February 11, 2013

Registration: Insight into past misconduct and good character

Administrative Law
Professional Regulation
Registration and Fitness

Most if not all self-regulated professions require members to have good character. Applicants need not be free of mistakes, but if they have acted egregiously, a committee may scrutinize their character. An applicant who commits a crime or engages in conduct for which another regulator has revoked membership may suffer from “bad” character that he or she must overcome by proving not only a change for the better, but change to a degree commensurate to the weight of the evidence of prior bad character.

The impact of an applicant’s criminal behaviour while in another profession is illustrated in a recent decision of a panel in Melnick v. Law Society of Upper Canada, 2012 ONLSHP 178. That case involved an applicant seeking to practice law after losing his teaching licence, due to his having and being convicted for a sexual relationship with a young female student.

Facts: An applicant, a former teacher, had pleaded guilty to sexual exploitation and luring a child using a computer. The conviction arose from events in 2004, when the applicant was a 28‑year-old teacher and sometimes guidance counsellor of a 14-year-old female student. Over six months, they exchanged over 500 emails which became sexually suggestive, engaged in physical sexual activity, and took an overnight trip to a motel, after which he was arrested. The applicant lost his employment in early 2005, was convicted in 2006, and spent six months in custody. The College of Teachers permanently revoked his licence in June 2007. He started law school in September 2007.

In 2011 and 2012, the Applicant presented evidence to a panel of the Law Society to prove he had the good character required by s. 27(2) of the Law Society Act, RSO 1990, ch. L.8. The panel noted that, “in view of the historical evidence of bad character, as admitted by the Applicant, the mountain the Applicant must now ascend, while not insurmountable, is necessarily formidable.” [3]

The Applicant’s evidence: The Applicant testified on his own behalf, and called 10 character witnesses. The Applicant admitted he had initially lied to police out of fear, but later pleaded guilty to charges.

He expressed remorse, and testified that he had consulted a psychiatrist prior to sentencing and engaged in group sessions with him. Prior to sentencing, he also sought the support of his family doctor. But notwithstanding the suggestions of the psychiatrist and his family physician, the Applicant did not continue to receive counselling following sentencing. The Applicant also provided medical reports as proof that he did not qualify as a pedophile or for any other identifiable sexual deviance, that he displayed a failure to understand boundaries, and that he was not a significant risk to re-offend. [34]

Character witnesses, including the Applicant’s wife and the dean of the Applicant’s law school, described the Applicant’s favourable traits, his candour about his convictions, his remorse, and his desire to turn his life around.

The Panel’s assessment: The Panel relied on previous “good character” decisions, and examined the following factors to determine if the Applicant was currently of good character:

  1. the nature and duration of the misconduct;
  2. whether the applicant is remorseful;
  3. what rehabilitative efforts, if any, had been taken and the success of such efforts;
  4. the applicant’s conduct since the proven misconduct; and
  5. the passage of time since the misconduct. [40]

The Panel regarded the Applicant’s conduct as a “horrendous breach of trust”, by luring a child, an especially vulnerable member of the population, into a sexual relationship. [62] The student and her family had suffered ongoing impact. [64]

The Applicant’s subsequent conduct was commendable through his building a successful home renovation company, completing law school and articles, being involved with Community Legal Services, maintaining a stable marriage and parenting two small children. [68]

But although the Applicant saw a psychiatrist several times, and his family doctor many times, prior to sentencing, the Applicant did not undergo any counselling following his criminal sentencing, despite multiple recommendations. [70-71] He disregarded a suggestion from his parole officer that he attend counselling relating to the abuse of women, as he felt it irrelevant to the conduct he engaged in. [71]

The Panel considered the passage of time as being relevant to “whether the good character recognized to be at the heart of the conferred position of trust has had an opportunity to take root.” [74] But while the criminal conduct occurred almost eight years prior to the hearing, the panel noted that the Applicant had commenced law school within 90 days of having his teaching licence revoked, and before he had completed his criminal sentence. [73] The Panel felt that the Applicant’s devoting of his energies to accessing the profession of law did not show that he had any opportunities for “reflection that one would see as a benefit in the transformative process.” [75]

Finally, while the Applicant had apologized, and witnesses suggested he was remorseful, the Panel was critical of the Applicant’s self assessment of himself as a “white knight” to parents and teachers. An essential ingredient of a successful transformation is proof of insight into one’s behaviour. [85] The Applicant’s view that he had failed to keep his work and personal life separate fell short of “an acceptance of responsibility for [his] past without any rationalization.” [88] His lack of insight, perhaps attributable to the limited time he allowed for true contrition and rehabilitation after his convictions, [90] was “reason enough” to dismiss his application, [91] although the panel also took issue with the Applicant omitting the damning emails from his application materials, which called into question “the willingness of the Applicant to fully and candidly own his misconduct.” [92-95]

Commentary: This decision highlights factors regulators may consider when deciding if an applicant with “bad” character has transformed into a person of good character. The Panel noted that in the legal profession, the “good character” requirement not only protects the public, [41] but also maintains a reputation of a profession in which “every member, of whatever standing, may be trusted to the ends of the earth.” [42, quoting from another case] The Panel noted that a future panel might well conclude the Applicant had good character, should he prove “demonstrated and genuine insight into his criminal behaviour, and compelling evidence that his actions are guided by the highest professional and ethical standards….” [98]

Melnick v. Law Society of Upper Canada, 2012 ONLSHP 178 (November 19, 2012)

Michael Ng and Julia Hincks