Intro

This reflection will focus on the observations of a medical disciplinary tribunal, the College of Physicians and Surgeons of Ontario (CPSO), involving a doctor, Dr. Javad Peirovy, accused of sexual misconduct.[1] I explore the moral intuitions relating to administrative law, particularly relating to what courts have referred to as the “appearance of justice.”[2] More specifically, I want to reflect on whether my appearance of “justice being done” has changed after one year in law school.[3] In my sample size of one, I found that my appearance of justice has shifted in virtue of one year of legal education: what I previously believed was a grossly unjust result, I now believe is “just” within the Canadian legal system.[4] While I do not claim to be making any empirical contributions, I would suggest that this could be a fruitful avenue for further empirical research.

Background

I want to risk starting in an unorthodox fashion: lived experience. Prior to law school, I worked as a low-level administrator for a provincial medical organization, and I was quite regularly exposed to medical disciplinary tribunals. Most of the tribunal proceedings were mundane, but sometimes one would catch media attention and fuel office gossip for weeks. The case regarding Dr. Peirovy was one that caught fire. Sexual misconduct is particularly morally repugnant; moreover, it does not take a legal expert to understand that doctors have a higher duty because their patients’ trust them. When I learned that the disciplinary committee found Dr. Peirovy guilty of four patients and only ordered a 6-month suspension, I was outraged. The punishment did not fit the crime, it was unfair, and something is not right about this system. My mind immediately went to corruption – or, perhaps the more accurate term would be the “apprehension of bias.”[5]  I believed that the doctors were more favorable to other doctors and this led to an unreasonably lenient sentence. In my eyes, as someone with no knowledge of the law, justice was not being done.

I want to make two brief points of reflection on my experience. First, I believed that justice required that more egregious crimes deserved harsher punishments. The doctor not only abused his position of power, he abused his position of power in order to violate a person’s sexual integrity. My intuition was that such a crime deserved the worst punishment; in other words, I had in mind a theory of punishment based on retributive justice.[6] An “eye for eye,” or at least something just as bad (sometimes referred to as “desert”). Second point: I believed that justice and favoritism were incompatible. If doctors are in charge of judging another doctor, their judgment should not be skewed to favoritism to other doctors. Put differently, justice must be impartial. I will return to these two points later.

The Divisional Court

The CPSO appealed the decision of its own Discipline Committee.[7] While it is based on finer points of law (which I will return to in the next section), the Justices seem to rely on the same moral intuitions. They found the facts “depressing to review,” they found the penalty “clearly unfit,” and it did little to “protect the public and vindicate the integrity of the profession.”[8] The court allowed the appeal and remitted it back to the Discipline Committee.[9] What is also notable about this decision is that two out of the three submissions by the Appellant (viz. CPSO) make some appeal to moral intuitions: first, considering “changing social values;” and, second, the penalty being “grossly disproportionate.”[10] The changing social values seem to suggest that there was a failure to understand just how egregious the actions of the doctors are, especially in light of the moral developments which led to an increased concern for sexual crimes.[11] In other words, if we properly understand how egregious the crimes are, we would also understand that how grossly disproportionate the Discipline Committee’s penalty really was. This, too, appeals to moral intuitions of desert and retributive justice.

Finer Legal Points

I learned the most about administrative law through the decision at the Court of Appeal.[12] Notably, it was a split decision, but they allowed Peirovy’s appeal. Here, I want to reflect on the finer legal points of the majority; while the majority make a number of crucial legal points, I want to focus on their discussion of deference, reasonableness review, and, most importantly, appealing the penalty. I then want to explore Justice Benotto’s dissent. I want to confess from the start that I find Justice Benotto’s dissent quite convincing, especially in light of concerns for the appearance of justice.

To start, the majority emphasizes in their analysis that the Discipline Committee is owed a “high degree of deference.”[13] The reasoning is that the members of the Discipline Committee are within the profession and have a special degree of expertise which non-professionals lack. In other words, doctors are better equipped at assessing doctors and determining what penalties are appropriate for medical misconduct. This certainly addresses my initial reaction that doctors may be more lenient to other doctors; in fact, the opposite is at least possible, that is, doctors may be defensive of the integrity of their profession and seek to penalize those in the profession who undermine this. Indeed, a more charitable understanding would acknowledge the special epistemic “standpoint”[14] doctors may have access to that non-doctors lack. A doctor’s special standpoint provides special knowledge that may allow them to assess cases of misconduct more fairly than non-doctors. To me, this appears fair and just.[15]

As a matter of administrative law, the majority notes that the standard of review for appeals on the Discipline Committee’s decision is “reasonableness.”[16] To be clear, the court at this level is reviewing the Divisional Court’s assessment of the Discipline Committee, so the majority finds that the Divisional Court “not only erred in its understanding of the evidence […] it effectively sought to retry the case in a manner consistent with the proper application of the standard of review.”[17] Simply put, the Divisional Court overreached and went beyond their assignment of merely reviewing for reasonableness. They took matters into their own hands and “subjected the reasons of the Discipline Committee to excessive scrutiny, rejecting the reasonable.”[18]

This leads us to the matter of penalties and the Divisional Court declaring that the penalty imposed by the Discipline Committee “were wrong.”[19] As another point of administrative law, “the Divisional Court had neither the mandate nor the evidentiary basis to intervene, let alone change, the penalty range” and such moves were “effectively an arbitrary exercise.”[20] Again, the point is that the appeal process is supposed to deal with specific issues of procedural fairness and they are not meant to “redo” the trial. The Discipline Committee’s penalties fell within an acceptable range of outcomes based on past cases and should have been unproblematic for the Divisional Court. The Divisional Court found the penalties problematic without legal basis and engaged in palm tree justice.[21]

Justice from Another Angle

I want to now reflect on these points of administrative law in light of Justice Benotto’s dissent. Justice Benotto acknowledges that the penalty was within an acceptable range of penalties given past penalties,[22] but interestingly rejects the majority’s analysis of the standard of review.[23] In short, the Divisional Court was correct to find that the Discipline Committee made findings contrary to their mandate to “eradicate the sexual abuse of patients by members.”[24] The Justice poignantly adds that “reasonableness is not a static concept and ranges are not set in stone. Our collective social conscience is continuously changing.”[25] What is interesting here is the connection to moral intuition and the evolution of social morality. It might be true that, say, fifty years ago, sexual abuse of a patient by a doctor would have triggered the same moral intuitions of repugnance and disgust; however, there is something to be said about latent social attitudes towards sexual abuse.[26]

After only a year of legal education, I have come to realize that brute moral intuitions do not map easily onto the Canadian legal system. Even a superficial understanding of other legal considerations[27] leads me to be sympathetic towards the majority’s analysis of administrative law. Still, I think that the lesson from Justice Benotto is that judicial review should be a bit more sensitive to ethical considerations and social attitudes.[28] This may increase the public’s confidence that justice is being done and combat cynical attitudes towards the law. It is important to emphasize, however, that “the public” is composed of a broad range of views. In order to gain clarity on the question of the appearance of justice being done, it may be fruitful to explore which factors are tied to an individual’s perception of justice being done. I have suggested that legal education may be one such factor, but there are clearly others to investigate – for example, political views, socio-economic backgrounds, or levels of education.[29]

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[1] The names, history, and facts (subject to some redactions) are publicly available: https://doctors.cpso.on.ca/DoctorDetails/Javad-Peirovy/0225891-84832 For the CPSO’s decision, see: Ontario (College of Physicians and Surgeons of Ontario) v. Peirovy, 2015 ONCPSD 30.

[2] The appearance of justice, of course, is different from the “appearance of bias.” See, for example, R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para 110.

[3] I am connecting the idea of the appearance of justice to moral intuitions, which is generally how it is empirically approached. See, for example, Peter David Blanck, “The Appearance of Justice Revisited” (1996) 86:3 J Crim L & Criminology 887.

[4] I should again emphasize here that what appears to me as a “just” result is only my intuition. Whether this meets an objective or principled criterion is another question. For example, one might understand the appearance of justice in terms of a public justification: see Frederick Schumann, “The Appearance of Justice: Public Justification in the Legal Relations” (2008) 66:2 UT Fac L Rev 189.  

[5] While the “reasonable apprehension of bias” test is generally accepted, the exact application of the standard is debated. See Jula Hughes & Dean Philip Bryden, “Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification” (2013) 36:1 Dal LJ 171.

[6] For example, see Simon Young, “Kant’s Theory of Punishment in a Canadian Setting” (1997) 22:2 Queen’s LJ 347.

[7] College of Physicians and Surgeons of Ontario v Peirovy, 2017 ONSC 136.

[8] Ibid at para 38.

[9] Ibid at para 40.

[10] Ibid at para 22.

[11] Sandra H Johnson, “Judicial Review of Disciplinary Action for Sexual Misconduct in the Practice of Medicine” (1993) 270:13 JAMA 1596.

[12] College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420.

[13] Ibid at paras 73-76.

[14] See Sandra Harding, “Rethinking Standpoint Epistemology: What is ‘Strong Objectivity?’” (992) 36:3 The Centennial Review 437. See also Andrew L Hyams, “Expert Psychiatric Evidence in Sexual Misconduct Cases before State Medical Boards” (1992) 18:3 Am J L & Med 171.

[15] To be sure, deference in administrative law is not grounded in standpoint theory, but I make the connection to explain why the Discipline Committee might have a better grasp of the facts (not only in firsthand dealings with the accused, witnesses, etc.).

[16] Supra, note 8, at paras 51-53.

[17] Supra, note 8, at para 53.

[18] Supra, note 8, at para 54.

[19] Supra, note 8, at para 81.

[20] Supra, note 8, at para 83.

[21] A possible corollary is that the Appeal Court is not looking to a retributive theory of punishment, rather they are look to exercise judicial restraint and correcting the Divisional Court’s overreach. See Aileen Kavanagh, “Judicial Restraint in the Pursuit of Justice” (2010) 60:1 UTLJ 23.

[22] Supra, note 8, at para 146.

[23] Supra, note 8, at paras 132-133, 143-147.

[24] Supra, note 8, at paras 133, 138-140, 146.

[25] Supra, note 8, at para 132.

[26] For example, the “metoo” movement, the “twin myths,” or “rape-shield” laws. For an excellent survey of the research on social moral progress, see Fiery Cushman, Victor Kumar, & Peter Railton, “Moral learning: Psychological and philosophical perspectives” (2017) 167 Cognition 1.

[27] Concepts like “floodgates,” “formal justice,” “administrability,” “access to justice,” “discretion,” and so forth…

[28] In an informal survey of doctors and medical professionals, most agreed that the Discipline Committee’s penalty was too lenient. For example: [anonymized] Dr. X commented, “[…] he [Dr. Peirovy] is a disgrace to the profession […] I thought they would really make an example out of him given what’s going on in the media.” Professor (public health) Y noted, “[…] the results just show that there’s a cancer in the legal system.”

[29] See generally J Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Vintage, 2012).