Some members of the media have criticized regulators like the Law Society of Upper Canada and the College of Physicians and Surgeons 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 public interest. My experience is that regulators take this mandate very seriously, but does this public-protection 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 offer 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 victims 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 responsibility to protect the public, may make it a better judge of whether or not police should be aware of certain activities 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 complainant had shared for the purposes of filing a complaint with it.
The legislation governing regulators usually imposes confidentiality obligations with respect to information 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 administration of this Act . . . every member of a Council or committee of a College shall keep confidential all information 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-enforcement proceeding would likely result.
• If there are reasonable grounds to believe the disclosure is necessary for the purpose of eliminating 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 complaints 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 individual or the public.
Also, the regulator could ask the affected individual for consent. For regulators operating under the Regulated 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 involve police. For example, in a matter such as fraud, the complainant may have initially agreed to participate 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 committee or only if there is a finding of guilt at a discipline 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 media, in some jurisdictions there may be no need for such a discussion. For example, the law requires several state boards in the United States to report suspected criminal offences.
Health regulators in Alberta must send the minister 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.
Cathi Mietkiewicz is a lawyer with Steinecke Maciura LeBlanc who advises regulators on issues involving board governance, contracts, and privacy as well as developing regulations, policies, bylaws, and standards of practice. She was previously president of the College of Opticians of Ontario.
