Parallel Proceedings

• Author: Rebecca Durcan/Robin McKechney
• Pages: 179-200

179

Parallel

Proceedings

9

I. Reporting Criminal Charges ................................ 180

II. Duty to Cooperate ........................................ 183

III. The Relationship Between Regulators and the Police ............ 185

IV. Use of Statements Provided in Regulatory Investigations

in Criminal Proceedings .................................... 185

V. Stay of Disciplinary Proceedings ............................. 188

VI. The Crown Brief .......................................... 191

VII. Use of Regulatory Disclosure in Criminal Proceedings ........... 193

VIII. Consequences of Finding of Guilt in a Criminal Proceeding ....... 195

Takeaways ............................................... 199

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180Prosecuting and Defending Professional Regulation Cases

I. Reporting Criminal Charges

When a regulated professional is charged with an oence under the Criminal Code1 or

an oence under the Controlled Drugs and Substances Act,2 counsel should immediately

determine the reporting requirements for the particular regulator. Virtually all regula-

tors require registrants to report any findings of guilt for a criminal oence (meaning

that absolute and conditional discharges are reportable), and most regulators now

require immediate reporting of outstanding criminal charges.

In order to determine the reporting requirements for the registrant, counsel should

consult the regulator’s enabling statute, underlying regulations, and by-laws, as well

as its rules of professional conduct. Unfortunately, there is no consistency among

regulators as to where the reporting requirements will be located. Further, there may

be multiple obligations to report, such as reporting immediately (or as soon as practi-

cable) where a registrant has been charged as well as reporting on any annual report

or renewal.

For regulated health professionals in Ontario, the Health Professions Procedural Code3

states under section 85.6.4 that “a member shall file a report in writing with the Registrar

if the member has been charged with an oence, and the report shall include informa-

tion about every bail condition or other restriction imposed on, or agreed to, by the

member in connection with the charge.” The report must be filed “as soon as reason-

ably practicable.” Under section 85.6.1 of the Code, registrants must report if the

registrant has been “found guilty of an oence.”

There is some question as to the meaning of “oence” and what, if anything, it

includes outside of Criminal Code and Controlled Drugs and Substances Act oences.

Some health regulators have interpreted the provision to include even parking tickets

under the Provincial Oences Act (POA).4 It appears unlikely, however, that this was

the legislative intent. “Ticketable” oences, such as speeding or parking infractions

(and other oences prosecuted under Part I and Part II of the POA), provide little, if

any, information to assist the college in its assessment of risk to the public. These of-

fences do not have a “fault” element and do not require adjudication on the merits,

or even a plea, in order to obtain a conviction. As a result, such charges do not provide

insight into relevant risk factors or suitability to practise. Inclusion of these types of

charges in the requirement to self-report would create a significant administrative

burden for the regulator with no corresponding benefit. Importantly, the Provincial

Oences Act includes a provision (s 12(2)) that appears to preclude triggering the

1 RSC 1985, c C-46.

2 SC 1996, c 19.

3 Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18 (the Code).

4 RSO 1990, c P.33.

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