A Law Society of Ontario tribunal has found a lawyer guilty of professional misconduct for impersonating a public officer and misleading the Law Society during its investigation.
D.M., a retired Canadian Armed Forces (CAF) Major who later became a practising lawyer, faced serious allegations stemming from his conduct during an August 2021 call to military police, in which he identified himself as a serving member of the military.
The tribunal found that D.M. misrepresented himself as a serving member of the CAF and failed to report a related criminal charge to the Law Society in a timely manner, as required by professional conduct rules.
The case began when D.M., acting on behalf of a client, contacted military police at the Petawawa military base to discuss a traffic summons issued to his client. During the recorded conversation, D.M. identified himself as “Major” and as a Judge Advocate General (JAG) officer multiple times, despite having retired from the military in 2012. His authoritative tone and repeated claims to hold a military position led the military police to believe they were speaking to a current CAF officer.
Criminal charge
This misrepresentation led to a criminal charge against D.M. for personating a public officer, a serious offence under the Criminal Code. While the charge was eventually stayed by the Crown, the matter was referred to the Law Society, which launched an investigation into his conduct.
In his defence, D.M. argued that his actions were not intentional and were the result of his Post-Traumatic Stress Disorder (PTSD) with dissociative features, a condition he claimed stemmed from his military service. He maintained that he was in a dissociative state during the phone calls and was unaware of how he identified himself. However, the Tribunal found his explanations unconvincing.
“The evidence is conclusive that the Lawyer identified himself as Major (D.M.) and a JAG officer during both August 2 calls,” the Tribunal wrote in its decision. The panel was particularly critical of D.M.’s inconsistent testimony, noting that while he admitted to identifying himself as a Major and JAG officer during the calls, he failed to provide credible evidence that his mental health condition excused his behaviour.
Misleading law society
The Tribunal also found that D.M. had misled the Law Society during its investigation by denying that he had represented himself as a serving military officer. When confronted with a recording of the phone call, D.M. initially questioned the authenticity of the tape but eventually conceded that it was his voice on the call. This led the Tribunal to conclude that he had engaged in professional misconduct by misleading the Law Society.
Further complicating D.M.’s defence was the late submission of expert evidence intended to support his claim of PTSD and dissociation. The Tribunal allowed the initial expert report, despite its late submission, but refused to admit a second report that was served after the Law Society had closed its case and D.M. had been cross-examined. The panel found that allowing the second report would have been unfair to the Law Society and would have caused unnecessary delays in the proceedings.
Ultimately, the Tribunal rejected D.M.’s mental health defence, stating that there was insufficient evidence to connect his PTSD to his professional misconduct. The decision noted that while the Tribunal recognized the seriousness of his mental health challenges, these challenges did not absolve him of his professional responsibilities.
“The Lawyer has failed to establish, on a balance of probabilities, that his mental health conditions are a credible defence to the allegation that he misrepresented himself to the military police on August 2, 2021,” the Tribunal concluded.
The hearing on penalty has yet to be scheduled, but D.M. now faces significant professional consequences for his actions.
For more information, see Law Society of Ontario v. McKöena, 2024 ONLSTH 91 (CanLII).
