Sazant v. The College of Physicians and Surgeon, 2011 ONSC 323

CITATION: Sazant v. The College of Physicians and Surgeon, 2011 ONSC 323

DIVISIONAL COURT FILE NO.: 438/09

DATE: 2011/01/17

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, SWINTON and SACHS JJ.

BETWEEN:

DR. MARVIN SAZANT Appellant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS Respondent

Marie Henein, Tracey Tremayne-Lloyd and Jordan Glick, for the Appellant

Vicki White, Scott C. Hutchison and Philip Downes, for the Respondent

Robin Basu and Michael Doi, for the Intervenor, Attorney General for Ontario

Jaan Lilles, for the Intervenor, Dr. Allan Beitel

Matthew Sammon, for the Intervenor, Dr. Leonard Kelly

HEARD at Toronto: September 27, 28 and 29, 2010

BY THE COURT:

NATURE OF THE PROCEEDING

[1] The appellant, Dr. Marvin Sazant, appeals to the Divisional Court from the final and interim decisions made against him by the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the Committee”). The seven sets of reasons issued by the Committee address a number of Dr. Sazant’s procedural challenges and ultimately conclude that he engaged in acts of professional misconduct that were sexual in nature with three boys, one of whom had been a patient, between 1970 and 1991. The Committee determined that the appropriate penalty for the acts of misconduct was revocation of the appellant’s license to practise medicine, and ordered costs against him in the amount of $92,812.00, payable to the College.

[2] The appellant is joined in his appeal by Drs. Leonard Kelly and Allan Beitel as intervenors on the issue of the constitutionality of s. 76(1) of the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Health Professions Act”). This provision provides a College investigator with the same investigatory powers as a commission under the Public Inquiries Act, R.S.O. 1990, c. P.41. One such power is the ability to issue a summons without prior judicial authorization to any person, requiring him or her to give or produce evidence to the investigator. It is contended by the appellant and the intervenors that this statutory delegation of power amounts to a violation of ss. 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”).

[3] In the case of each doctor, the College investigator used his summons power to obtain materials gathered over the course of a police investigation (including Crown brief materials), and the College relied upon that material in initiating proceedings against each doctor before the Discipline Committee.

[4] The respondent College takes the position that the challenged investigatory powers meet the standard established by s. 8 of the Charter and s. 7 is not engaged. The Attorney General of Ontario also intervenes on the constitutional question and argues that the Charter challenge is without merit.

[5] The appellant also seeks to have the Committee’s interim and final decisions overturned on the following alleged grounds:

• the Committee did not have the jurisdiction to consider the constitutional challenge;

• the Committee erred in denying the appellant’s motion to have the proceedings stayed on the basis of abuse of process, arising out of pre-charge and investigative delays;

• the Committee erred in introducing evidence that was obtained via a police search that was, in the opinion of the appellant, unconstitutional;

• the Committee misapprehended and disregarded critical aspects of the evidence;

• the Committee applied a different standard of scrutiny to witnesses for the defence than to witnesses for the College;

• the Committee erred in improperly relying on evidence that did not amount to “similar fact evidence”;

• the Committee erred in its interpretation of “disgraceful, dishonourable or unprofessional conduct” in failing to give due consideration to the need for the conduct to be “relevant to the practice of medicine”; and

• the Committee erred in its determination of the appropriate penalty and costs order.

[6] For the reasons that follow, we find that s. 76 of the Code is constitutional; the Committee did have jurisdiction to address the Charter challenge and to grant the remedies sought; the Committee appropriately exercised its discretion in refusing to grant a stay of proceedings on the basis of delay; and the Committee’s finding that the appellant was guilty of professional misconduct was a reasonable one, as were its conclusions on penalty and costs.

BACKGROUND:

History of the Constitutional Challenge

[7] Subsection 76(1) of the Code stipulates that “[a]n investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.”

[8] Subsection 7(1) of the Public Inquiries Act, R.S.O. 1990, c. P.41 states:

A commission may require any person by summons,

(a) to give evidence on oath or affirmation at an inquiry; or

(b) to produce in evidence at an inquiry such documents and things as the commission may specify,

relevant to the subject-matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.

[9] Dr. Sazant brought an application before the Superior Court of Justice seeking a declaration that s. 76(1) of the Code was in violation of the Charter on June 17, 2007. Drs. Kelly and Beitel joined on this application.

[10] The College brought a motion to strike the doctors’ Superior Court application. Himel J. dismissed the College’s motion on May 26, 2008, finding that the Superior Court had jurisdiction to hear the application as made by the doctors. The College then sought leave to appeal Himel J.’s decision to the Divisional Court. Justice Low dismissed the College’s motion for leave on August 19, 2008.

[11] At the same time, Dr. Sazant had also asked the Divisional Court to stay the College Discipline Committee hearings against him on the basis that the Superior Court should first decide his Charter challenge. Justice Bellamy heard the matter and declined to enter a stay.

[12] Therefore, while Dr. Sazant pursued his application seeking a declaration that s. 76(1) of the Code was in violation of the Charter from the Superior Court, he concurrently argued the unconstitutionality of s. 76(1) before the Discipline Committee.

[13] The Committee heard this matter over the course of 36 non-consecutive days, ending in September 2008. On February 20, 2009, the Committee found that the summons power was not in violation of the Charter. In a previous decision, dated July 9, 2007, the Committee had found that it had jurisdiction to deal with the Charter question.

[14] The Committee then went on to find that Dr. Sazant had committed professional misconduct in his interactions with three vulnerable boys, one of whom had been a patient. The details of the complaints and the Committee’s findings in this regard are discussed below.

[15] The doctors’ application before the Superior Court was scheduled to be heard on July 14, 2009. At the hearing, however, counsel for the Attorney General of Ontario (the “AG”), with the support of the College, raised the question as to whether the Superior Court was in fact the proper forum. The AG argued that, although the combined effect of the decisions of Justices Bellamy, Himel and Low was to allow this matter to proceed parallel in two forums (before both the Disciplinary Committee and the Superior Court), the more practical manner in which to evaluate the constitutionality of s. 76(1) was before the Discipline Committee, followed by appropriate review before the Divisional Court.

[16] The Committee, as mentioned, had already dismissed the constitutional challenge to s. 76(1) and had found that Dr. Sazant had committed acts of professional misconduct. Dr. Sazant had at that point indicated that, once the Committee released its reserved decision on costs and penalty, he would be appealing the Committee’s decisions on the Charter challenge, the merits, and the penalty to the Divisional Court.

[17] The AG pointed out that only the Divisional Court can set aside decisions of the Committee. The Superior Court cannot reverse the Committee’s rulings, or exclude evidence that has already been admitted, and, thus, the declaratory relief sought was ineffectual as it related to Dr. Sazant. In addition, the appellate procedure, should Dr. Sazant take this matter to higher courts, would be disordered.

[18] It was further argued and agreed that it would not impose a significant hardship on Drs. Kelly and Beitel if the Court declined to hear the issue related to constitutionality. Both doctors accepted that they would have the opportunity to apply for intervenor status in the Divisional Court appeal in Sazant, should they wish to make submissions there on the Charter issue.

[19] An order was drafted to adjourn the matter indefinitely on certain agreed terms. The constitutional challenges were adjourned to be argued in the appeal to the Divisional Court taken by Dr. Sazant from the Committee’s decision. This was on the condition that Gans J. would remain seized of the applications and hear the motion for intervention by Drs. Kelly and Beitel. In addition, it was agreed by the College that Dr. Sazant would have standing to challenge the constitutionality of s. 76(1) in the Divisional Court, notwithstanding any arguments the College might wish to bring with regard to remedy.

[20] The balance of the application by Dr. Kelly was adjourned to a date to be fixed before Gans J., on the condition that Dr. Kelly would not face the Discipline Committee hearing until a decision was rendered on the constitutional issues.

[21] Finally, the balance of the application by Dr. Beitel was adjourned to a date to be fixed before Gans J.

[22] The Committee released its ruling on the matters of penalty and costs on September 2, 2009. Counsel for Dr. Sazant filed his Notice of Appeal to the Divisional Court on September 22, 2009.

[23] Gans J. then granted Drs. Beitel and Kelly leave to intervene in this appeal and to participate as parties in the challenge to the constitutionality of s. 76(1) of the Code.

The Complaints against Dr. Sazant

[24] Dr. Sazant, who is now 75 years old, has maintained a general medical practice in Toronto for 47 years.

Complainant J.H.

[25] Dr. Sazant was initially investigated in December 1991 when 12-year-old J.H. gave a statement to the Toronto Police Services (“TPS”) alleging one incident of sexual touching. J.H. was not a patient of Dr. Sazant.

[26] The complaint arose when J.H.’s mother and cousin discovered that the boy and his friends had been attending at the appellant’s home during school lunch hours for approximately a year and a half. The appellant maintained that these visits were not inappropriate and that no sexual contact had ever occurred. However, J.H. alleged that on one occasion the appellant had been tickling him and proceeded to deliberately touch J.H.’s penis for 10 to 20 seconds. J.H. also described incidents in which he and another boy had tied the appellant to his bed and had drunk alcoholic wildberry coolers, and incidents in which the appellant had tied him to the bed, proceeded to tickle his sides and legs, and hit him lightly with a belt.

[27] A search warrant was executed on the appellant’s residence and the TPS advised the College of its investigation. However, in 1992, the College was notified that the investigation had concluded with no charges laid. The TPS had decided that J.H. was not credible and had been caught in “outright lies.” Dr. Sazant entered into an undertaking with the Crown at this time to the effect that he would forfeit his firearms, he would participate in two years of psychiatric counselling, and he would have no contact with persons under the age of 16 years except for the purpose of his medical practice.

[28] The College opened a file in respect of the J.H. complaint on January 23, 1992. The appellant was not informed of the College’s interest in the matter. The College decided internally to monitor the situation to see if an investigation would be necessary in the future on the issue of “Dr. Sazant’s fitness to practise based on his apparent homosexual/paedophile activities.” The College did not conduct any investigation over the next number of years, and the file was officially closed in 1998.

Complainant G.M.

[29] In January and July of 1998, 34-year-old G.M. provided statements to police alleging that he had been subjected to multiple incidents of sexual abuse by Dr. Sazant when he was a child, between 1972 and 1978.

[30] G.M. had been a patient of Dr. Sazant, and his family had been very close with the doctor: Dr. Sazant would attend at the M’s family home for occasional Sunday lunches; attended G.M.’s wedding; and exchanged cards and gifts with G.M. well into G.M.’s adulthood.

[31] G.M. had written a letter to Dr. Sazant on December 10, 1997, stating, among other things, “I want you to know that you have destroyed my life. You sexually abused me, Doctor,” and “I want to know what you intend to do. ... If I don’t hear from you within two weeks, I will be taking further action.” When Dr. Sazant wrote back denying that any abuse had occurred, G.M. revealed the details of the alleged abuse to his family and reported the matter to the RCMP.

[32] According to G.M., Dr. Sazant had hugged him and kissed him on the mouth when he attended at the doctor’s office with his family. He also alleged that the doctor had fondled his testicles during examinations, and that Dr. Sazant had abused him at Dr. Sazant’s home following outings the two would take to such places as the Exhibition and the Science Centre. G.M. alleged that on multiple occasions over a number of years Dr. Sazant undressed him, tied him to the bed, masturbated over him and fondled his genitals.

[33] The College was informed on June 2, 1998, that the police were investigating G.M.’s allegations. On November 3, 1998, criminal charges were laid with respect to the complaints against Dr. Sazant made by J.H. in 1991 and the more recent allegations of G.M.. The College was advised of Dr. Sazant’s arrest, and a news release was issued.

Complainant B.M.

[34] On November 13, 1998, B.M. (who is no relation to G.M.) contacted police to allege two incidents of sexual abuse that occurred in 1981 or 1982. B.M. had been between 13 and 15 years old at the time and a member of a YMCA basketball team coached by Dr. Sazant. He was prompted to contact the police when he heard via the media about the charges that had been laid against Dr. Sazant.

[35] B.M. claimed that he had become close to the appellant when he confided in Dr. Sazant about difficulties he was having in his home life. Dr. Sazant took the boy to lunch on occasion over a number of months, and eventually began having the boy over to his residence. On two occasions, Dr. Sazant allegedly kissed B.M., tied the boy to the bed in his basement, and forced the boy to perform oral sex on him.

[36] Dr. Sazant was criminally charged in relation to B.M.’s complaint on March 5, 1999. The College was advised of the new charges on March 8, 1999, and on April 19 the College wrote to the appellant to advise that the Executive Committee requested him to undertake not to see patients under age 16 except in the presence of another adult. Dr. Sazant voluntarily signed this undertaking on June 22, 1999.

[37] The College did not conduct investigations on the file or contact the complainants; instead, the College chose to monitor the criminal proceedings.

Complainant D.T.

[38] D.T. also made a complaint to the TPS in November 1998, after hearing on television about the charges against Dr. Sazant. D.T. alleged that an incident of sexual touching had occurred when he was around 8 years old. This allegation was investigated by the police, but no charges were laid because the police did not consider D.T. to be credible.

Withdrawal of the Criminal Charges & Continued Investigation by the College

[39] In 2000, the Crown withdrew the charges against Dr. Sazant in respect of J.H. because of the 1992 agreement with the prosecution. In 2004, the Crown stayed the charges in respect of G.M.. In 2006, following a number of appeals arising out of the initial preliminary inquiry, the Superior Court stayed the charges against Dr. Sazant in respect of B.M..

[40] During this time, Dr. Sazant undertook to abide by additional practice restrictions and monitoring at the request of the College, while maintaining that his compliance was not to be taken as an admission of wrongdoing. As of 2000, he would not treat any patient under the age of 16 years without an adult present who was informed of the allegations. This practice restriction was entered on the College’s public register in 2004, and in 2006 Dr. Sazant was prohibited from treating patients under the age of 16 altogether.

[41] Toward the end of 2004, the College changed the status of Dr. Sazant’s file from “monitoring” to an investigation. Tom McNamara, an employee of the College’s Investigations and Resolutions Department, but not yet an investigator appointed pursuant to s. 75 of the Code, twice requested from the TPS the occurrence reports from 1991, 1998 and 1999. He obtained the consent of G.M. and a brief request from G.M. that the College investigate Dr. Sazant, and forwarded this consent to the police. At the same time, he requested materials related to J.H.. The TPS refused Mr. McNamara’s requests.

[42] In January 2005, Mr. McNamara prepared a memorandum to the Registrar of the College seeking to be appointed under s. 75(a) of the Code to investigate whether Dr. Sazant had committed an act of professional misconduct or was incompetent. This request was granted, and Mr. McNamara issued a summons to the TPS and the AG pursuant to s. 76(1) of the Code. However, the police refused to release documents relating to matters where criminal charges had been laid.

[43] Mr. McNamara issued an amended summons requiring a complete copy of the Crown brief and the criminal record of Dr. Sazant, among other documents, but later spoke with Walter Myrka at the Crown Law Office–Civil and indicated that he only wanted specific items related to the G.M. file.

[44] Mr. McNamara eventually received far more information than had been requested in conversation with Mr. Myrka, including a number of items that did not relate to the G.M. file, but were in respect of J.H., B.M. and D.T.. He did not notify the Crown Law Office–Civil of their mistake and instead kept this material, expanding his investigation from G.M. alone to all four complainants.

[45] In the meantime, Mr. McNamara sent a letter to the appellant, dated July 6, 2005, advising him that the College was aware of the alleged sexual abuse of G.M. and was investigating. Eventually, all four complaints were referred to a panel of the Discipline Committee by the Executive Committee and the Complaints Committee of the College.

[46] A Notice of Hearing was issued to the appellant on March 21, 2006, alleging that Dr. Sazant was guilty of professional misconduct:

• by conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and

• by engaging in sexual impropriety with patients.

[47] The initial Notice was subsequently amended to reflect the legislation in effect at the time of each alleged incident, and the Committee issued reasons to this effect.

The Hearings before the Committee

Abuse of Process Motion

[48] Dr. Sazant first brought a motion for a stay of the disciplinary proceedings on the basis that the delay in bringing forth his case had been negligent, contrary to the principles of natural justice, and contrary to the College’s legislative mandate to carry out investigations in a timely fashion. Dr. Sazant alleged that this delay amounted to an abuse of process under the Charter, or, alternatively, a breach of administrative law principles. This motion was heard on April 25, 26 and 27, and on May 30, 2007.

[49] On June 1, 2007, the Committee dismissed Dr. Sazant’s motion for a stay. It found that no violation of s. 7 of the Charter arose because the delay did not cause substantial harm to Dr. Sazant’s psychological integrity. The Committee also found that the period of pre-charge delay could not be blamed on the College since this was a case where the victims were understandably reluctant to come forward. With respect to the post-charge delay, the Committee concluded that it was not unreasonable for the College to await the results of the criminal proceedings, particularly since Dr. Sazant was not suspended from the practise of medicine in the interim. Thus, in the Committee’s view, the delay was not inordinate.

[50] The Committee also found that even if the delay was inordinate, much of the demonstrated prejudice to the appellant that arose while the proceedings were pending was due to the criminal proceedings, not the College prosecution (i.e. the negative media coverage, restrictions on his practice relating to young people, and resultant depression).

[51] In support of his argument for a stay, the appellant submitted that evidence that would have been available to support his defence was no longer available as a result of the passage of time. In particular, his mother, a neighbour, and a secretary had passed away over the years. The Committee considered this argument and found that the evidence would not have been particularly helpful to the appellant and that its loss did not prevent him from receiving a fair hearing.

[52] Finally, the Committee concluded that this was not one of the “clearest of cases” in which a stay would be appropriate.

Motion to Determine the Committee’s Jurisdiction under the Charter

[53] On July 9, 2007, the Committee heard a motion by Dr. Sazant seeking a declaration that the Committee lacked the jurisdiction to determine the constitutional issues raised in the case and to grant the Charter remedies sought. The Committee dismissed this motion the same day.

[54] While the Committee accepted that it did not have jurisdiction to make a declaration that s. 76(1) of the Code was constitutionally invalid, it found that it did have the ability to determine whether there had been breaches of the appellant’s Charter rights and to fashion remedies in the event a breach was found. This could include the ability to find that a provision was invalid and to decide the case as if the provision did not exist, as well as to determine whether evidence obtained in breach of a Charter right should be admitted. The Committee could also stay proceedings based on Charter violations.

Renewed Motion for Abuse of Process

[55] During the course of the hearing, Dr. Sazant’s counsel took the position that additional and new evidence had been revealed that affected the import of the evidence lost to Dr. Sazant as a result of the pre-hearing delay. Therefore, the appellant brought a motion renewing his application for a stay on the basis of abuse of process. The College took the position that the testimony given by Dr. Sazant so far in the proceedings regarding his interactions with the four boys could itself provide grounds for a finding of misconduct, even if all other evidence went unconsidered. The Committee later held that its earlier findings regarding a lack of prejudice to Dr. Sazant in conducting his defence continued to be valid, and dismissed the renewed motion.

Motion to Exclude Evidence Obtained Through the Execution of a Police Search Warrant

[56] Dr. Sazant next moved for the exclusion of evidence obtained through the execution of a police search warrant on his home in 1991. He also requested a stay due to loss of evidence because a number of items that had been seized by the police pursuant to the warrant had been lost.

[57] Between July 23 and 26, 2007, the Committee heard submissions on

• the validity of the information used to obtain the warrant,

• the breadth of the list of “things to be searched for” given the information available,

• the number and type of things taken from the residence in light of the language of the warrant, and

• the fact that the items taken may no longer be inspected, as both the original items and any photographs taken had been destroyed.

[58] Additionally, the appellant submitted that statements he had made in the course of the search had been made while he was detained, and should be excluded under s. 10(b) of the Charter because he had not been granted access to counsel.

[59] The Committee dismissed the motion at the hearing, with written reasons to follow. Reasons were released on February 20, 2009, concluding that Dr. Sazant’s Charter rights had not been breached, and reserving a determination as to whether a stay would be appropriate in light of the impact of the lost evidence. The Committee ultimately concluded that a stay would not be appropriate.

[60] While the issues that were the subject of this motion were raised in the appellant’s factum on this appeal, they were not pursued in oral argument before the Divisional Court, except to the extent that the loss of some of the evidence obtained when the warrant was executed was used to buttress the appellant’s submissions respecting delay.

Motion to Exclude Evidence Obtained via the College Summons Power

[61] Finally, Dr. Sazant brought a motion for the exclusion of any and all evidence obtained pursuant to the summonses issued by the College investigator on the basis that the summons power violates the Charter and is of no force and effect. This motion was heard on April 21 to 25, 2008, and June 5 to 6, 2008.

[62] The Attorney General for Ontario was granted standing on this point and both the AG and the College argued that the Charter challenge was without merit.

[63] The College also opposed the motion to exclude the evidence, submitting that none of the evidence tendered at the hearing was obtained pursuant to the summons – in fact, the central evidence was the live testimony of the four complainants, who had bound themselves to speak the truth and who were willing participants in the proceedings. The College submitted that because the three main complainants were known to the College prior to the execution of the summons, the challenged evidence would have been inevitably discovered through investigations even if the summons power had not been engaged.

[64] On February 20, 2009, the Committee dismissed the appellant’s motion to exclude evidence. First, the Committee found that Dr. Sazant had no standing under s. 8 of the Charter as he did not have a reasonable expectation of privacy in the Crown brief materials. Second, it found that the appellant had not demonstrated that the s. 76(1) summons authority violated s. 8 of the Charter. The fact that the conduct being investigated was also the subject of criminal proceedings did not import all the protections designed for the criminal process into the administrative context. Given the context, the summons power under the Code was reasonable.

[65] With respect to s. 7 of the Charter, the Committee found that because the summons power did not violate s. 8, using it could not be contrary to the principles of fundamental justice.

[66] The Committee also concluded that even if there was a Charter breach, the admission of the evidence would not bring the administration of justice into disrepute. In this regard, the Committee noted that College investigators and the AG’s office were working to protect the public, and “to exclude evidence in this case would justifiably bring outrage from the public and fetter the College in its duty to protect the public” (Reasons of the Discipline Committee, February 20, 2009, page 18).

[67] Finally, the Committee noted that nothing that had been obtained pursuant to the use of the s. 76(1) summons was adduced at the hearing. The evidence before the Committee consisted of the oral testimony of the four complainants and of the police officers who conducted the search. None of this viva voce evidence was “obtained in a manner” that infringed any right of the appellant and, therefore, s. 24 of the Charter was not engaged.

Decision on the Misconduct Allegations

[68] Ultimately, with regard to the allegations of misconduct, the appellant denied that any sexual contact had ever occurred. He admitted to tickling J.H. and other boys, but he denied ever touching J.H.’s penis and inner thighs. Dr. Sazant submitted that the “play-wrestling” that took place was a bonding activity among friends and was not sexual. Dr. Sazant admitted that he tied G.M. to the bed when he played with him and that he had been tied to the bed during the course of his interactions with J.H..

[69] Dr. Sazant noted that G.M. had been inconsistent in his testimony, particularly in regard to the number of alleged incidents (which ranged in his statements from 7 or 8 in total, to around 80 times per year for several years), and that his allegations that sexual abuse took place while his parents were present in the doctor’s office lacked credibility. G.M. had a criminal record and had had extensive contact with the police and with the courts. Counsel for Dr. Sazant took the position that G.M. was driven to make the accusations out of financial desperation, and that the 1997 letter was in fact attempted extortion: Dr. Sazant had been generous with G.M. over the years, and G.M. found himself in dire financial straits prior to writing the letter.

[70] Dr. Sazant claimed that he had never pursued B.M. sexually, but that B.M. had propositioned him on more than two occasions. Dr. Sazant testified that he had been surprised, said “no” to the boy each time, and drove B.M. home promptly when the propositions occurred. Counsel for Dr. Sazant submitted that no sexual contact had occurred, but that if any sexual activity had taken place it had been consensual and the boy was of legal age (14), the age for consent to sexual activity being 14 years at that time.

[71] With respect to J.H., Dr. Sazant pointed to the fact that J.H. had a criminal record for domestic violence and that J.H. had only made the sexual misconduct allegations against the appellant when J.H.’s cousin had contacted the police after discovering that he had lied to her, claiming to be at school during a professional development day when he was in fact at the appellant’s home.

[72] Regarding the complainant D.T., Dr. Sazant testified to having had the boy and his brother at his house to do odd jobs and play pool, but he denied that he had ever touched the child inappropriately. He also pointed out that D.T.’s allegations lacked consistency.

[73] Finally, counsel for Dr. Sazant argued that the Committee had no jurisdiction to deal with the complaints of the boys who were not patients, as the investigation and sanction of the College must relate to the member’s practice of medicine.

[74] The Committee concluded that Dr. Sazant committed professional misconduct in his interactions with G.M., B.M. and J.H.. With respect to G.M., the Committee found that G.M.’s evidence that he was sexually abused at Dr. Sazant’s house on a number of occasions was credible, but that the evidence regarding the incidents that were alleged to have occurred in the appellant’s office was not sufficiently probative for the Committee to find that these incidents occurred.

[75] With respect to B.M., the Committee accepted B.M.’s evidence as to the sexual nature of his contact with Dr. Sazant and found that B.M. was 13 years old when the contact occurred. However, it also found that even if the sexual activity took place after B.M. turned 14, Dr. Sazant nevertheless abused the trust placed in him as the boy’s coach.

[76] The Committee also accepted J.H.’s evidence that Dr. Sazant had fondled his penis briefly, but the Committee found that D.T.’s evidence was inconsistent and unconvincing. Therefore, they found that D.T.’s allegations were not proven.

[77] The Committee concluded that the impugned conduct was relevant to the practice of medicine. Dr. Sazant was a doctor who treated children. As such, once he had been found to have sexually misconducted himself with children (even non-patients), this was relevant to his ability to treat children. This conduct was found to be disgraceful, dishonourable and unprofessional. Therefore, the appellant had committed professional misconduct.

[78] Although the Committee considered the allegations and made findings with respect to each complainant separately, it also concluded that “the sum of the evidence satisfies the criteria for admission of similar fact evidence and adds weight to the findings” (Reasons of the Discipline Committee, February 20, 2009, page 70).

Decision on Penalty

[79] On the issue of the appropriate penalty, counsel for the College submitted that the acts in question constitute the most serious form of professional misconduct (planned, deliberate and repeated sexual misconduct with boys over whom he stood in positions of trust and authority), so revocation of Dr. Sazant’s license was warranted. Counsel for Dr. Sazant argued that revocation was not warranted, as this was not the most serious of cases. She submitted that the appropriate penalty was a suspension for three months. In making this submission, counsel for Dr. Sazant emphasized the absence of new allegations over the past 18 years, the absence of a criminal conviction, and Dr. Sazant’s otherwise unblemished record.

[80] On September 2, 2009, the Committee found that the conduct was of the most serious kind and that the consequences for at least two of the complainants had been severe. The Committee also found that the passage of time had not mitigated Dr. Sazant’s risk of reoffending as he showed no remorse for his conduct. The Committee concluded that Dr. Sazant’s license should be revoked.

[81] The Committee further decided that the seriousness of the case and the appellant’s overall conduct rendered this an appropriate case for a costs order. Thus, it ordered Dr. Sazant to pay costs to the College in the amount of $95,812.00, which was 75% of what would have been awarded had the allegations regarding D.T. been made out.

The Intervenor Dr. Leonard Kelly

[82] With respect to both Drs. Kelly and Beitel, it was accepted at the Divisional Court hearing that no factual findings had yet been made by a Discipline Committee with respect to their cases. Thus, we were invited to consider a set of facts regarding their cases as examples of what could theoretically happen through the use of the s. 76(1) summons power. Both the appellant and the intervenors argued that these examples were relevant to our consideration of the constitutionality of that power.

[83] Dr. Leonard Kelly is a physician certified and registered in Ontario. His family medicine practice is located in Sioux Lookout.

[84] The College issued a Notice of Hearing to Dr. Kelly on May 17, 2005, alleging that Dr. Kelly was in possession of electronic images of child pornography between 1999 and 2002.

[85] The allegations arose out of a 1999 investigation conducted by the Dallas (Texas) Police Department into a company called Landslide Incorporated, which was acting as a broker for hundreds of pornography (including child pornography) websites. Dallas police had identified a customer database kept by Landslide, which established that several thousand Canadian clients had purchased access to both child and adult pornographic websites made available by Landslide.

[86] In 2000, members of the Ontario Provincial Police (“OPP”) obtained an electronic database from the Dallas Police containing the names and profiles of the Canadian customers/suspects. An investigation was launched in Ontario in 2001 called “Project Snowball”.

[87] In the database, each customer account was coded alphabetically into “classes”. Michael Marshall, a former police officer and computer expert who prepared the customer database for Canadian officials, believed that the class coding system denoted the content of the websites and that any code above D indicated access to a site providing child pornography.

[88] In early 2001, Detective Constable Taylore Hald was assigned to investigate Dr. Leonard Kelly. Officer Hald drafted the Information to Obtain for Dr. Kelly’s case based on boilerplate language used in warrants across Ontario in Project Snowball. This boilerplate language stemmed in part from Mr. Marshall’s understanding of the customer database codes. Dr. Kelly’s name was associated in the database with two websites coded “D” and above.

[89] The OPP eventually learned from Dallas officials that the class coding system related only to subscription cost and duration of access, not to the particular content of a site. Mr. Marshall had also been discredited by Dallas officials.

[90] Officer Hald obtained a search warrant for Dr. Kelly’s Visa credit card statements without knowing that the beliefs about the coding system were inaccurate, that the officials in Dallas had not in fact visited all of the websites listed, and that Mr. Marshall’s credibility had been impugned. The information sworn by Officer Hald therefore contained false assertions. Subsequent informations used to obtain internet-use records and to access Dr. Kelly’s home did not correct the false statements that had been made in the first information.

[91] On October 10, 2001, Dr. Kelly’s home was searched, and his computer hard drive was seized. Dr. Kelly was charged with one count of possession of child pornography on October 12, 2001.

[92] In September 2004, the Crown withdrew the charges against Dr. Kelly as a result of concerns over the propriety of the warrants. The OPP then returned the hard drive to Dr. Kelly, but kept a mirror copy and other information possibly illegally obtained.

[93] The College had been maintaining a monitoring file regarding Dr. Kelly since October 2001. In October 2004, subsequent to the criminal charges being withdrawn, Tom McNamara requested access to the information held by the OPP. Mr. McNamara was informed by Officer Hald that the materials sought had likely been unlawfully seized. The OPP later agreed to provide Mr. McNamara access to the materials if a summons was received under s. 76(1) of the Code.

[94] Mr. McNamara was then appointed by the College as an investigator and prepared a summons. Pursuant to that summons, he was provided with credit card statements and a description of the materials on the hard drive.

[95] On January 6, 2005, Mr. McNamara sent his supervisor, Beth Davey, an e-mail regarding the use of the evidence in the Kelly file. Ms. Davey replied that the College was not bound by the same rules of evidence as the courts, and that the College was entitled to “piggy back” on the police investigation. She also told Mr. McNamara that “right now, the Charter doesn’t even apply.”

[96] The College initiated a discipline hearing against Dr. Kelly on May 17, 2005, alleging conduct unbecoming a physician on the basis that he had been in possession of child pornography. There were attempts to negotiate a resolution, but Dr. Kelly eventually informed the College that he intended to apply to the Superior Court seeking, inter alia, destruction of the evidence held by the OPP; a declaration that his Charter rights had been infringed; and a declaration that s. 76(1) of the Code violated the Charter.

The Intervenor Dr. Allan Beitel

[97] Dr. Allan Beitel is a licensed physician in Ontario who practiced (at least until 2003) as a psychiatrist with a specialization in psychoanalysis. In 2003, his laptop was seized after being reported as stolen property. The police had no warrant to seize the computer and no warrant permitting the examination of the hard drive. Dr. Beitel did not consent to its seizure or examination.

[98] Dr. Beitel was charged with possession of property obtained by crime, possession of child pornography and accessing child pornography between November 2002 and April 2003, and, later, two counts of breach of recognizance. The College became aware of the charges through an article published in the Toronto Sun, and launched an investigation of Dr. Beitel in July of 2003.

[99] Dr. Beitel was notified that the College had initiated an investigation pursuant to s. 75(a) of the Code by letter dated July 6, 2005, due to allegations that he had conducted himself in a manner unbecoming the profession, and had failed to maintain the standard of practise of the profession.

[100] In October 2006, Mr. McNamara wrote to the Crown Law Office–Civil requesting a complete copy of the Crown brief regarding the charges against Dr. Beitel. At this time, the criminal prosecution was ongoing. These materials were not provided.

[101] In March 2007, Mr. McNamara sent a summons to Chief H.M. Metcalf requiring attendance with a complete Crown brief and with all anticipated exhibits prepared with regard to the prosecution of Dr. Beitel. The police responded by bringing up concerns regarding compliance with D.P. v. Wagg (2004), 71 O.R. (3d) 229 (C.A.) (“the Wagg process”). The College took the position that the Wagg process was not applicable to an investigation by the College.

[102] In D.P. v. Wagg (2002), 61 O.R. (3d) 746 (Div. Ct.) (affirmed by the Court of Appeal in D.P. v. Wagg (2004), supra), D.P. sued her doctor for damages after an alleged sexual assault during a medical examination. The defendant was charged, but the charges were later dropped. D.P. sought the production of the Crown brief, which was in the defendant’s possession. The documents were relevant and would normally be produced, but the Divisional Court held that there was a public interest in protecting legitimate privacy concerns, so a screening process was required before production. It held that:

• possession or control of the Crown Brief had to be disclosed in the Affidavit of Documents; and

• the party in possession can object to its disclosure until the appropriate state agencies have been notified and either

• the consent of all parties is obtained, or

• a court orders disclosure.

[103] Around this time, Dr. Beitel commenced his Superior Court application seeking, among other things, a declaration that s. 76(1) of the Code was unconstitutional; that the College’s summons power applies only to materials relating to the member’s medical practice; and that the Wagg process must be complied with when one acts upon a summons issued by the College.

[104] As discussed above, the College brought a motion to strike the doctors’ application that was dismissed.

[105] The College and Mr. McNamara then brought a stated case before the Divisional Court under s. 8 of the Public Inquiries Act, asking whether Chief Metcalf must comply with the Summons to Witness, and asking the Court to clarify the related Wagg issues.

[106] Meanwhile, in the course of the criminal proceedings, Dr. Beitel alleged that the police searches had been conducted in violation of s. 8 of the Charter. On February 3, 2009, prior to the determination of the legality of the searches, the charges against Dr. Beitel were stayed by the Crown. The Crown cited the considerable time already served by Dr. Beitel, and the fact that the public interest in prosecution could be met by continued prosecution of a newer 2008 indictment that he faced.

[107] Counsel for Dr. Beitel informed the College that the criminal charges had been stayed in a letter dated March 6, 2009. Three days later, the College informed Dr. Beitel that it would be continuing with its investigation.

[108] On May 21, 2009, Lederman J. dismissed an application by Dr. Beitel to stay the stated case, but granted him intervenor status on the stated case on June 1, 2009.

[109] The stated case was heard before the Divisional Court, and a decision was released on the matter on September 29, 2009. The Divisional Court found that:

[76] ... [T]he public interest principles arising from the collateral use of the Crown brief concerns recognized in Wagg apply to a summons by the College for production of all or any part of a Crown brief. The public interest concerns arise from the nature of the documents and their use in the criminal investigation and prosecution system. The court has jurisdiction to consider the relevant public and private interests, and to ensure that the College engages a process that permits those interests to be identified and weighed in a particular case. The Attorney General has an important role in safeguarding such interests. However, the specific process mandated by Wagg was fashioned in the context of civil proceedings and may not be necessary or appropriate in the context of an administrative body exercising powers under the PIA.

[77] The Attorney General has had notice in this case and has objected to the disclosure of the Crown brief. We do not express an opinion on whether a particular forum exists for the determination of the issues, apart from the mechanism under the PIA for a stated case, as that issue was not argued before us. If the Attorney General objects to the production of the Crown brief, the respondent would have a lawful excuse for failing to comply with the summons, pending such determination (College of Physicians and Surgeons of Ontario v. Peel Regional Police (2009), 98 O.R. (3d) 301 (Div. Ct.)).

ISSUES

1. What is the appropriate standard of review?

2. Does s. 76(1) of the Health Professions Procedural Code violate the Charter?

3. Did the Discipline Committee err with regard to Dr. Sazant’s case

(i) in finding that it has jurisdiction to consider the Charter challenge?

(ii) in denying his abuse of process motions, which were based on pre-charge and investigative delay?

(iii) by misapprehending the evidence in such a way that its decision is unreasonable?

(iv) by applying a “different standard of scrutiny” in determining the credibility of witnesses presenting for the College and witnesses presenting for Dr. Sazant?

(v) in its approach to similar fact evidence?

(vi) in concluding that the proved conduct was “disgraceful, dishonourable or unprofessional” and relevant to the practice of medicine?

(vii) in its decision on the appropriate penalty and in its assessment of costs?

DIVISIONAL COURT’S JURISDICTION:

[110] This Court has appellate jurisdiction pursuant to s. 70 of the Code:

70. (1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the Board or panel to the Divisional Court.

(2) An appeal under subsection (1) may be made on questions of law or fact or both.

(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

STANDARD OF REVIEW:

[111] All the issues raised by the appellant, with two exceptions, are questions of fact, discretion or policy, or are questions where the legal issue cannot be disentangled from the related facts. Therefore, these issues attract a reasonableness standard under Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

[112] Past decisions of this Court have applied a reasonableness standard to findings of professional misconduct made by the Discipline Committee: see, for example, Rassouli-Rashti v. College of Physicians and Surgeons of Ontario (2009), 256 O.A.C. 186 (Div. Ct.), at para. 26, and Devgan v. College of Physicians and Surgeons of Ontario (2005), 136 A.C.W.S. (3d) 959 (Div. Ct.), at para. 36.

[113] The questions concerning the constitutionality of the College’s investigative summons power, and the jurisdiction of the College to rule on the constitutional challenge, are issues that may be characterized as “true questions of jurisdiction,” or questions of law “of central importance to the legal system.” For these two issues, a correctness standard applies.

[114] In Rassouli-Rashti, supra, this Court applied a correctness standard to an interpretation of the Code, noting that it is legislation that applies to a number of professional colleges (para. 27). With respect to an abuse of process issue relating to the laying of charges of obstruction of a College investigation after other charges had been dropped, this Court said (at para. 30):

[t]he issue of abuse of process raises questions of mixed fact and law. The Committee must be correct on the legal principles, as this is not a matter within the members’ expertise. However, deference is warranted with respect to their findings of fact and the exercise of their discretion to grant or refuse a stay.

[115] Similarly, in the present appeal, the Committee must be correct with respect to the legal principles that apply to the appellant’s claims of abuse of process. As well, it must be correct in determining whether the appellant was denied natural justice. However, deference is owed to the facts found by the Committee respecting prejudice and the impact of the delay on the hearing process.

DOES S. 76(1) OF THE CODE VIOLATE THE CHARTER?

Outline of the Argument that s. 76(1) violates the Charter

[116] Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search and seizure.” Where legislation prescribes search and seizure powers to an agent of the state, that legislation must be judicially scrutinized to ensure compliance with s. 8 of the Charter. The Charter authorizes searches and seizures only where they are reasonable. There is no issue that the Charter applies to the College’s powers under s. 76(1) of the Code.

[117] Section 75 of the Code (as it read at the relevant time) provided for the appointment of one or more investigators by the Registrar of the College in three circumstances: first, where the Registrar has reasonable and probable grounds to believe a member has committed an act of professional misconduct or is incompetent and the Executive Committee approves the appointment; second, if the Complaints Committee requests an investigator be appointed after having received a written complaint; and third, if the Executive Committee has received information about the member from the Quality Assurance Committee and requested that an investigator be appointed.

[118] Following appointment by the Registrar, s. 76(1) of the Code grants an investigator “all the powers of a commission under Part II of the Public Inquiries Act.” The powers thereby granted include the ability to issue and sign a summons to compel the production of any document and any witness.

[119] The summons is returnable before the investigator. He or she rules on questions of relevance, privacy and privilege.

[120] The material must be relevant to the subject matter of the inquiry, but the summons power is not limited to documents created in the course of the regulated activity or to regulated actors. Thus, the people who can be summonsed can include members of the public. The documents that can be compelled to be produced can include a member of the public’s cell phone records, psychiatric records, bank records, school records and other documents containing highly personal information. Subsection 76(1) contains no procedure for ensuring that third parties, whose privacy rights might be affected by the summons, are notified that the summons has been issued and served.

[121] The investigators are not judicial officers. They may have no prior experience in law enforcement; they may never have conducted a prior sexual conduct investigation; they may never have issued a summons before and they may never have drafted an affidavit in support of a search warrant. Investigators are not subject to regular supervision following appointment.

[122] Essentially, the appellant submits that the breadth of the s. 76(1) summons power “knows no bounds.” A College investigator “acts alone as a Commission of Inquiry of one – unconstrained, unrestricted and entirely unreviewed in the power to compel any document any where [sic] or any person whether regulated or not” (Appellant’s Factum, para. 176).

[123] While the appellant acknowledges that different standards apply in the regulatory context than in the criminal context, he and the intervenors argue that a contextual approach must be adopted when looking at the powers of a particular regulator.

[124] Does the context in which the College is operating require that College investigators be given more extensive powers than a police officer or a Law Society investigator? Subsection 76(1) summonses are usually issued by investigators who are dealing with criminal conduct – for example, allegations of fraudulent prescriptions or sexual misconduct. Police officers have training and investigate the most serious of crimes, yet they have no power to issue summonses to compel production to them of any document or witness. Law Society investigators have the power to summons and question, but only from people who are associated with the lawyer’s practice. The appellant submits that there is no principled reason for the difference in powers. The appellant and the intervenors point out that eight provinces and territories do not provide such wide-sweeping powers to investigators in the health regulatory field. In the two provinces and one territory that do provide similar powers, the investigator is not given the powers of a commission of inquiry.

[125] In making their submissions, the appellant and intervenors point to the mischief that can be and has been caused by the use of the s. 76(1) power. In Dr. Sazant’s case, the investigator received and kept materials that he should never have received. In Dr. Kelly’s case, the investigator used his s. 76(1) power to obtain materials that may have been unlawfully seized by the police, which did not relate to Dr. Kelly’s medical practice. Dr. Beitel alleges that the College attempted to use its summons power to improperly seize material that was in the possession of the Peel Regional Police, which he states was unlawfully seized and is being unlawfully held: the material is completely unrelated to his practice as a psychiatrist and includes a number of personal computers and material that was seized in relation to criminal charges that have now been stayed.

[126] In assessing the constitutionality of s. 76(1), the appellant argues that the provision does not strike the appropriate balance between the public’s interest in being left alone and the government’s interest in protecting the public. To strike this balance properly requires a system where prior judicial authorization is required for a summons to be valid. In making this submission, the appellant relies on Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] 2 S.C.R. 145.

[127] In Hunter v. Southam, the Supreme Court was dealing with the constitutionality of s. 10(1) of the Combines Investigation Act, R.S.C. 1970, c. C-23, which authorized investigators to enter into a person’s business premises and to examine documents and other things located there. At pages 160-161, Dickson J. (as he then was) states on behalf of the Court:

If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusion upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.

I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectation of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure. [Emphasis added.]

[128] In the appellant’s submission, the grant of power in s. 76(1) of the Code offends s. 8 of the Charter because a requirement for prior authorization could reasonably be imposed without frustrating a College investigator’s duties. Section 77 of the Code already provides a process by which an investigator may obtain a judicially authorized warrant; as it stands, according to the appellant, s. 76(1) renders this provision “redundant.”

[129] The appellant also relies on Hunter v. Southam at page 162 for the proposition that for the “authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner. … The person performing this function need not be a judge, but he must at a minimum be capable of acting judicially.” According to the appellant, College investigators do not have the capability to decide whether the necessary requirements for authorizing a search have been met. They are neither neutral nor trained.

[130] In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at para. 100, Wilson J. summarized the four criteria set forth in Hunter v. Southam that must be satisfied for search and seizure legislation to withstand Charter scrutiny:

(a) a system of prior authorization, by an entirely neutral and impartial arbiter who is capable of acting judicially in balancing the interests of the State against those of the individual;

(b) a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds, established under oath, to believe that an offence has been committed;

(c) a requirement that the impartial arbiter must satisfy himself that the person seeking the authorization has reasonable grounds to believe that something which will afford evidence of the particular offence under investigation will be recovered; and

(d) a requirement that the only documents which are authorized to be seized are those which are strictly relevant to the offence under investigation.

[131] According to the appellant, the summons power in s. 76(1) of the Code meets none of these requirements. This is in contrast to the summons power that was at issue in Thomson Newspapers. The majority of the Supreme Court found in that case that the power in question did not violate s. 8 of the Charter, but a major reason why they did so was that the power was limited to business records, which “raise much weaker privacy concerns than personal papers” (per La Forest J., at para. 141). As already noted, s. 76(1) contains no such limitations.

[132] The appellant argues that there are only four types of bodies with legislated authority to search and seize whose authority has withstood judicial scrutiny despite the absence of the four protections set out in Thomson Newspaper. These four scenarios are:

Ground 1 - where the goal of the legislation, and therefore the purpose of the regulation, can only be achieved by unannounced inspection of the specific premises that are being regulated, as in the case when a health inspector shows up unannounced to inspect a restaurant;

Ground 2 - where the regulated activity raises a reduced expectation of privacy due to strenuous requirements for public disclosure, as is the case with the inspection of business documents under various securities regulations;

Ground 3 - where coroners act under the Coroners Act, R.S.O. 1990, c. C.37. The coroner is not part of the investigation of crime or the determination of whether a crime has been committed. The use of any seized evidence as a result of the work product of the coroner cannot be used as part of a police investigation in the absence of s. 8 protections; and,

Ground 4 - where a legislative body has seen fit to create a commission of inquiry.

[133] The appellant submits that since the College investigator is vested with the powers of a commission of inquiry, one would expect parallels to exist between the purposes and functions of both. However, this is not the case. Commissions of inquiry cannot establish either civil or criminal responsibility. On the other hand, an investigation conducted on behalf of the College may lead to proceedings before a panel of the Discipline Committee. Additionally, commissions of inquiry are imbued with procedural protections that are not in place when a College investigator exercises his or her s. 76(1) summons powers. Commissions of inquiry are conducted in public, while interactions with College investigators are not.

[134] The appellant argues that s. 76(1) cannot be saved by s. 1 of the Charter. Under s. 1, the onus is on the College to demonstrate that the objective of the legislation is of sufficient importance to warrant overriding the rights guaranteed by s. 8, and that the means chosen are proportional (R. v. Oakes, [1986] 1 S.C.R. 103, at paras. 66 and 69).

[135] While the appellant concedes that the goal of the legislation – to regulate members of the medical profession – is pressing and substantial, he points out that the power is not limited to the medical profession. It applies to all regulated health professions in Ontario.

[136] The appellant submits that the College has failed to satisfy its onus of showing proportionality. He also submits that the means chosen are not rationally connected to the objective of the legislation: the fact that a College investigator is vested with the power to summons witnesses, to compel testimony, and to seize documents does not make it any less likely that members governed by the Code will engage in acts of misconduct. The College adduced no evidence to show why such a broad summons power is necessary for the successful regulation of the profession. College statistics indicate that the summons power was used only 60 times across 2,500 investigations in 2006. Thus, given how rarely the summons power is used, the appellant submits that there can be no plausible argument that the College cannot function without this power.

[137] The appellant also argues that the College has alternatives available to it that would impair the privacy rights of its members less. In particular, s. 77 of the Code provides investigators with the ability to obtain a search warrant from a judicial officer. There is no evidence that this tool would not be sufficient for the College’s investigatory needs, and there is no evidence that investigators rely on s. 76(1) to gain access to records that they would not otherwise be granted permission to view under s. 77.

[138] The appellant submits that s. 76(1) is not proportional to its objective. The evidence is that s. 76(1) is used very rarely and usually when the conduct is criminal. Police officers investigate criminal conduct without such powers. According to the appellant, there is no evidence that, absent s. 76(1) powers, investigations by the College will grind to a halt.

[139] Finally, the appellant argues that the s. 76(1) powers fail to accord with legitimate privacy concerns and rules of privilege, as highly personal material may be obtained without notice to concerned parties. It is alleged that s. 76(1) led to a violation of the common law Wagg screening process in this case, and that the College must be held to the standards established in case law for the release of sensitive Crown brief materials.

[140] For the above reasons, the appellant seeks a declaration that s. 76(1) of the Code is unconstitutional because it violates s. 8 of the Charter, and is of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. Upon such a declaration, all materials seized pursuant to s. 76(1) should be returned to Dr. Sazant, and the College should be prohibited from relying upon that evidence in its prosecution of the appellant for misconduct.

[141] The intervenor doctors adopt the appellant’s submissions that s. 76(1) of the Code violates the Charter and should be found to be of no force and effect. However, Dr. Kelly also makes an alternative submission, namely that if we do not see fit to strike the section at issue, s. 76(1) should be “read down” so as to be restricted to summonsing people and seizing documents that are related to the medical practices of doctors. Doctors may have a reduced expectation of privacy when it comes to their activities as physicians. However, when it comes to their personal activities, there is a very high expectation of privacy. If the powers under the section were limited to their activities as physicians, there would not be the egregious breaches of s. 8 that occur when personal material, such as a doctor’s personal computer, is seized. Dr. Beitel adopts this alternative submission.

Analysis

[142] There is no issue that s. 76(1) of the Code is subject to Charter review and that compelling production through a summons constitutes a “seizure” within the meaning of s. 8 of the Charter (see Thomson Newspapers, supra). The parties agree that in analyzing the question of whether the “seizure” authorized by s. 76(1) is unreasonable within the meaning of s. 8 of the Charter, the nature of the power and the context in which the power is being exercised must be considered.

[143] As Dickson J. explained in Hunter v. Southam, supra, the freedom to be protected from “unreasonable” search and seizure enshrined by s. 8 of the Charter can be more positively expressed as an entitlement to a “reasonable” expectation of privacy. Depending on the context, the expectations of a citizen to privacy may vary.

[144] This point is also made by La Forest J. in Thomson Newspapers, supra, where he states:

[121] … Since the adoption of the Charter, Canadian courts have on numerous occasions taken the view that the standard of reasonableness which prevails in the case of a search or seizure made in the course of enforcement of the criminal law will not usually be appropriate to a determination of reasonableness in the administrative or regulatory context. …

[122] The application of a less strenuous and more flexible standard of reasonableness in the case of administrative or regulatory searches and seizures is fully consistent with a purposive approach to the elaboration of s. 8. As Dickson J. made clear in Hunter v. Southam, the purpose of s. 8 is the protection of the citizen’s reasonable expectation of privacy. But the degree of privacy the citizen can reasonably expect may vary significantly depending upon the activity that brings him or her into contact with the state. In a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual’s pursuit of his or her self-interest is compatible with the community’s interest in the realization of collective goals and aspirations. …

[123] It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity. …

[124] The situation is, of course, quite different when the state seeks information, not in the course of regulating a lawful social or business activity, but in the course of investigating a criminal offence. For reasons that go to the very core of our legal tradition, it is generally accepted that the citizen has a very high expectation of privacy in respect of such investigations. The suspicion cast on persons who are made the subject of a criminal investigation can seriously, and perhaps permanently, lower their standing in the community. This alone would entitle the citizen to expect that his or her privacy would be invaded only when the state has shown that it has serious grounds to suspect guilt. This expectation is strengthened by virtue of the central position of the presumption of innocence in our criminal law. … [Citations omitted.]

[145] In British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, Sopinka and Iacobucci JJ., who wrote the majority decision of the Court, relied on the above remarks by La Forest J. and stated at para. 52:

Therefore, it is clear that the standard of reasonableness which prevails in the case of a search and seizure made in the course of enforcement in the criminal context will not usually be the appropriate standard for a determination made in an administrative or regulatory context. The greater the departure from the realm of criminal law, the more flexible will be the approach to the standard of reasonableness. [Citations omitted.]

The Nature of the Context Here - Regulatory or Criminal/Quasi-Criminal?

[146] In this case, the appellant argues that the s. 76(1) power is being used in a realm where the departure from criminal law is not “great”. The conduct being investigated was the subject of criminal proceedings and is conduct that society considers morally or socially reprehensible. The stigma associated with a College investigation for sexual misconduct is very high. Thus, according to the appellant, even though the context is regulatory and not criminal, it is very close to criminal so the same standard of reasonableness should apply.

[147] In making this submission, the appellant appropriately points to the fact that Hunter v. Southam, supra, was not a case involving a criminal prosecution. Yet, Dickson J. set out the four criteria that he did for the search and seizure power to survive constitutional scrutiny under s. 8 and found that because those criteria, including the need for a system of pre-authorization, were not met, the section at issue had to be struck down.

[148] In commenting on Hunter v. Southam, Sopinka and Iaccobucci JJ. state at para. 51 of Branch, supra, “It is important to note … that these criteria were articulated in the context of an appeal concerning the validity of a section which was, in essence, criminal or quasi-criminal.” Both Hunter v. Southam and Thomson Newspapers dealt with sections of the Combines Investigation Act that authorized searches and seizure. As described by Wilson J. in Thomson Newspapers:

[97] … Section 17 of the Combines Investigation Act contemplates an investigation one of the purposes of which is to collect evidence with a view to the laying of a “criminal” charge. Section 17 is contained in the same part of the Act as s. 10, the section in relation to which the criteria in Hunter were imposed. …

[98] My point can be made by way of an example. The scheme of the Combines Investigation Act could well be imposed in the Criminal Code and indeed originally was.

[149] In Dr. Sazant’s case, while s. 76(1) was used to investigate conduct that is considered criminal, it cannot be said that the scheme of the Code or the Health Professions Act is quasi-criminal in nature. Subsection 76(1) exists not to collect evidence with a view to laying a criminal charge, but rather to take proceedings against a doctor in a regulatory context for the purpose of removing or restricting his licence to practise medicine. Unlike the Combines Investigation Act, College prosecutions cannot result in imprisonment.

[150] Dr. Sazant’s conduct could be and has been the subject of a criminal prosecution. However, the fact that the same act may also give rise to a criminal consequence does not mean that when the act is dealt with in the regulatory context, the “context” of the regulatory proceedings is criminal or quasi-criminal.

[151] This point was made by the Supreme Court of Canada in R. v. Wigglesworth, [1987] 2 S.C.R. 541. In Wigglesworth, the accused had been disciplined for an offence under the regulatory legislation that governed the R.C.M.P. He was subsequently charged criminally for the same conduct. He argued that this violated his rights not to be tried and punished for the same offence twice, as those rights are enshrined in s. 11 of the Charter. In deciding the issue, Wilson J., who wrote the judgment for the Court, found that misconduct proceedings in the regulatory context where “disqualification” is the purpose of the proceeding are not criminal or quasi-criminal. Therefore, the “double jeopardy” considerations of s. 11 are not engaged:

[23] In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited sphere of activity. There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of “offence” proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of “offence” proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11. They are the very kind of offences to which s. 11 was intended to apply. [Emphasis added; citations omitted.]

[152] In R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, the Supreme Court was dealing with a situation where the same agency, Revenue Canada, pursued the same conduct with a view to both its civil function (audit for the purposes of determining tax liability) and its criminal or quasi-criminal function (prosecuting people for tax evasion under the Income Tax Act). The Court emphasized that in order to determine the scope of the taxpayer’s Charter guarantees when what began as an audit resulted in a prosecution for tax evasion, it was important to distinguish between the period of time when the predominant purpose of the inquiry was civil in nature and when it switched to an inquiry focused on determining penal liability. Once the switch occurred, the inquiry became criminal in nature and the taxpayer was entitled to the full scope of the protections offered by ss. 7 and 8 of the Charter.

[153] As already indicated, the College’s prosecution of Dr. Sazant was directed at determining whether he should be disqualified from practising medicine. It was not directed at determining penal liability. Thus, the proceedings at issue cannot be considered to be criminal or quasi-criminal in nature. This is in contrast to the proceedings in Hunter v. Southam, supra, where penal liability was a focus.

The Nature of the Power to Search - Summons vs. Search Warrant

[154] A second crucial distinction between this case and Hunter v. Southam, supra, is the nature of the “search and seizure” powers that were exercised. In Hunter v. Southam, officials were authorized to enter into premises for the purpose of conducting a search and seizure. The power under consideration in this case is the power to summons, which is a power that is much less intrusive. If an investigator enters onto a person’s premises without pre-authorization and without notice, the intrusive impact of the search has taken place. When a summons is issued, the subject of the summons has the opportunity to seek judicial review of the summons before being obliged to answer it. Thus, the summons can be challenged before any intrusion takes place.

[155] In Branch, supra, the Supreme Court confirms the importance of this distinction at para. 60 where the Court states:

Of equal importance is the nature of the seizure authorized by the Securities Act. The demand for production of documents contained in the summonses is one of the least intrusive of the possible methods which might be employed to obtain documentary evidence. The importance of this distinction was stressed in Baron v. Canada, [1993] 1 S.C.R. 416. At page 433, the Court adopted the following statement from the reasons of Wilson J. in McKinlay Transport … at pp. 649-50:

In my opinion, s. 231(3) provides the least intrusive means by which effective monitoring of compliance with the Income Tax Act can be effected. It involves no invasion of a taxpayer’s home or business premises. It simply calls for the production of records which may be relevant to the filing of an income tax return.

The Regime Within Which the Power is Granted

[156] In assessing the reasonableness of the power at issue it is also important to examine the regime that is the source of the power, particularly with a view to assessing whether that regime provides any protections to the person being investigated before the power to summons is granted.

[157] The summons power at issue is a power that investigators may exercise. However, s. 75 of the Code sets out a procedure for the appointment of an investigator:

The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent, if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment.

[158] Thus, s. 75 does provide certain limits. An investigator must be appointed by the Registrar of the College. Before the Registrar can seek the appointment of an investigator, the Registrar must have a belief, based on reasonable and probable grounds, that the member has committed an act of professional conduct. Finally, before the Registrar can appoint an investigator, the Registrar must seek the approval of the Executive Committee. The Executive Committee is a body that can and does exercise quasi-judicial discretion in this and other contexts including, but not limited to, imposing interim suspensions. Thus, s. 75 parallels the pre-conditions for a reasonable search that emerged from Hunter and Thomson – namely, the formation of a belief that reasonable and probable grounds exist to believe that an act of misconduct has been committed and the review of that belief by a “non-captive” body capable of exercising judicial or quasi-judicial powers.

[159] Once an investigator is appointed, he or she has a summons power. However, that power is not unlimited. Pursuant to s. 76(1), the power is the same as that of a commission under Part II of the Public Inquiries Act. Pursuant to s. 7(1) of the Public Inquiries Act, a commission

may require any person by summons,

(a) to give evidence on oath or affirmation at an inquiry; or

(b) to produce in evidence at an inquiry such documents and things as the commission may specify,

relevant to the subject-matter of the inquiry and not inadmissable in evidence at the inquiry under section 11.

[160] Therefore, an investigator’s power to summons is not unbridled. It is restricted to evidence that is both relevant to the inquiry he or she is conducting and that would not be inadmissible because “of any privilege under the law of evidence” (s. 11 of the Public Inquiries Act). Any witness who is summonsed must also be informed of his or her right to object to answer any question under s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The requirement that the evidence be relevant to the subject matter of the inquiry also parallels the pre-conditions for a reasonable search set out in Hunter and Thomson.

[161] Finally, it is worth noting that the power granted to an investigator is no greater than the power that exists under the Rule 39.03 of the Rules of Civil Procedure. Under that Rule, all civil litigants are given the power to summons a third party on a motion to attend to give evidence before an examiner in aid of a motion or application.

[162] There are 61 Ontario statutes that confer the powers under Part II of the Public Inquiries Act. This would suggest that the power is not viewed as an extraordinary one when the context at issue is not criminal or quasi-criminal.

The Specific Context at Issue

[163] The s. 76(1) summons power at issue is being exercised in the context of a self-governing professional regulatory scheme. The Supreme Court of Canada has recently emphasized the important public protection responsibilities and obligations of professional regulators.

[164] In Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, LeBel J., who wrote the majority opinion for the Court, gave an expansive definition of the statutory investigative powers of the syndic of the Ordre des pharmaciens of Québec (a body similar to the College’s statutorily appointed investigators) to obtain documents during the course of an investigation. In paragraph 36 of that decision, LeBel J. refers to a previous decision of the Court which noted that “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions.” He explains that this “stems from the extent to which the public places trust in them”, and from the fact that the clients who consult professionals are often in a vulnerable position. He then goes on to state at paras. 36-38:

The privilege of professional self regulation … places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public. Finney confirms the importance of properly discharging this obligation and the seriousness of the consequences of failing to do so.

In this context, it should be expected that individuals with not only the power, but also the duty, to inquire into a professional’s conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. …

… In order to conduct an effective investigation while bearing in mind and upholding the rights of everyone with an interest in the outcome, the syndic must be able to require relevant documents and information from anyone, not just from the professionals as the Court of Appeal concluded.

[165] The College’s statutory duty is to protect the public by regulating doctors so as to ensure that members of the public are not exposed to doctors who are incompetent or who may take advantage of their positions to commits acts of misconduct, some of which could amount to criminal acts. In assessing what powers are reasonably necessary to fulfill this responsibility, it is important to keep in mind that members of the medical profession often have access to the most private parts of people’s lives, both emotionally and physically. Thus, if they abuse the trust placed in them by the public and by their patients, the impact of the violation can be enormous.

[166] Given this, it is not unreasonable to expect doctors to have a very limited expectation of privacy when it comes to allowing their regulator to ensure that they are carrying out their practices in a manner that will not expose the public to risk. An individual chooses to become a doctor and in so doing accepts that his or her activities will be supervised and monitored. Not only does this benefit the public, but it also benefits the member by preserving the integrity of his or her profession.

[167] In Law Society of Saskatchewan v. Robertson Stromberg (1995), 122 D.L.R. (4th) 433, the Saskatchewan Court of Appeal emphasized the importance of maintaining public confidence in self-regulation and found that this demands that regulators be given the “fullest opportunity to investigate conduct of their members” (para. 8). The Court also noted the choice that professionals exercise when they become and remain a member of a self-regulated profession, citing at para. 9 a decision of the British Columbia Court of Appeal:

On the other hand, the individual who is the object of such an investigation has from the outset known that he or she is participating in a highly regulated and controlled activity… To apply to be licensed, which is a prerequisite to such participation, is to accept the expectation of constant and vigilant supervision, exercised by a regulatory authority whose powers are well known and widely accepted. ... Those who do not wish to accept the supervision and regulation of the commission ought to find another occupation.

[168] In Branch, supra, the Supreme Court of Canada emphasized that the choice to join a profession is a choice to give up any high expectation of privacy with respect to any matters having to do with the regulatory needs of the profession (see paras. 57-59).

The Regulatory Needs of the Profession

[169] The appellant and the intervenors essentially submit that the s. 76(1) power is broader than it needs to be for the College to fulfill its regulatory function and thus should either be struck as “unreasonable” within the meaning of s. 8, or interpreted so that it is limited to the activities that are directly related to the practice of medicine – that is, the assessment, diagnosis, prevention and treatment of disease.

[170] Subsection 76(1) gives an investigator the power to “inquire into and examine the practice of the member to be investigated.” The intervenors submit that those words should be construed to mean what they say: only the “practice” of a member may be examined and a member’s activities that are not part of his or her “practice” may not. The College, on the other hand, takes the position that this narrow interpretation ignores the overall scheme of the legislation and is antagonistic to the objectives of the Legislature. Further, it could produce absurd results.

[171] In making its submission, the College refers to the following quote from the Court of Appeal in Wilder v. Ontario (Securities Commission) (2001), 53 O.R. (3d) 519, at para. 23: “A Court should be loath to prefer a rigidly narrow and literal interpretation over one that recognizes and reflects the purposes of the Act.”

[172] The Legislature has granted the College a wide range of powers and has imposed upon it significant duties. The first object of the College under s. 3(1) of the Code is “[t]o regulate the practice of the profession and to govern the members in accordance with the health profession Act, this Code and the Regulated Health Professions Act, 1991 and the regulations and by-laws.” The legislation has enumerated and continues to enumerate various types of professional misconduct, including “infamous, disgraceful or improper conduct in a professional respect”, “engaging in conduct unbecoming a physician”, and being convicted of an offence relevant to the member’s suitability to practise. Given the wide range of conduct encompassed by the legislation, and keeping in mind that the purpose of the legislation is the protection of the public, to “inquire into and examine the practice of the member” necessarily means examining any matter that could expose members of the public to risk if the practitioner continued to practise.

[173] In Gore et al. v. College of Physicians and Surgeons of Ontario (2009), 2009 ONCA 546, 96 O.R. (3d) 241, the Court of Appeal considered an argument about the scope of the powers granted under s. 76(1). In that case, the question was whether an investigator has the power to observe members as they perform the various procedures that make up their practice. The member argued that it did not. He submitted that to read the legislation that way failed to give sufficient weight to the privacy interests of the members’ patients. The Court of Appeal rejected the member’s position and, in doing so, emphasized the need for self-regulating bodies to have the means to do what they need to do to satisfy their onerous obligation to protect the public, stating: “In view of this principle, it would take clear words to deprive the investigator of powers necessary to carry out this important public interest” (para. 17).

[174] In our view, there is nothing in the legislative scheme that suggests that the Legislature intended to restrict an investigator’s power to a narrow range of activity involving only the assessment, diagnosis, prevention and treatment of disease. Further, we accept the College’s submission that to interpret the legislation this way could produce absurd results. For example, a College investigator who is investigating an allegation that a psychiatrist is engaging in sexual relations with a patient would be prevented from using s. 76(1) to obtain records such as hotel receipts, airline tickets or emails sent on personal computers for the purpose of setting up assignations. Similarly, the College could not use its powers under s. 76(1) to investigate allegations that a physician is engaging in illicit drug use outside of the office or is selling drugs. The personal records of physicians who use their positions of trust to take money from vulnerable patients could also not be investigated through the use of the s. 76(1) summons power if this narrow reading were correct.

[175] Without the information discussed above, the College might be hampered in its ability to protect the public by obtaining the evidence necessary to prosecute the physician for his or her behaviour.

[176] To suggest, as the appellant does, that s. 76(1) is unnecessary because of the existence of the search warrant provision in s. 77 is to ignore the fact that search warrants are much more intrusive than summonses.

The Wagg Concerns

[177] Under s. 76(1), the Crown (or any other person upon whom a summons is served) is given an opportunity to review the material and assert applicable privilege rights and privacy concerns before anything is released in answer to the summons. The fact that Crown counsel may have erred in its review and disclosed inappropriate material in Dr. Sazant’s case cannot be blamed on the s. 76(1) process and cannot render s. 76(1) unconstitutional.

Conclusion re: Constitutionality of s. 76(1)

[178] For all of these reasons, we find that s. 76(1) of the Code does not violate s. 8 of the Charter and is constitutional. An alleged violation of s. 7 of the Charter is discussed in the parties’ facta, but was not pursued in oral argument. We agree with the respondent’s submission that the appellant’s claim was appropriately focused around s. 8, because if a search power is constitutionally “reasonable” under s. 8 it follows that it is also consistent with the principles of fundamental justice under s. 7.

THE COMMITTEE’S JURISDICTION TO CONSIDER THE CHARTER CHALLENGE

[179] The appellant submits that the Committee erred when it found that it had jurisdiction to consider the Charter challenge to s. 76(1) for two reasons. First, as accepted by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, when what is being sought is a declaration that a law produces an unconstitutional effect, the remedy lies under s. 52(1) of the Constitution Act, 1982. The Committee clearly has no jurisdiction to grant a remedy under s. 52(1) and Ferguson speaks to the inappropriateness of combining a s. 52 remedy with a s. 24(1) remedy. Second, the Committee also had no jurisdiction to grant the remedy sought because it was a remedy directed at quashing the investigatory process and the Committee has no jurisdiction to scrutinize or grant remedies in relation to that part of the process.

The Relationship Between s. 52(1) of the [Constitution Act,](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) 1982 and [s. 24(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec24subsec1_smooth) of the Charter

[180] As Ferguson makes clear, “When a law produces an unconstitutional effect, the usual remedy lies under s. 52(1) … Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully unconstitutional” (paras. 59-60). Thus, if a court finds that a law produces an unconstitutional effect, the remedy lies under s. 52(1) and, in that situation, it would be unusual to combine that remedy with a s. 24(1) remedy since s. 24(1) relief is usually reserved for those situations where the constitutional breach arises not because of the law, but because of the actions of government actors.

[181] Ferguson does not suggest that where a tribunal finds that a law does not have an unconstitutional effect (and is therefore constitutional), that tribunal cannot go on to consider whether a s. 24(1) remedy is nevertheless warranted because the actions of government actors under that constitutional law created an unconstitutional outcome.

[182] In R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, the Supreme Court of Canada clarifies that administrative tribunals that have the power to decide questions of law, and from which constitutional jurisdiction has not been clearly withdrawn by statute, can decide questions involving the Charter and can grant Charter remedies in relation to issues that arise in the course of carrying out their statutory mandate. The task of the tribunal is to decide whether it can grant the particular remedy sought. As noted by Abella J., who wrote the judgment for the Court, the intent is, where possible, to allow “Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals” (para. 79).

[183] In para. 80 of Conway, supra, Abella J. goes on to state:

If, as in the Cuddy Chicks trilogy, expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter. As McLachlin J. said in Weber, “[i]f an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies” (para. 61). I agree with the submission of both the Ontario Review Board and the British Columbia Review Board that in both types of cases, the analysis is the same.

[184] The effect of Conway is that an administrative tribunal with the authority to apply s. 52 of the Constitution Act, 1982 will also have the authority to grant remedies under s. 24(1) of the Charter. The only limit to this power is if the remedy sought is not the kind of remedy that the Legislature intended the tribunal to grant.

[185] In this case, the Committee’s empowering statute grants it both the power and the duty to decide questions of law. This is clear from the provisions referring to its duty to exclude evidence that would not be admissible in a civil proceeding, its ability to receive legal advice and the parties’ ability to appeal any Committee decision on a question of law (Code, ss. 44, 49 and 70(2)). Nothing in the empowering statute removes the Committee’s jurisdiction to decide constitutional issues. Accordingly, the Committee has the jurisdiction to determine Charter issues. Further, the statute explicitly grants the Committee the jurisdiction to grant the remedy sought by the appellant under s. 24(1), which was an order to exclude evidence.

The Committee’s Jurisdiction over the Investigatory Stage

[186] The appellant argued that the Committee had no authority to give one of the remedies he sought – namely, it could not find the conduct of the investigation resulted in a breach of Charter rights and, therefore, set aside the Notice of Hearing. Krop v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 308 (Div. Ct.), was cited in support of this proposition.

[187] In Krop, a physician asked the Discipline Committee to order the disclosure of material that had been before the Executive Committee when it made its decision to refer allegations to the Discipline Committee. He also sought an order staying the proceeding on the ground that there was no proof referral had taken place. The Divisional Court held that the Discipline Committee took its jurisdiction from the Notice of Hearing. Therefore, the Committee had properly refused to make the order for disclosure, as “[t]he fairness of the investigation and the merits of the referral are matters for judicial review” (at para. 20).

[188] In contrast, in Sutherland v. College of Physicians and Surgeons of Ontario (2007), 162 A.C.W.S. (3d) 685, the Divisional Court refused to hear an application for judicial review of a decision on the grounds of prematurity: there, the decision of the Assistant Registrar to appoint an investigator and the referral to an investigation with the approval of the Executive Committee. The Court held that the threshold issues of jurisdiction could be addressed by the Discipline Committee (at para. 5).

[189] Krop and the Court of Appeal decision in Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146, were distinguished by the Court: they were said not to prevent the inquiry by the Discipline Committee in the Sutherland case, since the issues went to the underlying jurisdiction of the Committee to proceed with a hearing. Thus, whether a Discipline Committee has jurisdiction to address matters relating to the investigatory stage depends on the reason why it is being asked to look at these issues.

[190] In the present case, the Committee correctly held that it had the jurisdiction to rule on the admissibility of any evidence obtained in breach of Charter rights. As well, the Committee correctly held that it could order a stay of proceedings in an appropriate case because of a Charter violation. In our view, the decision in Krop would not prevent the Committee from making such an order, were it to find that a stay was an appropriate remedy because of a Charter violation during the investigative process.

DID THE COMMITTEE ERR IN DENYING THE APPELLANT’S ABUSE OF PROCESS MOTION?

The Legal Principles

[191] The appellant argues that the Committee erred in failing to stay the proceedings against him because of both pre-charge delay and investigative delay.

[192] The leading case dealing with delay in administrative law is Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, where the Supreme Court of Canada made it clear that delay alone, in the administrative law context, would not justify a stay of proceedings on the grounds of abuse of process. Rather, the party seeking a stay must prove significant prejudice resulting from an unacceptable or inordinate delay (at para. 101).

[193] In order to decide whether a delay is inordinate, one must consider a number of factors, including the nature and complexity of the case, the facts and issues, the purpose and nature of the proceedings, the degree to which the party seeking the remedy contributed to the delay and whether the delay was waived (at para. 122).

[194] If a delay is inordinate, a stay may be appropriate in order to prevent a denial of natural justice. The onus is on the party seeking a stay to prove the delay has caused significant prejudice to the party’s ability to present a defence – for example, because important witnesses are no longer available or material evidence has been lost (at para. 102).

[195] In addition, an inordinate delay may amount to an abuse of process where the delay has caused significant psychological harm to a person or attached a stigma to his or her reputation that is so serious that the administrative process would be brought into disrepute if proceedings were to continue (at para. 115). The delay will not amount to an abuse of process unless it caused “actual prejudice of such magnitude that the public’s sense of decency and fairness is affected” (at para. 133).

The Appellant’s Argument

[196] The appellant argues that there has been inordinate delay which has resulted in significant prejudice to his ability to make full answer and defence. The lost evidence to which he points is the following:

• the evidence of his mother Annie Sazant, who died in 1982. She could have testified as to when G.M. and B.M. visited the family home and to her observations of what occurred;

• the evidence of Monnie Mendelson, a neighbour from 1961 to 1989, who died in 2005. She could have testified as to the frequency of G.M.’s visits to the family home;

• the evidence of Brenda Sherman, the appellant’s secretary from 1988 to 1994, who died in 1999. She could have testified about G.M.’s visits to the medical office;

• the evidence of R.G., a boy who came to Dr. Sazant’s home at lunch hours with J.H., who could have testified as to what occurred;

• records from OHIP to show the treatments to G.M. and his family, including the fact that G.M. received psychotherapy treatment from the appellant;

• the destruction of the Raxlen Clinic, which made it difficult to show the layout of the medical office when G.M. was a young patient. The layout of the clinic would have shown that G.M. could not have been victimized in an examining room while his parents were present;

• the loss of records from the YMCA concerning the year of the basketball season in which the appellant coached B.M., which would have been conclusive as to B.M.’s age;

• the loss of the items seized by police during the search warrant of the appellant’s home; and

• the police officers’ loss of memory regarding the search of the appellant’s home.

[197] In the alternative, the appellant argues that the inordinate delay has caused him significant prejudice in the form of stress, reactive depression, anxiety and stigma to his reputation because of the serious allegations of sexual abuse. As well, he has been unable to practise his sports medicine career as a ringside doctor at boxing matches since 1999. He has also practised under a serious restriction since his undertaking with the College in 1999 not to see patients under 16 years of age unless in the presence of an adult. From May 2004, it was noted on the College’s public register that he was required to have a chaperone for every examination of a person under 16 years, and that chaperone must be informed of the allegations made against him. Then, in 2006, further restrictions prevented him from having any patient under 16 years. The further restrictions were also published on the public register.

Was the delay inordinate?

[198] The factual background of the disciplinary proceedings was described earlier in these reasons. There is no doubt that there was a lengthy delay between the time of the sexual activity with the three boys and the College disciplinary proceedings. The sexual activity with G.M. was alleged to have occurred between 1972 and 1978, resulting in a complaint to police in early 1998. The allegations related to B.M. occurred around 1981 to 1982, and he also came forward to police in late 1998. Criminal charges relating to sexual activity with J.H. were first laid in 1991, but withdrawn in 1992. While criminal charges were laid again in 1998, they were stayed in early 2000 because of the earlier disposition.

[199] A Notice of Hearing related to allegations of sexual activity with G.M., B.M. and J.H. was issued in March 2006. The criminal charges relating to G.M. had been stayed in 2004.

[200] In order to determine whether a delay is inordinate or unacceptable in the administrative law context, it is necessary to consider the factors set out in Blencoe outlined above. The Committee did so in its two decisions on delay, setting out the proper legal test to apply.

[201] In this case, there was a very lengthy delay between the time the sexual activity was alleged to have occurred and the complaints of G.M. and B.M. to police. We agree with the Committee’s conclusion that the College cannot be faulted for the lengthy delay between the time of the alleged sexual conduct with these two individuals and the laying of criminal charges. B.M. and G.M. were young boys when the events occurred, and, as the Committee stated, this is the “least objectionable” form of delay (Reasons, at p. 140, Appeal Book).

[202] As the Divisional Court stated in Bhadauria v. Ontario College of Teachers, [2004] O.J. No. 2468, delay that occurred before the College was aware of the allegations against the appellant is only a contextual factor, to be considered as part of the factual background (at paras. 35-36).

[203] Indeed, the appellant’s argument on this appeal did not really focus on the pre-charge period of delay. Rather his complaint was with respect to the delay between the time the College became aware of the criminal proceedings and its decision to commence disciplinary proceedings in March 2006 – what has been described as the investigative delay. With respect to G.M. and B.M., that is the period between 1998 and 1999 respectively and the Notice of Hearing in 2006. With respect to J.H., the delay is said to be clearly unacceptable, since the allegations of sexual conduct were known to the College by 1992, and the new criminal charges were stayed in 2000.

[204] The delay between the criminal charges and the disciplinary action by the College is lengthy and does give cause for concern. However, ultimately, we agree with the Committee’s conclusion that the delay was not inordinate or unacceptable in the circumstances of this case.

[205] A major reason for the College’s delay in proceeding with discipline was its decision to await the outcome of the criminal process. In Stinchcombe v. Law Society of Alberta, [2002] ABCA 106, the Alberta Court of Appeal rejected this as a reasonable explanation for delay, drawing the inference that the Law Society had “tied its cart to the criminal proceedings” and was awaiting the outcome (at para. 53). However, in the end, that case turned on its particular facts – a 14 year suspension from practice for the lawyer, coupled with serious prejudice to hearing fairness because of lost evidence.

[206] Here, the Committee concluded that it was reasonable for the College to have awaited the outcome of the criminal proceedings. We agree. First, had there been a conviction for the criminal offences with which the appellant was charged, the conviction would have constituted unprofessional misconduct. Second, to proceed against the appellant at the same time he was trying to defend criminal charges could result in unfairness to him in the criminal process. We note, as well, there was no request by the appellant to proceed more quickly with disciplinary action during this period.

[207] The appellant suggests that even if it were reasonable for the College to await the outcome of the criminal proceedings, there is no adequate explanation for the delay from 2000 to 2006 with respect to the allegations relating to J.H. Indeed, the College had known of J.H.’s allegations since the early 1990s.

[208] Again, it was reasonable for the College to await the outcome of the criminal proceedings relating to conduct with G.M. and B.M. before proceeding with an investigation of J.H. There were similarities in the appellant’s conduct with each of the boys that made it reasonable to pursue an investigation of the appellant’s conduct respecting all three boys in one investigation.

Was there a denial of natural justice because of lost evidence?

[209] Even if the delay were to have been found to be inordinate, we do not accept the argument that the appellant has been denied natural justice because of the delay. He bears the onus to show significant prejudice to his ability to make full answer and defence.

[210] Again, we agree with the findings made by the Committee respecting this issue and note that the Committee members were in the best position to determine the impact of the lost evidence on the fairness of the proceeding. While some witnesses were no longer available to testify and some meaningful evidence was indeed lost, the appellant failed to prove that this caused him “prejudice of sufficient magnitude to impact on the fairness of the hearing”, to use the words of the Supreme Court in Blencoe (at para. 104).

[211] The Committee considered in detail his arguments about prejudice to a fair hearing. It found that the evidence of the neighbour could be given in another manner, as could evidence about office visits by G.M. and the medical treatment he received. The medical chart kept by the appellant was available, and one of his former assistants gave evidence about the office visits. As well, G.M.’s sister testified about office visits. In any event, the Committee found that it was not satisfied to the requisite degree of certainty that any sexual misconduct towards G.M. had occurred in the appellant’s office.

[212] The Committee doubted the significance of the evidence that the appellant’s mother might have been able to give about his conduct with the boys. Mrs. Sazant died almost a decade before the College learned of any sexual misconduct by the appellant, so her evidence was not lost because of delay by the College. Moreover, there is no suggestion that she knew of the activity occurring in the basement between the appellant and G.M. and B.M., even as described by the appellant. As well, any prejudice was lessened by the fact that there were other witnesses who could testify as to the number of times G.M. was at the appellant’s home, including G.M.’s sister and two witnesses from the appellant’s karate club, who testified about the appellant’s lack of opportunity to have G.M. at his house as frequently as G.M. claimed.

[213] With respect to the allegations respecting J.H., the prejudice from the loss of the evidence is not serious. All four police officers involved in the search of the appellant’s home were available to testify about the criminal investigation, and two were able to use their note books to refresh their memory about events. There is no reason to conclude the defence was impaired because the items seized in the search warrant - coolers, magazines and ropes - were no longer available.

[214] With respect to the YMCA records, there is no way to know when they were destroyed. However, the appellant was able to produce a certificate showing the season B.M. played.

[215] Finally, the fact that one witness, R.G., was no longer available did not undermine the defence respecting the allegations concerning J.H.. R.G.’s contemporaneous statement to the police, found in the record, suggests that his evidence would more likely have corroborated J.H.’s version of events and not assisted the appellant.

[216] The Committee’s findings with respect to lack of significant prejudice to the defence are entirely reasonable, if one looks at the overall context of the hearing. We are satisfied that the Committee correctly determined that delay in this case did not amount to a denial of natural justice.

Was the investigative delay an abuse of process?

[217] The appellant argued that the Committee erred in finding that the investigative delay did not amount to an abuse of process. He argued that the College has a duty to adhere to strict timelines in investigating conduct that may lead to professional discipline. He also relies on s. 28(2) of the Code, which required that a complaint filed with the Registrar be investigated within 120 days after it is filed.

[218] However, that provision is not operative in this case. Under the legislative scheme in place at the time of this investigation, there were no statutory guidelines or time limits on the investigation of matters reported to the Executive Committee of the College for a decision. In any event, the time limit in the Code is a guideline only: Stanley v. Ontario (Health Professions Appeal and Review Board), [2003] O.J. No. 2196 (Div. Ct.), at para. 16.

[219] The appellant relies on Misra v. College of Physicians and Surgeons of Saskatchewan (1988), 70 Sask.R. 116 (C.A.), a case which was decided before Blencoe but discussed in it. In Misra, the Saskatchewan Court of Appeal held that disciplinary proceedings, amounted to an abuse of process, having been undertaken after criminal proceedings had been stayed because of unreasonable delay. The College had suspended the physician from practice pending the outcome of criminal proceedings, a suspension that lasted five years. In ordering the discipline proceedings stayed, the Court of Appeal found that the physician’s ability to defend himself was likely impaired by the passage of time. As well, he had already been punished by the five year suspension from practice.

[220] The Saskatchewan Court of Appeal did not say in Misra that a regulatory body must choose between criminal and disciplinary proceedings. Rather, the Court made it clear that each case must turn on its facts and a finding that a continuation of the disciplinary proceedings would be procedurally unfair. As the Court stated (at para. 41):

Not all such cases [where there are both criminal and disciplinary proceedings] will result in temporary suspension before the criminal hearing. Not all cases will take five years until the criminal proceedings are resolved. Not all cases will result in a stay of proceedings without any finding in respect of guilt. Whether the result is unfair procedurally will depend on the facts of each case.

[221] Of central importance to the Court’s decision was the five year suspension and consequent loss of income that was irretrievable. As well, the Court commented on the difficulty in defending the case after five years had elapsed.

[222] Similarly, in Stinchcombe, supra, a lawyer had been suspended from practice for 14 years while criminal proceedings were underway. When the charges were ultimately stayed, and disciplinary proceedings were then undertaken by the Law Society, vital evidence for the defence had been lost. The delay was found to be inordinate and inexcusable, and the proceedings were stayed because of the serious prejudice to the lawyer’s defence.

[223] In contrast, the delay here did not impair the ability of the appellant to defend the charges in any significant way. As the Court observed in Stinchcombe, supra, a party is entitled to a fair hearing, not a perfect one (at para. 63). This is not one of the clear cases where there has been real prejudice to the appellant’s ability to make full answer and defence, and accordingly, the extraordinary relief of a stay is not warranted.

Did the delay amount to abuse of process that would bring the administration of justice into disrepute?

[224] The appellant did not rely on this aspect of Blencoe in his factum, but in oral submissions counsel argued that the negative impact of the lengthy proceedings on the appellant’s reputation, his mental health and the way he could conduct his life were so serious as to bring the administration of justice into disrepute.

[225] In this case, unlike either Stinchcombe or Misra, supra, the appellant was able to practise during the lengthy criminal proceedings. It is true that he practised for many years subject to restrictions, but these conditions on his practice did not impair his ability to earn a livelihood. Indeed, the evidence shows he has had a very healthy practice, concentrated on the treatment of the elderly.

[226] We accept that there has been stigma from and anxiety and depression caused by the combination of the criminal and disciplinary processes, but this does not rise to the level of significant psychological harm or stigma to reputation discussed in Blencoe. As the Committee found, most of the stigma and stress arose from the criminal accusations and proceedings.

[227] Moreover, in deciding whether a stay would be appropriate, the public interest must also be considered. Here, there were very serious allegations that four young boys had been sexually abused. The College was acting in the public interest by investigating and taking disciplinary action in order to protect other patients or potential patients of the appellant. As well, the complainants had an interest in having their complaints determined on the merits.

[228] We conclude that this is not one of the rare cases where the delay was so inordinate that proceeding with the disciplinary hearing has brought the system of administrative justice into disrepute. The Committee did not err in refusing to stay the proceedings on the ground of inordinate delay.

DID THE COMMITTEE ERR IN ADMITTING THE EVIDENCE OBTAINED BY WAY OF THE POLICE SEARCH OF THE APPELLANT’S HOME?

[229] The appellant raised this argument in his factum, but did not pursue it in oral argument. Therefore, we do not propose to deal with this submission, except to observe that we found no error in either the Committee’s reasoning or findings on this issue.

DID THE COMMITTEE ERR IN ITS CONSIDERATION OF THE EVIDENCE?

[230] The appellant submits that the Committee misapprehended the evidence, failed to consider relevant defence evidence, applied a “double standard” in its credibility assessments and erred in its approach to similar fact evidence.

[231] These arguments attack the Committee’s findings of fact, an area where considerable deference is warranted. Appeals must not be turned into an opportunity to retry the case.

[232] With respect to G.M.’s complaint, the appellant submits that the Committee:

(a) diminished the significance of the fact that G.M’s recollection of how often he was abused changed drastically over time. His story also changed when it came to recalling what age he was when he was abused;

(b) diminished the significance of the fact that after he was allegedly abused by the appellant G.M., his wife and infant son continued to seek medical attention from the appellant and continued to keep in touch with the appellant after they moved to Nova Scotia;

(c) diminished the significance of the fact that G.M.’s sister contradicted many aspects of G.M.’s account and alleged that G.M. had sexually abused her when she was between the ages of 5 and 12; and,

(d) misconstrued the last letter that G.M. sent to the appellant before he complained about the appellant’s behaviour, a letter that the appellant alleges was clear: pay within two weeks or further action will be taken.

[233] In assessing the impact of G.M.’s difficulty with the specifics of when and how often the inappropriate sexual contact occurred, the Committee recognized those difficulties and dealt with them partly on the basis of what the Committee members observed about G.M. when he testified, including his difficulty generally in testifying accurately to facts that required him to make numerical calculations. The Committee was in a unique position to make these observations.

[234] The Committee also considered and relied upon case law from the Supreme Court of Canada that states that when an adult testifies about something that happened to him or her as a child, the presence of inconsistencies, particularly relating to matters of time and location, should be assessed in the context of the age the witness was at the time of the events to which he or she is testifying.

[235] In the end, the Committee found that while it was unable to conclude with certainty how often the inappropriate sexual contact occurred, it was satisfied to the requisite degree of certainty that repeated inappropriate sexual contact took place. Furthermore, given their observations of G.M., the Committee members did not consider that the inconsistencies in his testimony impugned the key elements of his testimony as to the sexual contact that occurred outside the appellant’s office. The Committee’s reasons for coming to the conclusion it did are intelligible, transparent and justifiable. The Committee was entitled to come to the outcome it did, as this outcome was within the range of reasonable decisions available to it.

[236] The Committee also analyzed the evidence about the contact that G.M. and his family continued to have with the appellant after the abuse had occurred. The Committee members were aware of and considered the argument that it simply was not credible that someone who had been treated this way by his doctor would bring his wife and infant son to be treated by the same doctor and would continue to keep in touch with that doctor in the way that G.M. did.

[237] However, G.M. gave an explanation for this contact, and the Committee accepted this explanation as it was entitled to do. In doing so, the Committee specifically referred to the Supreme Court of Canada’s warning that there is no universal rule as to how persons who have been the victims of a trauma such as sexual assault will behave.

[238] The Committee also reviewed the evidence of G.M.’s sister, S.B., in detail. It accepted some parts of her evidence and rejected others, as it was entitled to do. For example, the Committee found that S.B.’s claim that there had been no kissing between the appellant and G.M. called her credibility into question because the appellant had himself admitted to such contact. The Committee also considered S.B.’s evidence about what took place in Dr. Sazant’s office and, partly based on her testimony, found that it could not conclude that inappropriate contact between the appellant and G.M. had occurred at that location. G.M.’s sister confirmed G.M.’s evidence that he had disclosed to her that the appellant had tied him up with ropes long before the allegations became public. The Committee considered S.B.’s allegations that her brother had sexually abused her for years beginning when she was three years old and found them to be highly improbable. Again, the Committee’s treatment of S.B.’s evidence discloses nothing, either in the reasoning process or in the conclusion, which would cause this Court to conclude that it was unreasonable.

[239] Finally, the Committee addressed what the appellant argued was clearly, in essence, an “extortion” letter. The Committee did not interpret the letter in the way that the appellant urged. In doing so, the Committee reviewed the whole of the letter, which did not contain an explicit demand for money, and accepted G.M.’s explanation that the letter was a request for the appellant to admit his past misconduct and to apologize for the harm he had caused. There is nothing that would cause us to conclude that the Committee’s treatment of that letter was unreasonable. While G.M.’s explanation for the letter is not necessarily the only explanation, it was a reasonable one that the Committee was entitled to accept.

[240] In reviewing the Committee’s findings with respect to the complaint G.M., it is also important to remember that the appellant himself corroborated several significant aspects of that testimony. Specifically, the appellant admitted to taking G.M., who was his child patient, alone into the basement of his home, straddling him and tying him to the bed while they were both allegedly “play wrestling”.

[241] With respect to the J.H. complaint, the appellant argued that the Committee’s factual findings were unreasonable because:

(a) J.H. had a motive for fabricating the complaint because he was in trouble with his family for lying about his whereabouts;

(b) at the time of investigation, the police concluded that J.H. had told them “outright” lies;

(c) another witness, whom the Committee found to be credible, did not agree that he had observed any inappropriate behaviour on the appellant’s part; and,

(d) J.H. testified that the appellant was given a wine cooler while he was tied face down on his bed by J.H. and the other boys who were there. According to the appellant, the Committee discounted the impossibility of this being true.

[242] With respect to J.H., the Committee’s reasons disclose that it was aware of the problems with J.H.’s credibility. However, having heard and seen him testify, the Committee chose to believe him. We do not consider that choice to be an unreasonable one.

[243] First, J.H. was clear that the sexually inappropriate conduct did not begin until the witness the appellant is concerned about had moved away.

[244] Second, the Committee was not bound to accept the police’s assessment of J.H.’s credibility. In fact, it was obligated to make its own assessment.

[245] Third, the appellant did not dispute most of the significant aspects of J.H.’s evidence. The appellant admitted that J.H. attended his house when he was in Grades 7 and 8 at lunch hours and on school holidays; that he play-wrestled with J.H. and another boy; that the two boys tied him to the bed in his bedroom; that he tickled J.H.; and that J.H. sat on his lap. The only real dispute was as to whether the appellant put his hands under J.H.’s underwear and touched his penis.

[246] Fourth, when the police searched the appellant’s house, they found a number of items that supported J.H.’s story – ropes in the bedroom, wildberry wine coolers in a small fridge in the bedroom, and stains on the bedroom sheets consistent with wildberry cooler having been spilled on them.

[247] With respect to the complainant B.M., the appellant submitted that the Committee’s factual findings were unreasonable because:

(a) B.M. told the Committee that mutual oral sex and mutual masturbation had occurred between him and the appellant. He did not tell this to the police or mention it at the preliminary inquiry;

(b) B.M. also admitted that there were details that he could no longer remember;

(c) B.M. admitted that he continued to call the appellant’s answering machine many years later just to hear the appellant’s voice;

(d) the Committee inappropriately discounted the evidence of a defence expert that the appellant’s penis had a deformity that B.M. should have noticed if what he said occurred did occur;

(e) the Committee inappropriately discounted the evidence of B.M.’s highly credible former girlfriend that B.M. had told her the appellant had anally raped him, something he did not allege before the College or the police; and,

(f) B.M. had had extensive contact with the justice system over his life. As such, he was far from a reliable or credible witness.

[248] Again, the Committee dealt with each one of the appellant’s arguments and rejected them. There is nothing unreasonable about either its reasoning process or its conclusions. The evidence was not clear as to how observable the deformity on Dr. Sazant’s penis was. The Committee was entitled to find that B.M.’s former girlfriend was mistaken in her recollection about one aspect of what B.M. told her. Furthermore, the appellant again admitted many of the significant aspects of what was alleged to have occurred between him and B.M.. He admitted that he was B.M.’s basketball coach, that B.M. had a troubled background, that B.M. opened up to him and that B.M. came to his house where the appellant was alone with him. According to the appellant, this happened four times.

[249] On the first occasion B.M. came close to the appellant and put his hand on the appellant’s clothing. He then invited the appellant to get onto the bed and “muck” around. The appellant stated that he was surprised, refused and drove B.M. home.

[250] A month later, B.M. asked to come to the appellant’s home again and the appellant agreed (in spite of what had happened on the first occasion). This time, according to the appellant, B.M. offered to give him a “blow job” as he was “very good at it.” Again, the appellant said no and drove him home. After this, the appellant allowed B.M. to come to his home alone on two other occasions, where no sexual advances occurred.

[251] According to B.M., on two separate occasions the appellant kissed him, tied him to the bed in his basement and forced him to perform oral sex on the appellant.

[252] Thus, according to both the appellant and B.M., the relationship had a sexual aspect. While the appellant testified that it was B.M. who initiated the sexual contact, the Committee was entitled to disbelieve the appellant’s testimony, especially given the fact that on the appellant’s own admission he continued to see B.M. alone in his home after B.M. had twice, according to him, tried to initiate a sexual relationship.

[253] Additionally, we see nothing unreasonable in the Committee’s findings that regardless of whether B.M. was 13 or 14 at the time of the incidents, B.M. was a vulnerable young man and the appellant, as his basketball coach, had violated his position of trust.

[254] In assessing the reasonableness of the Committee’s findings of misconduct generally, we note that this is a case where the appellant admitted in each case to spending time alone with the young men in question in his home. With two of them, G.M. and J.H., he admitted to engaging in physical contact with them that involved either him or them being tied to his bed with ropes. With B.M., the appellant admitted that there were sexual advances made during the relationship. Significantly, B.M., like the other two complainants, described sexual contact that involved the use of ropes. There was no evidence of any collusion or opportunity for collusion among the three complainants.

[255] Thus, while we agree that there are some credibility and reliability problems with each of the complainants, we find that the Committee was reasonably entitled to deal with the problems in the way that they did, and the Committee was also entitled to use the evidence relating to all of the complainants in considering the evidence relating to each individual complainant. In other words, contrary to the submissions of the appellant, this was a case where the test for the admission of similar fact evidence had been met. The circumstances leading up to and surrounding each event were similar enough to make this approach appropriate. In particular, there was a pattern whereby the appellant fostered a nurturing relationship with a vulnerable boy, and in each case the alleged misconduct involved being tied to the bed with ropes, a scenario that is distinctive and unlikely to be attributable to coincidence.

[256] We also reject the appellant’s submission that the Committee applied a “double standard” in making its credibility assessments. The Committee believed some aspects of the defence evidence, but not all. In each case, it explained why it did so. The Committee disbelieved the appellant’s denials that any misconduct had occurred. Again it explained why and again its conclusions were reasonable and rationally supported. The Committee ultimately dismissed one of the complaints, confirming that its assessment of the evidence was not driven by any pre-conceived determination to accept whatever the complainants said and reject whatever the defence witnesses said. With respect to G.M., the Committee also refused to make a finding that any misconduct had occurred in the appellant’s office in spite of the fact that G.M. alleged that this had happened.

[257] For these reasons, we find that the Committee’s factual findings, including its credibility assessments, were reasonable.

DID THE COMMITTEE ERR IN CONCLUDING THE CONDUCT WAS “DISGRACEFUL, DISHONOURABLE AND UNPROFESSIONAL” AND RELEVANT TO THE PRACTICE OF MEDICINE?

[258] The appellant argues that the Committee erred in finding the conduct with the three boys was disgraceful, dishonourable or unprofessional. With respect to each of the three boys, he was charged with professional misconduct pursuant to s. 60(3)(c) of the Health Disciplines Act, 1974, S.O. 1974-75, c. 47, as defined in the regulations. The applicable regulation at the time of the misconduct was O. Reg. 577/75.

[259] Section 26 of the regulation set out the meaning of “professional misconduct”. The charges related to G.M., a patient, included clause 28, sexual impropriety with a patient, while the charges related to all three of the boys referred to what is known as the “basket clause” found in clause 31: conduct or an act relevant to the practice of medicine that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

[260] The appellant argued that the convictions are legally incorrect because the Committee first concluded that he engaged in disgraceful, dishonourable or unprofessional conduct and then concluded that the conduct was relevant to the practice of medicine. Given that J.H. and B.M. were not patients, he argued that the Committee should have first decided whether the appellant’s conduct occurred in a professional respect – that is, was it conduct relevant to the practice of medicine? If so, the Committee should have then decided whether it was disgraceful, dishonourable or unprofessional. In his submission, sexual conduct with a non-patient was not relevant to the practice of medicine.

[261] Indeed, the appellant also argued that the Committee erred with respect to the finding concerning his conduct with G.M., since the findings of fact referenced conduct unrelated to medical treatment, and occurred more in the context of his role as a family friend. In other words, the conduct did not occur in a professional context and was not relevant to the practice of medicine.

[262] In making his arguments, the appellant pointed out that the grounds of professional misconduct have since been expanded in the regulations to the Health Professions Act. “Conduct unbecoming a physician”, added by O. Reg. 856/93, s.1(1)34, contains no reference to the words “relevant to the practice of medicine”. According to the appellant’s counsel, the inclusion of this phrase in the earlier form of the professional misconduct regulation was a clear direction that the Committee had no power to regulate conduct not associated with the practice of medicine, unless there had first been a criminal conviction.

[263] The appellant also argued that the Committee erred by failing to clarify whether the conduct was disgraceful, dishonourable or unprofessional. Instead, it treated the offences as one and the same and had no expert evidence before it to support its conclusions.

[264] We see no merit to these arguments. Whether conduct is relevant to the practice of medicine and whether the conduct is disgraceful, dishonourable or unprofessional are matters within the specialized expertise of the Committee, and this Court should not intervene unless their conclusions were unreasonable.

[265] At the time of the sexual activity with each boy, the appellant treated children in his office as their physician. Since children had formed part of the appellant’s practice, the Committee found that sexual activity involving children was relevant to his practice, whether or not the child harmed was a patient. In their words,

Non-patients, under the age of consent, that is, children, do fall under the College’s mandate as the public has an interest in knowing that those doctors who abuse children are not allowed access to vulnerable children for further abuse or use for their own selfish interests. Dr. Sazant’s sexual orientation or activities with consenting adults or those with whom he is not in a position of power do not fall under the mandate of the College, but when his behaviour causes harm to children, the College and its members do have an interest, whether or not a criminal conviction has been sought and found (Reasons of the Discipline Committee, February 20, 2009, page 16).

[266] The appellant argued that any sexual conduct with B.M. was consensual, and B.M. was of the age of majority (then 14). The Committee found that B.M. was 13 years of age, but went on to state that even if B.M. were of an age to consent legally, the conduct – breach of trust respecting a vulnerable teenager – was unprofessional conduct (Reasons of the Discipline Committee, February 20, 2009, pages 56-57).

[267] With respect to G.M., the Committee concluded (Reasons of the Discipline Committee, February 20, 2009, page 41):

When a physician abuses a patient in a sexual manner, whether outside or inside his office, it reflects not just on the physician, but on the profession, and therefore, constitutes misconduct in a professional respect and disgraceful, dishonourable or unprofessional conduct. The sexual abuse of a child, whether or not a patient ([G.M.] was a patient) undermines confidence in the medical profession and the medical system itself.

[268] The Committee concluded that the conduct of the appellant was relevant to the practice of medicine for the reasons set out above, and that the conduct was disgraceful, dishonourable or unprofessional. We see no error in the way in which the Committee interpreted the regulation. Its conclusion was a reasonable one, amply supported by the evidence. It made no error in failing to specify whether the conduct was disgraceful, dishonourable or unprofessional. In this case, the conduct fell within all three categories.

[269] Moreover, in a case like the present, there was no need for expert evidence to determine whether the conduct of the appellant would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional. The Committee was in the best position to determine whether this conduct was disgraceful, dishonourable or unprofessional within the meaning of the regulation.

[270] The appellant also argued that the Committee erred in finding a breach of trust because of his treatment of B.M., because breach of trust by a person in power was not a criminal offense at the time of his interaction with B.M. However, the Committee did not rest its conclusion on the fact that the appellant had committed the crime of breach of trust. Rather, it found that his conduct was a breach of trust in the circumstances of his relationship with B.M., and that it was professional misconduct. That was a reasonable conclusion for the Committee to draw.

[271] In support of his submissions, the appellant relied on Re West and College of Nurses of Ontario (1981), 32 O.R. (2d) 85 (Div. Ct.). In that case, a nurse, working for a private investigator, obtained medical information by claiming to be a staff member of a fictitious doctor. She was found guilty of professional misconduct by the College under a regulation defining professional misconduct as conduct or an act relevant to the performance of nursing services that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Divisional Court overturned the decision, holding that the nurse was not engaged in the performance of nursing services.

[272] That case is distinguishable. First, there is no discussion by the Court of the actual words of the section – “an act relevant to the performance of nursing services” (emphasis added). Second, there was no discussion of the standard of review being applied. Third, the Committee in the present case reasonably concluded, on the facts, that acts of sexual abuse of young children, one of whom was a patient, and abuse of trust through sexual activity with a vulnerable young person, constituted conduct relevant to the practice of family medicine, especially since that practice involved the treatment of children.

[273] Therefore, we would not give effect to this ground of appeal.

DID THE COMMITTEE ERR IN ITS DECISION ON PENALTY AND COSTS?

Penalty

[274] The thrust of the appellant’s submission on penalty is that the Committee erred in imposing the ultimate sanction of revocation by wrongly considering the appellant’s refusal “…to admit his guilt and show remorse”. The appellant submits the Committee used his failure to accept guilt and his desire to defend the allegations made against him as an aggravating factor in determining penalty. In the submission of the appellant, an appropriate penalty to be imposed upon him was a suspension and reprimand.

[275] Courts have long made it clear that a decision on penalty arrived at by a committee regulating a self-governing profession is a discretionary decision to which a reviewing court must show great deference. In this case, the Committee included doctors who are uniquely qualified by virtue of their membership in the profession and their professional training to appreciate the severity of professional misconduct and appropriate sanctions to be imposed where it is found to have occurred. Reference may be had, for example, to Moore v. College of Physicians and Surgeons of Ontario (2003), 128 A.C.W.S. (3d) 396 , where a panel of this Court said in part as follows:

7. In our view, the sentencing process involves a balancing of various factors with the protection of the public being the guiding principle. These factors include general and specific deterrence, proportionality, as well as the need for the College of Physicians and Surgeons to maintain its credibility in the community and with its members as a self-governing body.

8. The Supreme Court of Canada has consistently held that the Court should not interfere with the disciplinary penalties imposed by self-governing professions. (See Pearlman v. Manitoba Law Society, [1991] 2 S.C.R. 869 at p. 888). The standard of review of such decisions should be reasonableness, meaning that after a somewhat probing examination the Court will ask itself, “Can the reasons taken as a whole support the decision?” (See Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17). In this context the decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the Tribunal from the evidence before it to the conclusions at which it arrived. (See Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at para. 41).

9. The jurisprudence of this Court has long held that the Court will only interfere with a disciplinary penalty imposed by professional peers where there is an error in principle or where the penalty is clearly unfit. (See Takahashi v. College of Physicians and Surgeons of Ontario (1980), 102 D.L.R. (3d) 695 (Div. Ct.) at p. 706).

[276] It is appropriate that we begin our analysis of this issue by acknowledging the deference due to the committee of professionals who imposed the penalty and recognizing that the committee’s primary concern was to impose a penalty that would protect the public and maintain public confidence in the system of the regulation of the medical profession. Additionally, we remind ourselves that it is not a question of whether, had we been members of the committee, we might have imposed a different penalty, but rather whether the penalty imposed was fit and reasonable.

[277] In arriving at its conclusion, the Committee found that the appellant had engaged in sexual misconduct with three boys, one of whom was a patient, between the ages of 8 and 14, with whom he was in a position of trust and authority. The Committee found the sexual acts were degrading and intrusive. It concluded that the misconduct found to have been committed was as serious as that which can be perpetrated by a physician. The Committee considered the length of time that had passed since the misconduct had occurred, as referred to earlier in these reasons. It considered the fact that the appellant had continued his practice for many years without incident, honouring an undertaking given to the College not to treat as patients persons under the age of 16 years. The Committee considered and accepted evidence of the appellant’s good character and the high regard in which he is held by the elderly persons who make up the bulk of his practice.

[278] Having observed the appellant during the lengthy hearing, the Committee concluded that his “cognitive distortions, minimizing, and lack of insight do not inspire confidence that his risk to young boys has been reduced because of the passage of time”. The Committee did comment upon the appellant’s lack of remorse and understanding of the seriousness of his misconduct, but that was properly taken into account in arriving at a conclusion that addresses the Committee’s overriding obligation to protect members of the public. We reject the appellant’s submission that it considered his defence to the complaints by itself as being an aggravating factor in assessing penalty.

[279] In paragraph 318 of his factum, the appellant cites six cases which he submits support his position that the appropriate penalty in this case was a suspension and reprimand. We do not find the cases assist the appellant.

(a) X v. College of Physicians and Surgeons of British Columbia (1991), 28 A.C.W.S. (3d) 287 (B.C. C.A.), involved a consensual sexual act with an adult;

(b) Nagahara (Re), [1996] O.C.P.S.D. No. 8 (OCPS Discipline Committee) involved a single incident of sexual touching during a medical examination of an adult that resulted in a criminal conviction for sexual assault. Ninety days was the suspension asked for by counsel for the College.

(c) Mitchell v. British Columbia College of Teachers, 2003 BCSC 1636, involved an historic consensual sexual relationship over a two year period between a young woman and a person who was being tutored by her in English, but was not otherwise in a teacher-student relationship.

(d) In Law Society of Upper Canada v. Joseph, [2003] L.S.D.D. No. 34 (LSUC), a lawyer was involved in consensual sex with his client. The lawyer admitted his misconduct and the penalty imposed was that sought by counsel for the Law Society.

(e) Vereshack v. College of Physicians and Surgeons of Ontario (1992), 36 A.C.W.S. (3d) 683 (Ont. S.C. (Div. Ct.)), involved consensual physical intimacy between a psychiatrist and two of his adult patients during the course of a recognized, if bizarre, form of treatment, since discontinued.

(f) Brand v. College of Physicians and Surgeons of Saskatchewan (1990), 83 Sask.R. 218 (Q.B.), the sole case dealing with a minor, involved a single incident of over-the-clothing sexual touching by a doctor who was a family friend and not in a doctor-patient relationship.

[280] There is simply no comparison between the misconduct in the cases cited to us and that which was found in this case.

[281] In sum, we find the panel fully and properly considered all the aggravating and mitigating factors. It was concerned with the need to denounce the appellant’s conduct and provide specific and general deterrence and it kept the requirement of public protection to the forefront, in concluding that revocation was the most suitable penalty. We cannot say this decision is unreasonable or inconsistent with precedent. We decline to interfere with it.

Costs

[282] In an appropriate case, the College is entitled seek costs against a member, pursuant to s. 53(1) of the Code.

[283] In our opinion, the Committee considered the relevant factors such as the repeated nature of the appellant’s misconduct, the number of victims and the nature of the misconduct, together with the manner in which the appellant testified in arriving at its conclusion that this was an appropriate case in which to order costs. That decision was reasonable.

[284] In considering the quantum of costs, the Committee had regard to its Rules of Procedure, which establishes a per diem level for costs of $3,650.00. The Committee reduced the sum sought by the College by about 25% to take into account the time spent in receiving evidence of a complainant on a charge that the Committee found not to have been made out. We cannot say that the sum awarded was unreasonable given the length and complexity of the hearing.

[285] Of some concern to us is that the sum awarded, $95,812.00, is an amount which the appellant may find impossible to pay. We are aware that at his age of approximately 75 years the revocation of his licence will mean that, for all practical purposes, the appellant will be unable to earn any significant income. Unfortunately, there is nothing on the record before us to indicate the financial circumstances of the appellant, other than a reference to him having carried on a vibrant and busy practice. Absent any evidence to that effect, it is impossible for us to consider a variation of the cost award. This is something only the College could consider, if the appellant were to bring a properly founded application before it for some leniency in the payment of the costs award, such as the opportunity to pay the award in installments

CONCLUSION

[286] The appeal from all findings of the Committee is dismissed.

[287] No costs are sought in this Court, and none are awarded.

JENNINGS J.

SWINTON J.

SACHS J.

RELEASED: January 17, 2011