It is perplexing how the profession relies on a process with so little proof of its effectiveness
Lawyers deal with evidence all the time. They are experts in the rules, developing intricate and rigorous procedures to ensure decision-makers appropriately assess, include or discard evidence.
That is why it is a bit perplexing how one of the legal profession’s key processes, admission into the profession, suffers from such a lack of evidence about its effectiveness.
In our most recent issue of Canadian Lawyer, we examine one of the worst offenders in the admissions process, the “good character” requirement. This process involves questions for applicants about their past. Law societies often force applicants to disclose details about a wide array of personal and private information, including unsubstantiated allegations, complaints, charges, discipline and convictions, regardless of the relevance or outcome.
“If you look at the number of questions on the good character requirement form . . . it would be interesting to know what empirical evidence is behind [each] question,” says Amy Salyzyn, associate professor at the University of Ottawa’s faculty of law. “Because the connection between those questions and future concerns aren’t always evident. I think it’s a part of a broader need for law societies to engage in evidence-based regulation.”
The reality is that evidence is slim — or arguably non-existent — about how effective these questions are in protecting the public. What is quite evident, though, is that these questions successfully create barriers for applicants from underrepresented groups.
“I think that the current process as it stands does not fully take into account the over-policing, wrongful convictions and criminalization of everyday movements of Black, Indigenous and criminalized folks,” says Samantha Peters, the Black legal mentor-in-residence at the University of Ottawa’s faculty of law.
For Naomi Sayers, an Indigenous lawyer who wrote about her experience undergoing a good character investigation for Canadian Lawyer in 2018, there are signs of progress. In Ontario, Convocation approved several changes, including a new policy statement and staff training to assess the character of diverse candidates, after she wrote about her experience there.
Sayers is quick to point out that the underlying purpose of the good character requirement is sound: to protect the public. But like all applicants to the legal profession, Sayers is entitled to evidence on what works best. As lawyers, we should make our case with the best evidence.
