Regulators are often uncertain about proceeding with discipline allegations, even serious ones, when there are parallel criminal proceedings. The regulator does not wish to interfere with the criminal process. In addition, it is sometimes difficult for the regulator to obtain evidence where the police have already gathered it. Also, as a practical matter, if a criminal finding is made, the regulator often can rely on it rather than having to prove the allegations at a contested hearing. However, unless a suitable interim order or agreement can be reached, the protection of the public by the regulator may be compromised by waiting for the outcome of the criminal matter.
Quebec’s highest court has provided some guidance in R. c. Zarow, 2024 QCCA 441 (CanLII). There, a health practitioner was disciplined for allegations of sexual abuse of a patient. To protect the parallel criminal proceedings on charges of sexual assault, several confidentiality orders were made by the discipline panel preventing public access to the proceedings and outcome. Despite these orders, the regulator’s syndic provided a copy of the discipline decision and reasons finding the practitioner guilty of professional misconduct to the police and complainant. The issue was whether the criminal proceedings should be stayed as an abuse of process because of that disclosure.
The Court found the breach of the confidentiality orders to be very serious but determined that it was premature to stay the criminal prosecution. There was potential for prejudice in two ways. First, the defence of the practitioner was revealed. Second, the complainant might now be tainted with this additional knowledge.
The Court placed the disclosure in context. Regulators have a right, and even a duty, to protect the public even where there are parallel criminal proceedings. Prior disclosure of an accused’s defence is not uncommon. Indeed, such disclosure can be required in regulatory proceedings. The open court principle for disciplinary hearings often, rightly, results in public access even where there are parallel criminal proceedings. The confidentiality orders made in this case are not required in every (or even most) cases. The possible tainting of the complainant was not a basis for a blanket finding of prejudice to the accused. The Court left the issue of whether there was actual prejudice to be determined by the trial judge when all of the circumstances were better known.
Regulators should receive some assurance from this decision that proceeding with discipline matters, where there are parallel criminal proceedings, is generally acceptable. Also, whether any protective orders should be made in the discipline proceeding will depend on the circumstances giving due regard to the important principle of open hearings.