The B.C. Court of Appeal concluded in The Law Society of British Columbia v. Zoraik, that a bencher panel failed to consider the Charter implications of whether it could impose discipline summarily against Malcolm Hassan Zoraik. The panel also should have considered whether it had the power to refer the matter back to the LSBC’s discipline committee, said the court, in the decision issued March 27.
The appeal to the province’s highest court stemmed from the way the LSBC proceeded against Zoraik following his criminal conviction.
The former Victoria-based lawyer received an 18-month conditional sentence in 2010, after he was found guilty of obstruction of justice, mischief, and fabrication of evidence. A Provincial Court judge concluded Zoraik “manufactured evidence” by creating a fake letter that suggested there was an attempt to bribe a juror in a civil trial.
Following his conviction, Zoraik agreed not to practise law until the law society’s discipline committee released him from that undertaking.
In the fall of 2012, instead of initiating a standard disciplinary proceeding, the committee referred the matter to its benchers, under a law society rule that would summarily permit a suspension or disbarment.
The rule, which leaves it up to the benchers to determine “practice and procedure” of any hearing and whether submissions are permitted, had been invoked one other time in the past 25 years, the Court of Appeal heard.
A panel of nine benchers noted the disciplinary committee did not provide any reasons for why it proceeded this way. The panel concluded, however, that Zoraik was not prejudiced by this process and in May 2013 it ordered him disbarred.
The Court of Appeal also made reference to the lack of reasons and found it was “highly unusual” for the investigations committee to proceed this way.
Jaia Rai, the LSBC’s manager of discipline, directed questions to its communications branch. A law society spokesman says the investigations committee did not provide reasons because it is not required to provide reasons.
The appeal of the disbarment decision asked the Court of Appeal to determine whether this process violated the fundamental justice provisions of the Charter.
The Court of Appeal observed there appeared to have been confusion about the position put forward by Zoraik’s lawyer Russell Tretiak in submissions before the benchers panel, as it related to the Charter.
Tretiak told the panel he did not think it had jurisdiction to consider whether the law society rule was constitutional, but that it should decline to act on these powers in the interest of administrative fairness.
“On appeal, the appellant appears to maintain his position that the Benchers do not have the authority to entertain a Charter challenge,” wrote Justice Edward Chiasson, on behalf of a five-judge panel. “Whether or not the Benchers have the authority to grant Charter remedies, they had the obligation in this proceeding to consider the Charter argument advanced by the appellant. They failed to do so,” stated Chiasson.
Rai argued before the Court of Appeal on behalf of LSBC that the rule permitting benchers to impose discipline summarily does not violate the Charter. At the same time, she told the Court of Appeal it should not consider this issue because it was not addressed before the benchers panel by Zoraik’s lawyer.
The Court of Appeal ultimately declined to address the constitutionality of the process.
“In the circumstances of this case and in light of the state of the record, I do not consider it appropriate for this court to determine whether the appellant’s Charter rights were violated,” wrote Chiasson.
The LSBC spokesman said whether it will ultimately proceed with a full disciplinary hearing before a traditional panel of the regulator will depend on any steps Zoraik may take and what the bencher panel decides since the Court of Appeal has remitted the matter back to them.
Tretiak was out of the country and could not be reached for comment.