A lawyer (Hamilton) successfully appealed from a decision of the Law Society, which had found her guilty of professional misconduct for visiting a jail with a prisoner’s girlfriend and identifying that girlfriend as her assistant in order to facilitate access to the prisoner.

24. October 2006 0

Administrative law – Decisions of administrative tribunals – Law Societies – Hearings – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Penalties – Suspension – Judicial review – Witnesses – Evidence – Standard of review – Reasonableness simpliciter

Hamilton v. Law Society of British Columbia, [2006] B.C.J. No. 1741, British Columbia Court of Appeal, August 2, 2006, Rowles, Mackenzie and Levine JJ.A.

The Law Society of British Columbia issued a citation alleging that Hamilton had attended at the Provincial Correctional Facility in Vancouver in the company of another person in order to arrange to visit an inmate and that, while at the facility, she indicated to staff that the person with her was her assistant.

A three-member panel of Benchers of the Law Society heard evidence and rendered a decision finding Hamilton guilty of professional misconduct and imposing a three-month suspension and directing that Hamilton pay hearing costs in excess of $10,000.

On appeal, the Court determined that the Panel had arrived at an unreasonable verdict by not applying the standard of proof correctly and by misapprehending material evidence.

In October 2000, there was a physical altercation between two acquaintances of Hamilton at a Kitsilano-area pub. One of the acquaintances, a Mr. McLauchlin (“McLauchlin”), was taken into custody by the Vancouver Police.

The second acquaintance of the Appellant, a Ms. Neeld (“Neeld”), persuaded Hamilton to attend at the Provincial Correctional Facility to meet with McLauchlin. Neeld attended at the jail facility with Hamilton. There was conflicting evidence before the Law Society Panel as to how Hamilton identified Neeld to Correctional Officers at the jail. Hamilton ultimately attended and met with the prisoner while Neeld remained outside. Hamilton contended that she identified Neeld as the partner of the prisoner and that she requested that Neeld be allowed inside the jail because it was raining and the jail was situated in an unsafe area of Vancouver.

There was also evidence that one of the Correctional Officers made a racist remark about Hamilton and was suspicious that Hamilton’s name did not match her racial appearance, leading to a suspicion that she was using another person’s Law Society identification card.

The Law Society hearing took place more than two years after these events.

Hamilton argued that the essential question on the appeal was a question of law that should attract the correctness standard, while the Law Society argued that reasonableness simpliciter was the appropriate standard.

The Court held that the appeal raised questions of law, but that not all of the issues were restricted to pure questions of law. The questions were ones of mixed fact and law and therefore attracted a higher standard of deference than correctness. In addition, the legislative purpose of the Legal Profession Act favoured deference in order to give effect to the legislature’s intention to protect the public interest by allowing self-regulation of the legal profession. Therefore, the standard of review was held to be reasonableness simpliciter.

The standard of proof to be applied by the Law Society Panel was as articulated in the British Columbia Supreme Court decision of Jory v. College of Physicians and Surgeons of British Columbia, [1985] B.C.J. No. 320, which stated:

The standard of proof required in cases such as this is high. It is not the criminal standard of proof beyond a reasonable doubt. But it is something more than a bare balance of probabilities. The authorities establish that the case against a professional person on a disciplinary hearing must be proved by a fair and reasonable preponderance of credible evidence.

Hamilton argued that although this was the appropriate standard of proof, the Panel erred in applying that burden of proof correctly in assessing whether she was guilty of professional misconduct.

The Court of Appeal subjected the reasons to a somewhat probing examination and found that the standard of proof was not properly applied and that the Panel misapprehended material evidence. In particular, the Panel proceeded with only two possibilities in mind: either the Appellant was lying, or the Correctional Officers were lying. The Panel did not appear to be alive to the possibility that there had been a miscommunication between the officers and Hamilton, which resulted in a misunderstanding about the identity of Neeld.

Mr. Justice Cory in the decision of R. v. W.(D)., [1991] 1 S.C.R. 742 held that the Panel, in this type of situation, did not have to decide between two versions of events, but was charged with deciding whether there was clear and cogent evidence to establish that Hamilton had done what she was alleged to have done in the citation.

The Law Society’s conclusions ignored evidence that jail staff doubted Hamilton’s identity as a lawyer based on what was perceived as a discrepancy between her name and her racial appearance. The Panel’s decision also misapprehended the evidence that two of the Correctional Officers had discussed their understanding of the events with one another, rather than reaching those understandings independently. The Panel also found that there was a flurry of activity around the events in questions, which would have been inexplicable absent the introduction by Hamilton of Neeld as her assistant. The Panel did not consider the evidence that such a flurry of activity could be readily explained by the suspicion that Ms. Hamilton was not really a lawyer and had presented bogus identification in order to gain access to the jail. The Court also pointed out that the citation did not allege that Hamilton had attempted to gain access for Neeld so that she could see McLauchlin. There was no need to determine whether this allegation could be proven to a requisite standard.

The Court also pointed out that the testimony of the Law Society witnesses was “replete with confusion and contradiction” and that this confusion arose from faulty recollections and a failure to make a contemporaneous record of the events. The cross-examination of those witnesses was meant to highlight that confusion and to demonstrate weaknesses in the recollection of the Law Society’s witnesses and did not introduce confusion through irrelevant questioning, as the Panel contended.

The Court of Appeal also noted that the racial undertone to the allegation that Hamilton had used bogus identification should have been analysed by the Panel in terms of how it may have affected the perceptions of the Correctional Officers with respect to what Hamilton had told them. By excluding consideration of the racial and derogatory remarks from their context, the Panel had possibly given the testimony of the Correctional Officers more credibility than it was due.

The Court of Appeal concluded that while a reviewing court may not reweigh the evidence or substitute conclusions for those of the Panel, the Court could find that the Panel had failed to take relevant considerations into account. In this case, the Court of Appeal held that by taking a “preferred version of events” approach “the Panel failed to assess the evidence to the requisite standard of proof”. The appeal was allowed and, given the lapse in time since the events in question, the Court found that there was no purpose to be “served by referring this matter back to the Benchers for further inquiry”. Costs of the appeal and the hearing were awarded to Hamilton.

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