The decision involved a paralegal’s 2016 application and was written by Tribunal Chair and Bennett Jones LLP partner Barbara Murchie, with concurring opinions from paralegal Bencher Robert Burd of Not Guilty Plea Paralegal Services Professional Corporation and former College Boréal President and Appointed Bencher Gisèle Chrétien. The paralegal candidate told the tribunal that she had “a number of convictions” for credit card fraud and breaching probation, Murchie wrote.
The applicant told the tribunal that she was in an abusive relationship and was addicted to crystal methamphetamine during the 18-month period of the misconduct, which ended in February 2015 and was “clearly a heartbreaking time for the family,” Murchie wrote.
When she was 18, the applicant began dating a man who was nine years older than her, who introduced her to meth and forced her to “engage in fraudulent credit card activity at small convenience stores to support their habit,” Murchie wrote in the decision.
“He drove them to the store and insisted she be the one who went in to make the purchase using a real credit card that was encoded with stolen data. Her boyfriend would beat her when she objected. She became mentally and physically sick,” the decision said. “Ms. Valiente told us that she tried to escape the drug addiction and leave her boyfriend four or five times but was unsuccessful. She never called the police when he abused her and was simply unable to stop using. Ms. Valiente told us she always knew the criminal activity was wrong and tried to refuse to engage in it. She was under the influence of drugs when she did engage.”
Since then, the decision says the applicant’s conduct has been “beyond reproach,” as she has “returned to live with her parents, gotten off drugs, undergone therapy, taken a part-time job, graduated from a two-year paralegal program, returned to her church, paid one restitution order of $7,000 (but not a second judgment for $10,000), completed 165 hours of community work and started working full-time outside the legal services world.”
“She has learned from her troubled past. We accept that she is determined to avoid drugs and steer clear of the kind of people that got her involved in crime. Her testimony that she did not want to live that way again was compelling. Further, she has followed through on her determination,” the tribunal wrote.
But the tribunal questioned her “moral fibre,” writing the applicant “did not call independent evidence of her good character primarily because she had not disclosed her criminal past to those who might have provided that testimony.” The applicant, who called her parents and her therapist to testify, said she did not tell her church because she was ashamed, the decision said.
“Clients must be able to trust their lawyers fully and completely,” the tribunal decision said. “Three and one-half years has also not been sufficient for Ms. Valiente to be comfortable disclosing her past outside of her close friends and family in circumstances where it is relevant. Ms. Valiente did not tell her church, where she works with children, or her paralegal placement, even when they asked her to stay on, about her criminal past. She did not have to because they never asked her. But there are circumstances or relationships of trust where one needs to be able to admit the past, even if no one asks.”
The tribunal decided she must “apply again after some additional time has passed.”
“Ms. Valiente’s decision not to disclose her criminal record to the church or her placement principal is relevant to the good character assessment for two reasons. First, it means that we do not have independent evidence of her good character in a community or business environment. Second, it indicates that she may not have the courage to admit her past even when circumstances require it,” the tribunal wrote.
Brampton lawyer Mitch Engel, who represented Valiente, says they knew going into the case that it would be an uphill battle.
“The panel, even the fellow representing the law society, recognized that at some point in time she’ll become a member of the law society. Just maybe now was a little premature, as far as they were concerned, on her part,” says Engel. “She’ll definitely be applying again. When, I’m not sure. But she’ll be trying to take the recommendations by the law society and take their guidance on what needs to be done so she’s seen in a more favourable light next time.”
Jill Fenaughty, a registered psychotherapist who is called to the bar in Ontario, says that rebuilding one’s reputation is an ongoing challenge for those experiencing addiction.
“Staying clean and coming clean with yourself and others is part of it. Relapse can occur and is part of the recovery process which is an ongoing process,” Fenaughty in a written statement to Law Times. “In this case the LSO recognizes there is more work to be done but encourages Ms. Valiente, who is young, to apply again to be licenced. It would appear that more evidence of rehabilitation and recovery is needed.”
Separately, the Law Society of Ontario’s good character requirement has been under review, with “improvements and enhancements” to be presented to Convocation early in 2019, according to a Nov. 30 report from the LSO’s Professional Regulation Committee. The report said the LSO’s Indigenous Advisory Group suggested improvements to “the information that is made available to applicants, the disposition of applications that disclose certain past criminal convictions, and staff training with respect to cultural competence,” among other recommendations.
Naomi Sayers, a lawyer in the energy sector who has written in the past about her issues with the good character requirement, says it is difficult to comment on the case because there are only certain facts presented in the decision, and we don’t know the full history of the applicant. But, she says, she personally feels the panel didn't consider the exploitative situations faced by the applicant.
“The panel had said that in order to prove her good character there was no evidence beyond her relationship with her family, so they had no business or community context. Yet here she was, living and presumably working in her community, and volunteering in many instances…. She went to a hearing, and testified, as the panel said, ‘passionately’ and ‘honestly.’ If that's not evidence of good character, then I don't know what is. That’s the problem. It's not transparent, what good character is meant to be,” says Sayers. “Why would she go around — telling the church, her therapist, over and over again — what happened to her? That’s traumatic in and of itself — to return to that time and disclose those facts over and over.”
Susan Tonkin, senior communications advisor at the Law Society of Ontario, declined to comment further on the decision, as did Law Society Tribunal communications officer Ivy Johnson.
Michael Bryant, the executive director and general counsel at the Canadian Civil Liberties Association, says while he cannot comment on the specifics of this paralegal’s application, he can speak to his own experiences with addiction as a legal professional, about which he authored the book Mere Addiction.
“Addiction, under human rights law is a disability, not a liability. And any arbitrator or decision maker that mingles addiction with bad character is falling prey to the stigma of addiction, and the stigma is that addicts are bad people,” says Bryant. “That said, an addict’s recovery turns on accountability for the wreckage of their past. Where damage has been done by them, whatever the reason, they have to be accountable for that damage. Addiction is not an excuse or justification for that damage. So, where the law society is judging character based upon actions divorced from the addiction, I think that’s legitimate. However, they have to be very explicit about not allowing the addiction to colour their rulings on good character.”