



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Johnson v. Law Society of British Columbia,









2018 BCCA 40




Date: 20180129

Docket: CA43750

Between:

Martin Drew
Johnson

Appellant

And

The Law Society of
British Columbia

Respondent




Before:



The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

The Honourable Mr. Justice Hunter




On appeal from:  A
decision of the Benchers on Review, dated May 31, 2016
(
Law Society of British Columbia v. Johnson
, 2016 LSBC 20).

Oral Reasons for Judgment




Counsel for the Appellant:



T.C. Paisana





Counsel for the Respondent:



G.B. Gomery, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 29, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2018








Summary:

Appeal by J from a decision
of a Law Society review board upholding a finding by a hearing panel that using
profanity in a courthouse hallway in a heated conversation with a police
officer constituted professional misconduct. J contends the board did not
properly apply its internal correctness standard of review to the facts found
by the panel and that, in any event, the boards decision was unreasonable. Held:
Appeal dismissed. The review board reviewed the facts found by the panel and
independently determined Js conduct was a marked departure from the conduct
the Law Society expects of its members. That determination was a reasonable
one.

[1]

FRANKEL J.A
:  The appellant, Martin Drew Johnson, is a lawyer who
was disciplined by the Law Society of British Columbia for using profanity in a
courthouse hallway. A hearing panel found Mr. Johnson guilty of professional
misconduct and a review board dismissed his appeal. Mr. Johnson now appeals to
this Court.

[2]

The incident in question involved an interaction between Mr. Johnson and
a police officer, Constable B, at the Kelowna courthouse. At that time, Mr.
Johnson acted for a client who was being tried in Provincial Court on an
assault charge. The complainant was the clients estranged wife; Constable B
was a potential Crown witness.

[3]

After the complainant completed her testimony, the trial adjourned for
the afternoon break. Mr. Johnson and Crown counsel then had a discussion in
which they agreed the appropriate disposition of the charge was for
Mr. Johnsons client to enter into a peace bond. As Crown counsel wished
to speak with Constable B, he and Mr. Johnson met with the officer in the
hallway outside the courtroom. No one else was in the immediate area.

[4]

What happened next can be stated as follows:

(a)    Mr. Johnson asked Constable B to
attend the former matrimonial home with his client while the client picked up a
few of his belongings;

(b)    Constable B refused;

(c)     the situation between Constable
B and Mr. Johnson became heated and volatile;

(d)    Crown counsel intervened and
suggested a solution that seemed workable to both sides;

(e)    when Mr. Johnson asked Constable
B if he could smell the marihuana in the house, Constable B replied, Dont for
a minute think that I dont know who you are or what you are about;

(f)     Mr. Johnson said fuck you to
Constable B;

(g)    at this point Mr. Johnson and
Constable B came very close together, almost nose to nose. Their chests or
stomachs were touching;

(h)    Constable B said, You dont
scare me, you big shot lawyer, and he pointed out that their chests were
touching. Constable B then said, Thats assaulting a police officer;

(i)      Mr. Johnson said, You are
assaulting me, to which Constable B replied, You havent seen anything until
youve seen an RCMP assaulted; and

(j)      Constable
B then spun Mr. Johnson around, arrested him and, with the assistance of one of
the sheriffs officers, handcuffed Mr. Johnson.

[5]

Constable B sought to have Mr. Johnson charged with assault. The matter
was referred to the Crown counsel office in Prince George, which declined to
approve any charges.

[6]

A three-member hearing panel unanimously found Mr. Johnsons use of the F
word constituted professional misconduct, i.e., his conduct was a marked
departure from the conduct the Law Society expects of its members: see
The
Law Society of British Columbia v. Martin
, 2005 LSBC 16 at para. 171. The panel
members, however, were not unanimous in their reasoning.

[7]

What divided the panel members was the concept of provocation. The
majority, which found Mr. Johnson had acted in anger and meant to insult
Constable B, stated provocation can never be used as a defence to uttering
profanities in anger in a courthouse, as lawyers are expected to rise above
the fray. The minority, on the other hand, stated the use of profanities can,
in some circumstances, be excused. However, that panel member was of the view
Constable Bs conduct did not excuse Mr. Johnsons conduct.

[8]

Mr. Johnson appealed the finding of professional misconduct. Before the
review board he argued the hearing panel erred in:

(a)       concluding that
provocation is irrelevant to a determination of professional misconduct;

(b)       concluding that
provocation should not be a defence or excuse to professional misconduct; and

(c)        finding his actions constituted professional
misconduct.

[9]

In reasons indexed as 2016 LSBC 20, a review board (6:1) dismissed that
appeal. Both the majority and dissenting board members stated they were
applying the correctness standard of review to the facts found by the hearing
panel. I will return to the standard of review as it is one of Mr. Johnsons
grounds of appeal.

[10]

The majority of the review board held that provocation could not be used
as a defence to an allegation of professional misconduct. Rather, it opined
that provocation was only one of many possible factors to be considered on a
case-by-case basis in determining whether professional misconduct had occurred.
Turning to what transpired between Mr. Johnson and Constable B, the majority
stated:

[24]      Each
case will have its own unique facts, and we will not set out here a test for
what amount or quality of provocation is required to prevent what would
otherwise be a finding of professional misconduct. Provocative words are so
enmeshed in the context of what was said, who said it, how it was said, timing,
intent, demeanour, who heard the words, who was intended to hear the words,
cultural understandings and so forth, that it is impossible to lay down a rule
here. Even using the qualifier by the minority that the provocation must be
extreme is difficult to define. Again, this is best left with future hearing
panels to determine should the issue arise again.

[25]      In any
event the words spoken by the officer (Don't for a minute think I don't know
who you are and what you're all about) were found by the hearing panel to be
insufficiently provocative. The hearing panel was in the best position to
observe and determine this issue. There is nothing in the evidence to suggest
any error in this conclusion.

[26]      [Mr. Johnson] argued that such
words were intended to impugn his character. This might be so, but many lawyers
at some point in time have had an opposing party or hostile witness call into
question their character. No doubt such comments sting, but to excuse [Mr. Johnsons]
reply to these provocative words in the circumstances of this case would send a
message that it is permissible for counsel to trade an insult for an insult.  This
cannot be countenanced.

[11]

In addition, at para. 30 of its reasons, the majority quoted with
approval the following from the minority reasons of the hearing panel:

[48]      I
conclude that, while the remarks of [Mr. Johnson] are understandable, they are
not excusable and constitute a marked departure from what the Law Society
expects of its membership. I find that [Mr. Johnsons] words constitute
professional misconduct. I feel that a reasonable and proper response from [Mr.
Johnson] was to say nothing further. He should have bitten his lip and walked
away.

[49]      The
publics confidence in their public institutions, such as the courts, and the
integrity of the legal profession, are but a few of the underpinnings in
safeguarding a free and democratic society. The use of profanity by [Mr.
Johnson], a member of the legal profession and an officer of the court, towards
a potential witness in a case within the confines of the courthouse and within
the presence of others could have the effect of eroding public confidence in
these bodies and constitutes behaviour that I believe must be rebuked.



[51]      Even if litigation can
occasionally be hostile, aggressive and even fierce, that does not, in our
view, excuse the conduct of [Mr. Johnson]. If indeed the practice of litigation
has become aggressive and fierce, then it becomes even more important that the
Law Society, to the extent it can, control and limit the type of behaviour that
constitutes a marked departure from the conduct it expects from its members.

[12]

The
dissenting review board member found the hearing panel had erred in
disregarding Constable Bs conduct and that, under the circumstances,
Mr. Johnsons conduct, although wrongful, was excusable.

[13]

Mr. Johnson now advances two grounds of appeal. These are stated as
follows in his factum:

i.       The
Majority of the Review Board erred in applying an incorrect standard of review;
and

ii.       The Decision of the
Majority of the Review Board was unreasonable.

[14]

The first ground relates to what is sometimes referred to as the
internal standard of review. At the outset of its reasons the majority said
this with respect to that standard:

[4]        It was agreed by both parties that
the standard of review is correctness.  This applies to both the finding of
professional misconduct and the penalty imposed. Although this Review Panel is
bound by the findings of fact made by the hearing panel, if the hearing panel
applied the law in error and reached the wrong conclusion or determination, the
Review Panel may correct this with its own determination (see
Law Society
of BC v. Foo
, 2015 LSBC. 34 at paragraph 9;
Law Society of BC v. Harding
,
2015 LSBC 45 at paragraph 23).

[15]

As discussed in
Harding v. Law Society of British Columbia
, 2017
BCCA 171, 98 B.C.L.R. (5th) 275, Law Society review boards have with rare
exceptions, applied what has come to be known as the 
Hordal/Berge
standard, named after the decisions in
Law Society of British Columbia v.
Hordal
, 2004 LSBC 36, and
Law Society of British Columbia v. Berge
,
2007 LSBC 7. In
Harding
, Justice Kirkpatrick described that standard as
follows (at para 6):

[T]he standard is correctness,
except where the hearing panel has heard
viva voce
testimony and had the opportunity to assess witnesses credibility, in which
case the review board should show deference to the hearing panels findings of
fact.

[16]

Mr.
Johnson does not challenge the
Hordal/Berge
standard. His complaint is
that the review boards reference to that standard was nothing more than boilerplate.
Mr. Johnson says the majority of the board did not conduct its own correctness assessment
of the facts but, rather, limited its consideration to whether the hearing
panels finding of professional misconduct was reasonable. In support of this
submission, Mr. Johnson places emphasis on certain passages from the majority
reasons.

[17]

I
am unable to accept this argument. When the majority reasons are read as a
whole, it is apparent that it based its decision on an independent assessment
of the facts found by the hearing panel. In other words, the majority applied
the correctness standard required by
Hordal/Berge
.

[18]

Mr.
Johnson next says that even if the majority applied the proper standard of
review, its decision is unreasonable. It is settled law that the reasonableness
standard of review applies on an appeal to this Court from a disciplinary
decision:
Harding
at para. 5.

[19]

Recently, in
Foo v. Law Society of British Columbia
, 2017 BCCA
151, 97 B.C.L.R. (5th) 148, this Court upheld a review boards finding of
professional misconduct against a lawyer who, in a courthouse hallway, told a
social worker whom he did not know, that he should shoot her, because she
takes away too many kids. In discussing the deference owed to the boards
decision (at para. 48), I quoted the following from the judgment of Justice D.
Smith in
Salway v. Association of Professional Engineers and Geoscientists
of British Columbia
, 2010 BCCA 94, 3 B.C.L.R. (5th) 213, leave to appeal
refd [2010] 2 S.C.R. vii:

[32]      The reasonableness
standard of review acknowledges that there is a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Reasonableness
requires courts to give deference to a professional bodys interpretation of
its own professional standards so long as it is justified, transparent and
intelligible.  [I]t is the disciplinary body of the professional organization
that sets the professional standards for that organization. So long as its
decision is within the range of reasonable outcomesi.e., it is justified,
transparent and intelligibleit is not for courts to substitute their view of
whether a members conduct amounts to professional misconduct.

[20]

With respect to law societies in particular, it has long been accepted
that benchers are in the best position to determine issues of misconduct and
incompetence:
Pearlman v. The Manitoba Law Society Judicial Committee
,
[1991] 2 S.C.R. 869 at 880 (
per
Iacobbuci J.). As Justice MacFarlane
stated in
Wilson v. Law Society of British Columbia
(1986), 33 D.L.R.
(4th) 572 at 575

576
(B.C.C.A):

What is and what is not
professional misconduct is a matter for the benchers to determine, and the
court must be very careful not to interfere with the decision of the benchers
for their decision is, in theory, based on a professional standard which only
they, being members of the profession, can properly apply.

[21]

I
do not accept Mr. Johnsons argument that the review board took what he
describes as a categorical approach, namely that any lawyer who swears in
anger in a courthouse will automatically be guilty of professional misconduct. It
is clear from the majoritys reasons that it proceeded on the basis that each
case is to be decided on its particular facts.

[22]

In
this case, the board took all of the circumstances into account. Those circumstances
include Constable Bs inappropriate behaviour and its effect on Mr. Johnson,
that Constable B was a potential witness in the trial in which Mr. Johnson
was then engaged, and that the incident occurred in the hallway of a courthouse.
Having done so, the majority concluded Mr. Johnsons use of profanity constituted
a marked departure from the conduct the Law Society expects from its members. With
reference to the language used in
Salway
to describe the application of the
reasonableness standard in the context of a professional discipline body, I am
unable to say the majoritys decision falls outside the range of acceptable and
defensible results.

[23]

I
would dismiss this appeal.

[24]

SAVAGE
J.A.
: I agree.

[25]

HUNTER
J.A.
: I agree.

[26]

FRANKEL J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Frankel


