If sentencing circles are fine for the criminal justice system, why shouldn’t they be an option at Law Society of Upper Canada disciplinary hearings?
In a recent case involving lawyer Terence John Robinson, an LSUC hearing panel had the task of deciding whether to allow a sentencing circle for him. Robinson, a member of the Wikwemikong First Nation, has been in hot water in relation to a 2009 conviction for aggravated assault. He subsequently admitted to conduct unbecoming a licensee but wants to return to his criminal law practice representing aboriginal clients. The panel then invited submissions on whether to hold a sentencing circle for him.
In its recent ruling on the issue, the panel rejected that option in Robinson’s case. The reasons cited included the fact the suggestion of a sentencing circle came from the panel and not Robinson; there was no evidence he ever lived on the reserve; and uncertainty over whether the community would participate in the process.
But in doing so, the panel rejected arguments from the law society’s counsel that sentencing circles are inappropriate in LSUC matters. Citing the hearing panel’s duty to determine penalty, LSUC discipline counsel Deborah McPhadden argued the opinion of anyone else “is irrelevant.”
Bencher Carol Hartman, in written reasons on the issue, found otherwise. “Given that Convocation’s primary objective is to protect the public and to maintain public confidence in the legal profession, the holding of a circle would engage the public in the penalty process and could play an important role in maintaining public confidence in the profession,” Hartman wrote. Holding a circle, she added, in no way negates the panel’s ability to determine the penalty.
Hartman got the issue right. In emphasizing the law society’s duties to the public, she rightly noted the potential for sentencing circles to help maintain confidence in the legal profession. In particular, they give victims and communities a greater voice in the process while maintaining the hearing panel’s ultimate authority.
That’s not to say the panel should have allowed a sentencing circle in Robinson’s case or that there aren’t concerns or issues to work out should the law society eventually allow one to take place. But there’s no reason to prohibit them outright. If the legal system in general promotes restorative justice, surely it should apply to the profession itself.
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Glenn Kauth
