Tuesday, November 29, 2016

Abuse of Process to be Raised in Discipline Hearing Involving Acquitted Doctors

   "Doctors acquitted of gang sex assault face discipline hearing" read the headline in the Toronto on November 28, 2016.  Readers may recall that two doctors - Dr. Chauhan and Dr. Kayilasanathan were acquitted by Justice Julie Thorburn following a trial in which they were accused of, among other charges, gang sexual assault. According to the Toronto Star those two doctors are now the subject of a hearing before a panel of the College of Physicians and Surgeons of Ontario which alleges they engaged in sexual activities with a woman without her consent and administered a drug or drugs to the said woman without her knowledge.

Respondent Counsel:

  Ms. Marlys Edwarth - who represented Dr. Chauhan in the criminal proceedings - is representing him in the discipline proceedings before the panel at the College of Physicians.  Ms. Edwarth is amongst the best counsel that money can buy in this country - if not the best.  She is well versed in not only criminal trial and appellate advocacy but is also skilled in administrative law and constitutional law.
   Mr. Tom Curry of Lanzer Slaght LLP is representing Dr. Kayilasanathan.  Like Ms. Edwarth, Mr. Curry is a gifted trial and appellate lawyer with skill and expertise in professional discipline matters and administrative law.

Abuse of Process Asserted:

   According to the Toronto Star article both lawyers are bringing a motion alleging an abuse of process.  Mr. Curry is quoted in the Star article in the following words: "The abuse of process motion is about the interplay between the acquittal in the criminal case and the basis for it and the college's ability to prosecute the same case on the same facts."

   Reading between the lines from the Star article it would appear that the basis for the abuse of process motion is related to findings of fact made by Madame Justice Thorburn in the criminal proceedings - including the following:  1.  Video surveillance evidence showing the complainant leaving the hotel; 2. Evidence that text messages were sent by one of the women when she said she would have been unable to move; 3.  Blood, urine and hair samples showed no evidence of drugging.

Lawyers Doing their Job:

   As is often the case in cases of this nature, there will be some who will be quick to attack the work and reputation of Ms. Edwarth and Mr. Curry as they discharge their duty in properly defending their client.  Readers will recall the crusade put on by the mainstream press when I properly brought a motion asserting a lack of jurisdiction and abuse of process on behalf of my own client, Justice of the Peace Massiah. On April 10th, 2014 Michel Mandel of the Toronto Sun boldly wrote:

"The irony seems apparent to everyone but Justice of the Peace Errol Massiah and his zealous counsel. .....but his lawyer Ernest Guiste is tying up his second complaint hearing with motions, challenges and endless accusations that the judge and her panel are biased.  Yet, Massiah claims he's the victim of an abuse of process ?  Pot meet kettle."


   Abuse of process is a highly flexible remedy available to courts and tribunals to stop what they find to be unfair, biased or proceedings which are not otherwise in the public interest to prosecute. It must NOT be thought of as a remedy for the GUILTY to escape justice but as a remedy to ensure that when we make findings of guilt or liability we do so in accordance with the high standards for fairness and integrity that have come to distinguish our legal system from others.  The Law Society of Upper Canada hearing panel's decision in Re Baker is a classic case on this point.

   Lawyers ought never to be punished or censored for doing their jobs.  It is lawyers who are the vehicle through which the people's rights and freedoms come to fruition. When we punish and censor the lawyers we denigrate the legal system and we invite or plant the seeds for tyranny, bigotry and sexism.  We don't want that !  Do we ?

NOTE: This piece is written for the sole purpose of drawing attention to an issue of public importance.  The doctrine of abuse of process is an important and vital safeguard in our free and democratic society. It is the duty of a lawyer representing a client to raise it when ever he or she feels that the circumstances call for it.  The lawyer ought never to be afraid to raise it. A climate in which lawyers - of all people - are afraid to speak freely and to do their job freely could never be in the public interest. 

No comments:

Post a Comment