti-Semitic comments to be permitted to practice so long as they did not serve Jewish clients.
Having said this—and while I maintain my view that the guiding principle “if you can’t serve everybody you can’t serve anybody” is sound and should govern—I acknowledge that in the AA case this particular concern may be more theoretical than practical. I cannot recall a single occasion in my career (in civil and regulatory litigation) where I have interacted with minors in a professional context. Obviously, this does not apply to all areas of practice—family law and immigration being notable exceptions—but I suggest that most lawyers’ practices would not actually be affected by a restriction on meeting with children unsupervised.
[2] Melnick v. Law Society of Upper Canada, 2012 ONLSHP 178 at para 8, rev’d 2013 ONLSAP 27.
[3] In-class discussion of this case has always been lively, and the students’ opinions on the outcome have never been unanimous. What is most interesting to me about the Melnick case is how—much like my students—two panels reviewing the same evidence and applying the same principles came to disparate conclusions about whether Mr. Melnick had demonstrated his “good character” such that he should be licensed to practice law. This has always struck me as indicative that there might be something wrong with having panels of (mostly) lawyers exercising their subjective judgment to assess the “good character” of individual applicants.
[4] Incidentally, here’s a fun fact: both AA and Ms Colangelo were represented before the Law Society Tribunal by none other than Mr. Melnick.
[5] See Jacques Gallant, “Law Society loses appeal and must let child sex abuser practise law—and we can’t reveal his name”, Toronto Star, March 21, 2024, https://www.thestar.com/news/law-society-loses-appeal-and-must-let-child-sex-abuser-practise-law-and-we-can/article_a9e65a08-e78a-11ee-8f26-2be54f81f90c.html.
[6] AA v Law Society of Ontario, 2024 ONLSTA 6 at para 67.
[7] Ibid at para 70.
[8] Ibid at para 69.
[9] Known as the “Armstrong factors” following the decision in LSUC v Armstrong, 2011 ONLSAP 1.
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