December 14, 2015

Proof of misconduct through proof of criminal conviction

Administrative Law
Professional Regulation

In the last few months, we have been looking at discipline committee decisions, to highlight how some panels have grappled with common hearing issues. This month we look at how discipline panels may find professional misconduct solely through proof of a respondent’s conviction for a criminal act, without testimony from any victim.

Under BC’s Health Professions Act, a criminal conviction is a basis for investigation, but the fact of a respondent being convicted is not, by itself, a basis for finding misconduct: see sections 33(4) and 39(1) of BC’s Health Professions Act. A discipline panel must still look at what physical acts and mental states a conviction establishes, to decide based on these facts (along with any supplementary facts the College may prove) if a respondent has committed conduct that properly attracts discipline by the regulator, e.g., conduct that breaches a bylaw, that breaches an express ethical rule, that amounts to professional misconduct, or that amounts to unprofessional conduct (or “conduct unbecoming”).

The additional steps that a discipline panel must take to get from proof of a criminal conviction to finding disciplinable conduct is illustrated in a May 26, 2015 decision of the Discipline Committee of a BC college (here). This decision involved a respondent being convicted for sexual assault against a 16-year-old female patient, contrary to s.271 of the Criminal Code, by cupping her breasts and saying that her breasts were beautiful.

In BC, a certificate of conviction may be submitted as evidence that a person committed an offence under s. 71 of BC’s Evidence Act. Accordingly, the College tendered a certificate of conviction, as well as records relating to the treatment when the offence occurred, the Information, Crown Counsel’s narrative, and various documents relating to the criminal proceedings. The certificate of conviction thus stood as proof of three elements of the requisite physical act for sexual assault (i.e., touching, the sexual nature of the conduct (determined objectively), and an absence of consent, as well as proof of the requisite state of mind (i.e., an intention to commit the assault).

Notably, for touching to be of a “sexual” nature, while a person might well touch for a sexual purpose, neither the Crown nor the College need prove that a person touched another for a sexual purpose; a panel need only be satisfied that an accused or respondent intended to engage in touching, and need only conclude as a separate matter that the touching was, from an objective standpoint, sexual in nature.

Thus, on the basis of the College proving – without testimony from the patient – that the Respondent had intentionally touched the patient without her consent, and the touching was of a sexual nature, the discipline panel found professional misconduct, as well as violations of Code of Ethical Conduct provisions prohibiting sexual conduct towards patients.

College of Massage Therapists of British Columbia v. Graham (June 26, 2015, Discipline Committee of the CMTBC)

Lisa C. Fong and Michael Ng