Good character, bad predictor, for law societies

Advocates of improving diversity in the legal profession will point to many structural barriers in need of reform, but the “good character” process will top almost everyone’s list.

The Law Society of Manitoba was just the latest legal regulator facing calls for reform when the Canadian Civil Liberties Association released a letter to the provincial regulatory body about this process.

Amy Salyzyn, an associate professor at the University of Ottawa’s faculty of law, says there is a lack of evidence that the “good character” process is even effective in protecting the public.

“If you look at the number of questions on the good character requirement form . . . it would be interesting to know what empirical evidence is behind [each] question,” says Salyzyn. “Because the connection between those questions and future concerns aren’t always evident. I think it’s a part of a broader need for law societies to engage in evidence-based regulation.”

Salyzyn and the CCLA letter both point to research done by Alice Woolley, a professor at the University of Calgary law school before her appointment to the Court of Queen’s Bench in Alberta. Woolley’s research concluded that there is little evidence that past misconduct is a meaningful predictor of future behaviour. Salyzyn says research in the United States has come to a similar conclusion.

Naomi Sayers is an Indigenous lawyer who has spoken publicly about her experience undergoing a good character investigation with the Law Society of Ontario. Sayers says that even though she was eventually called to the Ontario bar in 2018, the investigation still affects her.

“When I applied to [practise in] Alberta, I have to disclose almost every single thing again. . . . All the title insurance providers require similar disclosures. They say, ‘Have you ever been under investigation?’ So, this investigation is going to be following me everywhere for the rest of my life.”

Sayers says there is still a strong public interest element to the good character requirement and that privacy interests should not always trump the professional regulatory process. However, law societies should provide more clarity to articling students “who don’t understand what’s required until they’re in an investigation,” she says.

Sayers welcomes the increased transparency announced by the Law Society of Ontario in February 2019 (see sidebar).

Samantha Peters, a lawyer and the Black legal mentor-in-residence at the University of Ottawa’s faculty of law, has also been outspoken about the barriers faced by underrepresented groups in the legal profession.

“I understand that the good character requirement is intended to protect the public and maintain high ethical standards in the profession,” says Peters. “But I think that the current process, as it stands, does not fully take into account the over-policing, wrongful convictions and criminalization of everyday movements of Black, Indigenous and criminalized folks.”

Peters says many past convictions are irrelevant to the law society’s role in protecting the public. “When the past criminal conviction has nothing to do with the practice of law, nor the public’s interest, I don’t think that it needs to be disclosed. . . . Convictions for minor offences should not have to be disclosed.” 

Good character requirement

Law societies in several provinces provided the following information to Canadian Lawyer about what changes they have done or plan to do to address systemic barriers related to the good character requirement:

• The Law Society of Ontario: In February 2019, Convocation approved several changes, including a new policy statement and staff training to assess the character of diverse candidates and information provided to candidates subject to a good character investigation about required supporting documentation.
• Nova Scotia Barristers’ Society: In April, the NSBS announced that it is undertaking an independent external review of its processes to address systemic discrimination. The NSBS anticipates it will be completed in early 2022.
• Law Society of British Columbia: In addition to providing guidance that explains the contextual approach that it takes regarding character to become a lawyer, the LSBC says it was “instrumental” in adding this to the Federation of Law Societies of Canada’s agenda to develop national standards.
• Law Society of Manitoba: The group is establishing an Indigenous Advisory Committee, chaired by retired Manitoba judge and senator Murray Sinclair, to guide the body in addressing “the unique needs and perspectives of Indigenous peoples within the law society’s regulatory processes.”