Court File and Parties

CITATION: Budd v. Law Society of Upper Canada, 2012 ONSC 412

DIVISIONAL COURT FILE NO.: 106/11

DATE: 20120208

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Peter Brian Budd, Appellant

AND:

The Law Society of Upper Canada, Respondent

BEFORE: A.C.J.S.C. Cunningham, Jennings and Gray JJ.

COUNSEL: Frank Addario and Jill Copeland, for the Appellant Lisa Freeman and Leslie Maunder, for the Respondent

HEARD: January 16, 2012

Endorsement

[1] Mr. Budd appeals a decision of the Appeal Panel of the respondent Society, which dismissed his appeal from an order of the Society’s Hearing Panel, revoking his license to practice law. Mr. Budd asks that the decision of the Appeal Panel be set aside and that the order of revocation of his licence be replaced by an order suspending him from practice for a period of time to be determined by this Court. Alternatively, he asks that the matter be remitted for a rehearing before a new Hearing Panel.

[2] The evidence established that Mr. Budd became a close friend and intimate of his neighbours, the “D” family, including the three “D” children, “M” “A”.” and “K”. When the children were in their early mid teens, Mr. Budd entered into sexual relationships with each of them, as a result of which he was charged with sexual assault and sexual exploitation of each child. He was acquitted of the sexual assault charges. He was convicted of sexual exploitation of each of “K” and “A”.

[3] In convicting Mr. Budd, the trial judge found that he was in a position of trust with respect to “K” and “A”. The trial judge found that because of his close relationship with the “D” family, and the trust and confidence that they placed in him, Mr. Budd was able to engage in sexual relations with the three daughters. He was sentenced to nine months incarceration.

[4] His appeal from conviction and sentence to the Court of Appeal was dismissed. His application for leave to appeal to the Supreme Court of Canada was denied.

[5] As a result of his convictions, the Law Society commenced a hearing before a Hearing Panel which heard the matter over four days in 2009. Before the panel, Mr. Budd acknowledged that his actions and conviction constituted conduct unbecoming a barrister and solicitor. The panel revoked Mr. Budd’s licence.

[6] Mr. Budd appealed to the Appeal Panel. That panel reviewed the lengthy and thorough reasons of the Hearing Panel, concluding that that panel’s decision to revoke was reasonable on the evidence before it. The appeal was dismissed.

[7] Mr. Budd now appeals to this Court.

[8] The parties agree and we accept that the standard of review of the decision of the Appeal Panel is reasonableness.

[9] The grounds of appeal argued by the appellant are:

(a) the panels below erred in holding that there was an absence of remorse;

(b) the panels below erred in ruling that Mr. Budd’s counsel could not re-examine Dr. Bradford on a letter allegedly recanting some allegations of one of the complainants;

(c) the panels below erred in giving no weight to his admission of guilt and Mr. Budd’s co-operation with the Law Society as evidence of remorse and as a mitigating factor;

(d) the panels below erred in giving no weight to evidence of Mr. Budd’s good character because it was not coupled with evidence of a medical or psychiatric condition that explained his conduct;

(e) the panels below erred in characterizing Mr. Budd’s conduct as similar to other cases in which revocation was ordered when those other cases were more serious;

(f) the penalty of revocation was harsh and unreasonable in the circumstances.

[10] Counsel for the Law Society objected to this Court considering grounds (a) and (c), as they were not raised before the Appeal Panel. Whether or not the objection relates to the jurisdiction of the Court, we are of the view that, in general, such an objection has considerable force, since the Court is to review the decision of the Appeal Panel on a standard of reasonableness. This cannot realistically be done where the appellant has not argued a particular ground and, as a consequence, the Appeal Panel has not dealt with it. Notwithstanding, we have decided to deal with these issues, which arguably were tangentially before the Appeal Panel.

[11] We did not call on counsel for the Law Society to respond to ground (b). In our view, assuming, without deciding, that there may have been an error in the evidentiary ruling, it could have had no impact on the ultimate result.

[12] Grounds (a) and (c) are related. In our view, there is no merit to them. Both the Hearing Panel and the Appeal Panel examined the evidence carefully. In substance, the Hearing Panel was of the view that, in order for there to be real remorse there must be an acceptance of the misconduct by the wrongdoer. The Hearing Panel noted that the admissions by the appellant did not really constitute an acknowledgement that he had been in a position of trust with the young girls, and that he had abused that position of trust in engaging in sexual relationships with them. There was no real acknowledgement of the harm he had done to the entire family. No evidence of remorse was given by Mr. Budd at the hearing. It was acknowledged that lack of remorse could not act as an aggravating factor. Mr. Budd’s cooperation in facilitating and expediting the hearing, while helpful, was not particularly germane in view of the criminal conviction, which would have allowed the Law Society to proceed without Mr. Budd’s cooperation. These conclusions were reasonable, and we would not interfere.

[13] As to ground (d), the Hearing Panel set out, in some detail, the character evidence. In doing so, the Panel noted some of its flaws; for example, that some witnesses were not fully informed of the nature of the misconduct or its extent. It was accepted by Little J. and both Law Society panels that the appellant was of exemplary character before, and apparently during, the commission of the offences. Presumably, this would have allowed him to develop his close relationship with the entire family, and ultimately made it possible for him to establish a relationship of trust to facilitate the commission of the offences. The reference to medical or psychiatric evidence was in the context of the Panel’s conclusion that it would be important to understand how or why, notwithstanding an offender’s good character, the offences were committed in the first place. At para. 96 of its decision, the Hearing Panel referred to “the importance of some medical or other explanation for the lawyer’s conduct”, and at para. 97 to “the absence of medical, scientific or other appropriate evidence.” The appellant had effectively offered no explanation for his conduct. In our view, the panel’s treatment of the issue of the appellant’s good character was reasonable, and we would not interfere.

[14] Grounds (e) and (f) speak to the fundamental issue at stake. Mr. Budd submits that given his sterling professional reputation, and his standing in and contributions to his community, the ultimate sanction of revocation was too harsh. The conundrum facing those who have had to deal with this issue was succinctly stated by Little J. in his sentencing reasons as follows, “In my view, but for the breach of trust, all other sentencing factors to be considered are mitigating.”

[15] The Hearing Panel, at para. 90, summarized the matter before it as being “convictions for sexual misconduct involving a breach of trust with young persons over a lengthy period of time.” The Panel noted that in Ontario jurisprudence the presumptive penalty, where sexual exploitation is established, is revocation/disbarment, or permission to resign. It recognized that its over-arching obligation was to maintain “the collective reputation of the legal profession and the public’s confidence in the membership and regulation of that profession.” It found that notwithstanding Mr. Budd’s outstanding career, and his many good qualities, collectively they did not mitigate “the distrustful, deceptive and prolonged nature of the sexual exploitation” that had been established. (Reasons, para. 108). The Appeal Panel held that those findings, and the penalty imposed, were reasonable.

[16] The decisions of disciplinary bodies imposing penalties on a professional colleague are entitled to respect. Here, after two lengthy hearings, eight of Mr. Budd’s peers, after careful and thoughtful review, and acknowledging his admirable professional reputation, have concluded that revocation is the only penalty that adequately addresses the enormity of his misconduct. In our opinion, that penalty is well within the range of what is reasonable on the facts established.

[17] Dispositions made of specific cases are based on the specific facts of each case, and it is unlikely that two cases will be identical. Furthermore, the standard of reasonableness dictates that any particular case may have a range of acceptable outcomes. Accordingly, it will be difficult to argue that different treatment of apparently similar cases should necessarily result in a successful appeal of a particular penalty. Having said that, it was reasonable for the tribunal to consider that sexual offences involving minors are more serious than sexual offences involving adults. Young people have not developed to the stage where they are able to make adult choices involving sexual activity. The appellant has not shown reviewable error.

[18] For the foregoing reasons, the appeal is dismissed.

[19] The Court will entertain written submissions as to costs, not to exceed three pages together with a costs outline. Counsel for Law Society shall have ten days to file submissions and counsel for Mr. Budd shall have a further ten days.

A.C.J.S.C. CUNNINGHAM.

JENNINGS J.

GRAY J.

Released: February 8, 2012