A pair of doctors who were acquitted in court of gang sexual assault after a high-profile trial in 2014 are now facing discipline proceedings before Ontario’s medical watchdog for the same alleged incident.

Toronto’s Dr. Suganthan Kayilasanathan and Dr. Amitabh Chauhan of Hamilton are facing allegations of “conduct unbecoming of a physician” and engaging in “disgraceful, dishonourable or unprofessional conduct,” according to a notice of hearing from the College of Physicians and Surgeons of Ontario.

The notice alleges that Chauhan and Kayilasanathan engaged in sexual activities with a woman, known only as Ms. X, without her consent and/or witnessed each other engage in sexual activities with Ms. X without her consent in February 2011. The notice further alleges that on the same occasion, they administered a drug or drugs to Ms. X without her knowledge.

Chauhan’s criminal lawyer, Marlys Edwardh, who is also one of the lawyers representing him before the college, confirmed that he is facing discipline proceedings “on the identical matters” that were before the court in 2014.

“After a lengthy trial, both Dr. Chauhan and Dr. Kayilasanathan were acquitted,” she said in an email Monday.

Lawyers for Chauhan and Kayilasanathan will be bringing a motion before the college’s discipline committee on Dec. 19 arguing that hearing the case is an abuse of process.

“The abuse of process motion is about the interplay between the acquittal in the criminal case and the basis for it and the college’s ability to prosecute the same case on the same facts,” said Kayilasanathan’s lawyer, Tom Curry, who declined to comment further.

At least 23 days throughout 2017 have been booked for the discipline hearing.

In a separate proceeding before the college’s discipline committee to be heard in November next year, Kayilasanathan is also facing allegations of sexually abusing a patient in December 2010 by, among other things, engaging in sexual intercourse and/or touching and/or remarks of a sexual nature. Curry declined to comment on that case as well.

The case of Chauhan and Kayilasanathan highlights the difference in the standard of proof in a criminal court versus an administrative tribunal like the college’s independent discipline committee, and the fact that the same case can indeed be prosecuted in more than one arena.

“The outcome of a college proceeding can be different than a criminal proceeding even when the facts underlying both proceedings are the same,” said medical malpractice lawyer Paul Harte, who isn’t involved Chauhan and Kayilasanathan’s case.

“The onus of proof in college discipline hearings is less onerous than the criminal standard. The criminal standard requires proof beyond a reasonable doubt. The general rule for college proceedings is proof on a balance of probabilities.”

What that means, lawyers say, is that it simply must be proven that it is more likely than not that the assault happened. But Harte said that even before the discipline committee, the more serious the allegation, the more compelling the evidence must be.

The complainant, who was a 23-year-old medical student in 2011, testified at trial that she had vivid flashes of two men kissing her, whispering sexual comments to her, and eventually raping her as she lay barely able to move on a hotel room bed.

Chauhan and Kayilasanathan, who pleaded not guilty, testified that the three partied and drank into the early hours of Feb. 13, 2011 and when they returned to the hotel room from a club, it was the woman who initiated sexual contact with both of them, and it was consensual.

They were acquitted by Superior Court Justice Julie Thorburn of drugging and gang sexual assault. Chauhan was also acquitted on separate charges of drugging and sexual assault related an incident with his ex-girlfriend in 2003.

In the case involving the medical student, Thorburn pointed to video surveillance showing the woman leaving the club and walking into the hotel, her motor skills appearing to be “in full command of her physical movements.”

The woman also sent text messages while at the hotel during the time she told the court she was unable to move, Thorburn found.

Blood, urine and hair samples, all taken more than 12 hours after the alleged sexual assault occurred, showed no evidence of drugging, the judge said.

From a complainant’s perspective, there are advantages and disadvantages to having a case heard in criminal court and before the college’s discipline committee, said lawyer Loretta Merritt, who has represented many sexual assault survivors in civil cases.

In both cases, the complainant generally must testify and face what can be a difficult cross-examination.

Loading... Loading... Loading... Loading... Loading... Loading...

In the criminal context, Merritt pointed out that there is a victim’s bill of rights, which calls for the complainant to be treated with respect and compassion and to have access to other remedies including potential compensation as a victim of crime. In some jurisdictions in Ontario, a sexual assault complainant can also have access to up to four hours of free legal advice.

At the college level, a complainant is potentially entitled to funding for therapy, and Merritt said the experience can feel more personal because the complainant is generally only dealing with one prosecutor throughout the process, versus potentially several Crown attorneys as the criminal case moves through the courts.