By: Muna Mohamed
On May 25th, 2022, the Law Society of Ontario (LSO) announced it filed a civil action in the Superior Court of Ontario, alleging a Mississauga man operating a company offering prep courses for bar exams disseminated “cheating documents” to lawyer candidates. This court action was the most recent development surrounding the cancellation of March 2022’s bar examinations.
Background
The decision to cancel the March 2022 bar exams (days before the first round of tests between March 8th and 11th) came as a shock and disappointment to many across the province. Initially, the LSO indicated they believed portions of the [barrister and solicitor] exam were compromised. However, further investigations led by a ‘third party’ revealed that test materials were leaked to assist students in cheating on the bar exam. As the investigation continued, the LSO rescheduled exams for July, this time in person.
The rule and protocols for exam conduct made by the LSO carefully outline its expectations, from general confidentiality to prohibited actions and the consequences of failing to meet those expectations. For example, students are expressly forbidden to disclose any and all exam material to an individual and or organization. Furthermore, it is strictly prohibited to receive any exam content before the designated time or from any person or entity. The LSO shares this information publicly on their website and individually with each candidate before examinations.
Professional Discipline and Good Character Requirements
For candidates found complicit in disseminating information or using prohibited material, the uncertainty of the impact on their future looms overhead; they may find that their choices may affect future opportunities within the profession through the disciplinary or the licensing process.
Professional Discipline
The Law Society Tribunal is an independent adjudicative body within the Law Society of Ontario, which makes decisions based on testimony and documents similar to courts or other administrative tribunals. Their mandate is to process, hear, and decide regulatory cases about Ontario lawyers and paralegals (and indeed candidates) in a manner that is fair, just and in the public interest. Its powers come from the Law Society Act, and its rules of procedure are made by the Law Society’s board of directors, which is called Convocation. Convocation also appoints the members of the Tribunal.
The candidate may face disciplinary proceedings through the Law Society Tribunal, where allegations are substantiated. During this process, the LSO will disclose any and all relevant evidence that it plans to present. Both the licensee and the LSO have the opportunity to bring in witnesses and file appropriate motions as each party presents arguments in support of their position.
Good Character Requirements
The candidate may also face the issue of whether they are a person of “good character” and can be granted a licence. “Good character” assessments aim to establish whether someone would practise safely and effectively if licensed. The LSO, like many other regulators, emphasizes public protection and public confidence by ensuring members act in accordance with professional standards of honesty and trustworthiness. While there may be compelling reasons to bar candidates who committed unfavourable acts in the past, the accused should be familiar with the case law and principles of mitigating factors.
For example, In Gaya v. Law Society of Ontario, the candidate demonstrated that despite being convicted of terrorism, his rehabilitation not only de-radicalized him but prepared him to rejoin society. The Tribunal members assessed Gaya’s past as a young adult and specifically the factors leading to him committing a crime. One of the main factors taken into account was that Gaya is a part of a marginalized community dealing with global persecution due to the ongoing tensions between al-Qaeda and the US. The Tribunal considered all relevant mitigating factors before eventually allowing him to become a licensed lawyer in Ontario.
Conclusion
While this cheating scandal is very different factually, Gaya helps us appreciate the significance of context and redemption. Cheating in any manner is never advised; however, the circumstances that give rise to unfavourable decisions and how one chooses to deal with the implications of their actions are highly relevant when determining penalties.
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