After numerous decisions by the Ontario Court of Appeal holding that the mandatory revocation provisions for sexual abuse are valid, one has to credit defence counsel with ingenuity in raising interesting new arguments in Sliwin v College of Physicians and Surgeons, 2017 ONSC 1947. Dr. Sliwin was a plastic surgeon. From time to time over the course of many years, he employed and had a sexual relationship with a woman. During this period the surgeon performed numerous cosmetic procedures on her without charge. He also provided other medical services. Dr. Sliwin appealed the finding of sexual abuse and the mandatory revocation on a number of grounds.
Dr. Sliwin argued that he should be excused from sexual abuse (although not a boundary violation) on the ground of officially induced error. He argued that his misinterpretation of various College publications on the topic of sexual abuse (e.g., statements permitting episodic minor procedures) lead him to believe that his conduct did not constitute sexual abuse. The Divisional Court held it was reasonable for the Discipline Committee to reject that argument on the basis that Dr. Sliwin “knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice”.
Dr. Sliwin also submitted that there was an abuse of process because the College had, in various communications with his defence counsel, tried to dissuade them from raising Charter of Rights issues or to represent him. While the Court was concerned about some of those interventions, it found that they did not compromise Dr. Sliwin’s ability to have a fair hearing before an impartial tribunal as the Committee was not involved. Dr. Sliwin also argued that the failure of the College to record and disclose, at least initially, that the complainant was concerned that a “sexual abuse” allegation had been made and that she wanted to withdraw her complaint was also an abuse of process. The Court did not find that this information was relevant to the case as it was the College that framed the prosecution once the complaint was made.
Dr. Sliwin also argued that the complainant was not his patient when they had sex. While all agreed that the sexual activity had to be concurrent with the Doctor-patient relationship, the Court deferred to the tribunal’s findings that the ongoing nature of the services resulted in the professional relationship encompassing at least some of the sexual activity.
The Divisional Court also rejected Dr. Sliwin’s argument that the prior Court of Appeal decisions could be disregarded because of subsequent spousal exemption amendments to the enabling statute, the Regulated Health Professions Act. The Court found that these narrow amendments did not significantly change the law and that, in any event, this sexual relationship was clearly not a spousal relationship. The Court also held that it was bound by the prior Court of Appeal decisions that the right to liberty protections found in section 7 of the Charter of Rights did not apply to Dr. Sliwin’s sexual freedom or his “right” to practise his profession.
The Court did, however, set aside the part of the tribunal’s order requiring Dr. Sliwin to post security for costs for therapy and counselling for the complainant. The Court concluded that on the facts of this case there was no reasonable prospect that the complainant would request such counselling and therapy.