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What is a Crime?

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Executive Summary

The historical and present-day debates over “what is a crime?” often congregate around the differential treatment of suite crime (crimes of the powerful) and street crime (crimes of the less powerful). This blatant inequality in the application of the law undermines law’s legitimacy and leads us to question whether there is one law for the rich and one law for the poor. The powerful have ways to ensure that their activities are not defined as crime, whether they be through influencing the definition of crime or the application of the law. This inequality often results in demands to include activities of the powerful in the definitions and applications of the criminal law juxtaposed with the call for the reduction in the use of criminal law. This paper explores the possibility that we could reduce the use of the criminal law against crimes of the less powerful by duplicating some of the attitudes and approaches that we presently have towards crimes of the powerful.

This paper studies crimes of the powerful by focussing on one aspect of health care fraud–inappropriate and fraudulent billing carried out by health care professionals (mostly physicians) who bill on a fee-for-service basis. It examines all administrative, self-regulating, and criminal and quasi-criminal actions against health care misconduct commenced between 1990 and 2003 across Canada, which were available in the public domain through court and Quicklaw databases, newspaper coverage, and court transcript services. It then focuses in greater detail on the 31 cases arising out of British Columbia and the 34 cases from Ontario, and explores the similarities and differences between the two provinces. Ten interviews were conducted in British Columbia to gain some insight into the billing process, and submissions to the Cory Review of the Medical Review Committee (MRC) in Ontario were reviewed for the same purpose.

There are provincial differences in the structures through which billing laws and regulations are enforced and their actual enforcement. In British Columbia, billings are managed by a tripartite Commission, including physicians. Although structural changes in 1998 resulted in the monitoring of billings being transferred from a physicians’ committee to a government programme, physicians are still very involved in the process. In Ontario the government agency (Ontario Health Insurance Plan: OHIP) which monitors billings is part of the Ministry of Health and Long-Term Care. It refers inappropriate billing cases to the MRC (a Committee of the College of Physicians and Surgeons of Ontario), but it may also refer cases to the police or (since 1996) recover money directly from the health care professional.

The billing process in British Columbia offers a number of informal avenues for health care professionals to challenge any assessment done by the Billing Integrity Program (BIP). The British Columbia model is based on education, warnings, reconciliation, and assistance; if that does not work, the interest appears to be in recovery of money, not prosecution or punishment. This culture of non-criminalization appears to permeate the government, professional, and criminal justice systems in British Columbia when it comes to medicare fraud. The process in Ontario is far-less forgiving than the one in British Columbia. Professionals are responsible for accurate billing and are not provided with billing profiles so they can adjust their billing to avoid an audit based on comparative patterns of practice. In addition, a zero tolerance approach to fraud was introduced in Ontario, in 1997, along with the creation of a special police unit to investigate health care fraud. The MRC, which is presently under review by former Supreme Court of Canada Justice Peter Cory, has been criticized for not controlling OHIP fraud, but is also blamed by physicians who feel victimized for overly aggressive enforcement tactics.

Despite the differences in structures, the proportion of physicians subjected to administrative orders or recommendations and the amounts targeted for recovery are similar in the two provinces. The Audit Committee in British Columbia ordered 59 physicians (an average of 12 per year) to return $4,078,112 (an average of $69,120 per physician) to the plan between 1998 and 2003. In Ontario, between 1991-2002, the MRC recommended recovery from 548 physicians (an average of 49.8 physicians per year) of over $36 million (an average of $66,449 per physician). The Ontario system, which has 3.8 times as many doctors as British Columbia, recommended four times as many recoveries. Neither province reports actual recoveries.

There were 31 cases and 37 actions in British Columbia and 34 cases and 49 actions in Ontario in which a professional had his or her name in the public domain as a result of administrative, professional, or criminal or quasi-criminal actions commenced between 1990 and 2003. The professional SROs in Ontario took a greater proportion of disciplinary measures (22/34=65%) than the professional SROs in British Columbia (11/31=35%), and there was a greater proportion of criminal cases in Ontario (15/34=44%) than British Columbia (6/31=19%). In terms of multiple proceedings, five of the 31 cases in British Columbia (16%), as compared to 12 of the 34 cases (35%) resulted in both SRO and criminal or quasi-criminal action.

There were six criminal or quasi-criminal prosecutions and convictions in British Columbia between 1990 and 2003, compared to 15 prosecutions and 12 convictions in Ontario. Only three of the six prosecutions in British Columbia, and 14 of the 15 in Ontario were against physicians (4.7 times as many as in British Columbia). All but one of the accused were men, and all pleaded guilty.

Although there were only six prosecutions in British Columbia, there appeared to be a pattern of plea negotiations that resulted in facts before the court that were substantially less serious than the original allegations reported by the media. The penalties imposed appear quite lenient and the judges’ comments were, with one exception, quite sympathetic to the plight of the convicted health care providers. Plea negotiations were also a major factor in Ontario, but overall the professionals did not seem to fare as well as their BC counterparts when it came to criminal sentencing.

Two of the three physicians who were convicted in British Columbia had received their medical training outside of Canada (India and Ireland), as had the physiotherapist (Yugoslavia, with upgrading in Canada). There was no indication where the two optometrists were trained; however, both have names that would indicate they might be members of a visible minority, and one had his picture in the paper that would confirm this. Country of training was available for 11 of the 12 convicted professionals in Ontario and only two of the 11 had received their training outside of Canada. Surnames of the professionals in Ontario did not indicate over-representation from any minority group.

In order to explore the proposition that there is one law for the rich and another for the poor, I compared my findings with other studies on the enforcement against welfare fraud. There are differences between people who are accused of welfare fraud and those who are accused of professional health care fraud (impoverished women and men as compared to privileged men) and how the public perceives each group (lazy, dependent, not deserving as compared to hardworking, underpaid and deserving). Complex rules work against the welfare recipient who is assumed to know the law, whereas complex rules can serve as an excuse for health care professionals who commit fraud. Welfare recipients are subjected to surveillance, whereas health care professionals are subjected to education–more so in British Columbia than Ontario. Administrative actions (e.g., removal of entitlement to social assistance) against welfare recipients have harsh consequences, and they have little power to resist. Once in the criminal justice system, welfare recipients may be found guilty on evidence which is probed very little, or not at all, by defence counsel. The costs of enforcement of the criminal law against welfare recipients are minimal compared to the prosecution of professionals who can afford to hire the best of lawyers to either test the prosecution’s case to the fullest or negotiate a plea bargain to minimize the criminal law’s impact. The high social and economic costs to the welfare recipient appear to be ignored whereas the high social and economic costs to the professional are recognized. The welfare recipients are much less powerful than the professionals when it comes to influencing what the rules are and how they might be enforced.

In conclusion, I suggest that our more compassionate approach to white-collar criminals should be transferred to crimes of the less powerful so that we restrict the use of criminal law rather than feed the crime control industry’s voracious appetite for more crime. Many occupations benefit from labelling individuals as criminals, and a critical examination of “problem definers” is crucial to reducing crime in our society. Other writers have suggested that a move to more heavily penalizing white-collar criminals will simply lead to further criminalization of the less powerful. In addition, the criminalization of conduct can do more harm than good, and the increased focus on the use of criminal law obscures the need to find non-criminal solutions to social harm (perhaps in societal structures that produce social harm). The solution is not, however to substitute administrative action for criminal action, as the former can result in harsher results than the latter.

It is difficult to conclude that the monitoring systems in British Columbia and Ontario catch more than a small fraction of health care fraud. When caught, white-collar criminals have numerous advantages over less powerful criminals. Wealthier offenders can more readily avoid detection, investigation, prosecution, conviction, and penalty. If the less powerful could do the same, we would have a drastic reduction in the behaviour that we define and enforce as crime. The study of white-collar crime in the “what is a crime?” debate exposes the class-biased criminal justice system and the crime control industry. We are warned that a harsher approach to white-collar crime will have the unintended consequences of fuelling the crime control industry against the less powerful. It may be time to seriously reconsider the inequality of the criminal law and restrain its use.