Professional Discipline Proceedings and the Charter of Rights and Freedoms

(This article can also be found at: http://www.weirfoulds.com/publications/articles/ProfessionalDisciplineandtheCharterV4.html)

The Charter of Rights and Freedoms[1] contains many procedural safeguards for criminal defendants. This paper will consider how some of those safeguards interact with professional disciplinary processes and civil trials. It will begin with an outline of when the Charter might apply to procedural issues in disciplinary proceedings. It will then consider the possible application of sections 11(h), 12, 13 and 7 of the Charter to disciplinary proceedings. Finally, this paper will discuss whether a disciplinary committee has discretion to delay a proceeding.

Charter Application

The application of the Charter depends on section 32, which reads:

32 . (1) This Charter applies

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

This section explicitly states that the Charter applies to the Canadian Parliament and the provincial legislatures. However, courts have ruled that it also applies to bodies that exercise delegated legislative authority or implement specific legislative programs. This includes most professional disciplinary matters.

In Knutson v. Registered Nurses’ Assn. (Saskatchewan),[2] the Saskatchewan Court of Appeal considered whether the Charter should apply when a nurse was expelled from her association because of transcripts from a criminal trial that led to a conviction. The Court explained that the “disciplinary power” of the Association was “a governmental power that has been delegated to it”.[3] As a result, the Charter applied to the Association’s proceedings.

In Ontario, the Divisional Court considered whether the Charter applied to the Law Society of Upper Canada’s rules on advertising in Klein v. Law Society of Upper Canada.[4] The Court explained that the Law Society is a “statutory authority exercising its jurisdiction in the public interest…performing a regulatory function on behalf of the ‘Legislature and government’ of Ontario”. In this particular case, the Law Society was not only regulating the rights of lawyers to advertise, but also “the rights of the potential client and the public at large to be informed”.[5] As a result, the Charter applied.

The Supreme Court of Canada has also considered the application of the Charter to professional disciplinary proceedings. In Black v. Law Society of Alberta,[6] the issue was whether the Law Society could make rules prohibiting lawyers ordinarily resident in Alberta from forming law firms with non-resident lawyers. Without even considering whether the Charter should apply, the Court found that this was infringement of mobility rights under section 6 of the Charter.

In Rocket v. Royal College of Dental Surgeons of Ontario,[7] the Supreme Court again applied the Charter without considering section 32. That case involved College regulations that all but prohibited advertising. It seems to be settled law that the Charter is applicable to professional discipline.

Section 11(h) - Double Jeopardy

Section 11(h) of the Charter protects Canadians from being tried more than once for the same offence. It reads:

11 . Any person charged with an offence has the right

h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

This prohibits the state from punishing people twice for the same criminal offence. There is also little doubt that it allows a person to both be tried criminally and sued civilly for the same act. However, there was originally uncertainly as to whether professional disciplinary charges and criminal charges would both be allowed for the same act. That discussion revolved around whether professional disciplinary matters constitute an “offence”.

The seminal case on this issue is R. v. Wigglesworth.[8] The question was whether an RCMP officer’s conviction of a “major service offence” under the Royal Canadian Mounted Police Act[9] would preclude separate criminal proceedings under section 11(h). In her majority decision, Justice Wilson explained that the section applies to “criminal, quasi-criminal and regulatory offences”.[10] This “by nature” test includes matters “of a public nature, intended to promote public order and welfare within a public sphere of activity”. In particular, this does not include “disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards”.[11] Indeed, even proceedings “for the protection of the public in accordance with the policy of a statute” are not “by nature” the sorts of offences referred to in section 11(h).[12] As a result, it seems fairly clear that professional disciplinary hearings will not be considered “offences” for the purposes of section 11.

However, Justice Wilson recognized that, on occasion, a charge might not be an offence by nature, yet still require the protection of section 11(h). As a result, she described a second analysis to determine whether a disciplinary matter might result in punishment that would carry “true penal consequences”. She described a true penal consequence as:

imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.[13]

As a result, the imposition of either imprisonment or a fine to repay society could result in the activation of the protections of section 11(h).

However, even a power to fine an unlimited amount would not necessarily constitute a true penal consequence. In Wigglesworth, all fines were to be paid to the benefit of the RCMP and not to the Consolidated Revenue Fund. Justice Wilson saw this as evidence that such fines were intended to be used for private matters of discipline.[14] She implied that a court would strike down an overly large fine as being outside the jurisdiction bestowed by Parliament before it would find a true penal consequence and declare a defendant protected by section 11,. Indeed, Justice Wilson suggested that if a proceeding does not pass the by nature test, section 7 of the Charter might not even allow the imposition of a true penal consequence.[15] However, that possibility was not argued and it remains a suggestion.

In Wigglesworth, the Court found that the code of discipline in the RCMP Act did not, by nature, create offences. Instead, it was “concerned with the maintenance of discipline and integrity within the force”.[16] However, there was no doubt that the statute allowed for imprisonment and, thus, true penal consequences. As a result, the Court applied section 11(h).

Nevertheless, Justice Wilson still found that the disciplinary proceeding did not preclude a separate criminal charge of common assault. This is because the two offences were different. The disciplinary offence was an internal matter by which the accused “accounted to his profession”. The criminal offence, however, would force the accused to “account to society at large for his conduct”. The reasoning was that he should not be allowed to avoid criminal charges and possibly criminal consequences because he was a member of a “special group of individuals subject to private internal discipline”.[17] Even when section 11(h) applies to professional disciplinary proceedings, it seems that it will be very difficult for accused professionals to avoid both criminal and professional liability.

In Belhumeur v. Barreau du Québec (Comité de discipline),[18] the majority of the Quebec Court of Appeal explicitly found that a fine without statutory limit was not a true penal consequence. They explained that “the context of the Act and its regulatory purposes…impose their own restrictions on these fines”.[19] Indeed, the Court saw the permanent revocation of a licence as the “most serious risk”. Even so, there was no true penal consequence to activate section 11(h).

In Re Gillen and College of Physicians & Surgeons of Ontario,[20] the Divisional Court found that even when a professional is acquitted of criminal charges, that professional can still face disciplinary proceedings. This is because a criminal hearing requires proof beyond a reasonable doubt, while a disciplinary hearing only requires proof on a balance of probabilities, as in a civil hearing.[21] A criminal acquittal is not conclusive evidence that a person has acted professionally.

In Knutson, the Saskatchewan Court of Appeal found that expulsion from a professional association does not constitute a true penal consequence.[22]

In Mussani v. College of Physicians and Surgeons of Ontario,[23] The Ontario Divisonal Court recently considered the meaning of “true penal consequences” in relation to section 12 of the Charter. Justice Then explained:

[C]ourts have held that professional disciplinary proceedings are civil matters of a regulatory nature, not criminal or quasi-criminal matters, and that the consequences of a loss of a job or a professional licence are not “true penal consequences”.[24]

This seems to be a clear and concise summary of the current law.

Section 11(h) of the Charter will almost never apply to professional disciplinary proceedings when they are focused on professional standards. Nevertheless, it is possible that a professional association could be given a mandate such that its hearings are by nature criminal or quasi-criminal and, thus, subject to section 11(h). It is also possible that a professional association could be given such wide-ranging powers of punishment that its proceedings activate section 11(h). However, penalties including revocation of licences and unlimited fines do not meet this threshold. Even when up to one year imprisonment was possible, the professional disciplinary proceedings were still found to allow for a separate criminal trial in Wigglesworth. It seems that, as with a civil trial, true professional disciplinary proceedings will never exclude nor be excluded by a criminal trial.

Section 12 - Cruel and Unusual Punishment

Section 12 of the Charter protects Canadians from the imposition of cruel and unusual punishment. It reads:

12 . Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

This requires that no punishment be grossly disproportional to the act being punished. The possible application of the section to professional disciplinary matters depends on whether “treatment or punishment” includes non-criminal matters.

In Cross v. Wood,[25] a police officer claimed that it was cruel and unusual punishment to subject him to a disciplinary hearing after he had already been exonerated by an inquest. The Court determined that the requirement to testify and defend oneself a second time, although stressful, did not constitute cruel and unusual punishment.

In Mussani, the Court of Appeal based its interpretation of section 12 on the interpretation of section 11(h). Essentially, since the revocation of a professional licence is not a true penal consequence, it cannot be considered “punishment” under section 12.[26] The Court also found that the revocation of a licence does not meet the requirements of “treatment”. Examples of “treatment” are lobotomization, castration and deportation - not mandatory licence revocation.[27] As a result, section 12 did not apply. Indeed, even if it did apply, the Court found that the revocation of a licence is not grossly disproportionate to the sexual relations between doctor and patient.[28]

No cases have found section 12 to apply to professional disciplinary hearings. Although the point has not been completely settled, it seems futile to make the argument unless circumstances are substantially more serious than licence revocation, large fines, or procedural stresses.

Section 13 - Self-Incrimination

Section 13 of the Charter protects a person’s rights against self-incrimination. It reads:

13 . A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Unlike the American 5th Amendment, this does not allow a person to refuse to testify on the grounds that it might result in self-incrimination. Instead, it ensures that no person’s testimony can be used in “any other proceedings” to “incriminate” that person. There are three main issues that need to be addressed. The first is how the testimony of a professional in disciplinary proceedings might be used in criminal proceedings. The second is how such testimony might be used in civil proceedings. The third is how previous testimony in civil or criminal proceedings might be used in disciplinary proceedings. The second and third issues will be considered together.

Use of disciplinary proceeding testimony in criminal proceedings

Before the introduction of the Charter, the Parliament of Canada had already legislated a rule regarding incriminating testimony in section 5 of the Canada Evidence Act.[29] It currently reads:

5 . (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.

(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.

This does not have the same effect as section 13.

In R. v. Noël,[30] Justice Arbour’s majority decision considered the differences between the CEA and section 13. At common law, witnesses were allowed to refuse to give incriminating statements. Section 5(1) of the CEA requires witnesses to give incriminating evidence, but allows them with section 5(2) to explicitly recognize the possibility of incrimination and invoke the CEA. Once a witness has done this, the incriminating evidence cannot be used in any subsequent hearing unless for prosecution for perjury or the giving of contradictory evidence. Indeed, the incriminating evidence cannot even be used to cross-examine the witness on credibility in that witness’ own trial.[31] Evidence protected by the CEA is inadmissible “in any criminal trial or other criminal proceeding against him thereafter taking place”.

Section 13, however, does not require a witness to invoke it. As a result, it protects a witness who gives incriminating evidence that the person would not have had to give at common law. However, section 13 only protects against the evidence being “used to incriminate that witness in any other proceedings”. This means that, unlike the CEA, section 13 depends on how the Crown intends to use the incriminating evidence. If it is used to incriminate the witness, then it is inadmissible. If it is not used to incriminate the witness, then it is admissible. As a result, according to Justice Arbour, section 13 protection without CEA protection allows the Crown to use a witness’ past incriminating evidence to cross-examine on credibility at that witness’ own trial. The qualifier is that such a cross-examination would only be permitted when

there is no possibility that the jury could use the content of the prior testimony to draw an inference of guilty, except to the limited extent that a finding that the accused has been untruthful under oath could be damaging to his defence.[32]

This means that incriminating testimony protected by section 13 should rarely be admissible.

As an example, Justice Arbour referred to R. v. B. (W.D.).[33] In that case, the Saskatchewan Court of appeal allowed the admission of prior incriminating testimony that “did not concern the commission of the offence”. Instead, it was “a factual statement concerning his current relationship” that contradicted the defendant’s testimony at his own criminal trial. The statement was not to “introduce evidence relating to the commission of the offence,” but to “reduce the credit given to his present testimony”.[34] If, however, the previous testimony had contradicted testimony by the defendant that he did not commit the crime, then it would not have been admitted.

At disciplinary hearings, professionals have no choice but to testify.[35] Section 13 ensures that no incriminating statements at such hearings can be used in future criminal proceedings against the professional, except for a limited ability to cross-examine on credibility. If a professional invokes section 5 of the CEA at a disciplinary hearing, then no self-incriminating evidence given at that hearing can used in any way at a future criminal trial, other than for charges of perjury or giving contradictory evidence.

The interchange of disciplinary and civil proceeding testimony

The common law also protected an accused from being compelled to testify when such testimony would establish liability in a civil proceeding. As a result, provinces enacted legislation similar to the CEA that forced witnesses to testify while allowing them to invoke the provincial act to protect their testimony from being used in future civil proceedings against them. The relevant section in Ontario’s Evidence Act[36] is:

9 . (1) A witness shall not be excused from answering any question upon the ground that the answer may tend to criminate the witness or may tend to establish his or her liability to a civil proceeding at the instance of the Crown or of any person or to a prosecution under any Act of the Legislature.

  (2)  If, with respect to a question, a witness objects to answer upon any of the grounds mentioned in subsection (1) and if, but for this section or any Act of the Parliament of Canada, he or she would therefore be excused from answering such question, then, although the witness is by reason of this section or by reason of any Act of the Parliament of Canada compelled to answer, the answer so given shall not be used or receivable in evidence against him or her in any civil proceeding or in any proceeding under any Act of the Legislature.

As a result, professionals who invoke the EA will not have to face their incriminating or liability establishing testimony in future disciplinary or civil proceedings. The question is whether section 13 extends this right to cases where the professional does not invoke the EA.

In Re Donald and Law Society of British Columbia,[37] the British Columbia Court of Appeal considered whether a disciplinary committee could receive the transcript of a civil defamation hearing, at which the accused professional had given evidence without invoking the relevant act. Justice Hinkson explained that the application of section 13 would depend on the definition of “incriminate”. After reviewing English authorities, he determined that it would include “any proceedings where an individual is exposed to a criminal charge, penalty or forfeiture”.[38] Since a person could be found “guilty” and a penalty could be imposed in this case, Justice Hinkson determined that section 13 should exclude the transcript from the disciplinary hearing. As a result, it seemed that section 13 would apply to disciplinary proceedings in the same manner as it did to criminal proceedings.

However, in Knutson, the Saskatchewan Court of Appeal considered section 13 in light of Wigglesworth. The Court explained that the word “incriminate” denotes penal consequences and held that because there is a “close relationship” between sections 11 and 13, their “respective scopes…in terms of the nature of the proceedings to which they apply, should be generally the same”.[39] The Court then accepted the reasoning in Donald, to the extent that the Court characterized Justice Hinkson to have based his decision on the theory that section 13 applies to “matters which may be described as criminal, quasi-criminal, or proceedings with penal consequences”.[40] Indeed, the Saskatchewan Court postulated that Justice Hinkson would have found the $10,000 for each offence in Donald to be a true penal consequence under the Wigglesworth analysis.[41] As a result, the section 11 analysis was transported into the section 13 analysis.

The Knutson analysis of section 13 was adopted by British Columbia labour arbitrator K. Albertini.[42] That matter involved an employee who testified at the dismissal arbitration for another employee. Without activating British Columbia’s Evidence Act,[43] the employee testified that he had made threatening and disparaging remarks to a third employee. The employer punished him with a written warning. The employee challenged it and argued that section 13 should protect his earlier testimony despite the fact that he did not invoke the BCEA protection. Albertini found that section 13 did not extend its protection in these circumstances because a written warning is not a true penal consequence and, thus, “clearly fails to fall under the protection”.[44] Again, section 13’s application was based on the Wigglesworth section 11 test.

An Ontario arbitration board recently relied on Woodland for the proposition that “where a witness is compelled to answer and invokes the protection of the [EA], the evidence is not admissible in the subsequent proceedings”.[45] It seems that courts are following the section 13 ruling in Knutson.

In Mussani, the Ontario Divisional Court also appeared to accept Knutson.[46]

The application of section 13 to provincial evidence acts has not yet been finally determined. Knutson and the proposition that section 13 only applies when section 11 would apply is the most useful authority. Nevertheless, it seems that Donald has been artfully interpreted. One could follow the original argument of the case that the common law understanding of “incriminate” included more than criminal matters. However, one cannot ignore the traditional distinction in both federal and provincial evidence acts between evidence that may “criminate” or “establish… liability to a civil proceeding”. While a case can be made that section 13 has a wider reach than section 11, it is unlikely to succeed. As a result, there will likely be no protection for professionals in disciplinary hearings or civil proceedings from the use of previous testimony unless they invoked the relevant provincial evidence act protections.

Section 7 - Procedural Rights and Fundamental Justice

Section 7 of the Charter is a less specific protection of legal rights than those in sections 11 - 13. It reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

This requires a two step test. First, the applicant must show that the right to either “life”, “liberty” or “security of the person” has been infringed. The person must then point to a principle of fundamental justice that has been infringed. The Supreme Court of Canada has been clear that this section can apply outside of the criminal context.[47] As a result, it might be available in professional disciplinary matters. When considering multiple proceedings, though, it is difficult to articulate a breach beyond those in sections 11 to 13.

This is a problem, because the courts will not accept a rephrasing of any parts of those rights in terms in section 7. For example, in Belhumeur, the Quebec Court of Appeal determined that if the section 11(c) right to silence was not available to a professional in disciplinary proceedings, then that professional could not claim that the failure to allow silence either infringed liberty or security of the person, or constituted a breach of fundamental justice. “Either the principle involved in s. 11(c) applies or it does not.”[48] As a result, it seems that one cannot arrive at section 11(h), 12 or 13 protections through section 7.

Similarly, in British Columbia Securities Commission v. Branch,[49] the British Columbia Court of Appeal found that “there is no residual protection against self-incrimination in s. 7 of the Charter which is separate and distinct from that protection given by s. 13 of the Charter”.[50]

In Blencoe, the Supreme Court of Canada gave extensive consideration to the application of section 7 outside of the criminal context. In particular, the Court considered whether extensive delay in a human rights proceeding had infringed section 7 when section 11(b) did not apply. For section 7, Justice Bastarache first considered whether the right to liberty had been infringed. He explained that an infringement would require state interference in “fundamental life choices”.[51] The concept is rooted in “fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being”.[52] In that particular case, there was no infringement of liberty.

Justice Bastarache then considered whether there was “serious state-imposed psychological stress”,[53] which would have been sufficient to find an infringement of security of the person. However, he found that the right could only be infringed if harm was directly attributable to the delay. He explained that stress can result from the very existence of a human rights complaint. If the existence of such stress were enough on its own to infringe security of the person, then security of the person would be all but meaningless. Instead, the stress must result from “the impugned state action”.[54] Similarly, if one were to argue that a professional was suffering severe psychological stress due to the number of proceedings, one would have to prove that it was the number of proceedings that was causing the stress. This seems to open the door to using section 7 in disciplinary proceedings to apply criminal procedural protections.

However, unlike in the criminal context, the mere existence of multiple proceedings will not result in an infringement of rights. In Blencoe, Justice Bastarache explained that while prejudice could be “inferred from unreasonable delay” in the criminal context, it could not be inferred in the human rights context.[55] He left open the “possibility” that gross delay could result in the infringement of section 7 in non-criminal circumstances,[56] but that possibility seems to be incredibly small. As a result, it is highly unlikely that the existence of three proceedings would lead to an infringement of section 7. The sort of case to pass the first test in section 7 would have to be quite unique.

The second step of the section 7 test will be even more difficult to pass in disciplinary proceedings. This is for the same reasons given in Belhumeur and Branch; it is not a principle of fundamental justice that the rights in sections 11 and 13 should be available outside of the criminal context. If it were, those sections would not be limited to criminal matters. Although Justice Bastarache did not consider the second step for section 7 in Blencoe, he did consider what might constitute abuse of process:

Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.[57]

The same reasoning could be used in a section 7 argument. If a person were held up to so many proceedings that the administration of justice was brought into disrepute, then there would be an abuse of process. It must surely be a principle of fundamental justice that a person cannot have security of the person infringed by the state through an abuse of process. However, it is difficult to imagine a real situation where this would arise in the context of multiple proceedings.

In Mussani, the Court of Appeal gave more consideration to the possible infringement of the liberty interest. The case involved a physician who had sexual relations with a patient. The liberty interest was originally framed in that case as the right to “enter into an intimate relationship with another person”.[58] The court did not rule out such a right, but considered that the real question was whether there is a “valid ‘liberty’ interest in sexual relations between physician and patient”.[59] Due to the power imbalance and possibility of exploiting such a relationship, the court refused to find such a right.

Neither is there a liberty right to practise a profession. In Mussani, the Court relied on a plain statement by the Supreme Court of Canada that section 7 does not “extend to the right to exercise their chosen profession”.[60] There might be a right to exercise a chosen profession when one meets all professional requirements, but that was not considered.

On the matter of security of the person, the Court in Mussani relied on Blencoe for the proposition that there is no right against the stigma, stress and anxiety that can arise from the loss of a professional licence for sexual abuse allegations.[61]

The best chance for a section 7 claim to succeed in a disciplinary proceeding was hinted at in Wigglesworth. As discussed above at page 4, Justice Wilson had “grave doubts” that a person could be imprisoned by a body that was not “by nature” criminal.[62] The right to liberty will be activated in any situation in which a professional is liable to imprisonment. One would then need to articulate a principle of fundamental justice that would be breached by such imprisonment. However, it is important to remember that courts would decrease a fine before finding that there is a true penal consequence and applying section 11(h). Correspondingly, it seems likely that a successful section 7 challenge to disciplinary imprisonment would result in a court removing the possibility of imprisonment instead of finding that a disciplinary tribunal must adopt criminal procedures.

It is important to note that the British Columbia Court of Appeal found that section 7 was not available to a professional “until after the college has conducted a hearing and then only if there has been a deprivation of the rights therein described contrary to the principles of fundamental justice”.[63]

The courts have avoided using section 7 to police professional disciplinary procedure. Although they have not shut the door, it certainly seems that a successful section 7 challenge to disciplinary procedural issues would require quite a unique, if not shocking factual situation.

Discretion to Delay

The danger in delaying

There is little doubt that disciplinary committees have discretion to delay proceedings. However, there is risk that such delay could result in proceedings being prohibited by the courts.

In Misra v. College of Physicians and Surgeons of Saskatchewan,[64] a doctor was criminally charged and the College delayed its disciplinary proceedings. Once the doctor was convicted, the College revoked his licence permanently. However, the conviction was overturned and the proceedings stayed for delay. The College reinstated the doctor but then charged him for the same actions. The delay had not been requested by the doctor and the Court of Appeal found that the College had acted in good faith. However, the delay was for five years, during which time the doctor’s licence was temporarily suspended. This resulted in “stress, anxiety and expense”, a bad reputation, lost income, the ruining of his practice and the difficulty of defending a charge based on five-year old actions.[65] Although the College was not at fault, the Court found that, in the circumstances of this particular case, it would be “oppressive and unfair” to hold the disciplinary hearing.[66] Under such circumstances, there is no reason why the College should not be “bound by the result of the criminal process”.[67]

In Thomson v. College of Physicians and Surgeons of British Columbia,[68] the situation was quite similar to that in Misra. Over a six year period, the College delayed a disciplinary hearing, removed a doctor when he was found guilty, reinstated him after he was acquitted in a new trial, and then began proceedings on the basis of the original complaint. The difference in this case is that the doctor had admitted to consensual sexual relations in an interview with a member of the College and asked for a hearing one and a half years after the initial complaint. Justice Maczko found an unfair delay for many of the same reasons as in Misra. In addition, even if the doctor had been charged and found guilty when he requested a hearing, he would not have had his licence suspended for nearly as long as it was. On the basis of the lower court ruling[69] in Blencoe that was overturned by the Supreme Court of Canada, Justice Maczko found that section 7 had been infringed and prohibited the College from proceeding.

As discussed above, Blencoe is strong precedent that delay is not truly a section 7 issue in disciplinary proceedings. However, Justice Bastarache also found that inordinate delay could result in an abuse of process. In doing so, he considered Misra, and explained that “in Misra the court felt that it is only in exceptional cases that delay will amount to unfairness”.[70] Ultimately, he determined that abuse of process requires that the damage to the public interest in fairness by proceeding would exceed the harm to the public interest in enforcing legislation by halting the proceedings. In addition, abuse of process requires that the proceedings would be contrary to the interests of justice and will only apply in “extremely rare” cases.[71] Professional associations must be careful not to wait too long before initiating proceedings, but delay is unlikely to result in the prohibition of proceedings.

The danger in proceeding

However, it is also possible for the courts to stay proceedings if they begin too soon. In S. (S.J.) v. College of Physicians and Surgeons of Saskatchewan (Discipline Hearing Commission),[72] the Saskatchewan Court of Queen’s Bench did just that where a doctor was accused of sexual assault and had his licence temporarily suspended. The Court relied on a Saskatchewan Court of Appeal decision[73] that loosened the previous requirement of “extraordinary circumstances” for a stay.[74] It then distinguished a decision that denied a stay[75] on the bases that S. (S.J.) involved disciplinary issues that were “interrelated in a major degree” to the criminal charges, that a conviction would allow the college to impose a penalty without a hearing[76] and that the doctor did not appeal the temporary suspension.[77]

However, the Ontario Court of Appeal has recently affirmed a much more stringent standard for when stays will be granted. In Schreiber v. Canada (Attorney General),[78] Justice Carthy explained, “the case authorities are clear that the threshold test for granting a stay is a high one, requiring the demonstration of extraordinary or exceptional circumstances”.[79] His example of an exceptional circumstance was a case that “concerned an action which was the complete reciprocal of the criminal prosecution and was commenced with the appearance of intent to interfere with the criminal process”.[80] In contrast, a lack of prejudice to the party opposing the stay, an ability to obtain vindication in a different proceeding, a danger of inconsistent findings and a likelihood of one proceeding significantly affecting the other are no basis to grant a stay.[81] “[E]ven when the accused person seeks to stay civil proceedings because of exposure to discovery on the same issues, the stay may be refused.”[82] Stays of professional proceedings in Ontario should only be granted by courts in exceptional and extraordinary circumstances.

This is not to suggest that stays can never be obtained. There is always the possibility that a professional will be able to put forward a good argument to stay a disciplinary proceeding until the completion of criminal proceedings.

In order to best protect the public, professional regulators should avoid proceeding before or during a criminal trial when disciplinary charges closely correspond to the criminal charges. However, when there is obvious evidence that discipline is warranted, such as in Thomson, disciplinary hearings should proceed. It would also be advisable to proceed if the criminal process seems to be dragging on - especially if the professional requests a disciplinary hearing. When there is any doubt as to delay, a prompt hearing will always be the safe action. The worst and still unlikely outcome would be that it is stayed until the end of a criminal trial.

Conclusion

When a professional faces multiple disciplinary proceedings, thee will be few procedural protections that relate to the multiplicity. Unless the disciplinary proceeding is criminal in nature or threatens a true penal consequence, there will be no Charter issue of double jeopardy. Even then, it is more likely for the professional to face a lesser punishment than to have the disciplinary proceeding prohibited. Issues relating to professional disciplinary procedure are also very unlikely to earn protection under the Charter’s provision against cruel and unusual treatment or punishment.

The Charter does protect professionals from having their own incriminating disciplinary testimony used against them in a criminal trial. However, professionals should invoke section 5(2) of the CEA to protect themselves from cross-examination for credibility. Meanwhile, there will likely be no protection from the use of previous criminal or civil testimony in disciplinary proceedings unless the professional invokes section 9(2) of the EA or the relevant provincial section when outside of Ontario. The provincial statute must also be invoked when giving testimony in disciplinary proceedings in order to avoid its use in future civil proceedings.

It might possible to invoke the rights to liberty or security of the person in order to avoid penal consequences in a proceeding that is not criminal by nature. However, section 7 of the Charter is unlikely to be of further value in issues that relate to multiple proceedings.

Meanwhile, it is still necessary for professional regulators to ensure that their proceedings are not delayed to the extent that they result in unfairness. If they do result in unfairness, then courts may prohibit the proceedings. This could put professional standards and the public at risk. It is also important to avoid proceeding too quickly with disciplinary proceedings if they would be uniquely prejudicial to the rights of the professional in a criminal trial.

Multiple proceedings raise a number of procedural issues. However, those issues will only result in Charter remedies in rare cases. Similarly, it will be the rare case when the discretion of a professional disciplinary body to proceed with disciplinary proceedings is overturned by the courts.

Endnotes

1. Enacted as Schedule B to the Canada Act, 1982 (U.K.) 1982, c. 11.
2. (1990), 46 Admin. L.R. 234 (Sask. C.A.).
3. Ibid., at 238.
4. (1985), 16 D.L.R. (4th) 489.
5. Ibid., at 528.
6. [1989] 4 W.W.R. 1.
7. [1990] 2 S.C.R. 232.
8. (1987), 45 D.L.R. (4th) 235 (S.C.C.) [Wigglesworth].
9. R.S.C. 1970, c. R-9 [the “RCMP Act”].
10. Supra note 8, at 247.
11. Supra note 8, at 251.
12. Supra note 8, at 252.
13. Supra note 8, at 252.
14. Supra note 8, at 253.
15. Supra note 8, at 253.
16. Supra note 8, at 253.
17. Supra note 8, at 256.
18. (1988), 54 D.L.R. (4th) 105 (Que. C.A.).
19. Ibid., at 115.
20. (1989), 68 O.R. (2d) 278 (Div. Crt.).
21. Ibid., at 280.
22. Supra note 2, at 243.
23. (2003), 226 D.L.R. (4th) 511 (Ont. S.C.J.) affirmed by (2004), 248 D.L.R. (4th) 632.
24. Ibid., at 554.
25. [1990], 6 W.W.R. 369 (Man. Q.B.).
26. Supra note 23 at 661 (C.A.).
27. Supra note 23 at 662 (C.A.).
28. Supra note 23 at 664 (C.A.).
29. R.S. 1985, c. C-5 [CEA].
30. [2002] 3 S.C.R. 433 [Noël].
31. Ibid., at 458.
32. Ibid., at 468.
33. (1987), 45 D.L.R. (4th) 429 (Sask. C.A.), at Noël, Supra note 30, at 455.
34. Ibid., at 440 - 441.
35. Re James and Law Society of British Columbia (1982), 143 D.L.R. (3d) 379 (B.C.S.C.) and Voutsis v. College of Physicians and Surgeons of Saskatchewan (1987), 41 D.L.R. (4th) 378 (Sask. Q.B.) at 379.
36. R.S.O. 1990, c. E.23 [E.A.].
37. (1983), 2 D.L.R. (4th) 385 (B.C.C.A.) [Donald].
38. Ibid., at 391.
39. Supra note 2, at 240.
40. Supra note 2, at 240.
41. Supra note 2, at 243.
42. Re Woodland Windows and I.W.A.-Canada, Local 1-424 (1995), 47 L.A.C. (4th) 106 at 111 [Woodland].
43. R.S.B.C. 1979, C. 116, s. 4 [the “BCEA”].
44. Supra note 42, at 112.
45. Brewers Retail Inc. v. United Brewers’ Warehousing Workers’ Provincial Board (2000), 88 L.A.C. (4th) 435.
46. Supra note 23, at 554 (Ont. Gen. Div.).
47. Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at 338 [Blencoe].
48. Supra note 18, at 117.
49. (1992), 88 D.L.R. (4th) 381 [Branch].
50. Supra note 47 at 382.
51. Supra note 47 at 340.
52. Supra note 47 at 340 - 41.
53. Supra note 47 at 343.
54. Supra note 47 at 355.
55. Supra note 47 at 362.
56. Supra note 47 at 366.
57. Supra note 47 at 373.
58. Supra note 23, at 650 - 51 (C.A.).
59. Supra note 23, at 651 (C.A.).
60. Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1179 at Mussani, Supra note 23, at 648 (C.A.).
61. Supra note 23, at 650 (C.A.).
62. Supra note 8, at 253.
63. Thorpe v. College of Pharmacists of British Columbia (1992), 97 D.L.R. (4th) 634 at 638.
64. (1988), 36 Admin. L.R. 298 (Sask. C.A.).
65. Ibid., at 319.
66. Ibid., at 319.
67. Ibid., at 320.
68. (1998), 65 B.C.L.R. (3d) 209 (S.C. [In Chambers]).
69. (1998), 160 D.L.R. (4th) 303 (B.C.C.A.).
70. Supra note 47, at 372.
71. Supra note 47, at 376.
72. (1998), 162 D.L.R. (4th) 759.
73. Leier v. Shumiatcher (No. 2) (1962), 39 W.W.R. 446.
74. Ibid., at 447.
75. Supra note 35.
76. Supra note 72, at 763.
77. Supra note 72, at 762.
78. (2001), 57 O.R. (3d) 316.
79. Ibid., at 319.
80. Ibid., at 321.
81. Ibid., at 320 - 21.
82. Ibid., at 321.