Law Times

Law Times • December 1, 2014 Page 7 www.lawtimesnews.com COMMENT Should regulators report suspected crimes to police? CaThi mieTKieWiCz For Law Times ome members of the media have criticized regulators like the Law Society of Upper Canada and the College of Physicians and Sur- geons of Ontario for not reporting potential crimes committed by their members to police. The core mandate of regulators of self-regulated professions is to regulate the profession in the pub- lic interest. My experience is that regulators take this mandate very seriously, but does this public-protec- tion mandate extend to reporting potential crimes to the police? And does it extend to preventing future harm beyond the regulatory sanctions it may impose on members of the college? We can assume society understands the process for reporting incidents to the police. Policing agencies have various ways to get information to them and of- fer support if the issue is complex or involves delicate matters. One could argue that if a complainant comes to the regulatory body with a concern, the person didn't want it to be a police matter but instead wanted it dealt with only by the regulator. However, as we have seen in news stories following the Jian Ghomeshi affair, there are reasons why vic- tims may not report to the police. On the other hand, a regulator may be in a better position to know if an activity constitutes a criminal matter. The regulator's experience, coupled with its respon- sibility to protect the public, may make it a better judge of whether or not police should be aware of certain ac- tivities of its members. However, mandatory reporting of potential crimes would mean complainants would get sucked into criminal proceedings with no regard for their feelings because the regulator thinks it is in the public interest. Also, consider that the regulator would be disclosing to police information a complain- ant had shared for the purposes of filing a complaint with it. The legislation governing regulators usually impos- es confidentiality obligations with respect to informa- tion received in the course of regulating a profession. For example, the Regulated Health Professions Act is umbrella legislation that regulates a number of health professions in Ontario. It says "every person employed, retained or appointed for the purposes of the admin- istration of this Act . . . every member of a Council or committee of a College shall keep confidential all in- formation that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person. . . ." However, the act has certain exceptions permitting a health regulator to release confidential information: • To a police officer to aid an investigation in a law- enforcement proceeding or from which a law-en- forcement proceeding would likely result. • If there are reasonable grounds to believe the dis- closure is necessary for the purpose of eliminat- ing or reducing a significant risk of serious bodily harm to a person or group. • With the written consent of the person to whom the information relates. As always, specific circumstances may come into play. The regulator may have a broader perspective than the complainant if there have been other com- plaints against the member for similar behaviour. The regulator may then believe reporting to the police is necessary to reduce the risk of harm to another indi- vidual or the public. Also, the regulator could ask the affected individual for consent. For regulators operating under the Regu- lated Health Professions Act, this falls into the consent exception of the law and would mean the regulator has not overridden the complainant's wishes. It could also be viewed as the regulator assisting and supporting complainants who may not realize that the conduct constitutes criminal behaviour as well as those who don't understand the criminal process. In many ways, this takes the onus off the regulator and puts the question of notifying police back onto the complainant. A complainant may have legitimate concerns about the criminal process. However, the person may have other reasons for not wanting to in- volve police. For example, in a matter such as fraud, the complainant may have initially agreed to partici- pate in the scheme. Timing matters, too. Consider the following questions: If a regulator is going to provide information or file a complaint with the police, should it do so during an investigation, at the time it makes a referral to the discipline com- mittee or only if there is a finding of guilt at a dis- cipline proceeding? And if a regulator reports to police while still conducting its investigation, is there an advantage to running dual processes simultaneously? What are the consequences, and could one jeopardize the other? Is it in the best interests of the complainant or the public for the regulator to wait until the investigation is complete or it makes a disciplinary finding? If there is persuasive evidence of a significant risk of harm to the public or individuals, should the regulator wait until an investigation or discipline process is complete before notifying police? The question may come down to roles. A fine line exists between personal choice, privacy, and public safety. Is it clear who is responsible for what and when? Are there clearly articulated exceptions? Although the issue continues to appear in the me- dia, in some jurisdictions there may be no need for such a discussion. For example, the law requires sever- al state boards in the United States to report suspected criminal offences. Health regulators in Alberta must send the min- ister of justice and the solicitor general copies of any discipline decision where the hearing tribunal feels there are reasonable and probable grounds to believe the health-care provider who was the subject of the hearing has committed a criminal offence. The criminal justice and professional regulation systems were designed independently and have largely functioned independently of each other. But it may be time for police and regulators to figure out who has jurisdiction and when and how they should report to one another. The onus is on both as protectors of the public good. LT Cathi Mietkiewicz is a lawyer with Steinecke Maci- ura LeBlanc who advises regulators on issues involving board governance, contracts, and privacy as well as de- veloping regulations, policies, bylaws, and standards of practice. She was previously president of the College of Opticians of Ontario. u SPEAKER'S CORNER A look at Canada's own Magna Carta ou're going to hear a lot about Magna Carta in 2015, a year that marks the 800th anniversary of the sealing of that famous docu- ment by King John at Runnymede. An original of the charter will be tour- ing Canada next year with stops in Toron- to, Ottawa, Winnipeg, and Edmonton, courtesy of Magna Carta Canada 2015. The Magna Carta has come to stand for many things: the rule of law, equality before the law, prohibition on illegal im- prisonment, and so on. People in settler colonies such as Canada considered it as part of their constitutional heritage. But I was still surprised when I ran across a 1792 letter from John Graves Simcoe calling the Constitutional Act of 1791 the "Magna Charta [of Upper Can- ada], under which that colony will im- mediately be admitted to all the privileges that Englishmen enjoy." That was the act, you may recall, that split the old province of Quebec into the colonies of Upper and Lower Canada and endowed each with a representative legislature. That's about all most people know about the act of 1791, whose constitu- tion it created ended with the rebellion of 1837 and the Act of Union 1840. But the 1791 constitution has been undeservedly ignored and misinterpreted as a kind of reactionary response to the American Revolution. But the intent was the exact opposite as it served as a show- case for the British conception of liberty with sovereignty vested in Parliament versus the American version of liberty vested in the people. Some scholars have called the American version "classical liberty" as popular sovereignty is in fact a very old idea. The British conception of "modern liberty," by contrast, takes in- dividual liberty seriously but with Parliament able to limit it in the public interest or in order to re- solve conf licts between different kinds of individual rights. These conceptions, while different, do overlap. One might say that under classical liberty, liberty is the fundamental value while under modern liberty it's merely a fundamental value. The debate over the Constitutional Act 1791 at Westminster revealed that the British saw the new American constitu- tion not as something radically different but rather as an outgrowth of their own. Edmund Burke said Britain should give a free constitution to Canada "because the people of Canada should have nothing to envy in the constitution of a country so near to their own." It was almost as if a continental competition was going on to see who had the best constitution. The most obvious way in which the act of 1791 mimicked the U.S. Constitution was sim- ply that it was written down. The British were famous for their "unwritten" constitu- tion (even though it in fact had important written com- ponents such as the Bill of Rights 1689 and the Act of Settlement 1701). But here they were, just a few years af- ter the American Revolution, creating a written constitu- tion for the Canadas. The act had 50 sections laying out in detail the governmental institutions of the new and recreated colonies of Upper and Lower Canada. There was no explicit declaration of rights, mind you, as those were understood to be implicit in the status of British subject, but there was a commitment to government under law. The act of 1791 was quite different from the preceding "hip-pocket consti- tutions," as I call them. The constitutions of the Maritime provinces were provided in embryo in the instructions to the gov- ernors appointed when those colonies were created, including those of the new Loyalist colonies of New Brunswick and Cape Breton Island in 1784. The gover- nor was instructed to appoint a council, call elections for an assembly, and create courts on the English model. Such a set of instructions could be carried in the gov- ernor's hip pocket, figuratively speaking, when he sailed out to administer a colony. But these instruments were creatures of the royal prerogative and could be re- voked or altered with each new governor. They left a lot of discretion to the governor and weren't terribly well known outside of his circle of advisers. That was the signifi- cance of the act of 1791. It was a public and solemn statute addressed to the populace as a whole, not just to the governor, that created institutions of governance meant to be enduring. In that sense, it was a Magna Carta. The institutions created under the 1791 act didn't work in harness: relations among the governor, legislative council, and assembly eventually broke down, leading to the three Rs: reform, rebellions, and responsible government. But even if the institutions were reconfigured, the main idea underlying the act — the idea of modern liberty — survived through the constitutions of 1840 and 1867 and is now instantiated in the Canadian Charter of Rights and Freedoms, our new Magna Carta. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. Y That's History Philip Girard S

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