In a decision released last month, Bencher Carol Hartman rejected submissions from law society lawyers who argued the circles had no place outside the criminal justice sphere.
“Given that Convocation’s primary objective is to protect the public and to maintain public confidence in the legal profession, the holding of a circle would engage the public in the penalty process and could play an important role in maintaining public confidence in the profession,” Hartman wrote on behalf of the three-member panel.
The panel invited submissions on the issue during the penalty phase in the case of Sarnia, Ont. lawyer Terence John Robinson.
Robinson, a member of the Wikwemikong Unceded Indian Reserve, pleaded guilty to aggravated assault in 2009, and subsequently admitted conduct unbecoming a licencee of the LSUC related to his conviction. He has agreed to stop practising while the case unfolds, but wants to return to his criminal law practice representing aboriginal clients.
In written submissions, Robinson’s lawyer Jonathan Rudin claimed the case was perfect for an unprecedented LSUC sentencing circle.
“The respondent believes that the holding of a sentencing circle will allow the hearing panel to obtain a deeper understanding of the Aboriginal community’s response to the finding of conduct unbecoming a licencee,” wrote Rudin.
But law society discipline counsel Deborah McPhadden countered, urging the panel to ignore the idea because circles have no place in professional discipline.
“Not only should a sentencing circle not be held in this particular case, generally speaking sentencing circles have no place in law society discipline matters. The Law Society Act requires the hearing panel to make determination of penalty,” wrote McPhadden. “The opinion of anyone besides the hearing panel as to appropriate penalty is irrelevant.”
But Hartman said the panel would not be “abdicating its obligation to set a penalty” by holding a circle.
“Under the Law Society Act, the power and duty to impose a fit penalty is vested exclusively in the Hearing Panel. The panel is at liberty to ignore the recommendations of a circle,” Hartman said.
Despite the ruling, the panel found Robinson’s case was not suited to a sentencing circle, due to the limited evidence of Robinson’s enthusiasm for the idea, of his roots in the Wikwemikong First Nation community, or of the band’s willingness to participate.