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CLEAR 2008 Annual Conference Anchorage, Alaska Institutional Bias in the Discipline Process: Perception or Reality? Moderator: Bruce G. Matthews, P.Eng.

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Presentation on theme: "CLEAR 2008 Annual Conference Anchorage, Alaska Institutional Bias in the Discipline Process: Perception or Reality? Moderator: Bruce G. Matthews, P.Eng."— Presentation transcript:

1 CLEAR 2008 Annual Conference Anchorage, Alaska Institutional Bias in the Discipline Process: Perception or Reality? Moderator: Bruce G. Matthews, P.Eng.

2 CLEAR 2008 Annual Conference Anchorage, Alaska Format & Introductions 3 resolutions to be debated –10 minutes for each position –3 minute rebuttal for first speaker Question & answer session at the end of the debate

3 CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2009 – Denver, CO September 10 through 12, 2009 Denver 2009 Reception – this evening from 6 to 7 pm in the Mid Deck room Information about the Mile High City Door Prizes Refreshments More fun than the Presidential Debates!

4 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 The existence of a screening body, be it a Complaints Committee, Investigation Committee or Probable Cause Panel, intended to ensure that only the most serious matters are referred to a discipline hearing, creates a bias against the registrant / licence holder before the hearing ever begins.

5 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Speaking in favour: Jon Pellett

6 CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Screening complaints & Introduction of Bias The disciplinary process – Does the disciplinary process provide a means by which complaints are screened before formal charges are brought against the licensee and/or regulated entity?

7 CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 If there is a screening committee or body that evaluates cases before formal complaints are filed: 1.Do committee/panel members participate in the final decision? 2.Separate counsel for advice versus recommendation for prosecution?

8 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 3.Do agency attorneys present the cases to the screening body or committee? 4.Do the same agency attorneys present the case before the licensing board or agency head? CLEAR 2008 Annual Conference Anchorage, Alaska

9 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Principle I: There must be balance between the prosecution and the accused so that they are on equal footing Principle II: The agency bears the burden of proving the violation Principle III: The judge/adjudicator is neutral and not biased in favor of the agency or the accused. CLEAR 2008 Annual Conference Anchorage, Alaska

10 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 The circumstances should not offer a possible temptation to the average person acting as a judge to either forget the burden of proof required to convict the respondent/licensee or allow the person to forget to maintain the balance required between the interests of the state and the accused CLEAR 2008 Annual Conference Anchorage, Alaska

11 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Principle IV: There is a presumption that those serving as adjudicators are honest and of integrity Principle V: State administrators are assumed to be persons of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances CLEAR 2008 Annual Conference Anchorage, Alaska

12 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 When has it gone too far? When agency head serves as a witness, reviews the findings of the ALJ, and makes the final decision in the same matter. CLEAR 2008 Annual Conference Anchorage, Alaska

13 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Can the same attorney who prosecutes a case on behalf of the agency also serve to advise the agency in its deliberations as an impartial adjudicator? Our adversarial system of justice places a premium on the fairness of the judicial or quasi-judicial procedure CLEAR 2008 Annual Conference Anchorage, Alaska

14 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 The decision maker must not allow one side in the dispute to have a special advantage in influencing the decision CLEAR 2008 Annual Conference Anchorage, Alaska

15 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 While in a vacuum ideally you could have one person both prosecute the case before the agency and also advise the agency, more often than not, when a hearing has become heated due to the adversary nature of the proceeding, there is a natural tendency of the prosecutor to advise the agency in a manner most advantageous to the prosecutor s position CLEAR 2008 Annual Conference Anchorage, Alaska

16 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Speaking against: Jill Dougherty

17 CLEAR 2008 Annual Conference Anchorage, Alaska A Note About Bias Duty of fairness applies to discipline/ licensing proceedings – requires impartiality and absence of bias Captures actual bias and apparent bias (ie: reasonable apprehension of bias)

18 CLEAR 2008 Annual Conference Anchorage, Alaska A Note About Bias cont Reasonable apprehension of bias exists where an informed person, viewing the matter reasonably and practically and having thought the matter through, would conclude that there was a real likelihood, or reasonable apprehension, of bias.

19 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Benefits Members No bias is created by the existence of a screening body. Screening benefits members by ensuring that they do not face the expense, anxiety and risk of a discipline hearing unless a hearing is warranted.

20 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Benefits Members Referral to a hearing is in itself a significant consequence for a member. A stringent screening process is important to avoid unnecessary referrals.

21 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Do Not Decide Allegations "The decision to hold a hearing does not amount to a prior determination of the validity of the allegations against the permit holder." (Québec Regie des Permis d'alcool)

22 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Do Not Decide Allegations Complaints Committees and other screening bodies exercise screening functions only. They do not hold hearings to determine disputed facts or impose penalties. (Botros v. College of Physicians & Surgeons (Ontario); Silverthorne v. College of Social Workers & Social Service Workers (Ontario)).

23 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Do Not Rule on Facts or Credibility There is no weighing of evidence or finding of fact at the referral stage. The screening bodys task is only to determine whether there is some evidence based upon which the hearing body might find misconduct or incompetence. (Russell v. Ontario (Civilian Commission on Police Services)).

24 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Do Not Rule on Facts or Credibility Screening bodies do not assess credibility in any detail. They only determine whether the prosecution witnesses if believed could meet the onus of proof. (Canadian Civil Liberties Assn. v. Ontario). Where a screening body refers a matter for hearing, no reasons for decision are issued. This eliminates the risk that the screening bodys reasons will influence the hearing body.

25 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Serve an Essential Function It is important to have a specialist screening body which includes members of the profession, since screening bodies exercise considerable discretion and make decisions which involve significant policy considerations (eg: decisions as to what types of cases are serious enough to warrant referral, or what disposition is required to protect the public interest). (Schuilthuis v. College of Veterinarians of Ontario).

26 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Serve an Essential Function Having a screening body composed of members of the profession (and usually members of the public) is also critical for the credibility of the screening and hearing process and for public confidence in the process. Screening bodies serve a gatekeeper function which is important for members and for the college/ board/ regulatory body, since screening helps to control the nature and number of hearings.

27 CLEAR 2008 Annual Conference Anchorage, Alaska Screening Bodies Serve an Essential Function The modern trend is toward more screening and an expansion of the power of screening bodies to allow them to deal with matters by means other than referral to hearings. (Matheson v. College of Nurses of Ontario)

28 CLEAR 2008 Annual Conference Anchorage, Alaska Hearing Bodies Are Not Influenced by Referrals The hearing body holds a full oral hearing, hears the submissions of counsel and the testimony of witnesses. It does not review or defer to the decision of the screening body. The hearing body makes its own independent judgment. Hearing bodies are sophisticated enough to understand that a referral is not a finding of guilt.

29 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Concerns Are Not Caused by Screening It is not the existence of a screening body that creates the potential for bias, but overlap between investigative / screening / prosecutorial and decision-making functions, or other circumstances specific to a particular case.

30 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Concerns Are Not Caused by Screening A reasonable apprehension of bias has also been found to exist where the hearing body has extensive prior knowledge about the case coming before it (eg: where the hearing body receives significant information regarding the investigation of the matter.

31 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Due to Overlap in Functions Bias arises not from the screening process itself, but from overlap of functions, when the same individuals investigate or prosecute and adjudicate.

32 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Due to Overlap in Functions Reasonable apprehension of bias may exist where: Same individual investigates, prosecutes and then has input into the decision; A person who participated in the investigation or prosecution advises the hearing body; The prosecutor advises the hearing body or helps it write reasons;

33 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Due to Overlap in Functions Reasonable apprehension of bias may exist where: The Registrar investigates, appoints the hearing panel and attend before the panel as an expert witness; The same in-house legal department (and potentially the same lawyer) advises re prosecutions, drafts Notices of Hearing/ charges, makes submissions at the hearing and helps the adjudicator draft reasons; A current (or possibly a former) member of the hearing body attends before a panel of that body as a witness.

34 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Concerns Do Dot Justify Eliminating Screening Concerns re possible overlap in functions can be addressed by: Keeping careful records of which individuals sat on the screening body or were involved in the investigation or prosecution of a case, to facilitate checking potential panel members for bias; Conducting a careful check of potential hearing panel members to identify any prior involvement in case, or other possible issues re bias;

35 CLEAR 2008 Annual Conference Anchorage, Alaska Bias Concerns Do Dot Justify Eliminating Screening Concerns re possible overlap in functions can be addressed by: Separating the files and staff involved in investigations from those involved in hearings Ensuring that information supplied to the hearing body before the hearing, concerning a case coming before it, is appropriately limited

36 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #1 Rebuttal: Jon Pellett

37 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #2 In a situation where the discipline panel hearing a matter and the party prosecuting the matter fall under the same organizational umbrella (i.e., are operated by the same Board or College), it is impossible for the process to be free from bias because of the familiarity between the prosecutor and the judges.

38 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #2 Speaking against: Jill Dougherty

39 CLEAR 2008 Annual Conference Anchorage, Alaska Multi-Functional Agencies Are Permitted The SCC has squarely rejected the argument that a reasonable apprehension of bias exists simply because the investigative, prosecutorial and adjudicative functions are under the same organizational umbrella. Provided that those functions are appropriately separated within the organization, no issue of bias exists (Québec Regie des Permis dalcool)

40 CLEAR 2008 Annual Conference Anchorage, Alaska Multi-Functional Agencies Are Permitted Establishing an umbrella organization with investigative, prosecutorial and adjudicative functions is a policy choice made by the legislature and may be authorized by statute. (Brosseau; LSUC v. French)

41 CLEAR 2008 Annual Conference Anchorage, Alaska The Issue is Overlap of Functions The test for bias is: "What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would [that person] think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." (Committee for Justice and Liberty v. National Energy Board).

42 CLEAR 2008 Annual Conference Anchorage, Alaska The Issue is Overlap of Functions While an overlap of functions may give rise to a reasonable apprehension of bias, merely having them under the same roof doesnt.

43 CLEAR 2008 Annual Conference Anchorage, Alaska Test for Bias Differs in Administrative Tribunal Context Mere familiarity between prosecutor and adjudicator does not give rise to a reasonable apprehension of bias, even in criminal proceedings, much less in disciplinary ones. Discipline proceedings are not criminal proceedings and are subject to a less stringent test for reasonable apprehension of bias.

44 CLEAR 2008 Annual Conference Anchorage, Alaska Test for Bias Differs in Administrative Tribunal Context "In a criminal trial, the smallest detail capable of casting doubt on the judge's impartiality will be cause for alarm, whereas greater flexibility must be shown towards administrative tribunals. (Quebec Regie des permis alcool; See also Brosseau v. Alta Securities Commission) Often both the prosecuting counsel and defence counsel are equally familiar to the hearing body.

45 CLEAR 2008 Annual Conference Anchorage, Alaska Familiarity is not Equivalent to Bias Mere familiarity, even between the adjudicator and the parties or witnesses, has not generally been regarded as sufficient to create a reasonable apprehension of bias in professional discipline proceedings. The familiarity must be considered in light of the context of the proceedings and the particular tribunal. If the industry, profession or group being regulated is relatively small, it may be impossible to establish a hearing process where those involved have no familiarity with one another. (see. Daneshevor v. National Dental Examining Board of Canada)

46 CLEAR 2008 Annual Conference Anchorage, Alaska Familiarity is not Equivalent to Bias Hearing bodies typically have their own independent legal counsel. They do not view prosecuting counsel as their lawyer.

47 CLEAR 2008 Annual Conference Anchorage, Alaska Familiarity May be Inherent in Self-Regulation The whole point of having self-governing professions is a recognition that members of those professions are best regulated by their peers, who are uniquely equipped to establish and apply professional standards and evaluate professional conduct.

48 CLEAR 2008 Annual Conference Anchorage, Alaska Familiarity May be Inherent in Self-Regulation The professional community in a particular jurisdiction is often relatively small and some familiarity among members and regulators is inevitable. This has not been regarded as giving rise to a reasonable apprehension of bias.

49 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #2 Speaking in favour: Jon Pellett

50 CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #2 Bias in the relationship of presiding officer and prosecutor Who will the presiding officer believe is more credible? 1.The prosecutor who regularly appears before agency ? 2.The defense attorney who regularly appears before the agency? 3.An attorney who has never appeared before the agency?

51 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #2 Rebuttal: Jill Dougherty

52 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #3 In view of the screening body and familiarity issues discussed earlier, it is completely unreasonable to have a standard of proof in discipline hearings that is below that of beyond reasonable doubt.

53 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #3 Speaking in favour: Jon Pellett

54 CLEAR 2008 Annual Conference Anchorage, Alaska CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #3 Effects of Bias on Standard of Proof Preponderance of the Evidence Clear and Convincing Evidence Beyond a Reasonable Doubt

55 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #3 Speaking against: Jill Dougherty

56 CLEAR 2008 Annual Conference Anchorage, Alaska Criminal Standard of Proof Does Not Apply It is appropriate to have a standard of proof in discipline hearings that is below the criminal standard of "beyond a reasonable doubt." Disciplinary proceedings are not criminal and the criminal standard of proof beyond a reasonable doubt does not apply to the professional disciplinary context.

57 CLEAR 2008 Annual Conference Anchorage, Alaska Criminal Standard of Proof Does Not Apply The standard of proof in criminal matters is higher because a criminal accused faces more serious consequences (including possible incarceration and other penal sanctions) which do not apply to discipline proceedings (R. v. Wigglesworth)

58 CLEAR 2008 Annual Conference Anchorage, Alaska The Bernstein Standard The standard of proof in discipline proceedings is proof on a balance of probabilities, but that standard must be met by clear and convincing proof based on cogent evidence (often referred to as the 'Bernstein' standard).

59 CLEAR 2008 Annual Conference Anchorage, Alaska The Bernstein Standard The Bernstein standard refers to the quality of the evidence required of the prosecution in order to sustain the serious type of allegations sufficient to remove a person's ability to earn his livelihood in his chosen profession. (LSUC v. Evans; See also Bernstein v. College of Physicians and Surgeons)

60 CLEAR 2008 Annual Conference Anchorage, Alaska The Bernstein Standard Given the serious nature of the allegations of professional misconduct, the quality of the evidence required to prove the allegations on a balance of probabilities increases. (LSUC v. Neinstein)

61 CLEAR 2008 Annual Conference Anchorage, Alaska The Civil Standard of Proof in Discipline Proceedings Within the administrative law context, it is accepted that strong and unequivocal evidence within the civil standard of proof is required where either the issues, or the consequences for the individual, are very serious. (Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board; See also Hanson v. College of Teachers (Disciplinary Hearing Sub-Committee)).

62 CLEAR 2008 Annual Conference Anchorage, Alaska Rationale for Different Standards of Proof Criminal proceedings impact the fundamental rights of the accused (such as liberty and security of the person), whereas discipline proceedings affect a privilege to practice a profession or participate in a regulated industry.

63 CLEAR 2008 Annual Conference Anchorage, Alaska Rationale for Different Standards of Proof Licensure is a privilege and membership in a licensed business or regulated professional therefore carries heightened obligations. In this context, a civil rather than criminal standard of proof is appropriate.

64 CLEAR 2008 Annual Conference Anchorage, Alaska Resolution #3 Rebuttal: Jon Pellett

65 CLEAR 2008 Annual Conference Anchorage, Alaska Q & A

66 CLEAR 2008 Annual Conference Anchorage, Alaska Speaker Contact Information M. Jill Dougherty WeirFoulds LLP, Toronto, Ontario 416-947-5058 jdougherty@weirfoulds.com Jon Pellett Barr Murman & Tonelli, P.A., Tampa, FL 813-223-3951 JPellett@barrmurman.com

67 CLEAR 2008 Annual Conference Anchorage, Alaska References 2747-3174 Québec Inc. c. Québec Regie des Permis d'alcool [1996] 3 S.C.R. 919. Botros v. College of Physicians & Surgeons (Ontario) (2007), 228 O.A.C. 75. Silverthorne v. College of Social Workers & Social Service Workers (Ontario) (206), 264 D.L.R. (4th) 175 (Div. Ct.). Russell v. Ontario (Civilian Commission on Police Services) (2006), 149 ACWS 3d 1141 (C.A.).

68 CLEAR 2008 Annual Conference Anchorage, Alaska References (cont'd.) Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 220 D.L.R. (4th) 86 (C.A.). Schuilthuis v. College of Veterinarians of Ontario 2005 CanLII 1083 at para. 5 (Div. Ct.). Brett v. Ontario (Board of Directors of Physiotherapy) (1992), 92 D.L.R. (4th) 693 (Div. Ct.). King v. Yukon Medical Council (2003), 14 Admin. L.R. (4th) 273 (Y.T.S.C.).

69 CLEAR 2008 Annual Conference Anchorage, Alaska References (cont'd.) Pierce v. Law Society of British Columbia (1993), 103 D.L.R. (4th) 233 (BCSC). Matherson v. College of Nurses of Ontario Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369. Brosseau v. Alta Securities Commission [1989] 1 S.C.R. 301.

70 CLEAR 2008 Annual Conference Anchorage, Alaska References (cont'd.) R. v. Wigglesworth LSUC v. Evans 2008 CarswellOnt 4043 (Div. Ct.). Bernstein v. College of Physicians and Surgeons (1977) 15 O.R. (2d) 447 (Div. Ct.). Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board, 2005 CanLII 24217 (ON C.A.).

71 CLEAR 2008 Annual Conference Anchorage, Alaska References (cont'd.) Hanson v. College of Teachers (Disciplinary Hearing Sub-Committee) (1993), 110 D.L.R. (4th) 567 (BCCA). College of Pharmacists (Ontario) v. Katzman (2002), 223 D.L.R. (4th) 371 (C.A.). LSUC v. Neinstein 2007 CarswellOnt 1560 (Div. Ct.).

72 CLEAR 2008 Annual Conference Anchorage, Alaska Appendix Principles I – III taken from Ward v. Villiage of Monroeville, Ohio, 409 US 57 (1972) Principles IV – V taken from Withrow v. Larkin, 421 US 35 (1975) Ridgewood Properties Inc. v. Department of Community Affairs,562 So.2d 322 (Fla. 1990)(when it has gone too far) Cherry Communications v. Deason, 652 So2d 803 (Fla. 1995)(prosecutor also as advisor) CLEAR 2008 Annual Conference Anchorage, Alaska


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