Canada: Criminal Records Redux: The New Posting Requirements In The Regulated Health Professions Act

Last Updated: March 29 2019
Article by Debra McKenna

Previously, in What You Need to Know about Police Record Checks,1 we examined the new framework under the Police Record Checks Reform Act, 20152 for conducting and obtaining a police record check and highlighted some of the information that would be (and would not be) disclosed in a report from the police for the various types of checks that are available. So now, with that background, let's talk a little bit more about criminal records.

On May 1, 2018, a new regulation3 under the Regulated Health Professions Act, 19914 came into force that expanded the information that regulated health colleges in Ontario are required to post on their registers about members of their colleges. The requirements now include details relating to any outstanding criminal charges against a member and findings of guilt under either the Criminal Code or the Controlled Drugs and Substances Act. The new requirements, which have now been in place for almost a year, arose from significant amendments to the RHPA and the Health Professions Procedural Code ("Code")5 under Bill 87 (then referred to as the Protecting Patients Act) that were directed at, among other things, reinforcing a zero tolerance regime for sexual abuse by healthcare practitioners and improving transparency on how health regulatory colleges execute their public interest mandate. During the legislative debates on Bill 87 in 2017, the then Ontario Minister of Health, Eric Hoskins, described the rationale for expanding the disclosure requirements on the register as follows:

We propose to increase the transparency of health regulatory colleges' activities. If our legislation is passed, we would expand the minimum requirements for information that colleges must provide on their public registers with respect to their members. Why is this important? Because it means that relevant information about regulated health professionals would be available to the public, because they have the right to know.6 [Emphasis added]

Under the amended provisions of the Code, members of a regulated health profession are now required to inform their regulator when they are the subject of outstanding criminal charges.7 Members are also required to inform the college when they are found guilty of a criminal offence (which was an existing reporting obligation under the Code).8 Within a reasonable amount of time after receiving a member's report (or where information comes to the attention of the college otherwise – for example, through a newspaper article), a college is required to post information about the criminal charge (as well as any conditions of release) and/or the finding of guilt on the register in accordance with the Code and the Regulation.9 Specifically, under the Regulation, the college is required to post both a summary of the finding of guilt and a summary of the sentence.10

While, at first blush, the obligation to post such information on the public register seems relatively straightforward, it can raise (and has raised) complicated issues for colleges to consider and address. For example, although the requirement to post under section 23(2) of the Code is cast in mandatory language (as noted by the statutory buzzword "shall"), the Code is clear that the obligation to post is not a licence to contravene a publication ban ordered by the court.11 Consequently, in certain circumstances, a college may need to make inquiries with the Crown prosecutor or the court to confirm whether or not a publication ban is in place (which, generally, is the case with alleged sexual offences or offences involving children). Alternatively, inquiries might be necessary to determine the scope of a publication ban, if unclear (for example, does the publication ban cover the member or another witness?). Once appropriate information is obtained, the college can then make a decision of what information can/cannot be posted on the register in order to comply with the Code and the Regulation.

Similarly, while the posting obligations are mandatory, the registrar has discretion under the Code to refuse to post information in certain circumstances. In order to exercise that discretion, the Code sets out a statutory precondition that the registrar must form "reasonable grounds to believe" that either: (i) the disclosure of information may jeopardize the safety of an individual; or (ii) the information is obsolete and no longer relevant to the member's suitability to practise.12 This raises the issue, then, of what "reasonable grounds" means in this context.

The concept of "reasonable grounds to believe" has been considered by the Supreme Court of Canada on numerous occasions, primarily in criminal cases where the court is examining whether or not the exercise of statutory and common law powers has met the constitutionally-minimum standard of reasonable and probable grounds.13 The most frequently cited formulation of the standard was articulated in R. v. Debot where the standard (in relation to reasonable grounds for a search) was described as follows:

The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard.14 [Emphasis added]

While the content of what may satisfy the legal standard in a particular circumstance has been litigated in numerous criminal cases (and has been accepted as having both a subjective and objective component and requiring a contextual analysis), the legal test has been framed as "reasonable probability" – that is, the point where credibly-based probability replaces suspicion.15 In other words, reasonable grounds to believe is information that supports a reasonable probability or a reasonable belief.16

To be clear, the context here is very different, but the requirement to form reasonable grounds is not foreign in the professional regulatory context. To the contrary, it is everyday business for a health profession college. For example, courts have examined the exercise of other statutory powers under the RHPA (such as, investigatory powers, requiring a member to submit to a medical examination, or extraordinary action taken under section 25(7) of the Code to protect the public), all of which require a belief based on reasonable grounds.17 Importantly, in this context, it has been accepted that there is nothing in the Code or elsewhere that limits or qualifies the source of information that can inform a reasonable belief.18

Importantly, when it comes to interpreting and applying these new posting provisions of the Code and the Regulation, it is necessary to be mindful of the fact that the powers that regulatory bodies exercise are to be construed in light of their statutory duty to serve and protect the public interest. As the Court of Appeal for Ontario recently noted:

The interpretive principle of strict compliance with and construction of professional discipline legislation to ensure procedural fairness to accused members is not exclusive or overriding. The Discipline Committee is required to interpret its enabling statute with a view to protecting the public interest in the proper regulation of the professions [...]. A balancing of these interests is required.19

Consequently, leaving aside for a moment that it is a mandatory obligation to post this information (subject to publication bans and other issues to be discussed) and that a finding of guilt may also be the basis for allegations and/or findings of professional misconduct, the requirement of reasonable grounds must be interpreted in a manner that is consistent with a college's statutory duty to protect the public interest. Said differently, the discretion to refuse to post (or remove) information on the register on the basis that it is obsolete and no longer relevant to the member's suitability to practise must be construed in the public interest. As discussed below, it is not solely a consideration of the information itself; for example, how dated is it?

To the extent that there are concerns about a member's interest in the publication of their criminal record, it is noteworthy that there are essentially two ways for a member to have information about their criminal finding removed from the college's public register – either by obtaining a record suspension from the Parole Board or by meeting the test under section 23(7) of the Code.

It is significant that the Regulation already takes into consideration that findings of guilt are not to be posted (or, conversely, ought to be removed) in circumstances where the Parole Board has undertaken a review and ordered a record suspension in respect of a conviction, a pardon has been obtained, or a conviction has been overturned on appeal.20 Under the Criminal Records Act, section 3 provides that "a person who has been convicted of an offence [...] may apply to the Board for a record suspension in respect of that offence."21

To be eligible for a record suspension, a certain amount of time must have elapsed since the individual was convicted of the offence (either five or ten years, depending on the type of offence) and the individual must not have been convicted of certain offences (set out in Schedule 1 of the CRA – these are, generally speaking, offences involving children). In accordance with section 2.3 of the CRA, a record suspension is, among other things, evidence of the fact that: (i) the Parole Board, after making inquiries, was satisfied that the applicant was of good conduct; and, (ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant's character.22 Therefore, presuming a member is eligible, a member can take steps to secure a record suspension under the CRA whereby, if successful, his or her criminal record will be removed from the register in accordance with the Regulation.

Alternatively, this leaves open for a college to consider, on a case-by-case basis, whether or not there are reasonable grounds to refuse to post (or to remove) a finding of guilt under section 23(7) of the Code. In practical terms, such circumstances will most commonly arise where a member seeks to have information removed from the register before they are eligible, time-wise, for a record suspension (or are otherwise ineligible) or where a member has received an absolute or conditional discharge – which, perhaps, is one of the mostly likely scenarios to be confronted by registrars. In this regard, it is important to understand the mechanics behind a discharge.

Under Part XXIII of the Criminal Code (which is the part that addresses sentencing), a court has jurisdiction under section 730(1) to make an order that an individual who pleads guilty or is found guilty of certain offences be "discharged", either absolutely or on conditions prescribed in a probation order, instead of registering a conviction. The order can only be made in those circumstances where it is in the best interests of the accused and not contrary to the public interest.23 As a discharge is deemed not to be a conviction under 730(3) of the Criminal Code, a record suspension is not available under section 3 of the CRA. However, the CRA requires that all references to a discharge under section 730 of the Criminal Code be removed from CPIC (which is the criminal conviction records retrieval system maintained by the RCMP) on the expiration of the discharge; that is, one year after an absolute discharge and three years after a conditional discharge. The legislation also prohibits discharge records or the fact of a discharge from being disclosed by the RCMP or by any department or agency of the Government of Canada after a discharge has expired (except in narrow circumstances).24

To be clear, these provisions of the CRA do not negate a member's obligations under section 85.6.1 of the Code to disclose a guilty finding to the college, which members are required to report to the college "as soon as reasonably practicable after the member receives notice of the finding of guilt". Moreover, unlike a record suspension, it is clear that the Ontario government did not expressly include in the Regulation the purging of a discharge as a basis for prohibiting publication of a finding of guilt or a summary of the sentence on the register. The question is then: does the CRA provision bind a college in terms of posting (or, rather, continuing to post) on the register a guilty finding and/or a sentence that involved a discharge?

Until very recently this was an open question and indeed the explicit language of section 6.1(1) suggested that only federal agencies were bound by the provisions. However, on March 12, 2019, the Ontario Court of Appeal held in R. v. Montesano that section 6.1(1) precludes the disclosure of a discharge record or the fact of a discharge to any person, noting that, "it is of no moment whether the record remains in provincial record bases".25 In that case, the issue on appeal was the disclosure and consideration of a discharge by a judge for sentencing purposes. The Ontario Court of Appeal confirmed a lower court's decision that it was an error to disclose the absolute discharge to the sentencing judge after the one-year period under the CRA without the minister's approval.

While the Montesano case is not related to (and does not consider) a college's posting requirements under the Code or the Regulation, the Court of Appeal's interpretation of section 6.1(1) creates a real tension for regulated health colleges. In this regard, bear in mind that the basis to refuse to post information under section 23(7) of the Code is both that the information is obsolete and no longer relevant to the member's suitability to practise. The fact that a court, after weighing the aggravating and mitigating circumstances of the offence and the offender, reached a conclusion that a discharge was appropriate for sentencing purposes is in no way determinative of whether or not the impugned conduct or the finding of guilt is not relevant to a member's suitability to practise. Put differently, even where a member receives a discharge in a criminal proceeding, the Code still requires a registrar to consider whether there are reasonable grounds to refuse to post under section 23(7) of the Code. The Code provision requires both parts of the test to be met.

This raises the question then of what is considered obsolete and/or no longer relevant to a member's suitability to practise. There are no cases in which a court has interpreted the word "obsolete" in this context.26 However, the purging of a discharge record under section 6.1 of the CRA can (and should) be considered by registrars. Registrars will also want to turn their mind to other issues. For example, is the conduct at issue or the finding of guilt (as opposed to the sentence) relevant as prior history in the context of information that could be provided to an Inquiries, Complaints and Reports Committee under section 26(2) of the Code? Or, alternatively, might the conduct or the finding of guilt be relevant to a Discipline Committee for deciding an appropriate penalty for misconduct? In this regard, it is of note that although the Court of Appeal held in Montesano that the discharge could not be disclosed or relied on for sentencing, the Court still considered the prior incident itself (which was the subject of the discharge) in determining the appropriate sentence in the instant case.27

If Montesano applies, section 6.1(1) of the CRA prohibits a registrar from disclosing a discharge (that is, the summary of the sentence) on the register one year after an absolute discharge or three years after a conditional discharge. However, it would appear that section 23(2) of Code and the Regulation would still require a registrar to post a summary of the finding of guilt unless a registrar had reasonable grounds to believe it was obsolete and no longer relevant to the member's suitability to practise.28 Query whether a member would want a finding of guilt posted on the register and not disclose the discharge/sentence but, perhaps, that is an issue for a court to address on another day.

As noted at the outset, these new requirements under the Code and the Regulation are minimum requirements and are intended to improve transparency – both with respect to members of the college and how a college regulates its members. While the provisions may give rise to challenges and difficult questions along the way, the privilege of professional self-regulation demands that the public interest is protected – an obligation that rests with the college and must be advanced in order to maintain the public's trust.

Footnotes

[1] https://www.weirfoulds.com/what-you-need-to-know-about-police-record-checks

[2] Police Record Checks Reform Act, 2015, S.O. 2015, c. 30.

[3] Regulated Health Professions Act, O. Reg. 261/18 (am.) ("Regulations"). Note: While the focus of this article is primarily on legislation applicable to regulatory health colleges in Ontario, other regulators in Ontario and in other Canadian jurisdictions have similar reporting and posting requirements.

[4] Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("RHPA").

[5] Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act ("Code").

[6] www.ola.org/en/legislative-business/house-documents/parliament-41/session-2/2017-03-27/hansard#para737

[7] Code, s. 85.6.4.

[8] Code, s. 85.6.1.

[9] Code, s. 23(2) and the Regulation, s. 1(1).

[10] Regulation, s. 1(1). Note: If the finding is under appeal, the college is also required to post a notation that it is under appeal until the appeal is finally disposed of.

[11] Code, s. 23(3).

[12] Code, ss. 23(6) and 23(7).

[13] While initially there was debate, the Supreme Court has confirmed that the legal standard of "reasonable and probable grounds" and "reasonable grounds to believe" are the same – for example, Baron v. Canada, [1993] 1 S.C.R. 416 at pp. 446-47 and R. v. Loewen, 2011 SCC 21 (CanLII) at para. 5.

[14] R. v. Debot, [1989] 2 SCR 1140, at p. 1166.

[15] Hunter v. Southam Inc., [1984] 2 SCR 145, at p. 167.

[16] Debot, supra note 14.

[17] Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 at para. 124 (CanLII).

[18] Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658 at para. 26 (CanLII).

[19] Abdul v. Ontario College of Pharmacists, 2018 ONCA 699 at para. 16 (CanLII).

[20] Regulation, s. 1(2).

[21] Criminal Records Act, RSC 1985, c. C-47 ("CRA"), s. 3.

[22] Ibid. s. 2.3.

[23] Criminal Code of Canada, RSC 1985, c. C-46, s. 730(1).

[24] CRA, ss. 6.1, and 6.2.

[25] R. v. Montesano, 2019 ONCA 194, at paras. 9 and 11 ("Montesano") (https://www.canlii.org/en/on/onca/doc/2019/2019onca194/2019onca194.pdf).

[26] It is noted that, in other contexts, courts have interpreted the word "obsolete" using its plain and ordinary meaning.

[27] Montesano, supra note 25, at para. 27.

[28] Code, ss. 23(6) and 23(7).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
7 Dec 2017, Webinar, Toronto, Canada

FEX Members Jeff Noble, BDO, and Caroline Abela, WeirFoulds LLP, invite you to a complimentary webinar series titled: All About Shareholders.

11 Nov 2018, Seminar, Toronto, Canada

WeirFoulds Partner Glenn Ackerley will Chair the RICS & CIQS 5th Annual Construction & Project Management Seminar.

26 Mar 2019, Webinar, Toronto, Canada

WeirFoulds, the Canadian Law Technology Association (CAN-TECH) and a cross section of industry professionals discuss Artificial Intelligence and Machine Learning, including the potential ethical implications in the legal space.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions