February 4, 2011

Investigator powers under Ontario Health Professions Procedural Code are constitutionally valid

Administrative Law
Professional Regulation

Some cases are especially hard fought, on every front. This seems to be the tenor of the appeal of a physician whose license was revoked, based on findings that he engaged in sexual misconduct with three boys, one of whom was a patient, in Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323. The appeal raised a multitude of appeal points, including the jurisdiction of the Discipline Committee to consider the constitutionality of s.76(1) of the Ontario Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act, 1991) which authorizes an investigator to issue a summons to any person to produce evidence to the investigator (without court authorization). In this case, the investigator obtained materials gathered over the course of a police investigation. The appeal also raised a refusal of the Committee to stay the proceedings for investigative delays; the admissibility of evidence obtained through an allegedly unconstitutional search; improper regard or disregard of evidence; different scrutiny of defence witnesses and College witnesses; and the connection between the conduct and the practice of medicine.

In 1991, a non-patient (#1) alleged sexual touching by the registrant while a child. No charges were laid at the time. The College opened a file to monitor the situation, to see if an investigation would be necessary in the future, but did not investigate over the next number of years. [25-28] In 1998, another person, a patient (#2), alleged multiple incidents of sexual abuse while a child. [29-33] The Crown laid charges concerning #1, which were withdrawn in 2000 [39], and charges concerning #2 which were eventually stayed in 2004. [39] In 1998, a third person, a non-patient coached by the registrant (#3) alleged sexual abuse by the registrant while a child. [34-37] The court eventually stayed these charges in 2006, following a number of appeals arising from a preliminary inquiry. In 1998, a fourth person (#4) alleged an incident of sexual touching, but no charges were laid. [38] In 2004, the College changed the status of the registrant’s file to an investigation, [41] and in 2005 the College appointed an investigator [42] who issued a summons for the Crown brief concerning #2 [43], with #2’s consent [41], but received more than he requested. [43] Eventually all for complaints were referred to the Discipline Committee [45].

PANEL JURISDICTION TO ADDRESS CONSTITUTIONAL QUESTIONS: The Committee found that it could determine any breaches of the registrant’s Charter rights, and fashion remedies, such as finding a provision invalid, and deciding as if the provision did not exist. [54] The court found that the Committee’s enabling statute granted the Committee both the power and the duty to decide questions of law. [185] Accordingly, the Committee could determine Charter issues. [185]

EXCLUSION OF EVIDENCE OBTAINED THROUGH COLLEGE SUMMONS POWER: The registrant sought to exclude evidence obtained pursuant to summonses issued by the College investigator, on the basis the summons power violated the Charter and was of no force and effect. [61] The Committee found, inter alia, that s.76(1) did not violate s.8 of the Charter, [64] and even if it did, admission of the evidence would not bring the administration of justice into disrepute. [66] The court also found that s.76(1) did not violate s.8 of the Charter. [178] As part of its analysis, the court determined the College’s prosecution could not be considered criminal or quasi-criminal in nature. [153]

STAY BASED ON DELAY: The Committee dismissed the registrant’s motion for a stay, based on delay contrary to principles of natural justice. It found that the College acted reasonably in awaiting the results of the criminal proceedings; any prejudice arose from the criminal proceedings, not the College prosecution; and the loss of particular witnesses did not prevent a fair hearing [48-51]. The Court reviewed the law on stays based on delay [191-195], but found that the delay by the College from the time it became aware of the criminal proceedings was not inordinate in the circumstances. [204] The decision of the Committee to await the outcome of the criminal proceedings was reasonable. [206]  The Committee’s decision concerning the lack of significance of lost evidence was reasonable. [216] The delay in the investigation did not impair the registrant’s ability to defend the charges in a significant way. [223] The delay did not amount to an abuse of process that would bring the administration of justice into disrepute because the registrant was able to practice under restrictions which did not impair his ability to earn a livelihood. [225]

EXCLUSION OF EVIDENCE OBTAINED BY SEARCH WARRANT: The registrant moved to exclude evidence obtained through a police search warrant of his home, and made submissions concerning the information used to obtain the warrant, and the loss of items seized. [57] The Committee declined to order a stay, and found that the registrant’s Charter rights had not been violated.

PROFESSIONAL MISCONDUCT: The Committee found that the impugned conduct was relevant to the practice of medicine, as the registrant was a doctor who treated children, and his misconduct with children, including non-patients, was relevant to his ability to treat children. [77] The Committee found that, “The sexual abuse of a child, whether or not a patient ([G.M.] was a patient) undermines confidence in the medical profession and the medical system itself.” [267] The court found the decision of the Committee to be reasonable, within the specialized expertise of the Committee. [263] In this particular case, “there was no need for expert evidence to determine whether the conduct of the appellant would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional.” [269]

Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323, [2011] O.J. No. 192 (Ont.Sup.Ct.) (January 17, 2011)