A recent case from the Divisional Court highlights the importance of considering the regulatory impact when regulated health professionals are seeking to resolve criminal proceedings against them. Dr. Jha v. College of Physicians and Surgeons of Ontario illustrates why regulated health professionals need to consider all the consequences of a guilty plea — even when no conviction is registered due to an absolute discharge.
In 2016, Dr. Jha, a member of the College of Physicians and Surgeons of Ontario, pleaded guilty to assault and mischief under $5,000. The charges dated back to incidents in 2013 relating to the appellant’s then-fiancé. Dr. Jha was granted an absolute discharge.
An absolute discharge is the lowest-level adult sentence that an offender can receive. It is a finding of guilt, but no conviction is registered, and the offender is not given any conditions to follow, for example, a probation order. The offender is finished with their case that day. A year after the absolute discharge, section 6.1 of the Criminal Records Act (CRA) becomes operative, prohibiting federal agencies from disclosing the existence of the record or the fact of the discharge.
Under section 51(1)(a) of the Health Professions Procedural Code (Code), a regulated health professional will be found guilty of professional misconduct if they have been found guilty of an offence that is relevant to the member’s suitability to practice. The section allows a regulatory college to proceed with a professional misconduct allegation based on a finding of guilt by a court without having to “prove the facts anew”, avoiding the need to re-litigate the evidence on which the finding of guilt was based.
Dr. Jha’s conduct and criminal proceedings were reported to the College, and the College began an investigation into Dr. Jha’s behavior in 2014. The Inquiries, Complaints and Reports Committee of the College deferred its decision pending the outcome of the criminal investigation. The College obtained a copy of the transcript of the guilty plea and finding of guilt in 2017. In February 2019 (almost three years after the guilty plea), the ICRC referred the specified allegation of misconduct to the Discipline Committee.
Dr. Jha brought a motion to quash the Notice of Hearing, arguing that section 51(1)(a) of the Code was unconstitutional because it was in operational conflict with or frustrated the purpose of section 6.1 of the CRA.
The Discipline Committee dismissed the appellant’s motion and eventually found that he had committed an act of professional misconduct. In particular, he had been found guilty of an offence relevant to his suitability to practice, contrary to section 51(1)(a) of the Code. The Discipline Committee imposed a penalty of a reprimand and a three-month suspension of his certificate. He was also ordered to pay costs of $51,850.
Dissatisfied, Dr. Jha appealed to Divisional Court. He argued that section 51(1)(a) of the Codewas unconstitutional because it conflicts with section 6.1 of the CRA, as it permits a professional misconduct proceeding to be based on a finding of guilt where a discharge was granted after the statutory time has run. Essentially, the appellant’s position was that the purpose of section 6.1 of the CRAis to establish a period after which a finding of guilt can no longer impugn the character of a discharged person.
The Divisional Court disagreed and dismissed Dr. Jha’s appeal. The Court found that Dr. Jha’s interpretation of section 6.1 of the CRAwas overbroad. After looking at the text, legislative history, and judicial interpretation of the CRA in general, the Divisional Court concluded that section 6.1 of the CRAdoes not restrict any disclosure by any person of a finding of guilt that was subject to a discharge. Nor does it restrict the use of a finding of guilt subject to a discharge for all purposes. It was not intended to require provincial regulators to relitigate issues already decided in the criminal courts if a discharge was imposed. Section 6.1 of the CRArestricted federal agencies from disclosing the fact and records relating to a discharge. As a result, the Codewas not in operational conflict with the CRA and the Divisional Court upheld the penalty and costs award as well.
NOTE: Our blog post is not a substitute for legal advice tailored to your situation, especially when facing criminal charges. At Wise Health Law, we have experience assisting members facing College proceedings in light of criminal charges. Please contact us as we may be able to assist you.
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