Use of Evidence from Discipline Hearings at Subsequent Criminal Trials

By Emma Gardiner

Introduction

A recent criminal case before the Ontario Court of Appeal, R. v. Lo, sheds light on the court’s use of evidence used during a professional discipline proceeding, and also on the law of admissions.

Background Facts

The defendant at the criminal trial under appeal was a psychologist (the "Psychologist"). He treated many patients for anxiety. Sometimes, as a method of treatment, he used muscle relaxation therapy, which included massaging the patient. Three patients complained to the (the “College”) that the Psychologist's massages progressed from their shoulders to rubbing and caressing their genital areas.

One of the complaints resulted in a discipline proceeding. Proceedings based on the other two complaints were not necessary as the discipline proceeding with respect to the first complaint resulted in the Psychologist agreeing to resign his certificate of registration.

The Psychologist was also criminally charged with three counts of sexual assault, one with respect to each of the three patients.

Discipline Hearing

In the hearing before the Discipline Committee of the College (the “Discipline Hearing”), the Psychologist pleaded guilty to one count of disgraceful and dishonourable conduct and no contest to one count of sexual abuse in relation to one of the patients (A.M.). A plea of no contest means that the Psychologist was not pleading guilty to sexual abuse, but he also was not contesting this allegation.

The Psychologist and the College submitted an Agreed Statement of Facts. The Agreed Statement of Facts recounted that the Psychologist had massaged A.M.'s shoulders without maintaining the appropriate boundaries. On one occasion, the Psychologist touched A.M.'s bare chest and nipple area, and on another he massaged A.M.'s bare leg as it rested on his own leg. The Psychologist moved his hand up A.M.'s leg until it touched her groin area. When A.M. reacted with discomfort, the Psychologist stopped the massage.

Criminal Trial

At trial, the Crown sought to introduce the Agreed Statement of Facts as evidence. The Crown argued that the evidence was admissible as an exception to the rule against hearsay, as it was an "admission against interest." Generally, an admission made by one party is admissible by an opposing party as long as the party seeking to rely on the admission establishes, on a balance of probabilities, that the party made the admission and that its probative value exceeds its prejudicial effect.

At the admissibility hearing, the Psychologist testified that he did not authorize his counsel to admit the fact that he touched A.M. in the manner described in the Agreed Statement of Facts.

The trial judge rejected the Psychologist's evidence. He found, based on emails between the Psychologist and his counsel, that the Psychologist’s counsel was acting within the scope of her authority when she submitted the Agreed Statement of Facts, and therefore, the Psychologist formally admitted the facts contained at the Discipline Hearing.

Satisfied that the proposed evidence was relevant, material, and admissible, the trial judge conducted a cost-benefit analysis to determine where the balance between probative value and prejudicial effect settled. The trial judge found the evidence (Agreed Statement of Facts)  was probative and reliable because it was an admission against the Psychologist's interest. Any reasoning prejudice was minimal and could be alleviated by instructions to the jury about the permitted and prohibited use of the evidence.

The Court of Appeal

The Psychologist appealed the decision of the trial judge. On appeal, the parties agreed that the Agreed Statement of Facts was relevant and material. The only issue for the Court of Appeal (the “Court”) to consider was one of admissibility, more specifically, whether the evidence sought to be admitted satisfied the rule governing admissions.

Psychologist's Arguments

On appeal, the Psychologist argued that the trial judge erred in concluding that he instructed his lawyer to admit the facts in the Agreed Statement of Facts. The Psychologist argued that he had given uncontradicted evidence that he did not instruct his lawyer to submit the Agreed Statement of Facts. The Psychologist therefore argued that the Crown had failed to establish that that he had admitted that facts alleged at the Discipline Hearing.

The Psychologist also argued that the trial judge erred in using the criminal law concepts of "formal admission" and "informal admission" in interpreting what occurred at the Discipline Hearing. The Psychologist argued that different principles apply at administrative disciplinary proceedings where pleas of no contest may be entered.

The Court's Analysis

The Court first reviewed the relevant law related to admissions. The Court defined admissions as "a statement of an opposing party offered in evidence against that party," and noted that this statement can be oral, written, or implied from nonverbal conduct.

The Court noted that both counsel (and several cited cases) referred to an admission as "against interest." The Court acknowledged that although some courts have used this descriptor, it is not accurate and confuses "admissions" with "declarations against interest," which are two separate exceptions to the hearsay rule. Unlike declarations against interest, there is not a requirement that an admission be against the party's interest. However, because admissions are submitted as evidence by an opposing party, they most often will be against a party’s interest.

The Court rejected the Psychologist's argument that the trial judge erred in finding that his lawyer admitted, on his behalf, the facts contained in the Agreed Statement of Facts. The Court cited case law recognizing that an agent acting within the scope of his or her authority can make admissions on behalf of a party.

The Court rejected the Psychologist’s argument that the trial judge had improperly used the criminal law concepts of "formal admissions" and "informal admissions." In fact, these are basic principles of the law of evidence, and they are not exclusive to the area of criminal law.

A formal admission is an admission made in the course of a proceeding, which could be criminal, civil, or administrative. A formal admission made in a proceeding is conclusive of the facts admitted in the context of that proceeding. According to case law, formal admissions can be admitted as evidence in subsequent proceedings as informal submissions. An informal admission is relevant evidence, but it is not conclusive of the facts.

Accordingly, the Court concluded that the trial judge had correctly referred to the Agreed Statement of Facts as a formal admission on the context of the Discipline Hearing, as it was conclusive with respect to the facts at the Discipline Hearing. The effect of the "no contest" plea was to leave "at large, at least in a literal sense, whether the admissions constituted 'sexual abuse.'" Therefore, the Agreed Statement of Facts was admissible at the criminal trial as an informal admission.

Conclusion

This case is significant because it clarifies the concepts of admissions (informal and formal) and the admissibility of an Agreed Statement of Facts used during a discipline hearing at a subsequent criminal trial. The Court also provided important insight for counsel and health professionals when parallel proceedings occur and the relationship between counsel and their clients. In determining whether to proceed with an Agreed Statements of Facts at a discipline hearing, counsel should be aware (and advise clients accordingly) that an Agreed Statement of Facts will likely be admissible at any subsequent criminal trial.