Date: 19980506 Docket: CA 143933
NOVA SCOTIA COURT OF APPEAL
Cite as: Dhawan v. College of Physicians & Surgeons of Nova Scotia,
1998 NSCA 83
Chipman, Freeman and Bateman, JJ.A.
BETWEEN:
DR. PANKAJ M. DHAWAN )
)
Appellant ) George M. Mitchell, Q.C.,
) Edward Greenspan, Q.C.
) and Sandra O. Arab
) for the Appellant
-and- )
)
COLLEGE OF PHYSICIANS & ) Marjorie A. Hickey, Q.C.
SURGEONS OF NOVA SCOTIA ) and Raymond G. Adlington
) for the Respondent
Respondent )
)
)
) Appeal Heard
) April 6 & 7, 1998
)
)
) Judgment Delivered:
) May 6, 1998
THE COURT: The appeal is dismissed with the exception of the variation in sentence as per reasons for judgment of Chipman, J.A.; Freeman and Bateman, JJ.A., concurring.
CHIPMAN, J.A.:
The appellant, a physician specializing in physical medicine and rehabilitation, appeals from two decisions of a Hearing Committee of the respondent College. In the first, the Committee found the appellant guilty of professional misconduct with respect to five female patients. In the second, the Committee imposed a penalty upon him for his transgressions.
There were three broad allegations of complaint heard by the Committee:
(1) Conducting examinations of the patients which were inappropriate, unprofessional and/or unnecessary.
(2) Unnecessary removal of clothing and/or failure to protect the privacy of the patients.
(3) Making inappropriate comments and/or inquiries of a personal nature during appointments with the patients.
Particulars were given with respect to each of the five patients. They numbered some 60 alleged incidents.
On September 8, 1997, after 15 days of hearing and argument and following consideration of written submissions from the appellant and the College, the Committee rendered its decision finding professional misconduct with respect to 28 of the matters alleged. Following a penalty hearing on two days, the Committee rendered its decision on November 27, 1997 that:
(1) The appellant’s licence would be suspended for six months from January 1, 1998.
(2) The appellant was to make arrangements through the College to be assessed at Abbott/Northwestern Hospital in Minneapolis, Minnesota as soon as possible after January 1, 1998 and follow any recommendations which the hospital might provide to the College with respect to counselling or other treatment or remedial training or education. In the event that the assessment was not taken or, in the opinion of the Registrar of the College, the appellant did not follow the recommendations made as a result, the suspension would continue.
(3) The appellant must have an appropriate female chaperone present during physical examinations of his female patients.
(4) The appellant must pay costs of $50,000, to be paid in four installments between January 31, 1998 and December 31,1999.
The appeal to this Court is pursuant to s. 68(1) of the Medical Act, S.N.S. 1995-96, c. 10:
68(1) The member or associate member complained against may appeal on any point of law from the findings of the hearing committee to the Nova Scotia Court of Appeal.
(emphasis added)
The appellant has advanced eight grounds of appeal with respect to the finding of guilt and one with respect to sentence:
(1) Whether proper standards were applied by the Committee in determining that the appellant was guilty of professional misconduct.
(2) Whether the findings of the Committee respecting the complaints were based on cogent and convincing evidence and whether such findings constitute professional misconduct.
(3) Whether certain of the findings of the Committee said to be based on “preferred evidence” were sufficient to satisfy the appropriate burden of proof.
(4) Whether the Committee erred in permitting the College to open its case after having closed it.
(5) Whether the Committee erred in allowing the College to introduce similar fact evidence when it reopened its case.
(6) Whether the Committee erred in permitting the College to introduce rebuttal evidence.
(7) Whether the Committee erred in allowing the College to introduce similar fact evidence on rebuttal.
(8) Whether the Committee erred in the use it made of the similar fact evidence admitted on rebuttal.
(9) Whether the Committee erred in imposing the penalty upon the appellant.
I will deal with each of these points, making reference to the particulars of the charges and the supporting evidence to the extent necessary.
(1) Proper standards for determining professional misconduct::
In its decision, the Committee observed that the Act does not contain a definition of the term “professional misconduct”. The Committee stated that the determination of what constitutes professional misconduct is appropriately left to the determination of the peers of the professional. It quoted the following from Dr. X. v. College of Physicians and Surgeons of British Columbia (1991), B.C.J. No. 2410 (C.A.):
The test of whether misconduct by a medical doctor is infamous or unprofessional is a determination that should be made by the doctors’ professional brethren applying the standards and ethics of the profession . . .
The Committee also referred to two other cases as examples of what had been found to be professional misconduct: Roy v. Medical Board (Newfoundland) (1994), 117 Nfld. & P.E.I. R. 160; 365 A.P.R. 160 (Nfld.T.D.); College of Physicians and Surgeons of Ontario v. Lambert (1992), 98 D.L.R. (4th) 639 (Ont.Div.Ct.).
The appellant’s complaint is that the Committee did not appear from its reasons to have considered the substantial body of jurisprudence which had been cited to it by counsel in relation to the meaning of professional misconduct. Its mere reference to but three cases and the acceptance of the terse statement of law quoted above indicated a lack of effort to show what these standards and ethics of the profession may be, and which were applicable to this case. The definition, it is said, is vague and meaningless. The appellant then referred us to a number of other cases.
In my opinion, the Committee did not err in the statement of the appropriate test or in its general approach to the evidence. “Professional misconduct”, like “negligence”, can only be defined in general terms. Specific applications of the principle to a given set of facts takes place each time a committee is called upon to make a determination whether conduct is or is not professional misconduct. In this connection, it is useful to keep in mind that deference is owed towards decisions of discipline bodies of self governing professions. As Cory, J. noted in Re Milstein v. College of Pharmacy, et al. (No. 2) (1976), 13 O.R. (2d) 700 (H.C.) at 707:
. . . The power of self-discipline perpetuated in the enabling legislation must be based on the principle that members of the profession are uniquely and best qualified to establish the standards of professional conduct . . .
In Pearlman v. Manitoba Law Society (1991), 6 W.W.R. 289 (S.C.C.), Iacobucci, J. for the Supreme Court of Canada at p. 297 quoted with approval the statement in Law Society of Manitoba v. Savino (1983), 1 D.L.R. (4th) 285 (Man.C.A.) that no one was better qualified to say what constitutes professional conduct than a group of practicing barristers who are themselves subject to the rules established by their governing body.
I am not prepared to consider this principle inapplicable to the deliberations of the Committee here simply because two of its members out of five were not medical doctors. The Legislature, in its wisdom, has provided for the appointment to committees of persons other than medical doctors. Such persons constituted a minority of the Committee. The principle approved by Iacobucci, J. should still be the general approach where, as here, the majority of the members of a panel belong to the profession whose member is in judgment before it.
As I have noted, this Court’s jurisdiction is limited to questions of law. As long as a tribunal has not erred in law, we cannot interfere. Having examined the numerous authorities presented to us dealing with professional misconduct, I am of the opinion that the Committee did not err in adopting the statement from the British Columbia Court of Appeal quoted above as its guide post, or in its application of that principle to this case.
2. Cogent and convincing evidence constituting professional misconduct:
Under this ground of appeal, we have been largely invited by the appellant to retry this matter. Our task is not to judge the appellant’s guilt or innocence but to judge, on questions of law, the process by which he was found guilty. The Committee reviewed all of the evidence including that of each of the five complainants, as well as that offered by the appellant in response. The Committee made findings in which it dismissed a large number of the particulars which, together with those abandoned by the College, constituted about 50% of them. With regard to the 28 particulars with respect to which it found guilt, the appellant’s position is that there is not a sufficiency of cogent and convincing evidence.
As to error of law, deSmith, Judicial Review of Administrative Action (Fifth Edition), states at p. 286:
The concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reasons) inconsistent, unintelligible or substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Error of law also includes decisions which are unreasonably burdensome or oppressive...
Support generally for the propositions stated above, for the purposes of this appeal, is found in the following decisions of this Court: Cape Breton Development Corporation v. Penny (No. 2) (1977), 76 D.L.R. (3d) 186; Crossman v. Labour Standards Tribunal (1992), 109 N.S.R. (2d) 274; and Ace Towing v. Irving (1993), 121 N.S.R. (2d) 447.
In Penny, supra, MacKeigan, C.J.N.S., dealing with an appeal confined to a question of law or jurisdiction said at p. 188:
Thus, if, as is here the case, a material body of evidence reasonably supports the decision, this Court cannot touch it. It follows also that where the decision is so supported by material evidence one cannot say, to use the words used by counsel, that “it is one that no reasonable men acting judicially could have reached”.
I prefer the “no reasonable person acting judicially” test to de Smith’s expression “unreasonably burdensome or oppressive”.
I have reviewed the record, and with respect to each of the particulars regarding which the Committee found the appellant guilty, there was sufficient evidence supporting the conclusion that the findings could be reached by reasonable people. It is not our mandate to go further.
It is only necessary for the purpose of addressing this issue to make the general observation that each of the five witnesses gave graphic and detailed evidence respecting visits by them to the appellant. They stated that a number of improper things occurred. These consisted of such things as touching of the breasts and other parts of the body in a manner not consistent with that ordinarily done by a physician during a professional examination, but characteristic of improper sexual touching. In some instances, the examination was conducted without any warning or consent taken from the patient. The patients spoke of the unnecessary removal of clothing and inadequate or improper draping of private parts of their bodies, as well as other acts indicating a disregard by the appellant for their personal privacy. The witnesses spoke of a number of inappropriate comments - in one case, personal discussions relating to the appellant’s own family circumstances - and discussions relating to the circumstances of the patients, including their sex life. Testimony was given by one witness about the appellant’s attempts to establish a social relationship with her.
The appellant refers to expert evidence from a physician specializing in physical medicine supporting the appellant’s examination techniques. The Committee’s findings of guilt found support in the testimony of an expert in physical medicine called by the College, as well as the vivid descriptions by the five female patients of the appellant’s behaviour. Simply put, no error of law in the fact finding process has been shown.
3. Sufficiency of findings of the Committee said to be based on “preferred evidence” of the complainants over that of the appellant:
The appellant refers to the fact that on a number of occasions the Committee, in its reasons, made the statement that it preferred the evidence of a complainant to that of the appellant. The appellant says that in so doing it misconceived its responsibilities with respect to the burden of proof.
The Committee observed that the parties were in agreement that the College bore the onus of establishing each of the allegations asserted against the appellant. It quoted the following passage from the decision of Glube, C.J.T.D. in Qureshi v. Provincial Medical Board (1983), 61 N.S.R. (2d) 280 at 285:
The burden of proof in a case of this nature rests on the party or body alleging professional misconduct. This is a civil matter and it cannot be decided on a balance of probabilities or preponderance of evidence. Nor is the test that required in a criminal case of beyond a reasonable doubt. The burden approaches the latter and falls somewhere between the civil and criminal standard.
The Committee also referred to the standard stated by Grotsky, J. in Stephen v. College of Physicians and Surgeons (Sask.) (1991), 95 Sask. R. 176 (Q.B.) at p. 186:
Findings of professional misconduct, in my respectful view, ought to be made when the proof of that misconduct is clear and convincing and based on cogent evidence.
As I shall show later, proceedings such as these are not criminal proceedings. The burden of proof of professional misconduct is the burden of proof on a preponderance of evidence. It rests upon the professional society throughout the proceedings. “Clear” and “convincing” proof based on “cogent” evidence is required only because the gravity of the charge is such that something less is not sufficient to warrant the conclusion that the balance of probabilities has been tilted. In Continental Insurance Co. v. Dalton Cartage Co., [1982] 2 S.C.R. 164, Laskin, C.J.C., speaking for the Court, said at p. 169:
Where there is an allegation of conduct that is morally blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities. So this Court decided in Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154 ...
Laskin, C.J.C. then quoted the following passage from the decision of Lord Denning in Bater v. Bater, [1950] 2 All E.R. 458 at p. 459:
It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter. A civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.
Laskin, C.J.C. then said at p. 171:
I do not regard such an approach as a departure from a standard of proof based on a balance of probabilities nor as supporting a shifting standard. The question in all civil cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.
Thus, there is no third standard of proof applicable here which is higher than the civil standard. To the extent that the Committee may have relied on the quotation from Qureshi (supra), I believe this operated in the appellant’s favour.
Dictionary definitions of the word “prefer” are to the effect that it means a liking better or valuing more highly of one thing over another, thus implying that the thing not preferred is nevertheless not without merit. Resolving credibility issues on the basis of a mere preference, it is submitted, would be appropriate in determining an ordinary civil matter by way of the balance of probabilities. It is said that it would be inappropriate to overcome the burden where the proof must be “clear” and “convincing” and based on “cogent” evidence.
While at first blush this argument appears attractive, a closer analysis of the Committee’s reasoning satisfies me that it did not err.
Having referred to the burden of proof, including the passage from Qureshi (supra), the Committee, before making its findings with respect to the allegations of each of the complainants, made the following general statement under the heading “credibility”.
In assessing the credibility of the witnesses, the Panel considered the opportunities for knowledge of each witness, their powers of observation, judgment and memory, the ability of the witnesses to describe clearly what he or she saw or heard, the demeanor of the witnesses and all of the surrounding circumstances.
The Committee then addressed the evidence of the five complainants. It first reviewed that of D.B. It said inter alia:
We find that Dr. Dhawan pricked the nipples of D.B. suddenly and without notice or explanation.
. . .
We accept the evidence of D.B. that Dr. Dhawan wiped perspiration from the underside of D.B.’s breast with his finger and wiped it on his coat.
. . .
We find that Dr. Dhawan did press his body against D.B. while examining her . . .
Then, in dealing with allegations with respect to unnecessary removal of clothing and failure to respect D.B.’s privacy, the Committee stated:
We prefer the version of the facts stated by D.B. She had an excellent recollection of the events and was clear and concise in her explanation of what took place and the effect that the examination had on her.
. . .
We thereupon find that Dr. Dhawan unnecessarily removed clothing and failed to respect the privacy of D.B. . . .
. . .
We find that D. Dhawan displayed great insensitivity towards the reasonable privacy expectations of this patient.
Addressing the findings respecting the witness, T.S., the Committee said:
We find that Dr. Dhawan removed the shirt of T.S. without notice or permission, that he pulled her bra straps down and off her arms without her permission, that he did not provide T.S. with a gown or adequate drapery and that he inappropriately exposed her body during the examination.
. . .
We therefore find that Dr. Dhawan’s conduct with respect to T.S. amounted to professional misconduct.
With respect to the witness S.S., the Committee said:
We find that Dr. Dhawan slapped S.S. on her buttocks and said okay.
Dr. Dhawan agreed that he assisted S.S. in removing her shirt and that he did not provide a gown or other draping. We find that this assistance was unnecessary and the lack of draping was inappropriate. The body of S.S. should not have been exposed.
. . .
S.S. and Dr. Dhawan did not agree on what was said by Dr. Dhawan in his office. The panel carefully assessed the credibility of S.S. and Dr. Dhawan . . .
. . .
We therefore accept the evidence of S.S. and find that Dr. Dhawan told S.S. he found her to be attractive, that he made inappropriate comments about her skirt and discussed her financial status and his relationship with his wife during office visits. We further find that during the last visit in September 1994 Dr. Dhawan invited S.S. to play tennis with him when no one would be around and he suggested that she not tell her family physician of his invitation to S.S. to play tennis. He asked S.S. to call him about playing tennis and when S.S. did not call him about making arrangements for tennis Dr. Dhawan called the home of S.S.
In its findings respecting M.M., the Committee said:
In our view the breast examination on this occasion was unnecessary and carried out in an unprofessional manner. We accept the evidence of M.M. concerning her presenting complaints and the fact that she had been treated for several years by another physician for the fibro cystic disease. . .
In the findings respecting A.K., the Committee stated that with respect the appellant entering the room without knocking, that A.K. had a very specific recollection of the event, and the Committee accepted her evidence on this point. Likewise, with respect to comments by the appellant during a visit on April 6, 1993, the Committee stated that she had a clear recollection of what was said and the Committee accepted her statements. In conclusion, with respect to A.K. however, the Committee said:
We find that Dr. Dhawan did indicate to A.K. that he could assist her with respect to her financial situation and make her wealthy if she cooperated with him. In all of the circumstances we prefer the evidence provided by A.K. on this point to the evidence of Dr. Dhawan.
The appellant strongly relies on the decision of the Ontario Court of Appeal in R. v. Riley (1978), 42 C.C.C. (2d) 437. In that case, a trial judge sitting without a jury, convicted the appellant of rape. The trial judge stated that the issue was whether or not there was consent to the act on the part of the complainant. He then instructed himself as follows:
And now to which version of the matter is true.
The judge considered each version in isolation and preferred that of the complainant to the appellant’s testimony. Having so concluded, he was satisfied that the Crown’s case had been proved beyond a reasonable doubt. Dubin, J. A. speaking for the court at p. 440:
With respect, we think that he erred in approaching the issue before him in that manner. The issue before him was not which version of the evidence was true, but rather, on the totality of the evidence viewed as a whole, whether the Crown’s case had been proved beyond a reasonable doubt.
The court pointed out that it was not without significance that the trial judge did not specifically reject the evidence of the appellant or find his evidence to be incredible. The conviction was set aside and, having regard to the fact that the Crown’s evidence was an unsafe basis on which to found a conviction, the Ontario Court of Appeal entered an acquittal.
That case is clearly distinguishable from this. It was a criminal case. The Ontario Court of Appeal reminds us here how important it is that the trier of fact fully understand and properly apply the very heavy burden resting on the Crown in criminal cases. The burden in this matter was a lesser burden. The Committee instructed itself on what that burden was. It made a general statement of the matters it took into account in assessing the credibility of the witnesses. It did not simply deal with the testimony of any complainant on the one hand, and that of the appellant on the other, “in isolation”.
In such cases as Riley, the central concern is that the trier of fact appreciate and apply the proper standard of proof to the evidence. In a number of criminal cases such as Riley, courts have set aside as unsafe, convictions were language has been used that could give rise to concern that the proper test was not formulated and applied. See R. v. Nadeau, [1984] 2 S.C.R. 570; R. v. Saulnier (1989), 89 N.S.R. (2d) 208 (N.S.C.A.); R. v. Gushue (1992), 117 N.S.R. (2d) 152 (N.S.C.A.); and, R. v. Brown (1994), 132 N.S.R. (2d) 224 (N.S.C.A.).
In its decision, the Committee stated in some instances that it accepted the evidence of the complainant, and in others that it preferred that of the complainant over the appellant. The term “preferred” may not have been as good a choice of words as “accepted”, having regard to the requirement for cogent evidence. However, I do not conclude that it is inconsistent with the proper application of the Committee of the burden of proof. Indeed, as I have already pointed out, if anything, the Committee stated the burden in a manner overly favourable to the appellant.
What is most significant, however, is the fact that when the Committee stated its preference, it was not choosing between relatively comparable or similar alternatives. The evidence of the appellant on the one hand was sharply contradictory to that of each complainant on the other. It would be impossible to “prefer” one account without completing rejecting the other. Any kind of coexistence between the two versions or anything close to it was not an option. The preference of one version over the other in this context clearly implied the rejection of the other - not a lesser choice.
Taking the Committee’s reasons relating to this issue as a whole, I am satisfied that the Committee did not misapprehend adversely to the appellant the burden resting on the College or the application of the proper principle in weighing the evidence and reaching the conclusions.
4. Reopening of the College’s Case:
The hearing took place over eight days in November and was adjourned until February, 1997. At the resumption of the hearing, after the College had already closed its case and the appellant had opened his case with his own testimony and that of two experts, counsel for the College made a motion to reopen its case based on evidence just recently obtained. This consisted of similar fact evidence of L.C., a former patient of the appellant and her general practitioner, Dr. M.C. Counsel for the College advised the Committee that it was the College’s intention, should the Committee exercise its discretion to permit it, to reopen its case to call these two witnesses to give similar fact evidence.
The Committee heard evidence led by the College directed to whether the College had exercised due diligence in securing the evidence of L.C. It reserved its decision pending the hearing of additional defence evidence. The Committee then decided to hold a voir dire to determine the nature of L.C.’s evidence. At the conclusion of the voir dire it ruled that the evidence of L.C. and Dr. M.C. was relevant to four of the charges in respect to which S.S. had testified.
The Committee also found that the evidence sought to be adduced was not available to the College prior to January, 1997 and could not have been obtained earlier by it without violating policies of the College respecting contact with third parties, including the Nova Scotia Medical Society. This is a finding of fact that I would not disturb.
The appellant’s position is that the Committee erred in its discretion in permitting the College to reopen its case. It is not disputed that in both criminal and civil cases a court has a discretion to permit the Crown or the plaintiff to reopen its case. In criminal cases, such discretion is more restricted. The later the stage, the greater the restriction. Compare Gateway Realty v. Arton Holdings Ltd., et al. (1991), 106 N.S.R. (2d) 163 (N.S.S.C.T.D.) and R. v. T. (M.B.) (1994), 89 C.C.C. (3d) 289 (S.C.C.). See R. v. G.(S.G.), [1997] 2 S.C.R. 716. See also the decision of this Court in R. v. Schofield (1996), 148 N.S.R. (2d) 175 at pp. 180-181.
Proceedings such as those which were held before the Committee are not criminal proceedings. See Qureshi, supra; Wigglesworth v. R., [1987] 2 S.C.R. 541 at p. 560, per Wilson, J.; Pearlman v. Manitoba Law Society (1991), 6 W.W.R. 289 (S.C.C.) at p. 297; Sheehan v. Edmonton (City) (1990), 103 A.R. 89 (Alta. C.A.) at 80; and Re James and Law Society of British Columbia (1982), 143 D.L.R. 379. Such proceedings are considered not to have “true penal consequences”, are thus as not criminal in nature. They have been referred to as “civil litigation in an administrative law context”. Casey in The Regulation of Professions in Canada (Carswell) states at paragraph 11.1:
A disciplinary hearing for a tribunal has many quasi-criminal aspects. A professional is “charged” with an offence, has a “trial” before a tribunal, is found either “guilty” or “not guilty”, and if guilty is then “sentenced”. Consequently, Courts have utilized many criminal law evidentiary concepts, for example, principles concerning the severance of charges and principles applicable in sentencing the professional. Nevertheless, it must be remembered that disciplinary hearings are not considered to be truly criminal in nature. Consequently, while some criminal law concepts may provide useful analogies, the law of evidence in criminal proceedings does not apply to disciplinary proceedings. The law of evidence applicable to disciplinary proceedings is that which applies to civil litigation in an administrative law context. This does not mean, however, that all of the rules of civil procedure applicable in a Court necessarily apply.
In particular, a major difference between such civil litigation in the administrative law context and criminal cases is the compellability to testify of the person complained against. See Pearlman, supra, James, supra. In the course of the proceedings, the chair of the Committee pointed this out.
The care taken by the Committee in hearing the representations, in setting forth reasons for its ruling and in giving the appellant a full opportunity to respond to the reopened case shows clearly that the Committee was sensitive to the appellant’s interests and treated him fairly.
Having considered the authorities referred to us, the discussions in the record and the responses of the Committee, I am satisfied that the appellant suffered no prejudice as a result of the ruling permitting re-opening of the case. The Committee did not err in exercising its discretion.
5. Admissibility of similar fact evidence of L.C.:
The Committee admitted the evidence of L.C. as relevant similar fact evidence respecting charges in relation to the complainant S.S. At the same time, the Committee determined that with respect to the complainant M.M., the evidence of L.C. and Dr. M.C. might be relevant, but was not of sufficient probative value. It ruled against the admissibility of the similar fact evidence respecting the complaints of M.M.
The four particulars of S.S.’s complaint to which the Committee considered the similar fact related were:
3(c) (i) You questioned her about her sex life.
(iv) You discussed your financial status with her.
. . .
(vi) You invited her to play tennis with you at a time when no one would be around.
(vii) You suggested that she not tell her family physician of your invitation to play tennis.
The salient features of L.C.’s evidence with respect to one of her visits to the appellant were:
(a) He was disappointed she had not come alone.
(b) He said that from the first time he met her, he knew there was something special between them. His antenna was up.
(c) He talked about his personal life and asked questions about the marriage and personal life of L.C.
(d) He asked L.C. if she had sex since the time of her separation.
(e) He told L.C. that she should have sex just as a car needed a boost and he was willing to take care of it before she left the office that day.
(f) The appellant suggested that he knew L.C.’s general practitioner well, and that it was good to keep secrets sometimes.
(g) The appellant came close to L.C., put his arm on her shoulders and asked if she wanted to see him again.
In its decision, the Committee noted that it took into account the evidence of L.C. in assessing the credibility of S.S. because of the striking similarities of circumstances, including that each patient had placed confidence and trust in this doctor while alone with him. The patients were in a vulnerable position, and in each instance the appellant made inappropriate remarks of a personal nature and pursued a personal relationship with the patient.
The seminal case dealing with similar fact evidence in criminal cases is Makin v. The Attorney-General New South Wales, [1894] A.C. 57. There Lord Herschell made the oft quoted two pronged statement at p. 65:
. . . It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.
Thus the general rule of evidence which prohibits a party from adducing evidence of bad character of an opposite party operates to exclude evidence of the accused’s disposition or propensity to commit crimes, or evidence of specific instances of misconduct on other occasions. The similar fact rule is an exclusionary rule, and an exception to the general principle that all relevant evidence is admissible. It permits evidence of other unsavoury conduct only if it is so probative of a fact in issue as to outweigh the prejudice it causes: R. v. Robertson (1987), 33 C.C.C. (3d) 481 (S.C.C.).
The development of the similar fact rule in Canada subsequent to Makin, supra, and the decision of The House of Lords in D.P.P. v. Boardman (1974), 3 All. E.R. 887 can be traced in such cases as Guay v. R. (1978), 89 D.L.R. (3d) 532 (S.C.C.); R. v. Green, [1988] 1 S.C.R. (228; R. v. Robertson, supra,; R. v. D. (L.E.) (1989), 50 C.C.C. (3d) 142 (S.C.C.); R. v. B. (C.R.) (1990), 55 C.C.C. (3d) 1 (S.C.C.); R. v. C. (M.H.) (1991), 63 C.C.C. (3d) 385 (S.C.C.); R. v. B.(F.F.), [1993] 1 S.C.R. 698; and R. v. S.G.G. , [1997] 2 S.C.R. 716.
Emphasis has now shifted away from a category-based approach to the resolution of two broad questions: (1) whether the similar fact evidence is relevant to some other issue beyond disposition or character; and, (2) whether the probative value of the evidence outweighs its prejudicial effect. See R. v. B.(F.F.) (supra) at p. 731.
The categories of probative value are never closed. They include support of the credibility of the complainant, evidence of system, of striking similarity, and to rebut suggestions of accident. These are but examples.
The prejudicial effect results from the likelihood that the evidence will induce the trier of fact to think of the accused as a bad person with the propensity to commit an act such as that in issue. It does not arise alone from the fact that the evidence may strongly tend to implicate the accused. In S.G.G., supra, (1997) S.C.J. No. 70 at para 100), McLachlin, J. in dissent said:
“Prejudice”, for the purposes of this inquiry, is used in the legal, procedural sense. The fact that the evidence tendered may be powerful evidence for the prosecution does not lead to a conclusion of prejudice. The inquiry into prejudice focuses not on the effect the evidence may have on the outcome of the trial, but on its effect on the accused’s right to make full answer and defence. The question is not whether the evidence may tend to convict the accused, but whether it is likely to convict him unjustly. The just or fair trial is one which gets at the truth, while respecting the fundamental right of the accused to make full answer and defence.
I emphasize that the danger here is that the evidence may lead to a conviction based on the perceived propensity of the accused to commit the act charged.
In R. v. Robertson (1987), 33 C.C.C. (3d) 481 (S.C.C.) Wilson, J. said at p. 500:
. . . The degree of probative value required varies with the prejudicial effect of the admission of the evidence. The probative value of evidence may increase if there is a degree of similarity in circumstances and proximity in time and place. However, admissibility does not turn on such a striking similarity; . . .
(emphasis added)
In civil cases, the concern respecting the danger of the case turning on propensity is not so great. The same general rule applies, however. The difference from criminal cases is illustrated in the following passage from the decision of Lord Denning in Mood Music Publishing Co. v. DeWolfe Ltd. (1976), 1 All E.R. 763 (C.A.) at p. 766:
The criminal courts have been very careful not to admit such [similar fact] evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is, if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side has fair notice of it and is able to deal with it.
As Sopinka, Lederman and Bryant, Law of Evidence in Canada points out, Lord Denning brings into play notions of oppression and unfairness, suggesting more flexibility of the rule in civil cases.
In MacDonald v. Canada Kelp Co. Ltd. et al. (1973), 39 D.L.R. (3d) 617 (B.C.C.A.), an action was based on allegations of fraudulent misrepresentation. Evidence that the defendant made similar misrepresentations in other transactions was held admissible to prove that he made the misrepresentations alleged by the plaintiff. Bull, J.A. in giving concurring majority reasons for the court said at p. 626:
When there is a real and substantial nexus or connection between the act or allegation made, whether it be a crime or a fraud (but not, of course, limited to those), and facts relating to previous or subsequent transactions are sought to be given in evidence, then those facts have relevancy and are admissible not only to rebut a defence, such as lack of intent, accident, mens rea or the like, but to prove the fact of the act or allegations made. The respondents submit that is not so, and “similar acts” are never admissible to prove the doing of the act itself. I cannot agree. . .
In Re College of Physicians and Surgeons of Ontario and Mohan (1993), 16 O.R. (3d) 62 (Ont.Div.Ct.), the appellant was found guilty of professional misconduct arising out of acts of sexual impropriety with three adolescent females. He appealed the Committee’s decision inter alia on the ground that it relied on similar fact evidence of two of the complainants to bolster the credit of the other. The court dismissed the appeal. Moldaver, J. delivering the judgment of the court said at p. 65:
. . . I am nevertheless satisfied that the incidents described by the three patients bore a sufficient number of similar features such that the committee was justified in using the similar fact evidence as it did . . .
Moldaver, J. noted that it was the appellant’s position that each of the complainants had fabricated a false story against him. It would thus defy logic and common sense to ascribe to mere coincidence the common features described by the three complainants. At p. 66 he said:
. . . absent evidence from which it could reasonably be inferred that the similarities described by the complainants might have arisen from collusion or some other infectious means, it can hardly be doubted that such similarities could legitimately serve to enhance the credibility of each of the individual complainants. . .
After reviewing the similarities as well as dissimilarities emphasized by the physician, the court concluded that the Committee had not erred in using the similar fact evidence.
In Bartashunas v. Psychology Examiners (1992), O.J. No. 1845 (Ont. Div.Ct.), the credibility of the complainants and the professional was the main issue. In dismissing the appeal from the findings of a disciplinary tribunal, the court said:
Striking similarity is no longer a prerequisite of admissibility but simply a factor in forming the degree of probative value of evidence proffered as similar fact. . .
. . .
We appreciate that there are some factual dissimilarities between the conduct of the applicant with A.L. and J.M. particularly in terms of the nature and duration of the sexual relationship. However, as stated by McLachlin J. at p. 739 of R. v. C.R.B., supra, such dissimilarities are not necessarily fatal to admissibility if it can be shown that the evidence shows “a pattern of similar behaviour suggesting the complainant’s evidence is true.” To paraphrase McLachlin J. in C.R.B. at p. 739, we are of the view that the nature and method of making sexual advances toward A.L. is similar to that employed by the applicant toward J.M. The applicant’s similar conduct toward both female clients constitutes evidence of a misuse of the applicant’s position as a psychologist to obtain sexual gratification and as such is probative evidence which demonstrates a pattern or system or design of similar behaviour suggesting the story of J.M. is true.
Once it is determined that the evidence has probative value, we must determine whether the probative value of the evidence outweighs its prejudicial effect. In circumstances where the credibility of the applicant and of the complainant J.M. is the central issue in the case we are persuaded that the probative value of A.L.’s evidence outweighs any prejudicial effect . . .
It is in our view clear that the admission of similar fact evidence involves an exercise of discretion by the tribunal which must initially determine between the probative value and prejudicial effect of the proffered evidence. The tribunal in this case exercised its discretion upon the proper principles and their decision is not to be lightly interfered with by an appellate court even if we may have reached a different decision or concluded this to be a borderline case. . .
An examination of the Committee’s reasons reveals that it clearly understood that the similar fact evidence must be relevant to an issue before it, and that its probative value must outweigh the prejudicial effect. The Committee satisfied itself that the evidence met this two-fold test.
The Committee identified the allegations to which it considered L.C.’s evidence was similar. It rejected the College’s position that the other tendered evidence was of sufficient probative value. The relevance of L.C.’s evidence in determining the issue of credibility as between S.S. and the appellant included:
(1) The pattern or system of the appellant in approaching vulnerable female patients and attempting to interest them in a personal relationship.
(2) With respect to the appellant’s alleged invitation to S.S. to play tennis with him, the appellant’s position was not that tennis was not discussed but that he had simply recommended that she play it. L.C.’s evidence showing that the appellant attempted to initiate a personal relationship supports S.S.’s version of the tennis discussion.
(3) Generally, the evidence of S.S. that the appellant was inviting her to become involved in a relationship outside of doctor/patient received clear support from the evidence of L.C.
(4) The evidence of L.C. is of value in addressing the issue of credibility relating to the discrepancies between S.S. and the appellant.
(5) L.C.’s evidence supports S.S.’s testimony that the appellant discouraged her from revealing their discussions to her family doctor.
(6) L.C.’s evidence supports that of S.S. when she testified that the appellant discussed his financial position with her.
(7) L.C.’s evidence supports that of S.S. that the appellant questioned her with respect to her sex life.
The appellant submits that the evidence of L.C. contains allegations so much more serious than that led to prove the charges as to result in prejudice disproportionate to its probative value. Reference is made in particular to L.C.’s evidence about a blatant proposition by the appellant to her of sex on the spot in his office. It is submitted that nothing in the evidence of S.S. approached such a serious allegation. In support of its position, the appellant refers to R. v. D. (L.E.), supra. There, the accused was charged with sexual assault consisting of fondling of his teenage daughter on two separate occasions. At trial, the Crown succeeded in introducing similar acts of fondling the daughter on several occasions between 1981 and 1985. A second series of acts occurring between 1978 and 1981 were much more serious, and included allegations of incest. The trial judge initially excluded these, but ultimately let them in following cross-examination by the defence of the child’s mother. An appeal by the accused from his conviction to the British Columbia Court of Appeal was dismissed. The Supreme Court of Canada, L’Heureux-Dubé, J. dissenting, allowed the appeal and ordered a new trial. Sopinka, J. speaking for the majority concluded that the prejudicial effect of the 1978-81 evidence exceeded its probative value. He said at p. 159:
No misconduct as serious as this was alleged to have occurred after May 1981. No evidence other than the complainant’s testimony was adduced to prove the offenses in the present charge. Evidence other than that of the complainant is not essential in every case before similar acts are admissible. In the present case, however, the similar fact evidence bore nearly the entire burden of proving the Crown’s case against the appellant on the acts charged. The trial judge was thus correct in not admitting this evidence. Its probative value was not sufficient to overcome its prejudicial effect . . .
In concluding that the 1981 to 1985 similar fact evidence was not objectionable, Sopinka, J. observed, as well, that not only was it not more serious, but that these incidents were more proximate in time to those forming the basis of the present charge.
I am not satisfied that the Supreme Court of Canada has laid down an inflexible rule that similar fact evidence more serious than the principal evidence is to be excluded. In R. v. D. (L.E.), the evidence at issue was much more serious. It also came solely from the complainant. It bore almost the entire burden of proving the Crown’s case, and it was much earlier in point of time to those facts forming the basis of the charge. These four elements militated against the admission of the evidence.
Was the evidence of L.C. “more serious”? To answer that question, it is, in my opinion, necessary to consider the entirety of the evidence of the five complainants before the Committee and not just that supporting the charges on which there was a finding of guilt. This is the only way to evaluate prejudice.
Unlike the case of R. v. D. (L.E.), supra, L.C.’s evidence did not bear “nearly the entire burden” of the College’s case. While it is true that the College admitted it specifically in relation to four particulars, there was a total of about 60 particulars on the table, some of which were more serious than anything spoken of by L.C.:
(a) An allegation of an unnecessary breast examination conducted on D.B. D.B. described how the appellant felt her breasts with his full hand, “not just the tips”. His hands were “all over the breast”. She had had many breast examinations. She described this particular one as “mauling”.
(b) Unnecessarily and without explanation rubbing the hand over the abdomen of D.B., touching her pubic hair; “It was like he was feeling and it felt terrible”.
(c) He tweaked D.B.’s nipples without any warning. This caused the patient to say “Jesus Murphy what the hell did you do that for?” His response was to see if there was sensation.
(d) An unnecessary breast examination conducted on S.S.; The following extracts from S.S.’s evidence serves to make the point:
A. He was under my right breast, and he came up over my right breast with an open palm and started massaging my breast.
Q. And what do you mean by massaging your breast?
A. He massaged it in a sexual manner.
. . .
Q. Okay. And can you compare this exam with previous ones you have had?
A. Previous ones I had were clinical. They were like - they were done with the top parts of your fingers. They were very clinical. This one was more one that - well what happened to me with Dr. Dhawan was more of a sexual nature, a sexual manner. I felt like it was something my boyfriend would do or its just - it wasn’t clinical.
Q. Did Dr. Dhawan advise you that he was going to conduct a breast examine?
A. No. No, he did not.
S.S. described the appellant as a “pervert”.
(e) An allegation that, in the context of her claim for personal injuries, the appellant told A.K. he could make her wealthy if she cooperated with him. He then said he would schedule her appointments later in the afternoon so that he would have more time to spend with her. She said he behaved like a man who had an immediate sexual attraction to a woman. The vibes he was sending out were very clear. She described the physical examination as being like sexual caresses.
(f) An unnecessary breast examination of M.M. performed without any warning. In response she “froze”.
As well as the foregoing examples, it is necessary to consider the evidence of the five complainants as a whole. The very clear impression gained from the descriptions of the examinations complained of is chilling. We see a doctor whose examination techniques are described as different than any other - unique and unorthodox. There are allegations of the appellant as unnecessarily close, laughing, giggling, grinning, employing such body language and spoken language and handling these women in such a way as to create an atmosphere of fear, discomfort and disgust. The following words are gleaned from their testimony as descriptive of their reactions: “anger”, “hurt”, “disrespect”, “humiliated”, “shock”, “disbelief”, “shame”, “revulsion”,” violation”, “confused”, “upset”, “horrified”, “insecure”, “uncomfortable”, “wary”, “nervous”, “betrayed”, “inappropriate”, “unprofessional”, “abused”. Three of the five women said they were driven to tears following the examinations, all said they were left in a distressed state.
In the context of all of this, L.C.’s testimony about a spoken invitation to have sex is not “more serious”. It is but another step in a bizarre pattern of behaviour revealed from all of the testimony offered by the complaints.
The seriousness of the similar fact evidence is but one of the many factors to be weighed in the balance of prejudice and probative value. In general, the more serious the similar fact evidence than the principal evidence, the greater degree of prejudice.
In addition, the respondent reminds us that this is not a criminal case, and submits that the public interest in seeing that professions require the highest standards of its members can be taken into account in balancing prejudicial effect and probative value. It is not necessary here to take this step and I do not do so. However, I do keep in mind that it is a civil case and this Court should be “less chary” of excluding the evidence.
The Hearing Committee correctly stated the test. It exercised its judgment call that, overall, the probative value of L.C.’s evidence outweighed its prejudicial effect. After considering the authorities and examining closely the evidence of L.C., S.S. and the other complainants, I am satisfied that the Committee correctly performed this balancing exercise. The evidence of L.C. was properly admitted.
6. Rebuttal Evidence:
7. Similar fact evidence by way of rebuttal:
8. Use made of similar fact evidence admitted on rebuttal:
It is convenient to discuss these grounds together. They relate to the testimony of E.R. who was called by the College on rebuttal to give similar fact evidence against the appellant.
Following the close of the appellant’s case, the College moved to introduce rebuttal evidence from E.R., a former patient of the appellant, together with corroborative evidence of a co-worker of E.R. This was similar fact evidence dealing with the appellant’s actions towards E.R. when she was in his office as a patient and subsequent follow ups by her at her work place, in person and at home by telephone.
The College was not aware of the rebuttal evidence sought to be introduced until February, 1997. E.R. had read reports in the press of defence witnesses who had testified that the appellant had always conducted examinations of them properly. Feeling that this was not characteristic of her experience with him, E.R. contacted the College.
The Committee heard submissions from counsel and held a voir dire following which it concluded that E.R.’s evidence and that of her co-worker could be admitted to rebut the evidence of good character which had been led by the appellant in his defence. The Committee referred to the discretion vested in courts with respect to rebuttal evidence and the fact that in general the discretion will not be exercised to allow evidence which the Crown possessed before or during the presentation of its case.
The Committee ruled that a voir dire would be held respecting similar fact evidence to rebut the character evidence called by the appellant. In so saying the Committee observed that this was a civil, not a criminal proceeding. The Committee was concerned that it hear all of the relevant evidence.
Following the voir dire, the Committee ruled that it was not prepared to hear the proposed witness for the purpose of rebutting evidence of the appellant relating to the use of his phone page number, but that such evidence would be received to rebut character evidence presented by the appellant.
E.R. testified that she had worked in a restaurant for many years. She was referred by her family physician to the appellant. She saw him in 1994 at which time he asked if she had a boyfriend. He made comments about her hair. At an examination in May of 1995, while the appellant examined her from behind, he moved her neck around and kissed her. E.R. testified that she was shocked, and got dressed and left.
Following the incident at the office, the appellant came to E.R.’s place of work and told her that he wanted to get together with her. He wrote down his telephone number and told her to tell his secretary that she was not a patient but a friend of the family. This would enable her to get through to him. E.R. identified a sheet of paper on which the appellant wrote the telephone number and pager number. He also wrote down his name in the way it was pronounced.
E.R. did not call the number but the appellant came again to her place of employment and asked for her. He wanted to know when they could get together. E.R. gave no commitment. Later the appellant called E.R. at home by telephone and again asked if they could get together. This did not happen.
E.R.’s co-worker testified to the visit of the appellant to the restaurant looking for E.R.
The Committee made use of E.R.’s evidence, not only with respect to character, but with respect to the evidence of S.S. The Committee said:
We took into account the evidence of L.C. and E.R. because of the striking similarities of circumstances including the fact that each of these females had placed her confidence and trust in this doctor while alone with him in his office and examining room. These patients were in a vulnerable position and in each instance, he made inappropriate remarks of a personal nature and indicated that he was interested in a personal relationship with a patient.
(emphasis added)
The appellant contends that the Committee erred in receiving the rebuttal evidence, erred in receiving it as similar fact evidence for any purpose and, in particular, for any purpose other than to rebut evidence of the appellant’s good character.
The appellant refers to the well known rule that the Crown in a criminal case or a plaintiff in a civil case is not allowed to split the case by introducing confirmatory evidence by way of rebuttal. However, evidence of specific acts of misconduct on the part of an accused or defendant may be introduced in rebuttal if they meet the test for the admission of similar fact evidence and the evidence is otherwise appropriate for rebuttal in that the Crown or plaintiff is not splitting the case. See Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992, Butterworths), p. 462. In Guay v. The Queen (1978), 42 C.C.C. (2d) 536 (S.C.C.) at p. 545 the court said:
In the case at Bar, the defence was precisely, besides character evidence, that the visits of the young witnesses were made for perfectly legitimate purposes. This defence made the similar fact evidence admissible in rebuttal.
Guay, supra, was followed in R. v. McNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.) affirmed (1985), 19 C.C.C. (3d) 1 (S.C.C.). The Ontario Court of Appeal said at pp. 348-349 (56 C.C.C. (2d)):
It was also contended on behalf of the appellant that where evidence of good character, in whatever form, is introduced by the prisoner (whether it be extrinsic evidence or by his own testimony) it cannot be rebutted by evidence of specific acts of bad conduct; rather, the Crown is confined to rebutting the evidence of good character by evidence of general reputation or by proof of a previous conviction pursuant to s. 593 of the Criminal Code. Counsel for the appellant argued that the provisions in s. 593 constitute the only exception to the common law rule that evidence of good character can only be rebutted by evidence of bad reputation. There is at least one additional exception, namely, the Crown may adduce similar fact evidence in rebuttal of evidence of good character...
I am satisfied that the evidence of E.R. was properly admitted by the Committee to the extent that it constituted rebuttal evidence. Did it constitute similar fact evidence?
In its ruling, the Committee, having heard submissions from counsel, stated simply that it had decided to admit “all of the evidence that we heard on the voir dire. So that evidence is now part of the proceeding”.
The evidence of E.R. was relevant as similar fact evidence rebutting character evidence and supporting the allegations of S.S. For the reasons discussed in issue (6) above, it goes to establish that the appellant engaged in a pattern of behaviour using the doctor/patient relationship as the basis for attempting to establish a sexual and/or social relationship with a patient. The appellant’s response to some of the allegations was that his personal discussions were mere friendliness that had been misunderstood. The rebuttal evidence of E.R. contradicts this, and is supportive of the evidence of S.S. that the appellant’s conduct was anything but mere friendliness. The evidence is relevant in that it shows the pursuit of the social relationship subsequent to the office visit into the home or work place of the female patient. In each case the patient was single.
The appellant submits that the evidence of E.R. fails the test as to whether it is more probative than prejudicial. The principal argument in support of this submission is that the evidence of E.R. respecting the kiss is more serious than any evidence given by S.S. which it is used to support. To this, I would refer to what I have already said with respect to this submission under issue (6) above. Greater seriousness is but one factor. When the evidence of the kiss is taken into account with the other evidence of S.S. - even leaving aside evidence of the other four females before the Committee - it does not merit the description of “more serious”.
The only remaining concern is whether the panel erred in admitting the similar fact evidence of E.R. for all purposes, and not merely as contradictory of the appellant’s character evidence.
The decision of the Ontario Court of Appeal in R. v. Tierney (1982), 70 C.C.C. (2d) 481 is instructive on the question of the use to which similar fact evidence can be put once received in rebuttal.
On the accused’s trial for rape, the evidence indicated that he had formed a relationship with the victim. They discussed marriage. The accused and the victim then argued and broke off the relationship. The victim testified that the accused subsequently raped her at knife point. The accused testified that the victim was a consenting participant at all material times, and called a number of witnesses to testify to his good character and, in particular, with respect to decency and the absence of violence. In reply, the Crown sought to adduce evidence of another woman who had also entered into a relationship with the accused and who had been violently raped by him after the relationship broke off. The Crown also sought to adduce evidence of the accused’s psychiatrist to the effect that the accused had admitted to him that he had in the course of an argument with the victim threatened her with a pair of scissors.
The trial judge refused to admit the similar fact evidence and the accused was acquitted. On an appeal by the Crown, the Ontario Court of Appeal set aside the acquittal and ordered a new trial on the ground that the similar fact evidence should have been admitted. Zuber, J.A. speaking for the court observed that it was now clear that evidence of a specific instance may be admissible to rebut evidence of good character if it is not simply a specific incident but a similar fact: Guay, supra.
Having concluded that the two pieces of evidence were admissible as similar fact evidence, Zuber, J.A. continued at p. 488:
Since there is to be a new trial, it is perhaps appropriate to say something respecting the treatment to be given to the evidence of Shirley Geddes and Dr. Kerr. Guidance in this respect is to be found in R. v. McNamara et al. (No. 1) (1981), 56 C.C.C. (2d) 193 at p. 352, where it is stated:
Where the only avenue of admissibility of evidence of bad character is to rebut the accused’s evidence of good character, the evidence has a limited use. Wigmore says:
After a defendant has attempted to show his good character in his own aid, prosecution may in rebuttal offer as evidence his bad character. The true reason for this seems to be, not any relaxation of the principle just mentioned, i.e., not a permission to show the defendant’s bad character, but a liberty to refute his claim that he has a good one. Otherwise a defendant, secure from refutation, would have too clear a license unscrupulously to impose a false character upon the tribunal.
Thus, the evidence of bad character cannot be used to show that the person was likely from his character to have committed the offence. The evidence does, however, have a bearing on the general credibility of the accused. In theory, what the jury is asked to do is to reject the accused’s evidence as unreliable: see R. v. Samuel (1956), 40 Cr. App. R. 8. Different considerations, of course, apply where the evidence adduced to rebut good character evidence is similar fact evidence, or other evidence which may have probative value in its own right on the issue of guilt. Where the accused in the course of cross-examination as to character, makes admissions having probative value on the issue of guilt, these may, of course, be used against him.
Thus the evidence of Dr. Kerr respecting the respondent’s abnormal disposition is admissible only to rebut evidence of good character and not to prove guilt. The evidence of Shirley Geddes and the evidence of Dr. Kerr respecting the threat with the scissors as similar acts are admissible to rebut evidence of good character but may also be probative of guilt.
In Guay, supra, Pigeon, J. speaking for the Supreme Court of Canada said at pp. 542-543:
On the admissibility of similar fact evidence, I think it should be said that it is essentially in the discretion of the trial Judge. In exercising this discretion, he must have regard to the general principles established by the cases. There is no closed list of the sort of cases where such evidence is admissible. It is, however, well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character. Where the evidence is admissible on the first mentioned basis, it may be admitted as part of the case for the prosecution.
Secondly, where similar fact evidence is thus admissible, the evidence on each similar count may also be used to corroborate the evidence for the prosecution on each of the other counts. Seeing that similar fact evidence may be used to rebut the kind of defence above mentioned, the evidence on each count becomes admissible to rebut the defence on each of the other counts. It cannot obviously be necessary to have it repeated for this purpose; it is enough to say that it may be taken into account.
I conclude therefore that the Committee made proper use of the evidence of E.R. when it admitted it generally as part of the College’s case.
9. Penalty imposed upon the appellant:
The relevant provisions of the Act conferring sentencing powers upon the Committee are:
66 (2) A hearing committee
. . .
(e) shall determine whether the member or associate member is guilty of charges relating to a disciplinary matter, and
(i) where there is a guilty finding, may determine that
. . .
(B) the license or specialist’s license, or both, of the member or associate member be suspended
(I) for a fixed period, or
(ii) for an indefinite period until the occurrence of some specified future event or until compliance with conditions prescribed by the committee,
(C) conditions, limitations or restrictions be imposed on the licence or specialist’s license, or both, of the member or associate member,
(D) the member or associate member undergo such treatment or re-education as the committee considers necessary,
. . .
(G) such other disposition as it considers appropriate be imposed, or
(a) Suspension:
The Act, in s. 4(3) sets out the objects of the College with respect to the regulation of the profession and the maintenance of standards “in order that the public interest may be served and protected.” In my opinion, this is the primary purpose of the legislative scheme regulating the practice of medicine in the Province. While not stated, it is arguable that the preservation of the reputation of the profession is an objective of the legislation.
The primary purpose of a disposition made by the Committee under the Act is, without question, the protection of the public.
It is difficult if not impossible to address the issue of penalty without utilizing criminal law concepts.
The appellant has referred us to a large number of cases involving medical doctors in support of its contention that a six month’s suspension from practice was manifestly excessive and should be reduced by this Court.
It is necessary to keep in mind that this appeal is restricted to a point of law. In Wood v. Cross (1993), 92 Man. R. (2d) 94 (Man. C.A.) Philp, J.A. said at p. 99:
There is convincing appellate authority in Canada that the “fitness” of a sentence is not a question of law alone: see R. v. McIntyre (1976), 13 N.B.R. (2d) 220; 13 A.P.R. 220 (C.A.); R. v. Thomas (No. 2) (1980), 53 C.C.C. (2d) 285 (B.C.C.A.); R. v. Guida (1989), 51 C.C.C. (3d) 305 (Que. C.A.); R. v. Bellefleur (1990), 86 Sask. R. 235 (C.A.); and R. v. Loughery (1992), 73 C.C.C. (3d) 441 (Alta. C.A.). The contrary opinions expressed in R. v. S.S. Kresge Co.(1975), 8 Nfld. & P.E.I.R. 415; 8 A.P.R. 415; 27 C.C.C. (3d) 420 (P.E.I.C.A.), and by Major, J.A. (as he then was) in Loughery are not persuasive.
I would conclude that there is an error of law if improper principles of sentencing were applied or if the sentence was, to paraphrase the words of MacKeigan, C.J.N.S. in Penny, supra, at p. 188, one that no reasonable persons acting judicially could have reached.
I have reviewed the cases submitted by the appellant. I have reviewed the Committee’s reasons for sentencing. In it, the Committee stated that notwithstanding the fact that several of the particulars of complaint were withdrawn or found not proven, there were serious findings against the appellant in relation to all five former patients. The Committee rejected the submission that the offences were at the low end of the scale of professional misconduct. The appellant, it said, displayed a disregard for his patients and a lack of appreciation of boundary issues which must be considered by all physicians. Five female patients placed their trust and confidence in the appellant and were subjected to extremely inappropriate and unacceptable behaviour by him. The Committee expressed a concern that if the type of behaviour revealed remained unchecked, female patients would be reluctant to undergo examinations by male doctors. Patients must be able to have confidence and trust in their physicians.
In my opinion, it has not been shown that the Committee erred in law in the imposition of the suspension or the length of its term.
(b) Assessment at Abbott/Northwestern Hospital:
The appellant also objects to being forced to undergo the assessment at Abbott/Northwestern Hospital and to follow recommendations for counselling or other treatment which may result from the assessment and further, objects to the continuation of his suspension if he fails to follow such recommendations.
At the penalty hearing, Dr. L. C. Little, Registrar of the College, testified respecting Abbott/Northwestern Hospital. It is located in Minneapolis, Minnesota. It offers a program for the assessment of medical and other professionals who have exhibited behaviour problems. The program lasts five days and is done on an intensive out-patient basis. Referred physicians stay at a motel in the hospital complex. They spend their daytime hours at the hospital in confidential one-to-one interviews with a number of members of a team assigned to prepare the assessment. The team includes but is not limited to psychiatrists, psychologists, internists, case managers, addiction medicine consultants and pastoral/spiritual care counsellors. At the conclusion of the assessment a report is prepared explaining the professional’s current difficulties and how they evolved. Also included are conclusions and diagnosis if present. Finally, specific recommendations for corrective action are made. All of the assembled information is discussed in detail with the professional involved in the assessment.
Introduced in evidence was an assessment from the Abbott/Northwestern Hospital respecting an individual referred to it by the College. The name of the individual and identifying information was removed. It was a comprehensive assessment which made detailed and interesting recommendations.
Dr. Little was not aware of any similar existing program in Canada. There is a program being developed in Ontario.
In its decision, the Committee stated:
The panel is not satisfied that the reasons for some of the behaviour of Dr. Dhawan are clear. We are of the view that by having an appropriate assessment carried out, both Dr. Dhawan and the College will receive a better understanding of the problems that led to this behaviour and if remedial measures are recommended, that the best interests of the public will be served by compliance with same.
I would not interfere with the requirement that the appellant submit to the assessment. The Committee was not satisfied that the reasons for some of the behaviour of the appellant are clear. Having reviewed the Committee’s reasons, I find no error of law in this disposition. I have carefully considered the case of Brand v. College of Physicians and Surgeons of Saskatchewan (1990), 72 D.L.R. (4th) 446 (Sask. C.A.) which was heavily relied on by the appellant. The court there was of the view that it was reasonable to require a psychiatric assessment, but that it was unreasonable to fail to specify with certainty the requirements of the assessment which the Tribunal had imposed upon Dr. Brand. Vancise, J.A. speaking for the majority on this issue said at p. 456 that if council had clearly stated the purpose of the psychiatric assessment, the type required, and stated by whom they wanted it done, it was unlikely that there could have been any challenge of that discretion.
A review of the evidence of Dr. Little and the exhibit book, the Committee’s findings on guilt and the remarks in its penalty decision satisfies me that there was sufficient certainty as to exactly what the assessment at the Abbott/Northwestern Hospital encompassed.
I wish to add a word respecting Dr. Judith Gold, a psychiatrist called by the appellant in defence. The appellant relies on her assessment of what lay at the root of the appellant’s problems - he was poorly trained, was naive and crossed boundaries not through the intent of committing sexual abuse, but through his own lack of training and insensitivity to cultural mores. The appellant says that since the Committee made no comment respecting Dr. Gold’s evidence, it was bound to accept it and should have taken it into account in making a psychiatric assessment. In her cross-examination, Dr. Gold said that the appellant needed an intense educational period. She said this was a difficulty in Canada. She was not able to testify to any places in Canada where this treatment was available. She knew of some possibilities in the United States, but she was not aware of the Abbott/Northwestern Hospital.
The five day assessment program at the Abbott/Northwestern Hospital is defined with sufficient certainty. The assessment of the anonymous physician shows clearly what is contemplated. I reject entirely the appellant’s contention that this part of the disposition was unreasonable.
In view of the Committee’s obvious concern, and the limited options for assessment available I am satisfied that the assessment at Abbott/Northwestern Hospital is appropriate and falls within the terms of the expression “such treatment or re-education as the Committee considers necessary”.
I have a concern with the requirement that the appellant’s licence suspension remain in effect indefinitely until he satisfies the Registrar that he has complied with the recommendations resulting from the assessment before his licence can be returned to him. In extending the suspension in the event that, in the opinion of the Registrar of the College, the appellant failed to follow such recommendations, the Committee has, in effect, delegated the power to impose a continued suspension of licence and to determine the duration of such continued suspension, to the Registrar. This I think it cannot do. Such proposed suspension does not fall within the terms of s. 66(2)(c)(i)(D) or (G) of the Act. The Committee, and only the Committee, may impose the penalty. It has fixed a period of six months for the suspension. It has erred in law in delegating to the Registrar permission to extend that period. I would therefore strike out from the order of the Committee in paragraph (a) the words “or if, in the opinion of the Registrar of the College, Dr. Dhawan has failed to follow the recommendations made as a result of the assessment”.
It may be open to the College to take other steps should the appellant not comply with the recommendations contained in the assessment from the Abbott/Northwestern Hospital.
The appellant did not challenge the condition respecting a female chaperone or the award of costs by the Committee in the event the Committee’s decision was upheld.
10. Disposition:
In the result, therefore, I would dismiss the appellant’s appeal with the exception of the variation in sentence as proposed. Counsel were heard with respect to costs. There was general agreement that as to amount, 40% of the figure awarded by the Committee was not unreasonable. The result I have proposed means that the respondent has been substantially, but not entirely successful on this appeal. I would fix costs of the appeal at $20,000, plus disbursements to be taxed, and to be paid by the appellant to the respondent.
We were informed that the appellant's suspension was stayed pending the outcome of this appeal. I would therefore delay the issue of the order herein for two weeks following the filing of these reasons. This is to give counsel an opportunity to make written submissions to the Court respecting an effective date for the suspension and the making of arrangements for the assessment at the Abbott/Northwestern Hospital.
Chipman, J.A.
Concurred in:
Freeman, J.A.
Bateman, J.A.