Concurrent Discipline and Criminal Proceedings

Should a discipline hearing proceed even though a criminal trial on related allegations is pending? In Berko v. Ontario College of Pharmacists, 2021 ONSC 6120 (CanLII), https://canlii.ca/t/jj5tn the practitioner asked for the discipline hearing to be deferred:

The Applicant argued before the Discipline Committee that he would face irreparable harm if the discipline hearing preceded the criminal trial; should he choose to testify at the hearing, that testimony could be used against him in the subsequent criminal trial. Moreover, the Applicant’s participation in the discipline hearing would serve to reveal his defence strategy to the criminal prosecutor, or the Discipline Committee might draw an adverse inference if he did not testify.

The Committee balanced the competing considerations and indicated that it “was not persuaded that the Applicant would suffer any irreparable harm if the stay [i.e., deferral] was denied”. The practitioner sought judicial review of the decision. The Court declined to interfere on the basis that the application was premature. The Court provided the following additional observations:

The Applicant may well face some tactical choices about whether to testify in the discipline hearing but that does not rise to the level of procedural unfairness that would constitute an exceptional circumstance. If there is prejudice to the fairness of the disciplinary proceedings, that can be raised at the end of the hearing on an appeal.

As well, it is not unusual that discipline proceedings and criminal proceedings overlap. The Applicant’s submission that testifying at the discipline hearing might prove prejudicial, or that the discipline hearing would betray his defence strategy in the criminal case, is a generic submission that could be made in every case. To show exceptional or extraordinary circumstances requires more.

There is no evidence that the Applicant will expose himself to any irreparable harm should the discipline hearing precede the criminal trial. The disciplinary allegations overlap with but are not the same as the criminal charges. We can only presume that the criminal court will ensure the Applicant’s right to a fair trial by adhering to the rules of evidence and affording the Applicant protections guaranteed by the Charter.

While discipline panels need to consider the circumstances of the individual case, in the absence of particular unfairness discipline proceedings may proceed before the related criminal trials.

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