Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | JANUARY 28, 2019 7 www.lawtimesnews.com COMMENT BY DARRYL SINGER I n the last several years, thank- fully, the Law Society of On- tario has finally started to recognize the true diversity that exists in our profession. There have been different strategies to deal with women in the profession, sexual ha- rassment and ethnic diversity, as well as addiction and mental health issues. Similarly, recent Law Society Tribunal decisions make it clear that the LSO has a mandate to abide by the Ontario Human Rights Code in its investigatory and disciplinary powers and specifically to accommodate those with addiction and men- tal health issues. This is a far cry from when I was called to the bar 25 years ago, when sexual harassment was rampant, minorities were underrepresented at all levels of the profession, at the LSO, wom- en who wished to have children often became second-tier law- yers and addiction and mental health issues were never even mentioned. So why am I not jumping for joy at all this progress and un- derstanding? It's because, with my unique vantage point as a lawyer who regularly defends lawyers at the Law Society Tribunal and as- sists lawyers in crisis as a vol- unteer with the Members As- sistance Program, I see the need for more efforts to help lawyers facing these issues recover and thrive. This would be much more noble and beneficial as opposed to simply punishing them with lengthy investigations and dis- cipline proceedings that almost always result in suspensions and the permanent tarnishing of one's public image. The LSO has, admittedly, been great in terms of opening up the discussion on addiction and mental health issues and making it OK to talk about the issues and to seek help. But I believe lawyers with ad- diction and mental health issues are still those most likely to end up at the Tribunal being disci- plined. The expression "good people doing bad things" is apt here. Even in cases of misappro- priation — the most serious of all transgressions a lawyer can commit in the eyes of the LSO — most members in this situa- tion were not deliberate frauds or thieves; they simply lacked judgment and common sense owing to their addiction and/or mental health issue. And yet the LSO's way to deal with these things is to pun- ish lawyers by putting them through extensive investigation proceedings, often stripping the lawyer of the ability to practise through an interlocutory sus- pension, and then disbarring the offending lawyer. Other professional regulators have been known to take a more humane approach when dealing with members who run afoul of the regulations due to addiction and mental health issues. The Ontario College of Nurs- es is one such example. A member who is the subject of discipline proceedings as a result of an addiction or mental health issue may be offered the opportunity to voluntarily sur- render their licence on a tempo- rary basis. The public database merely ref lects a voluntary surrender with no indication as to why. The member then enters into a course of treatment for their addiction or mental health is- sue, and when the member is fit to practice, the member comes back for a capacity hearing. If the College agrees that the member is fit to practise, then the licence can be returned, without any big hullabaloo or public scrutiny. This has a two- fold effect: Discipline matters are stayed and the member gets the help they need; The lack of public shaming allows the member to obtain al- ternate employment outside the profession if they wish. By contrast, the LSO lists on its public database all discipline outcomes with no sunset date. As a result, there is a perma- nent public record against the lawyer. While protection of the pubic mandates that lawyers who pose a danger are publicly identified, there is no practi- cal basis for what is essentially an ongoing public shaming for a lawyer who is trying — after dealing with their addiction or mental health issue and serving whatever penalty the Tribunal deemed appropriate — to re- establish their practice. It's far better to have the pub- lic database time limited. For example, if you recover from your addiction or mental health issue and do not get into any additional trouble with the LSO for a certain period of time, the public notation gets taken down. Further, the resources in- volved in investigation and dis- cipline, when the addiction or mental health issue is apparent from the beginning, are a waste of the LSO's money. Fewer resources could be far better spent assisting the lawyer in recovery from their addiction or mental health issue and rein- tegration into practice. None of this need interfere with the LSO's duty to protect the public. Despite all of my comments above, I remain optimistic that we are moving in the right di- rection. That the tribunal decisions now recognize the duty to ac- commodate under the Ontario Human Rights Code and that the LSO is at least studying and talking about issues affecting women and racialized lawyers is something I could not have imagined 25 years ago. But the real progress will come when the LSO commits to using its significant resources to help lawyers who run astray due to addiction or mental health is- sues with recovery rather than squandering those resources on discipline. LT Darryl Singer is head of Commercial and Civil Litigation at Diamond & Diamond Lawyers LLP and frequently represents lawyers and other profes- sionals at discipline tribunals. BY PHILIP GIR ARD T he centenary of the death of Sir Wil- frid Laurier takes place on Feb. 17. The date marks the passing of one of the most successful politicians Canada has ever known. Liberals promoted themselves as the natural governing party of Canada in the 20 th century — in power at the federal level for nearly 70 years of it — and it was very largely due to the foundations laid by Laurier. The bare facts of his political career are stunning. Laurier was leader of the fed- eral Liberal Party for 32 years, from 1887 to 1919. To date, he is the longest-serving lead- er of any federal party, edging out even the seemingly immortal William Lyon Mackenzie King, another Liberal who had 29 years at the helm. With nearly 45 years in the House, Laurier holds the re- cord for service as an MP. And while others have served as prime minister longer than Laurier's 15 years, no other PM has won four elections back to back. Laurier stares out at us from the $5 bill, but aside from his "sunny ways" (famous- ly invoked by Justin Trudeau on election night 2015) and Laurier's assertion that "the twentieth century belongs to Cana- da," what do we really know about him? Initially an opponent of Confedera- tion, which he thought would lead to the annihilation of French Canadians, Lau- rier eventually decided to work within the political system of the new nation. Before that he had to navi- gate the minefield of Quebec politics, where the Catholic church still exercised an out- sized inf luence that he ab- horred. In his famous 1877 address on the nature of liberalism, Laurier upheld a clear separa- tion between church and state, admitting the ability of the church to express its views on some political matters but de- crying its attempts to intimi- date the faithful. His vision, faithful to the tenets of Brit- ish liberalism, became the basis of a party with strong appeal across ethnic and re- ligious lines both federally and provin- cially. Fluently bilingual, possessed of great personal charm and noble mien, Laurier was the first French-Canadian politician that English-Canadians fell head over heels in love with, presaging the career of Pierre Trudeau decades later. Yet, Laurier was always aware that this love was not unconditional, that loyalty to all things British was a key feature of the power structures in Canada and of Anglo public opinion. He constantly agonized over his in- ability to champion French-Canadian interests as much as he would have liked for fear of alienating British-identified supporters. He tentatively appointed more English and Irish Catholics to the Ontario superi- or courts, for example, but he did not ap- point a single Franco-Ontarian during his long tenure. In this, Laurier's career is reminiscent of Barack Obama's. The elevation to power of a member of a nation's historical- ly "subordinate" group creates expectations that cannot easily be met. Such figures know they are on a short leash and must tread much more warily than a representative of the "domi- nant" group. Their importance resides more in the possibilities that they open up for the future rather than their own achievements. Whatever Laurier may have done to make the Liberals the party of national unity in Canada with regard to French- English relations and to encourage mul- ticultural immigration from Europe, his government implemented many mea- sures aimed at maintaining a white Can- ada. Where Sir John A. Macdonald's gov- ernment set a head tax for Chinese immi- grants at $50 in 1885, Laurier's raised it to $500 in 1903. In 1908, Japan was obliged to "volun- tarily" restrict its emigrants to Canada to 400 per year, the same year the govern- ment adopted the notorious "continuous journey" regulation to stop immigration from India. It required immigrants from India to arrive via a continuous journey from their point of origin — after the government had ensured that no such passage existed. The Immigration Act, 1910 greatly expanded the government's power over the admissibility of classes of immigrants deemed "unsuited to the climate of Can- ada" (read non-white), while a regulation of 1911 banned "Negro" immigration af- ter disadvantaged Black farmers from the United States tried to enter the Canadian West. With regard to Indigenous peoples, Laurier's government continued the policies of its predecessors, "opening up" the West by signing treaties 8, 9 and 10 and expanding the residential schools system. A more encouraging signal was the government's decision to refer the matter of Aboriginal title in British Columbia to the Supreme Court of Canada. Before this could be done, however, the Liberals went down to defeat in the 1911 election, painted as disloyal to the Empire by Robert Borden's Conservatives as a result of Laurier's plan for free trade with the U.S. It was, ironically, Laurier's position as a French-Canadian prime minister that ultimately paved the way for greater di- versity within our political system. But such changes do not come quickly or eas- ily, and it was not until after the Second World War that the full impact of his legacy began to be felt. LT Philip Girard is a legal historian and profes- sor at Osgoode Hall Law School. He is also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Speaker's Corner Progress to be made on mental health Laurier is more than 'sunny ways' That's History Philip Girard

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