DIVISIONAL COURT FILE NO. DC-23-00000601-00JR
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Edwards, Sachs and Davies JJ.
BETWEEN:
LAW SOCIETY OF ONTARIO
Applicant
– and –
STEPHANIE COLANGELO
Respondent
Rhoda Cookhorn and Jeanne Farmer, for the Applicant
James Melnick, for the Respondent
HEARD at Toronto: February 29, 2024
m.l. edwards r.s.j.
Overview
1The Law Society of Ontario (the “LSO”) argues on this judicial review that a lawyer or paralegal who seeks a licence to practice from the LSO and who is serving a criminal sentence cannot, by definition, be a person of good character. If someone is not of good character, they cannot obtain a licence to practice law or become a paralegal.
2The Respondent was a teacher who, in June 2018, was charged with two counts of child luring, contrary to s. 172.1 of the Criminal Code, and one count of making sexually explicit material available to a child contrary to s. 171.1 of the Criminal Code. On November 24, 2020, the Respondent pled guilty to, and was convicted of, one count of child luring regarding all three male victims who were former students of the Respondent. The Respondent was sentenced to a conditional sentence of two years less a day, which would expire on November 23, 2022. She was also subject to probation for one year thereafter. The Respondent was ordered to serve ten months of the conditional sentence under house arrest.
3On November 20, 2020, and prior to her guilty plea the Respondent applied to the LSO for a paralegal licence. The Respondent’s application was actually received by the LSO on November 26, 2020 - two days after the imposition of the criminal sentence. Every Applicant for a licence to practice law or a paralegal licence must be a person of “good character” before a licence can be issued: Law Society Act, s. 27(2). The Law Society convened a hearing to determine if the Respondent was of good character. This hearing is often referred to as a good character hearing.
4The hearing division of the LSO decided that the Applicant was of good character and granted her request for a licence, conditional on the completion of her sentence. The LSO appealed the decision to the appeal division of the LSO (The Tribunal). The Tribunal denied the appeal and the LSO filed this application for judicial review.
5For the reasons that follow, the application is dismissed.
Factual Background
6The Respondent was a high school teacher between 2003 and June 2018. The hearing division of the Law Society Tribunal (the “hearing division”) heard evidence that the Respondent had challenges within her marriage which included extramarital sexual relationships online.
7In 2017 the Respondent’s mother died unexpectedly as a result of which she began to drink alcohol. She went on a medical leave in February 2018.
8Between June 15 and June 17, 2018, the Respondent engaged in sexually explicit talk and sent sexually explicit photos and videos to a 16-year-old boy and two 17-year-old boys from the high school where the Respondent taught. All three boys had been former students of the Respondent.
9The sexually explicit talk and photographs were exchanged on an adult dating site. The photographs and videos of the Respondent were highly sexual in nature.
10On June 21, 2018, the Respondent was arrested and charged with two counts of child luring and one count of making sexually explicit material available to a child.
11On November 24, 2020, the Respondent pled guilty to one count of child luring. The remaining charges were withdrawn. A joint submission was proposed by the Crown and defence counsel for a conditional sentence order of two years less a day. Part of the conditional sentence involved house arrest. The sentence also included a probation order. The Respondent was also ordered to provide a sample of her DNA and to register on the Sexual Offender Registry for 20 years. At the time of sentencing the Respondent had no prior criminal record. In imposing a conditional sentence, the sentencing judge acknowledged that the Crown had considered the wishes of the three male victims who had indicated to the Crown that none of them felt that they had been coerced or victimized.
12The conditional term imposed on the Respondent expired on November 23, 2022. The one-year probation term would thereafter commence and terminate on November 23, 2023.
13The Respondent enrolled in the paralegal program at Mohawk College in September 2019. She graduated in June 2021.
14On November 20, 2020, prior to her plea of guilty, the Respondent submitted an application to the LSO for a paralegal licence. She used her maiden name on her application. The Respondent had also used her maiden name in job applications to avoid potential employers finding out about the criminal charges before deciding whether to offer her an interview. The Law Society argued before the hearing division that the Respondent was being dishonest when she used her maiden name. However, the hearing division found that the Respondent disclosed her criminal record in interviews. It was in this manner that the Respondent was able to obtain her paralegal placement.
15The Respondent was required to answer questions in the good character portion of her application to the LSO. There does not appear to be any issue that the Respondent was untruthful in her application to the LSO because she disclosed the criminal proceedings that she was facing as well as the fact that she had been suspended from her teaching position in April 2019 (at that time due to non-payment of fees). After her plea of guilty, the Respondent submitted further information to the LSO in which she indicated that she had been found guilty of a criminal offence. She also provided details of the conditional sentence order.
16On April 17, 2019, the Ontario College of Teachers suspended the Respondent’s teaching certificate and later revoked it on October 25, 2021.
17A good character investigation was initiated by the LSO which was followed by a good character hearing which took place in May 2022.
18On November 11, 2022, the hearing division of the LSO released its Reasons for Decision determining that the Respondent was of good character. In making its’ decision, the hearing division determined that it was not in the public interest to allow the Respondent to practice as a paralegal until her conditional sentence was complete and added a restriction preventing her from doing so until November 23, 2022, when her conditional sentence was set to expire.
19In its’ Reasons for Decision the hearing division of the LSO made a number of important factual findings as it relates to the conduct of the Respondent. Of significance are the following findings summarized from paras. 75-78 of the reasons:
a) The Respondent’s conduct while serious was of short duration;
b) The Respondent was “profoundly remorseful”;
c) The Respondent was completely rehabilitated;
d) The Respondent’s conduct since the charges had been laid was “exemplary”;
e) The four-year delay since the misconduct was sufficient and consistent with earlier jurisprudence;
20The LSO appealed the decision of the hearing division. The appeal hearing was held on April 25, 2023, and on October 12, 2023, the Tribunal dismissed the LSO appeal and concluded that there was sufficient evidence before the hearing division to support the determination that the Respondent was of good character. The Tribunal concluded that there was no absolute bar in the applicable statutory regime or jurisprudence to a finding that an Applicant serving a custodial sentence is of good character. As noted by the Tribunal at para. 57 of its reasons, the Legislature could impose such a bar by amending the Act. Alternatively, Convocation of the LSO could create an absolute prohibition on anyone serving a criminal sentence being found to be “of good character” by amending its’ By-Laws.
21The main issue on this judicial review is whether the Tribunal’s decision was unreasonable because it upheld the decision of the hearing division which granted a licence to an Applicant serving a custodial sentence, thereby failing to give due weight to the public interest. In making its’ submission in this regard, counsel for the LSO and counsel for the Respondent both agree that there is no case law that stands for the proposition that an Applicant seeking a determination of good character cannot succeed where he or she is presently serving a sentence imposed by a criminal court.
The Tribunal Decisions
The Hearing Decision
22The issue before the hearing division was whether or not the Respondent had met her onus to establish that she was a person of good character. It is a requirement of s. 27(1) of the Law Society Act, R.S.O. 1990 c.L.8 (the “Act”) that lawyers and paralegals must be of good character.
23The Law Society took the position on the good character hearing that the Respondent lacked insight and that not enough time had passed since the criminal charges had been laid against her.
24The decision of the hearing division followed to a large extent, the principles set forth in Armstrong v. Law Society of Upper Canada, 2009 ONLSHP 29. Armstrong sets forth five key factors that must be considered in a good character application, including the following:
a) The nature and duration of the misconduct;
b) The Applicant’s remorse;
c) Rehabilitation;
d) Conduct of the Applicant since the events leading to his or her misconduct; and
e) The passage of time.
25In all respects the decision of the hearing division accepted that the Respondent met all of the requirements for a finding of good character. In that regard the hearing decision stated at para. 75:
We find that Ms. Colangelo has demonstrated she is presently of good character. She has “acknowledged, understood and addressed her past conduct and has evolved”. She is remorseful, rehabilitated and has conducted herself appropriately since the misconduct. In the context of having committed a less serious crime with limited impact, the four years that have passed are sufficient to allow her to rehabilitate and be licenced.
26If there is any doubt about the findings of the hearing division on the issue of good character, paragraph 79 goes on to state as follows:
“In all the circumstances, four years is more than sufficient time for the panel to be assured that Ms. Colangelo is presently of good character. Her offences were a 72-hour departure from an otherwise law-abiding life. She has accepted responsibility for her actions and has recognized the impact of her misconduct on others. She is profoundly remorseful and has rehabilitated herself on a criminal and personal level.”
27As it relates to the argument raised by the LSO that not enough time had passed and that the Respondent was still in the conditional portion of her sentence the hearing division rejected this argument. The hearing division did however agree with the LSO that there “might be other circumstances where such a fact is determinative” but not on the facts presented by the Respondent. Specifically, the hearing division at para. 80 states:
Although the Law Society’s concern that Ms. Colangelo was currently serving the last portion of her conditional sentence does not detract from our finding that Ms. Colangelo is currently of good character, we acknowledge that it may not be in the public interest to allow her to practice until her conditional term is complete. The public would likely question a profession or its regulator that allows a profession, whose duty is to uphold the rule of law and administration of justice to practice while still in custody, even though it is being served in the community.
28As a result, the hearing division determined that the Respondent was of good character but imposed a condition that she could not practice until the conditional term of her sentence had been completed, thereby enhancing public confidence in the regulation of lawyers and paralegals.
The Reasons of the Tribunal Appeal Division
29The Law Society took the position on appeal that the hearing division’s finding that the Respondent was of good character was incorrect for three main reasons. First, not enough time had elapsed since the Respondent’s criminal conduct, conviction, and sentence. Second, at the time of the hearing not only was she still serving her sentence, but she was required to comply with SOIRA and to register her information in the NSOR. Third, the Law Society also argued that the hearing division decision could not stand because the Ontario College of Teachers had recently revoked her teaching certificate on the basis of the same behaviour that formed the basis for the good character hearing.
30The Law Society also took the position on appeal that the hearing division breached procedural fairness by deliberately delaying the rendering of its decision until shortly before the expiry of the Respondent’s conditional sentence. This resulted in a reasonable apprehension of bias.
31With respect to the issue of insufficient time, the Tribunal determined that the hearing division made no error of law when it determined that four years was a sufficient period of time since the Respondent’s criminal conduct.
32The Tribunal also found that the hearing division made no palpable or overriding error in arriving at its conclusion, based on the record before it, that a sufficient period of time has passed since the Respondent’s misconduct to determine that she was now of good character.
33In coming to its’ determination on the sufficiency of the passage of time, the Tribunal noted that the LSO had failed to provide any legal authorities to support its position that the hearing division had erred when it considered the amount of time that had passed since the Respondent’s misconduct, rather than the amount of time since conviction and sentence.
34Dealing with the second argument of the LSO that the Respondent could not meet the good character requirement because at the time of the hearing she was currently serving a sentence and was required to comply with SOIRA requirements and thereafter, subject to probation, the appeal division concluded that the hearing division’s decision on this issue disclosed no palpable and overriding error of law.
35Given the sentencing principles set forth in s. 718 of the Criminal Code, specifically, the principles of denunciation, deterrence and rehabilitation, the Tribunal rejected the LSO’s submission that it was impossible for a hearing panel to assess the character of a person who is still involved in the criminal justice system.
36The Tribunal rejected the LSO’s argument that the hearing division’s finding that the Respondent was of good character was inconsistent with the imposed condition that the Respondent could not be licenced until she completed the custodial portion of her sentence.
37The Tribunal rejected the LSO’s submission that the hearing division had failed to abide by the rules of natural justice and that the parties were denied procedural fairness. These arguments arose out of the hearing division having sought additional evidence in its’ endorsement subsequent to the completion of the hearing, specifically evidence with respect to the completion of the Respondent’s criminal sentence. Since the hearing division accepted the LSO’s objection to its proposal, the Tribunal rejected the LSO’s argument that there was any inherent bias in the actions of the hearing decision and its ultimate determination.
Issues to be Determined
38In this judicial review application, the LSO raises two fundamental issues. The first issue is whether the decision of the Tribunal was reasonable and the second is whether it was procedurally unfair. At the root of the argument presented by the LSO is the suggestion that a person who is serving a criminal sentence cannot be found to be a person of good character.
The Court’s Jurisdiction and Standard of Review
39This court has jurisdiction to hear this application under ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990 c.J.1.
40The applicable standard of review for all questions relating to the merits of the decision is reasonableness see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 23-25. The burden to demonstrate that a decision is unreasonable is on the party challenging the decision. See: Vavilov, at para. 100.
41In terms of what a reasonableness review entails, it is worth repeating the summary provided by this court in Amendola v. Law Society of Ontario, 2023 ONSC 4123 where at paras. 43 and 44 where Lococo J. speaking for this court stated:
43A reasonableness review looks to whether the decision is transparent, intelligible and justified: Vavilov, at paras. 15, 81, 86 and 94-96. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at para. 31.
44The focus of the review is on the decision actually made by the decision maker, considered as a whole, including both the decision maker's reasoning process and the outcome. The reviewing court should, as a general rule, refrain from itself deciding the issue and should not “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem”: Vavilov, at para. 83.
42With respect to questions of procedural fairness, no standard of review analysis is required. A decision is either procedurally fair or it is not.
Analysis
43Criminal offences involving children naturally and quite rightly attract a high degree of revulsion. Given the nature of the Respondent’s offences involving the Respondent, some might argue that it should have been a simple task for the hearing division and/or the Tribunal to have rejected her licensing application.
44A good character hearing, however, requires the adjudicators to consider the evidence and the applicable jurisprudence. In this case, the hearing division heard the evidence as it relates to the Respondent’s good character and applied the well-known tests set forth in Armstrong. The hearing division and the Tribunal both considered and rejected the Law Society’s argument that even where an Applicant can be found to be of good character as a matter of public policy, an Applicant cannot be found to be of good character while they are still serving a criminal sentence.
45The Law Society argues that the hearing panel and the Tribunal both erred in failing to consider the decision in Valiente v. Law Society of Ontario, 2018 ONLSTH 160, where the Tribunal dismissed a licensing application because among other things the Applicant was still on probation arising out of a criminal conviction.
46Having reviewed Valiente, I agree with the Tribunal that the facts in Valiente are distinguishable from the facts before this court. In that regard para. 39 of Valiente is worth emphasizing where the Court stated:
In Valiente, above, the hearing panel based its decision to deny Ms. Valiente’s licence application on her failure to pay victim surcharges and a civil judgment stemming from the misconduct. Ms. Valiente had failed to disclose her criminal record in circumstances that were relevant, including to her paralegal placement principle and to the church where she did volunteer work. The panel found that Ms. Valiente may not have had the courage to admit her past, even when circumstances required it. The panel was not satisfied that she had the moral fiber to do what was right in uncomfortable situations.
47Factually, as the Tribunal found, Valiente was distinguishable from the case at bar. As noted in the Tribunal’s decision, the Respondent did not have unpaid fines or judgments. More importantly, there was no evidence that the Respondent did not have “the moral fiber to do what is right in uncomfortable situations.” The Respondent had advised the minister at her church of what had happened and had provided undisputed evidence that she had disclosed her criminal record to all prospective employers. Further, the Tribunal found no “palpable and overriding error” that the Respondent’s use of her maiden name on her licencing application was “not incompatible with a finding of good character” (para. 60). In summary as it relates to Valiente the Tribunal at para. 40 of its reasons concluded that:
The concerns that led the hearing panel in Valiente to deny the licencing application are not present in Ms. Colangelo’s case.
48In my view there is nothing unreasonable in the decisions of either the hearing division or the Tribunal based on the evidence and the agreed statement of facts that led to the conclusion that the Respondent was of good character. I make this finding despite the fact the Respondent was still serving a conditional sentence accompanied by a probation order and other ancillary orders. I agree with the conclusion of the hearing division and the Tribunal that there was nothing in the governing statutory regime or jurisprudence that prohibited a finding that a person was of good character merely because they were serving a criminal sentence.
49The Tribunal found that the task of the hearing division was to determine whether the Respondent was a person of good character, considering the factors set forth in Armstrong and the jurisprudence involving other applications for a determination of good character. In that regard I agree with the reasons of the Tribunal in terms of how a good character assessment should proceed as set forth in para. 25 as follows:
“The hearing panel was required to assess Ms. Colangelo’s current character at the time of the hearing and not her prior character. The Armstrong factors are useful in addressing cases involving past misconduct, but these factors are not a code to be applied mechanically. It is the ultimate question of current good character that must be answered.
50There is a strong public interest in ensuring that only persons of good character are licensed to provide legal services in this Province. In my view, the public interest, including the public interest in rehabilitation is subsumed within the Armstrong factors. As put by the Tribunal at para. 53:
Our criminal justice system is not premised just on denunciation and punishment but also on correction and rehabilitation […] Requiring demonstration of current good character, as we have done, protects the public. Both support public confidence in a fair and just legal system. (emphasis added by the Tribunal)
51This case presented novel features in the hearing division – specifically whether or not someone could be found to be of good character who had not yet completed her criminal sentence. The hearing division dealt with this issue by imposing a condition. The Tribunal did not accept the LSO’s submission that this undermined the hearing division’s finding that the Respondent was of good character. The following conclusions of the Tribunal at paras. 39 and 44 of its reasons were entirely reasonable:
39We do not accept the Law Society’s categorical proposition that a person who is serving a sentence, is about to be subject to probation, and is required to comply with the SOIRA and register her information in the NSOR, cannot be of good character.
44The hearing panel was fully aware of Ms. Colangelo’s sentence and pending probation and it found Ms. Colangelo’s evidence of her rehabilitation and remorse genuine, and that of her social worker compelling. As stated above, the hearing panel carefully evaluated the evidence, including the testimony of Ms. Colangelo, applied the Armstrong factors, and found that Ms. Colangelo is remorseful and rehabilitated. There was sufficient evidence before it on which to make those findings and, ultimately, to conclude that she is of good character. We find no error in the hearing panel making these findings even though Ms. Colangelo was still serving her sentence.
52The LSO wants to preclude anyone still serving a criminal sentence from applying to the LSO for a determination that they are of good character and thus entitled to be licensed to practice as a lawyer or paralegal. The task of this Court is to determine the reasonableness of the Tribunal’s decision. For the reasons set forth above we see nothing unreasonable in the decision. It is open to the LSO to amend its by-laws to include a provision that a good character application cannot succeed where the Applicant is still serving all or part of a criminal sentence. It is not the role of this court to rewrite the LSO bylaws.
The Procedural Fairness Issue
The Decision of the Hearing Division
53At the conclusion of the two-day hearing, on May 19, 2022, the Hearing Panel reserved its decision. In its endorsement, dated May 18-19, 2022, the Panel stated that it would delay releasing its decision until November 1, 2022. The endorsement further noted that if anything occurred between May 18, 2022, and October 14, 2022, that was relevant to good character, the parties had until October 18, 2022, to submit an affidavit setting out the relevant evidence, accompanied by short written submissions detailing the impact it had on the good character decision. The other party would have 7 days to respond.
54The endorsement was delivered on May 26, 2022. That same day, counsel for the LSO e-mailed the Tribunal asking for clarification as to why there would be a six-month delay in issuing the reasons. On June 16, 2022, the Panel responded stating that “the reason for reserving the decision is that the panel prefers to conduct its analysis of Ms. Colangelo’s character at a time when her custodial period is at or near completion.” The deadline to object to the Tribunal’s timeline was extended to June 23, 2022.
55On June 23, 2022, LSO’s counsel submitted an objection to the Panel’s chosen manner of proceeding. Among other things, the LSO submitted that the Panel should base its decision on evidence presented at the hearing, and that it was contrary to the principles of natural justice for the Panel to unilaterally decide to re-open the case and accept further evidence.
56On August 8, 2022, the parties received a further endorsement, dated August 5, 2022, in which the Panel summarized its previous endorsements and the LSO’s objections. The endorsement concluded by stating that since Ms. Colangelo took no position on the LSO’s objection, and despite the fact that the procedure set out in the May 18-19 endorsement was efficient and in the interests of both parties, the Panel would provide its reasons in the normal course and without accepting further evidence.
57The hearing division’s reasons for decision and the order were released on November 11, 2022.
The Decision of the Tribunal Re Procedural Fairness
58The release of the reasons from the hearing division almost coincided with the completion of the Respondents conditional sentence (conditional sentence completed November 23, 2022; Reasons of the hearing division released November 11, 2022). On appeal to the Tribunal the LSO argued that the hearing division failed to abide by the principles of natural justice in the process that it followed prior to the release of its reasons. Specifically, the LSO argued that by delaying the release of its reasons until the Respondent had completed her conditional sentence resulted in a process that was procedurally unfair and created an appearance of bias which had tainted the decision.
59The Tribunal framed part of the argument by the LSO as one that suggested the hearing division had “deliberately delayed” the release of its reasons to coincide with the completion of the Respondent’s conditional sentence. Dealing with that argument the Tribunal concluded at paras. 76 and 77 of its reasons as follows:
76Furthermore, there was no reason for the hearing panel to deliberately delay its decision. The hearing panel dealt directly with fact that Ms. Colangelo was still serving her sentence in its reasons and by including in its order the restriction that she may not commence providing legal services until she has served her sentence. It was open to the panel to make this order in June or at any time prior to the eventual issuance of the order in November.
77The hearing panel’s reasons do not indicate that the panel relied on the fact that Ms. Colangelo’s conditional sentence order was near an end in granting her application for licence. Rather, it based its decision to grant the licence on its finding that Ms. Colangelo is currently of good character.
60The LSO also argued that the endorsement from the hearing division released May 18-19, 2022, “to conduct its analysis of Ms. Colangelo’s good character at a time when her custodial period is at or near completion” was inappropriate and that it amounted to an unfair process. The LSO further argued that the delay in the release of the hearing division’s reasons gave rise to a reasonable apprehension of bias.
61The arguments made by the LSO regarding procedural unfairness and bias were rejected by the Tribunal. In doing so it was noted by the Tribunal that the offer by the hearing division to receive additional evidence from the parties after the completion of the hearing was objected to by the LSO and was not accepted by either party. As such no additional evidence was provided to the hearing division and none was relied upon.
62In rejecting the Tribunal’s unfairness and bias arguments the Tribunal at paras. 89-91 stated:
[89]…. . Whatever the hearing panel’s motives were for initially requesting additional evidence and proposing to delay its decision until closer to the time when Ms. Colangelo’s custodial sentence was completed, the endorsements do not indicate bias and do not taint the panel’s decision.
90An informed person viewing this case realistically and practically would not conclude that it was more likely than not that the panel, whether consciously or unconsciously, would not decide fairly. 12 2015 SCC 25. 13 Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC). 2023 ONLSTA 16 18.
91The strong presumption of impartiality of the judiciary applies to the panels of this Tribunal. There is a high burden on a party alleging bias and the Law Society has not met that burden in this case.
Conclusion
64For these reasons, the application is dismissed. As agreed, the LSO shall pay the Respondents costs fixed in the amount of $5000.00.
M.L. EDWARDS R.S.J.
I agree _______________________________
SACHS J.
I agree _______________________________
DAVIES J.
Released: May 31, 2024
CITATION: Law Society of Ontario v. Colangelo, 2024 ONSC 2446
DIVISIONAL COURT FILE NO. DC-23-00000601-00JR
DATE: 20240531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. Edwards, Sachs and Davies JJ.
BETWEEN:
LAW SOCIETY OF ONTARIO
Applicant
– and –
STEPHANIE COLANGELO
Respondent
REASONS FOR DECISION
M.L. EDWARDS R.S.J.
Released: May 31, 2024