[2011] O.J. No. 192

2011 ONSC 323

Ontario Superior Court of Justice, Divisional Court

J.R.R. Jennings, K.E. Swinton, and H.E. Sachs JJ.

January 17, 2011

Dr. Sazant appealed from seven sets of Reasons issued by the College on procedural and substantive issues around findings that he committed professional misconduct with three boys, one of whom had been a patient, between 1970 and 1991. On the appeal, two other physicians intervened on the issue of the constitutionality of s. 73 (1) of the Health Professions Procedural Code ("the Code"), the provision allowing a College investigator the same investigatory powers as a commission under the Public Inquiries Act, R.S.O. 1990, c. P41 ("the Act"). Among the powers is the ability to issue a summons without prior judicial authorization, to any person, requiring the subject of the summons to give or produce evidence to the investigator. Dr. Sazant and the interveners argued that this statutory delegation of power violated ss. 7 and 8 of the Charter of Rights and Freedoms ("the Charter").

With respect to Dr. Sazant and the other interveners, the College investigator used this summons power to obtain materials gathered during a police investigation, including Crown brief materials. The College relied on those materials to initiate proceedings before its own disciplinary committee.

The Code, at s. 76(1) states that,

"an investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.”

The Act contains powers to require, "any person by summons,

  1. to give evidence on oath or affirmation at an inquiry; or
  2. to produce in evidence at an inquiry such documents and things as the

commission may specify, relevant to the subject-matter of the inquiry and not inadmissible in evidence att he inquiry under section 11."

The Ontario Superior Court of Justice received an application for a declaration that s. 76(1) of the Code violated the Charter, brought by Dr. Sazant and the interveners. The College attempted to strike this application, and Himel, J dismissed the College's motion finding that the Superior Court had jurisdiction to hear the application. The College sought leave to appeal that decision to the Divisional Court. The application for leave was dismissed in August 2008.

Dr. Sazant attempted to stay the College's hearings against him until the Charter challenge could be determined, and the application for a stay was refused. In the result, Dr. Sazant applied for declaratory relief from the Court at the same time that he argued unconstitutionality of s. 76(1) of the Act before the College. In February 2009, the College found that the summons power did not violate the Charter.

Ultimately, the Ontario Attorney General argued that these parallel proceedings were going to cause problems in terms of the appropriate order of the appellate procedure. Eventually, an order was made to adjourn the constitutional challenge to permit argument in the appeal to the Divisional Court taken by Dr. Sazant to the College's decision on all issues (the finding of misconduct, the costs, the penalty, and the Charter challenge.)

Dr. Sazant was a 75-year old general practitioner from Toronto at the time of the Court's decision. In December 1991 he was investigated regarding an allegation of sexual touching of a 12-year old male, J.H., who was not his patient. Toronto Police Services investigated the complaint and a search warrant was executed on Dr. Sazant's home. Toronto Police Services advised the College of its investigation. In 1992 Toronto Police Services advised that the investigation had concluded without charges being laid. Despite that notification the College opened a file regarding J.H. in January 1992, without advising Dr. Sazant. The College internally monitored the situation but did not conduct any investigation over the next several years, officially closing its file in 1998.

The second complaint arose as a result of allegations made in January and July 1998. These were allegations that Dr. Sazant had sexually abused a male child between 1972 and 1978. This complainant was Dr. Sazant's patient as well as a family friend. In June 1998 the police informed the College that they were investigating the allegations. Criminal charges were laid against Dr. Sazant in November 1998 and the College was advised that Dr. Sazant had been arrested.

A third complainant contacted police in November 1998 alleging that two incidents of sexual abuse occurred in 1981 or 1982. This young male was not a patient of Dr. Sazant. Dr. Sazant was criminally charged in March 1999 and the College wrote to Dr. Sazant that April asking that he undertake not to see patients under the age of 16 except in the presence of another adult. Dr. Sazant voluntarily signed this undertaking in June 1999. The College did not conduct investigations on this file but chose only to monitor the criminal proceedings.

A fourth complaint matter arose when a male complained to Toronto Police Services in 1998 alleging sexual touching had occurred when he was about 8 years of age. This complainant made his allegations after hearing about the charges against Dr. Sazant on television. The allegation was investigated by Toronto Police Services but charges were not laid because the complainant was not considered credible.

In 2000, charges against Dr. Sazant in respect of the first complainant were withdrawn, and charges were stayed in respect of the second complainant in 2004. In 2006, after a number of appeals arising out of the initial preliminary inquiry, the Superior Court stayed the remaining charges against Dr. Sazant.

Throughout, Dr. Sazant made commitments to abide by practice restrictions and monitoring at the College's request. In 2006 Dr. Sazant was prohibited from treating patients under the age of 16, as a more extensive practice restriction.

At the end of 2004, the College decided that Dr. Sazant's file should be moved from monitoring to an active investigation. At that point, an individual who was not yet an investigator appointed pursuant to s. 75 of the Code, requested the Toronto Police Services ("TPS") occurrence reports from 1991, 1998, and 1999. The TPS refused the request for information.

In January 2005, the same College employee sought to be appointed as an investigator under the Code. The investigator was appointed and a summons was issued to TPS and the Attorney General under 76(1) of the Code. TPS again refused to release documents relating to matters where criminal charges had been laid.

An amended summons was issued by the College. The College investigator requested a complete copy of the Crown brief and Dr. Sazant's criminal record. Eventually, disclosure was provided that went beyond the scope of the amended summons. The investigator did not notify the Crown Law Office-Civil of their mistake in disclosing too much, but kept the material and expanded his investigation to include all four initial complainants.

In July 2005, the investigator wrote to Dr. Sazant and advised him that the College was actively investigating the alleged sexual abuse in respect of the second complainant only. However, all four complaints were referred to the Discipline Committee of the College and a Notice of Hearing alleging disgraceful or unprofessional conduct and sexual impropriety was issued in March 2006.

Dr. Sazant brought a motion before the Committee arguing that the College had proceeded in an abuse of process and contrary to the principles of natural justice by failing to carry out their investigation in a timely manner. The Discipline Committee of the College dismissed Dr. Sazant's motion and found there was no violation of s. 7 of the Charter because the delay did not cause "substantial harm to Dr. Sazant's psychological integrity". The pre-charge delay was found not to have been the College's responsibility, because the victims were reluctant to come forward. Despite the fact that evidence in support of Dr. Sazant's defence was no longer available due to the passage of time (his mother, a neighbour and a secretary had passed away), the Committee concluded that their anticipated evidence would not have been helpful and declined the application for a stay.

In July 2007, the Discipline Committee heard Dr. Sazant's motion for a declaration that they lacked jurisdiction to hear constitutional issues and to grant Charter remedies. The motion was dismissed.

During the course of the hearing on the motion to determine the Committee's jurisdiction, Dr. Sazant raised additional and new evidence that affected Dr. Sazant's position as to the evidence lost due to the pre-hearing delay. Eventually, the Committee held that its findings regarding a lack of prejudice to Dr. Sazant remained valid and dismissed his motion.

Dr. Sazant brought a motion to exclude evidence obtained through the police search. Some of the items that had been seized by police warrant in 1991 had since been lost. The College dismissed that motion finding that Dr. Sazant's Charter rights had not been breached. Eventually the College concluded that a stay would not be appropriate.

Although issues arising out of the motion to exclude evidence obtained through the police search were raised by Dr. Sazant in his factum on appeal, they were not pursued in oral argument except to buttress his submissions regarding delay.

Dr. Sazant brought a motion to exclude evidence obtained pursuant to the College's summons power. The Attorney General was granted standing on this issue and both the Attorney General and the College argued that the Charter challenge lacked merit. The College again dismissed Dr. Sazant's motion. The College found that Dr. Sazant did not have standing under s. 8 of the Charter as he did not have a reasonable expectation of privacy in Crown brief materials. Dr. Sazant had not demonstrated that the s. 76(1) summons authority violated s. 8 of the Charter. The fact that the conduct being investigated was also the subject of criminal proceedings did not "import all the protections designed for the criminal process into the administrative context."

Looking to s. 7 of the Charter, the College found that the summons power did not violate s. 8 and therefore could not be contrary to the principles of fundamental justice. The College noted that nothing obtained pursuant to the use of the s. 76(1) summons was adduced at hearing.

Finally, the College also concluded that Dr. Sazant had committed professional misconduct in his interactions with three of the complainants, but that the evidence with respect to the fourth complaint was "not sufficiently probative for the Committee to find that these incidents occurred."

The impugned conduct was found to be relevant to the practice of medicine and a finding of professional misconduct was made against Dr. Sazant in February 2009. The College levied a penalty of revocation of Dr. Sazant's license, finding that the conduct was "of the most serious kind". Costs in the amount of $95,812, as 75% of what would have been awarded had all of the allegations been made out, were ordered against Dr. Sazant.

On this judicial review, all of the issues raised by Dr. Sazant, with the exceptions two, were questions of fact, discretion, or policy, or mixed fact and law. A reasonableness standard has been held to apply to findings of professional misconduct made by the College, in previous jurisprudence.

Questions about the constitutionality of the College's investigative powers and/or jurisdiction of the College to rule on Charter issues, are questions of true jurisdiction or questions of law of central importance to the legal system, to which a correctness standard applied.

The Court also held that the College must be correct with respect to legal principles applying to Dr. Sazant's claims of abuse of process. Correctness was applicable to the question of natural justice. However, deference would be owed on the facts found by the College with respect to prejudice on the impact of the delay on the hearing process.

The Court held that s. 76(1) of the Code is subject to Charter review and that compelling production through a summons under this section constitutes a "seizure" within the meaning of Charter s. 8. The question is whether that seizure is unreasonable within the meaning of s. 8. Consideration must be given to the nature of the power and the context in which the power is being exercised.

The freedom to be protected from unreasonable search and seizure is expressed, in positive terms, as an entitlement to a "reasonable" expectation of privacy. The expectations of a citizen to privacy vary by context. Although Dr. Sazant had argued that the power was being used here in a realm where the departure from criminal law was not significant, the Court did not accept that the scheme of the Code or the Health Professions Act was quasi-criminal in nature. S. 76(1) is intended to collect evidence in proceedings against a physician in a regulatory context for the purpose of removing or restricting his license to practice, and not with a view to laying a criminal charge. Prosecutions under this statutory scheme cannot result in imprisonment. The fact that the same act may also give rise to criminal consequences does not mean that the Act, when dealt with in a regulatory context, is criminal or quasi criminal.

The nature of the power being exercised is much less intrusive than an investigative power to enter upon a person's premises without an opportunity to seek judicial review before being obliged to answer the summons. The regime that is the source of the power, in Dr. Sazant's case, provides that an investigator must be appointed by the College's Registrar and must have a belief "based on reasonable and probable grounds, that the member has committed an act of professional misconduct." The Executive Committee must approve the Registrar's appointment of the investigator and thus, there are pre-conditions for reasonable search in terms of the formation of a belief that reasonable and probable grounds exist to believe that an act of misconduct has been committed, and the review of that belief of a "non-captive body capable of exercising judicial or quasi-judicial powers."

The summons power is not unlimited. It is restricted to evidence relevant to the inquiry being conducted that would not be inadmissible because of any privilege under the law of evidence. The witness summoned under this power must also be informed of his or her right to object to answering any question and the investigator's power is not greater than the powers existing under Ontario's rules of civil procedure, which give all civil litigants the power to summon a third party on a motion to attend to give evidence before an examiner in aid of that motion or application.

There was nothing in the legislative scheme suggesting an intention to restrict an investigator's power to a narrow range of activity involving only the assessment, diagnosis, prevention, and treatment of disease. Such a reading would have been inconsistent with the ability of professional regulators to investigate allegations of sexual misconduct and illicit drug use, for example. Crown counsel having possibly erred in disclosing inappropriate materials in Dr. Sazant's case could not be blamed on the s. 76(1) process and could not render the section unconstitutional.

Section 76(1) of the Code did not violate the Charter. The search power was found to be constitutionally "reasonable" under s. 8, meaning that it was also consistent with the principles of fundamental justice under Charter s. 7.

The College had jurisdiction to rule on the admissibility of any evidence obtained in breach of Charter rights. The College could also order a stay of proceedings in an appropriate case because of the Charter violation. Whether or not a Discipline Committee of the College has jurisdiction to address matters relating to the investigatory stage depends on why the Discipline Committee is being asked to look at those issues. The Court distinguished the Court of Appeal's decisions in Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146 and Krop v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 308 (Div. Ct.).

Dr. Sazant argued that the College erred in failing to stay proceedings against him because of the pre-charge delay and investigative delay in this matter. The Court held that the delay here did not impair Dr. Sazant's ability to defend the charges in any significant way. A party is entitled to a fair hearing, not a perfect hearing. In this case, Dr. Sazant was permitted to practice during the lengthy criminal proceedings. Although he practiced under restrictions, these conditions did not impair his ability to earn a livelihood. The Court accepted that there was stigma and anxiety caused by the combination of criminal and disciplinary proceedings, but it did not rise to the level of significant psychological harm or stigma to reputation that was discussed in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307. A stay would not be appropriate because the allegations were very serious and the College was acting in the public interest by investigating and taking disciplinary action to protect other patients or potential patients of Dr. Sazant.

The Court could not find that the factual determinations of the College were unreasonable. Although there were some credibility and reliability problems with each complainant, the College was reasonably entitled to deal with these problems as they did. The test for the admission of similar fact evidence had been met. Conduct in this case was properly found to be relevant to the practice of medicine and there was no error in the way in which the College interpreted the regulation. The misconduct regulation included a basket clause referring to conduct or an act relevant to the practice of medicine that would be reasonably regarded by members of the profession as disgraceful, dishonourable, or unprofessional.

Finally, the Court reviewed the issue of penalty and costs. Penalty was found to be a discretionary decision to which a reviewing court must show great deference in the context of a self-governing profession. It is not a question of whether a Court might have imposed a different penalty, but rather whether the penalty imposed was fitting and reasonable. The panel of the Discipline Committee of the College was found to have fully and properly considered all aggravating and mitigating factors in determining penalty. The need for denunciation and specific and general deterrence meant that revocation was the most suitable penalty.

On the issue of costs, the Court was concerned by the award of $95,812. Dr. Sazant might find this sum impossible to pay, given that he was 75 years of age at the time of revocation of his license. However, there was nothing on the record before the Court to indicate the financial circumstances of Dr. Sazant. Thus, the Court could not consider a variation of the costs award. "This is something only the College could consider, if the appellant were to bring a properly founded application before it for some leniency in the payment of the costs award, such as the opportunity to pay the award in instalments."

The appeal from all findings of the College's Discipline Committee was dismissed without costs.