A Surrey chiropractor will get a new trial after the B.C. Court of Appeal found the Surrey provincial court trial judge who convicted him of fraud in 2017 had put the burden of proof on the defence rather than the Crown to prove guilt beyond a reasonable doubt.
Dr. Maninder Singh Badyal was convicted on a single count of fraud over $5,000 related to billings to ICBC for chiropractic services for 11 patients. The appeal court on May 8 ordered a new trial, following a hearing in Vancouver.
Justice Harvey Groberman found the judge’s “apparent reversal” of the burden of proof was a “reversible error” that warranted a new trial. Chief Justice Robert Bauman Justice Gail Dickson concurred.
Groberman found the Surrey judge’s “serious misapprehension” of the role of a witness who gave evidence “had the effect of placing a burden on the accused to prove his innocence rather than simply raise a reasonable doubt.”
The trial judge in Surrey provincial court found Badyal charged ICBC a lump sum for three or more chiropractic visits while providing treatment to each patient on only a single occasion. This was under the Lump Sum Program, where people injured in traffic crashes sign up for chiropractic treatment without being referred by a doctor or adjuster.
Under this program a chiropractor is required to provide patients with at least three treatments over at least two weeks and is paid directly by ICBC so patients don’t have to pay them then seek reimbursement. The court heard ICBC paid Badyal $800 for each patient he treated under the program.
“In addition, if the chiropractor provided a discharge report when treatment was complete, ICBC would pay an additional $100,” Groberman noted in his reasons for judgment. “If a chiropractor provided less than three treatments to a patient, ICBC would pay only $150 for the chiropractic services.”
It was the Crown’s position that between June 2014 and January 2015 Badyal charged ICBC for three or more visits under the Lump Sum Program in respect to 13 patients he saw only for an initial assessment.
The 13 patients testified at the trial. “The judge found the evidence of two of them insufficiently reliable to form the basis for a conviction, and she relied only on the evidence of the remaining 11 patients,” Groberman noted.
The court heard each of the 11 had been injured in a crash and was referred to Badyal’s clinic by their doctors for physiotherapy or massage therapy. The patients testified they didn’t realize the form they signed included electing to enroll in the Lump Sum Program and all denied seeing Badyal for treatment except during their initial visit.
Badyal testified he met with and assessed each patient, explained the consent forms to them, claimed he treated each patient on at least three occasions and provided clinical notes supporting his testimony.
“He suggested that the patients were confused or had forgotten the therapy sessions that they had attended,” Groberman observed. “The judge was not persuaded that Dr. Badyal’s evidence was true, and also found that it did not raise a reasonable doubt in her mind as to his guilt. As she was convinced beyond a reasonable doubt that Dr. Badyal had committed fraud in his billings for the 11 patients, she convicted him.”
A new trial date has to be set.