Hamilton, Moore, Cournoyer

Appeal from a judgment of the Court of Québec granting an application to stay proceedings. Allowed.

The respondent, a chiropractor who was the subject of a disciplinary complaint alleging, among other things, sexual misconduct towards a former patient, was also charged with sexual assault against her (s. 271 of the Criminal Code (R.S.C. 1985, c. C-46)). Despite the confidentiality orders rendered by the Ordre des chiropraticiens du Québec, the syndic transmitted a decision it had rendered to the police investigator, who in turn transmitted it to counsel for the prosecution.  The trial judge, who turned her mind to the prejudice caused by the transmission of this decision,  found that no remedy other than a stay of proceedings would suffice to cure it and restore the accused’s right to a fair trial.

The standard of review applicable to a stay of proceedings was described R. v. Babos (S.C. Can., 2014-02-21), 2014 SCC 16, SOQUIJ AZ-51046916, 2014EXP-660, J.E. 2014-343, [2014] 1 S.C.R. 309. An appellate court’s intervention will be warranted where a judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is so clearly wrong as to amount to an injustice. In this case, the judge’s decision was premature. Under the principles established in R. v. La (S.C. Can., 1997-06-26), SOQUIJ AZ-97111080, J.E. 97-1409, [1997] 2 S.C.R. 680, the evaluation of prejudice caused by the disclosure of the disciplinary council’s decision should have waited at least until the former patient finished testifying or the end of the prosecution’s case. Moreover, it is essential to discuss the rules governing proceedings that are held in parallel to a criminal prosecution concerning the same facts or related facts. 

Contrary to the respondent’s position, R. c. Couche-Tard inc. (C.A., 2014-07-31), 2014 QCCA 1456, SOQUIJ AZ-51098449, 2014EXP-2495, J.E. 2014-1428, does not establish that a presumption of prejudice always flows from the prosecution learning the accused’s version of events through parallel proceedings and would always result in a stay of proceedings. In this case, it was necessary to determine whether there was indeed a prejudice to his right to a fair trial.  The disclosure of an accused’s version of events in other proceedings, in this case disciplinary proceedings, is an inevitable consequence of the fact that there are parallel criminal proceedings. In addition, the right to protection against self-incrimination is protected through well-established procedural safeguards. Last, with respect to the restrictions to the open court principle, applying the Dagenais/Mentuck/Sherman framework is a fact-specific and contextual endeavour.  If we were to conclude that the mere disclosure of the respondent’s defence through the improper transmission of the council’s decision is sufficient to result in a stay of the criminal proceedings – even without the demonstration of a real prejudice to the right to a fair trial – it would become necessary to issue some form of confidentiality order in every case of disciplinary proceedings parallel to a criminal prosecution in order to prevent the disclosure of an accused’s defence and a consequential stay of proceedings. In my view, the issuance of automatic confidentiality orders would be contrary to the open court principle.

Furthermore, whether the former patient was tainted by the reading of the decision is to be tested through cross-examination in order to determine whether the reliability and credibility of her testimony was impacted. No premature conclusion may be drawn before such a cross-examination.  Under these principles and in light of the preceding review of the law applicable to proceedings parallel to a criminal prosecution, the decision to stay the proceedings is quashed.

Text of the decision: http://citoyens.soquij.qc.ca