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RHPA - Remorse and Insight. Chaban v. Royal College of Dental Surgeons of Ontario
In Chaban v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court, in an RHPA JR, considered the interaction of issues of lack of insight, remorse and punishment:The Committee Did not Violate Dr. Chaban’s Right to Full Answer and Defence
[28] Dr. Chaban acknowledges that the Committee did not impose punitive sanctions upon him. But he analogizes his circumstances to those of a person facing a disciplinary decision who has a right to a full answer and defence. By this he means that he should not be penalized for asserting his innocence and offering his justifications for his behaviour.
[29] Dr. Chaban cites Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, 166 O.R. (3d) 481. In that case, a justice of the peace published a newspaper article criticizing the operation of bail courts and the conduct of some Crown prosecutors in her court. A disciplinary body found that her failure to accept their critique of her article, rather than accepting it with “docility” was an aggravating factor in determining her penalty. That was an error in principle regarding penalty because it obviated her right to make full answer and defence. As Lauwers J.A. wrote for the court, at para. 135:More fundamentally, the majority made a legal error in its approach. Because JP Lauzon continued to assert her defence, the majority effectively turned her adamant defence into an aggravating factor. This is wrong in principle because it interferes with JP Lauzon’s right to make full answer and defence. [30] Lauwers J.A. further adopted the comments of this court in Groia v. Law Society of Upper Canada 2015 ONSC 686 (Div. Ct.), 124 O.R. (3d) 1, aff’d 2016 ONCA 471, 131 O.R. (3d) 1, rev’d 2018 SCC 27, [2018] 1 S.C.R. 772 (the ONCA and SCC decisions did not address lack of remorse). In Groia, at para. 112, this court wrote:The appellant's lack of remorse, in the circumstances of this case, cannot be treated as an aggravating factor. To do so represents a fundamental misapplication of the principles outlined in R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 82. [31] Lauzon can be distinguished in two ways. First, unlike J.P. Lauzon, Dr. Chaban was not subjected to formal disciplinary proceedings, nor was he the subject of a penalty. Rather, the Committee chose to rely on remedial measures instead of recommending disciplinary proceedings and the risk of a serious penalty.
[32] Second, the Committee did not attempt to punish Dr. Chaban for a lack of remorse or failure to assume a submissive position in the face of its investigation. In fact, its decision makes no reference at all to the term “remorse”. Rather, the Committee articulated its concern with the lack of insight that Dr. Chaban displayed in his initial responses to the College. That is far different from the circumstances of J.P. Lauzon. That lack of insight as to the breach of the two College Advisories and the harm thereby caused are the reason that the Committee found that remedial measures are necessary. That was a finding that was available to the Committee, a specialized decision-maker with expertise in dental standards, on the facts of this case.
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