The Law Society of Upper Canada’s conduct case against Douglas Keshen, of Keshen & Major in Kenora, Ont., was concluded on Tuesday, by mutual agreement between the parties. The longstanding case involved allegations of professional misconduct related to the handling of compensation paid under the Indian Residential Schools Settlement Agreement.
“The case did not unfold as expected and the outcome of supervisory conditions was the only viable option,” Law Society treasurer Paul Schabas said in a statement on Tuesday. “Our experience with this particular case exposed serious systemic issues involving the Law Society’s regulatory and hearing process in relation to Indigenous issues. We need to listen and learn from this, so that we can do better.”
There were three main reasons given by the Law Society Tribunal for the decision, in support of its joint submission with Keshen. “First, it says, the nature of the evidence was different than had been expected in the initial allegations. Second, it notes that the hearing was stressful for many of the complainant witnesses and this stress warranted a reconsideration of the nature and goals of the prosecution. Third, it states that the rules of evidence led to a gap between what complainants wanted to say to the Tribunal and what it was possible for them to say. The Law Society believes that moving to a process that can be more attentive to this and to processes familiar to the Indigenous community may be helpful.”
Keshen participated in an Invitation to Attend before the Tribunal hearing panel on Tuesday to receive corrective advice and guidance, “so that past lapses and mistakes are not repeated,” the Law Society said. He is expected to attend another ITA in Toronto in a few months, “after he has had time to reflect further on his actions.”
Keshen has also agreed to undergo a number of practice reviews, including a spot audit of his books and records, and professional development requirements to ensure his practices meet the required standards.
Finally, Keshen will participate in up to three circles funded by the Law Society, “if the community leaders and Elders consider them valuable,” the Law Society said in its statement.
The Law Society Tribunal hearing was before David A. Wright (chair), Janis P. Criger and John F. Spekkens. Graeme Cameron represented the Law Society, while Keshen was represented by Robin Parker and Daniel Naymark.
In a statement, Keshen’s counsel said their client was “pleased that the Law Society’s case was resolved yesterday and the charges against him dismissed with no findings.”
Keshen has always denied wrongdoing in the case.
“We sincerely hope the communities in northwestern Ontario will accept these decisions,” his counsellors said in their statement, referring also to a decision of Superior Court of Ontario Justice Paul Perell in September that rejected allegations Keshen had misappropriated residential school settlement awards made to residential school survivors.
“Mr. Keshen is not an exploiter of Residential School survivors,” his lawyers said. “Just the opposite. … [H]e is deeply committed to the First Nations of northwestern Ontario. He has been working on behalf of their communities for the past 40 years.”
The statement also noted that Keshen had met on Tuesday with two elders and the members of the Tribunal hearing panel to receive advice, “which he found valuable. Mr. Keshen also looks forward to the opportunity to take part in community circles that the Law Society has offered to fund . . . “
In an interview with Legal Feeds, law society treasurer Schabas said that “The serious issues are the issues around cultural competency and understanding . . . how we can better address the needs and expectations of indigenous people.” This includes a better understanding of how indigenous people relate to authority, how they wish to communicate with lawyers and the legal system, and what their expectations are.
For example, Schabas said, in the Keshen hearing before the Tribunal survivors wanted to tell their residential school stories, but were cut off by the lawyers and judges; they had to limit their evidence to the proceedings at hand.
“The [Law Society] Tribunal will need to do things differently, too,” he said; although there was an indigenous ceremony held before the proceedings and participants sat in circle at Keshen’s hearing, “they were still following the old rules of evidence . . . That needs to be adapted.”
The law society has a number of active cases under investigation in relation to complaints from survivors. The society will also soon be embarking on an expedited and thorough review of the Keshen case, and meeting with its indigenous advisory group, which was formed last year, to get advice. “We’ll be reaching out to the community, over the next few months, and my direction to staff and benchers is to move quickly” to address issues pertaining to the indigenous community’s relationship to the legal system.
[em]Updated: May 1, 2017, comments added from Law Society treasurer Paul Schabas.
Updated: May 2, 2017, regarding law society comment - there are no outstanding cases in discipline hearings.[/em]