Allegation was held to be uncivil conduct amounting to professional misconduct
The Court of Appeal of Manitoba upheld the conviction of a lawyer charged by the province’s Law Society for four counts of professional misconduct resulting in a six-month suspension and costs of $34,000. Among the four counts was the appellant’s claims that the Crown’s refusal to vary a no contact order (NCO) directly resulted in a suicide.
The lawyer and appellant, Ian Histed, told Canadian Lawyer he intends to seek leave to appeal to the Supreme Court of Canada, challenging, among other things, whether the Court of Appeal applied the correct standard of review.
In Histed v. Law Society of Manitoba, 2021 MBCA 20, the appellant’s client was charged with domestic assault and made subject to an NCO with his victim as a condition for judicial interim release. The appellant asked the Crown’s consent to vary the NCO, stating that despite the order, the victim had maintained contact with his client, and his client was concerned that the victim would imminently commit suicide. The Crown advised that she had given the matter substantial thought but was not prepared to relax the NCO. The victim took her own life about a month later.
This led to the appellant’s allegations, made in emailed communications, in court and in response to the Law Society complaint, that the Crown directly caused the victim’s suicide in refusing to vary the NCO. He further alleged that “[the victim’s] death was the preventable result of the negligent conduct of the Crown,” who “should be prosecuted for criminal negligence causing death.”
These assertions were brought before the Discipline Panel of the Law Society of Manitoba and were found to constitute uncivil conduct amounting to professional misconduct resulting in appellant’s conviction.
On appeal, the Court held that in applying the approach mandated in Groia v. Law Society of Upper Canada, 2018 SCC 27, the Panel had correctly concluded that appellant’s acts were uncivil and constituted professional misconduct.
The Groia approach states that a bona fide belief or absence of bad faith is insufficient to insulate the lawyer from a finding of misconduct based on uncivil behaviour, as such act must both be made in good faith and reasonable basis, said the Court of Appeal.
In this case, the appellant had limited information about the victim, conducted no investigations, and merely relied on his client as his primary source of information, said the Court. It was apparent to the Panel that appellant’s non-medically substantiated personal opinion on the cause of suicide therefore lacked adequate evidentiary or reasonable basis, and that only a medical expert, if anyone, could opine on the cause of the suicide. This decision was upheld despite the appellant coming into possession of Victim Services records revealing the state of the victim’s mental health a year after his statements were made, said the court.
Histed says the Court of Appeal applied the incorrect standard of review on whether there was a reasonable basis for his allegations.
When Groia was decided, the standard of review for Law Society and Administrative Tribunal decisions, in general, was “a deferential standard,” he says. But after Minister of Citizenship and Immigration v. Alexander Vavilov, the standard became reasonableness, except “where the rule of law requires that the standard of correctness be applied.”
In Groia, in her concurring reasons, Justice Suzanne Côté held the correct standard of review on whether a lawyer’s expressive conduct amounted to professional misconduct should be correctness, says Histed.
“And that's not the standard that the Court of Appeal applied. And that's not even something that they commented on, although it was argued before them.”
*with files from Aidan Macnab