Registration: lack of good character based on criminal charges

At least in a regulatory system with a “good character” requirement where applicants do not have the benefit of good character being presumed, a regulatory may refuse to grant registration to an applicant who has been charged with serious criminal offences, such as drugging and sexually assaulting a female medical student. This sort of outcome is illustrated in Chauhan v. Health Professions Appeal and Review Board, 2013 ONSC 1621, where the College of Physicians and Surgeons of Ontario refused to issue a certificate of registration authorizing an applicant’s postgraduate education (i.e., further residency training), in the absence of a reasonable belief that the applicant “will practise medicine with decency, integrity and honesty and in accordance with the law….”

On a review of the decision of the Registration Committee, the Health Professions Appeal and Review Board (the “HPARB”) accepted that criminal charges alone will not “necessarily” disqualify an applicant from meeting good character requirements. [18] It found, however, that the Registration Committee had information about official investigations into allegations which, “if proven, would clearly disqualify him from the practice of medicine”. [19] The applicant only indicated that he had pleaded not guilty, and planned to vigorously defend the charges, without bringing forward evidence to “counterbalance” the charges and to “demonstrate that his past and present conduct affords reasonable grounds for the belief that he will practise medicine with decency, integrity and honesty and in accordance with the law.” [19]

According to the court, the HPARB did not adopt the principle from cases of the Law Society of Upper Canada that “bare” criminal charges will not overcome a presumption of good character, [33] even if the applicant does not adduce evidence of good character. [26] The court decided the Board acted reasonably. First, the requirement of a belief that the applicant “will practise medicine with decency, integrity and honesty and in accordance with the law” does not look to the present, but to the future. [37] Secondly, the Health Professions Procedural Code provides for a documentary review. [38] Thirdly, the HPARB had developed its own principles for registration reviews, such that “[t]here is no presumption of good character in the regulatory scheme, either in the legislation itself or pursuant to the principles as developed by the Board.” [39]

Although the criminal charges were allegations only, and had not been proven, [43] “the existence of such charges is surely a relevant consideration in an application for membership in a professional organization governed by legislation which requires the College to consider the public interest.” [45] The Registration Committee had a duty to “consider all the information it has before it.” [46] Neither the Discipline Committee nor the HPARB treated the charges as “exhaustive of the matter in itself.” [50] They did not make any assumption or finding of guilt. The applicant chose to proceed by means of a documentary review rather than a hearing, and provided limited evidence. [50] Accordingly, the HPARB acted reasonably in confirming the decision of the Registration Committee against granting further registration to the applicant.

Chauhan v. Health Professions Appeal and Review Board, 2013 ONSC 1621 (Ont. Div. Ct.)