Court File and Parties

Court File No.: 2811 998 Date: February 10, 2012

Ontario Court of Justice (Central East Region)

Between:

Her Majesty The Queen

M. Gillen, Counsel for the Crown

- and -

Gregory Carter

G. Lafontaine, L. Thomas Counsel for the Defendant

Heard: June 13, 15, 16, 21, 23 – 29, 2011, July 14, 2011 and December 13, 20, 2011

Reasons for Judgment

BELLEFONTAINE, J:

Overview

[1] These are my reasons for judgment in the matter of Mr. Gregory Carter who is charged with three counts of fraud for fees paid to him for counseling services and court child custody assessments. The fraud charges result from him not advising his clients he is a psychological associate as opposed to a psychologist and from him using the term "Doctor" in relation to his lawful provision of psychological services when the College of Psychologists had refused to license him as a doctor of psychology on the basis that his otherwise valid doctorate does not meet a number of the College's requirements. The three complainants lost custody of their children in the ensuing court proceedings and believe Mr. Carter's negative assessment of them was in large part the cause.

[2] The issues in the case are whether Mr. Carter's representations are proven to be acts of deceit or other fraudulent means, whether his representations have caused any financial loss or risk of such loss to the named complainants and whether Mr. Carter was aware of, or reckless in regard to, the risk of loss his representation exposed the complainants to.

Background

[3] Mr. Carter is a psychological associate and was licensed to practice psychology in the Province of Ontario by the College of Psychologists on October 18, 2000. Mr. Carter had extensive experience and training leading up to his obtaining his license. After teaching English for a number of years, he pursued further education and obtained an undergraduate and masters degree in psychology. He worked for many years in school psychology, providing counseling to students and doing psychological testing. He returned again for higher education and attended Wayne State University to obtain his doctorate. After eight years, he had not completed his thesis within the required time limit and left the program to return to work in the counseling field. He ultimately completed his doctorate by correspondence through Pacific Western University which gave him credit for most of his Wayne State courses. The Crown accepts that Pacific Western University was an accredited institution and that he has a valid doctoral degree. He received the degree of Doctor of Philosophy in clinical psychology and is entitled to call himself "Doctor". From Mr. Carter's perspective, his doctoral education was rigorous and hard earned. Mr. Carter applied to be enrolled as a Doctor of Psychology on June 9th, 2000. However, the College of Psychologists refused to license him as a Doctor of Psychology. There is evidence that Mr. Carter was aware of this refusal. He was advised by letter dated July 27th, 2000 that his application for registration was being referred to the registration committee for review, based on concerns his doctoral degree did not meet the Colleges' requirements for registration as a psychologist. He was given an opportunity to address those concerns.

[4] In addition to the validity of his degree, which is now conceded by the Crown to be valid, Mr. Carter was advised that the degree did not meet the College's requirements for registration in other ways, by letter dated September 14, 2000:

"The Committee determined that the doctoral program you completed at Pacific Western University has not been accredited by the American Psychological Association, nor has it been designated as a psychology program by the Joint Designation Committee of the Association of the State and Provincial Psychology Boards and the National Register.

Further comparing the academic work you did with the College's Guidelines for Academic Preparation Leading to Eligibility for Registration: Psychologist, the Registration Committee found the following:

• Point 1 of the criteria was not met because the American Council on Education's publication does not include Pacific Western University as an accredited institution of post secondary education;

• With respect to Point 2 of the criteria, the information available through the Pacific Western University web page does not indicate its intention of training psychologists for professional practice;

• Under Point 3, of the criteria it is specified that the majority of the faculty in the program must be psychologists. Of the three faculty listed for Pacific Western University, one, Dr. Hecksher, was identified as having a doctorate in psychology. In the listing of 23 adjunct faculty, Dr. Hecksher's name appears again as one of the two training in psychology. It appears that the faculty is not a resident one, and that the majority are not psychologists.

• In regard to Point 4., there appeared to be no resident student body.

The Registration Committee concluded that your doctoral degree cannot be considered to be primarily psychological in nature because it was not taken at a recognized degree granting institution in a designated or accredited program with the components required by the college's guidelines. Had you completed the doctoral program in clinical psychology at Wayne State University, this degree would have met the College's guidelines. Because presentation of an acceptable doctorate is a non-exemptible registration requirement, the Registration Committee directed the Registrar to refuse your application for registration as a psychologist in Ontario pursuant to Section 18.(2) 5 of the Regulated Health Professions Code, and to advise you that you are not eligible to proceed with the registration as a psychologist at this time.

However, the Registration committee did agree, on the basis of the analysis of your Masters degree and the subsequent Wayne State University coursework, internship and practical, that your academic credentials would qualify you to begin the process of registering as a psychological associate in Ontario if you choose. A psychological associate is an autonomous provider of psychological services at the masters level. In addition to demonstrating competence in the declared areas of practice, psychological associates must specifically show how they are prepared to carry out the controlled act of communicating a diagnosis.

In your email of July 31, 2000 you indicate that you want to proceed with the process of registering as a psychological associate. Based upon that email, we have sent the necessary forms for you to enroll in the October examinations."

[5] Mr. Carter was granted status as a psychological associate with a limitation preventing him from communicating a diagnosis on the basis of his Masters degree on October 18, 2000.

[6] Mr. Carter applied to remove the limitation on his licence as a psychological associate which prevented him from performing the controlled act of communicating a diagnosis in 2001. He did not pass the oral portion of the examination process and the interviewees recommended that the limitation not be removed from his certificate of registration and he was notified to this effect on November 28, 2001. The limitation was in place throughout the currency of the charges for which Mr. Carter is on trial.

[7] The Crown accepts that Mr. Carter's counseling and assessments for the clients relating to the charges were within the authorized scope of his practice and does not dispute the quality or conclusions of the reports that were ultimately prepared in relation to any of the original five complainants.

[8] The evidence of Dr. Yarrow, the Registrar of the College, is that the scope of practice of psychologists and psychological associates is co-extensive. An associate can perform all of the work that a psychologist can, subject to specific limitations that may be imposed on either of them, but are more likely to be imposed on psychological associates.

[9] A member's registration classification does not affect the rates that can be charged by them. The rates are market driven. A psychological associate may because of his training, experience or good reputation charge more for his services than a psychologist. The evidence shows that insurance companies for billing purposes do not distinguish between psychological associates and psychologists.

[10] The co-extensive nature of their scopes of practice and the reality that an individual's reputation may be established on much broader factors than their education alone has lead to significant ignorance of, and confusion about, the difference between psychological associates and psychologists. The evidence shows that the complainants and some of the lawyers had little or no previous knowledge of the existence of psychological associates, let alone the difference in their qualifications or how, if at all, it would affect the work being done. The confusion is compounded in this case by Mr. Carter actually having a valid Doctorate in the field of clinical psychology albeit not one recognized by the College of Psychologists. Subsequent to these complaints coming to the College's attention, they have published a public information fact sheet that describes the difference between psychologists and psychological associates to help reduce the confusion and lack of awareness of the difference between them that was widespread among the complainants and portions of the legal community.

[11] All complainants have testified that they believed Mr. Carter to be a psychologist based on viewing items such as the office building lobby directory which referred to him as "Dr. G. Carter" as did signs outside and inside his office. No signs made reference to him as a "Psychological Associate" as opposed to a psychologist. "Psychological Associate" is the proper designation for him in the College's guidelines, and properly abbreviated as "C. Psych. Assoc." The sign at his office stated "Practice in Psychology." His business cards and letterhead referred to him as Dr. Gregory Carter and "Practice in Psychology." This terminology was suggested in the College's previous guidelines and not prohibited by the ones in force at the time of the allegations. His letter signature line was "Gregory L. Carter, M.A., C. Psych. Assoc., Ph.D." which was in compliance with the College's guidelines. On insurance claim forms used by Mr. Bulmer for insurance billing purposes, the box for "Clinical Psychologist" (the only relevant one available) was ticked off in the area for "Professional Type Codes." He introduced himself to the complainants as "Dr." Carter. Mr. Bulmer has testified that Mr. Carter said he was a psychologist which is denied by Mr. Carter.

[12] For the time frames of all counts except number 4 relating to Ms. Sandhu, the wording and descriptions in Mr. Carter's signs and related materials were not prohibited by the College's guidelines. In their ruling in relation to Ms. Stringer dated May 17, 2011 the complaints Committee of the College held the use of the term "Dr." was not in breach of the College's guidelines at the time. Indeed Mr. Carter's representations of his credentials carefully followed the College's guidelines as they were then published. It is noteworthy that the College has amended its guidelines effective March 27, 2009 to prohibit the use of the term "Dr." unless a member has been registered as a psychologist on the basis of a doctoral degree.

[13] The position of the Crown is that Mr. Carter's use of the term "Dr." in conjunction with his practice of psychology was a deceitful act and also an act by which other fraudulent means were used that a reasonable person would consider dishonest.

[14] Further that the deceitful act has caused the complainant's financial interest to be put at risk by depriving them of the ability to make an informed choice with respect to the qualifications of their provider of psychological services or to terminate his services.

[15] Finally, the Crown submits that Mr. Carter clearly knew that the fraudulent act was being committed by him and must be assumed to know that his actions would put the complainant's pecuniary interests at risk or was reckless to that fact.

[16] The Crown has relied heavily on the College of Psychologists Professional Misconduct Regulation, O Reg 801/93, section 1, paragraph 16, which they submit placed a positive obligation on Mr. Carter to identify himself as a psychological associate. The section reads:

1. The following are acts of professional misconduct for the purposes of clause 51 (1)(c) of the Health Professions Procedural Code:

REPRESENTATIONS ABOUT MEMBERS AND THEIR QUALIFICATIONS

16. Failing to identify oneself as a psychologist or psychological associate to a client or a member's employer when providing psychological services.

[17] The defence deny that Mr. Carter ever falsely identified himself as a psychologist and take the position that he in fact openly made his actual status available to clients. His Curriculum Vitae which was widely circulated and specifically in the possession of both Ms. Sandhu and Ms. Stringer or their lawyers prominently stated he was a psychological associate at the top of it. As well, his correspondence regularly ended with the approved abbreviation "C.Psych. Assoc." as part of the signature line beside his name. The defence relies on the fact that he had a valid doctorate in clinical psychology entitling him to use that description on his letterhead and signs, and accordingly no misrepresentation occurred. It is submitted that as he complied with the College guidelines with respect to the presentation of his practice and qualifications, which he did on the evidence, he ought not to be found to have committed an illegal act. In addition, no deprivation has been caused as the complainants did not know the difference between psychological associates or psychologists and did not use that criteria to select him. As the Crown accepts his work was within his authorized sphere of practice and does not dispute the quality of the work, the defence submits there was no actual loss or risk of loss to the complainants. To the extent the witnesses have testified that his registration status would have been material to their decision to retain him, the defence submits they cannot be relied upon, as their evidence is after the fact "sour grapes" from unsuccessful litigants.

[18] Mr. Carter has testified and denied any intention to mislead or deprive the complainants or to place the complainants at financial risk.

The Law of Fraud

[19] The case has had a lengthy history to this point. The initial charges of perjury and obstructing justice have been withdrawn by the Crown. Charges of fraud in relation to two other complainants have been dismissed by myself on a non-suit application, as there was an absence of evidence in relation to those complainants, that there was any fraudulent act by Mr. Carter that affected decisions made by others to select Mr. Carter to do the work underlying those counts.

[20] The Supreme Court of Canada has set out concisely the essential elements of the offence of fraud that the prosecution must prove in R. v. Zlatic, 79 C.C.C. (3d) 466:

The elements of the offence of fraud are discussed in a general fashion in R. v. Theroux, S.C.C. No. 22249. For the purposes of this case, it suffices to state that the actus reus of fraud will be established by proof of:

1. the prohibited act, be it an act of deceit, a falsehood or some other fraudulent means; and,

2. deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk.

Correspondingly, the mens rea of fraud is established by proof of:

1. Subjective knowledge of the prohibited act; and,

2. Subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may consist in knowledge that the victim's pecuniary interests are put at risk).

Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.

[21] In addition to the existence of the prohibited act, it is be necessary for the trier of fact to find that that "act" caused the complainant to suffer some financial deprivation or risk of that deprivation. The act need not be the only or dominant cause of the deprivation. It is sufficient if it was a significant contributing cause of the deprivation. See R. v. Nette, 2001 SCC 78, [2001] S.C.J. No. 75

[22] I note as well that the causal connection that must be proven by the Crown is one which exists between the dishonest conduct and the deprivation rather than one which exists necessarily between the accused and a complainant. (See Nightengale "The Law of Fraud" 1996 and updated p.5-18.) The position of the defence is that the representations were not made directly to the complainants and if they did not personally rely on the representation to part with their money, there is no fraud. I consider that view of the law to be too narrow and accept that a broader view of causation could support a finding of guilt. In particular indirect causation by representations to a third party could be sufficient to amount to the actus reus of the fraud where that representation was a significant contributing cause of the ultimate deprivation. See R. v. Kirkwood, 5 C.C.C. (3d) 393. The defence have also submitted that as the act of fraud must cause the deprivation, the act of fraud must precede the payment of the fees which represents the deprivation. In the case of Ms. Sandhu and Ms. Stringer the complainants contact with Mr. Carter commences after the fees have been paid. The Crown submits to the contrary that as the offences charged are continuing ones covering the whole of the complainants' contact with Mr. Carter the fraud can be based on any point in time in the time frame of the information. In particular they submit that the signage and nomenclature have misled the complainants on a continuing basis and deprived them of the opportunity to become aware of the true nature of Mr. Carter's qualifications and reconsider the continued use of Mr. Carter's services and request a refund of the previously-paid retainer.

The Supreme Court of Canada in R. v. Zlatic, [1993] 2 S.C.R. 29, has affirmed that non-disclosure of important facts may support a finding of other fraudulent means. I consider it open to myself to find that non-disclosure which prevents or delays a person from recovering money already given can amount to a prejudice to their economic interests sufficient to support a finding of guilt in this matter.

[23] With respect to the mental element of the offence which must also be proven I would highlight that there is no requirement that Mr. Carter had intended to financially deprive the complainants or put their pecuniary interests at risk. Knowledge that his form of signage and other materials presenting himself could cause others to act to their financial prejudice or recklessness with respect to that risk is sufficient. As Madam Justice McLaughlin stated in R. v. Theroux at p.459:

"The Crown need not in every case show precisely what thought was in the accused's mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference. The fact that such an inference was made does not detract from the subjectivity of the test…the mens rea would then consist in the subjective awareness that one has undertaken a prohibited act (the deceit…or other dishonest acts) which could cause deprivation in the sense of depriving another of property or putting that property at risk. If this is shown, the crime is complete. The fact that the accused may have hoped the deprivation did not take place or may have felt there was nothing wrong, with what he or she is doing, is not a defence."

I would note also that an intentional act of omission is sufficient culpability for a fraud: "that is to say a situation where through his silence, an individual hides from the other person a fundamental and essential element" that would mislead a reasonable person would be sufficient mens rea to support a conviction. See R. v. Emond, 117 C.C.C. 3d 275 (Que.) C. of A.

[24] The level of recklessness required to support a finding of criminal guilt as a substitute for actual knowledge is high. To establish beyond a reasonable doubt that Mr. Carter was reckless to his actions risking the pecuniary interest of clients it would have to be proven that he subjectively adverted to the potential that others could be put at risk financially and chose to run that risk.

Analysis

[25] Mr. Carter has testified disputing Mr. Bulmer's evidence that Mr. Carter identified himself as a psychologist and denying any intention to defraud his clients. Although not articulated, a necessary inference from his evidence is that he never adverted to any risk of financial loss to his clients by using the term "Doctor". His testimony directly raises issues of credibility and as issues of credibility have arisen, I have to apply the provisions of Regina v. W.D. This is the Supreme Court decision which sets out the approach that we are to take to credibility issues.

[26] It provides, that if I believe the defence evidence as it is a complete denial of an essential element of the offence, an acquittal would be appropriate.

[27] Even if I did not believe Mr. Carter's evidence, I would have to go on to consider whether or not it raised a reasonable doubt. We often hear evidence which puts us in a position of not being certain as to what to believe and if that uncertainty here created a reasonable doubt, I would give Mr. Carter the benefit of that and register an acquittal as well. It would only be if I rejected the defence evidence as there was clear evidence that it was untruthful or unreliable, that I would go on to the third step in R. v. W.D. and consider all of the un-rejected evidence in this matter, to ensure there was evidence that I did accept that established Mr. Carter's guilt on all of the charges before the Court beyond a reasonable doubt.

[28] These are applications of our basic principles that everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, that the burden rests on the Crown throughout to prove that guilt, and that there is a very high burden in a criminal case to establish an individual's guilt, as required pursuant to R. v. Starr, 2000 SCC 40, 147 C.C.C. 3d 449 and R. v. Lifchus, 118 C.C.C. 3d 1 and (1998) 120 C.C.C. 3d vi.

[29] The Crown has not brought a similar act application to allow me to use the evidence led in relation to one complainant to support the evidence of another. I have been careful in considering the matter not to do so.

[30] In very succinct argument, the Crown has rested its case on Mr. Carter having an obligation to tell his clients that he was a psychological associate as opposed to a psychologist so they could make an informed decision whether to retain him, or take steps to terminate his services in those cases where he had already been retained. The evidence is clear that other than the provision of his Curriculum Vitae to their lawyers, which clearly states he was a psychological associate, he never directly told any of the three clients these charges relate to, that he was a psychological associate.

[31] The obligation to directly do so is said to flow from the Professional Misconduct Regulation which includes as an act of misconduct; "failing to identify oneself as a psychologist or psychological associate to a client…when providing psychological services."

The Crown relies on a plain reading of the regulations to impose on Mr. Carter the obligation to say that he is one or the other to each client at the commencement of services. The defence submits the regulation is ambiguous, as the regulation does not state when or how the identification is to be made. Further, given the entire structure of the regulatory regime which treats both sets of psychology practitioners as equals, it is arguably sufficient to communicate that you are one of the two without specifying which. That is, that the intent of the section is to ensure that clients are aware that their service provider is a member of the College, to prevent unauthorized practice by non-members, rather than being concerned with advising clients which qualification route was taken to be a treatment provider licensed by the College.

[32] Ms. Yarrow, the registrar of the College was not asked about the College's interpretation of the section, or how it is applied in its training or materials for its members.

[33] Significantly the College's Discipline Committee raised no concerns of a breach of the regulation when they dealt with the complaint by Ms. Stringer. Ms. Stringer's complaint raised directly her concern that she was under the assumption that Gregory Carter was a psychologist because of his use of the term "Doctor", and his never telling her he was a psychological associate, in his dealings with her. The Discipline Committee held, in relation to the complaint that he had misrepresented his credentials or registration status, that there was no breach of the Standards of Professional Conduct. They noted his use of the term "Dr." was not prohibited by the applicable 2005 Standards of Professional Conduct and that his letters, business cards and curriculum vitae otherwise properly identified himself as a "Psychological Associate" or "C. Psych. Assoc." in accordance with the College's guidelines. I note that the only business card filed at the trial did not refer to his status, although other documents such as the retainer receipt given to Ms. Springer, did.

[34] The key issue in the investigation and complaint was whether Mr. Carter's use of the term "Doctor" was in contravention of the College's rules regarding his identification of himself to clients. The Committee made no reference to a positive obligation existing for Mr. Carter to have identified himself as a psychological associate. In my view their decision significantly negates the Crown argument that the regulation imposed on Mr. Carter the obligation to identify himself as a psychological associate by directly telling each client that he is. It is only reasonable to assume that members of the Committee would have turned their mind to a requirement that he identify himself as a psychological associate if the College interpreted the regulation to require that he do so. Also significant in this area is the extensive provision in the Standards as to how members including psychological associates are to present themselves to the public. These rules do not require that they say what their qualification route to be a member is. For example, Rule 6.2.1 permits the generic description "Member of the College of Psychologists", which does convey whether an individual is a psychological associate or a psychologist. Given the detailed and specific rules about how a member is to identify himself, which do not require that the person state he is a psychological associate, I cannot reasonably interpret the more generic and ambiguous rule to find that he does.

[35] Considering all of the evidence in this matter I am not able to find that Mr. Carter's failure to take positive steps to identify himself as a psychological associate to each client is an act of deceit or other fraudulent means that would amount to a criminal act.

[36] I am satisfied however that Mr. Carter's use of the title "Dr." combined with his careful compliance with the College's rules in a fashion that obscured his status as a psychological associate was an "other fraudulent means" sufficient to amount to an act of fraud. Mr. Carter had the option of setting out his full title of "Psychological Associate" on his office signs and letterheads and business cards to clarify any ambiguity created by his use of the term "Dr." in front of his name. I accept that Mr. Carter's use of the term "Dr." would cause most reasonable observers to assume that the use of that term by a person practicing psychology means that the individual is accepted by the College as having a valid doctor of psychology degree and accordingly is a psychologist as opposed to a psychological associate. (I am mindful that a doctorate in psychology is no longer required to be licenced as a psychologist in Ontario, but as this change brought about by the interprovincial labour mobility rules post dates our offences I need not deal with this point.)

[37] Although regulated professions are arguably exempted from the Consumer Protection Act, its listing of prohibited false, misleading or deceptive representations for the purposes of the general business community is of assistance in determining what a reasonable person would consider dishonest. Section 14(2) includes:

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

[38] I consider Mr. Carter's decision to use the title "Dr." in conjunction with his practice, knowing it was considered inadequate from the College's perspective, combined with the descriptions of his practice that obscured his true status, advanced the implication that he was a doctor of psychology from the perspective of the licensing body and was a representation that he had approval and status he did not have and particularly that he was a psychologist when he was not.

[39] I am mindful of the defence argument that a doctoral degree is not required to provide the services rendered in this case, and accordingly could be used independently of his otherwise accurate representation of his practice. However, I do not consider the use of the term "Doctor" to be severable from his other representations or omissions of his qualifications to make it irrelevant to an analysis of what a reasonable person would be led to believe. Individuals are entitled to the quality or category of professional they choose even if their reasons for that preference are unfounded or irrational or based on a lack of understanding of the confusing regulatory regime. A reasonable person would not likely be aware of the unusual relationship between psychologists and psychological associates, or even the existence of the latter, and in my view would reasonably rely on the use of the term "Dr." to assume that Mr. Carter was recognized by the College as having that qualification, and was in fact a psychologist, given the normal association that would be expected to exist when the degree is used in the context of a "Practice in Psychology".

[40] Accordingly, I am satisfied that a criminal act has been made out on the evidence.

Causation

[41] All three complainants acknowledge not being aware of the difference between a psychologist and a psychological associate at the time the services with respect to them were rendered. They have also testified that had they been aware of the difference, they would not have used Mr. Carter or would have taken steps to terminate the already paid retainer. The latter evidence is hypothetical, but may well be true. Mr. Carter was being entrusted to prepare a report that would significantly impact the custody of their children and in the case of Mr. Bulmer, providing counseling for his granddaughter. It would seem natural in these circumstances to want the person with the highest level of qualifications.

[42] There is however a body of evidence that suggests Mr. Carter's reputation and experience was in fact more important to them than the academic route taken by him to qualify to practice psychology in the Province. None of them inquired of him at the time as to what his qualifications were. Both Ms. Stringer and Ms. Sandhu either had his curriculum vitae, which clearly stated him to be a psychological associate, or it was in the possession of their counsel and available to be reviewed by them, but his status was not a memorable issue for them. Ms. Stringer was given a receipt for her retainer that was stamped "Gregory Carter, C. Psych. Assoc." which did not attract any concern from her at the time.

[43] Ms. Stringer did not attend at Mr. Carter's office or otherwise see any of the impugned signs or cards prior to the selection of Mr. Carter for her case. Ms. Stringer testified that it was the Honourable Justice Ferguson that appointed Mr. Carter over two other individuals. Her counsel did not put forth Mr. Carter. The evidence shows that Ms. Stringer did not rely on any representations by Mr. Carter in the course of the selection of him. Justice Ferguson and both counsel had Mr. Carter's curriculum vitae, which clearly stated that he was a psychological associate. There is no evidence before me to show that Justice Ferguson was aware of, or relied on, any misrepresentations or that there were any submissions made to him conveying a misrepresentation when choosing Mr. Carter to conduct the assessment. Justice Ferguson does not reflect any misapprehension in his order which does not refer to Mr. Carter as a psychologist. Ms. Stringer acknowledges having seen and likely read Mr. Carter's curriculum vitae before his appointment and accordingly having available to her the accurate information prominently listed in the curriculum vitae under the heading "Professional Certifications" that Mr. Carter was a psychological associate. To the point in time of Ms. Stringer attending at Mr. Carter's office there is an absence of evidence on this count upon which a reasonable Trier of fact could find causation to be established and make a finding of guilt. Subsequently, upon attending the office to pay her retainer, her receipt was stamped with Mr. Carter's name and proper status "C. Psych. Assoc.".

[44] The position of the Crown with respect to Ms. Stringer's count is that by virtue of his office signs and business cards referring to him as "Dr." and with Mr. Carter introducing himself as "Dr.", Ms. Stringer was prevented from becoming aware of Mr. Carter's true status and reapplying to Court to have another assessor appointed and Mr. Carter's services terminated, which would result in some of her pre-paid retainer being returned. I consider this argument for causation to be too remote and ethereal to support a criminal conviction. Ms. Stringer did not appoint Mr. Carter and given the informed argument before the Court and decision made by it, the suggestion that Ms. Stringer would have taken steps to undo that decision is speculative at best.

[45] While in retrospect she may believe that she would have acted if she discovered Mr. Carter had the lower level of certification, the considered decision already taken would have weighed in his experience and reputation and his academic qualifications. Although falling short of the qualifications that would be recognized as doctoral by the College, his doctoral education was none the less significantly enhanced beyond the masters level. It is unlikely that Ms. Stringer would take steps to reverse the course of events subsequent to meeting Mr. Carter, and seeing signage that referred to him as a Psychological Associate, given her lack of concerns over his qualifications to that point and the lack of attention given to his status on the receipt handed to her. There is a doubt in Mr. Carter's favour that Ms. Stringer would have paid no more attention to a more fulsome sign in his office than she did to the receipt. I cannot find that any obscuring of his credentials created by Mr. Carter has caused any loss or risk of loss to Ms. Stringer.

[46] I am not prepared to find the simple act of presenting his qualifications in the most favourable approved way deprived her of the opportunity to make a fully informed decision to establish causation in this matter.

[47] Mrs. Sandhu testified that Mr. Carter was proposed by her husband to fulfill a court order. Justice Gonsalves had ordered that the parties "shall retain a child counselor to see the children and provide recommendations for their care." Her lawyer had suggested two psychologists and the dispute went to court as her husband had proposed Mr. Carter. Prior to argument, her lawyer advised her to agree to Mr. Carter. She did not look at his curriculum vitae which she acknowledges would have been available to her. Mr. Carter's curriculum vitae has consistently over this time period clearly stated him to be a psychological associate. She felt she had no say in the matter as the decision was forced on her by her husband and she had no money to litigate the issue. She acknowledges she was not aware of the difference between a psychologist and a psychological associate. There is no evidence before me from either her lawyer or husband as to what factors they relied upon in recommending or choosing Mr. Carter. There was no requirement in the order that a psychologist be retained or evidence that Mr. Carter's doctorate played a role in his selection. I do not consider this evidence to be sufficient to show that any misrepresentation by Mr. Carter establishes causation in the selection of Mr. Carter in order to reasonably make a finding of guilt. We not only do not know who if anyone a false representation was made to, we do not know to what extent, if at all, the representation played a role in the selection of Mr. Carter. The Crown has submitted that as Ms. Sandhu paid her share of the retainer in installments, a fraud could be made out on the basis of her continuing to pay after she had met Mr. Carter at his office and been exposed to the misrepresentations. I note that only one of Ms. Sandhu's retainer receipts was filed and it does not include the same stamp (or any stamp) setting out Mr. Carter's status that might have alerted her to his certification.

[48] I am not able to find that Mr. Carter ever told Ms. Sandhu that he was a psychologist as she testified to in direct examination. She recanted this testimony in cross-examination and acknowledged that she only assumed he was, based on him introducing himself as Dr. Gregory Carter and the signs to the similar effect in his lobby.

[49] I am mindful that Ms. Sandhu's contact with Mr. Carter was in August of 2009, some months after the March 2009 change to the College's Standards of Conduct which prohibited his use of the appellation "Dr.". While this may provide the Crown with an unnecessary alternate mode of proving the actus reas in this matter, it does not add additional weight to the causation argument. Mr. Carter has testified he promptly requested the building management to remove the offending signs but they were slow to do so.

[50] Given all of the evidence in this matter, I am unable to find that causation has been proven on the count relating to Ms. Sandhu. Again, the decision to select Mr. Carter was made by individuals who had his curriculum vitae stating he was a psychological associate. The decision to select Mr. Carter was no doubt based on a number of factors, of which his certification status with the College was only one. Given her acceptance of her lawyer's recommendation, and her inability for financial reasons to litigate against her husband's choice of Mr. Carter, it is in my view far fetched to find that becoming aware of Mr. Carter's status would cause her to return to Court part way through the assessment, and litigate for another assessor.

[51] The count in relation to Mr. Bulmer stands on a slightly different footing. The Crown has confined the fraud to the fees paid for the initial counseling of his granddaughter prior to the assessment that was done by Mr. Carter for the subsequent family court proceedings. Unlike the counts in relation to Ms. Stringer and Ms. Sandhu, where others made the decision to have Mr. Carter retained, Mr. Bulmer was directly involved in choosing Mr. Carter for the counseling. There had been a previous series of counseling involving a social worker with a masters degree in social work. That counseling had ended, but Mr. Bulmer felt his granddaughter was still under stress when his union representative recommended he consult Mr. Carter who was a child psychologist and had significant experience in consulting with the Children's Aid Society. Accordingly he decided to renew the counseling efforts. He met with Mr. Carter at his office and based on the signs and the use of the term "Dr.", he believed Mr. Carter to be a psychologist. He testified he would not have used Mr. Carter if he knew he only had a masters degree, as that would be the same as the social worker they had dealt with, and he believed his insurance plan would not pay for the counseling if Mr. Carter was not a psychologist.

[52] I cannot accept as proven beyond a reasonable doubt Mr. Bulmer's evidence that Mr. Carter said he was a psychologist at their initial meeting. Significantly, there is no mention of this in his lengthy complaint to the College of Psychologists and his statement to the police both of which bear directly on the misrepresentation issue. I would expect that piece of information to have been particularly memorable and mentioned in the complaint and statement had it been said.

[53] It is noteworthy as well that Mr. Bulmer cannot recall what the conversation was that lead up to that statement or what words were used by Mr. Carter to say he was a psychologist. Mr. Bulmer ultimately, fairly, agreed that the thought was in his mind that Mr. Carter was a psychologist and that he could have said he had a practice in psychology which would be an appropriate representation under the College's guidelines. Mr. Bulmer was also not aware of the subtle distinction between psychologists and psychological associates, and their equal ability to do the counseling involved, and their equal right to practice psychology. In that context, it is difficult to find that he would have been attuned, at the time, to the subtle differences in terminology that could properly be used by Mr. Carter to describe his practice in psychology, or remember long after the fact, what words were used.

[54] While I accept Mr. Bulmer's sincerity in saying that Mr. Carter communicated to him in some fashion that he was a psychologist, I do not find his evidence in this regard to be reliable. Mr. Carter has testified denying that he either would or did say he was a psychologist, and I am not able to reject his evidence on this point.

[55] Mr. Bulmer was satisfied with the counseling that was being provided and had no negative opinion of Mr. Carter until the ultimate court assessment was prepared. His lawyer recommended Mr. Carter because of his positive reputation with a local Judge. He approved of Mr. Carter doing the assessment report in the child custody dispute over his granddaughter. His insurance company paid their portion of the bills relating to Mr. Carter's services and the evidence clearly establishes they would do so whether Mr. Carter was a psychologist or a psychological associate as they consider both to be valid and equal providers of psychological services for billing purposes.

[56] Notwithstanding the different background in the count relating to Mr. Bulmer, I consider the analysis and end result to be the same to the other two counts. I am not satisfied that Mr. Bulmer would not have retained or terminated Mr. Carter's services if he had been aware of Mr. Carter's licensing status. His reputation, experience and advanced academic training made it more likely that Mr. Bulmer would have continued with the services that he quickly became satisfied with. There is a doubt in Mr. Carter's favour that Mr. Bulmer's evidence, that nothing other than a psychologist would have been good enough, is the after the fact answer to a hypothetical question that is coloured by his bitter disappointment over Mr. Carter's negative opinion of him as a caregiver to his granddaughter that he feels resulted in him losing custody of her and the devastating emotional and financial loss flowing from that assessment. Mr. Bulmer's failure to inquire of Mr. Carter's qualifications is further support for the position that the certification was not as critical as Mr. Bulmer now believes. I am not able to find that there is any causal connection between the obscuring of Mr. Carter's credentials and Mr. Bulmer's decision to retain or continue with Mr. Carter's services.

[57] Accordingly, I am satisfied that the Crown has failed to prove the essential element of causation, to link any wrong doing by Mr. Carter, to any financial loss or risk of loss by the complainants. I am satisfied that the cause of all three being deprived of the ability to choose a person with a particular level of certification was their lack of knowledge of the existence of psychological associates as fully certified professionals, authorized to do the requested work. That lack of knowledge is likely shared by most of the public. It is not however a lack of knowledge that Mr. Carter should be held criminally culpable for. It is likely that none of the complainants would have acted differently had Mr. Carter's office sign referred to him as a psychological associate. I cannot find that any obligation existed on Mr. Carter to point out the existence of psychological associates, and how they differ from psychologists, to address the generic ignorance of the public. I am not satisfied beyond a reasonable doubt that Mr. Carter's manner of presenting himself to these complainants was a significant contributing cause of any deprivation.

Mens Rea

[58] Although not necessary for my decision, I can state as well that there is, in addition, a reasonable doubt whether Mr. Carter knew or was reckless as to whether any action by him posed a financial risk for his potential clients. An intention to put their financial interests at risk is clearly not required. Further, in support of the Crown's position, Mr. Carter's careful compliance with the College's guidelines for the description of his services, used in the signs clients might initially see, in a manner that avoided using the term "Psychological Associate", creates a significant inference that he was hiding his licensing status from potential clients. One would expect him to have been disappointed that his credentials were not recognized by the College and that they refused his application to be licensed as a psychologist. He would also be expected to be upset that the College subsequently refused to lift the limitation on his practice that he not communicate a diagnosis. His use of the term "Dr.", and avoidance of the term "Psychological Associate" given that background, must be seen to be a considered one. It could be expected that during the course of considering how to make his signs and letterhead, the perception of potential clients would be considered. Although there was no evidence on the point it could be reasonably inferred that his using the term Dr., and leaving out the term psychological associate, was done to attract clients and conversely that some potential clients might go elsewhere if he did not present himself to the public in that fashion. The conclusion could be drawn that by attracting some clients who would have gone elsewhere, had the true state of his qualifications been known, he knew their financial interests were put at risk. On this analysis, Mr. Carter's careful compliance with the College's Standards of Professional Conduct establishes a calculated design to deceive potential clients into using his services for his financial betterment, and knowing there was a corresponding risk of financial loss associated with them choosing a provider with different qualifications.

[59] Notwithstanding the strength of the foregoing inferences there are a number of factors that raise a reasonable doubt about Mr. Carter knowing or risking that others would be at financial risk by the way he represented himself.

Mr. Carter is obviously proud of his experience and education, eight years of which was obtained at a recognized doctoral institution. He testified that he used the term "Doctor" so that clients would know he had one. There are reasonable explanations for doing so apart from attempting to mislead potential clients into thinking he was a psychologist. It could equally be to satisfy his ego or to inspire confidence in his clients for treatment purposes. I am not able to reject his evidence that it was not done to mislead. The alternate reasons for using the term "Doctor" reduce the likelihood that he would turn his mind to the financial risk to clients from using it.

The co-extensive single scope of the practice of psychologists and psychological associates, and the educational route to be qualified, has to be considered in the context that over the long run education will reduce in relative significance to experience. Mr. Carter's pride in his extensive experience and credentials and his "fame" in the community for the quality of his work reduce the likelihood that he was subjectively aware of any risk of financial loss to clients who used him.

The formats he used to represent himself to the public were either explicitly authorized, or not prohibited, by the College who has the role of protecting the public. While following the College's guidelines would not protect one who complied with a guilty mind, knowing they created a fraudulent financial risk, it again reduces the likelihood that Mr. Carter would turn his mind to the risk of loss to clients created by following the College's guidelines.

Further choosing not to use the term psychological associate on his lobby directory, letter head and business cards has to be looked at in context. There is little to no room on the directory or direction signs to include it. The term he did use; "Practice in Psychology" on his cards and letterhead was recommended under the old guidelines and not prohibited by the current ones. Letters and the retainer receipt overwhelmingly include the authorized short form for his proper designation on his signature line. While there is evidence that most of his E-mails did not include his status, given the more casual and terse nature of that type of correspondence, they do not assist the Crown in establishing a guilty mind. The obtaining of clients, as exemplified by the cases before me, is largely based on reputation in the community rather than the lobby directory or business cards. In two cases the choice was effectively made by lawyers who had Mr. Carter's curriculum vitae clearly setting out his status. In the third, the recommendation was made by a union representative who had materials with the proper designation on them. It is difficult to find an intention to mislead, or advertence to a risk of loss to clients, when Mr. Carter has in large part openly represented his proper status to the public, in those materials most likely to be considered in selecting him.

The absence of motive to obscure his proper status also has to be considered. The different certification results in no difference in pay, and no practical difference in obtaining clients. As Mr. Carter testified in relation to obtaining clients "your fame comes from the quality of your work and reputation in the community". Given the extensive distribution of his curriculum vitae, any misleading of clients would likely be discovered and lead to upset. The lack of motive to mislead further raises doubts about his subjective awareness that he was misleading clients or that he subjectively was aware of the potential for loss or risk of loss to them. There is a reasonable doubt that he did not have the required mens rea for the offence.

Conclusion

For the foregoing reasons the charges will be dismissed.

P.L. Bellefontaine, Justice