Registration: Difficult issues relating to good character

Regulatory bodies typically require that applicants for registration have “good character” as an element of their fitness to practice. An applicant bears the overall burden of proving he or she meets all registration requirements. Various law society cases establish, however, applicants are entitled to a presumption of good character, leaving them to prove that they are fit in other respects. Regulators accordingly bear the initial burden of proving an applicant has previously acted in a way which demonstrates he or she was then lacking in good character. Only when this occurs must an applicant go on to prove he or she is presently of good character, despite such proven misconduct in the past. The question becomes, what kind of past conduct must a College prove, in order to show a lack of good character?

Character requirements unique to each profession: The kind of good character necessary for an applicant to practice may vary between professions. For example, a propensity to engage in sexual contact with a past or present client or patient is more likely to be of preeminent importance to the health professions than the legal or financial professions, for example. In contrast, dishonesty may be of greater concern to the legal and financial professions than to the health professions. Different professions may act in concert, however, to infer a lack of good character where an applicant demonstrates through serious misbehaviour that he cannot be trusted to govern himself in accordance with ethical and legal requirements.

Character as reflected in criminal activity: The commission of a crime may be, but is not necessarily, a basis for a Registration Committee to infer a lack of requisite good character. For example, the B.C. Health Professions Act stipulates that while a Registration Committee can impose limits or conditions (or refuse to grant registration) where an applicant has committed an indictable offence (i.e., something more serious than a summary conviction offence), the Registration Committee must be “satisfied that the nature of the offence or the circumstances under which it was committed give rise to concerns about the person’s competence or fitness to practise the designated health profession.” (HPA s.20(2.2)) Accordingly, a person may have good character despite past “wrongful” behaviour, e.g., if it is unrelated to whatever character a particular profession requires, or if the conduct was exceptional and did not truly reflect the character of the applicant.

Character as reflected in “illegal” activity: Matters become more uncertain in relation to illegal but non-criminal breaches of law. For example, does an applicant’s breach of a spousal or child support court order indicate a lack of the good character necessary for an applicant to be a member of a profession? That uncertainty increases in relation to acts that may be legal, but nonetheless immoral (e.g., dishonest), or which run counter to the grain of a profession’s core values. For example, the College of Physicians and Surgeons of Ontario was not satisfied an applicant would practice “according to the law” where the applicant “breached” a contract with the Government of Quebec requiring him to practice medicine in a particular region, even though the contract set out a financial alternative (i.e., reimbursing the province $200,000) in Mobayed MD v. College of Physicians and Surgeons of Ontario, HPARB File No. R-1057H (August 3, 2001).

Character as reflected in legal activity: The question of good character is perhaps most challenging where conduct is legal, and some dispute exists, either within the profession or within broader society, as to whether particular conduct reflects bad character. Disputes about the undesirability of certain character traits may be further complicated by legal restrictions on regulators inferring bad character from conduct protected by fundamental rights, like the right to free speech. A profession is free, but only to an extent, to define the kinds of conduct and character it requires of its members. Discipline cases may be instructive on the tension between the power to set character requirements, on the one hand, and applicant liberty on the other hand, since a profession’s power to classify an act as misconduct will also reflect its power to treat an act as evidence of bad character.

An instructive example is the case of Kempling v. British Columbia College of Teachers, 2005 BCCA 327, where a member was disciplined for public statements expressing his negative views on homosexuality, which statements were found to be discriminatory and inconsistent with the standards of the teaching profession. The reasoning in Kempling gives rise to the question of whether an applicant who has expressed discriminatory beliefs, or beliefs not in accord with a particular profession – even if in accord with the views of some circles of society –may be refused entry into that profession. In Kempling, an expressed, negative view on homosexually was unprofessional, and discipline for the expressing of such views justifiable, where those beliefs were likely to inform the member’s actions as a professional, and in the words of the Court of Appeal, “undermine access to a discrimination-free education environment.”

The views of the profession alone may not, however, be determinative of bad character. A demanding and intrusive character requirement may, like a conduct requirement, infringe fundamental rights, and be struck out where insufficiently connected to the legitimate goals of the profession. For example, in Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6, a member was disciplined for picketing Planned Parenthood, carrying signs with pictures of fetuses, and shouting comments claiming that Planned Parenthood provided abortions, murdered babies and could give people AIDS. Although the lower court affirmed discipline on the basis the member’s conduct showed a lack of respect for the physical and emotional health of Planned Parenthood’s patients, the Saskatchewan Court of Appeal found that infringement of the member’s right to free speech was not justifiable. On the basis of the goal of the prohibition being to ensure respect for the status and standing of the licensed practical nurse, the Court of Appeal found that the prohibition against the member’s conduct was not rationally connected to ensuring the public standing of the profession, as no evidence established any member of the public would think less of nurses because of the member’s behaviour. This case implies that inferring bad character from conduct that impacts patients, but is nonetheless an exercise of a right of free-speech, may be subject to intense scrutiny.

Character versus practice: The question of good character may also be especially challenging in regard to conduct that might reflect character, but might also merely reflect habit or circumstance. Take, for example, uncivil behaviour. Currently the Law Society of Upper Canada has been investigating lawyers who are alleged to have made rude remarks to clients, other lawyers, and judges. Could a pattern of incivility or bad-tempered remarks be taken to reflect a character issue and constitute a bar to an applicant entering a profession? Or is incivility merely a conduct issue?

Character versus involuntary behaviour: An assessment of good character may also entail an assessment of culpability in a particular case. For example, even if conduct would generally reflect a lack of good character, where an applicant suffers any form of physical or mental disability, including addictions, a Registration Committee should consider human rights implications, including if or to what extent the applicant should be held culpable for conduct for which the disability itself may have been a contributing factor.

Problems of definition: An assessment of good character can be difficult simply because the concept is amorphous. How is a regulatory body to decide upon and articulate the kinds of character traits that no applicant can be without? Once such traits are identified, how are such traits to be measured or assessed consistently? And how will applicants who have been found lacking in character know how to remediate themselves, in order to meet minimum standards of good character?

The mutability of character: Finally, a registration committee must go beyond the question of whether past conduct (which has been proven) demonstrates a lack of good character in the particular case. Since character is mutable, and can change over time, any applicant may also prove that despite past misconduct, he or she has reformed and is of good character, as of the time of the hearing.

To illustrate the range of the inquiry open to a registration committee, a panel of the Law Society of British Columbia set out factors it deemed right to consider in assessing present good character:

[83] There is no rigid formula in assessing whether assaultive behaviour will bar admission as an articled student. Instead, the Panel should consider all surrounding circumstances including, but not limited to:

a) applicant’s age at the time of the conduct;

b) recency of the conduct;

c) reliability of the information;

d) seriousness of the conduct;

e) factors underlying the conduct;

f) cumulative effect of the conduct;

g) evidence of rehabilitation;

h) applicant’s positive social contribution since the conduct;

i) applicant’s candour in the admissions process; and

j) materiality of any omissions or misrepresentation.

See Re Lee, 2009 LSBC 22 (L.S.B.C.).