DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL:
Spencer Dickson, RN Panel Chair
Cheryl Beemer, RN Member Margaret Tuomi Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ) REBECCA DURCAN for ) College of Nurses of Ontario
- and - )
[The Member] ) ROBERT STEPHENSON for ) [The Member]
) LUISA RITACCA
) Independent Legal Counsel
) Heard: March 12, 2013
DECISION AND REASONS ON MOTION
This was a pre-hearing motion brought by the Member seeking severance of allegations 1 to 4 from allegations 5 to 9 as set out in the Decision of the Inquiries, Complaints and Reports Committee (“ICRC”) dated October 24, 2012. The Member also requested an order that allegations 1 to 4 and allegations 5 to 9 be heard by two separate Panels of the Discipline Committee, which Panels are not to include Committee members who have previously dealt with or have knowledge of these allegations. The motion was heard by a Panel of the Discipline Committee on March 12, 2013 at the College of Nurses of Ontario (“the College”) at Toronto.
The position of the Member was that severance of the allegations was required in the interest of justice. The position of the College was to oppose the severance of the allegations.
Publication Ban
Defence counsel sought an order banning the publication or broadcasting of the names of the clients referred to in the course of the hearing of the motion or in any of the materials and/or any information that could identify them. College counsel did not oppose the request. The Panel made the order as requested, pursuant to s. 47 of the Health Professions Procedural Code of the Nursing Act, 1991.
The Evidence on the Motion
Both the Member and the College filed separate motion records and factums.
Overview
In a decision dated October 24, 2012, the ICRC referred nine separate allegations to the Discipline Committee in relation to the Member. Allegations 1 through 4 relate to an allegation that the Member placed [Client A’s] hand on or near his penis while taking [Client A’s] blood pressure, in the course of providing the client with nursing care in an emergency department setting.
Allegations 5 through 9 relate to an allegation that the Member placed [Client B’s] hand on his penis and masturbated, in the course of providing the client with nursing care in an emergency department setting.
It is alleged that these separate incidents took place on different dates within a six-month period in the same emergency department setting. [Client A] and [Client B] are not related and were not receiving the same type of care during the alleged incidents.
Submissions of the Parties
Submissions from Counsel for the Member
Counsel for the Member relied upon R. v. Last, 2009 SCC 45, to support his arguments for severance in this case.
Counsel for the Member stated that allegations 1 to 4 and 5 to 9 stand independent of one another in that they deal with entirely separate acts of misconduct. In addition, counsel argued that the facts relating to one alleged act of misconduct were not relevant to and did not prove the alleged act of misconduct in the other. In hearing them together, counsel argued that there is a risk of witness credibility cross-pollination. For instance, with respect to the incident alleged in allegations 1 to 4, counsel argued that [Client A] was conscious, communicative and aware of [Client A’s] surroundings during the alleged misconduct. In contrast, counsel argued that with respect to allegations 5 to 9, [Client B] was unconscious and unable to communicate. Counsel argued that if the matters proceeded in one hearing, there would be a risk of bolstering the credibility of [Client B], simply by finding that [Client A] was credible.
Counsel argued that hearing the allegations together, creates a significant prejudice to the Member’s right to a fair hearing. Specifically, there is a concern in that hearing allegations that are independent of each other together, the Panel could potentially engage in propensity reasoning. Counsel argued that these allegations are independent of each other in that there are no striking similarities between the allegations and that they were committed six months apart from each other, and as such propensity reasoning would be inappropriate.
Counsel for the Member stated that there is a very thin legal and factual nexus between the allegations. The only nexus was that both incidents occurred at the same location while the Member was working as a Registered Nurse.
Counsel also indicated that the Member is reserving his right to testify with regard to one, both or neither of the two sets of allegations. If the allegations proceed together, counsel argued that the Member will lose the option of leading distinct defences to each set of the allegations.
With respect to the risk of inconsistent decisions, counsel for the Member stated that there is no risk of inconsistent verdicts in this case. The allegations are separate, distinct and independent of each other.
Counsel for the Member stated that there is no issue related to multiplicity of proceedings in severing the allegations. It would require the same amount of time for the two hearings as for one hearing, as there are different witnesses, different procedures, different complainants, and as such different evidence will be called for each set of allegations.
Submissions from Counsel for the College
Counsel for the College stated that the College is committed to the principles of natural justice and has a duty to ensure that it is acting in the public interest and to ensure that the Member receives a fair hearing. On this motion, it is up to the Member to prove that the allegations should be severed.
Counsel for the College submitted that the Member has failed to discharge the onus of proof for severance of the allegations.
Counsel for the College submitted that there is a legal and factual nexus between these sets of allegations. Counsel confirmed that at the time of the hearing of these allegations (whether in one or two separate hearings), the College intends to seek an order allowing it to lead the similar fact evidence from one set of allegations in support of the other, which it says tends to show the Member’s propensity to commit the acts as alleged. There is similar fact evidence in that the alleged incidents occurred in the same location; within six months of each other; both complainants were [ ] immobile; the Member is alleged to have placed their hands on or near his penis; and that the identity of the Member was confirmed with respect to both complainants.
In addition, in light of its intention to seek to use the similar fact evidence, College counsel argued that if the matters proceeded as two hearings, [Client A] and [Client B] would have to testify twice. This would be upsetting for the complainants, would lead to unnecessary duplication of resources, and could lead to inconsistent findings of fact. Two hearings would be inefficient and result in needless expense.
College counsel stated that the Member does not have the right to choose not to testify in one, both or neither of the hearings. Members are required to participate in College investigations and to testify. The College submitted that the Member does not have a right to silence in the course of his regulatory proceedings. The College relied on the case of Law Society of Saskatchewan v Stromberg in support of this proposition [ ].
Independent Legal Counsel (ILC)
The Panel heard advice from ILC that included the following:
The Member bears the responsibility to prove the motion on the balance of probabilities that it is in the interest of justice to sever the allegations and hold two separate hearings, before different Panels of the Discipline Committee.
The Supreme Court in R.v. Last, paragraph 16, sets out the task before the Panel in determining whether to allow the motion.
Further, at paragraph 18 of the same decision, the court sets out the specific factors the Panel should consider in its deliberations.
Issues before the Panel for consideration include the legal and factual nexus, the right of the Member not to testify, and potential for multiplicity of hearings.
In considering the factors, each factor needs to be weighed in context to the evidence before the Panel. One factor is not determinative over another.
Decision
The onus was on the Member to show that the severance of allegations 1 to 4 from 5 to 9 as requested should be granted based on a balance of probabilities in the interests of justice.
Having considered the evidence, the submissions and the onus and standard of proof, the Panel allows the motion and orders:
That allegations 1 to 4 in the Decision of the Inquiries, Complaints and Reports Committee dated October 24, 2012 be severed and heard separately from allegations 5 to 9, inclusive; and
That allegations 1 to 4 and allegations 5 to 9 be heard by two separate Panels of the Discipline Committee, which Panels are not to include members who have previously dealt with or have knowledge of these allegations.
Reasons for Decision
In rendering its decision, the Panel considered the submissions of both parties as well as advice from its Independent Legal Counsel. The Panel reviewed the factors, within the context of the current motion, as set out in R.v. Last. 2009 SCC 45.
The Panel engaged in a weighing exercise to ensure that a reasonable balance was struck between the risk of prejudice to the Member and the public interest in a single hearing.
Pursuant to R.v. Last, the Panel weighed the following factors:
- Legal and factual nexus of the allegations.
The Panel found that the only factual nexus between the allegations was that the two instances of misconduct were alleged to have been committed in the same facility while the Member was working as a Registered Nurse. The Panel did not find that such a nexus was sufficient. Further, the Panel did not find that there was any legal nexus between the allegations. The complainants were in the emergency room with different health related issues. One was immobile while the other was not. Furthermore, the precise nature of the allegations [is] different.
- General prejudice to the Member.
The Panel is concerned with respect to the potential of credibility cross pollination between the complainants. In one instance, it appears that the complainant was conscious and communicative during the alleged incident, while in the other instance, there was evidence before this Panel to suggest that the complainant was not conscious or aware of [the complainant’s] surroundings during the alleged incident.
- The complexity of the evidence.
The Panel considered the complexity of the evidence and concluded that the complainants are different, therefore, the complexity of the evidence would be different.
- Whether a Member will testify in one or the other set of allegations.
The Panel considered whether or not the Member had an objective rationale for testifying on some and not all of the allegations. From the submissions of counsel, it appears that the Member may raise different defences in respect of the allegations relating to [Client A] versus those relating to [Client B]. For example, there is some evidence that the Member may be able to challenge [Client A’s] identification of the Member as the alleged perpetrated of the misconduct and in respect of [Client B], there may be some question as to [Client B’s] ability to remember anything that went on the night in question. The Panel concluded that the Member can lead distinct defences to the two sets of allegations and would be hampered in doing so should the matters proceed together.
In balancing this factor, the Panel is not making a determination as to ultimately whether the Member has a right to silence in these proceedings. It is the Panel’s understanding from the submissions heard that the College has no intention of calling the Member to give evidence with respect to either set of allegations. That being the case, the Panel makes no comment with regard to the Member’s right to silence and accepts that there is a possibility that the Member will testify in respect of one set of allegations and not the other.
- Possibility of inconsistent verdicts.
The Panel found the possibility of inconsistent verdicts does not exist as the allegations are unrelated.
- Desire to avoid multiplicity of proceedings/length of the hearing/hearing within a reasonable length of time.
As the Panel has found that allegations 1 to 4 and 5 to 9 are considered to be unrelated, the Panel concludes that a single hearing would create unfairness to the Member. The Panel also concluded that separate hearings would not negatively affect the public interest while all nine allegations will ultimately be addressed.
There was no evidence before this Panel to suggest that two hearings will result in an unreasonable delay in resolving these allegations.
- The use of similar fact evidence at hearing.
It is the Panel’s understanding that the College intends to bring a motion at the hearing of these matters to allow for inclusion of similar fact evidence. The Panel concluded that the potential use of similar fact evidence at one or both of the hearings does not automatically defeat the Member’s motion to sever allegations. Ultimately, it will be up to the hearing Panels to weigh the evidence before them and to determine whether and to what extent to allow similar fact evidence to be used in these matters.
The Panel considered all relevant factors and concluded that the lack of legal and factual nexus, the potential for distinctly different objective defences and the high risk of prejudice to the Member were significant factors in concluding that severance of the allegations is warranted here in the interest of justice. The public interest is protected as allegations 1 to 9 will eventually be heard by Panels of the Discipline Committee.
I, Spencer Dickson, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:
Chairperson Date
Panel Members:
Cheryl Beemer, RN
Margaret Tuomi, Public Member