CRIMINAL LIABILITY AND DEFENCES TO CRIMINAL CHARGES

1. CRIMINAL LIABILITY AND DEFENCES TO CRIMINAL CHARGES Presented by: Patrice F. Band Barrister & Solicitor Toronto, Ontario Practicing in association with CavalluzzoHayes Shilton McIntyre & Cornish LLP OsgoodeHall Law School Legal Risk Management for Nurses Toronto, Ontario June 17 & 18, 2010

2. COMMON OFFENCES OF HEALTH CARE PROFESSIONALS • Possession of Controlled Substances • Assault • Sexual Assault • Theft • Fraud • Criminal Negligence Causing Death • Homicide - Manslaughter & Murder

3. Possession of Controlled Substance Controlled Drugs and Substances Act, R.S.C. 1996, c. 19: - The offence is generated by exception: you are not allowed to possess a controlled substance unless authorized under the regulation The gravity of the offence, and the penalty that attaches, depends on which Schedule the substance is listed under, and whether it is a first or subsequent offence - There are also extensive provisions relating to the destruction of substances for example.

4. Elements of Possession of a Controlled Substance Possession: Personal possession OR: (i) Knowledge of the thing possessed i.e. that it was a drug (ii) An intention to possess the thing (iii) Control over the thing: excludes hasty or casual handling Constructive Possession (when not in the accused’s own physical possession): (i)Knowledge of possession by another (ii) Some measure of control or right of control (iii) Active concurrence re the possession by another i.e. not merely passive acquiescence

5. Assault s. 265. A person commits an assault when - Without the consent of another person, he or she applies force to that person - Attempts or threats to apply force are also caught by this provision

6. Elements of Assault 1. Application of force 2. Without consent - the defence of honest but mistaken belief in consent may apply Mental Element 3. Touching, or threat of touching, must be intentional (general intent only; the action must be voluntary)

7. Sexual Assault Elements Sexual Assault 1. Touching 2. Of A Sexual Nature 3. Without Consent 4. Intention to Touch 5. Knowledge, Recklessness or Wilful Blindness Re Lack of Consent

8. Sexual Assault More on Consent: - A reasonable mistake that the complainant is consenting may be a defence - Consent is defined in s. 273.1(1). There is no consent where: (i) someone other than the complainant consented (ii) the complainant is incapable of consenting (iii) Consent is obtained by abusing a position of trust, power or authority (iv) The complainant, by words or conduct, has expressed a lack of consent (v) The complainant, having consented, expresses lack of agreement to continue - Complainant’s subjective state of mind determines whether there has been consent Consent to therapeutic treatment only extends to acts done for a bona fide therapeutic purpose

9. Theft - The gravamen of this offence is taking something that does not belong to you. s. 322 Elements of Theft 1. The subject matter can be “anything” 2. Taking or conversion 3. Which is fraudulent or “without colour of right”

10. Elements of Theft Mental Element 4. Intention to cause the external circumstances, AND 5. One of the ulterior motives in s. 322(1)(a) - (d): to deprive, to deal with it in a manner such that it can’t be put back or restored, etc.

11. Fraud s. 380. (1) Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service

12. The essence of fraud is “dishonest deprivation.” Mental Element 1. Deprivation - Of property, money, valuable security or service 2. Dishonesty - “By deceit, falsehood or other dishonest means” The essence of dishonesty is the wrongful use of something in which another has an interest so that their interest is extinguished or put at risk. Dishonesty can be an act or omission.

13. Elements of Fraud Mental Element 3. Subjective knowledge of the prohibited act (a) Subjective awareness that act is dishonest (b) General intent to do the act which is dishonest 4. Subjective knowledge that the prohibited act could have the consequence of deprivation

14. Criminal Negligence Causing Death Criminal negligence s. 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. s. 220 Causing death by criminal negligence s. 221 Causing bodily harm by criminal negligence

15. Elements of Criminal Negligence: A. An act or omission: Act: having done something in a way that “shows wanton or reckless disregard for the lives or safety of other persons.” Omission: having failed to do something which one has a duty to do. Duty: either imposed by common law or statute; includes nursing duties. Wanton or Reckless Disregard: conduct which is reasonable cannot be “wanton”. Test is whether there is a marked departure from the conduct of a reasonable person.

16. B. Mental Element Awareness, Advertence OR Wilful Blindness: - must have some degree of awareness or advertence to the threat to lives or safety of others - wilful blindness will suffice - the accused’s reasonable perceptions of the situation are relevant - the standard is objective, but the capacity of the accused is relevant

17. Homicide s. 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. Murder Manslaughter

18. Manslaughter s. 234. Culpable homicide that is not murder or infanticide is manslaughter. - Manslaughter is defined as a subcategory of culpable homicide, i.e. it is not murder or infanticide. - Manslaughter can result where a reasonable doubt exists regarding the mental element for murder. - It can also result where death occurs during the commission of certain offences, or as a result of an unlawful act.

19. Elements of Manslaughter 1.Cause the death of a human being 2. By (a) An unlawful act Dangerous act involving objectively foreseeable risk of harm (b)Criminal negligence Where the accused has a legal duty to do or refrain from doing something which causes the death

20. Manslaughter Mental Element 3. Objective foreseeability that bodily harm which is neither trivial or transitory is likely to result from the act or omission 4. General intent to do the act that generated the objective foreseeability of bodily harm

21. Murder s.229 Murder is homicide that is planned and deliberate Elements of Murder - Requires proof of an ulterior intention to kill, or closely related state of mind - Liability is established where the person at the time of the acts that caused the death had the requisite state of mind

22. Murder Classifications s.231 Murder is classified for sentencing purposes First degree: when planned or deliberate; includes constructive murder Second degree: all murder that is not first degree

23. POLICE INVESTIGATIONS Search & Seizure: Any search or seizure by a state agent, including searches conducted by College Investigators must comply with the Charter: 1.It must be authorized by law (statute or common law) 2. The law itself must be reasonable 3.The manner of the search must be reasonable If the search does not meet these criteria, evidence obtained during the search may be excluded, both in the criminal and professional regulation proceedings.

24. Search & Seizure under the RHPA: The RHPA authorizes Appointed Investigators to conduct searches of “the place of practice of the member” (see ss. 75-76 of the Code): At a reasonable time and Upon production of their Appointment

25. Investigators can Obtain Search Warrants • 1. The Investigator can obtain a search warrant from a Justice of the Peace; • 2. There are statutory limits on the manner of the search: (a) Searches are to be conducted by day unless otherwise specified in the warrant; (b)The Investigator must identify him/herself upon request

26. Search & Seizure: If the police or a College Investigator arrive to conduct a search: Ask the person to identify herself and record the relevant information; Ask to see the Appointment of an Investigator or search warrant A Warrant should: Be signed by a Justice Specify what is being sought and from what location Indicate any time of day restrictions

27. If your facility has a custodian of medical records, refer the individual to that person 4. Do not consent to the search, but do allow the search to proceed 5. It may be a criminal offence to conceal or destroy real evidence. 6. It is professional misconduct to obstruct an Investigator Remember, health care records are confidential and should only be released as required by law. Get legal advice.

28. Police Interviews: If you are asked to speak to police regarding a criminal investigation you have two basic choices: 1. Tell the truth: lying to police can support criminal charges such as obstruct justice or public mischief; 2. Do not speak at all: you have a right to remain silent if you are the subject of an investigation. If you are not the subject of the investigation, you are still not obliged to speak with the police beyond identifying yourself. If you are asked to speak to police regarding a coroner’s investigation: 1. You are obliged to speak to the representative of the coroner – typically a police officer (Coroner’s Act s.16(6)) 2. It is an offence under the Coroner’s Act to lie to the coroner during an investigation

29. Police Interviews: The interview: 1. You should not discuss your care of a patient without having the chart in front of you and an opportunity to have reviewed it in advance. 2. The police should inform you that lying is an offence. 3. The police should ensure that you have attended voluntarily. 4. If you are attending because you are compelled to do so by statute, you should state that during the interview. 5. You should have contacted your union or a lawyer well in advance.

30. IF YOU ARE CONTACTED BY POLICE DO NOT MAKE A STATEMENT This is your constitutional right; They will not likely hold it against you if you want to speak to a lawyer first (there are some situations where a nurse is legally obliged to assist in an investigation but there is no requirement that you do so immediately and without legal advice); If you’re charged, silence cannot support an inference of guilt; Police are used to this; You can’t take back what you’ve said so be cautious.

31. DO NOT MAKE A STATEMENT Do not make any flat denials; Do not provide your version of events; Do not discuss your version of events, or anything about the incident / situation with ANYONE other than your lawyer; Tell the police: “I am willing to cooperate, but I cannot make a statement or discuss the matter until I have had an opportunity to speak with a lawyer.” Contact your union or a lawyer immediately

32. Obtain the following information: Purpose of their investigation - criminal (if so ask what crime they are investigating) or coroner’s; Whether you are a suspect or person of interest; The officer’s name, badge number, force, division and contact information

33. Mandatory Reporting under the RHPA • You must report another “member” of any College whom you believe, on reasonable grounds, to have sexually abused a patient When??? • Forthwith if the patient or another will continue to be abused or • Within 30 days

34. Reporting other Members.... The Report must be in writing, and must list: • (a) Your name • (b) the name of the member who is the subject of the report; • (c) an explanation of the alleged sexual abuse; • (d) if your grounds are related to a particular patient, the name of that patient – only with their written consent

35. Reporting other Members...Obligations and caveats • Obligation arises only if grounds obtained “during the course of practising your profession” • No obligation to report if you do not know the name of the member • Patient may be named only with their written consent • ***BUT: lack of patient consent to be named or to have matter reported does not rid you of the obligation to report***

36. Catchy Reporting Slogan If you have the grounds, release the hounds

37. Obligations under the Child and Family Services Act • You must report to the Society when • on reasonable grounds you suspect that a child is: • Being physically or sexually abused • at risk of such due acts/omissions/neglect of parent or person in charge • at risk of harm if medical treatment or cure denied by parent or person in charge

38. Reporting Obligations under CFSA... • Obligation is personal • ie. YOU have this obligation regardless of whether anyone else has also reported the matter • Forthwith • Regardless of RHPA or other laws • Failure to report is an offence • Failure to report is professional misconduct

39. Failure to Report under CFSA • Is an offence under the CFSA • Is professional misconduct • You could be sued

40. REPORTING CRIMINAL OFFENCES Nurses must report to the College of Nurses: Any finding of guilt for a criminal offence made after the date of registration with the College Includes: Findings of guilt under the Criminal Code (e.g., impaired driving) Findings of guilt for a criminal offence or an offence under the Controlled Drugs and Substance Act or the Food and Drugs Act Provincial offences that resulted or could have resulted in a jail sentence Where the sentence was an absolute or conditional discharge Pardoned offences

41. Excludes: Findings of guilt which predate registration with the College Highway Traffic Act and bylaw offences where jail is not possible (e.g., speeding, infractions of noise bylaws) If you do not report your criminal conviction, you may be charged with professional misconduct. What happens after you report a conviction will depend on the type of offence committed and how it could affect your suitability to practise nursing.