Thursday, April 09, 2015

Munyonzwe Hamalengwa Disbarment from Practising Law in Ontario - Lessons to be Learnt

By Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Posted on April 09, 2015

Several months ago in Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187 (CanLII), there were very serious finding of misconduct against Dr. Munyonzwe Hamalengwa, a very prominent lawyer in Ontario, in respect to over-billing Legal Aid Ontario for the high profile murder case R. v. Wills. The penalty phase of Dr. Hamalengwa's case has now been completed and it is ordered that his licence to practice law in Ontario be revoked effective May 31, 2015: Law Society of Upper Canada v Hamalengwa, 2015 ONLSTH 57 (CanLII). Significant to the panel's findings were "[41]The public and the client must depend on the honesty and integrity of a billing lawyer.  The Lawyer, who breached one of the commandments of legal life by padding his dockets, intentionally misrepresented some of his disbursements and made intentional misrepresentations in a letter to LAO, must have his licence revoked." The analysis on exceptional circumstances though is flawed.

On March 10, 2015, I wrote to Dr. Hamalengwa and expressed my views to him at the end of the penalty phase of his LSUC proceedings. I felt that there were lessons again to be learnt from his case:
From: Selwyn Pieters
With Dr. Hamalengwa and Mr. G. Teti at Osgoode Hall
Sent: March-10-15 1:28 AM
To: mhamalengwa
Cc: selwyn
Subject: Re: Home sweet home 
Good morning Munyonzwe, 
Good luck. Like Harry Kopyto, T. Sher Singh, Kadir Baksh, G. Peter Abrahams, your situation is quite tragic. It will be interesting to see the final disposition and how this all ends up. When I read Law Society of Upper Canada v. Hamalengwa, 2014 ONLSTH 187 (CanLII), I was troubled. Some people minimized it as a "pissing match" between you and Legal Aid Ontario. I saw it as much more than that. I was not at your sentencing hearing so I am not sure whether you showed any remorse for the errors and/or ommissions made. What I do know, however, is having articled with Charles C. Roach one of the things he drummed into my head and that of those who were fortunate to work with him is to be extremely careful with dockets, time-matters and billing. [M.L.](White lawyer) and I, even though we are not even in the same realm of practice still follows the same practice we learnt at Roach Schwartz. 
Obviously, in Richard Wills murder trial, according to what is reported in the newspapers, you found yourself in a difficult situation with a difficult client. Then this. Sometimes, you have to quickly decide to walk away from a situation that is not in your best interest. This seemed to be one of those situations that in retrospect, you are probably wishing you walked away.  
The amount that you were found to have overbilled Legal Aid Ontario is never good reason to have one's reputation, good name and work smeared. You are worth much more than that..... 
Anyways, hopefully young Black lawyers read your case and take away teachable lessons from it. No doubt there are problems in the legal system, one of which is racism, but I do know as well that as lawyers we have to practice defensive lawyering which means that in assessing risk one look at the situation, ask what can go wrong? and then ask again how can I prevent it from happening? Defensive lawyering means that we evaluate risk and manage the situation. That keeps us out of the clutches of the Law Society of Upper Canada, LawPro and the Police.
[O. B.]l observed in a December email that Black lawyers are under a greater level of scrutiny. Absolutely. We are held to a higher standard. And even though we are told society is "colour-blind", we as Black people must be cognizant of that race matters.

I wrote this lengthy missive, as your situation troubles me greatly. I am also troubled if you do not recognise that in this profession we have to cross our T's and dot our I's at all times. 
Whatever the penalty, hopefully there is some light at the end of the tunnel.
I cited the names of other racialized lawyers whose career met an inglorious ending because we have to look at these cases and learn from them. In your case, you have to take responsibility for what has occurred here. 
Yours very truly,

Selwyn A. Pieters, B.A., LL.B., L.E.C.
Lawyer & Notary Public 
Dr. Hamalengwa's background is impressive and was set out in the decision of the panel:
[5]           The Lawyer was born in Zambia, Africa.  In 1977, he immigrated to Canada after two years of university.
[6]           In 1979, he graduated from York University majoring in Political Science.  In 1980, he received an M.A. from York University in International Affairs.  In 1989, he graduated from Osgoode Hall Law School.  In 1991, he was called to the bar in Ontario.  As a sole practitioner, he restricted his practice to criminal law and immigration law.  He also did some considerable legal work in the area of systemic racism through his writings and advocacy.
[7]           In 2001, the Lawyer earned an LL.M. from Osgoode Hall Law School.  In June 2013, he earned a Ph.D. in law from Osgoode Hall Law School.
[8]           The Lawyer was well-regarded in the legal profession and was one of the leaders in the black community.  While at Osgoode Hall Law School, he initiated the “Mandela Law Society.”  He was involved with the “York Students Movement Against Apartheid” at York University.  He lectured at Osgoode Hall Law School.  He acted as a mentor to black legal students and others in the black community. He wrote prolifically and well.  For example, he authored the book titled, “Politics of Judicial Diversity and Transformation” and many other articles about justice, equality, systemic racism and racial profiling in Ontario and at the LSUC.
The panel observed that "Mr. Hamalengwa’s fall from grace is a Shakespearean tragedy.  During the period from about March 2006 to about September 2007, Mr. Hamalengwa’s moral compass had somehow been sent askew.  As a result of his misconduct, the panel concluded that Mr. Hamalengwa must lose his licence to practise law.  Losing his licence to practise law is a tragedy to Mr. Hamalengwa personally, his family, the black community, the profession and the Ontario community."

Selwyn A. Pieters, B.A. (Toronto), LL.B. (Osgoode), L.E.C. (U.W.I). Lawyer & Notary Public (Ontario). Attorney-at-Law (Republic of Guyana and Republic of Trinidad and Tobago).

Selwyn has appeared at all levels of courts, including the Supreme Court of Canada in Attorney General of Ontario v. Michael J. Fraser, et al., 2011 SCC 20  and Commission des droits de la personne et des droits de la jeunesse, et al. v. Bombardier Inc. (Bombardier Aerospace Training Center), et al. (2015 - decision reserved); Ontario Court of Appeal in Freeman-Maloy v. Marsden 267 D.L.R. (4th) 37, 208 O.A.C. 307 (C.A.); Bangoura v. Washington Post (2005) 202 O.A.C. 76, (2005) 17 C.P.C. (6th) 30 (Ont.C.A.), McAteer v. Canada (Attorney General) 2014 CarswellOnt 10955, 2014 ONCA 578, 121 O.R. (3d) 1, 376 D.L.R. (4th) 258 (CA) and most recently R. v. Steele (2015) ONCA 169 (Ont. C.A.);  the Federal Court of Appeal in The Honourable Sinclair Stevens v. The Conservative Party of Canada, [2005] F.C.J. No. 1890, 2005 FCA 383. He represented Correctional Manager Mariann Taylor-Baptiste in the ground-breaking competing rights case of Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 CarswellOnt 8965, 2012 HRTO 1393, 2012 C.L.L.C. 230-022 reconsideration denied in 2013 CarswellOnt 1033, 2013 HRTO 180, 2013 C.L.L.C. 230-019 at the HRTO; Civil Rights lawyer Charles Roach in the Oath cases of McAteer, Topey, Dror-Natan v. Canada (Attorney General) 2013 CarswellOnt 13165, 2013 ONSC 5895 (ON S.C.) and Roach et al. v. Canada 2012 CarswellOnt 7799, 2012 ONSC 352 (ON S.C.) which is a constitutional challenge to the oath in the Citizenship Act.

Selwyn has provided representation to persons charged with various criminal offenses including Drugs: Selling and Possessing, Shoplifting, Serious Offences of Violence: Aggravated Assault, Assault with a Weapon and Robbery, Gun Offences, sexual assault, robbery, theft, extortion, HIV/AIDS litigation; fraud, break & enter, attempted murder, murder, regulatory offences under the Occupational Health and Safety Act, professional disciplinary offences, and conspiracy offences.

Selwyn has also been involved in drugs, guns and gang trials including "Project Green Apple", "Project XXX" and "Project Kryptic", "Project Corral" which are some of Canada's largest Criminal Organization prosecutions. Selwyn is currently counsel for an accused in "Project Feline" and Project Revival" drug sting operations. In Project Corral, Selwyn's advocacy resulted in the "gang expert" evidence being discredited and the Criminal Organization charges against his client and others being tossed out by the Court: R. v. Agil, Chambers, Fullerton, Jimale and Brown 2011 CarswellOnt 18099 (Ont. CJ. July 14, 2011, Khawley J.)

Selwyn recently obtained an extraordinary remedy of costs agains the Crown for failure to provide disclosure of police officer memo book notes in R. v. W.(J.), [2013] O.J. No. 2284, 2013 CarswellOnt 6322, 2013 ONCJ 270 (Ont. CJ.).

Selwyn is the successful litigant in the recent racial profiling case involving carding of three Black men: Peel Law Association v. Pieters, 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.).

Selwyn has provided crucial legal advise to clients duringhigh risk situations such as gun calls, hostage taking, barricaded persons, mentally disturbed persons, high risk arrests and public order control in situations where there is significant public disorder, lawlessness, personal injury and property damage. Charges of cause disturbance and assault police can be pretextual racial profiling charges: R. v. Roach, 2005 O.J. No. 5278 (Ont. C.J.) (Criminal Law - Causing a Disturbance); R. v. Ramsaroop, 2009 CarswellOnt 5281, 2009 ONCJ 406 (Ont. CJ.); R. v. Taylor, 2010 CarswellOnt 6584, 2010 ONCJ 396, [2010] O.J. No. 3794 (Ont. CJ.)

Selwyn was co-counsel in the world's first-ever sexual HIV transmission murder trial of Johnson Aziga in Hamilton, Ontario. See, for example, R. v. Aziga, 2008 CanLII 39222 (ON S.C.); R. v. Aziga; 2008 CarswellOnt 4300 (ON S.C.) and R. v. Aziga, 2008 CanLII 29780 (ON S.C.)

Selwyn argued on racial profiling includes: R. v. Steele, 2010 ONSC 233 (ON S.C.) and R. v. Egonu, 2007 CanLII 30475 (ON SC) - Driving while black and R. v. Bramwell-Cole [2010] O.J. No. 5838 (ON S.C.) - walking while black.

Selwyn has acted in exclusion cases at the Immigration and Refugee Board of Canada: See, Song Dae Ri (Re) 2003 CarswellNat 4527; (2004) 36 Imm. L.R. (3d) 203; Liang (Re) 2002 CarswellNat 4719; 33 Imm. L.R. (3d) 251.

Selwyn has appeared in  Coroners' Inquest including: Coroner's Inquest into the Death of Negus Topey (May 02, 2005, Coroners' Court, Dr. K.A. Acheson) Ruling on Application for Standing; Coroner's Inquest into the Death of Dwight Haughton (Coroners' Court, Dr. Evans) Ruling on Application for Standing; Coroner's Inquest into the Death of Jeffrey Reodica(May 04, 2006, Coroners' Court, Dr. B. Porter) Ruling on Application for Standing

Selwyn also acted as co-counsel with C. Nigel Hughes for the families of three deceased persons killed during a civil demonstration in Linden, Guyana, at the Linden Commission of Inquiry. Selwyn is currently co-counsel with Brian M. Clarke representing the Guyana Trades Union Congress in the Walter Anthony Rodney Commission of Inquiry in Georgetown, Guyana.

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