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Former judge allowed to practise law again

|Written By Jennifer McPhee

Kerry Evans, a former Ontario Court justice who resigned from the bench in November 2004 after the Ontario Judicial Council found him guilty of sexual misconduct, is free to practise law again on the condition he work as an employee of another practising lawyer for two years.

Evans, 56, was “elated” by the Law Society of Upper Canada appeal panel’s March 6 decision to restore his membership, says his lawyer Chris Paliare.

Evans has begun practising criminal law at a Barrie, Ont. firm where he has been working as a paralegal, says Paliare.

The appeal panel gave no oral reasons and has not yet released written reasons.

Last August, a hearing panel rejected Evans’ first attempt to restore his membership. It was the first time, possibly in Canadian history, that a panel considered possible grounds for refusing to restore a former judge’s right to practise law.

Paliare, who Evans retained for the appeal, said the panel had no guiding jurisprudence, which led to a number of legal errors.

In one of his main arguments, Paliare posited that the panel incorrectly applied a seven-point readmission test to the restoration hearing. The readmission test is extremely onerous because it governs those seeking readmission to the bar following disbarment.

“However, the appellant was not disbarred; indeed his misconduct would not have merited disbarment. It is submitted that it was an error in principle, policy, and law to require him to satisfy a test designed to keep disbarred lawyers from re-entering the profession in all but the most exceptional cases,” Paliare said in his submissions to the appeal panel.

Readmitting disbarred lawyers is an exception to the rule because of the serious misconduct that justifies disbarment, wrote Paliare.

But when a member leaves judicial office, membership is automatically restored upon notification to the secretary, subject only to the secretary referring the matter to a hearing.

“In other words, restoration is the rule,” he wrote. “If, however, the restoration applicant is placed on the same footing as the readmission applicant whose penalty is presumptively permanent, it will be just as difficult to be restored as to be readmitted and more difficult to be restored than to be admitted in the first instance. This is a result that could not possibly be intended by the [Law Society Act].” Evans’ conduct, however serious, would not have warranted disbarment, argued Paliare.

Evans’ misconduct related to eight complaints by female courthouse employees for incidents that occurred between 1999 and 2002 and involved inappropriate physical conduct, some of it sexual, and inappropriate remarks with sexual innuendoes. The Ontario Judicial Council upheld seven of the complaints.

One of the complainants testified that Evans always stood too close for comfort. Once, he patted her rear end as she was entering a room, and on another day force-fed her a jujube that he pulled from his pocket.

Another complainant said Evans attempted to remove her court gown, and on a later date pinned her to the wall of the corridor outside his chambers before walking away.

He also stuck his tongue in another co-worker’s mouth and asked her to say, “Kerry, I like kissing you.”

One complaint was dismissed due to concern about inconsistencies, the complainant’s ability to recollect events, and her “obvious” hostility towards Evans during the course of her testimony.

Canadian lawyers have only been disbarred for sexual impropriety in three instances. In each case, the lawyers had engaged in a sexual act with minors and were convicted of criminal offences. In two of these cases, the minors were prostitutes.

It was wrong to effectively put Evans in this category, argued Paliare.

In 2003, Evans was acquitted of sex assault charges stemming from one of the allegations against him.

Prior to all this, Evans was a well-respected judge in Barrie. His father, Gregory Thomas Evans, served as the chief justice of the High Court of Justice, Supreme Court of Ontario, from 1976 to 1985.

His brother, Gregory T. Evans, is a lawyer at Zwicker Evans Lewis LLP in Barrie.

Kerry Evans began his career as a Crown in Toronto in 1981. While in Toronto, he was one of three founding members of a sexual abuse protocol.

He went on to become a member of Barrie’s tight-knit criminal defence bar. He was practising criminal law at Zwicker Evans in 1997 when he was appointed to the bench.

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