In a decision earlier this week, the Supreme Court of Canada ruled that a decision of a court rooted in stereotypical reasoning – such as assuming a girl sexually assaulted by her grandfather would seek to avoid him, so that evidence she was always “happy” to see him would detract from her credibility and warrant an acquittal – involved an error of law, and should be set aside: “[the trial judge’s] reliance on stereotypical inferences undermines his assessment of her credibility and, thus, his verdict.” The Supreme Court of Canada decided (in R. v. D.R., 2022 SCC 50) to uphold a decision of the Court of Appeal of Newfoundland and Labrador (2022 NLCA 2) to set aside an acquittal, and to order a new trial.
The Court of Appeal’s decision (2022 NLCA 2) had much to say about stereotypical reasoning, which “generally rests on assumptions or preconceived notions about how victims of sexual assault are expected to act” (at para. 17). Such stereotypical reasoning may arise from such varied circumstances as the prior sexual activity of complainant; a delay in a complainant disclosing abuse; a failure of a complainant to exhibit avoidant behaviour; or a failure of a complainant to fight or run away from their assailant. Courts are now clear that decision-makers – and by extension, investigators, inquiry committees, and prosecutors – should not make adverse inferences based on now-rejected stereotypical assumptions about how persons react to acts of sexual abuse.
But more generally, this timely reminder about stereotypical reasoning brings us to provisions of the HPOA (which has received royal assent; see the “third reading” version here) which expands the purposes of colleges, from protecting the public from harm to protecting the public from “discrimination” as well. More precisely, HPOA s. 14(2) requires that every person exercising powers or performing duties under the HPOA – including committee members and staff of regulatory colleges – “must” act in accordance with specific principles. Here are three notable ones:
[#1] HPOA s. 14(2)(a)
Every person exercising powers or performing duties under the HPOA must act “to protect the public from harm and discrimination”. This principle expands on the duty of each college under current HPA s. 16(1) “to serve and protect the public”.
A definition of “discrimination” (HPOA s. 9) refers to “conduct that is prohibited under the Human Rights Code” in relation to both regulators and those that they regulate. The HPOA defines discrimination in relation to both “(b) the conduct of governance activities, including the employment of persons on behalf of a regulator….” (HPOA s. 9(1)(b)) and “(c) the practice of a designated profession or occupation by a regulated health practitioner…” (HPOA s. 9(1)(c)).
The issue of conduct that is prohibited under the Human Rights Code is a tremendously deep topic. But here are some notable features of the law of discrimination as developed by courts and the human rights tribunal.
- The scope of the Human Rights Code is wide. For example, the Code provides that any “occupational association” must not discriminate against any person or member “because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership” (Code s. 14).
- The Human Rights Code does not define “discrimination” but the term means “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.” Andrews v. Law Society of British Columbia,  1 S.C.R. 143.
- Discrimination may be “direct” (where a college adopts a practice or rule which on its face discriminates on a prohibited ground), but it may also involve “adverse effects” (where a practice or rule applies to everyone equally, but has the effect of adversely affecting certain individual disproportionately based on a prohibited ground).
- If a complainant can establish a “prima facie” case of discrimination (e.g., that she received adverse treatment from a college, and that a characteristic falling within a prohibited ground was a factor), then the burden shifts to the respondent to prove that the discrimination was reasonably justified.
[#2] HPOA s. 14(2)(c)
Every person exercising powers or performing duties under the HPOA must act “to take and promote anti-discrimination measures….”
Anti-discrimination measures are specified in HPOA s. 15, which sets our measures relating to both regulatory processes, and the provision of health services. With respect to regulatory processes, the statute sets out the following objectives:
- “to foster physically, culturally, socially, emotionally and spiritually safe practices” (s. 15(1)(a));
- “to adopt anti-racism approaches and tools to support these approaches” (s. 15(1)(b));
- “to engage regularly in processes to identify discriminatory practices, policies, programs, structures, values and attitudes that perpetuate discrimination or create conditions in which discrimination may occur” (s. 15(2)(c)).
These, too, are all tremendously deep topics.
(a) With respect to “safe” practices, many colleges under the HPA have already adopted related practice standards for registrants, e.g., CPSBC (“Indigenous Cultural Safety, Cultural Humility and Anti-racism” (May 5, 2022, here)); BCCNM (here); and CSHBC (here). For health organizations, also note the British Columbia Cultural Safety and Humility Standard (HSO 75000:2022, here).
(b) On the issue of myths, stereotypes, and implicit biases that may impact regulatory decision-making, we addressed these and other topics during the 2021 CLEBC conference on Self-Governing Professions, in a joint paper with Rebecca Durcan of Steinecke Maciura LeBlanc, entitled “A Focus on Sexual Misconduct”. (For those of you looking for the next CLEBC conference, we are tentatively scheduling that conference with CLEBC for 2024; we will publish more news on that when we have more information!)
(c) In terms of tools to support safety, the HPOA includes a variety of tools to mitigate the hardship of court-like adversarial processes on vulnerable complainants. Colleges may apply to discipline hearing panels to engages some of these tools. For example, the HPOA provides for
- selecting discipline panel members with expertise in conducting hearings to mitigate potential trauma in cases involving alleged sexual misconduct or sexual abuse (HPOA s. 170);
- orders to protect persons in vulnerable circumstances, which may include
- “any order that, in the opinion of the panel, will mitigate potential trauma to a person who is in vulnerable circumstances, if trauma may arise from an adversarial process carried out for the purposes of the discipline hearing” (HPOA s. 185);
- an order excluding a respondent or another person from attending all or part of a discipline hearing (HPOA s. 186(1)(a));
- an order for a barrier between a person who is in vulnerable circumstances and a respondent or other person (HPOA s. 186(1)(b));
- an order that all or part of a cross-examination occur in writing only (HPOA s. 187(a));
- an order that a cross-examination occur without the respondent being present (HPOA s. 187(b));
- an order terminating a cross-examination that is repetitive, abusive or otherwise inappropriate (HPOA s. 187(c));
- an order admitting written and sworn evidence without cross-examination (HPA s. 187(d));
- considering whether records are sensitive records, and treating specific rationales for treating sensitive records as insufficient to establish relevance (HPOA ss. 188 and 189), e.g., where a record relates to counselling that a person has received or is receiving, or where a record may reveal allegations that a person experienced an act of sexual misconduct or sexual abuse in the past.
(d) The HPOA also provides for support programs (HPOA sections 276 onward).
[#3] HPA s. 14(2)(b)
Specifically in relation to Indigenous peoples, every person exercising powers or performing duties under the HPOA must act “to support and promote awareness of” three specified issues, “as they relate to… the governance of designated professions”:
- “(i) reconciliation with Indigenous peoples”;
- “(ii) the United Nations Declaration on the Rights of Indigenous Peoples”; and
- “(iii) the need to address racism and anti-racism issues that are specific to Indigenous peoples, including acknowledging the rights, interests, priorities and concerns that are specific to First Nations peoples, Métis peoples and Inuit peoples, based on distinctions among them….”
As with the topics above, these matters are all tremendously deep topics, and they are intertwined with each other.
(a) Reconciliation between the Crown and Indigenous peoples in Canada is a project that will take generations. In BC, Indigenous peoples owned, occupied and governed their territories for thousands of years, through Indigenous governments and legal orders, until the Imperial Crown asserted sovereignty in 1846 (after the United States ceased claims to BC pursuant to the Oregon Treaty). Indigenous peoples in BC were dispossessed of their lands and resources. But since Indigenous peoples in BC were never conquered” by the Imperial Crown, and did not cede or surrender their territories or their sovereignty, “reconciliation” includes (at least in British Columbia) the process of reconciling Indigenous and Crown sovereignty and ownership.
The negative impacts of colonization have been exacerbated by Canada’s treatment of Indigenous peoples based on government policies that were described as “cultural genocide” by the Truth and Reconciliation Commission in its 2015 summary report:
For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as “cultural genocide.”
Physical genocide is the mass killing of the members of a targeted group, and biological genocide is the destruction of the group’s reproductive capacity. Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual lead- ers are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.
In its dealing with Aboriginal people, Canada did all these things.
(b) In 2019, and as a step towards reconciliation, the government of BC enacted the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, ch. 44 (“DRIPA” or the “Declaration Act”). DRIPA gives (some) domestic effect to the United Nations Declaration on the Rights of Indigenous Peoples, which is a schedule to the Declaration Act (“UNDRIP” or the “Declaration”).
UNDRIP contains 46 Articles, and recognizes minimum standards for the survival, dignity, and well-being of Indigenous peoples. Although the Declaration applies to the relationship between many nation-states around the world and their Indigenous peoples, the Declaration speaks to broad issues of relevance in British Columbia, such as an Indigenous right to autonomy or self- government (Article 4), and the right of Indigenous peoples to the lands, territories, and resources which they have traditionally owned (Article 26). Additionally, the Declaration addresses a broad range of social issues, including various aspects of health care. For example:
- Indigenous peoples have the right to be actively involved in determining health programs affecting them, and so far as possible, to administer such programmes through their own institutions (Article 23);
- Indigenous peoples have the right to their traditional medicines and to maintain their health practices, as well as a right of access, without discrimination, to all social and health services (Article 24(1)); and
- Indigenous peoples have a right to the state taking effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of Indigenous peoples are duly implemented (Article 29(3)).
(c) Racism specific to Indigenous peoples remains a matter of current concern, as illustrated by the recent In Plain Sight report on Indigenous-specific racism in BC’s health care system. The report set out eleven findings about the experiences of Indigenous peoples in BC. These included
- #1 – widespread Indigenous-specific stereotyping and discrimination;
- #2 – racism limiting access to medical treatment and negatively affecting health and wellness; and
- #7 – complaints processes in the health care system do not work.
All of these matters combined mean that the obligation of colleges to support and promote awareness of the issues will require sustained effort to identify and address all the ways that Colleges may support reconciliation in different operational areas, including governance, committee composition, registration requirements, scope of practice, practice standards, investigation of complaints, and disciplinary processes. Reconciliation may also raise different issues for different professions.
Health regulators may benefit from the work of other professional regulators. In 2021, we blogged (here) about the Law Society discipline case of Bronstein, 2021 LSBC 19. A joint submission on sanctions against a lawyer was necessitated in part by the Law Society having difficulty in proving allegations, as Indigenous clients of the member refused to participate in the discipline process. In a strong dissent in the decision to accept the joint submission, one panel member opined that the affected community not wishing to participate in the Law Society’s hearing processes was indicative of an unacceptable barrier to the participation of vulnerable witnesses in the Law Society’s regulatory scheme. Later in 2021, the Law Society established a task force to review disciplinary processes, particularly with respect to the unique needs of Indigenous people. The resulting Indigenous Framework Report (Sept. 12, 2022), setting out a framework to guide the Law Society to apply its legislation in a manner that will advance reconciliation with Indigenous peoples, may be found here.
Lisa C. Fong, KC and Michael Ng