The appellate court held a nearly four-hour hearing Friday in Law Society of Ontario v. AA
At a hearing Friday on the Law Society of Ontario’s dispute with a lawyer who sexually abused children in 2009, Ontario Court of Appeal Justice Lorne Sossin posed a question to those who wanted to bar the lawyer from practising law: Are there certain offenses that are so severe that the person who committed them will never meet the Law Society Act’s “good character” requirement?
Under the Ontario statute, individuals must pass the requirement to be licensed as a lawyer or paralegal.
“We’re not here before you asking for a bright line,” Amy Block, a partner at WeirFoulds LLP who represented the LSO, told Sossin at the hearing. “But the weight of rehabilitation, the weight of remorse… volunteerism, insight – all of those factors have to be evaluated in light of this misconduct.”
Later in the hearing, Sossin posed the same question to counsel for an intervenor, legal aid organization Justice for Children and Youth. Sossin asked whether the organization was arguing that a person who has been diagnosed with pedophilia is not of good character per se, due to their “ongoing need for vigilance and risk to children.”
Samira Ahmed, a lawyer with the organization, responded that “most pedophiles in remission will struggle to meet the good character threshold.”
Ahmed argued there were high recidivism rates for pedophiles and that the rehabilitative work pursued by the lawyer, whose identity is protected by an anonymization order and identified only as “AA,” was insufficient. AA had previously pursued cognitive behavioural therapy and hypnotherapy.
Ahmed added that this insufficiency was exacerbated by the fact that AA had previously hid and then mischaracterized his misconduct.
But counsel for AA, sole practitioner James Melnick, rejected the LSO’s argument that they weren’t seeking a bright line on the issue. A bright line – or a “wholesale bar for certain kinds of offenses” – is the “only result” when you determine that a person can never pass the good character test due to their misconduct, Melnick said.
He argued that the LSO failed to point to any specific rehabilitative efforts by AA that “were so deficient” that they failed to deal with his misconduct. Melnick said that in contrast, the Law Society Tribunal’s Hearing Division – which found that AA is of good character and granted his application to be licensed – “did exactly that.”
The lawyer argued that the tribunal panel acknowledged the severity of AA’s conduct as well as the rehabilitative steps he took. The panel “essentially lauded him for his willingness to try different modalities of therapy” instead of focusing on “the success of those steps,” Melnick said.
Friday’s nearly four-hour hearing is the latest development in the dispute between the LSO and AA, which began in 2012 when AA applied to be licensed by the LSO without revealing that he had sexually abused children three years earlier while living in another country.
The LSO learned of the abuse shortly before AA’s call to the bar in 2014. After an investigation concluded in a referral to a good character hearing, AA abandoned the licensing process. He asked to be reinstated to the process in 2019, prompting an investigation and a referral to the Law Society Tribunal. The tribunal granted AA his license in 2023, on the condition that he does not meet with “minor children” unsupervised.
The LSO appealed the tribunal’s decision in its appeal division, then filed an application for judicial review of the tribunal proceedings with the Ontario Superior Court of Justice’s Divisional Court. Neither bid was successful.
At the hearing, Block said one of the “fatal” errors of the tribunal decision was its incoherence: the decision found that AA is of good character, but simultaneously imposed a condition on AA’s practice, barring him from meeting alone with children.
Andrea Luey, counsel for the LSO, told the appellate panel there was no substance to the condition, which is summarized in a single sentence in the tribunal’s order. The order does not detail how the condition would be monitored and enforced.
Sossin asked Luey, “What does ‘minor children’ mean?”
Luey responded that the lack of clarity pointed to the tribunal decision’s flaws. She suggested that a possible interpretation was that it referred to a person under the age of 18, but Sossin asked whether a “minor child” could be distinguished from a “child.”
“To be honest, I don’t know,” Luey said. “And another example of why this process was unreasonable.”
Later, Melnick argued that the case was not about children specifically, but rather “about someone who did something in his past, in 2009, and worked hard to get past it.” He cited a report finding that AA was at low risk of reoffending and has no current sexual interest in children.
Sossin noted that there were two issues at play: the sexual assaults AA committed in 2009 and the period when AA minimized, obfuscated, or lied about his misconduct to regulators, including the LSO. “What in your submission leads to the conclusion that the period of minimizing or deceit also was dealt with appropriately by the law society?” he asked.
Sossin added, “That’s not a medical condition. That was a choice made that goes directly to trustworthiness.”
Melnick responded that there is no evidence that AA has been dishonest since 2017. Prior to that period, AA sought psychiatric care. Melnick said that because AA was concerned that a psychiatrist would notify the police if he confessed that he had assaulted children, AA told a psychiatrist that he viewed child pornography instead – which was not true – in order to get treatment.
Melnick then moved on to the second issue at the hearing: his motion to keep AA anonymous throughout the proceedings. That motion was “purely about [AA’s] children,” Melnick argued. AA had abused one of his children but none of his children were aware, including the victim.
Justice Lise Favreau asked Melnick whether the fact that the children were nearly all adults changed the analysis.
“My answer to you is that their age is irrelevant, that they still don’t know,” Melnick said. “It’s their lack of knowledge that’s the problem.” In his factum to the court, Melnick had argued that revealing this information to AA’s children could potentially harm their mental health.
“I have a hard time with this submission,” Favreau said. The justice said while she could accept that logically, such a revelation could be harmful, she wasn’t sure it was better for the children to continue not having the information but face a high likelihood of finding out sometime in the future.
“I don't think we're in a position to make a decision or use our own logic and experience to decide what's more traumatic to them very well,” Favreau said.
