A recent decision from the Discipline Committee of the College of Physicians and Surgeons (“Committee”) is a rare and, at least to some, shocking example of a discipline committee rejecting a joint submission on penalty.
This case involved a Toronto doctor who was charged with professional misconduct in relation to sexually assaulting a 16-year-old boy. At the time of the assault, he was a 24-year old medical resident, who the panel found was “struggling to express his identity” as a gay man.
Dr. Khan had already pled and been found guilty of criminal charges of sexual assault in 2015, but received an absolute discharge. An absolute discharge means that the person will not be convicted of a crime or have a criminal record, although a record of the discharge will generally be on the record for one year.
Dr. Khan admitted to the misconduct, and counsel for the College and counsel for Dr. Khan submitted an Agreed Statement of Facts. This Agreed Statement of Facts described that Dr. Khan slept over at the house of AB, a 16-year-old boy. Dr. Khan and AB were sleeping in bunk beds in the same room. During the night, Dr. Khan climbed down into AB’s bed while he believed AB was sleeping and engaged in sexual activity with him.
Counsel for the College and counsel for Dr. Khan made a joint submission as to an appropriate penalty and costs order, which consisted of a 12-month suspension, a reprimand, and costs in the amount of $20,550 (the “Proposed Penalty”).
The law provides that a Discipline Committee should not depart from a joint submission on penalty, unless the proposed penalty would bring the administration of justice into disrepute or is otherwise an abuse of process. As noted by the Supreme Court, this a very high standard. Basically, this means that the Committee should reject the joint submission unless it is so outrageous it would offend the principles of justice.
The reasoning behind imposing such a high standard is that generally these joint submissions are negotiated settlements, and accordingly typically represent a reasonable compromise, and a penalty that falls within a range of appropriate outcomes. In addition, joint submissions avoid the time and cost of a contested hearing, and therefore help to preserve valuable resources.
Despite this high standard, 3 members of the 5-member panel of the Committee (the “Majority”), rejected the Proposed Penalty and concluded that Dr. Khan should not be subject to any penalty or ordered to pay any costs. The two dissenting members of the Committee (the “Dissent”) would have accepted the joint submission and ordered the Proposed Penalty.
The Majority based its rejection of the Proposed Penalty in part on its conclusion that it served none of the penalty principles routinely accepted by the Committee. Penalty principles generally considered by discipline committees are as follows:
- Protection of the public;
- Denunciation of the misconduct;
- Specific and general deterrence;
- Maintenance of the integrity of the medical profession;
- Maintenance of the public’s confidence in the College’s ability to regulate the profession in the public interest
- Proportionality; and
- Committees will also look at the particular facts of the case and assess whether there are any aggravating or mitigating factors relevant to the appropriate penalty.
Based on the evidence submitted, which included testimony from 5 psychiatrists who had either treated or independently assessed Dr. Khan, the Majority made the following findings relevant to the penalty analysis:
- This was a single offence;
- The offence was in the remote past – 10 years ago;
- The assault was impulsive, which took place in the context of an intense, confused, and repressed sexual identity;
- Khan was now comfortable with his identity as a gay man;
- Khan’s test results indicated a low risk of recidivity;
- Khan had demonstrated remorse from the very outset; and
- Khan continues in active therapy.
Regarding aggravating and mitigating factors, the Majority found that the age of the victim, 16, and the impact on the victim were aggravating factors. The Majority found that Dr. Khan’s serious and prolonged remedial efforts, his insight, and his remorse, and his repressed sexual identity were all mitigating factors.
With respect to Dr. Khan’s sexual identity, the Committee stated as follows:
There is another delicate issue to consider. The assault took place when Dr. Khan was a young gay man struggling to express his identity in particularly trying circumstances. It is important to be clear that this is mentioned not to excuse the offence, only to contextualize it. Dr. Khan has been forthright and unwavering in that view, supported by ample expert evidence: nobody “gets off the hook” for a criminal action by virtue of their colour, ethnicity or sexual orientation. However, the Committee gives some recognition to the fact that prejudicial social pressures which, in recent years, our society has made strides in relieving, did play a role here.
This aspect of the decision has been significantly criticized by some commentators as being based on outdated, inaccurate, and dangerous stereotypes about gay men. Indeed, the decision seems to rely on some antiquated concepts. The Majority’s reasoning above appears to be based on an implicit belief that gay men are inherently predatorial in nature, they just “can’t help it.” No doubt many members of the LGBTQ community would find this implicit belief underlying the Majority’s decision to be offensive.
In applying the above findings to the sentencing principles, the Majority found as follows:
- Protection of the public: The Majority was satisfied based on the expert evidence, and buttressed by the fact that 10 years had passed since this offence had occurred, that Dr. Khan posed no risk greater than any other practicing physician.
- Specific and General Deterrence: The Majority found that Dr. Khan was sufficiently deterred by his remorse, his continuing remedial efforts, and the prolonged legal process. With respect to general deterrence the Committee noted that Dr. Khan was not even a member of the College at the time of the offence, as he was then a medical resident, and there was no reason to believe that this penalty would deter aspiring physicians from committing offences before they are eligible for licensure.
- Maintaining the Honour of the Profession: The Majority concluded that accepting the Proposed Penalty, would not maintain the honour of the profession, in light of the fact that Dr. Khan did “all the right things,” including recognizing that he made a mistake, immediately and persistently expressing remorse, seeking help, and practicing for 10 years with high professional standards. The Committee also criticized the College for pursuing revocation of Dr. Khan’s certificate of revocation until shortly before the Joint Submission was agreed upon, suggesting that imposing such a harsh penalty in these circumstances reflects negatively on the honour of the profession.
- Public Confidence: The Majority concluded that rejecting the Proposed Penalty should not be detrimental to the public’s confidence in the College’s ability to govern the profession because “by all accounts, Dr. Khan is a skilled and valued professional.”
- Rehabilitation: The Majority concluded that by all accounts, Dr. Khan had already been rehabilitated, and that a further suspension would do nothing to further his rehabilitation.
The Majority concluded that Dr. Khan should not have to bear any costs, because the joint submission on penalty was essentially the same as Dr. Khan’s position on penalty at first instance.
The Dissent accepted the Majority’s findings with respect to the evidence on penalty, as well as on the aggravating and mitigating factors. However, the Dissent would have accepted that Proposed Penalty, recognizing that the standard of bringing the administration of justice into disrepute is a very high standard, which it did not feel was met in this case.
This is a very unusual case, both because it appears to be based in part on problematic stereotypes, and also because it is extremely rare for a Discipline Committee to reject a joint submission, given the high standard that must be met in order for the Committee to do so. The College has filed an appeal in Divisional Court of this decision, so stay tuned for an update from Rosen Sunshine on this interesting and potentially precedent-setting case.
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