December 17, 2014

Ontario’s mandatory licensure revocation for sexual abuse of patients is not a criminal matter

Administrative Law
Professional Regulation

Last month, we blogged here about how professional regulatory proceedings and criminal proceedings are different. That difference was recently illustrated where a pharmacist challenged mandatory revocation for sexual abuse under the Ontario Health Professions Procedural Code. The Ontario court confirmed that professional penalties are not criminal in nature. Instead, the purpose of provisions that require revocation of licensure for professional misconduct involving sexual abuse is to protect the public: Hanif v. Her Majesty the Queen et al., 2014 ONSC 6613 (“Hanif”).

Background: Mr. Hanif, a pharmacist employed by Loblaws, worked at the same grocery store as a cashier, Ms. W. The pharmacist would fill Ms. W.’s prescriptions. They developed a romantic and sexual relationship, and engaged in consensual sexual contact six days after the pharmacist filled a prescription for Ms. W. [1-3]

Legislative Scheme: Under the Ontario Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and its Schedule 2, the Health Professions Procedural Code (the “Code”), a health professional who commits sexual misconduct by sexual abusing a patient is subject to mandatory revocation and cannot apply for reinstatement for five years (Code ss. 51(5), 72).

Sexual abuse of a patient is defined broadly, and means “sexual intercourse or other forms of physical sexual relations between the member and the patient”, “touching, of a sexual nature, of the patient by the member”, or “behaviour or remarks of a sexual nature by the member towards the patient” (Code s. 1(3)).

Constitutional Challenge: The pharmacist argued that these Code provisions address the sexual morality of health care professionals and their patients, and embody the “hallmarks of criminal law”. Accordingly, he submitted that the mandatory revocation provisions violate the division of federal and provincial powers under sections 91 and 92 of the Constitution Act, 1867. [51-53]

The Constitution Act, 1867 divides powers between the federal government and the provincial governments. Section 91 lists areas exclusively within the jurisdiction of the federal parliament, while s. 92 lists areas exclusively within the jurisdiction of the provincial legislatures. Only the federal parliament may make criminal laws. When a party challenges the validity of legislation on division of powers grounds, the court must analyze the dominant purpose of the legislation, and both the purpose and the effects of the challenged provisions.

Had the dominant matter of the Code provisions been criminal law, as argued by the pharmacist, the provisions would have been unconstitutional and invalid. The court held, however, that the provisions are not criminal, but concerned the professional regulation of Ontario pharmacists. [54] Mew J. found that the purpose of the mandatory revocation provisions was to protect the public through clear and unequivocal standards of professional behaviour. [64] Mew J. noted that the mandatory revocation provisions “are concerned with the sexual abuse of patients by professionals”, “prohibit sexual activity in an effort [to] prevent sexual abuse”, and “make sexual acts inconsistent with a professional-patient relationship”. [62]

Mew J. found compelling the Attorney General’s submission that the penalties under s. 51(5) of the Code “are professional penalties, not criminal ones. They impact solely on the ability of a member to carry on his or her regulated profession”.” [74]

The court concluded that, “even when account is taken of the moral and criminal-like aspects of the mandatory revocation provisions, they remain valid law, grounded as they are in a recognised provincial head of power.” [75] The provincial power in question was the provincial power to regulate health professions. [68]

Hanif v. Her Majesty the Queen, 2014 ONSC 6613

Lisa C. Fong, Michael Ng and Kate Parisotto