When trying to understand how a scandal of this magnitude could have happened to Hockey Canada, one question remains unanswered. In fact, we don’t ask it. However, it is necessary: what is the share of responsibility of the legal advisers of Hockey Canada in this business?
Posted at 1:00 p.m.
For the past two decades, while Hockey Canada covered up gang rape allegations and paid secret funds to victims of sexual assaults committed by its players to end criminal prosecutions, where were its lawyers? The directors and CEO of Hockey Canada have finally come to terms with the facts and tendered their resignations. Players, provincial federations, including Hockey Quebec, the Minister of Canadian Heritage and even Prime Minister Justin Trudeau have condemned Hockey Canada. Most of the sponsors pulled out, but across Canada, law societies were conspicuous by their silence.
Lawyers always present behind the scenes
However, lawyers are very present throughout this story. Hockey Canada has its own legal advisors. In 2018, the national federation called on the Toronto criminal law firm Henein Hutcheson, best known for its aggressive defense of men accused of sexual assault, including that of radio host Jian Ghomeshi. More recently, Hockey Canada hired a crisis management firm, Navigator, also staffed with lawyers. Lawyers have served on Hockey Canada’s Board of Directors. Andrea Skinner, a board member since 2020 and the most recent chair of the board, is a lawyer.
It is hard to believe that Hockey Canada officials did not consult legal advisors before acting, as its advisors necessarily played a role in the negotiation and drafting of the non-disclosure agreements signed with the plaintiffs.
However, the recommendations and actions of these legal advisers have had serious consequences: they have served to encourage and even support criminal acts by allowing unscrupulous players to continue to commit acts of sexual violence with impunity. Viewed in this light, the actions of Hockey Canada’s legal counsel are also likely to be found to be criminal in nature.
The bars close their eyes
It is not uncommon for lawyers to actively participate in acts of questionable legality and morality. According to press investigations, lawyers for pharmaceutical, tobacco and asbestos companies disseminated false information about the harmful effects of their clients’ products, deliberately concealed evidence during civil or criminal trials incriminating against their clients and even sought to intimidate and denigrate whistleblowers and victims. However, lawyers are almost never held accountable for their actions.
In the various bars of Canada, we turn a blind eye to a blatant contradiction: how can their members respect their code of ethics if they help their clients to break the law and to be complicit in criminal acts?
Because all law societies in Canada have rules of professional conduct. Their members are required to demonstrate integrity so that the public maintains confidence in the justice system. Unfortunately, the laxity of the bars is legendary. To cite just one example, according to the Law Society of Ontario’s annual report, in 2021, of the 4,238 complaints referred to professional regulation, only 168, or less than 4%, resulted in disciplinary notices. This rate would be even lower if it took into account the complaints dismissed out of hand that do not even reach Professional Regulation.
This low rate of disciplinary action does not encourage the public to file a complaint. To ensure public trust, law societies must do more than pay lip service to good principles. As long as they consider a lawyer’s primary duty to be to their clients, even at the cost of breaking the law, bars in practice encourage their members to cross the line.
For a reporting protocol
Reporting obligations already exist in various areas. In Ontario and Quebec, members of professional orders are required by law to report any suspicion of child abuse. Law societies across Canada could therefore put in place a protocol that lawyers would be required to follow when dealing with allegations of sexual assault in the context of the services they provide to their clients. A concerted and sustained effort by the bars in this direction could go a long way to curbing the culture of impunity that prevails in too many of our organizations and institutions in relation to sexual violence.
Moreover, one might well wonder why our bars have not already developed such a protocol, as there are so many examples of organizations like Gymnastics Canada, Scouts Canada and the Catholic Church covering up sexual crimes, sometimes for decades.
With allegations of violence taking place in Ontario and Hockey Canada’s headquarters being in Calgary, the bars of Ontario and Alberta could show their good intentions by launching an investigation into the role of their members in concealment operations. Clients rely on their legal advisors. Knowing that they can be disbarred if they help their clients cover up allegations of sexual assault (or other crimes), lawyers would be much more motivated to finally play their part in ending institutional cultures. and organizational structures that protect perpetrators of sexual violence.