March 26, 2018

Provocation is not an absolute defence: biting your lip and walking away

Administrative Law
Professional Regulation

The BC Court of Appeal recently clarified the role of the provocation defence in the context of professional misconduct. Johnson v. Law Society of British Columbia, 2018 BCCA 40, considered provocation as a defence where a lawyer cursed at a police officer in a courthouse. The court upheld a review board decision that provocation was one of many factors to consider when determining if professional misconduct occurred, rather than a strict “defence” to such allegations.

In Johnson, the Appellant Mr. Johnson became involved in a confrontation with a police officer, Constable B. Mr. Johnson was representing a client facing assault charges relating to the client’s estranged wife. In court, the Crown called Constable B as a witness to give evidence against Mr. Johnson’s client. [3]

During an afternoon break, Mr. Johnson, Constable B and Crown counsel engaged in a conversation. Mr. Johnson asked Constable B to attend the former matrimonial home with his client while the client collected his belongings. Constable B refused. The conversation between Mr. Johnson and Constable B became “heated and volatile.” [4] Constable B said to Mr. Johnson “don’t for a minute think that I don’t know who you are or what you are about” to which Mr. Johnson replied, “fuck you.” At this point the two were “almost nose to nose” and were butting chests. Both accused each other of committing assault, at which point Constable B physically detained and arrested Mr. Johnson.

A three-member hearing panel unanimously found that Mr. Johnson’s cursing at Constable B constituted professional misconduct; it was a “a marked departure from the conduct the Law Society expects of its members” (LSBC v Martin, 2005 LSBC 16, para 171). The hearing panel did not agree, however, as to the applicability of provocation. The majority found that provocation could never be used as a defence to professional misconduct, while the minority found that the use of profanities can, in some circumstances be excused. [6]

The majority of the review board held that provocation could not be used as a “defence” to an allegation of professional misconduct, but instead considered that provocation was one of many possible factors to be considered on a case-by-case basis in determining whether professional misconduct had occurred. [10] On the facts before it, the review board found that Constable B’s actions were insufficiently provocative and to excuse Mr. Johnson’s conduct in this case would condone lawyers engaging in “insult for an insult” behaviour.

Mr. Johnson raised two challenges at the Court of Appeal. First, he asserted the review board failed in applying the correctness standard of review and failed to conduct its own correctness assessment of the facts, as required under the Hordal/Berge approach. [16] The court rejected this argument and found that the review board had conducted its own assessment of the facts.

Second, Mr. Johnson argued that the review board’s findings were unreasonable in that the review board adopted a “categorical approach” to lawyers who swear in a courthouse. The court again disagreed with this argument, finding instead that the “[majority of the review board] proceeded on the basis that each case is to be decided on its particular facts.” [21]

Johnson therefore limits the role of provocation in cases where professional misconduct is alleged. Legally, the case affirms an approach in which provocation is simply one of many factors to consider in determining whether misconduct occurred, and not a defence or excuse for professional misconduct. Factually, the court also affirmed decisions in which lawyers are generally expected to withdraw from provoking situations. Both the review board and the court cited the following passage from the initial hearing panel:

“The public’s confidence in their public institutions, such as the courts, and the integrity of the legal profession, are but a few of the underpinnings in safeguarding a free and democratic society. The use of profanity by [Mr. Johnson], a member of the legal profession and an officer of the court, towards a potential witness in a case within the confines of the courthouse and within the presence of others could have the effect of eroding public confidence in these bodies and constitutes behaviour that I believe must be rebuked.” [11]

On the facts of this case, all tribunals were clear that the provoking incident, Constable B.’s comment, was insufficient to excuse Mr. Johnson’s cursing. Lawyers will generally be expected to “bite their lips and walk away” from provoking incidents.

Johnson v. Law Society of British Columbia, 2018 BCCA 40

Lisa C. Fong and Will Pollitt