Friday, February 8, 2019

No Interlocutory Suspension For Child Pornography Charges

The Tribunal Hearing Division of the Upper Canada Law Society denied a motion for interlocutory suspension

Mr. Rooney (“the Licensee”) has been charged with making, distributing, possessing and accessing child pornography. At the time of the hearing, he had not yet received disclosure of the prosecution’s case  against him, although his bail had been set and conditions imposed.

The Law Society submitted that this case was different from other cases in which criminal charges such as these have been laid and interlocutory suspension denied. The Licensee submitted that this case does not differ from previous cases dealing with such charges, where there has been no allegation of physical contact, and where the licensee’s client base does not include minors.

The situation

The Licensee was called to the Bar in 2015. He was an associate at a law firm doing primarily tax, wills and estates work. The Licensee is no longer employed. He has no criminal record and no discipline history.

On October 12, 2018, the Law Society learned that the Licensee had been charged with a number of criminal child pornography offences. The Information lists two counts of making child pornography, one count of distributing child pornography, one count of possessing child pornography and one count of accessing child pornography, all on or about September 18, 2018.

The Crown synopsis indicates that the charges arise from chats between the Licensee and the complainant, supplemented by pictures. There is no suggestion that the Licensee has carried out any of the acts referred to during the chats.

The Licensee was granted bail with a $10,000 surety and a number of terms...

He is presumed innocent

We note that the Licensee reported the charges immediately, and requested that his counsel ensure he was in compliance with the Law Society’s rules. There is no connection between the misconduct and the Licensee’s practice as his type of practice would rarely, if ever, bring him into contact with minors. In addition, the Licensee is no longer employed in a practice, and his bail conditions would make it difficult, if not impossible, for him to be so employed. There has been some media coverage but as of the date of the hearing, it had not been extensive.

As to potential penalty, we note this is not an offence that would normally lead to presumptive revocation of licence. The presumptive penalty of revocation is imposed in cases of fraud or theft, or the sexual assault of a minor, which is not alleged here.

Motion to suspend denied. (Mike Frisch)

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