October 29, 2015

The constitutionality of mandatory revocation for sexual abuse

Administrative Law
Professional Regulation

In Ontario, a health professional who commits “sexual abuse” in certain specific ways, such as through sexual intercourse, must have his licence to practice revoked, and is not eligible to reapply for five years, under the Health Professions Procedural Code. We wrote last year about a challenge to the constitutionality of these provisions in the matter of Hanif v. Her Majesty the Queen, 2014 ONSC 6613, where an Ontario court held that the provisions were not criminal in nature. You can find our analysis here. In September 2015, the Ontario Court of Appeal upheld the constitutionality of the mandatory penalty for sexual abuse: 2015 ONCA 640.

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. 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 (in certain specific ways) 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)). Revocation must occur if sexual abuse includes sexual intercourse, genital or anal contact, masturbation of the patient, masturbation of the member (by or in the presence of the patient), or where a member encourages the patient to masturbate in the presence of the member (Code s. 51(5)).

The respondent argued that the provisions regulated morality in the context of consensual sexual activity, and therefore intruded into the criminal law. [11] The Ontario Court of Appeal disagreed. First, the provisions did not regulate morality; they protected the public, and spoke to the “maintenance of the integrity of the professional-patient relationship”. [13] Second, the provisions did not criminalize activities falling outside the delivery of health services. Rather, they put professionals to a choice: “treat the patient or sever the professional-patient relationship and engage in a sexual relationship.” [14] Third, the stigma of a finding of sexual abuse did not remove the law from regulation of health professions to the criminal law. The Court of Appeal had no issue with the behaviour being both a regulatory matter under provincial legislation, and a criminal matter. [16]

Hanif v. Ontario College of Pharmacists and Ontario, 2015 ONCA 640
(available on CanLII here)

Lisa C. Fong and Michael Ng