How should the systemic discrimination experienced by registrants be taken in account in disciplinary proceedings? The Divisional Court addressed that issue in four separate contexts in Barnwell v Law Society of Ontario, 2025 ONSC 1825 (CanLII).
The lawyer was found to have engaged in serious misconduct in two transactions. Third parties had entrusted the lawyer with significant sums of money that were dispersed by the lawyer for unapproved purposes. In one transaction the hearing and appeal panels concluded that the lawyer should have known that it was dishonest. In the second transaction the panels concluded that the lawyer had constructive knowledge that it was dishonest.
The lawyer, who was Black, raised the issue of racial discrimination in four contexts.
In the first motion, the lawyer sought the recusal of the Hearing Panel (their withdrawal from determining the merits) on the basis that they were biased. The lawyer argued that he had been subjected to adverse treatment by the Hearing Panel and that his race was a factor in that alleged treatment. The Hearing Panel analyzed the interactions complained of and concluded they would not lead a reasonable observer to find a reasonable apprehension of racial bias. It further found that when race was discussed, it was done respectfully and in the context of the racism issue raised by the lawyer. The motion was dismissed. The Appeal Panel and Divisional Court agreed with this outcome.
In the second motion, the lawyer sought disclosure of the referring committee’s deliberation documents to establish an abuse of process and relied on systemic racism as the grounds for disclosure. The lawyer argued that the existence of systemic anti-Black racism extended to the Law Society as an institution and the subconscious or conscious use of stereotypical negative assumptions about Black people by Law Society employees. To meet the relevant test to obtain disclosure of these documents, the lawyer had to produce “tenable or particularized” evidence of racial discrimination against him by the Law Society. The mere existence of systemic racial discrimination was insufficient to establish improper conduct. The Hearing Panel dismissed the motion. The Appeal Panel and Divisional Court agreed with this decision.
In the third motion, the lawyer sought a stay (halt) of the proceedings on the grounds that the proceedings were tainted by anti-Black racism and delay, amounting to an abuse of process. The lawyer asserted that the proceedings were started and continued because he was Black and that fairness mandated more consideration of his personal characteristics, including his lived experience as a Black lawyer. The lawyer called an expert witness in systemic discrimination in organizations and institutions to support his position. The Hearing Panel concluded that racial bias or stereotypical negative assumptions about Black people were not a factor in the investigation or hearing. The Hearing Panel dismissed the motion and found that the fairness of the hearing had not been compromised and that the proceedings were not oppressive or unfair to the point that they were contrary to the interests of justice. The decision was also upheld by the Appeal Panel. The Divisional Court found no error in these decisions.
The fourth context related to how a registrant’s experience with systemic racism should affect the appropriate sanction. The lawyer’s misconduct was among the most serious a lawyer can engage in (dishonesty and breach of trust), and ordinarily subject to presumptive revocation. The Hearing Panel heard and accepted expert evidence of the effect of anti-Black racism on the lawyer as a mitigating factor. The Appeal Panel and Divisional Court upheld the sanction of permitting the lawyer to resign.
The decision also touched upon other issues of importance to regulators. There was an extensive discussion about the types of intent that can support a finding of professional misconduct such as deliberate intent, wilful blindness, recklessness, and that “the person ought to have known” form of negligence. The Court also accepted the panels’ analysis that, while the lawyer’s continued insistence that he had done nothing wrong was not an aggravating factor on sanction, a lack of insight into the conduct can be considered for the purpose of assessing whether the conduct is likely to reoccur. Such a likelihood could influence the type of sanction necessary to protect the public and retain public confidence in the profession and the regulator.
The decisions examining systemic discrimination in Barnwell v Law Society of Ontario provide valuable guidance for regulators grappling with these issues in various contexts. It is increasingly important for regulators to recognize that systemic racism pervades institutions and may consciously or unconsciously impact investigations and discipline proceedings involving racialized registrants. Regulators should continue to be cognizant that such concerns may be raised in the discipline process and have the potential to impact on a regulator’s public protection mandate.
