November 21, 2012

Unresolved criminal proceedings, and a regulator’s ability to gather Crown evidence and proceed to discipline (despite delay)

Administrative Law
Inquiry and Investigations
Professional Regulation

An Ontario regulatory college properly waited several years until the end of criminal proceedings (all of which were eventually stayed, without results) before going forward with discipline proceedings involving a registrant later found to have engaged in sexual conduct with three young boys. To gather evidence, the College investigator used a “summons” power to investigate the registrant’s off-duty conduct, which power was constitutional, despite a Charter challenge to its validity. The Ontario Court of Appeal reached these conclusions in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727.

The discipline proceedings involved a physician practicing for 47 years when a discipline committee revoked his license to practice in 2009, for his engaging in sexual conduct with three young boys aged 8 to 14 off-duty, but with one boy being a patient. Considerable delays arose, however, between the first complaint to the police, and the College’s disciplinary hearing.

What happened: One boy complained to the police in 1991, but the Crown did not lay charges until 1998, when a second complainant (and former patient) came forward. A third complainant came forward in 1999, and the Crown laid additional charges. The College had a practice of monitoring criminal proceedings, rather than conducting its own investigation. [6] After the Crown stayed charges involving the second complainant (and former patient) in 2004, the College moved from “monitoring” to investigation.

Under s.76 of the Health Professions Procedural Code (which is Schedule 2 of the Regulated Health Professions Act, 1991, SO 1991, c.18), a College investigator has a power (under Part II of the Public Inquiries Act) to “inquire into and examine the practice of the member” and for that purpose may issue, without court authorization, a summons to require a person to give or produce relevant evidence to the investigator. [7-8] This power is separate from the power of a justice of the peace to issue a search warrant under s.77. [76] An investigator issued a summons to the Toronto Police Service and the Attorney General of Ontario for police files and Crown briefs. The College relied on these materials to initiate discipline proceedings. The College issued a notice of hearing in 2006.

The issues at appeal: At the start of the discipline hearing in 2007, the registrant sought a stay of proceedings on the basis of inordinate delay making the proceedings an abuse of process. [50-51]. The discipline committee dismissed the motion.

During the discipline hearing, the registrant also challenged the “summons” power as violating s.8 of the Charter (security against unreasonable search and seizure). The discipline committee dismissed the challenge in February 2009, along with its decision on the merits.

The registrant appealed on these two issues. Two other doctors subject to disciplinary proceedings also intervened in the appeal on the “summons” power. They argued the “summons” power should be limited to matters relating to member’s “practice” of diagnosing, treating and preventing disease.

The Court of Appeal’s decisions:

(1) The scope of the “summons” power. Section 75 of the Code authorizes a registrar to appoint an investigator for professional misconduct, which includes conduct unbecoming a physician, as well as disgraceful, dishonourable or unprofessional conduct. [96-97] This broad definition ensures that members remain fit to practice, which includes conduct in the physician’s private life that reflects on his or her integrity. [98] The power to inquire into a member’s practice must be give a broad and purposive interpretation, which includes acts of professional misconduct. [99-100]

(2) The constitutionality of the “summons” power. The registrant asserted that the s.76 “summons” power violated s.8 of the Charter for failing to strike an appropriate balance between the member’s interest in being left alone, and the government’s interest in protecting the public. [106]

The registrant asserted investigators were “unconstrained, unrestricted and entirely unreviewed” in their use of a summons power that could extend to records that contain highly personal information belonging to a member or to third parties. [111-112] The registrant pointed out the kinds of private documents subject to a summons, [139] lack of notice to third persons with privacy interests in documents, [140] its scope over third persons, [141] and the lack of an approval process beyond the investigator. [142]

After reviewing basic principles concerning s.8 of the Charter [118] and the reasoning of the first appellate court (the Divisional Court), [119-131] the Court of Appeal concluded the summons power was a reasonable power, properly constrained, when used by an investigator appointed under s.75 of the Code. [154] Investigators are appointed based on reasonable and probable grounds of misconduct or incompetence. [156] The power is also limited to that which is relevant to an authorized investigation. [157-158]

The court noted, however, the registrar should “should provide a brief description of the act(s) of professional misconduct he or she believes on reasonable and probable grounds were committed.” [160; 166] Such a statement ensures the scope of the investigation authorized is clearly defined. [162] The court also noted that a new appointment might be necessary if an investigation revealed evidence of misconduct unrelated to the category of wrongdoing covered by the initial appointment. [165]

The fact that a summons power “may” be exercised in a manner that violates the Charter does not render the power itself unconstitutional. [187]

Here, the proposed investigation concerned sexual impropriety with adolescent males, based on reasonable and probable grounds, and the materials “summonsed” did not extend beyond the scope of those allegations. [168] Additionally, the appellant did not have a reasonable expectation of privacy in the summonsed material. [169] More generally, “In the context of a self-governing professional regulatory scheme where the regulator has reasonable and probable grounds to believe that a member has committed an act of professional misconduct, a member has a limited expectation of privacy in relation to an authorized investigation.” [174]

The court’s decision did not address the summons power extending to information in the hands of the Crown or the police that they had seized unlawfully. [186]

(3) Inordinate delay and abuse of process: The notice of hearing was issued in March 2006, more than 15 years after the College first learned of the first complainant’s allegations. [192] Delay was in large part attributable to the College deciding to await the outcome of criminal proceedings. [191] But the discipline committee decided the delay did not deprive the registrant of his s.7 Charter right not to be deprived of his right to life, liberty or security of the person except in accordance with the principles of fundamental justice, based on the test in Blencoe, 2000 SCC 44. [193]

Delay must be “inordinate” and cause “actual prejudice of such magnitude that the public’s sense of decency and fairness is affected.” [205]

The discipline committee and the Divisional Court both decided it was reasonable for the College to await the outcome of all the criminal proceedings before pursuing disciplinary proceedings, [230] and that the delay did not amount to a denial of natural justice. [231] The Court of Appeal did not find any errors by the committee or the Divisional Court in reaching these conclusions. [237]

The registrant “failed to demonstrate that he suffered actual, significant prejudice caused by the delay in the College proceedings of a magnitude that would bring the administration of justice into disrepute.” [246] Finally, given the serious allegations, the court identified a strong public interest in the case being considered on the merits; a stay would not enhance public confidence in the administration of justice, but imperil it. [248]

Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727