Nov 9, 2020

No Contest Pleas at Discipline Hearings May Have Unintended Consequences

R. v. Lo, 2020 ONCA 622 (CanLII)

A number of regulators have developed rules of procedure that permit a practitioner to decline to admit allegations against them (i.e., making a plea of “no contest”) with the expectation that a finding would still be made by the discipline tribunal based on that plea. The purpose of the practitioner pleading “no contest” is to prevent them from being deemed to admit the allegations in any subsequent civil or criminal proceeding.

However, in R. v. Lo, 2020 ONCA 622 (CanLII), http://canlii.ca/t/j9zlg Ontario’s highest court upheld a criminal finding of sexual assault founded to a large degree by the admissions made by a psychologist at a discipline hearing. At the discipline hearing the practitioner had acknowledged engaging in unprofessional behaviour by his touching of three patients. However, on the specific allegation of sexual abuse the practitioner pleaded “no contest”. Both counsel at the hearing submitted that they anticipated that the discipline panel would make a finding of sexual abuse on the agreed upon facts.

The Court held that the agreement to the underlying facts at the discipline hearing constituted an admission that could be used against the practitioner in the sexual assault charges in the criminal trial. The plea of no contest, in this case at least, only applied to the conclusion of sexual abuse at discipline and did not apply to the underlying facts that had been formally agreed to. The Court found that the admissions were “relevant, material, and properly admissible” and that there was no unfairness in using the admissions in this manner at the criminal trial.

Practitioners will likely become less willing to resolve discipline matters on the basis of a plea of no contest. It remains to be seen whether a plea of no contest can be worded such that a practitioner does not actually admit to the accuracy of the facts but still allows the discipline tribunal to make a finding on the basis that the practitioner is not contesting those facts.