COURT FILE NO.: 537/06
DATE: 20080528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, LEDERMAN AND SWINTON JJ.
B E T W E E N:
DR. HEUNG-WING LI
Appellant
(Responding Party)
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Moving Party)
Christopher A. Wayland, for the Appellant
Shaun O’Brien, for the Respondent
HEARD at Toronto: May 28, 2008
lederman J.: (Orally)
[1] This is a motion by the College of Physicians and Surgeons of Ontario to introduce fresh evidence on the appellant’s appeal from a penalty decision of the Discipline Committee of the College, dated October 2, 2006 (“the 2006 penalty decision”).
[2] The fresh evidence sought to be adduced is an order and reasons of another Discipline Committee, dated September 26, 2007 (“the 2007 decision”) finding that the appellant was guilty of professional misconduct by breaching an undertaking made to the College.
[3] On January 19, 2005, the appellant gave an undertaking to the College pending his hearing before the Discipline Committee on the charges in the present case. He undertook that all of his examinations of female patients, age 10 or older were required to be in the presence of a monitor approved by the College.
[4] In March, 2005, the College gave the appellant notice that he had breached his undertaking and the College would be seeking interim restrictions on his certificate prior to a discipline hearing.
[5] On July 30, 2007, the Discipline Committee found that he had breached the undertaking and found that he was guilty of professional misconduct. The decision and reasons for penalty were given on September 26, 2007.
[6] The College submits that this proposed evidence, namely the decision and reasons, meets the test for the admissibility of fresh evidence in that:
(i) The evidence could not be adduced at the 2006 penalty hearing as the decision and reasons did not exist at the time and only came into existence subsequently;
(ii) The evidence is relevant in that the Discipline Committee in the 2006 case was concerned about the likelihood of the appellant to re-offend, his governability and his deliberate failure to abide by previous clear direction and sanctions imposed by the College. The College submits that this subsequent conviction and reasons demonstrate that the concern was appropriate;
(iii) The evidence is credible, particularly because it was based on an Agreed Statement of Facts, agreed to by the appellant’s counsel on his behalf; and
(iv) The evidence could reasonably be expected to have affected the 2006 penalty decision in that the crux of that penalty decision was the question of whether the appellant was likely to re-offend. The College submits that the 2007 decision and reasons serve to conclusively show that the Discipline Committee was correct in its concern about recidivism.
[7] We are of the view, that this proposed evidence is not admissible, primarily for the reason that the fact of the appellant’s subsequent conviction for breach of an undertaking is not relevant to the question of whether the 2006 penalty decision was reasonable.
[8] There is no justification for re-assessing the reasonableness of a penalty on the basis of a subsequent conviction. It would otherwise defeat the notion of finality of the trial process and would allow for the revisiting of penalties on appeal whenever subsequent convictions arise.
[9] The appropriate manner of dealing with this is for the Discipline Committee to consider the earlier conviction when considering its penalty decision on the subsequent conviction, not vice versa.
[10] Moreover, the hearing for the 2006 penalty decision took place in March and June of 2006, and the facts underlying the subsequent conviction were known to the College well before that time and could, if it had seen fit, adduce such facts pertaining to the alleged breach of an undertaking as an aggravating factor in the penalty hearing. In that sense, this evidence, apart from the conviction, was available and could, with due diligence have been put before the Discipline Committee at the appropriate time.
[11] For these reasons, the motion is dismissed.
BROCKENSHIRE J.
[12] For oral reasons read by Lederman J., the motion is denied. Costs to be dealt with together with costs on the appeal itself.
LEDERMAN J.
BROCKENSHIRE J.
SWINTON J.
Date of Reasons for Judgment: May 28, 2008
Date of Release:
COURT FILE NO.: 537/06
DATE: 20080528
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, LEDERMAN AND SWINTON JJ.
B E T W E E N:
DR. HEUNG-WING LI
Appellant
(Responding Party)
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Moving Party)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: May 28, 2008
Date of Release: