1 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: Offices of the Inquiry into 17 Pediatric Forensic 18 Pathology in Ontario 19 180 Dundas Street West 20 Toronto, Ontario 21 22 ******************** 23 24 October 4th 2007 25

2
  1                        Appearances
  2  Linda Rothstein         )        Commission Counsel
  3  Robert Centa            )
  4  Mark Sandler (np)       )
  5  Jonathan Shime (np)     )
  6  
  7  Luisa Ritacca  (np)     )        Office of the Chief Coroner
  8  Brian Gover    (np)     )        for Ontario
  9  
 10  Jane Langford           )        Dr. Charles Smith
 11  Niels Ortved   (np)     )
 12  Erica Baron    (np)
 13  Grant Hoole             )
 14  
 15  William Carter          (np))    Hospital for Sick Children
 16  Barbara Walker-Renshaw  (np) )
 17  Kate Crawford           (np) )
 18  
 19  Paul Cavalluzzo  (np)  )        Ontario Crown Attorneys'
 20                                   Association
 21  
 22  Mara Greene      (np)  )        Criminal Lawyers'
 23  Breese Davies    (np)  )        Association
 24  Joseph Di Luca   (np)  )
 25

3
  1                          APPEARANCES (CONT'D)
  2  James Lockyer              )     William Mullins-Johnson, 
  3                                   Sherry Sherret-Robinson and
  4                                   seven unnamed persons
  5  
  6  Peter Wardle     (np)     )     Affected Families Group
  7  Julie Kirkpatrick (np)     )
  8  Daniel Bernstein (np)     )
  9  
 10  Louis Sokolov    (np)     )     Association in Defence of
 11  Elizabeth Widner (np)     )     the Wrongly Convicted
 12  Paul Copeland    (np)     )
 13  
 14  Jonathan Rudin   (np)     )     Aboriginal Legal Services 
 15  Mandy Eason      (np)     )     of Toronto and Nishnawbe
 16  Kimberly Murray  (np)     )     Aski-Nation
 17  
 18  Suzan Fraser                     Defence for Children 
 19                                   International - Canada
 20  
 21  William Manuel   (np)     )     Ministry of the Attorney
 22  Heather Mackay             )     General for Ontario
 23  Erin Rizok       (np)     )
 24  
 25

1 Appearances (cont'd) 2 3 Carolyn Silver ) The College of Physicians 4 Natasha Egan ) and Surgeons of Ontario 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 TABLE OF CONTENTS 2 Page No. 3 4 Submissions by Commission Counsel 6 5 Submissions by The College of Physicians and Surgeons 32 6 Submissions by Counsel for Dr. Charles Smith 50 7 Reply by Commission Counsel 79 8 9 10 11 Certificate of transcript 88 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 --- Upon Commencing at 10:03 a.m. 2 3 COMMISSIONER STEPHEN GOUDGE: Well good 4 morning, everybody. We'll start off, Ms. Rothstein, by 5 turning it over to you, and you can tell us what the 6 agenda is for the day. 7 MS. LINDA ROTHSTEIN: Well, Commissioner, 8 you have an appearance sheet there which identifies all 9 the counsel, so I don't propose to introduce them, they 10 are on the record. 11 We are here this morning, sir, because as 12 we know, Commission Counsel has served a summons on the 13 Registrar of The College of Physicians and Surgeons of 14 Ontario seeking documents which we say are relevant to 15 your mandate, but which the College says they cannot 16 produce because the summons is without legal effect. 17 I should say at the outset, Commissioner, 18 that although Commission Counsel take the position that 19 the summons is effective unless and until it is quashed 20 and that properly the CPSO should be providing the 21 documents to you today or asking you to quash the 22 summons, we have agreed with counsel for the College of 23 Physicians and Surgeons that we will go first to make the 24 case that the summons is, indeed, effective and that 25 counsel for the CPSO, together with counsel for Dr. Smith

1 will respond. 2 The context is well known to you I trust, 3 Commissioner. This Public Inquiry was created on April 4 the 25th of 2007 in order to make recommendations to 5 restore and enhance public confidence in pediatric 6 forensic pathology in Ontario. 7 The Order-in-Council creating this Public 8 Inquiry is in tab 1 of the compendium of Commission 9 Counsel. You, Commissioner, were specifically mandated 10 to conduct a systemic review and to report on, looking at 11 paragraph 4, the policies, procedures, practices - and I 12 emphasis these words - accountability and oversight 13 mechanisms, quality control measures, and institutional 14 arrangements of pediatric forensic pathology in Ontario 15 from '81 to 2001, as they relate to its practice and use 16 in investigations and criminal proceedings. 17 Sub (b) provides the legislative and 18 regulatory provisions in existence that related to or had 19 implications for the practice of pediatric forensic 20 pathology in that same period, and any changes to the 21 items referenced in the above two (2) paragraphs, 22 subsequent to 2001. 23 In our view, it is self evident that The 24 College of Physicians and Surgeons, which regulates the 25 conduct and competence of physicians in this province and

1 is, therefore, one (1) of the accountability and 2 oversight mechanisms that you must assess in order to 3 fulfill your mandate. 4 Pathologists and the subset of pediatric 5 pathologists and the subset of Forensic pathologists and, 6 indeed, the smallest subsetted of all, of pediatric 7 forensic pathologists are all physicians whose competence 8 and conduct falls broadly within the regulatory mandate 9 and jurisdiction of the CPSO. 10 But if you had any doubt about that 11 central issue to the relevance of these documents, that, 12 we say, has been clearly determined already by the Health 13 Professions Appeal and Review Board. You have a copy of 14 their decision at tab 4 of the compendium. 15 I will take you to that in order to sketch 16 out some of the facts that underpin the particular 17 documents which we see but, suffice it to say, at page 6 18 of that decision the Health Professions and Review Board 19 came to the conclusion that there -- and I quote from the 20 first full paragraph in the middle of the page, 21 Commissioner, is: 22 "No provision in the Medicine Act, the 23 Regulated Health Professions Act, or 24 the Coroner's Act, which ousts the 25 authority of the College when a member

1 is acting as an agent for the Coroner's 2 Office. While there may be overlap 3 with regard to Dr. Smith's 4 accountability..." 5 And again, I emphasise that word. 6 "...to both the Coroner's Office and 7 the College, the involvement of the 8 Coroner's Office does not displace the 9 College's responsibility to govern its 10 members..." 11 And specifically in this case, Dr. Smith. 12 So what we envisage, Commissioner, is that 13 your Inquiry will look at the way in which various 14 oversight mechanisms and accountability mechanisms in 15 Ontario operated, including the Office of the Chief 16 Coroner, including the Hospital for Sick Children, and 17 including The College of Physicians and Surgeons and it 18 will up to you, sir, to determine whether the manner in 19 which they fulfilled their oversight was up to the 20 standard that is needed to restore confidence in 21 pediatric forensic pathology in Ontario. 22 From that we say -- from that simple 23 summary of your mandate, it follows that the documents 24 which we seek are surely relevant to the fulfilling of 25 your mandate. We note that the CPSO does not itself

1 dispute the potential relevance of the documents in its 2 possession; only Dr. Smith does. 3 In order to respond to that very briefly, 4 Commissioner, we know from the investigation conducted 5 thus far that three (3) of the twenty (20) cases which 6 were the subject of the Coroner's review, which was 7 indeed the springboard for the creation of this Public 8 Inquiry, generated complaints to The College of 9 Physicians and Surgeons in the D.M. case, the Gagnon 10 case, and the Waudby case. 11 The D.M. case came first; that complaint 12 was made first back in November of '97 and we know that 13 it was dealt with by the College's Complaint Committee in 14 May of '98 and that's all set out in paragraph 15 of our 15 factum. 16 The Complaints Committee concluded that it 17 did not have jurisdiction to deal with that complaint, so 18 back in '97, the view of the world from the perspective 19 of the College was that it ought not to deal with that 20 complaint; that generated a review of that decision to 21 HPARB, which resulted in the decision which I've already 22 referred you to at Tab (c) and the conclusions which I've 23 just taken you to at page 6 of the decision. 24 What we seek in our summons is all of the 25 documents that were created by the College during that

1 first stage review when it said that it could not 2 entertain that complaint and, thereafter, when HPARB 3 directed the College to deal with the complaint in the 4 ordinary course. 5 So we seek, firstly, all of the documents 6 that relate to the College's investigation and 7 disposition of the D.M. complaint. 8 Mr. Gagnon complained to the College in 9 October of '98 and we seek, again, the same scope of 10 documents relating to the investigation and disposition 11 of that complaint. 12 And Ms. Waudby made a complaint in May of 13 2001 and, again, we seek all of the documents relevant to 14 the investigation and disposition of that complaint. 15 What we know, and you will find this at 16 paragraph 18 of our factum, Commissioner, is that the 17 Complaints Committee of the College, indeed, cautioned 18 Dr. Smith in relation to those three (3) complaints in 19 October of 2002. 20 So that deals with paragraphs 1, 2, and 3 21 of the summons and you have a copy, sir, of a letter from 22 Hauraney and Kirkpatrick dated October 2, 2007. You'll 23 recall, sir, that Ms. Kirkpatrick, together with Mr. 24 Wardle, represents Mr. Gagnon and Mr. Waudby, and have 25 been given standing in this Inquiry in order to represent

1 their interests. 2 Their submission to you, sir, is that 3 their clients agree with the position we are taking. 4 They agree that these records are both relevant and 5 necessary to the work of your Inquiry. 6 From the vantage point of Mr. Gagnon and 7 Ms. Waudby, it is extremely important for the Commission 8 to examine the oversight of Forensic Pediatric pathology 9 by all relevant institutions, including the CPSO. 10 They are further able to confirm the 11 nature of the documents that we set out and describe 12 without having seen them, of course, in paragraph 26 of 13 our factum. 14 I point out at this stage, Commissioner, 15 that paragraphs 1, 2, and 3 of our summons deal with 16 three (3) complaints, but that is not all that we seek. 17 We also seek systemic documents; that is to say, 18 documents which would set out the sorts of procedures and 19 policies that The College of Physicians and Surgeons may 20 or may not have generated over the years in order to 21 provide assistance to those engaged in pediatric forensic 22 pathology, and to guide their work. 23 And we note parenthetically, Commissioner, 24 that in the HPARB decision, which is again at tab 4 of 25 your compendium, that it would appear that at least there

1 is one such document within the College's possession. 2 I take you to page 4 of that decision, 3 page 5 of the facts, the last paragraph on that page, 4 HPARB records: 5 "Through the ordinary course of its 6 business, the Board was in possession 7 of a 1997 memorandum of the College 8 outlining policy discussions concerning 9 the coroner's and the College's 10 respective complaint submission -- sub 11 -- systems." 12 The memorandum was from the Deputy 13 Register of the College to the College's register, and 14 copied to the College president, the College's executive 15 committee, the Chief Coroner of Ontario, and Deputy Chief 16 Coroner of Ontario. 17 As this memorandum was in possession of 18 the Board but was not a part of the record of 19 investigation or in correspondence otherwise made 20 available to the parties, it was circulated to the 21 parties for comment. 22 What the Board ultimately determined is it 23 wouldn't rely on it for the purpose of determining the 24 outcome of that review and appeal. However, it would 25 appear on its face that that is precisely the sort of

1 document that would be covered by paragraph 4 of the 2 summons that has been issued to the register of The 3 College of Physicians and Surgeons, and precisely the 4 sort of information, Commissioner, that would assist you 5 in ascertaining the efficacy of the College's oversight 6 in this area, and in the sorts of recommendations that 7 you ought to make to govern its future oversight. 8 So that briefly, we say, disposes of any 9 concern about the ambit of your summons, and the nature - 10 - and the fact that it does indeed seek relevant 11 documents. 12 The question for you to determine is 13 whether indeed the summons that has been issued is 14 effective. And as you will know, Commissioner, from 15 reading the written submissions of the College, Dr. Smith 16 and Commission Counsel, that depends on the 17 interpretation of the Public Inquiries Act, specifically 18 Sections 7 and 11, as it relates to the language of the 19 Regulated Health Professions Act. 20 We say, in the end, it depends entirely on 21 how one interprets the provisions of a commissioner 22 created under the Public Inquiries Act in relation to the 23 confidentiality obligations of the College. 24 COMMISSIONER STEPHEN GOUDGE: Before you 25 turn to the statute, the summons also -- does it also

1 seek documents related to any other complaints? 2 MS. LINDA ROTHSTEIN: It does, sir. And 3 -- and we don't know if there are any, and I can tell 4 you, sir, that there may be some relevance concerns 5 around that, which we are prepared to acknowledge. 6 In other words, if the complaint had 7 nothing whatsoever to do with Dr. Smith's practice of 8 pediatric forensic pathology or pathology, his clinical 9 pathology practice. There might be some relevance 10 debate, but that could be dealt with on a case-by-case 11 basis. 12 COMMISSIONER STEPHEN GOUDGE: Okay, 13 thanks. 14 MS. LINDA ROTHSTEIN: The point being, 15 Commissioner, that we don't know the landscape of 16 complaints, that there may or not -- may or may not be 17 against Dr. Smith. 18 So the focus of today's argument, sir, I 19 suspect will be on the powers of a Commissioner 20 constituted under the Public Inquiries Act as they relate 21 to the confidentiality provisions in the RHBA. 22 Section 7 gives a broad power to summons 23 people and/or require them to produce documents. Section 24 11 puts a very narrow limit on your power to admit 25 evidence. You may admit all reasonably relevant evidence

1 except that which is privileged under the law of 2 evidence. 3 It's important to note that the CPSO 4 asserts no such privilege in this case. Dr. Smith does, 5 but we since we do not seek documents which are properly 6 characterized as his, in the eyes of the law, with 7 respect, he has no standing to assert that privilege 8 claim. He has no privilege to assert. 9 In any event, the privilege -- the common- 10 law privilege which he relies on as articulated in the 11 Supreme Court of Canada case in Slavutych and Baker 12 cannot, we say, be established based on statutory 13 interpretation alone. It requires evidence which speaks 14 directly to the four (4) part Slavutych and Baker test, 15 and lays the appropriate factual foundation for a 16 determination that all parts of that test have been met. 17 There is no factual foundation that has 18 been laid in this case, sir. Indeed, one can infer from 19 the fact that The College of Physicians and Surgeons does 20 not make the claim, that it would not be able to provide 21 you with evidence that would lay the appropriate 22 foundation. 23 In other words, sir, we say that this is 24 not a case where there is a privilege under the law of 25 evidence which stands in the way of the efficacy of this

1 summons or, indeed, the admissibility of the 2 documentation which is summoned in this subpoena duces 3 tecum. 4 So what about Section 36. Do either 5 Sections 36(1) or 36(3) undermine the effectiveness of 6 the summons that has been issued to the registrar of the 7 College? A few things we agree about. 8 We agree with the CPSO that those two (2) 9 subsections ought to be considered separately; that while 10 they may both be broadly described to have the same 11 purpose, that is, protecting the College's process and 12 specifically its complaint process; encouraging the 13 filing of complaints and not discouraging those involved 14 in the filing, responding, or handling of complaints; 15 from carrying out their respective roles fairly and fully 16 without concern about civil liability, even though that 17 broad purpose can be said to underline both subsections, 18 they do not have identical effects in every case. 19 So step 1 is 36(1). Broadly put, 20 Commissioner, we say that it prevents sharing of 21 information by College employees unless they are 22 compelled square brackets [by summons] close square 23 brackets or some other legal compulsion or one (1) on the 24 exceptions in that sub -- subsection is made out. 25 You will have noted, Commissioner, that in

18
  1  Ms. Silver's factum, she makes the case with respect to
  2  36(1) that we need to have found our way into a specific
  3  exception to the broad language of 36(1) in order to have
  4  an effective summons.  One (1) of the reasons she makes
  5  that argument is she says that the coroners were granted
  6  a specific exemption or exception in an amendment to the
  7  RHPA, a recent amendment to the RHPA, in Section
  8  36(1)(d).
  9                 And she makes the point that if coroners
 10  needed that exception - I think this is the argument
 11  fairly put - since what we do, what a public inquiry does
 12  is akin to what coroners do, at least when they hold
 13  inquests, then we need the same kind of exempting
 14  language.
 15                 First of all, Commissioner, we don't
 16  accept that you ought to pick an analogy like the
 17  coroner's inquest and use it to drive your determinations
 18  in this case.  As you will hear from me specifically in
 19  respect of the Supreme Court of Canada jurisprudence on
 20  public inquiries, we say that public inquiries have,
 21  indeed, carved out a special character in our law.
 22                 And so far, there is no jurisprudence
 23  which compels the conclusion that we are fairly
 24  analogized for all purposes to coroner's proceedings or
 25  inquests.

1 But secondly, you will note particularly 2 in paragraph 14 of Ms. Silver's factum, that she argues 3 that coroners under the Coroners Act and commissions 4 under the Public Inquires Act enjoy virtually the same 5 power of summons and, therefore, if a summons under the 6 Public Inquires Act was effective to get around 36(1), 7 then there would have been no need for the amendment to 8 36(1) that gave the coroners specific exemption from its 9 ambit. 10 We say that the Coroners Act, which I have 11 provided to all counsel, actually connotes a very 12 different conclusion. Commissioner, the coroners do 13 indeed have a summoning power, but that summoning power, 14 and the one (1) to which Ms. Silver refers is one (1) 15 that pertains only at the stage that the coroner is 16 holding an inquest. 17 And as I anticipate that this Public 18 Inquiry will make clear to the people of Ontario, if they 19 don't already know it, the vast work of coroners that is 20 done is done outside of the coroner's inquest hearing 21 room. The vast majority of investigations that are 22 undertaken by coroners are undertaken without the benefit 23 of that summonsing power. 24 Coroners, for the most part, are charged 25 with doing their investigations and most coroners'

1 investigations take place using the powers that are set 2 out in Sections 16 and 17 -- or rather starting at 3 paragraph 15 of the Coroners Act. 4 And while the coroner has powers of 5 compulsion in relation to the body of the deceased, and 6 in relation to the place in which the body of the 7 deceased is found, it is interesting to note that, 8 generally speaking, the investigative powers of the 9 coroner do not -- do not, sir, give it any power to 10 compel - no summonsing power of third parties and their 11 records, or their other evidence. 12 And so it would follow, Commissioner, that 13 in the absence of Section 36(1)(d) of the Regulated 14 Health Professions Act, as it now stands, coroners could 15 not conduct those many investigations, many of which are 16 into medical mishaps, with the benefit of information 17 that had been obtained by The College of Physicians and 18 Surgeons of Ontario. 19 So we say that 36(1)(d) is actually 20 pointed at obtaining access to documents in the 21 possession of the College in the absence of a summons, in 22 the absence of a legal proceeding as such, and that it 23 does not, in any way, determine the issue of the 24 admissibility of those documents 25 in coroner's inquests.

1 We are very much in a different position 2 than the coroner. We do not have a 36(1)(d) power and, 3 therefore, Commissioner, your Commission Counsel cannot 4 go speak to the members of the College and ask them 5 questions in the absence of a summons and that summons, 6 as you know, sir, is actually only effective in this 7 Hearing room. 8 So we do not have the powers that the 9 coroner has managed to obtain by virtue of the amendment 10 to the legislation. 11 If one follows the logic of that analysis, 12 Commission, then Justice Sharpe's decision in 13 Transamerica Life Insurance is a complete answer to the 14 argument that a statutory confidentiality provision 15 standing alone is a bar to compelling production of 16 relevant documents in the face of a summons. 17 What Justice Sharpe said is that 18 "absent an expressed provision that 19 confidential information characterized 20 as such by a statute cannot be 21 summoned, that confidential information 22 is indeed compellable." 23 You will note, Commissioner, that 24 confidentiality provisions are pervasive in our statutes. 25 There are probably more statutes that contain some form

1 of confidentiality provision than the list of statutes 2 that contain investigative powers that are set out in 3 Schedule P of Ms. Silver's materials. 4 But confidentiality provisions should not 5 be synonymised with privilege; they should not be 6 elevated to the status that immunizes them from a 7 summons. The position taken by Ms. Silver and the 8 College with respect suggesting that we need an express 9 and specific exception to Section 36 for our summons to 10 be effective turns the reasoning of Justice Sharpe on its 11 head. That takes us to Section 36(3). 12 We certainly agree with the College that 13 the confidentiality provisions in the Transamerica case 14 are not the same as Section 36 because Section 36 has not 15 only a bear confidentiality provision as I'm going to 16 characterize - which is what I call 36(1) - it also has 17 36(2) and (3). What was lacking in Transamerica is what 18 we say is the crux of the debate in this case about the 19 effectiveness of our summons, and it is the reach of 20 36(3). 21 Again, Commissioner, let make clear for 22 you what we all agree about. We all agree that the words 23 "civil proceedings" which are the contentious ones in 24 36(3) are found in dozens of statutes. I trust we all 25 agree that the language "civil proceedings," those two

1 (2) words as they appear in all those statutes, those 2 words are not always used synonymously with each other, 3 and that modern statutory interpretation compels a 4 context-base approach, which may well mean that the 5 proper interpretation of "civil proceedings" in Section 6 36 may be different and may cover different legal 7 proceedings than the proper interpretation of those two 8 (2) words in some other quite different statute. 9 We all agree that "civil proceedings" 10 connotes legal proceedings that go beyond civil actions 11 or civil lawsuits. 12 We agree with Ms. Silver when she says 13 that civil proceedings necessarily include disciplinary 14 proceedings in capacity proceedings under the regulated 15 Health Professions Act, whether they be before The 16 College of Physicians and Surgeons or any of the other 17 regulated professions that are covered by that 18 legislation and that, therefore -- therefore, civil 19 proceedings is language broad enough to cover work, not 20 just of courts, but of administrative tribunals, and is 21 broad enough to cover the work of administrative 22 tribunals that have a public interest aspect to their 23 work and mandate. 24 But then it appears to us, Commissioner, 25 we part company because we say that fundamentally the

1 proposition that is put to you by The College of 2 Physicians and Surgeons and by Dr. Smith pivots on the 3 proposition that legal proceedings can be segregated into 4 two (2) categories: criminal proceedings on the one (1) 5 hand - and we all think we know what that is - and 6 everything else which are, by necessity, so the argument 7 goes, civil proceedings. 8 We fundamentally disagree with that 9 simplistic dichotomy. In our view, the RHPA itself 10 belies that rigid dichotomy. You will have noted in 11 paragraph 48 of our factum, Commissioner, that we make 12 reference to Section 83.1(1) of the RHPA, which provides 13 a very special superduper protection for documents that 14 are created in the quality assurance process which the 15 College conducts and which is a process rather different, 16 very different from its disciplinary one (1). 17 And you will have an opportunity to 18 compare the definition of "proceeding" in 83.1(1) with 19 the definition -- or with the language "civil proceeding" 20 and it is very significant to note, in our view, that the 21 definition of "proceeding" in the RHPA itself clearly and 22 expressly encompasses work that goes beyond what one (1) 23 might ordinarily think of as civil proceedings and 24 expressly includes the work of commissions. 25 All of that to say, Commissioner, that our

25
  1  point that legal proceedings cannot necessarily be neatly
  2  divided into two (2) categories is borne out to some
  3  extent by the language of the legislation that is at
  4  stake in this case.
  5                 But even more importantly, Commissioner,
  6  we say that the thrust of the jurisprudence on the nature
  7  and purpose and consequences of public inquiries, on the
  8  effect of public inquiries, suggests that if they are not
  9  unique, a unique form of legal proceedings, they are
 10  neither criminal nor civil in their essential character.
 11                 And before I take you to that
 12  jurisprudence, let me just say, Commissioner, that I
 13  acknowledge that there are various lines of cases,
 14  various threads in the jurisprudence that appear to adopt
 15  the two category paradigm the case of Regina and Faber in
 16  My Friend's book of authorities at Tab 6 is one (1).
 17                 In that case, the Supreme Court of Canada
 18  had to decide whether contempt proceedings which followed
 19  the refusal of the witness to testify before a coroner
 20  had been taken in the right Court.  And anyone who has
 21  tried a contempt proceeding will know that it's a
 22  confounding categorization to get through and one (1)
 23  can't go to law school long enough to be able to figure
 24  out whether or not this a civil contempt or a criminal
 25  contempt, but the point is, that it has to be one (1) of

1 the two (2), procedurally. 2 And depending on whether one (1) 3 characterises the contempt proceeding as criminal or 4 civil that dictates the Court in which one (1) makes the 5 case. And in this case, the Supreme Court of Canada 6 determined after some considerable debate that a coroner 7 should be properly viewed as part of the civil justice 8 system and not in the -- not the criminal justice system, 9 at least in Quebec and that, therefore, the proceedings 10 had been brought in the wrong Court; but it was only for 11 that limited purpose that the Court characterised the 12 coroner's proceedings as civil. 13 In our view, that does not support the 14 underlying proposition which both the College's and Dr. 15 Smith's arguments hinge on, which is, that if you're not 16 criminal, you must, of necessity, be civil. 17 COMMISSIONER STEPHEN GOUDGE: At some 18 point, I'd be grateful for everybody telling me what they 19 think the purpose -- what was the legislature trying to 20 do with 36(3)? I mean Justice Laskin addresses that. 21 What your sense of it? 22 MS. LINDA ROTHSTEIN: Justice Laskin has 23 articulated an argue as good an explanation of the 24 purpose as one can come up with, bearing in mind, sir, 25 that very similar confidentiality provisions are found in

1 a huge range of statutes. Not just every professional 2 regulation statute, but a range of other statutory bodies 3 that do work, and that -- that have a complaints process. 4 And the underlying notion appears to be 5 that one wants to preserve and encourage a complaint 6 system to work without parties who are entrusted with 7 either administering it, or either of the advisories in 8 that process being concerned -- unduly concerned that 9 what they say and do in that process will come back to 10 haunt them in -- and create legal consequences for them. 11 Mostly civil liability. For sure that had 12 to be the overriding objective. That the legislature, as 13 Justice Laskin said, was minded to create two (2) 14 different litigation ramps -- two (2) different 15 litigation routes; one (1) before the disciplinary body 16 of the regulator, and the other in the civil courtroom, 17 and didn't want those two (2) getting tied up together. 18 That had to be the overriding objective. 19 But the other objective that one can see by virtue of the 20 language being rather broader than civil action is the 21 objective of ensuring that what happens in the College's 22 disciplinary process does not create liability -- legal 23 consequences for those involved. 24 And that is absolutely true to our view. 25 We can entirely accommodate that purpose of the

28
  1  legislation, in our view, of what this public inquiry
  2  does.  Because as our factum, we trust, sets out in
  3  better language than I can encapsulate, public inquiries
  4  have been determined before Krever and certainly ever
  5  since the Blood Inquiry was carefully reviewed by the
  6  Supreme Court of Canada as having a very different
  7  purpose and a very different effect.
  8                   "A public inquiry is not equivalent to
  9                   a civil or criminal trial.  There are
 10                   no legal consequences attached to the
 11                   determinations of the Commissioner. 
 12                   They are not enforceable, and they do
 13                   not bind courts considering the same
 14                   subject matter.  The nature of an
 15                   inquiry and its limited consequences
 16                   were correctly set out."
 17                 Says the Supreme Court of Canada in
 18  Krever.  I'm quoting from it now:
 19                   "It cannot establish either criminal
 20                   culpability or civil responsibility for
 21                   damages or anything else; rather, an
 22                   inquiry is an investigation into an
 23                   issue, event, or series of events.  The
 24                   findings of a commissioner relating to
 25                   that investigation are simply findings

1 of fact, and statements of opinion 2 reached by the commissioner at the end 3 of the inquiry. They are unconnected 4 to normal legal criteria." 5 Those are powerful words, Commissioner, 6 and that sets us apart, we say, from civil proceedings. 7 That sets this Inquiry entirely apart from civil 8 proceedings, and is consistent with the entire purpose of 9 the Public Inquires Act. 10 Not only do we say, Commissioner, not only 11 do we say that this inquiry must be able to do its work, 12 which was -- which it was expressly mandated to do by the 13 Lieutenant Governor in Council, but neither law nor 14 policy compel a result which would insulate The College 15 of Physicians and Surgeons from the scrutiny of this 16 commission. 17 And indeed if it were otherwise, then 18 many, many public inquires that would be created with the 19 same powers under the Public Inquiries Act to investigate 20 and report on the work of a whole range of other 21 statutory bodies who have provisions similar to that that 22 we find in 36, would be confounded and would be unable to 23 fulfill their essential mandates. 24 The Supreme Court of Canada jurisprudence 25 mirrors that of our own Court of Appeal. You will note

1 in paragraph 60 of our factum referenced to the 2 Bortolotti case in which Mr. Justice Howland found that a 3 commission of inquiry is charged with the duty to 4 consider, recommend, and report. It has a very different 5 function to perform than that of a court of law or, and I 6 emphasize this, an administrative tribunal or an 7 arbitrator, all of which deal with rights between the 8 parties; that is true of the work of the bodies that are 9 entrusted with decision-making authority under the 10 Regulated Health Professions Act. And that's why they 11 need an exemption. 12 That is true, Commissioner, of the work 13 that is entrusted to the bodies that -- if I get to 36(3) 14 I need a -- I forget the names of these statutes. 15 There's two (2) others that are specifically exempted 16 from 36(3). 17 Yes, the Drug and Pharmacies Regulation 18 Act and the Ontario Drug Benefit Act. The two 19 (2)Sections of the Ontario Drug Benefit Act that are 20 expressly exempted from 36(3) empower the executive 21 officer under that Act to suspend a physician from being 22 entitled to receive payment under this Act. 23 Very onerous consequences for individuals 24 in which their rights to continue their professional 25 practice are at stake. Likewise, the other expressly

1 exempted statute, the Drug and Pharmacies Regulation Act 2 regulates pharmacies and pharmacists. 3 It is in effect, sir, the Health 4 disciplines Act that wasn't repealed by the enactment of 5 the regulated Health Professions Act in '93, if I am 6 correct. And it has a variety of very potentially 7 onerous consequences for pharmacists and their 8 businesses; rights are at stake, legal consequences 9 follow. 10 But, as much as the public sometimes 11 misses this distinction, that will not be what this 12 Inquiry will be doing when we begin business on November 13 the 12th, and that will not be what you will be doing, 14 sir, when you report, ultimately, having heard the 15 evidence that we will be leading starting in November. 16 So unless you have any further commission 17 -- questions for me, Commissioner, I was rather longer 18 than I thought I would be, but I thought to be fair to 19 Ms. Silver and to Ms. Langford, I should, at least in 20 part, anticipate the arguments that I -- at least let 21 them know my responses to the arguments that I anticipate 22 that they'll make. 23 COMMISSIONER STEPHEN GOUDGE: Okay. 24 Thanks very much. 25 MS. LINDA ROTHSTEIN: Thank you very

1 much. 2 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 3 Rothstein. Ms. Silver, you are next on my batting order 4 here. 5 MS. CAROLYN SILVER: Thank you. 6 7 (BRIEF PAUSE) 8 9 SUBMISSIONS BY The College of PHYSICIANS AND SURGEONS OF 10 ONTARIO: 11 MS. CAROLYN SILVER: First let me start 12 by saying that the College is here today wishing to 13 cooperate with this Inquiry and to assist the Commission 14 in fulfilling its mandate, to the extent that is 15 permitted to do so under its governing legislation. 16 This is a motion for direction and it has 17 been proceeded in this matter on the agreement of counsel 18 of the College and counsel for the Commission because, 19 simply put, the College has advised that it wished to 20 cooperate and assist but felt, reading the legislation, 21 that is may be precluded from doing so. 22 And I say this partially because there was 23 some suggestion, I think, in the media that the College 24 registrar had refused to attend today pursuant to a 25 summons, and I think you're aware, Commissioner, that

1 there was an agreement between counsel that they 2 registrar was not required to attend, he was certainly -- 3 COMMISSIONER STEPHEN GOUDGE: No, I think 4 that is very fair, Ms. Silver. 5 MS. CAROLYN SILVER: Okay. 6 COMMISSIONER STEPHEN GOUDGE: I mean, 7 this is a legal debate that you are quite entitled to 8 raise. 9 MS. CAROLYN SILVER: Thank you. The 10 College is, therefore, seeking your guidance on whether 11 it's permitted to disclose the documents sought in the 12 summons, given the confidentiality provisions that Ms. 13 Rothstein has reviewed with you. 14 And I think we are basically in agreement 15 as to what the issues are. From the College's reading of 16 the requirements in Section 36(1), it doesn't believe 17 that there is an exception permitting it to disclose the 18 information but, certainly, if there is a finding by you 19 that there is, that College will comply. 20 So my submissions will deal with two (2) 21 main issues. The first is the College's view that on 22 reading Section 36(1) of the RHPA, there is no exception 23 allowing the College to breach the statutorily mandated 24 confidentiality by producing the documents sought under 25 the summons.

1 And second, I will deal more briefly with 2 whether this Inquiry is a civil proceeding under Section 3 36(3), and I think Ms. Rothstein fairly put it, we both 4 agree that they are discreet issues. 5 In my submission, you don't get to 36(3) 6 or have to even make that decision today, if there is a 7 finding by you that there is no exception allowing the 8 College to produce its documents. 9 And I've explained that they're separate 10 issues as well, because there may be documents in the 11 possession of various parties, that they may come forward 12 and bring and they may ultimately want to submit into 13 evidence, and a decision can be made then as to whether 14 they're admissible. 15 But this is now dealing with whether the 16 College has to come and bring the documents in its 17 possession and that, I submit, is squarely an issue under 18 36(1). 19 The other two (2) issues which I won't 20 deal with, I think Ms. Rothstein has also fairly put, the 21 College certainly acknowledges that the documents sought 22 are potentially relevant to the subject matter of the 23 Inquiry, and that we agree with her that they are really 24 relevant on -- on the face of the terms of reference, and 25 that's why the College is certainly prepared to deliver

1 them if there is a direction from you that they are not 2 precluded from doing so by virtue of Section 36(1). 3 And the Coll -- with respect to the other 4 issue, the privilege issue, I think Ms. Rothstein said 5 the College is not claiming any privilege; that's mostly 6 right, and I've put in my fact, and the College is not 7 claiming any general privilege, just understanding that 8 there may be some sort of privilege claimed over certain 9 documents, and those can be determined on a document-by- 10 document basis. 11 But we're not taking the position that Dr. 12 Smith is taking, that there's some general privilege. 13 So with respect to the first issue about 14 whether there's an exception allowed to the statutory 15 confidentiality under 36(1) that would allow the College 16 to produce these documents. 17 And I will submit there -- there are four 18 (4) general reasons why the College has taken the view 19 that a summons issued under the Public Inquiries Act does 20 not allow the College to breach the statutorily mandated 21 confidentiality and produce the documents sought. 22 And the first, Ms. Rothstein has touched 23 on. The College submits the legislation, as the 24 Commissioner is aware, was recently amended in 2007 to 25 include the Coroners Act as one of the Acts pursuant to

1 which confidentiality may be breached. 2 And I do submit that the coroner enjoys a 3 very similar power of summons as a commissioner does 4 under that Public Inquiries Act. And it is ours 5 submission, that the addition of the Coroners Act to 6 Section 36(1)(d) suggests that prior to that amendment, 7 the coroner did not have the power to simply issue a 8 summons and receive those documents. 9 A summons would have been issued and the 10 statutory confidentiality would have precluded those 11 documents from being produced. Likewise we submit, that 12 a summons under the Public Inquiries Act would not have 13 allowed disclosure. And simply put, the College is 14 concerned that given that the Coroners Act was amended 15 and added to the legislation allowing disclosure pursuant 16 to a summons, since the Public Inquiries Act was not the 17 College's concern that this suggests that a summons under 18 the Public Inquiries Act was not meant to allow 19 confidentiality to be breached. 20 The second submission is this: That it is 21 well accepted that legislation should be given its plain 22 and ordinary meaning and as Driedger states, which is 23 included in my factum at paragraph -- Sullivan and 24 Driedger on the construction of statutes, in paragraph 17 25 of my factum, that when a provision mentions one (1) or

1 more items and is silent with respect to items that are 2 comparable, it is to be presumed that the silence is 3 deliberate and reflects an intention to exclude the items 4 not mentioned. 5 And I submit that if a summons issued 6 under the Public Inquiries Act was meant to relieve the 7 statutory confidentiality, the legislator would have 8 included as an exception. There was a long list of 9 carefully considered and crafted exceptions in Section 10 36(1), and I submit that it would appear that the 11 legislature would have either explicitly referred to 12 information sought pursuant to a summons, and I've 13 referred in my factum to the Mental Health Act where 14 there is -- there was an exception carved out for 15 information sought under the men -- under a summons or it 16 could have referred to information specifically sought 17 under a summons issued under the Public Inquiries Act. 18 By choosing none of these obviously 19 available options, the College is concerned that the 20 presumption is that the legislature intentionally 21 excluded a summons issued under the Public Inquiries Act 22 as an exception to the confidentiality requirements. 23 And I've included -- I've referenced -- 24 and I won't take you there, in paragraph 25 of my factum, 25 the case of the Federal Court of Appeal in Hunter and

1 Canada vers -- Hunter and Canada Minister of Consumer and 2 Corporate Affairs just because the case discusses the 3 various techniques used by parliament in the legislation 4 to protect confidential information. 5 And I submit that the technique used in 6 Section 36 is to mandate confidentiality and prohibit 7 against disclosure of confidential information except in 8 certain limited circumstances that were carved out and 9 very recently reconsidered and amended. 10 And I've included, as you see, in my 11 factum what Section 36(1) looked like prior to the 12 amendments in 2007, and I've tried to underline the 13 amendments. There were some changes made to allow for 14 further disclosure and a summons was not listed or nor 15 was the Public Inquiries Act. 16 Third, I submit that the governing 17 legislation of various bodies grants those bodies the 18 power to issue a summons under the Public Inquiries Act. 19 And I've list -- listed some of them in paragraph 10 of 20 my factum, and there's a more comprehensive list in 21 Schedule C. 22 And I submit that the reasoning of 23 Commission Counsel would require the College to disclose 24 confidential information when any of those bodies issued 25 a summons under the Public Inquiries Act. And I submit

1 that it appeared to the College that this was not the 2 intention of the legislature to have such wide 3 disclosure, and if it was then it would have listed as an 4 exception in Section 36(1). 5 Finally, as my forth point, I want to 6 discuss whether the summons issued by the Commission 7 could fall into the exception in Section 36(1)(h), which 8 provides that disclosure is allowed where the disclosure 9 of the information is required by an act of the 10 legislator or an act of parliament. 11 And the College submits that Section 12 36(1)(h) must refer to circumstances where another act 13 expressly requires disclosure of information that might 14 otherwise be confidential and provides that disclosure 15 supercedes any confidentiality requirements in other 16 legislation. 17 And I've provided some examples of such 18 legislation in paragraph 18. There is legislated 19 paramountcy of these provisions, which would make 20 disclosure of confidential College information required 21 by another Act, and I've given the examples reporting 22 under the Child and Family Services Act as one (1) 23 example of a situation which the College would be allowed 24 to breach the confidentiality requirements. 25 And I suggest there's nothing in the

1 Public Inquiries Act that suggests that a summons under 2 that Act requires disclosure, notwithstanding the 3 confidentiality provisions in any other Act. 4 I submit also that the addition of the 5 Coroners Act to section 36(1)(d), which I've discussed, 6 it's a similar argument. If that -- if a summons under 7 the Coroners Act would have fallen into the category of 8 36(1)(h) required by law, again, the Coroners Act would 9 not have been -- they would not have needed to add it to 10 section 36(1)(d). 11 COMMISSIONER STEPHEN GOUDGE: What do you 12 say to Ms. Rothstein's argument that 36(1)(d) deals with 13 administration, and there's a lot that goes on under the 14 Coroners Act that is administration rather than 15 summonsing to a hearing, which is all a public inquiry 16 can do? 17 MS. CAROLYN SILVER: I suggest that 18 there's nothing in the Act that makes that distinction. 19 I understand what she's saying; that -- that 36(1)(d) is 20 meant just to allow disclosure pre-inquest, but in my 21 submission, first of all there's no evidence that most of 22 that information would be required at the pre-inquest 23 stage. 24 In fact, I would submit that the 25 information requested from the College would be requested

1 at the -- at the inquest stage, and that that exception 2 would speak to that. 3 COMMISSION STEPHEN GOUDGE: Okay. 4 MS. CAROLYN SILVER: So I submit that 5 there's really nothing, other than an -- an argument to 6 try and carve it out that would support that argument. 7 COMMISSIONER STEPHEN GOUDGE: Okay. 8 MS. CAROLYN SILVER: With respect to the 9 Commission relying on Transamerica, essentially, the 10 Commission counsel's argument is we don't need an 11 exception. 12 The summons itself somehow allows for production, and 13 they didn't -- it would have been almost redundant to put 14 it in because it's clear that when a summons is served, 15 disclosure is allowed, notwithstanding the 16 confidentiality, and I submit that is too broad a reading 17 of the Transamerica case that My Friends rely on. 18 Essentially, what Transamerica states 19 simply is that a simple confidentiality statement in the 20 legislator is not an absolute bar to production through a 21 summons, and -- 22 COMMISSIONER STEPHEN GOUDGE: You're then 23 -- you're then left with a privilege debate. 24 MS. CAROLYN SILVER: Sorry? 25 COMMISSIONER STEPHEN GOUDGE: You're then

1 left with a privilege debate? Isn't that sort of what 2 Transamerica says? 3 MS. CAROLYN SILVER: Well, I think what 4 Transamerica says is you have to look at what the statute 5 says, and by simply saying the in -- this information is 6 confidential, that doesn't get you all the way there, and 7 they rely on Professor Hogg - and I've dealt with this in 8 my factum - where he says you have to look at the 9 legislation itself and to determine the scope of the 10 confidentiality. And a statement in the legislation that 11 simply says the information is confidential may not serve 12 to bar the disclosure by summons. 13 But I submit that in reviewing what the 14 case says and Professor Hogg, I accept that you have to 15 look at the legislation itself - I completely accept that 16 - to determine the scope of the confidentiality. 17 And I submit when you look at the 18 legislation in section 36(1), the scope of the 19 confidentiality is clear. There are a dozen carved out 20 exceptions that state when confidentiality is allowed to 21 be breached; nothing in those exceptions states that 22 confidentiality can be breached by virtue of a summons. 23 And Professor Hogg also states that when 24 there's no provision stating that the documents are 25 inadmissible in a civil proceeding, that's informative

1 also. Here we have section 36(3) which states that the 2 documents are inadmissible, and that also informs how 3 36(1) should be read. 4 I submit that if Transamerica were taken 5 as the Commission Counsel says, that a summons 6 immediately allows for the breach of the statutory 7 confidentiality, it would essentially render the 8 exceptions in 36(1) meaningless, and it would allow for 9 disclosure that, I submit, does not appear to have been 10 contemplated by the legislation, and I submit it won -- 11 would run contrary to the plain and ordinary 12 interpretation of the exceptions set out in Section 13 36(1). 14 And I've relied on several cases, which I 15 won't get into in detail. In the College's factum, at 16 paragraph 22, the case of Ahmed and Stepaniu, at 17 paragraph 25, the case that I referred to you earlier, 18 Hunter and Canada, and the case in paragraph 27 of 19 Biscotti and Ontario Securities Commission, all of which, 20 I say, confirm that the courts do not lightly allow for a 21 breech of statutory confidentiality when its found in the 22 legislation. 23 And in the Ahmed case, which I discuss in 24 probably the greatest detail in the factum in paragraph 25 22, the Court interpreted the requirements to keep

1 medical records under the Mental Health Act confidential 2 -- confidential and they interpreted that in the 3 strictest manner. 4 There was a provision in the legislation 5 that's set out in schedule B, where I've set out all the 6 legislation, that allowed -- it appeared allowed for that 7 -- those confidential records to be disclosed if a 8 summons were issued, but the Court found that that 9 summons alone did not displace the confidentiality 10 requirement. 11 They read the whole context -- the whole 12 statute in context and found that disclosure would only 13 be allowed where the Court determined that it was in the 14 interest of justice to disclose the medical records. So 15 essentially, they read it in the strictest manner so as 16 not to breech the confidentiality of the records lightly. 17 And the College suggests that there is 18 certainly a suggestion that the RHPA Section 36 was meant 19 to be read in a similar vain given that there were so 20 many carved out exceptions in section 36(1). 21 I want to deal more briefly then with the 22 issue of whether, under Section 36(3), this matter is a 23 civil proceeding. 24 COMMISSIONER STEPHEN GOUDGE: Before you 25 move to (3), Ms. Silver --

1 MS. CAROLYN SILVER: Yes. 2 COMMISSIONER STEPHEN GOUDGE: -- I 3 probably should have asked Ms. Rothstein this, too, but 4 looking at the letter from Ms. Kirkpatrick, it looks as 5 if Mr. Gagnon and Ms. Waudby consent. 6 MS. CAROLYN SILVER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: Does that 8 bring into play 36(1)(j)? 9 MS. CAROLYN SILVER: If -- I -- I submit 10 that it doesn't, only because I think the information 11 relates to Dr. Smith as well but, certainly, if everyone 12 provided their consent, everyone to whom the information 13 relates, and I think counsel for Dr. Smith will say to 14 you that the information relates to their client, as 15 well, but certainly if counsel for Dr. Smith consented 16 and the parties consented, the College certainly would 17 provide that information. 18 Consent is a clear exception and that 19 would be a very simple way to deal with this, that -- 20 COMMISSIONER STEPHEN GOUDGE: Is that the 21 way the College reads (j), that is, when an individual 22 complains about a physician it's both to whom it relates? 23 MS. CAROLYN SILVER: Absolutely, that's 24 how it's always been taken. It's not -- the information 25 -- the written consent of the person to whom the

1 information relates, the College interprets as not just 2 the complainant but the physician, as well. 3 The complaint is about the physician -- 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 MS. CAROLYN SILVER: -- so to read it as 6 only relating to the complainant, the College has not 7 interpreted it in that manner and I submit that -- 8 COMMISSIONER STEPHEN GOUDGE: Now, that 9 means that the purpose of this section, in the College's 10 view, is more than just chilling complain -- keeping 11 complaints from being chilled. 12 MS. CAROLYN SILVER: Correct, but -- 13 COMMISSIONER STEPHEN GOUDGE: Because the 14 concern about chilling complaints is that of the 15 complainant. 16 MS. CAROLYN SILVER: Correct. To put it 17 broadly, I would suggest in answer to the question that 18 you raised before, the purpose of the sections seem to be 19 that what happens in the College proceeding stays in the 20 College proceedings, in a -- in a very -- 21 COMMISSIONER STEPHEN GOUDGE: That's to 22 restate the section, what's the purpose of that? 23 MS. CAROLYN SILVER: Right. The purpose 24 of the section is, I think fairly, as Ms. Rothstein put 25 it, but I say it's not just limited to --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MS. CAROLYN SILVER: -- worrying about 3 civil redress so... 4 COMMISSIONER STEPHEN GOUDGE: Right. 5 Okay. Okay, thanks. 6 MS. CAROLYN SILVER: Okay. 7 COMMISSIONER STEPHEN GOUDGE: 36(3). 8 9 (BRIEF PAUSE) 10 11 MS. CAROLYN SILVER: I think I've 12 explained why we take the position and we don't seem to 13 be taking a different position than Commission Counsel, 14 but they are two (2) separate determinations; first, 15 disclosure, really, under section 36(1) and whether 16 that's allowed; and then whether the documents are 17 admissible and whether an individual from the College is 18 compellable. 19 And the College takes the position that 20 the legislation and the case law allows for an 21 interpretation of civil proceeding to include an Inquiry, 22 and this Public Inquiry. And I think to fairly state it, 23 I think both counsel would agree that the case law is 24 certainly less than clear. 25 And if it's difficult to determine where

1 to properly bring contempt proceedings, it certainly 2 doesn't appear to be easy to determine which proceedings 3 would fall under the category of civil proceedings. 4 Certainly, in its simplest form, 5 Commission Counsel is right. There does appear to be 6 dichotomy between criminal proceedings on one (1) hand, 7 civil proceedings on the other; anything not criminal 8 would be included in the broad category of civil 9 proceedings. 10 And the College is simply here to say, 11 that appears to be one (1) reading. It's not clear to -- 12 on that reading, an Inquiry would fall under that 13 category. 14 And the Faber case, really, from the 15 Supreme Court of Canada is part of the basis for that 16 interpretation of civil proceedings. 17 And we've included the case from the 18 British Columbia Court of Appeal, the British Columbia 19 Securities Commission and Branch from the BC Court of 20 Appeal, where they relied on the Faber case, and stated 21 in the Supreme Court of Canada, five (5) Judges, led by 22 Grandpre, concluded that a coroner's inquest is a civil 23 proceeding. 24 So certainly the Faber case has been taken 25 as stating that a coroner's inquest is a civil

1 proceeding, and the College submits that if a coroner's 2 inquest is a civil proceeding, a public inquiry could as 3 well be considered a civil proceeding under the 4 legislation. 5 And we submit then, that in the context of 6 the RHPA where the confidentiality of College information 7 can only be breached in limited circumstances, civil 8 proceeding may be given that broad meaning to encompass 9 all proceedings that are not criminal in nature. 10 And we then included the line of cases for 11 Forget and Sutherland, Armitage and Middleton Sun Media 12 just to demonstrate that a strict approach has been taken 13 to the admission of confidential College documents; 14 granted that that was in the context of civil 15 proceedings. 16 COMMISSIONER STEPHEN GOUDGE: Are 17 proceedings under the RHBA public? 18 MS. CAROLYN SILVER: Yes, they are. Open 19 to the public? 20 COMMISSIONER STEPHEN GOUDGE: Yes. 21 MS. CAROLYN SILVER: Yes, they are. 22 There are certain sections that deal with when the 23 proceedings can be held -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 MS. CAROLYN SILVER: -- in camera --

1 COMMISSIONER STEPHEN GOUDGE: Right. 2 MS. CAROLYN SILVER: -- but -- and 3 certain publicly -- 4 COMMISSIONER STEPHEN GOUDGE: But the 5 presumption going in is -- 6 MS. CAROLYN SILVER: Yes. 7 COMMISSIONER STEPHEN GOUDGE: -- they're 8 public? 9 MS. CAROLYN SILVER: They're open public 10 proceedings, correct. 11 12 (BRIEF PAUSE) 13 14 MS. CAROLYN SILVER: And subject to any 15 questions, those are my submissions on the main two (2) 16 issues. 17 COMMISSIONER STEPHEN GOUDGE: Okay. 18 Thanks, Ms. Silver. 19 MS. CAROLYN SILVER: Thank you. 20 COMMISSIONER STEPHEN GOUDGE: Ms. 21 Langford, I guess, you're third. 22 23 SUBMISSIONS BY COUNSEL FOR DR. CHARLES SMITH: 24 MS. JANE LANGFORD: Good morning, 25 Commissioner. Mr. Commissioner, the factum submitted on

1 behalf of Dr. Smith sets out his position on this issue 2 fairly comprehensively. I do not intend to take you 3 through that factum in detail. My purpose today is to, 4 if you will, wander and illuminate some of the issues, 5 allow you to ask any questions of me, and respond briefly 6 to some of the submissions that we have heard this 7 morning. 8 At the outset though, I would like to echo 9 the College's Physicians and Surgeon's comments. Dr. 10 Smith's position here today should not be taken as any 11 disrespect to the Commission. In fact, Dr. Smith has 12 been cooperating with the Commission and, in particular, 13 with respect to his production obligations, my 14 understanding is this is the only dispute that the 15 Commission counsel has with Dr. Smith regarding 16 production of documents in his possession. 17 COMMISSIONER STEPHEN GOUDGE: I say the 18 same thing concerning your client as I did to Ms. Silver. 19 This is a legitimate legal debate that you're perfectly 20 entitled to raise. 21 MS. JANE LANGFORD: Thank you, sir. You 22 will not from the factum that the argument Dr. Smith 23 makes focuses on documents in the summons, paragraphs 1 24 to 4. And we have coined those documents into two (2) 25 categories.

1 First the "known complaints;" that is, 2 documents related to three (3) specific identified 3 complaints. And those are paragraphs 1 to 3 of the 4 summons. And then paragraph 4, which we have coined the 5 "unknown complaints;" if there are any such complaints, 6 those documents would fall under paragraph 4. And they 7 are, indeed, unidentified and unknown. 8 Dr. Smith takes no position with respect 9 to paragraphs 5 and 6 of the summons. Indeed, he has no 10 knowledge of the existence of any such documents. My 11 Friend has coined those "systemic documents." We have 12 coined them in our factum "investigation protocols and 13 oversight documents." Again, we take no position with 14 respect to those. 15 You will know from reading the factum, 16 sir, that Dr. Smith has three (3) grounds upon which he 17 objects to producing the documents, and objects to the 18 summons to the College for their production with respect 19 to the known and unknown complaint documents. 20 First, they are irrelevant. Respectfully, 21 Dr. Smith submits that the documents sought will not be 22 probative of the issues within your mandate. 23 Secondly, the documents are inadmissible. 24 They are specifically precluded from being used at the 25 Inquiry by section 36(3) of the RHPA.

1 And thirdly, Dr. Smith does assert a 2 privilege, a common law privilege, over the documents 3 and, as such, takes the position that they are precluded 4 from use by Section 11 of the Public Inquiries Act. 5 And I pause here to note that two-thirds 6 (2/3) of the arguments that I make on behalf of Dr. Smith 7 are not unique to him; rather, they are matters of legal 8 principle and policy applying to documents arising from 9 proceedings involving members of any of the twenty-four 10 (24) health professions that are governed by the RHPA. 11 Focussing first on relevance, and you will 12 find that argument in paragraphs 2 to 5 of my factum, 13 sir. In a nutshell, the Commission appears to argue that 14 pursuant to a decision of the Health Professions Appeal 15 and Review Board in 1998, that the College became an 16 oversight mechanism for pediatric forensic pathology in 17 Ontario. And you'll find that in their factum at 18 paragraphs 2, 23, and 24. 19 And by that, they suggest that it is the 20 mandate of this Commission to scrutinize the College 21 investigations of Dr. Smith. And with respect, sir, we 22 submit that a determination of relevance will depend very 23 -- very much on whether the documents are useful to that 24 mandate that the Commission asserts, and that we believe 25 that when you fairly scrape away the superficiality of

1 suggesting that because this has something to do with Dr. 2 Smith at the College, that this mandate -- this 3 Commission has mandate over the College, you will 4 determine that there are, in fact, that -- there is, in 5 fact, no evidence that these documents will be probative 6 of the mandate. 7 Before I take you to the specific 8 arguments on relevance, I want to pause for a moment to 9 quote the Ontario Law Reform Commission and its analysis 10 of the purpose of public inquiries, and it -- you'll find 11 the quo -- the -- the reference in our authorities, and 12 it's cited in paragraph 32 of our factum. You need not 13 got there specifically. What I meant to quote to you, 14 sir, is at page 198, and the Ontario Law Reform 15 Commission says: 16 "Relevancy is not an empty concept. 17 The Commission must be prepared to 18 demonstrate that the evidence relates 19 to a matter within the Commission's 20 mandate." 21 And I submit to you, sir, that in light of 22 what Commission Counsel's submission was to you this 23 morning, and I agree with it, that when it comes to 24 common law exclusionary rules of evidence, this Inquiry 25 will have none, other than relevance and privilege.

1 And on that basis, sir, you ought to be 2 extremely diligent in the analysis of relevance when 3 dealing with all issues and, in particular, the summons 4 to The College of Physicians and Surgeons. 5 The test is not remotely relevant, and I 6 note that the College this morning used the term 7 "potentially relevant." And with respect, sir, that is 8 not the test either. 9 The test is reasonably relevant to the 10 mandate. And my -- the College co -- Commission Counsel 11 referred you to the decision of the Court of Appeal in 12 Bortolotti, and you will also find language in that 13 decision relating to the obligation of the Commission to 14 be diligent in the analysis of relevance. And at page 15 625, the courts says: 16 "In deciding whether evidence is 17 reasonably relevant, it is necessary to 18 scrutinize carefully the subject matter 19 of the Inquiry." 20 And to that I would add, scrutinize 21 carefully Commission's Counsel assertions that the 22 documents are indeed relevant. 23 With that preface, sir, there are four (4) 24 reasons to question the relevance of the documents sought 25 by the summons; first is set out in paragraphs 19 and 20

1 of my factum. 2 Dr. Smith disputes the characterization of 3 the College as an accountability and oversight mechanism 4 for pediatric forensic pathology in Ontario simply 5 because the Health Professions Appeal and Review Board 6 ruled that the College must investigate a particular 7 complaint against one (1) of its members does not, 8 cannot, be extended to suggest that the College has 9 general oversight over pediatric forensic pathology in 10 Ontario. 11 COMMISSIONER STEPHEN GOUDGE: What do you 12 sort of mean by "general oversight"? I mean -- 13 MS. JANE LANGFORD: Well, let me draw 14 this distinction. That the -- the pathologist is a 15 member of the College; therefore, -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 MS. JANE LANGFORD: -- the College must 18 investigate. The College does not have any authority to 19 issue overall protocols -- 20 COMMISSIONER STEPHEN GOUDGE: So it can 21 only do it case by case? 22 MS. JANE LANGFORD: It's a case by 23 case, -- 24 COMMISSIONER STEPHEN GOUDGE: Okay. 25 MS. JANE LANGFORD: -- it's not a --

1 it's not pathology, it's pathologists. It's not surgeon 2 -- it's not sug -- surgery in general, it's the surgeon 3 and it's the surgeon who was complained against. 4 COMMISSIONER STEPHEN GOUDGE: Okay. So 5 you say I should read oversight mechanisms to these sort 6 of -- those bodies that can provide guidelines, if you 7 like, as opposed to case-by-case scrutiny of alleged 8 wrongdoing? 9 MS. JANE LANGFORD: That's right. And to 10 -- to suggest practises for the pediatric forensic -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MS. JANE LANGFORD: -- in -- 13 investigations in Ontario. And with respect, the 14 paragraph that -- that the Commission Counsel relies upon 15 in that HPARB decision, nothing in that HPARB decision 16 says that the College has general oversight and 17 accountability over pediatric forensic pathology in 18 Ontario. 19 There's simply nothing in that decision. 20 All the HPARB decision says is the College must 21 investigate one (1) of its member when they receive a 22 complaint, full stop. 23 Second reason, sir, that I submit that the 24 documents sought are irrelevant relate to the -- the fact 25 of the timing of the complaints to the College, and I

1 concede what Commission Counsel has said this morning, 2 there is no dispute that the three (3) known complaints 3 are three (3) complaints that were the subject of the 4 coroner's review that then lead to the calling of this 5 Inquiry. I take no issue with that. 6 But the complaints to the College 7 postdated the disputed pediatric death investigations in 8 each of those three (3) cases. And I submit to you on 9 that basis alone, there's simply no evidence that 10 anything that the College did or didn't do, any of the 11 processes that the College went through had any influence 12 whatsoever on the actual pediatric death investigation 13 that you will considering in this Inquiry. 14 There's no suggestion that the College 15 influenced the conduct of any of the parties who were 16 involved in that pediatric death investigation, and 17 there's no suggestion that the coroner's office, itself, 18 was in any way influenced by the outcome, the decision, 19 the investigation itself. 20 And I -- I add to that as a third point, 21 but related, that I assume that the Commission Counsel by 22 now has had full disclosure of documents from the Ontario 23 -- from the coroner's office, and I note that they have 24 proffered no evidence to suggest that the coroner's 25 office ever relied on the College as an oversight and

1 accountable mechanism for pediatric forensic pathology in 2 Ontario; for these three (3) investigations or, indeed, 3 for any pediatric investigation -- forensic pathology 4 investigation in Ontario. 5 The forth point regarding relevance of the 6 known complaints, sir, relates more to the probity than 7 the relevance, although I -- I consider those concepts to 8 dovetail one another. It is important, I believe, to 9 recognise that Commission Counsel can get all of the 10 information regarding those pediatric death 11 investigations directly from the source: the 12 complainants, the coroner, the medical professionals who 13 were involved, the Children's Aid Society. 14 Any of the institutional actors can be 15 compelled to come before you and give this Commission of 16 Inquiry evidence as to what went on in that pediatric 17 death investigation. 18 This Commission need not rely on what I 19 consider to be a secondhand compellation, if you will, of 20 how that pediatric death investigation went on. 21 And arguably, it's a dangerous way of 22 approaching an investigation, fro -- from this Inquiry's 23 point of view, because the College investigation had as 24 its mandate, a very different purpose than -- than your 25 mandate, sir, and the mandate of this Commission. And

1 one ought not to rely on those underlying documents to 2 provide evidence as to what went on in the pediatric 3 death investigation, rather than directly from the source 4 itself. 5 Those four (4) relevant points relate to 6 the known complaints. I submit to you, sir, that they 7 also relate to the unknown complaints, if any -- if any 8 exist. 9 But I add a fifth point with respect to 10 the unknown complaints and I think Com -- I heard Ms. -- 11 Commission Counsel potentially concede that the scope of 12 -- she -- although she didn't use these words, the scope 13 of the summons with respect to the unknown complaint is 14 extremely broad and, indeed, as we sit here, we do not 15 know whether there are any other complaints and if there 16 are so, whether those complaints relate to Dr. Smith's 17 work as a pediatric forensic pathology. 18 And I submit to you that if they do not, 19 they are absolutely irrelevant to your mandate to 20 investigate pediatric forensic pathology. And I am 21 prepared to concede, sir, that it might be appropriate, 22 rather than to quash, which is not my relief I'm seeking, 23 but to po -- potentially amend the summons so that it is 24 more specific. I don't agree with what I think 25 Commission Counsel was suggesting which is that we can

1 deal with it later. 2 I submit to you that the summons itself 3 should be specific for what it is -- is being sought so 4 that we can judge the relevance of what is being sought 5 and I submit to you that that paragraph 4 is far too 6 broad to -- 7 COMMISSIONER STEPHEN GOUDGE: I heard Ms. 8 Rothstein say that for those we don't know about, 9 relevance could be debated on sort of document-by- 10 document basis. 11 Do you have any concern with that way of 12 approaching what you call the unknown documents? 13 MS. JANE LANGFORD: I do, sir. I think 14 that the -- the summons should say, any complaints 15 against Dr. Smith relating to his work as a pediatric 16 forensic pathologist in Ontario. 17 COMMISSIONER STEPHEN GOUDGE: So that 18 there would be a general proscription about anything 19 other than pediatric forensic pathology. 20 MS. JANE LANGFORD: That's right, because 21 I do not believe it's appropriate for the College to -- 22 should you find that they have to submit to this summons, 23 to be releasing this -- these documents, even to 24 Commission Counsel to make that determination. 25 COMMISSIONER STEPHEN GOUDGE: Well,

1 appropriate you would way, I take it, because nothing 2 else is relevant -- 3 MS. JANE LANGFORD: That's right. 4 COMMISSIONER STEPHEN GOUDGE: -- that is 5 if there were a complaint and I have no idea, obviously, 6 whether there was or wasn't about Dr. Smith doing 7 pediatric pathology outside the forensic arena. 8 MS. JANE LANGFORD: That's -- that's 9 correct. 10 COMMISSIONER STEPHEN GOUDGE: You would 11 say that's not relevant to the mandate of this Inquiry. 12 MS. JANE LANGFORD: And therefore, not 13 within your authority to summons. 14 COMMISSIONER STEPHEN GOUDGE: Okay. 15 MS. JANE LANGFORD: Those then are my 16 submissions with respect to relevance, sir, subject to 17 any questions you have. 18 I'm going to turn briefly to the issue of 19 admissibility of documents at this -- College documents 20 at this Inquiry and you will find those submissions in my 21 factum at paragraphs 22 to 37. 22 And I hope not to duplicate any of the 23 arguments that you've heard already. I want -- I do want 24 to comment on some of the positions taken by both 25 counsel. The College, of course, focusses its argument

63
  1  here today on Section 36(1) and the duty of
  2  confidentiality and I don't take a position on any of the
  3  arguments with respect to the exceptions of under the --
  4  under that provision.
  5                 I do take issue with the submission by
  6  both counsel that you can consider 36(1), (2), and (3)
  7  separately.  I do agree that, for example, you might find
  8  that a document can be disclosed under 36(1) and not
  9  admissible under 36(3); I agree with that.
 10                 But I do not agree with the underlying
 11  premise that you can read section 36(3) all on its own
 12  and interpret its -- its import without consideration of
 13  Section 36(1) and (2).
 14                 And I will in -- in these submissions,
 15  sir, answer your question as to what I believe the
 16  purpose of 36(3) is.  I believe when you look at Sections
 17  36(1), (2), and (3), and you read those three (3)
 18  provisions together, it is an expressed statement of
 19  legislative intent to protect the integrity of the entire
 20  College of Physicians and Surgeons proceeding, and
 21  procedures, by preserving the confidentiality of
 22  information in Section (1); by protecting the College
 23  personnel from being summoned, in Section (2); and is
 24  Section -- subsection (3), limiting the use to which to
 25  College documents are put.

64
  1                 When you look at those three (3)
  2  provisions together, information, personnel and
  3  documents, it's fair to submit that it is a relative
  4  complete accurate effort on the part of the Legislature
  5  to completely shroud the College proceedings in
  6  confidentiality.
  7                 And to the answer of:  Why is that?
  8                 COMMISSIONER STEPHEN GOUDGE:   Why, yes.
  9                 MS. JANE LANGFORD:   Why is that; I know
 10  that's your question, and I will try to answer it from my
 11  perspective.
 12                 COMMISSIONER STEPHEN GOUDGE:   Why were
 13  they doing it?
 14                 MS. JANE LANGFORD:   I -- I have a broader
 15  answer than both counsel have submitted.  In -- in my
 16  respectful submission, confidentiality does allow the
 17  College to discharge its mandate to serve and protect the
 18  public; and I emphasis that it's a public interest
 19  mandate that underlies this provision, which will be
 20  relevant in my submissions on the Wigmorian balancing
 21  tests.
 22                 They have the -- the mandate to serve and
 23  protect the public by conduct -- conducting mandatary
 24  investigations in which participants can participate with
 25  full and frank disclosure of information to The College

1 of all of the issues in dispute. 2 And how do they guarantee full and frank 3 disclosure? They do so by granting the participants the 4 promise of confidentiality. 5 And I pause, because I am using the word 6 "participants" intentionally. Commission Counsel used -- 7 focussed largely on the complainants themselves. College 8 Counsel added to that and said it also relates to the 9 physician who is the subject of the complaint. 10 In my respectful submission, and you can 11 look at the decision in Forget and Sutherland for support 12 for this, it isn't just those two (2) parties. It's all 13 of the participants in the College proceeding: the 14 witnesses who are asked to provide information, other 15 medical professionals, institutional actors. There are 16 all kinds of individuals who may be asked in the course 17 of a College investigation to give information to the 18 College. 19 And they are all offered a promise of 20 confidentiality by sec -- by Section 36. And -- 21 COMMISSIONER STEPHEN GOUDGE: Not by 22 36(3). 23 MS. JANE LANGFORD: Well I'm going to 24 come to that. Because I suggest to you that the decision 25 that's in my factum, paragraph -- paragraph 30, the

1 Middleton decision. Decision of the court that said: 2 "Because the documents are 3 inadmissible, they cannot be used in a 4 civil proceeding." 5 And so I suggest that in fact the 6 interpretation of 36(3) of inadmible -- inadmissibility 7 in a civil proceeding, is broader than just submitting 8 into evidence; that that decision stands for the 9 proposition they cannot be used at all. 10 And if they cannot be used at all, they 11 ought not to be disclosed. And the Middleton decision is 12 a case involving an affidavit of documents, and -- 13 COMMISSIONER STEPHEN GOUDGE: I guess 14 what I was getting at is, if the proceedings under the 15 RHPR are in public, once you get a document into that 16 forum it's public, and confidentiality is gone. 17 MS. JANE LANGFORD: And -- and thank you, 18 that reminds me of -- of raising a point. You asked the 19 question of College Counsel whether proceedings are open 20 to the public, and I -- I may be putting words in her 21 mouth, by I believe she answered that question from the 22 point of view of discipline hearing proceedings; those 23 type of proceedings. 24 It's my respectful submission that 25 "proceeding" is a broader word. An investigation at the

1 College is a proceedings and that is not open to the 2 public. 3 COMMISSIONER STEPHEN GOUDGE: Okay. 4 MS. JANE LANGFORD: So this expectation 5 of privacy for all of the participants gets the College 6 the full cooperation that the College needs to discharge 7 its public mandate. 8 But it isn't just that, sir. There's more 9 to the legislatives -- Legislature's intention to keep 10 the College process separate and it's about distracting 11 the College from what it ought to do. 12 The Legislature clearly does not want 13 participants in College proceedings to use College 14 proceedings for ulterior purposes. By shrouding the 15 whole proceeding in confidentiality, the College does not 16 run the risk of being distracted from its mandate, run 17 the risk of being used a tool by any of the parties for 18 other purposes other than the purposes that are given to 19 the College under the Act. 20 And so in my respectful submission, the 21 privacy afforded the participants dovetails entirely with 22 the confidentiality afforded the process in section 36; 23 the two (2) are inextricably connected and they must be 24 preserved. 25 And you should, in my respectful

1 submission, sir, take a very purposive approach to your 2 interpretation of the words "civil proceeding", keeping 3 in mind the underlying purpose and policy rationale and 4 public interest attaching to Section 36 entirely, and in 5 particular section 36(3). 6 Dealing briefly with the issue of civil 7 proceeding and I -- I'm not going to duplicate the 8 arguments that College Counsel has made, I -- I adopt her 9 submissions that there has -- and also Commission 10 Counsel's submission that there's obviously a lot of 11 jurisprudence on this issue, and it's not particularly 12 helpful because it does actually fall all over the map, 13 in terms of what a civil proceeding means. 14 But there's a reason for that and the 15 jurisprudence is clear that civil proceeding is a 16 contextual -- a contextual matter. You should not only 17 consider the -- the statute under which the word is 18 found, but also the context in -- in which you find 19 yourself here and that is, of course, the Public Inquiry. 20 But I also submit to you that the cases 21 are clear that civil proceeding also focusses on whether 22 or not the proceeding in question has the authority to 23 compel evidence, to make findings of fact, to draw 24 conclusions. And with respect, you have all of those 25 powers, sir, in this Public Inquiry.

69
  1                 I want to take issue with the suggestion
  2  of the import of this Public Inquiry.  We have heard
  3  submissions, and I don't challenge them, that the mandate
  4  of this Public Inquiry is not to make findings of
  5  criminal a -- or -- and/or civil culpability.  I agree
  6  with that submission.
  7                 But I don't think it's fair then to say,
  8  because there are no formal legal consequences of the
  9  work in this room that they will have no legal
 10  implications.  
 11                 Indeed, I would hope quite to the
 12  contrary, sir, that any public inquiry and
 13  recommendations coming from a Commissioner who has heard
 14  evidence from a broad range of parties, that those
 15  recommendations would in due course have significant
 16  legal implications for the parties that are interested in
 17  the system.
 18                 The presence of so many counsel seeking
 19  representation -- sorry, parties seeking representation
 20  and expressing an interest in this pediatric forensic
 21  pathology system speaks to the recognition that there
 22  will be legal implications ultimately of the
 23  recommendations we hope you will make.
 24                 And it's too narrow simply to say because
 25  there are no formal findings of criminal or civil

1 culpability that there are no legal implications. 2 Secondly, and perhaps more significantly 3 from my client's perspective, but indeed from all of the 4 parties before you, sir, on -- beginning on November 5 12th, it is very clear that a Public Inquiry has a 6 significant impact on the reputational interest of all of 7 the parties who are the subject of the Inquiry. 8 And I -- I quoted in my factum at 9 paragraph 36, the words of the Supreme of Canada in 10 relation to the Krever inquiry into tainted blood. The 11 Court in that case said: 12 "A good reputation is an individual's 13 most highly prized attribute." 14 And I don't think there's anyone who would 15 dispute that the work of this Commission will have an 16 impact on various parties institutional or individual's 17 reputational interests. And that this Commission can 18 effect the reputation of the parties and the participants 19 and that it will have some legal implication down the 20 road, if not formal consequence, reinforces the fact that 21 the civil proceeding -- the language of civil proceeding 22 in the context of the confidentiality provisions of 36 23 should be -- should be taken to include public inquiry. 24 Lastly, sir, I want to turn to Dr. Smith's 25 assertion of privilege over the College documents.

71
  1                 COMMISSIONER STEPHEN GOUDGE:   Okay.  
  2                 MS. JANE LANGFORD:   I'm going to deal
  3  upfront with the question I know you will ask me, sir,
  4  which is that:  What is the import of the College's
  5  position that they're -- they're not asserting a
  6  privilege over these documents and that Dr. Smith is?  
  7                 First of all, I note that although the
  8  College claims not to be asserting a privilege, in fact,
  9  there are arguments, both in writing and orally to you
 10  today, meet all of the Wigmore -- the three (3) tests in
 11  Wigmore.  
 12                 They did assert to you that there was an
 13  expectation of confidentiality in the documents.  They
 14  did assert that the expectation is essential to the
 15  effective operation of the proceedings under the Act. 
 16  And they did assert to you that the confidentiality
 17  should be fostered in the public interest.  
 18                 And so -- although they have not used the
 19  language privilege and are not asserting that privilege,
 20  I -- I simply point out that the position they've taken,
 21  in fact echos what I will be submitting on behalf of Dr.
 22  Smith.  That's the first point.  
 23                 The second point is that this
 24  investigation was about Dr. -- these known complaints
 25  were about Dr. Smith, they are -- they will -- the

1 documents will, of course, include communications that he 2 had as a participant in the proceeding with the College. 3 The insights, comments, opinions expressed 4 by others in their communications to the College, 5 presumably as witnesses to the issues in dispute before 6 the College, relate to him. And in my respectful 7 submission, he has every right to assert a privilege not 8 only -- over his own communications with the College, but 9 the documents that refer to him in those -- in -- in the 10 College's documents. 11 And it -- in my respectful submission, the 12 fact that the College does not assert a privilege over 13 those documents does not remove your jurisdiction to 14 consider Dr. Smith's argument of privilege and to indeed 15 so find that some, if not all, of the documents are 16 covered by -- by the common-law privilege. 17 I noted in the Commission Counsel's factum 18 that there was much -- much was made of the fact that the 19 Section 36 did not include the word "privilege". I 20 assume Your Honour will agree with me that nothing in the 21 Public Inquiries Act excludes the application of -- of 22 the common law, which would -- which would have been -- 23 have to have been an expressed statement of exclusion of 24 the common law, and therefore, in my respectful 25 submission, the legislator's intent, vis-a-vis privilege,

1 has got nothing to do with the common law -- my common 2 law argument on behalf of Smith asserting privilege. 3 So beginning, sir, at -- in paragraphs 38 4 to 48 of my factum, I set out the Wigmore criteria, which 5 Your Honour will be familiar with. And I respectfully 6 submit that all three (3) of the Wigmore criteria are met 7 in these circumstances. 8 As previously stated, Dr. Smith -- the 9 Section 36 creates an expectation of confidentiality 10 among all participants, including Dr. Smith but not 11 limited to Dr. Smith. The expectation is essential to 12 the effective operation of the proceedings under the Act. 13 And, in my respectful submission, based on what we have 14 previously discussed regarding Section 36 and its intent 15 -- intent, that confidentiality should be fostered in the 16 public interest. 17 And, in my respectful submission, 18 asserting a privilege over the College documents is, 19 indeed, consistent with the policy rationale under -- 20 underlying Section 36. It's also consistent with the 21 important charter value regarding individual dignity and 22 self-worth. 23 And you will find in my factum sources 24 regarding the recognition by the court -- the courts, of 25 course, that the common law should reflect the evolution

1 of values in our society; obviously the charter values 2 are amongst our most cherished values. 3 And I hope it would be trite for me to 4 have to say that the College proceedings, as Dr. Smith's 5 regulator, can have -- and -- and any regulator has 6 enormous power over the -- the member of that profession. 7 College proceedings can destroy professional lives 8 entirely. They can affect in grave and irretrievable 9 ways, not only the member, but also the member's 10 colleagues and family. And the Court has recognised 11 that. 12 You will find cites in my factum to that 13 effect; that is, that individual self worth and dignity 14 associated with a person's profession, a person's 15 calling, is a charter value. 16 And I submit to you, sir, in when 17 considering the assertion of privilege you ought to 18 consider the charter value underlying this claim of 19 privilege, being the -- the claim of confidentiality and 20 privacy over the College documents, that the call -- the 21 common law is to be developed in a manner consistent with 22 the charter reinforces the view that the documents 23 summoned are privileged, in my -- my respectful opi -- 24 opinion, which takes me to my last point. 25 If you were to agree, sir, that the

75
  1  Wigmore criteria are met in this case, it is obviously
  2  not enough.  You must go on and do an analysis under the
  3  fourth arm of that -- or the last stage of that, which is
  4  weighing the interests involved to -- to determine which
  5  one out -- is more important.
  6                 And I per -- I -- I suspect a question
  7  that you have in your mind, sir, is:  Will I be able to
  8  get at the truth in this Inquiry without the College
  9  documents?  In my respectful submission you will and I
 10  hope I've illustrated that in my relevance arguments.  
 11                 But in my respectful submission, the
 12  question should be this:  Does the public interest in
 13  this Inquiry outweigh the public interest in upholding
 14  the privilege over the documents at the College?  And in
 15  my submission it does not.  And the reason it does not
 16  brings me back to my very first point, which was that the
 17  documents have questionable relevance to your mandate.
 18                 They will not, in my respectful
 19  submission, illuminate the pediatric death investigations
 20  that you will be looking at in any way beyond that which
 21  is available directly from the parties involved in those
 22  pediatric death investigations.
 23                 And because of that, sir, in my respectful
 24  submission, there is no persuasive countervailing
 25  interest that outweighs the clear privilege that a --

1 that a -- is afforded these documents. 2 There is no clear countervailing interest 3 that outweighs the strong public interest governing the 4 College documents; that is the -- the promise of 5 confident -- confidentiality and privacy, a strong public 6 interest in an independent uninfluenced College of 7 Physicians and Surgeons that exists separately from all 8 other proceedings, apart from criminal proceedings. 9 And on that basis, for those reasons I 10 respectfully submit that the documents ought not be 11 compelled by the College for the reasons for relevance, 12 the reasons of confidentiality and inadmissibility and 13 the reasons of privilege. 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER STEPHEN GOUDGE: I'm not 18 sure I fully grasp, Ms. Langford, how it is you say you 19 get, or Dr. Smith gets to assert privilege in the College 20 documents. 21 MS. JANE LANGFORD: The Coll -- first of 22 all, they are -- 23 COMMISSIONER STEPHEN GOUDGE: I mean, I 24 know why you say privilege would apply if the College 25 asserted them, for all the reasons you've given me.

1 MS. JANE LANGFORD: Because it's not 2 necessarily the College's, although they could assert 3 privilege, but it's not necessarily only their privilege 4 to assert, it's the privilege of -- it's a -- it's a 5 privilege that can be asserted by any participant in that 6 process. 7 Why? Because the documents were created 8 under the -- the pro -- promise of confidentiality; 9 that's the primary reason that individual can assert; 10 that's the first test of Wigmore. 11 So when Dr. Smith participates in the 12 College proceeding, he has that promise of 13 confidentiality and that's the very first ground of the 14 Wigmore test. And there's nothing that precludes parties 15 in those context from asserting that sort of privilege 16 over documents. 17 So at minimum, his communications with the 18 College ought to be governed by the privilege that he 19 asserts over those communications because he communicated 20 with them under the expectation of privacy. 21 But with respect, there are other 22 participants who have the same interest in those 23 documents. And because those other participants are 24 communicating presumably about Dr. Smith, it's my 25 position that he has every right to assert a privilege

1 over those documents, as well, because again, those 2 participants are -- are presumably presi -- participating 3 under the same promise of confidentiality. 4 The entire investigation is shrouded with 5 that confidentiality, and he ought to be able to assert 6 that confidentiality over proceedings that relate 7 directly to his professional licence. 8 COMMISSIONER STEPHEN GOUDGE: Okay. 9 Okay, thank you. 10 MS. JANE LANGFORD: Thank you. 11 COMMISSIONER STEPHEN GOUDGE: Ms. McKay, 12 do you have anything you want to say? 13 MS. HEATHER MCKAY: No, the province 14 isn't taking any position. 15 COMMISSIONER STEPHEN GOUDGE: And, Ms. 16 Fraser? 17 MS. SUZAN FRASER: No, sir. 18 COMMISSIONER STEPHEN GOUDGE: Mr. 19 Lockyer...? 20 MR. JAMES LOCKYER: No, sir. 21 COMMISSIONER STEPHEN GOUDGE: Can I 22 record that? I just think that's an unusual circumstance 23 with you as counsel, Mr. Lockyer, but I appreciate it. 24 Okay, Ms. Rothstein...? 25

1 REPLY BY COMMISSION COUNSEL: 2 MS. LINDA ROTHSTEIN: Commissioner, I 3 told Mr. Lockyer he wasn't being invited to say anything. 4 Commissioner, I'll be brief, but in no 5 particular order. Let me deal firstly with the issue of 6 consent and the cooperation that we've received from Ms. 7 Silver and her colleague, and from Ms. Langford and her 8 colleague, and indeed from all the counsel in the room, I 9 do want to be clear that the cooperation has been 10 fantastic. 11 And it isn't because of any lack of 12 cooperativeness on anyone's part that we're here. And I 13 also have to confess, it isn't simply because, 14 Commissioner, Mr. Centa and I wanted to test drive your 15 new hearing room that we're here. 16 We are here because having explored the 17 issue of consent, which would have provided the College 18 with some comfort that they could at least produce the 19 documents to us and leave for another day the issue of 20 admissibility, we were confronted with the College's 21 interpretation which required, they said, consent, not 22 just from the individual complainants, but also from Dr. 23 Smith and perhaps from others who may have been the 24 authors of various documents that may be in their files. 25 So that was a hurdle that we couldn't

80
  1  surmount and thus we're here.  
  2                 Let me return very briefly to the issue of
  3  relevance, because it's been put so vigorously by Ms.
  4  Langford.  At the summons stage, sir, it is a different
  5  test.  It's a test of whether it's prima facia relevance
  6  because we can't look at the documents and make any kind
  7  of calibrated conclusion on the issue, and the mere fact
  8  that the documents are relevant for the purpose of
  9  obtaining them and reviewing them will not tie your
 10  hands, sir, in determining their ultimate admissibility. 
 11  I say that, perhaps to provide some comfort to Dr. Smith
 12  and his counsel.  
 13                 On the issue of whether the College,
 14  indeed, is in the business of overseeing pediatric
 15  forensic pathology, and pediatric forensic pathologists,
 16  and whether it offers some accountability mechanism -
 17  which we say by definition is something that likely
 18  occurs after the fact - Section 3 of the Regulated Health
 19  Professions Act, which you don't have, but which we will
 20  give to you, makes abundantly clear that as part and
 21  parcel of the College's overriding objective of
 22  protecting the public interest, it is empowered to
 23  develop and establish and maintain programs and standards
 24  of practice to assure the quality of the practice of the
 25  profession.  And it is required to develop, establish,

1 and maintain standards of knowledge and skill, and 2 programs to promote continuing competence among the 3 members. 4 And we say quite simply, Commissioner, 5 that if that isn't some oversight, then it's hard to 6 imagine what is. 7 The regulations under the Health 8 Profession's Procedural Code, which forms schedule 2 to 9 the legislation, and specifically section 95(1) go 10 further. They empower the College to prescribe the 11 standards of practice of the profession, and from -- and 12 to prohibit members from acting beyond the scope of 13 practice of the profession in the course of practising 14 the profession. 15 With respect -- and with the greatest of 16 respect to My Friend, Ms. Langford, what I heard her 17 really arguing, Commissioner, is that it may not be the 18 proper body to provide simultaneous oversight and peer 19 review; that it may not be close enough to the death 20 investigation to provide efficacious accountability. 21 That, sir, is precisely what this Inquiry has been 22 created in part to address. And I have no doubt you will 23 be hearing much about the strengths and weaknesses of 24 that assertion. 25 With respect to Ms. Langford's arguments

1 that devolve to the expectation of privacy, which she 2 says is imbued in Section 36, and go further to create a 3 common law privilege as articulated by the Supreme Court 4 of Canada, we say that simple reading of Section 36 is an 5 ill-considered way to address either of those issues. 6 Section 36 is the only confidentiality 7 provision that is relevant. But the statute as a whole 8 cannot be seen to create any promise of confidentiality 9 for complainants or for respondents. 10 Indeed, it is the complete opposite of an 11 expectation of privacy. Every complainant who sends a 12 complaint to the registrar of The College of Physicians 13 and Surgeons, or anyone else at that body, knows 14 perfectly well that that complaint will be shared with 15 someone other than the College. It will be shared with 16 the responding member of the profession. It will be 17 shared, perhaps, with witnesses. It will be shared, 18 ultimately, publically if their complaint has enough legs 19 to justify a referral to the discipline committee. 20 And the same can be said of respondents. 21 They know perfectly well that their responding materials 22 may well be shared with complainants, with other 23 witnesses and, ultimately, if their response does not 24 persuade the College that there is no merit in the 25 complaint, will be shared publicly in a very public

1 proceeding, subject only to the kind on incursions on 2 publicity that you, Commissioner, have in your 3 legislation, i.e., only rarely. 4 We say all of that argues vigorously 5 against there being any common law privilege in this 6 case, but if there were any doubt about that, you ought 7 to take a look at Ms. Langford's Book of Authorities. 8 She's included the Steep decision at Tab 9, which makes 9 reference to a BC Court of Appeal case in which it would 10 appear that very issue was adjudicated. Paragraph 29, 11 the master in the Steep case records: 12 "The Plaintiff's primarily rely upon 13 seven (7) cases. In Bergwitz and Fast 14 BC Court of Appeal cite the Plaintiff 15 lodged a complaint against a dentist 16 with The College of Dental Surgeons and 17 started a civil action for damages for 18 negligence. The Plaintiff sought 19 production of the College's 20 investigation report which was found 21 not to be privileged based on the 22 fourth Wigmore condition." 23 Any there's another similar BC decision 24 recorded there. 25 So the authorities that My Friend has

1 produced would argue against the proposition which she 2 asserts. 3 I want to briefly address the distinction 4 between legal implications and legal consequences, and 5 the argument of Ms. Langford that reputational interests 6 are at stake here and that you should take that seriously 7 in dealing with this issue. 8 There will be many times, I anticipate, 9 Commissioner, in this Inquiry when the potential for 10 reputational harm will find its way into your decision- 11 making. I expect -- we all expect you to be alive to 12 that very real and legitimate concern, not only of Dr. 13 Smith, but of many who may find themselves the subject of 14 discussion in this hearing room. 15 That said, the Supreme Court of Canada has 16 made clear that the potential for reputational harm and 17 the potential that your finding of fact may somewhere 18 down the line have legal implications is not the same 19 thing as this inquiry having legal consequences. And not 20 only the Blood Inquiry makes that clear, but the line of 21 jurisprudence which precedes and follows it, I can 22 remember, too, the Consortium case and the Westray case, 23 stand clearly on that basis. 24 Let me deal with Ms. Silver's argument 25 that there are many statutes that give investigators

1 administering their statute powers of a commission under 2 part 2 of the Public Inquiries Act. 3 We say firstly, Commissioner, that a 4 public inquiry constituted under Section 2 of the Public 5 Inquiries Act is different from another body acting under 6 another Act for a much more limited purpose, and it may 7 well lead to a different conclusion when one does the 8 Section 36 analysis. 9 And we say also that the relevance test 10 will surely attenuate any concern that the floodgates 11 will open and The College of Physicians and Surgeons will 12 be met with tenuous requests from investigators from the 13 Agriculture Review Board requesting documents. 14 I'm being a bit flippant, Commissioner, 15 but I make the point that relevance will surely be an 16 anchor on any unlimited scope for a look inside the 17 College's files. 18 But in any event, Commissioner, we 19 actually -- we -- your Commission Counsel do not shirk 20 from the suggestion that when investigators are merely 21 investigating that that may well put them in a position 22 where they have access to information that would not -- 23 would not find its way into the disciplinary process and 24 disciplinary adjudication proper, because, as I've said, 25 the Legislature has made a critical distinction between

1 investigations, on one hand, and disciplinary 2 proceedings; and because the Supreme Court of Canada has 3 so clearly articulated the difference between proceedings 4 which have legal consequences and those which do not, and 5 we are in the former category. 6 And finally, Commissioner, I hear Ms. 7 Silver and indeed Ms. Langford to urge upon you the 8 notion that the language of the Regulated Health 9 Professions Act must be -- must be read strictly, the 10 confidentiality bars, or liberally, the confidentiality 11 scope, in order to protect the purpose of that provision. 12 And as against that, we say two (2) 13 things. We say firstly, how can it be that the concern 14 about protecting the College's complaint process broadly 15 described is answered by our request for systemic 16 documents about how the College goes about regulating the 17 discipline of pediatric profend -- pro -- pediatric 18 forensic pathology -- no doubt I'll get that better as we 19 go along -- if at all. 20 How can that objective of the Legislature 21 be answered by our request for systemic documents? 22 And more fundamentally, we say that the 23 modern approach to statutory construction rejects the 24 notion that one statute should be read strictly, if it 25 means another statute is unable to find its way into the

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  1  adjudicative landscape.   
  2                 Rather, as is fairly articulated in
  3  paragraph 50 of our factum, the modern approach to
  4  statutory interpretation favours one in which those two
  5  (2) statutes are read -- are read harmoniously.
  6                 We say, that in order to read both the
  7  Public Inquiries Act and the RHPA harmoniously so as to
  8  achieve both of their legitimate and important public
  9  interest objectives, it is not necessary to read the
 10  confidentiality prohibition so as to insulate The College
 11  of Physicians and Surgeons from the thoughtful probing
 12  assessment of how well they serve the public interest by
 13  a public inquiry expressly charged with that job.  
 14                 Thank you, Commissioner.
 15                 COMMISSIONER STEPHEN GOUDGE:   Thank you. 
 16  Just a last detail question here.  
 17                 I take it you are not relying on the
 18  consent exception?
 19                 MS. LINDA ROTHSTEIN:   We are not.
 20                 COMMISSIONER STEPHEN GOUDGE:   Okay. 
 21  Okay, well thank you, all.  Those arguments were very
 22  helpful.  I will take this under reserve and get you all
 23  my decision as quickly as I can.  
 24                 So, we will adjourn for now.  Thank you.
 25

1 --- Upon adjourning at 12:02 p.m. 2 3 4 5 6 7 Certified Correct 8 9 10 11 12 __________________ 13 Wendy Warnock, Ms. 14 15 16 17 18 19 20 21 22 23 24 25