A Bright Line

The Ontario Court of Appeal has formally considered its previous sexual abuse cases upholding revocation for frank acts of sex by health practitioners and patients. The Court has reaffirmed its previous decisions finding such a sanction as both fair and constitutional: Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 (CanLII), https://canlii.ca/t/jgql5.

The practitioner had a professional relationship with the patient. This developed into a sexual relationship. Treatment continued periodically during the sexual relationship and after their eventual marriage. Treatment continued periodically during this time. The practitioner thought the sexual relationship was acceptable because a colleague said that a spousal exception applied. In fact, the spousal exception was only proposed and was not enacted for some years afterwards. The practitioner challenged the fairness of the mandatory revocation provision as well as relying on the liberty and security of the person provisions and the cruel and unusual treatment protections contained in the Canadian Charter of Rights and Freedoms.

On the main issue of whether sexual abuse must be exploitative or abusive to constitute professional misconduct the Court said:

This argument must be rejected. In essence, it invites the court to convert the bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships between practitioners and patients to be evaluated to determine whether discipline is warranted in particular circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the nature or duration of those relationships.

The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship. The Legislature did not prohibit only sexual relationships that are abusive, leaving it to disciplinary proceedings to determine what constitutes abuse; it prohibited sexual relationships between regulated health practitioners and their patients per se. This approach obviates the need for discipline committees – bodies composed of health care professionals and laypeople – to inquire into the nature of sexual relationships and whether, as the appellant would have it, they give rise to “actual sexual abuse” because they arise out of coercion or exploitation. Justice Feldman’s observation in Leering, at para. 41, remains apt:

The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complainant. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established.

In finding that section 7 of the Charter does not apply to mandatory revocation of one’s right to practise one’s profession, the Court said:

But s. 7 does not apply simply because legislation gives rise to serious consequences. Psychological integrity is a narrow and limited concept, and the right to security of the person is engaged only if there is a serious and profound effect on psychological integrity. The matter is to be judged on an objective basis, having regard to persons of ordinary sensibilities. It is irrelevant whether state action causes upset, stress, or worse. There must be a serious and profound impact on psychological integrity before the protection of s. 7 is engaged. Nothing in this case suggests that this threshold has been crossed, nor has the appellant proffered any basis for this court to revisit that threshold.

In terms of section 12 of the Charter the Court said:

…the appellant says, the combined effect of mandatory revocation of registration and the permanent notation on the public register constitutes cruel and unusual treatment.

The appellant’s submissions founder at the first stage of the inquiry. Although “treatment” may extend the protection of s. 12 beyond instances of punishment and other state action associated with the criminal law that affects individuals, there is no authority supporting the premise that professional regulation constitutes “treatment” within the meaning of s. 12. I see no basis for concluding that regulation of the health care professions is subject to s. 12, and no basis for concluding that it would meet the very high bar established by the Supreme Court in any event.

The bright line prohibiting a simultaneous professional and sexual relationship remains in place.

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