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Racism - Administrative. Barnwell v. Law Society of Ontario [racism/mitigation]
In Barnwell v. Law Society of Ontario (Div Ct, 2025) the Divisional Court dismissed an LSO JR, here against Appeal and Hearing Panel decisions of the Law Society Tribunal that "found that the appellant engaged in professional misconduct and concluded that nothing less than revocation or permission to resign would prevent the appellant from committing similar misconduct, deciding on the latter".
The court considers racism in an administrative context, here as a mitigating factor in professional discipline:[77] The Appeal Panel directly addressed the submission that the Hearing Division wrongly required a causal connection between the existence of anti-Black racism in Canada and the circumstances of the appellant in considering the mitigating effect. They addressed R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 (C.A.), a criminal decision holding that systemic racism against those in the Black community cannot diminish the seriousness of the offence as a consideration in sentencing but can offer an explanation for the commission of the offence. Causation is not required.
[78] For example, in Morris the Court of Appeal found, at para. 100, that it “was open to the trial judge to find that the evidence of anti-Black racism was connected to, or played a role in, Mr. Morris’s strong fear for his personal safety in the community. That state of mind offered a mitigating explanation for Mr. Morris’s possession of the loaded, concealed handgun. … the offender offers an explanation for possessing a loaded gun, which, to some extent, ameliorates the offender’s moral responsibility for that choice”.
[79] As held by the Appeal Panel, at para. 119:... there must be some connection between the systemic racism and the circumstances or events that are said to explain or mitigate the misconduct at issue. But the licensee does not need to show a direct causal link. [80] The Appeal Division went on to acknowledge that it could be a fine line between requiring a connection and improperly requiring a causal link. The Appeal Panel expressed a concern that the Hearing Panel’s analysis of Dr. Walker’s evidence verged on a causal analysis, which was not permitted. However, on a review of the findings of the Hearing Panel, the Appeal Panel was not persuaded that the Hearing Panel’s approach to Dr. Walker’s evidence made a difference given the factors that were considered, resulting in some mitigating effect.
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