Law societies wrestle with discipline for child porn convictions
LSO calls for standard of presumptive revocation to maintain public confidence in the profession
The Law Society of Ontario will argue that disbarment should be the presumptive penalty for lawyers convicted of child pornography offences as it appeals the nine-month suspension from practice handed out to one of its licensees.
According to a recent Law Society Tribunal decision, Mississauga, Ont. lawyer Martin Schulz served a 45-day prison sentence plus three years of probation after a judge convicted him at trial of possession of child pornography back in 2016.
The LSO only launched disciplinary proceedings against Schulz in 2020 after he had exhausted his rights of appeal against his criminal conviction and sentence, before a panel imposed the nine-month suspension of his licence. After completing the suspension, the lawyer will also be prohibited from being alone with minors in connection with his practice and from practising law in matters relating to intimate images.
However, in a notice of appeal filed with the tribunal, the LSO took issue with the penalty, claiming the panel should have adopted a standard of presumptive revocation in relation to convictions for child pornography, which it says will give “due effect to principles of general deterrence and the maintenance of public confidence in the legal professions.”
The Law Society of British Columbia sidestepped the issue in the recent case of David Andrew Riddell, when it accepted the Maple Ridge lawyer’s undertaking not to apply for reinstatement for at least 10 years.
According to the LSBC ruling, Riddell received a nine-month conditional sentence in 2019 after pleading guilty to possession of child pornography when police found around 150 images and two videos on devices seized from the lawyer’s home.
The panel took his guilty plea into account as it accepted the proposal, as well as his remorse, mental health issues and immense suffering from the “collateral consequences of the offence, including the loss of his law career and professional reputation, the public stigma of offending, including media attention.”
If Riddell ever does reapply, the panel ruled that his conviction would be considered at that time as part of a fresh assessment of his good character and fitness to practice.
Back in Ontario, the tribunal’s review of its own jurisprudence in the Schulz decision showed that the presumptive revocation standard currently applies in cases of knowing participation in mortgage fraud or misappropriation, where it may only be rebutted by evidence mitigating the blameworthiness of the conduct at the time it occurred.
The LSO wanted child pornography offences added to the list to avoid falling out of step with other self-regulating professions. For instance, legislation governing the regulatory colleges for the province’s teachers and health professionals requires them to revoke the practising certificates of members convicted of possession of child pornography.
Schulz, who acted for himself at the hearing, argued for the continuation of an individualized approach to penalty in cases like his, pointing to an earlier decision by the tribunal. Canvassing cases across the country, it found penalties for child pornography possession ranging from six months to permission to resign. More serious cases involving both possession and distribution of child pornography resulted in the revocation, according to the ruling.
In the end, the panel hearing Schulz’ case declined to apply the presumptive revocation standard, finding that it was not supported by the weight of prior jurisprudence. In any case, it added that the standard was typically reserved for “lawyerly misconduct,” rather than those committed in a licensee’s personal capacity.
“Such off-duty conduct can and often does result in revocation where, for instance, it raises such serious concerns about client safety, personal integrity, or so undermines the public confidence in the profession that revocation is appropriate. However, when revocation is imposed, it typically follows an individualized analysis of the Aguirre factors,” the panel concluded.
Taking into account Schulz’ acknowledgement and insight into his offence, as well as his low risk to reoffend, the panel settled on a nine-month suspension.
“The respondent’s offense was serious. It was deliberate criminal behaviour, ongoing for years, exploiting vulnerable children. The respondent dishonoured himself and brought discredit on the legal professions. It merits a severe penalty,” they wrote. “However, we are of the view, in light of our assessment of the other Aguirre factors, all of which are mitigating, that public confidence in the legal professions, in their ability to self-regulate, and in the administration of justice can be maintained in the present case through the imposition of a lengthy suspension and practice restrictions thereafter.”
“As there is still a costs decision under reserve, and as the LSO has appealed from the decision, I am unable to provide any comments at this time,” Schulz wrote in a statement to Court Report Canada.
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