CITATION: Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769

DIVISIONAL COURT FILE NO.: 370/21

DATE: 20220504

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PERELL, SHEARD, and COPELAND JJ.

BETWEEN:

DR. NEILANK KUMAR JHA

Appellant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

-and-

THE MINISTRY OF THE ATTORNEY GENERAL

Intervener

Jaan E. Lilles, Jessica Starck and Sean Blakeley, for the Appellant

Amy Block, for the Respondent

David Tortell and Maia Stevenson, for the Intervener

HEARD at Toronto (by videoconference): February 1, 2022

Copeland J.

[1] The appellant, Dr. Jha, appeals from a decision of the Discipline Committee of the College of Physicians and Surgeons (“the Discipline Committee” or “the Committee”) finding him guilty of professional misconduct. His appeal is from both the finding of professional misconduct and the penalty imposed. The appeal is brought pursuant to s. 70 of the Health Professions Procedural Code, being Sched. 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code” and “the RHPA” respectively).

[2] The Discipline Committee found that the appellant had committed an act of professional misconduct in that he had been found guilty of an offence relevant to his suitability to practise, contrary to s. 51(1)(a) of the Code. The underlying offences were criminal findings of guilt of assault and mischief under $5,000 committed against his then-fiancée, offences of domestic violence. For those criminal findings of guilt, the appellant was granted an absolute discharge.

[3] A central issue in the appeal, and in the proceedings below, is the constitutionality of s. 51(1)(a) of the Code, which provides that a member of a regulated health profession has committed an act of professional misconduct if “the member has been being found guilty of an offence that is relevant to the member’s suitability to practise”. The appellant submits that s. 51(1)(a) of the Code is unconstitutional on division of powers paramountcy grounds as applied to a member who was found guilty of a criminal offence[^1] but was granted a discharge. The appellant submits that as applied to a criminal finding of guilt where a discharge was granted, s. 51(1)(a) of the Code operates in conflict with and/or frustrates the purpose of s. 6.1 of the Criminal Records Act, R.S.C. 1985, c. C-47 (“the CRA”).[^2]

[4] The Attorney General of Ontario intervened in the appeal and in the proceedings before the Discipline Committee only with respect to the constitutional issue. The federal Attorney General was given notice of the constitutional issue pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, but chose not to intervene either before the Discipline Committee or in this court.

[5] For reasons explained below, I find as follows and dismiss the appeal:

(i) Section 51(1)(a) of the Code is not unconstitutional on division of powers grounds. The Discipline Committee committed no error in finding that there was no operational conflict between s. 51(1)(a) of the Code and s. 6.1(1)(a) of the CRA, and that the purpose of s. 6.1(1) of the CRA is not frustrated by the operation of s. 51(1)(a) of the Code.

(ii) The Discipline Committee committed no error in admitting into evidence the criminal information and the transcript of the guilty plea and finding of guilt.

(iii) The Discipline Committee did not err in finding that the offences of which the appellant was found guilty are relevant to his suitability to practise medicine.

(iv) The penalty imposed by the Discipline Committee was fit and there is no error in principle in the Committee’s penalty decision.

(v) The Discipline Committee did not err in finding that s. 53.1 of the Code provides authority for it to grant costs to the College in relation to two days of preliminary motions heard by a differently-constituted panel of the Discipline Committee.

History of the proceeding

[6] On December 17, 2015, the appellant pleaded guilty to one count of assault and one count of mischief under $5,000 contrary to ss. 266 and 430(4) of the Criminal Code, committed on August 27 and 29, 2013. The offences related to his then-fiancée. The facts on which the guilty plea was based were read in and admitted by the appellant at a further court hearing on June 20, 2016. On June 20, 2016, the appellant was found guilty of assault and mischief under $5,000.

[7] The facts admitted by the appellant during the guilty plea proceedings were summarized by the Discipline Committee as follows:

• Dr. Jha knew Ms X through his family. Around March 2013, they started dating. They became engaged and she spent most of her nights at his apartment. There was one domestic incident on file with the police but there were no charges;

• On August 27, 2013, at about four in the morning, Dr. Jha and Ms X (his then-fiancée), were in Dr. Jha’s apartment talking;

• An argument ensued over Dr. Jha’s being jealous that Ms X’s ex-boyfriend had been emailing her;

• Dr. Jha demanded to see Ms X’s email account. The argument escalated and he grabbed Ms X by the arms, pulling her to the bed;

• Dr. Jha then pulled Ms X onto the floor and began to kick her in the buttocks, the ribs, and the back several times. She showed him her emails and went to bed;

• On August 29, 2013, Ms X was talking to her mother on the telephone and was leaving. Dr. Jha took Ms X’s cell phone and threw it against a brick wall, damaging it. Ms X took her phone pieces and left;

• Ms X sustained numerous injuries to her arms, neck, lower back, ribs and knees;

• The damage to the phone was $500.

[8] Sentencing submissions were made on June 20, 2016, and the matter was put over. On July 15, 2016, the appellant was granted an absolute discharge in relation to the criminal findings of guilt.

[9] The appellant was informed by letter in April 2014 that the Registrar of the College had appointed investigators under s. 75(1) of the Code. The reasonable and probable grounds relied on by the Registrar included notification to the College of the criminal charges against the appellant by the father of the victim, who was also a member of the College. In addition, at some stage, the appellant reported the fact of the guilty plea to the College. In September 2016, the Inquiries, Complaints and Reports Committee of the College (“the ICRC”) deferred decision on the investigation pending further investigation.

[10] I will not summarize all of the details of the investigation. However, one aspect of the investigation has relevance to the issues in this appeal. As part of its investigation, the College obtained a certified copy of the criminal court information and a copy of the transcript of the guilty plea and finding of guilt. The College received the certified copy of the information on August 31, 2016. On June 5, 2017, the College received the transcripts from the criminal proceeding, including the transcript of the guilty plea and finding of guilt that was later filed as evidence at the professional discipline hearing. The dates that both of these documents were obtained by the College were less than one year after the absolute discharge was imposed on the appellant.

[11] On February 6, 2019, the ICRC considered the report of the investigation. The ICRC referred a specified allegation of misconduct to the Discipline Committee of the College, pursuant to ss. 26 and 36 of the Code. That allegation is set out in the Notice of Hearing, dated February 6, 2019, which alleged that the appellant had committed an act of professional misconduct under s. 51(1)(a) of the Code, in that he had been found guilty of an offence that is relevant to his suitability to practise. The particulars of the allegation in the Notice of Hearing were that:

On or about December 17, 2015, Dr. Jha was found guilty of assault contrary to section 266 of the Criminal Code and mischief under $5,000 contrary to section 430(4) of the Criminal Code. The assault and mischief occurred in about August, 2013.

[12] The appellant brought a preliminary motion before the Discipline Committee to quash the Notice of Hearing (and related relief). The basis for the motion was the submission that s. 51(1)(a) of the Code was unconstitutional on division of powers paramountcy grounds, because it was in operational conflict with and/or frustrated the purpose of s. 6.1 of the CRA and s. 730 of the Criminal Code when applied to a person granted a discharge for a criminal finding of guilt. The appellant brought a second preliminary motion seeking to exclude the public from the hearing of the motion to quash the Notice of Hearing, or in the alternative, for a publication ban on his identity in relation to the motion to quash. The hearings of these motions totalled two days in January 2020.

[13] On February 3, 2020, the Discipline Committee denied the appellant’s motion to exclude the public from the motion to quash the Notice of Hearing and his request for a publication ban: Order and Reasons on Motion to Exclude the Public and/or Issue a Publication Ban, February 3, 2020.

[14] On February 24, 2020, the Discipline Committee dismissed the appellant’s motion to quash the Notice of Hearing: Order and Reasons for Order on Notice of Motion to Quash, February 24, 2022. In very brief summary, the Committee found that s. 51(1)(a) of the Code did not operate in conflict with or frustrate the purpose of s. 6.1 of the CRA, or s. 730 of the Criminal Code.

[15] The portion of the hearing in relation to liability proceeded on May 26 and June 1, 2020. On August 27, 2020, the Discipline Committee found that the appellant had committed an act of professional misconduct, in particular that he had been found guilty of an offence relevant to his suitability to practise, contrary to s. 51(1)(a) of the Code: Discipline Committee Decision and Reasons for Decision, August 27, 2020, reported as Ontario (College of Physicians and Surgeons of Ontario) v. Dr. Neilank Kumar Jha, 2020 ONCPSD 36.

[16] The penalty portion of the hearing was conducted on January 7, 2021. On April 16, 2021, the Discipline Committee imposed a penalty on the appellant of a reprimand and a three-month suspension of his certificate of registration. In addition, pursuant to s. 53.1 of the Code, the Committee made an order that the appellant pay costs to the College in the amount of $51,850: Penalty Order and Reasons, April 16, 2021, reported as College of Physicians and Surgeons of Ontario v. Jha, 2021 ONCPSD 18.

Issues raised on appeal

[17] The appellant raises five grounds of appeal, three of which relate to the finding of professional misconduct, one to penalty, and one to costs:

(i) Did the Discipline Committee err in finding no operational conflict between s. 51(1)(a) of the Code and s. 6.1(1)(a) of the CRA, and that the purpose of s. 6.1(1) of the CRA is not frustrated by the operation of s. 51(1)(a) of the Code? In other words, did the Committee err in failing to find s. 51(1)(a) inoperative on division of powers grounds?

(ii) Did the Discipline Committee err in admitting into evidence the criminal information and the transcript of the guilty plea and finding of guilt?

(iii) Did the Discipline Committee err in finding that the offences of which the appellant was found guilty are relevant to his suitability to practise medicine?

(iv) Did the Discipline Committee commit an error in principle in its penalty decision, or impose a clearly unfit penalty?

(v) Did the Discipline Committee err in finding that s. 53.1 of the Code provides authority for it to grant costs to the College in relation to two days of preliminary motions heard by a differently-constituted panel of the Discipline Committee?

Standard of review

[18] Sections 70(1) and (2) of the Code provide that an appeal lies to this Court from a decision of the Discipline Committee on questions of law or fact or both.

[19] Where the legislature provides for an appeal from an administrative decision to a court, the appellate standard of review applies. For questions of law, including constitutional issues, the standard or review is correctness. For questions of fact, the standard of review is palpable and overriding error. For questions of mixed fact and law, the standard is palpable and overriding error, except where there is an extricable error of law, in which case the standard of review on the extricable question of law is correctness. A palpable and overriding error is an error that is plainly seen and that affects the result: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37; Hanson v. College of Physicians, 2021 ONSC 513 (Div. Ct.), at paras. 34-36.

[20] With respect to appeals from penalty, a penalty or disposition imposed by a regulatory tribunal will not be overturned on appeal unless the decision-maker made an error in principle or the penalty or disposition was “clearly unfit”: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 18; Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193 (Div. Ct.), at para. 23; Hanson, at para. 36.

[21] I address how these standards apply to each issue raised by the appellant in the course of my analysis below.

The relevant legislative provisions

[22] The federal and provincial legislative provisions relevant to the constitutional issue are as follows:

Criminal Records Act

Custody of Records

Discharges

6.1 (1) No record of a discharge under section 730 of the Criminal Code that is in the custody of the Commissioner or of any department or agency of the Government of Canada shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if

(a) more than one year has elapsed since the offender was discharged absolutely; or

(b) more than three years have elapsed since the day on which the offender was ordered discharged on the conditions prescribed in a probation order.

Purging C.P.I.C.

(2) The Commissioner shall remove all references to a discharge under section 730 of the Criminal Code from the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police on the expiration of the relevant period referred to in subsection (1).

8 No person shall use or authorize the use of an application form for or relating to any of the following matters that contains a question that by its terms requires the applicant to disclose a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect:

(a) employment in any department as defined in section 2 of the Financial Administration Act;

(b) employment by any Crown corporation as defined in section 83 of the Financial Administration Act;

(d) employment on or in connection with the operation of any work, undertaking or business that is within the legislative authority of Parliament.

Criminal Code of Canada

Conditional and absolute discharge

730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

(a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

(b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and

Health Professions Procedural Code

Professional misconduct

51(1) A panel shall find that a member has committed an act of professional misconduct if,

(a) the member has been found guilty of an offence that is relevant to the member’s suitability to practise.

Did the Discipline Committee err in failing to find s. 51(1)(a) of the Health Professions Procedural Code to be inoperative on division of powers paramountcy grounds?

[23] The appellant submits that to the extent that s. 51(1)(a) of the Code permits a professional misconduct proceeding to be based on a finding of guilt where a discharge was granted after the statutory time has run, it is unconstitutional on division of powers paramountcy grounds because of conflict with s. 6.1 of the CRA. The appellant submits that the Discipline Committee erred in holding that there was no operational conflict between s. 51(1)(a) of the Code and s. 6.1(1)(a) of the CRA, and in finding that s. 51(1)(a) does not frustrate the purpose of the federal law. The appellant submits that the purpose and effect of s. 6.1 of the CRA is to create, subject to the Minister’s discretion, a complete ban on disclosure of the fact and existence of a finding of guilt for which a discharge was granted, and on the use of the finding of guilt for any purpose, after the statutory time has run. Another way that the appellant puts this submission is that the true purpose of s. 6.1 of the CRA is to establish a period after which a finding of guilt where a discharge was granted can no longer impugn the character of a discharged person.

[24] The respondent and the intervener submit that the appellant has failed to discharge his onus to show that the provincial legislation conflicts operationally with or frustrates the purpose of s. 6.1(1)(a) of the CRA. Parliament is presumed to intend its laws to co-exist with provincial laws. Unless there is a genuine inconsistency, the court should favour an interpretation of the federal legislation that allows the concurrent operation of legislation enacted by both levels of government. The respondent and intervener submit that the appellant’s proposed interpretation of the purpose and effect of s. 6.1 of the CRA is overly broad, and is not supported by the text of the provision, the legislative history, or jurisprudence interpreting s. 6.1 and related provisions of the CRA.

[25] The parties (including the intervenor) agree, as do I, that the standard of review on the legal question of the constitutionality of s. 51(1)(a) of the Code is correctness.

[26] In very brief compass, the Committee found that s. 51(1)(a) of the Code was not in operational conflict with s. 6.1 of the CRA and did not frustrate the purpose of the federal legislation. The Committee found that s. 6.1 of the CRA was not intended to eliminate records of discharges from the public domain, or to try to control records existing in public or provincial forums. Rather, it addresses disclosure of records by federal entities as referred to in s. 6.1 of the CRA, and its application is limited to federal departments and agencies, and to disqualifications under federal law or regulation, or that are otherwise within federal jurisdiction. The Committee found that a discharge does not erase a finding of guilt. In reaching its conclusions about the purpose and effect of s. 6.1 of the CRA, the Committee considered the text of s. 6.1, its legislative history, and relevant authorities of the Supreme Court of Canada, the Ontario Court of Appeal, and other courts. In light of the Committee’s conclusion about the limited scope of s. 6.1 of the CRA, it found that there was no operational conflict or frustration of purpose caused by the application of s. 51(1)(a) of the Code to a finding of guilt where a discharge was granted after the statutory time has run because s. 6.1 of the CRA does not bar the use in a professional discipline proceeding based on provincial law of a criminal finding of guilt for which a discharge was granted.

[27] My analysis of the constitutional issue below proceeds in the following order. I first outline the legal analysis applicable to considering issues of federal paramountcy. I then apply that analysis to the circumstances raised in this appeal. I consider the purpose and effect of s. 6.1 of the CRA based on its text and the text of related legislative provisions, its legislative history, and prior judicial interpretation. I then consider whether s. 51(1)(a) of the Code is in operational conflict with the purpose of s. 6.1 of the CRA or frustrates its purpose, when applied to circumstances where a member of a regulated health profession has been found guilty of an offence, but has received a discharge.

The proper approach to consideration of paramountcy in division of powers analysis

[28] The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between valid but overlapping federal and provincial laws, the provincial law is inoperative to the extent of the inconsistency.

[29] The principles applicable to determining whether provincial legislation is inoperative on division of powers grounds because of federal paramountcy are well-established. I draw the principles set out below from cases including: Saskatchewan v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419, at paras. 15-23, 26-27; Quebec (Attorney General) v. Canadian Owners and Pilots Association), 2010 SCC 39, [2010] 2 S.C.R. 536, at paras. 62-66; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at paras. 64-66; Rothman, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, at paras. 11-17; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at paras. 14-29; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, at paras. 65-69, 77; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 36-38.

[30] A court or tribunal considering an issue of paramountcy must conduct two inquiries to determine if there is a conflict between valid but overlapping federal and provincial enactments.[^3]

[31] The first inquiry concerns whether it is impossible to comply simultaneously with both laws. This is often referred to as “operational conflict.” The test for operational conflict is impossibility of compliance with both the federal and provincial enactments, also referred to as “express contradiction.”

[32] The second inquiry asks if the operation of the provincial law will “frustrate the purpose” of the federal law.

[33] The party seeking to invoke federal paramountcy bears the burden of establishing Parliament’s purpose for the federal law and of demonstrating that the provincial law is incompatible with this purpose. This is a high bar to meet, and there must be clear proof of the federal purpose.

[34] Both inquiries are aimed at assessing if the provincial law frustrates the purpose of the federal law – whether by the provincial law making it impossible to comply with the federal law, or by some other means.

[35] Paramountcy case law is also clear that the doctrine of paramountcy is to be applied using a restrained approach. When a federal law can be properly interpreted so as not to interfere with a provincial law, such an interpretation is to be preferred over an interpretation which would bring about a conflict between federal and provincial law. In the words of the majority in Lemare Lake, at paragraph 21: “harmonious interpretations of federal and provincial legislation should be favoured over interpretations that result in incompatibility.” Cooperative federalism allows for some interplay and overlap between federal and provincial legislation. Absent clear evidence of a broader statutory purpose, courts should avoid an expansive interpretation of the purpose of federal legislation that would bring it into conflict with provincial legislation.

[36] Although not determinative, the fact that the federal Attorney General does not take the position that provincial legislation is inoperative on division of powers grounds is a factor that a court may consider in assessing a claim that provincial legislation is inoperative on division of powers grounds. Courts must be “particularly cautious” about rendering a provincial law inoperative where the federal government does not oppose its operation: OPSEU v. Ontario (Attorney General), 1987 71, [1987] 2 S.C.R. 2, at pp. 19-20; Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, 86 O.R. (3d) 168, at para. 17, aff’d 2009 SCC 19, [2009] 1 S.C.R. 624; Rothman, at para. 26. As noted above, the federal Attorney General was given notice of the constitutional issue raised in this appeal and did not intervene to take a position.

The purpose and effect of s. 6.1 of the Criminal Records Act

[37] The starting point of both branches of the paramountcy analysis is to determine the character of the federal legislative provision(s) at issue. This involves considering the purpose and effect of the federal provisions, and the statutory interpretation of the provisions based on the modern approach to statutory interpretation.

[38] The appellant contends that the Discipline Committee erred in accepting a narrow interpretation of the purpose of s. 6.1 of the CRA. The Appellant characterizes the purpose of s. 6.1 of the CRA as “ensur[ing] that the finding of guilt no longer reflects adversely on the discharged person’s character” by prohibiting disclosure of the record and the fact of the discharge, effectively in any circumstances. Based on this broad interpretation of the purpose and effect of s. 6.1 of the CRA, the appellant contends that s. 51(1)(a) operationally conflicts with and frustrates the purpose of s. 6.1 of the CRA where a professional discipline proceeding takes place after the statutory time period in s. 6.1 has elapsed because s. 51(1)(a) allows a health regulatory college to professionally discipline a member based solely on the criminal finding of guilt.

[39] As I explain below, I find that the text, the legislative history, and prior judicial interpretation of s. 6.1 of the CRA show that it has a more limited purpose and effect than the appellant contends.

(a) The text of s. 6.1 of the Criminal Records Act

[40] The text of s. 6.1 of the CRA supports an interpretation that limits its application to federal agencies. In the CRA, “the Commissioner” means the Commissioner of the Royal Canadian Mounted Police (“RCMP”). Section s. 6.1 provides that no record of a discharge under s. 730 of the Criminal Code “that is in the custody of the Commissioner or of any department or agency of the Government of Canada,” nor the existence of the record or the fact of the discharge shall be disclosed to any person without the prior approval of the Minister of Public Safety and Emergency Preparedness once one year has passed in the case of an absolute discharge, or three years have passed in the case of a conditional discharge. The text is express that it only applies to a record of a discharge, or the existence of the record or the fact of the discharge, in the hands of the RCMP or federal departments or agencies.

[41] The French text of s. 6.1 also supports a narrow interpretation which only applies to records in the hands of federal agencies:

6.1 (1) Nul ne peut communiquer tout dossier ou relevé attestant d’une absolution que garde le commissaire ou un ministère ou organisme fédéral, en révéler l’existence ou révéler le fait de l’absolution sans l’autorisation préalable du ministre, suivant l’écoulement de la période suivante :

a) un an suivant la date de l’ordonnance inconditionnelle;

b) trois ans suivant la date de l’ordonnance sous conditions.

(2) Le commissaire retire du fichier automatisé des relevés de condamnations criminelles géré par la Gendarmerie royale du Canada toute mention d’un dossier ou relevé attestant d’une absolution à l’expiration des délais visés au paragraphe (1). [Emphasis added.]

[42] As in the English text, the language in the French text of “que garde le commissaire ou un ministère ou organisme federal” speaks to records in the hands of the RCMP or federal departments or agencies.

[43] The context of s. 6.1 within the CRA also supports an interpretation that limits its application to disclosure by the RCMP or federal departments or agencies. Sections 6 to 6.4 of the CRA are under the heading “Custody of Records.” All of the provisions regarding disclosure of records in this part of the CRA speak to records in the custody of the Commissioner of the RCMP or federal departments or agencies. Similarly, s. 8 of the CRA creates certain restrictions on employers using application forms that ask questions about convictions for which a record suspension has been ordered. However, by its terms, s. 8 only applies to federal departments, federal Crown corporations, the Canadian Forces, or employment by any “work, undertaking, or business” within the legislative authority of Parliament.

[44] Before leaving the issue of the text of the provisions at issue, I want to touch on s. 730(3) of the Criminal Code. The appellant does not contend that s. 730 creates any bar to the College proceeding with a professional misconduct allegation under s. 51(1)(a) of the Code. Rather, the appellant relies on s. 730 as context. Section 730(3) of the Criminal Code provides that where an offender is discharged under s. 730(1), the offender is “deemed not to have been convicted of the offence” (with certain exceptions which are not relevant to this appeal). As I address further below in relation to prior judicial interpretation of s. 6.1 of the CRA and s. 730 of the Criminal Code, while s. 730(3) has the effect that there is no “conviction,” it has not been interpreted as meaning that there is no finding of guilt. Further, s. 730(3) contains no text limiting disclosure or use of a discharge or of a finding of guilt for which a discharge is granted.

[45] Thus, the text of s. 6.1 of the CRA does not support the broad interpretation proposed by the appellant that its purpose and effect is to prohibit any disclosure of a discharge by any person (after the statutory time has elapsed) and to remove completely any adverse effect on the discharged person’s character.

(b) The Legislative history of s. 6.1 of the Criminal Records Act

[46] The legislative history of s. 6.1 of the CRA also supports a narrower purpose and effect than the appellant proposes. The legislative history shows that a discharge is not intended to remove all consequences of a criminal finding of guilt. It is also clear – and this is significant to the immediate case – that the effect of s. 6.1 is not intended to restrict the disclosure or use of a finding of guilt for which a discharge was granted by an entity that is not a federal department or agency, or to remove disqualifications other than those imposed under federal legislation or regulations.

[47] The CRA was first enacted in 1970. In general terms, the purpose of the CRA was to modernize and codify the common law concept of a pardon and to allow some offenders a means to mitigate some – but not all – of the consequences associated with a criminal record.

[48] Under the original version of the CRA, the same process applied to seeking a pardon where there was a conviction as where an offender was granted a discharge. Thus, originally, individuals who had been granted a discharge had to apply for a pardon.

[49] During the legislative debates before the passage of the CRA, it was clear that the legislation was not intended to apply to provincial jurisdiction. Speaking about the limits of the scope of the legislation during the third reading debate, Member of Parliament D.R. Tolmie stated:

This, of course, is not the final answer as far as helping people who have had criminal records is concerned. These people still have difficulty obtaining a bond. The Solicitor General has taken steps in this direction by assisting certain agencies to provide bonds to those who have had criminal records. But I think we must go further and we should have a government bonding service to assist those people who have had criminal records in obtaining bonds.

In addition, provincial legislation in this field is required. This legislation applies only to those agencies over which the federal government has control. It will not apply to individual and corporate employers. I have talked to the attorney general of the province of Ontario, and the government of that province has shown some interest in this type of legislation. Again, I urge the Solicitor General to approach the attorneys general of the various provinces to see whether they would enact some type of complementary legislation: “Bill C-5, Provision for relief of convicted persons”, 3rd reading, House of Commons Debates, 28th Parl., 2nd Sess., Vol. 7 (12 May 1970), at p. 6865 (D.R. Tolmie). [Emphasis added.]

[50] The current section 6.1 of the CRA was introduced in 1992 as a package of amendments to correct procedural anomalies in the CRA. In particular, s. 6.1 was designed to remove the need for a person who was found guilty of a criminal offence but granted a discharge to apply for a pardon. Under the amendments, the discharge would automatically take effect similar to a pardon (now called a “record suspension”) after one year in the case of an absolute discharge, and after three years in the case of a conditional discharge. The more streamlined process created by the 1992 amendments was intended to be fairer to offenders who had received a discharge by removing the need for an application for a pardon, and to help remove backlogs of applications and reduce the administrative burden on the National Parole Board and the RCMP by significantly reducing the number of pardon applications each year (since discharges would no longer require a pardon application).

[51] It is clear from the legislative debates that the purpose of the 1992 amendments in relation to discharges that led to the enactment of s. 6.1 of the CRA was to make the pardon system more efficient as it related to discharges, and more broadly, to reduce delays and costs of processing pardon applications, and to change the process to obtain a pardon, without changing the basic objectives of the CRA: “Bill C-71, an Act to amend the Criminal Records Act”, 2nd reading, House of Commons Debates, 34th Parl., 3rd Sess., Vol. 8 (5 May 1992) at pp. 10113-10115 (Hon. Doug Lewis); “Bill C-71, an Act to amend the Criminal Records Act”, 2nd reading, House of Commons Debates, 34th Parl., 3rd Sess., Vol. 8 (5 May 1992) at pp. 10123-10124 (Monique Tardif).

[52] The appellant focuses on portions of the legislative debates, particularly regarding the 1992 amendments, that speak about the intention of the legislation and of pardons generally being to remove the stigma of a conviction from an offender who has been rehabilitated, and to extend that reasoning to discharges after the statutory time period has run: see e.g., “Bill C-71, an Act to amend the Criminal Records Act”, 2nd reading, House of Commons Debates, 34th Parl., 3rd Sess., Vol. 8 (5 May 1992) at pp. 10113-10115 (Hon. Doug Lewis); Canada, Office of the Solicitor General, Proposal for the Reform of the Criminal Records Act (CRA) (Ottawa: 20 July 1991) at p. 6.

[53] The difficulty I have with the appellant’s position is that it treats that intention of removing the stigma of a conviction or discharge as having an absolute and complete effect on removing all effects of a criminal record or discharge. I find that the legislative debates do not support that proposition.

[54] The legislative debates in relation to the 1992 amendments to the CRA, which led to the enactment of s. 6.1, do not support an intention by Parliament to expand the scope of the CRA from its scope when it was enacted in the 1970s, to limit provincial jurisdiction, or to limit freedom of the press to report on discharges after the statutory time period had run.

[55] Indeed, in the 1992 debates, there was recognition by Parliament that even with the new amendments, the CRA did not and was not intended to protect offenders from all consequences related to criminal findings of guilt or criminal records. There was also specific acknowledgement that the new s. 6.1 was not intended to restrict the use of records by individuals or entities that were not captured by the wording of s. 6.1 (i.e., the RCMP and other federal departments or agencies). This is clear from the following extracts from the legislative debates:

It is regrettable that this act which tries to deal with this field of all of the records, the records of conviction, the records of the evidence, the letters going back and forth, the records of decisions by the prosecuting attorney, the submissions by the defence counsel, the records of the press – all of that – does not deal with it. It just leaves it sitting there and that is a bit of a problem which we will ultimately want to address.

Here are some of the reasons. The act does not deal with destruction of criminal records. The act says you get a pardon…. The act does not define pardon, but it tries to show the effect. It states what the effect of a pardon is without defining what the effect of a pardon is. One of those is that “in the case of any pardon the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character”. The verb here is should – should no longer reflect.

The individual who applies for a pardon really expects that the conviction will not or may not or cannot – not should not – affect adversely on the applicant’s character.

That remains unaddressed by this. When the pardon is given you would expect something to happen to all of the records of conviction and criminal records but nothing happens. This bill does not try to do anything and the system does not either. All the records that were in the courthouse, all the records that were with the police, all the records that were in the media and all that were sent out there remain exactly where they were….

I want to point out that the act does not affect any of the records of conviction in private hands such as insurance companies, bonding companies. All of that is still out there: “Bill C-71, an Act to amend the Criminal Records Act”, 3rd reading, House of Commons Debates, 34th Parl., 3rd Sess., Vol. 9 (11 June 1992) at pp. 11842-11843 (Derek Lee).

As the previous speaker pointed out there are records of conviction. However, there are all kinds of other criminal records relating to a specific crime and the perpetrator of that crime that are held by the police that investigated the crime, by the court that convicted, by the newspapers that covered the trial and by the various libraries that keep those records. Probably carrying this to its extreme, there is the memory of those who were involved in one way or another with that crime.

One could argue that it is virtually impossible to completely expunge the entire record of a criminal act. Perhaps that too is for another day: “Bill C-71, an Act to amend the Criminal Records Act”, 3rd reading, House of Commons Debates, 34th Parl., 3rd Sess., Vol. 9 (11 June 1992) at pp. 11843-11844 (Derek Blackburn).

Some have asked why this bill does not go further. Why does it not expand protection to seal or destroy records held by provincial or local police officials?

Why does it not control the use of criminal history information in the private sector? Why does it not compel American immigration and criminal justice authorities to allow unfettered entry to the U.S. of those Canadians who have received a pardon?

Honourable senators, we recognize that the scope of these amendments is restricted to improving the Criminal Records Act. This Act does not impose restrictions on the use of “records of conviction”. Accordingly the amendments cannot intrude in areas of provincial responsibility nor can they provide extra-territorial protection to Canadians: “Bill C-71, an Act to amend the Criminal Records Act”, 2nd reading, Senate Debates, 34th Parl., 3rd Sess., Vol. 2 (16 June 1992) at p. 1739 (Hon. Gerald J. Comeau).

[56] I note in passing that, to some extent, this province took up the call in the federal debates around the CRA to pass legislation relating to the effects of criminal records or findings of guilt within provincial legislative authority. For example, ss. 5(1) and 10(1) of the Human Rights Code, R.S.O. 1990, c. H.19, prohibit discrimination in employment based on “record of offences” (which is defined as a criminal offence for which a pardon has been granted under the CRA), subject to a defence by an employer that the absence of a record of offences is a bona fide qualification for the job. A similar provision in Quebec legislation was considered by the Supreme Court in the decision of Montreal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698, discussed further below.

[57] As this summary shows, the legislative history of s. 6.1 of the CRA does not support the broad interpretation of its purpose and effects that the appellant proposes.

[58] Case law interpreting the scope of s. 6.1 of the CRA and parallel provisions related to pardons also supports a narrower purpose and effect of s. 6.1 than the appellant proposes. In particular, the case law demonstrates that a discharge does not remove the underlying finding of guilt.

[59] Two Supreme Court of Canada decisions have considered issues relevant to the interpretation of s. 6.1 of the CRA: Montreal (City) and Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3. Montreal (City) concerned the interpretation and scope of s. 6.1 of the CRA. Therrien considered the closely related issue of the effect and scope of a pardon granted under the CRA.

[60] Montreal (City) involved an individual who applied for employment as a police officer. The applicant had previously been found guilty of theft in a summary conviction proceeding, and was granted a conditional discharge. Her application was rejected on the basis that she did not satisfy the “good moral character” requirement under provincial legislation because of the finding of guilt for which she had received a discharge.

[61] I pause to underline, and I will return to this, that the question the potential employer, the Montreal police service, was required to consider was whether the finding of guilt for which a discharge was granted reflected adversely on the individual’s “moral character.” The individual filed a complaint under s. 18.2 the Quebec Charter of human rights and freedoms, C.Q.L.R. c. C-12, which prohibits employment discrimination on the basis of a conviction for a criminal offence, inter alia, if the person has been pardoned. The central issue before the Supreme Court concerned the interpretation of the Quebec Charter of human rights and freedoms, but in the course of its analysis, the Court also considered the effect of a discharge and s. 6.1 of the CRA.

[62] Justice Deschamps, writing for the majority, held that once the statutory time has run under s. 6.1 of the CRA, a discharge has the same effects as a pardon, outlined in s. 5 of the CRA (now s. 2.3 of the CRA in relation to the effect of a “record suspension”). These effects include that the conviction should no longer reflect adversely on the person’s character, that records of the conviction be kept separate and apart, and that most disqualifications under federal law are removed: Montreal at paras. 14-21. She summarized this effect as being to remove as completely as possible, the effects of the conviction.

[63] But having said that, Justice Deschamps was clear that the effect of a discharge is not absolute. I reproduce the comments of Justice Deschamps at paragraphs 20, 24, and 27-29:

[20] As Gonthier J. noted in Therrien, the use of the conditional in s. 5(a)(ii) is significant. A pardon does not have an absolute effect and does not erase the past. Neither a discharge nor a pardon allows a person to deny that he or she was found guilty of an offence (Therrien, at paras. 116 and 122). The facts surrounding the offence did occur, but the pardon helps obliterate the stigma attached to the finding of guilt. Consequently, when the time period provided for in the CRA elapses or a pardon is granted, the opprobrium that results from prejudice and is attached solely to the finding of guilt must be resisted, and the finding of guilt should no longer reflect adversely on the pardoned person’s character. It must be presumed that the person has completely recovered his or her moral integrity.

[24] Being of good moral character and not having a criminal record are separate criteria and are treated as such in the Police Act and the By‑law respecting standards for hiring. They are governed by separate paragraphs. If, as the appellant argues, the facts giving rise to a conviction can on their own be used to reject a candidate for not being of good moral character, this would mean that the provisions concerning a criminal record are redundant. On the other hand, to accept the respondent’s argument that the facts giving rise to a conviction may not be considered in assessing whether a candidate is of good moral character would mean that a pardon would not only restore the convicted person’s reputation but would also erase the past, which is not the case.

[27] Indeed, the fact that a candidate’s good moral character, and thus his or her entire file, is considered does not justify a decision that is inconsistent with the fact that the candidate has been pardoned. A conviction or, in the case of a discharge, a finding of guilt “should” no longer reflect adversely on a person’s character following a pardon. The positive effect of a pardon as it reflects on a person’s character may, however, be countered by adducing evidence of delinquent behaviour or of facts indicating a lack of probity, although this evidence cannot be limited solely to the finding of guilt.

[28] To justify an objection based on moral character, the employer’s inquiry must uncover conduct or facts that, when considered in light of the circumstances in which the person committed the crime for which the pardon was obtained, support a conclusion that this person is unfit for the job. The employer must show that the decision was not based on the mere fact of the finding of guilt.

[29] Thus, the facts giving rise to a finding of guilt can be helpful in showing that a person is unfit for service as a police officer. In this context, the facts considered at the time the finding of guilt was made may reveal deficiencies that are relevant to the decision the employer must make. The Commission’s position — which, I should add, the Court of Appeal endorsed (paras. 58‑59) — that the facts giving rise to a finding of guilt may not be considered in deciding whether a candidate meets the good moral character criterion provided for in the By‑law respecting standards for hiring must therefore be rejected. [Emphasis added.]

[64] Therrien involved a provincially appointed judge who had not disclosed on his application for judicial appointment that he had been previously convicted of a criminal offence for which he was subsequently pardoned under the CRA. The non-disclosure became the subject of a judicial conduct complaint and inquiry. A committee of inquiry of the Quebec Conseil de la magistrature found that the non-disclosure of the criminal conviction for which a pardon had been granted was grounds for removal from office, and recommended that the Minister of Justice initiate the judge’s removal from office.

[65] The issue before the Supreme Court that is relevant to this appeal was whether the effect of the pardon was such that the judge in the judicial application could deny his criminal record and answer “no” to the question asking whether he had ever been in trouble with the law. The Supreme Court held that the effect of a pardon under the CRA is not so broad as to permit the “no” answer. Justice Gonthier, writing for the Court, held that an objective analysis of the CRA does not support the proposition that it retroactively wipes out a conviction. It does not make the past go away, but it minimizes future consequences of the conviction: see generally at paras. 115-127. In particular, at para. 116, he held:

[116] …In and of themselves, these provisions do not persuade me that the pardon can operate to retroactively wipe out the conviction. Rather, they are an expression of the fact that it still exists, combined with a desire to minimize its future consequences. Section 5(a)(ii) C.R.A. provides that the pardon is evidence that “the conviction in respect of which the pardon is granted or issued should no longer reflect adversely on the applicant’s character” (emphasis added), implying that it still exists and could so reflect. Second, the effects of the pardon are limited to the legal disqualifications created by federal statutes or the regulations thereunder and therefore exclude all the post-sentence consequences provided in provincial legislation, which also suggests that the pardon has only limited effect. Third, the information contained in the criminal record is not destroyed but is kept separate and apart, whence it may re-emerge should the pardoned person subsequently be no longer of good conduct.

[66] Thus, the Supreme Court jurisprudence regarding the interpretation of s. 6.1 of the CRA and the effect of a discharge, as well as the related issue of the effect of a pardon under the CRA, draws a distinction between the discharge (or conviction in the case of a pardon) and the underlying factual finding of guilt. The underlying finding of guilt is not removed by the discharge. Further, the scope of restrictions in the CRA on the disclosure or use of a discharge after the statutory time has run (one year for an absolute discharge and three years for a conditional discharge) is limited to restrictions on disclosure by federal departments or agencies. And restrictions on disqualifications imposed as a result of a conviction or discharge are limited to disqualifications under federal statutes or regulations.

[67] I also underline the focus in both Montreal and Therrien on a discharge or a pardon removing the effect on a person’s character. Much of the appellant’s position on the constitutional issue in the immediate case is based on the premise that s. 51(1)(a) of the Code is concerned with the character of a health professional who a regulatory college seeks to prosecute for professional misconduct relying on a finding of guilt relevant to the member’s suitability to practise. With respect, I find that to be an erroneous approach to the interpretation of s. 51(1)(a) of the Code.

[68] Section 51(1)(a) is not concerned with the character of a member of a regulated profession. Rather, it is concerned with the nature of the offence that a member was found guilty of, and whether the nature of the offence is relevant to the member’s suitability to practise. The fact that a person has been found guilty of an offence may or may not also reflect on member’s character (depending on the offence, and on factors such as the passage of time, and the member’s efforts at rehabilitation). But character is not the concern of s. 51(1)(a) of the Code.

[69] I turn then to jurisprudence interpreting the scope of s. 6.1 of the CRA in other courts.

[70] A central thrust of the appellant’s submission about the breadth of s. 6.1 of the CRA and the impact of being granted a discharge is based on the decision of the Ontario Court of Appeal in R. v. Montesano, 2019 ONCA 194, 145 O.R. (3d) 474.

[71] This court is, of course, bound by decisions of the Ontario Court of Appeal, to the extent that the holding in a Court of Appeal decision is applicable to the circumstances in a case before this court. As I will explain, I do not accept the appellant’s submission about the breadth of the Court of Appeal’s holding in Montesano.

[72] In Montesano, the Ontario Court of Appeal considered the issue of whether a sentencing judge could consider a previous absolute discharge granted to an offender as relevant to sentencing on a new offence, more than one year after the previous absolute discharge had been imposed. The Court of Appeal held that s. 6.1(1) of the CRA prevents the disclosure of the existence and fact of the previous absolute discharge to anyone beyond one year after it was imposed, unless prior approval of the Minister of Public Safety and Emergency Preparedness is obtained. Therefore, the sentencing judge was not permitted to take the discharge into account. However, the Crown was entitled to put before the court the factual reality that the offence on which the offender was being sentenced was not the first incident.

[73] Because of the centrality of Montesano to the appellant’s submissions, I reproduce the relevant passage:

[9] In our view, the language of the provision is plain. Section 6.1(1)(a) of the CRA precludes the disclosure not only of the record, but also of the existence and fact of an absolute discharge beyond one year following its imposition, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained.

[10] The time-limited relevance of discharges may be contrasted with the treatment of record suspensions under s. 7.2 of the CRA. Unlike absolute discharges, which may be considered without ministerial approval only for a period of one year after imposition, record suspensions are automatically revoked upon a subsequent conviction, whenever it occurs, and so may be disclosed without approval.

[11] The prohibition on disclosure of discharges is complete. Section 6.1(1)(a) of the CRA precludes disclosure not to selected persons but to any person. It is of no moment whether the record remains in provincial record bases; it cannot be disclosed without the minister’s prior approval, and that approval was not obtained in this case prior to sentencing by the trial judge. The appeal judge properly concluded that the trial judge erred in considering the respondent’s absolute discharge, although the Crown was entitled to put before the court “the factual reality that the incident on which there has been a plea is not the first incident”.

[74] The appellant submits that Montesano stands for the proposition that s. 6.1 prohibits the disclosure by any person of a discharge and the finding of guilt underlying it, and the use of the finding of guilt for any purpose, after the statutory time period has run.

[75] I disagree. There are several problems with the appellant’s submission in relation to the scope of the Court of Appeal’s holding in Montesano. First, if Montesano held that s. 6.1 of the CRA prevents disclosure of the facts underlying a discharge by any person and use of the finding of guilt for any purpose, it would be inconsistent with the decisions of the Supreme Court in Montreal and Therrien, which clearly allow some scope for use of the facts underlying an offence for which a discharge was granted after the statutory time has run, and for the use of the facts underlying a conviction after a pardon has been granted. I would not interpret the Court of Appeal’s decision in Montesano as being inconsistent with these Supreme Court authorities.

[76] Second, Montesano itself allows for the use of “the factual reality that the incident on which there has been a plea is not the first incident”: at paras. 11 and 27. In other words, Montesano appears to draw the same distinction drawn in Montreal between the facts underlying the offence for which a discharge was granted, and the discharge itself, in order to allow some use of the past finding of guilt in a subsequent criminal sentencing.

[77] Third, although I accept that Montesano may appear to interpret the effect of s. 6.1 as applying to some extent to provincial entities (the provincial Crown that prosecutes federal criminal law, and the police that investigate federal criminal law), I find that that interpretation does not extend to prevent a professional regulatory college acting under provincial law from relying on a finding of guilt where a discharge was imposed as a basis for a professional misconduct proceeding.

[78] It is not necessary, in order to decide the division of powers issue in this appeal, to assess the scope of the Court of Appeal’s ruling in Montesano to all potential circumstances; it suffices to decide whether the decision in Montesano applies to the circumstances of this appeal. The reasons in Montesano on the issue of the effect of s. 6.1 of the CRA are quite brief. As I read the decision in Montesano, there appear to be two bases for the holding that s. 6.1 applies to prevent the use of the prior discharge on a subsequent sentencing after the statutory time period has run (either of which would be sufficient to reach the conclusion the Court of Appeal reached).

[79] One reason, as held in Therrien and Montreal, is that one of the effects of a pardon (now a records suspension) and a discharge is to remove most disqualifications to which a person is subject under any federal law or federal regulation by reason of conviction (previously s. 5(b), now s. 2.3(b)). In Montesano, the sentencing in which the discharge was sought to be used was conducted under federal law, the Criminal Code.

[80] A second reason is the practical reality that, for purposes of prosecuting criminal offences, the provincial Crown and municipal and provincial police services are so closely linked to records in relation to investigation, conviction, or discharge, that the effect of s. 6.1 of the CRA would be severely undermined if local records held by the Crown and/or the police could be used in a subsequent criminal proceeding, after the statutory time in s. 6.1 had run (and without obtaining consent of the Minister).

[81] As I have noted, it is not necessary to assess the full scope of the Court of Appeal’s holding in Montesano to decide this appeal. Neither of the explanations for the holding in Montesano that I have just outlined supports applying it to prevent a regulatory college acting under provincial legislation from being permitted to rely on the facts underlying a finding of guilt where a discharge was imposed as the basis for a professional misconduct prosecution

[82] Further, neither s. 6.1 nor Montesano provide any support for the proposition that when a third party (not the police or the Crown) has obtained documents relating to a criminal finding of guilt within the one-year or three-year statutory time period for an absolute or conditional discharge respectively, those documents can be clawed back, or become inadmissible in evidence or otherwise unusable by the third party.

[83] At most, Montesano may create a practical hurdle for regulatory colleges (and others) in that if they do not investigate in a timely way, and obtain court records in situations where a discharge was imposed before the one-year or three-year time period has run for an absolute and a conditional discharge respectively, they may be faced by a refusal of the Crown and/or the police to provide records based on s. 6.1 of the CRA. However, that issue is not before the court in this appeal, and we refrain from ruling on it. In this case, the College received both the criminal court information and the transcript of the guilt plea proceedings prior to one year elapsing after the absolute discharge was imposed on Dr. Jha.

[84] Trial level decisions interpreting s. 6.1 of the CRA and the CRA provisions respecting pardons in other contexts also support the proposition that it has a narrower purpose and scope than the one the appellant proposes. None of these decisions are binding on this court, but I find them to be persuasive regarding the scope of s. 6.1 of the CRA, particularly in light of the text and legislative history that I have outlined above.

• Jay v. Hollinger, 2002 BCSC 23, 97 B.C.L.R. (3d) 130, involved a production motion in a defamation action where the plaintiff, a political candidate, sued the defendant for reporting that he had pled guilty to assault and received an absolute discharge some years earlier. The British Columbia Supreme Court held that s. 6.1 of the CRA did not prevent the plaintiff from being required to produce a copy of his criminal record in the discovery process. In so holding, the court stated that the CRA did not constitute “a hermetic system shielding the fact of a finding of guilt and discharge from the world at large for all purposes” (at paras. 24-26). This decision was recently cited with approval in Schuetze v. Pyper, 2021 BCSC 2599 at paras. 28-33.

• In Kripp v. Standard Life Assurance Co., 2004 MBQB 51, 181 Man. R. (2d) 191, the plaintiff alleged that the Manitoba Securities Commission had breached the CRA by disclosing a record of conviction for which he had been pardoned. The Manitoba Court of Queen’s Bench held that the securities commission, a provincial regulatory body, was not subject to the CRA. The court further held that although the CRA removed disqualifications resulting from conviction under federal legislation, it did not extend to provincial legislation. Further, the CRA did not purport to restrict information already in the public domain (at paras. 61-63, 66).

• In R. v. Fells, 2003 31609 (Ont. S.C.), the Ontario Superior Court set aside a guilty plea by a defendant who was a nurse on the basis that she had not understood at the time of the plea that a discharge may still be retrievable from provincial databases, or be required to be disclosed in the employment context in some circumstances.

• In R. v. R.Z., 2016 ONCJ 438, 100 M.V.R. (6th) 143, a provincial court judge imposing sentence for an impaired driving offence held that the effect of a pardon under the CRA was that he could not consider prior convictions for similar offences for which pardons had been granted on sentencing. However, he held that the CRA did not prevent the provincial ministry of transportation from keeping records of pardoned offences relevant to driving for purposes of highway safety. He reached this conclusion because the CRA “clearly sets out its mandate is for federal matters only and does not prevent provincial and municipal record keepers from utilizing the pardoned offences.”

[85] One final authority is of assistance. In Giffen v. Ontario (Minister of Transportation), 2013 ONSC 7461, 118 O.R. (3d) 449 (Div. Ct.), this court considered whether s. 82(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1, was in conflict with provisions of the provincial Highway Traffic Act, R.S.O. 1990, c. H.8, allowing for suspension of driver’s licenses based on a criminal conviction. The issue was raised as an issue of federal paramountcy, as in this appeal. The applicant alleged that the provincial legislation conflicted with the confidentiality provisions of the YCJA, because it allowed provincial transportation authorities to use information obtained under the YCJA after the expiry of the record access period permitted under the YCJA. This court upheld the validity of provincial legislation allowing for a driver’s license suspension based on a criminal conviction under the YCJA, and held that provincial authorities could continue to use the information for highway safety purposes even after the expiry of the YCJA record access period. In reaching this decision, the court relied in part on the well-established principle of constitutional law that courts should seek to interpret federal and provincial legislation so as to avoid conflict: Giffen at paras. 34-40.

[86] I find that the analysis in Giffen closely parallels the issue in this case. The federal legislation in Giffen provided that after a period of time youth records of findings of guilt for criminal offences were no longer to be accessible, similarly to s. 6.1 of the CRA. Indeed, s. 82(1) of the YCJA contains even stronger language, stating that after the expiry of the access period, a young person “is deemed not to have been found guilty or convicted of the offence”. In Giffen the court also found, similarly to my finding about s. 6.1 of the CRA above, that to the extent that s. 82 of the YCJA makes its scope explicit in the text of the provision, it only references areas under the jurisdiction of the federal government. And the court in Giffen reached a conclusion parallel to the conclusion that I reach in this case, that the federal and provincial provisions can co-exist without conflict.

[87] Thus, the jurisprudence does not support the broad interpretation of s. 6.1 of the CRA that the appellant proposes.

(d) The Appellant’s proposed interpretation of the scope and purpose of s. 6.1 of the Criminal Records Act would lead to absurd results

[88] Another factor that supports a narrower interpretation of s. 6.1 than that proposed by the appellant is that the interpretation he proposes leads to an absurd result of unnecessarily requiring relitigation of facts already found in a proceeding to which the appellant (or any member of a professional health college) was a party.

[89] The Discipline Committee correctly observed that the purpose of the provincial legislation at issue, s. 51(1)(a) of the Code, is to allow a regulatory College to proceed with a professional misconduct allegation based on a finding of guilt of an offence by a court (in this case of a criminal offence) without having to “prove the facts anew.” In other words, s. 51(1)(a) is designed to prevent relitigation of facts already found by a court on which the finding of guilt of the offence was based. This legislative policy of the provincial legislation is consistent with the important principle in our legal system of finality of litigation in general, and factual findings in particular: Toronto (City) v. CUPE, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77.

[90] The appellant’s broad interpretation of the scope of s. 6.1 of the CRA would require that a professional regulator relitigate the facts underlying a finding of guilt of a criminal (or other) offence. The appellant concedes that s. 6.1 would not prevent a health regulatory college from proceeding with allegations of professional misconduct about the same subject matter as a criminal finding of guilt (here the assault and mischief to property in a domestic violence context). But the appellant’s position is that such a prosecution would have to be brought under s. 51(1)(c) of the Code, “an act of professional misconduct as defined in the regulations”, and the categories of misconduct defined in the regulation as “an act or omission relevant to the practice of medicine that, having regarding to all of the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional” or “conduct unbecoming a physician”: Professional Misconduct, O. Reg. 856/93, s. 1(1)33 and 34.[^4] Thus, the effect of the broad interpretation of s. 6.1 of the CRA proposed by the appellant would be to require relitigation of facts already found by a criminal (or provincial offences) court.

[91] The absurdity that would result from the broad interpretation of the purpose and effects of s. 6.1 of the CRA proposed by the appellant is a factor that supports a narrower interpretation (which, as I have noted, is also more consistent with the text of s. 6.1, its legislative history, and prior jurisprudence interpreting it). As I have outlined above, modern division of powers jurisprudence cautions courts to avoid interpretations that create conflict between laws when the laws can reasonably be interpretated harmoniously and in a manner that allows both federal and provincial laws to operate.

Section 51(1)(a) of the Code is not in operational conflict with s. 6.1 of the CRA nor does it frustrate the purpose of the CRA, as applied to a finding of guilt where a discharge was granted

[92] In light of the interpretation of the purpose and effect of s. 6.1 of the CRA set out above, there is no division of powers issue with applying s. 51(1)(a) of the Code to a criminal finding of guilt where a discharge was granted, after the statutory time has run. Section 6.1 of the CRA does not extend to preventing a provincial regulator, acting within its public protection mandate, from pursuing professional misconduct proceedings under s. 51(1)(a) of the Code based on a finding of guilt made by a criminal court where a discharge was imposed, rather than being required to relitigate the facts.

[93] Because the purpose and effect of s. 6.1 of the CRA do not extend to prohibiting disclosure or use of records relating to findings of guilt where a discharge was granted which are in the hands of private parties, provincial entities,[^5] or entities regulated under provincial law, there is no operational conflict or frustration of purpose created by the application of s. 51(1)(a) of the Code to ground a professional misconduct prosecution based on a finding of guilt for a criminal offence for which a discharge was granted, after the statutory time period has run.

[94] Absent clear language, the mere existence of federal legislation in an area such as criminal records does not mean that Parliament intended to occupy the field to the exclusion of provincial law. Both Parliament and provincial legislatures may adopt valid legislation involving overlapping subject matter, such as civil and criminal consequences of a finding of guilt.

[95] The appellant’s constitutional argument fails because it is premised on an interpretation of s. 6.1 of the CRA which overshoots its scope, yields absurd results, and is not supported by the text, legislative history, or judicial interpretation of s. 6.1 of the CRA. There is no operational conflict between s. 51(1)(a) of the Code and s. 6.1 of the Criminal Records Act. Nor does s. 51(1)(a) frustrate the purpose of s. 6.1 of the Criminal Records Act when applied to facts found in a criminal court which led to the imposition of a discharge.

[96] The Discipline Committee committed no error in finding that s. 51(1)(a) of the Criminal Code is constitutional, and can be applied in circumstances where a discharge was imposed pursuant to s. 730 of the Criminal Code.

Did the Discipline Committee err in admitting into evidence the criminal information and the transcript of the guilty plea and finding of guilt on the liability portion of the hearing?

[97] The appellant submits that the Discipline Committee erred in law in admitting the criminal information and the transcript of the guilty plea and finding of guilt on the basis of issue estoppel. The appellant submits that the Committee’s decision in the alternative that the documents were admissible pursuant to s. 5(2) of the Ontario Evidence Act, R.S.O. 1990, c. E.23, and the doctrine of exemplification was also in error. The appellant submits that s. 6.1 creates a complete ban on the disclosure of the record of existence of a discharge after the statutory period has run, including before a court or tribunal, except where prior approval of the Minister is obtained. As the one-year period applicable to an absolute discharge had expired prior to the discipline hearing, and consent of the Minister was not obtained, the appellant submits that the criminal information and the transcript were inadmissible.

[98] The respondent submits that the Discipline Committee correctly concluded that the criminal information and the transcript of the guilty plea and finding of guilt were admissible under s. 5(2) of the Evidence Act and the common law as the best evidence of what occurred in court, including the fact that the appellant was found guilty of assault and mischief. The respondent submits that, properly interpreted, s. 6.1 of the CRA does not prohibit the admission of this evidence of the fact of the criminal finding of guilt against the appellant in a professional discipline proceedings conducted under provincial law.

[99] The parties agree, as do I, that the correctness standard applies to the issue of the legal question of the admissibility of the criminal information and the transcript of the guilty plea and finding of guilt on the liability portion of the hearing.

[100] For the sake of clarity, I point out that the criminal information and the transcript of the guilty plea and finding of guilt filed with the Discipline Committee were redacted by the agreement of counsel. Those redactions are not in issue in the appeal.

[101] The parties agree that, subject to the issue of the effect of s. 6.1 of the CRA, the documents at issue were admissible pursuant to ss. 5(2) of the Evidence Act, and the common law doctrine of exemplification. The issue the appellant raises is whether s. 6.1 of the CRA effectively overrides the ordinary rules of evidence.

[102] The substance of the appellant’s submission on the admissibility issue is essentially the same as his submission that s. 51(1)(a) of the Code is unconstitutional on division of powers grounds. The appellant submits that s. 6.1 of the CRA creates “a complete ban” on disclosure of the record or existence of a discharge once the statutory period has run, unless the prior approval of the Minister of Public Safety and Emergency Preparedness is obtained.

[103] I reject the appellant’s submission for the same reason that I reject his division of powers argument – it overshoots the purpose and scope of s. 6.1 of the CRA. Section 6.1 does not bar admissibility of a finding of guilt for which a person was discharged at the behest of all persons and for all purposes. Rather, s. 6.1 restricts disclosure of the fact of and records relating to a discharge by federal departments and agencies, and the CRA more generally removes most disqualifications under federal legislation or regulations for a person who receives a discharge, once the statutory time has run.

[104] Section s. 6.1 of the CRA does not prevent a professional regulator acting under provincial law from relying on a finding of guilt of a criminal offence for which a discharge was granted after the statutory time has run. The criminal information and the transcript of the guilty plea and finding of guilt were properly admitted into evidence at the discipline hearing.

[105] As I have noted above, the appellant also submits that the panel of the Discipline Committee which considered the merits of the professional misconduct allegation and ruled on the admissibility issue erred on finding that it was estopped by the prior finding of the panel of the Committee that decided the constitutional issue.

[106] It is not necessary for this court to rule on whether the Discipline Committee erred in finding that it was estopped by the finding of the different panel of the committee on the preliminary constitutional issue. Despite its conclusion that it was estopped by the decision of the panel that heard the preliminary motion, the panel of the Discipline Committee that decided the admissibility issue went on to consider the admissibility issue on the merits. As I have just outlined, its conclusion that the criminal information and the transcript of the guilty plea proceedings were admissible is correct.

[107] For these reasons, the Discipline Committee did not err in law in admitting into evidence the criminal information and the transcript of the guilty pleas and finding of guilt on the liability portion of the hearing.

Did the Discipline Committee err in finding that Dr. Jha’s criminal findings of guilt are relevant to his suitability to practise medicine within the meaning of s. 51(1)(a)?

[108] The appellant submits that the Discipline Committee erred in finding that the criminal findings of guilt against him were offences that are “relevant to [his] suitability to practise” within the meaning of s. 51(1)(a) of the Code. He submits that the Committee held that a criminal finding of guilt for assault will always be relevant to a member’s suitability to practise, and thereby fettered its discretion, and did not engage in an analysis of whether the underlying facts of the specific criminal findings of guilt against him were relevant to his suitability to practise. He submits that there is no factual or other connection between the findings of guilt and the practise of medicine. This submission has a number of parts, including that the submission that a regulatory college “has no power to police the morality of its members”; that the criminal findings of guilty did not involve the appellant’s workplace, staff, patients, or medical issues; that the absolute discharge eliminates the implications of the criminal findings of guilt on the appellant’s character; and the assertion that due to the passage of time, the criminal findings of guilt no longer reflect poorly on the appellant’s character.

[109] The respondent submits that the Discipline Committee did not err in finding that the criminal findings of guilt for offences of domestic violence were relevant to the appellant’s suitability to practise. The respondent submits that the Discipline Committee properly examined the underlying facts of the specific criminal findings of guilt of the appellant in concluding that he had been found guilty of offences relevant to his suitability to practise. The respondent further submits that criminal findings of guilt for offences of domestic violence are relevant to suitability to practise and are properly within the scope of professional discipline.

[110] With respect to the standard of review, the appellant submits that the correctness standard applies because it involves the interpretation of the meaning of “relevant to the member’s suitability to practise” in s. 51(1)(a).

[111] The College submits that the standard of review is palpable and overriding error, because the issue of whether a member of the College has been found guilty of an offence that is “relevant to the member’s suitability to practise” is a question of mixed fact and law.

[112] I agree with the College that the issues raised by the appellant in this ground are issues of mixed fact and law. The issues raised by the appellant challenge the Committee’s assessment of relevance of the finding of guilt to his suitability to practise, not the legal interpretation of s. 51(1)(a) of the Code. Thus, the standard of review is palpable and overriding error.

[113] I reject the appellant’s submission that the Discipline Committee erred in finding that the criminal findings of guilt against him for offences of domestic violence are relevant to his suitability to practise.

[114] I begin by observing that this is an issue of mixed fact and law, closer to the factual end of the spectrum. It is not this court’s role on appeal to revisit facts found by a regulatory tribunal, absent a showing of palpable and overriding error. Further, whether a criminal finding of guilt (or another act under another head of professional misconduct) is relevant to a member’s suitability to practise or relevant to the practise of medicine it is a question that is within the expertise of the Discipline Committee of the College (and of any health professions college), a tribunal which in this case had two out of the four members who are members of the medical profession: Al-Ghamdi v. College of Physicians and Surgeons of Alberta, 2020 ABCA 71, 6 Alta. L.R. (7th) 42 at para. 10; Re: Matthews and Board of Directors of Physiotherapy (1987), 1987 4372, 61 O.R. (2d) 475 (C.A.) at para. 3.

[115] A central thrust of the appellant’s submission that the criminal findings of guilt are not relevant to his suitability to practise is based on his assertion that they happened “in his private life” and were “a private matter” (as it was put by counsel in oral submissions). The appellant asserts that a professional regulatory college has “no power to police the morality of its members”.

[116] Respectfully, this submission misconstrues the issue, and is inconsistent with well-established authority about the purpose and scope of professional regulation.

[117] The purpose of professional regulation is not to “police the morality” of members of a profession. Rather, the purpose of professional regulation is to maintain professional integrity and professional standards. The purpose of professional discipline proceedings it is to “exercise disciplinary power over members of a profession so as to ensure that their conduct conforms to the standards of the profession”: R. v. Wigglesworth, 1987 41, [1987] 2 S.C.R. 541, at pp. 560, 565-566 (quoting from The Doctrine of Res Judicata at p. 566).

[118] It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 1694 (ON SC), 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 219.

[119] The degree to which a member’s conduct outside of conduct at their workplace, involving co-workers, or (in the case of medicine) patients, may be the subject of professional discipline proccedings is not limitless. But as I will explain, I find no error in the Discipline Committee’s finding, grounded in the record before it, that the criminal findings in this case are relevant to the appellant’s suitability to practise.

[120] Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays “poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values” characteristic of health professions: College of Nurses of Ontario v. Soriano, 2016 102074 (C.N.O.) at pp. 2-3, 4; College of Physicians and Surgeons of Ontario v. Lian, 2013 ONCPSD 1 at pp. 5-6; College of Physicians and Surgeons of Ontario v. Prebtani, 2005 ONCPSD 26 at pp. 3-4; College of Physicians and Surgeons of Ontario v. Sidhu, 2002 ONCPSD 41 at pp. 3-4, 20-21; Ontario (College of Physicians and Surgeons of Ontario) v. Shamji, 2020 ONCPSD 26 at p. 12; College of Nurses of Ontario v. Hough, 2016 152838 (C.N.O.); College of Nurses of Ontario v. Sondy, 2012 98101 (C.N.O.); see also Law Society of Upper Canada v. Kumarasamy, 2015 ONLSTH 52 at para. 6.

[121] Some of these decisions also find that the conduct is relevant to a member’s suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.

[122] Ultimately, although this court has supervisory jurisdiction through appeals under s. 70 of the Code, the Discipline Committee is best placed to assess whether any particular criminal findings of guilt against a member are relevant to that member’s suitability to practise. The Discipline Committee’s findings on this issue are entitled to significant deference.

[123] I find that the Discipline Committee appropriately considered the full factual context in finding that the criminal findings of guilt were relevant to the appellant’s suitability to practise medicine. I accept, for purposes of considering the appellant’s submission on this issue, that in assessing whether a criminal finding of guilt is relevant to suitability to practise, a discipline committee must consider the particulars of the finding.[^6] I find that the Discipline Committee did exactly that in this case.

[124] I reproduce several paragraphs of the Committee’s reasons, which show the general approach of their analysis (although the full analysis is longer):

Dr. Jha has been found guilty of an offence, specifically assault. Not all criminal offences will be relevant to the practice of medicine. Dr. Jha submits that the conduct did not occur with a patient or in a patient setting and therefore is a private matter. He submits the Discipline Committee cannot make a finding of professional misconduct even in the face of the finding of guilt of a criminal offence, because the offence does not relate to Dr. Jha’s suitability to practise medicine. The Committee does not agree. A finding of assault is relevant to the practice of medicine. Physicians must be able to control their anger and emotions. Physicians are expected to be able to maintain calm and be effective in situations of extreme stress. It is unacceptable to resort to violence. Physical violence is antithetical to the role of a physician.

Dr. Jha kicked his intimate partner in a jealous rage repeatedly and only relented when she showed him her phone. He again, two days later, became angry enough this time to violently damage her property. A physician may very well be called upon to treat a patient subjected to domestic violence and must be able to be sympathetic to their concerns in addition to treating the potential physical injuries sustained in an assault. When presented with patients with injuries a physician must be attuned to the possibility of domestic violence, be sensitive to such issues, and be approachable and open to disclosure from victims of abuse. One can certainly envision that a patient may be reluctant to disclose abuse to her doctor if she knew he had been found guilty of assaulting his common law partner.

Physicians are leaders in the community and must be seen to be leaders. They are held to a high standard, as people in a position of trust and power, to uphold the law and not assault people, especially their domestic partners. They must uphold the basic tenets of the profession and be seen to uphold them, especially to do no harm. Physicians are teachers, imparting knowledge to patients at all times, and leading by example. One’s private behaviour may influence the way in which one and the whole profession is perceived by the public. Assault in any setting will have an impact on the reputation of the physician and the profession as a whole.

Violent assault especially in the context of an intimate partner relationship is very concerning to the Committee. We must consider suitability in the broad sense of the word to ensure protection of the public. It is essential that members uphold the core values of the profession both in professional and private settings with conduct that does not betray the values the public and the profession expects of [a] physician: respect, compassion, integrity, humility and professionalism.

[125] Elsewhere in their reasons, the Discipline Committee addressed the passage of time since the offences had been committed, and whether the fact that the appellant was granted a discharge removed the findings of guilt from being relevant to the appellant’s suitability to practise.

[126] The Committee was alive to both the fact that the criminal findings of guilt did not involve conduct in the workplace or with co-workers or patients, and to the passage of time since the criminal findings of guilt. The Committee considered these factors within the full factual context of the record before them.

[127] I find that the Discipline Committee committed no error in finding that the criminal findings of guilt are relevant to the appellant’s suitability to practise. The Committee considered the full factual context based on the record before it. It clearly explained why it found that the criminal findings of guilt were relevant to the appellant’s suitability to practise. That finding was informed by Committee members’ expertise about the practise of medicine, what is relevant to the practise of medicine, and the role of protection of the public and maintaining public confidence in the profession in a self-regulated profession.

[128] I also reject the appellant’s submission that the effect of the discharge was “to eliminate any implications for [his] character”. Again, I find that this submission misconstrues the issue. The issue is not the appellant’s character. Rather, the issue is whether the offences he had been found guilty of (viewed in the whole factual context) are relevant to his suitability to practise. The assessment under s. 51(1)(a) of the Code is not an assessment of a member’s morality or character. It is an assessment of whether the offence or offences of which they have been found guilty, taken in the whole factual context of the record, is relevant to their suitability to practise. That assessment is made in the context of the purpose of professional discipline proceedings which I have outlined above – to maintain the integrity of the profession, and to ensure that members of the profession are accountable to the profession to uphold its core values.

[129] In sum, I find no error in the Discipline Committee’s finding that the criminal offences that the appellant was found guilty of are relevant to his suitability to practise.

Did the Discipline Committee err in principle with respect to penalty or impose a clearly unfit penalty?

[130] Dr. Jha alleges three errors with respect to penalty. First, he submits that the Discipline Committee erred in finding an absence of remorse. Second, he submits that the Discipline Committee erred by treating his decision to have a hearing and to require the College to prove its case against him as an aggravating factor on penalty. Third, he submits imposing a three-month suspension from practise was unfit when compared to penalties for similar cases. He submits that only a reprimand should have been imposed. I reject each of these submissions.

[131] As noted above, a penalty or disposition imposed by a regulatory tribunal will not be overturned unless the decision-maker made an error in principle or the penalty or disposition was “clearly unfit.” The parties do not contest the standard of review in relation to penalty.

[132] In the criminal law context, case law in relation to a similar appellate standard of review describes the threshold for appellate intervention as a requirement to show that a sentence is: “demonstrably unfit,” “clearly unreasonable,” “clearly or manifestly excessive,” “clearly excessive or inadequate,” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold also applies in the administrative law context. To be clearly unfit, a penalty or disposition must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances: College of Physicians and Surgeons v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596 at paras. 56-57.

[133] Case law also recognizes a significant level of deference to decisions of professional regulatory tribunals on issues of penalty. The Court of Appeal has recognized that discipline committees of professional regulatory colleges are “composed of members of the profession and of the public with the expertise to assess ‘the level of threat to the public and . . . the . . . profession posed by certain forms of behaviour’”: Peirovy at para. 73.

[134] To the extent the appellant argues that the Committee erred by treating the absence of remorse as an aggravating factor on penalty, I accept that is a legal issue, and is reviewable on the error in principle standard. As I explain below, I find that the Committee did not err. The balance of the issues raised by the appellant with respect to penalty relate to factual issues and the fitness of the penalty imposed, and this court would only be justified in intervening of the penalty is clearly unfit.

[135] The first issue raised by the appellant in relation to penalty is the submission that the Discipline Committee misapprehended the evidence regarding his remorse. I disagree.

[136] The Discipline Committee considered the issue of remorse. The appellant did not testify. His assertion of remorse at the penalty hearing was based on indirect evidence, including the report of Dr. Glancy, a forensic psychiatrist who had assessed the appellant.

[137] The Discipline Committee found (at paragraph 14 of the Penalty Order and Reasons) that there were inconsistencies between the version of events that the appellant provided to Dr. Glancy and the facts he admitted in the criminal guilty plea and the facts found by the Committee regarding the professional misconduct. The Committee found that in the criminal proceedings, the appellant admitted an argument took place between him and his fiancée in which he demanded to see her email account. The argument escalated, and he grabbed her by the arms, pulled her to the floor, and kicked her in the buttocks, the ribs, and the back several times. He admitted that she sustained injuries to her arms, neck, lower back, ribs, and knees. However, the Committee found that the appellant told Dr. Glancy that he was breaking the news that he wanted to end their relationship, he was trying to leave to go to the gym, and as she clung to him to prevent him from leaving, he kicked her.

[138] Based on the inconsistencies the Committee found between the two versions of events, the Committee found that “to a certain degree” Dr. Glancy’s assertion that the appellant had taken responsibility for his misconduct was undermined. The Committee found that the version of events that the appellant provided to Dr. Glancy was less violent and shifted the blame somewhat to his fiancée by suggestion that she was preventing him from leaving.

[139] I note as well that the Committee did not entirely disregard Dr. Glancy’s opinion that the appellant had taken responsibility for his actions; rather, it found that the inconsistencies between what the appellant told Dr. Glancy, and the facts admitted in the criminal proceedings affected the weight to be given to Dr. Glancy’s opinion. Further, although the Committee had concerns with respect to the evidence of remorse, it did accept that there was evidence of rehabilitation based on the reports of Dr. Glancy and of a social worker, Ms Henry, regarding counselling she had conducted with the appellant.

[140] It was open to the Committee to find on the record before it that there were inconsistencies between the appellant’s account of the assault to Dr. Glancy and the admissions made during the guilty plea in the criminal proceedings. It was also open to the Committee, having found these inconsistencies and that they appeared to shift the blame somewhat to the appellant’s fiancée, to consider the inconsistencies in its assessment of whether the appellant had shown remorse and insight into his actions. I see no basis for this court to interfere.

[141] I turn then to the second error alleged by Dr. Jha, that the Discipline Committee erred by treating his decision to have a hearing as an aggravating factor on penalty. I accept that if the Discipline Committee had treated Dr. Jha’s decision to have a hearing as an aggravating factor on penalty, that would constitute an error in principle. However, I find that the reasons of the Discipline Committee with respect to penalty are clear, indeed, express, that they did not treat the absence of remorse or the decision to have a hearing as an aggravating factor on penalty. Rather, they treated the absence of remorse as the absence of a mitigating factor in relation to penalty.

[142] This is clear from the discussion at paragraphs 25-27 of the Penalty Order and Reasons. In particular, in the context of discussing its finding that the appellant lacked insight and remorse regarding the professional misconduct, at paragraphs 25 and 27, the Committee stated:

Certainly Dr. Jha is entitled to defend himself and the fact that he did not admit the allegation is not an aggravating factor. Further, the absence of direct evidence of insight and remorse is not an aggravating factor, but it does distinguish his case from others in which insight and remorse were considered mitigating factors.

We are not suggesting that Dr. Jha was not entitled to mount a vigorous defence or that the fact that he did so is an aggravating factor. It does, however, distinguish his case from those in which the Committee found that the physician’s admissions, insight and remorse were mitigating factors.

[143] This is a correct statement of the law. The decision to having a hearing or a trial – to require the prosecution to prove its case – is not an aggravating factor on penalty or sentence. But when compared to cases where a person has pleaded guilty to professional misconduct or to a criminal offence, the person who has a trial may be found not to benefit from the mitigating effect of the remorse shown by a guilty plea: R. v. Ellacott, 2017 ONCA 681 at para. 22; R. v. R.J., 2009 ONCA 138, 246 O.A.C. 13 at para. 15; R. v. Lewis, 2021 ONCA 372 at para. 17; R. v. Pavao, 2018 ONSC 4889 at para. 85, rev’d on other grounds 2021 ONCA 527; Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.) at paras. 114-118 and 216.

[144] Although some might say that the distinction between the presence of an aggravating factor and the absence of a mitigating factor is a fine one, it is a distinction well recognized both in the professional discipline and in the criminal law context.

[145] In light of the well-accepted legal principle that the absence of remorse can be considered as the absence of a potential mitigating factor on penalty, the Discipline Committee was entitled, when assessing the range of penalty imposed in similar cases of misconduct, to find that cases where a physician had pleaded guilty to professional misconduct, and thus shown remorse, were more mitigating circumstances than the circumstances of Dr. Jha’s case.

[146] This brings me to the appellant’s third submission in relation to penalty, whether the penalty imposed was unfit when compared to penalties for similar cases. As I have noted above in relation to the standard of review for appeals in relation to penalty, an appellate court should not intervene unless the penalty is clearly unfit. The Discipline Committee of the College, and those of other health professional colleges, because of their experience and expertise, are well-situated to assess the harm to the profession, the public, and to the reputation of the profession caused by acts of professional misconduct.

[147] I find no error in the Discipline Committee’s assessment of the appropriate penalty. In its Penalty Order and Reasons, the Discipline Committee appropriately considered the facts found regarding the misconduct; the appellant’s antecedents, including the absence of any prior findings of professional misconduct; the aggravating and mitigating factors based on the record before them (including that gender-based violence was an aggravating factor, and the evidence of rehabilitation based on the reports of Ms Henry and Dr. Glancy was a mitigating factor); relevant principles with respect to penalty, including denunciation, maintaining public confidence in the profession, general deterrence, rehabilitation, and protection of the public; and the range of penalty for similar cases, and where to situate this case within that range.

[148] In particular, with respect to range of penalty, the Discipline Committee considered penalties imposed in cases involving physicians found guilty of criminal offences involving domestic violence. The Discipline Committee accepted the principle that as a matter of fairness, similar cases should be treated similarly for purposes of penalty. The penalties imposed in such cases referred to by the Discipline Committee ranged from a reprimand (and costs) to a reprimand plus a suspension of between three and six months. The Committee carefully explained, referring to relevant factors, why it found that the appropriate penalty for the appellant was a reprimand and a three-month suspension from practise. One factor the Committee appropriately placed weight on in distinguishing cases where penalties had been imposed that did not include a suspension was that lesser penalties were more commonly imposed in cases where the member had pled guilty to an allegation of professional misconduct, and thus was entitled to the mitigation that accompanies the showing of remorse through a guilty plea.

[149] I find no error with respect to the fitness of the penalty imposed. The Committee considered and weighed the relevant factors. The penalty is within the range of penalties previously imposed by the Committee where physicians were found guilty of professional misconduct for criminal offences of domestic violence. The penalty is not unfit.

Did the Discipline Committee err in granting costs to the College in relation to two days of preliminary motions?

[150] The appellant submits that the Committee erred in finding it had jurisdiction to award costs for two days of preliminary motions which were heard by a different panel of the Discipline Committee than heard the liability and penalty phases of the hearing. The appellant submits that there is no express authority in the RHPA, the Code, nor the Rules of the College for the Committee to order costs in relation to preliminary motions when they are heard by a differently-constituted panel of the Discipline Committee. The appellant submits that Committee’s reasoning that it could infer jurisdiction based on a “broad and purposive interpretation” of s. 53.1 of the Code conflicts with authority from the Divisional Court that absent specific statutory authority, an administrative tribunal cannot order costs. He relies on cases such as: see Franklin v. College of Physicians and Surgeons (2007), 2007 45406, 230 O.A.C. 206 (Div. Ct.); Persaud v. Society of Management Accountants of Ontario (1997), 1997 17789, 144 D.L.R. (4th) 375 (Ont. Div. Ct.) at paras. 27-31; Stoian v. College of Psychologists of British Columbia (1999), 1999 5990, 23 B.C.T.C. 233 (S.C.) at paras. 19-20; Anderson v. Saskatchewan Apprenticeship and Trade Certification Commission, 2019 SKQB 338 at para. 27; Birnbaum v. Institute of Chartered Accountants of Ontario (1991), 47 O.A.C. 232 (Div. Ct.) at para. 15.[^7]

[151] The appellant does not contest the daily tariff used to calculate the quantum of the costs order, which is the standard tariff set out in the Discipline Committee’s Rules of Procedure (rule 14.04(3) and Tariff A). Nor does he challenge the Committee’s exercise of its discretion to award costs in the event that this court finds that s. 53.1 of the Code allows for an award of costs for a preliminary motion. The sole issue he raises is whether the Discipline Committee had the authority under s. 53.1 of the Code to award costs of the preliminary motions when they were was heard by a different panel of the Discipline Committee.

[152] The respondent submits that the Committee was correct in concluding that s. 53.1 of the Code empowers it to order costs associated with the preliminary motions. The respondent submits that the Committee’s jurisdiction in relation to costs covers costs that precede the referral of allegations to the Committee, includes all costs, including legal costs and tribunal costs, and extends to the conclusion of the proceedings. The Committee did not err in concluding that s. 53.1 empowers it to order costs of preliminary motions as costs “incurred in conducting a hearing.”

[153] The appellant submits that the standard of review applicable to this issue is correctness on the basis that it is a question of law. The respondent submits that the standard of review applicable to this issue is palpable and overriding error on the basis that it is an issue of mixed fact and law, as well as a discretionary decision.

[154] I find that the interpretation of the scope of s. 53.1 of the Code is a question of law reviewable on the correctness standard. The appellant does not challenge the appropriateness of the costs order (which has previously been recognized by this court to be a discretionary matter: Freedman v. Royal College of Dental Surgeons (Ontario) (2001), 146 O.A.C. 157 (Div. Ct.) at para. 3). Rather, he challenges the correctness of the Discipline Committee’s legal interpretation of the scope of its power to award costs under s. 53.1.

[155] However, I reject the appellant’s submission that the Discipline Committee erred in its interpretation of s. 53.1 of the Code.

[156] Section 53.1 of the Code provides as follows:

College’s costs

53.1 In an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses:

The College’s legal costs and expenses.
The College’s costs and expenses incurred in investigating the matter.
The College’s costs and expenses incurred in conducting the hearing.

[157] I accept that a tribunal must have legal authority to award costs: see for example, Franklin, and Persaud at paras. 29 and 31.

[158] The question in this case is whether s. 53.1 of the Code provides statutory authority for a panel of the Discipline Committee that makes a finding of professional misconduct to include in a costs order under s. 53.1 costs related to preliminary motions heard by a differently constituted panel of the Discipline Committee involving the same notice of hearing.

[159] The preliminary motions for which the appellant contests the ability of the Discipline Committee to order costs after a finding of professional misconduct was made were the motion to quash the notice of hearing (and related relief) on constitutional division of powers grounds, and the motion to exclude the public from the hearing of the motion to quash, or in the alternative, prohibit publication of the appellant’s identity in relation to the motion to quash the notice of hearing.

[160] I pause to note that in substance, the preliminary motions were analogous to “pre-trial motions” in a criminal trial. I am not suggesting that the statutory framework in a criminal trial is similar. But I want to be clear that preliminary motions in this case (the constitutional motion and the motion to exclude the public or impose a publication ban on the appellant’s identity in relation to the motion to quash) related to the same allegation and the same notice of hearing, dated February 6, 2019, on which the finding of professional misconduct was ultimately made. It was an earlier step in the same hearing.

[161] The issue of the scope of s. 53.1 of the Code is a question of statutory interpretation. In accordance with the modern approach to statutory interpretation, the words of s. 53.1 must be read in context and in their grammatical and ordinary sense, harmoniously with the scheme of the regulation, its object, and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837, [1998] 1 S.C.R. 27 at para. 21.

[162] This court considered the scope of s. 53.1 of the Code in Reid v. College of Chiropractors of Ontario. At paragraph 219, the court spoke to the breadth of the authority conferred under s. 53.1 to award costs, once a finding of professional misconduct or incompetence is made:

The jurisdiction to award costs in a health professional misconduct matter is found in s. 53.1 of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18 (the “Code”). That section grants to the Panel a broad discretion to order that “in the appropriate case” the College be indemnified for not only its legal costs but for the costs incurred for both the investigation and the hearing. What is an “appropriate case” is a matter of discretion: Freedman v. Royal College of Dental Surgeons (Ontario), [2001] O.J. No. 1726 (Div. Ct.).

[163] The scope of the Discipline Committee’s authority to award costs once a finding of professional misconduct or incompetence is made is broad. The text of s. 53.1(1) to (3) speak to a broad range of types of costs, including legal costs and expenses, investigative costs and expenses, and costs and expenses of conducting “the hearing.” What the issue really comes down to in this appeal is whether preliminary motions, in this case a constitutional motion and motion for an order excluding the public or a publication ban, are part of “the hearing” for purposes of s. 53.1(3). I find that they are.

[164] I agree with the conclusion of the Discipline Committee at para. 44 of the Penalty Order and Reasons that the purpose of s. 53.1 supports interpreting the concept of “the hearing” in s. 53.1 as including preliminary motions on the same notice of hearing on which a finding of professional misconduct or incompetence is ultimately made:

According to s. 53.1, costs can only be ordered once there has been a finding of professional misconduct or incompetence. This means that the panel hearing the preliminary motions could not have made an order for costs at the time the motions were heard. We find that a broad and purposive interpretation of s. 53.1 is to provide for the recovery of costs by the College, in appropriate cases, throughout the proceedings – from investigation to disposition, once a finding of professional misconduct or incompetence has been made. It would not make sense to exclude the costs of preliminary motions from the cost recovery regime established in this section.

[165] I find that the three categories of costs and expenses listed in s. 53.1(1) to (3) make clear that the purpose of the provision is, where a finding of professional misconduct or incompetence is made, and in appropriate cases, to allow an order to be made that the member pay the College’s costs of the discipline proceeding as a whole – from investigation through to the conclusion of the hearing.

[166] In this case, the preliminary motions seeking to quash the notice of hearing on constitutional grounds and to exclude the public from the hearing of the motion or impose a publication ban on the appellant’s identity were not a separate proceeding. Had the appellant been successful in the motion to quash the notice of hearing, it would have brought the professional discipline proceedings to an end. Because the motion was unsuccessful, the professional discipline hearing continued, and ultimately, the appellant was found guilty of professional misconduct. But it was all one and the same hearing, on the same notice of hearing dated February 6, 2019. It makes no difference whether the panel was differently constituted for the preliminary motions, which were heard several months earlier, and decided three months prior to the liability phase of the hearing (one assumes for reasons of scheduling – similar to the reason that in this court criminal pre-trial motions are often heard by a different judge than the trial judge).

[167] I find that s. 53.1 of the Code gives the Discipline Committee the authority to award costs of a preliminary motion at the end of the proceeding, after a finding of professional misconduct or incompetence, whether or not the same panel of the Discipline Committee heard the preliminary motion and the liability and penalty phase of the hearing. Put simply, it is one hearing. This is clear from the fact that it all relates to the same notice of hearing.

[168] I will not address every case relied on by the appellant for his narrow proposed interpretation of s. 53.1. But I will address three of the cases for purposes of showing that the cases he cites do not support the proposition that s. 53.1 does not allow a panel of the Discipline Committee to make a costs order that encompasses a preliminary motion heard by a differently constituted panel on the same notice of hearing, after it has made a finding of professional misconduct.

[169] The leading Ontario case, Franklin, involved a situation where the Discipline Committee of the CPSO had awarded costs of as a condition of an interim decision to adjourn a hearing, pursuant to s. 16.1(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. This court held that express statutory authority is required for an administrative tribunal to order costs. The court further held that the Discipline Committee did not have jurisdiction under s. 16.1(2) of the SPPA to order costs as a condition of an interim decision regarding an adjournment. In Franklin, s. 53.1 of the Code was not available to make a costs order because the power to award costs in s. 53.1 is only triggered if the Committee finds that a member of the College has committed an act of professional misconduct or is incompetent. This court observed that s. 53.1 “deals with costs at the end of the hearing after a finding of professional misconduct or incompetence.” It is notable that Franklin did not address, because the issue was not before the court, whether College’s costs of the adjournment hearing could have been awarded under s. 53.1 of the Code at the end of the hearing, in the event that a finding of professional misconduct was made.

[170] In this case, unlike Franklin, the costs award was made at the end of the hearing, after the finding of professional misconduct had been made. Nothing in Franklin prohibits the costs order made in this case. Nothing in Franklin suggests that a preliminary motion related to the same notice of hearing is not part of the hearing for which costs can be ordered under s. 53.1 of the Code after the hearing is completed and a finding of professional misconduct made.

[171] In Persaud, this court found that a professional regulator of accountants in Ontario did not have authority to award costs after a finding of misconduct where the regulator purported to find the power to award costs in its by-laws, and where there was no statutory authority for it to impose costs. Again, that is different from this case, where s. 53.1 of the Code expressly provides the authority for the College to award costs if it makes a finding of professional misconduct or incompetence. Persaud did not address the issue raised in this case of whether a preliminary motion on the same notice of hearing is part of the hearing where there is statutory authority to award costs (here, under s. 53.1 of the Code).

[172] In the British Columbia Supreme Court decision of Stoian the court found that the governing legislation, which allowed for costs of a “hearing” to be awarded to a member of a regulatory college, did not extend to a situation where the notice of allegations was withdrawn prior to the hearing. The tribunal did not have the authority to order costs, because its authority to do so depended on there being a hearing, and there was no hearing. Stoian did not concern the issue raised in this case, which is whether a preliminary motion on the same notice of hearing constitutes part of the hearing for costs purposes. As I have outlined above, I find that it is all part of the same hearing.

[173] The bottom line is that the hearing on the constitutional issue was part of the same hearing, and in relation to the same notice of hearing, dated February 6, 2019, as the later decisions on liability and penalty. Section 53.1 of the Code provided the Committee with jurisdiction to include the costs of the preliminary motions in the costs order.

[174] Although one could have a theoretical concern that a differently constituted panel making a costs order at the end of a hearing, after a finding of liability, might not be in a good position to assess costs of a preliminary motion heard by a differently constituted panel, because the Discipline Committee’s Rules of Procedure provide for a daily tariff for costs of a hearing (Tariff A), the issue of assessing quantum does not pose a problem.

[175] Thus, I find that s. 53.1 of the Code allows a panel of the Discipline Committee that makes a finding of professional misconduct to make an order for costs of the hearing that includes preliminary motions on the same notice of hearing, even where the preliminary motions are heard by a differently constituted panel. The Committee made no error in its interpretation of the scope of s. 53.1 of the Code.

[176] As noted above, the appellant did not raise any issue as to the exercise of the Committee’s discretion in relation to the costs order.

Conclusion

[177] For these reasons, the appeal is dismissed.

[178] As agreed by the parties, there is no order as to costs.

Copeland J.

I agree _______________________________

Perell J.

I agree _______________________________

Sheard J.

Released: May 4, 2022

CITATION: Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769

DIVISIONAL COURT FILE NO.: 370/21

DATE: 20220504

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PERELL, SHEARD, and COPELAND JJ.

BETWEEN:

DR. NEILANK KUMAR JHA

Appellant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

-and-

THE MINISTRY OF THE ATTORNEY GENERAL

Intervener

REASONS FOR decision

Justice J. Copeland

Released: May 4, 2022

[^1]: I use the phrases “criminal offence” and “criminal finding of guilt” in these reasons because that is the factual situation in this case. However, s. 51(1)(a) of the Code is not limited to findings of guilt of criminal offences under federal legislation.

[^2]: The appellant’s notice of appeal also pleads that applying s. 51(1)(a) to circumstances where a discharge was granted and the statutory time period has run out frustrates the purpose of s. 730 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. However, in oral submissions, counsel for the appellant clarified that the appellant’s paramountcy claim is based on operational conflict and frustration of purpose of s. 6.1(1)(a) of the CRA only. He relies on s. 730 of the Criminal Code only as context for his submissions in relation to s. 6.1(1)(a) of the CRA.

[^3]: In some cases, a further preliminary inquiry of whether both the federal and provincial legislation are validly enacted (i.e., within a federal or provincial head of power) is necessary. In this case, no party suggests that either the federal or provincial legislation at issue is not validly enacted.

[^4]: Most health professional colleges regulated by the RHPA and the Code have similar “basket clause” definitions of professional misconduct in their regulations: Richard Steinecke, A Complete Guide to the Regulated Health Professions Act (Toronto: Thomson Reuters, 2017) (loose-leaf updated 2022, release 1), at §6:32.

[^5]: Subject to the limited application discussed in Montesano, where within the sphere of prosecuting offences under federal criminal law, s. 6.1 has been interpreted to apply to records held by provincial crown prosecutors and municipal and provincial police forces.

[^6]: I do not rule out that it may be open to a discipline committee to find that some categories of offences are so serious that they could be found to always be relevant to suitability to practise. Offences such as murder, or aggravated sexual assault spring to mind. But it is not necessary to decide that issue to dispose of this appeal.

[^7]: The appellant also made submissions regarding provisions of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, not giving the Discipline Committee to award costs of a preliminary motion. As the College only relies on s. 53.1 of the Code, I do not address the submissions in relation to the SPPA.

Dr. Jha v. College of Physicians and Surgeons of Ontario, 2022 ONSC 769

Case Summary

History of the proceeding

Issues raised on appeal

Standard of review

The relevant legislative provisions

Did the Discipline Committee err in failing to find s. 51(1)(a) of the Health Professions Procedural Code to be inoperative on division of powers paramountcy grounds?

The proper approach to consideration of paramountcy in division of powers analysis

The purpose and effect of s. 6.1 of the Criminal Records Act

(a) The text of s. 6.1 of the Criminal Records Act

(b) The Legislative history of s. 6.1 of the Criminal Records Act

(d) The Appellant’s proposed interpretation of the scope and purpose of s. 6.1 of the Criminal Records Act would lead to absurd results

Section 51(1)(a) of the Code is not in operational conflict with s. 6.1 of the CRA nor does it frustrate the purpose of the CRA, as applied to a finding of guilt where a discharge was granted

Did the Discipline Committee err in admitting into evidence the criminal information and the transcript of the guilty plea and finding of guilt on the liability portion of the hearing?

Did the Discipline Committee err in finding that Dr. Jha’s criminal findings of guilt are relevant to his suitability to practise medicine within the meaning of s. 51(1)(a)?

Did the Discipline Committee err in principle with respect to penalty or impose a clearly unfit penalty?

Did the Discipline Committee err in granting costs to the College in relation to two days of preliminary motions?

Conclusion

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 10

History of the proceeding

Issues raised on appeal

Standard of review

The relevant legislative provisions

Did the Discipline Committee err in failing to find s. 51(1)(a) of the Health Professions Procedural Code to be inoperative on division of powers paramountcy grounds?

The proper approach to consideration of paramountcy in division of powers analysis

The purpose and effect of s. 6.1 of the Criminal Records Act

(a) The text of s. 6.1 of the Criminal Records Act

(b) The Legislative history of s. 6.1 of the Criminal Records Act

(c) Judicial interpretation of s. 6.1 of the Criminal Records Act and related legislative provisions

(d) The Appellant’s proposed interpretation of the scope and purpose of s. 6.1 of the Criminal Records Act would lead to absurd results

Section 51(1)(a) of the Code is not in operational conflict with s. 6.1 of the CRA nor does it frustrate the purpose of the CRA, as applied to a finding of guilt where a discharge was granted

Did the Discipline Committee err in admitting into evidence the criminal information and the transcript of the guilty plea and finding of guilt on the liability portion of the hearing?

Did the Discipline Committee err in finding that Dr. Jha’s criminal findings of guilt are relevant to his suitability to practise medicine within the meaning of s. 51(1)(a)?

Did the Discipline Committee err in principle with respect to penalty or impose a clearly unfit penalty?

Did the Discipline Committee err in granting costs to the College in relation to two days of preliminary motions?

Conclusion

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 10