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The ‘Good Character’ Requirement
(from: David Moffat Matheson v. Law Society of Upper Canada, 2009 ONLSHP 105 (CanLII), <https://canlii.ca/t/28806>)
STATEMENT OF LAW
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[5] The law setting out the general principles of good character has been applied in previous good character hearings. Since there did not appear to be any dispute about the law, it is adopted by the Hearing Panel. It is set out as follows:
1. There is no inherent right to practice (sic) law or to provide legal services. Pursuant to section 27(2) of the Law Society Act and section 8(1) of By-Law 4, it is a requirement for the issuance of any licence under this Act that the applicant be of good character.
Section 27(2) of the Law Society Act and section 8(1) of ByLaw 4, Tab 1 of Book of Authorities I
General Principles of Good Character
Definition:
2. "Good character" is not defined in the Law Society Act, but case law has defined the term and it has been repeatedly used and quoted in admission cases. Character has been defined as "that combination of
qualities or features distinguishing one person from another. Good character connotes moral or ethical strength, distinguishable as an amalgam of virtuous attributes or traits which
would include, among others, integrity, candour, empathy and honesty."
Re Spicer, Reasons of Convocation dated May 1, 1994, para. 15, pp 5-6, Tab 2 of Book of Authorities I
3. Madam Justice Mary Southin of the British Columbia Court of Appeal also elaborated on the term:
"Good character" means those qualities which might reasonably be considered in the eyes of reasonable men and
women to be relevant to the practise of law… Character comprises at least these qualities:
(1) an appreciation of the difference between right and wrong;
(2) the moral fibre to do that which is right, no matter how uncomfortable the doing may be and not to do that which is wrong no matter what the consequences may be to oneself; and
(3) a belief that the law at least so far as it forbids things which are malum in se must be upheld and the courage to see that it is upheld. "
Madam Justice Mary Southin, What is Good Character? (1987), 35 The Advocate 129 at 129, Tab 3 of Book of Authorities I
Purpose of the Requirement of Good Character:
4. In his book, Lawyers and Ethics: Professional Responsibility and
Discipline, Gavin Mackenzie [sic] states that the objectives of the good character requirement are the same as the principles of discipline, namely to "protect the public, to maintain high ethical standards, to maintain public
confidence in the legal profession and its ability to regulate itself, and to deal fairly with persons whose livelihood and reputation are affected".
Responsibility and Discipline (Scarborough: Carswell, 1993) at p. 23-2, Tab 4 of Book of Authorities I (cited with authority in LSUC v Preyra at p. 5 (Tab 5A))
5. In the recent case of LSUC v Shore, the Appeal Panel discussed the importance of goodcharacter hearings to the profession:
"The Society has an obligation to regulate the profession in the public interest. The admission only of members of good character represents a critical component of the public interest. As well, the public must have confidence in the profession and in its regulation. It must feel that serious misconduct has not been ignored or excused in
determining whether applicants should be admitted to the bar…
We should note that, although these components are framed in the language of a regulatory scheme as it existed at the time of this application, they now have equal application, in our view, to all prospective licensees, not just prospective members of the bar. "
6. In other words, the public policy reasons for requiringthat prospective lawyers be of good character is the same for prospective paralegals.
Standard and Onus of Proof:
7. In LSUC v. Preyra, the Hearing Panel outlined the test for admission as follows:
"The onus is on the applicant to prove that he is of good character at the time of the hearing of the application. The standard of proof is the balance of probabilities. The relevant test is not whether there is too great a risk of future abuse by the applicant of the public trust, but whether the applicant has established his good character at the time of the hearing on a balance of probabilities. The test does not require perfection of certainty. The applicant need not provide a warranty or assurance that he will never again breach the public trust. The issue is his character today, not the risk of his re-offending. ..... ..... It is important not to confuse that good character requirement for admission with notions about forgiveness or about giving the applicant a second chance. The admissions panel is not in the forgiveness business…"
8. Hearing Panels have held that when allegations of misconduct are contested by the applicant, the onus is on the Law Society to prove the
offences on clear and convincing proof based on cogent evidence. In this case, the particulars of the misconduct are serious and have been admitted to by the Candidate in the Agreed Statement of Facts (ASF). The Candidate concedes that there are good character issues to be considered by the Hearing Panel.
LSUC v. Birman (2005 ONLSHP 6) Tab 6 of Book of Authorities I, followed in LSUC v. Stevens (2005 ONLSHP 15), Tab 5B of Book of Authorities I
Necessity of Hearing:
9. In LSUC v. Shore, the Hearing Panel outlined the reasons why the Law
Society is required to hold a hearing when the underlying good character issues are of a serious nature.
10. The Appeal Panel found that a hearing was important in serious cases for a number of reasons. Where the Candidate had committed a prior act of misconduct, the Hearing Panel may want to hear the Candidate's explanation about what happened and determine the level of insight into the prior misconduct, its seriousness and impact.
11. The question of whether the Candidate is of good character transcends mere consideration of whether the Candidate will succeed or not., "The import value of having serious misconduct, and its relationship to the applicant's good character, aired in a public hearing before a Hearing Panel that includes lay representation, and which can provide reviewable reasons should figure prominently in that assessment."
Factors to be Considered:
12. Hearing Panels generally consider the following factors in admission cases:
(a) the nature and duration of the misconduct;
(b) whether the applicant is remorseful;
(c) what rehabilitative efforts, if any, have been taken, and the success of such efforts;
(d) the applicant's conduct since the proven misconduct; and
(e) the passage of time since the misconduct.
13. These principles have recently been affirmed in the Armstrong v
LSUC.
Armstrong v. LSUC (2009 ONLSHP 29 (CanLII), 2009
Conditions to license:
14. As stated in LSUC v. Preyra, the Hearing Panel has no jurisdiction to impose conditions. Either the Candidate is of good character and is admitted, or the Candidate is not of good character and is not admitted.
