College of Nurses of Ontario v. Leroux, 2014 ONCNO 87373

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Debra Mattina Chairperson Lorenza Barron, RN Member Michael Hogard, RPN Member Renate Davidson Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) REBECCA DURCAN for

) the College of Nurses of Ontario

• and - )

JAMES LEROUX ) ROBERT STEPHENSON for

Registration No. 09395549 ) James Leroux

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: September 16, 2014

PENALTY DECISION AND REASONS

By way of reasons dated July 14, 2014, this panel made findings of professional misconduct against James Leroux (the “Member”). The panel found that the Member sexually, physically and emotionally abused [the Client] and committed an act which would reasonably be perceived by members of the profession to be dishonourable, disgraceful and unprofessional when the Member placed [the Client]'s hand on his penis and began to masturbate.

The panel reconvened on September 16, 2014, at the College of Nurses of Ontario (the “College”) for the penalty hearing.

Evidence on Penalty

College Counsel submitted into evidence a victim impact statement written by [the Client] [ ]. It was received by Counsel on September 15, 2014. It details the harm [the Client] has experienced and continues to experience as a result of the Member’s actions.

The Member’s Counsel submitted two letters of reference into evidence. [One] is a letter dated September 10, 2014, from [ ] a co-worker of the Member. [The other] is an undated letter from another co-worker [ ]. The letters describe the Member’s conduct at work and the positive character traits demonstrated by the Member.

Later in the penalty hearing, at the conclusion of his submissions, the Member’s Counsel requested that the Member be permitted to give a statement to the panel regarding the impact of the decision on the Member. He was prepared to do this as a witness, under solemn affirmation. College Counsel objected, stating that the Member’s Counsel had the opportunity to call the Member as a witness during the evidentiary phase of the hearing and had chosen not to do so. The Member’s Counsel stated that he had not understood that he would not have another opportunity to call evidence.

The panel sought the advice of its Independent Legal Counsel (“ILC”). ILC advised the panel that the evidentiary phase of the hearing had passed and the panel had already heard the submissions of College Counsel and the submissions of the Member. She advised that the panel did have discretion to reopen the evidentiary phase of the penalty hearing if it considered it fair to the Member to do so, provided that steps were taken to make sure the process was fair to both parties. In this case, that would mean taking such steps as giving the College the opportunity to augment and supplement its submissions in light of any new evidence should the panel decide to allow it.

College Counsel agreed with the advice of ILC. The Member’s Counsel submitted that is was unfair to the Member [ ] not to be permitted to speak to them about the impact on him of the panel's decision.

Upon consideration of the matter, the panel determined that it would not reopen the evidentiary portion of the hearing. The record will show that the panel chair clearly inquired of the Member’s Counsel, prior to proceeding to submissions, if there was any additional evidence to be presented on behalf of the Member. The Member’s Counsel replied that there was no other evidence. The panel acknowledged that, despite declining to hear the Member’s evidence, it accepted that the panel’s findings against the Member have had and will continue to have a devastating impact on both the Member's private and professional life. The panel was mindful of this throughout.

Penalty Submissions

College Counsel referred the panel to various sections of the Regulated Health Professions Act, 1991 (the “RHPA”) Schedule 2, Health Professions Procedural Code (the “Code”), as follows (emphasis added throughout).

Orders

51 (2) If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following:

1. Directing the Registrar to revoke the member’s certificate of registration.

2. Directing the Registrar to suspend the member’s certificate of registration for a specified period of time.

3. Directing the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time.

4. Requiring the member to appear before the panel to be reprimanded.

5. Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance.

5.1 If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for that patient under the program required under section 85.7.

5.2 If the panel makes an order under paragraph 5.1, requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraph 5.1. 1991, c. 18, Sched. 2, s. 51 (2); 1993, c. 37, s. 14 (2).

Orders relating to sexual abuse

51(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):

1. Reprimand the member.

2. Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following,

i. sexual intercourse,

ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,

iii. masturbation of the member by, or in the presence of, the patient,

iv. masturbation of the patient by the member,

v. encouragement of the patient by the member to masturbate in the presence of the member.

Statement re impact of sexual abuse

51 (6) Before making an order under subsection (5), the panel shall consider any written statement that has been filed, and any oral statement that has been made to the panel, describing the impact of the sexual abuse on the patient.

No stay of certain orders pending appeal

71. An order made by a panel of the Discipline Committee on the grounds of incompetence or by a panel of the Fitness to Practise Committee on the grounds of incapacity, directing the Registrar to revoke, suspend or impose terms, limitations or conditions on a member’s certificate, takes effect immediately despite any appeal.

No stay of certain orders pending appeal

71.1 Section 71 also applies to an order made by a panel of the Discipline Committee because of a finding that a member has committed sexual abuse of the kind described in subparagraph i, ii, iii or iv of paragraph 2 of subsection 51 (5).

Applications for reinstatement

72. (1) A person whose certificate of registration has been revoked or suspended as a result of disciplinary or incapacity proceedings may apply in writing to the Registrar to have a new certificate issued or the suspension removed.

Time of application

(2) An application under subsection (1) shall not be made earlier than,

(a) one year after the date on which the certificate of registration was revoked or suspended; or

(b) six months after a decision has been made in a previous application under subsection (1).

Time of application, sexual abuse cases

(3) An application under subsection (1), in relation to a revocation for sexual abuse of a patient, shall not be made earlier than,

(a) five years after the date on which the certificate of registration was revoked; or

(emphasis added)

(b) six months after a decision has been made in a previous application under subsection (1).

College Counsel submitted that in light of the panel’s findings, the panel was obligated by the Code to direct the Registrar to revoke the Member’s certificate of registration immediately and to order the Member to appear before the panel for an oral reprimand within three months of the date that the order becomes final.

College Counsel further submitted that, considering the circumstances, it is also appropriate to order the Member to reimburse the College for funding (for therapy and counselling) provided to the [client] under the program required under section 85.7 of the Code in the amount of $5,000.00. College counsel also submitted that it was appropriate for the panel to order that the Member post security acceptable to the College to guarantee payment of the $5,000.00.

College Counsel submitted that the requested penalty adheres to the principles of deterrence, both specific and general, as well as public protection and remediation. Revocation is clearly a strong deterrent. It sends a message to the public, to the Member and to all members of the profession that professional misconduct involving the sexual exploitation of a [client] will not be tolerated. She submitted that the public protection mandate is fulfilled as it removes the Member from the nursing environment. She further submitted that the period of revocation provides the Member with an opportunity to seek rehabilitation.

College Counsel also provided the panel with a Brief of Authorities on Penalty which contained a summary of the case The College of Physicians and Surgeons of Ontario v. Dr Robin Charles Woollam (Discipline Committee, 2014), a copy of the decision and reasons for decision in The College of Physicians and Surgeons of Ontario and Dr. Justin Fuminori Onzuka (Discipline Committee, 2013), and a copy of the decision and reasons for decision in The College of Physicians and Surgeons of Ontario and Dr. Kim Choy Lui (Discipline Committee, 2011). Each of the cases were uncontested. In the last two cases, the facts were determined based on the Agreed Statements of Fact and the Joint Submissions on Penalty. College Counsel submitted that they were provided to the panel to demonstrate that the penalty requested by the College is within the realm of normal for findings of professional misconduct involving sexual abuse of a [client].

In response to the College’s submissions, the Member’s counsel urged the panel to read the letters marked as Exhibits [ ] and make note of how the Member’s co-workers viewed him. [T]he Member’s Counsel submitted that the victim impact statement contains no factual medical or psychiatric statements to support the victim’s account and that no weight should be given to it.

The Member’s Counsel submitted that the decision of the panel is being appealed. While some aspects of the panel’s penalty order might be automatically stayed pending appeal, mandatory revocation for sexual abuse would not be stayed. The Member’s Counsel submitted that the panel should make the mandatory order revoking the Member’s certificate of registration, but that the panel should then exercise its discretion to suspend the order until after the appeal is heard. The Member’s Counsel submitted the panel had jurisdiction to suspend a mandatory revocation. He further submitted the panel ought to exercise this jurisdiction because if the Member were to be successful in his appeal, then the Member would have been unjustly penalized if the revocation order was carried out immediately. The Member’s Counsel submitted that rather than impose an immediate revocation, the panel should impose terms, conditions and limitations which would protect the public and allow the Member to work while waiting for the appeal to be heard in approximately 12 to 24 months’ time.

As to the other terms proposed by the College, the Member’s Counsel urged the panel to reject the request to impose a payment for the therapy of [the Client] up to $5,000.00, stating that the Member is unemployed and cannot pay the money. The Member’s Counsel originally submitted that the panel does not have jurisdiction to impose an order requiring the Member to provide security to the College, but later agreed that paragraph 5.2 of subsection 51(2) did provide the panel with this jurisdiction. He submitted that in light of the Member’s financial situation, this would only be punitive and would serve no purpose.

In reply submissions, College Counsel advised the panel that the panel did not have the discretion to suspend the revocation of the Member’s certificate of registration. It was her submission that the legislature purposefully imposed an immediate mandatory revocation which is not automatically stayed on appeal. College Counsel also submitted that the letters of reference entered into evidence by Member’s Counsel should be given no weight. She submitted that neither of the letters make reference to the findings against the Member and should not be considered examples of exemplary behaviour.

ILC interceded on the issue of whether or not the panel had the discretion to suspend a mandatory revocation. ILC provided the panel and the parties with the decision Ontario College of Pharmacists v Hanif, 2013 ONCPDC 12, wherein the member admitted that he committed acts involving sexual abuse of a [client], thereby attracting the mandatory revocation provisions of subsection 51(5) of the Code. In a joint statement on penalty, both parties requested that the panel suspend the mandatory revocation of the member’s certificate of registration pending a constitutional challenge regarding the validity of the legislation and the mandatory revocation provisions. The panel in that hearing accepted the joint submission and ordered the mandatory revocation suspended until the constitutional challenge in the application including any appeals had been decided. Subsequent to the initial decision, the Attorney General intervened and sought a reconsideration of the decision, arguing that the Discipline Committee had no jurisdiction to suspend a mandatory revocation. In this decision of "first instance", it was determined that subsection 51(4) provides panels of the Discipline Committee with the authority to suspend an order made under subsection 51(2) order in matters involving sexual abuse. This includes the mandatory orders specified in subsection 51(5). The reasons for decision provide at paragraph 69 that, "The statute is written in such a way as to make it possible for a Discipline Committee to exercise its jurisdiction to suspend a s.51(2) order for specified reasons and/or unique circumstances, such as the constitutional challenge in this case, without diminishing the purposive mandatory revocation provisions or the public protection mandate of the regulatory body".

The decision of the Discipline Committee of the College of Pharmacists was later endorsed by the Divisional Court, which found that the Discipline Committee’s interpretation of its jurisdiction was a reasonable one.

Both parties were invited to comment on the advice provided to the panel by ILC. College Counsel advised that she did not put the Hanif decision before the panel based on the distinction between the cases. College Counsel’s position is that unlike the case before us, the Hanif case arose out of a consensual sexual relationship, and a joint submission between the parties. It is College Counsel’s position that Hanif is not relevant to the case before the panel. The Member’s Counsel, when invited, made no submissions on the subject.

Penalty Decision

1. The Executive Director is directed to immediately revoke the Member’s certificate of registration.

2. The Member is required to appear before the panel to be reprimanded within three months of the date that this Order becomes final.

3. The Member is required to reimburse the College for funding up to the amount of $5,000.00 provided for [the Client] under the program required by s. 85.7 of the Health Professions Procedural Code.

4. The Member is required to post security, acceptable to the College, to guarantee the payment of any amounts as set out in paragraph 3.

Reasons for Penalty Decision

In reviewing the submissions of the Member, the panel assigned very little weight to the letters of reference. The letter [ ] dated September 10, 2014, makes only a passing reference to the "alleged offence" and the writer admits that they have no statement to offer in that regard. The writer commends the Member’s care with respect to a case the two had worked together. He found the Member to be courteous, professional and supportive.

The second letter, [ ] (undated), makes no reference to the incident which resulted in the findings against the Member. This writer comments that the Member was approachable, smart, kind, passionate, professional, and flexible. While those attributes are certainly expected in members of the nursing profession they do not excuse or absolve the Member of the heinous act of sexual abuse of a vulnerable [client].

The act that the Member committed is typically a private act and his co-workers would have no insight with respect to that behaviour. The panel finds nothing in either of these letters that would assist with its decision-making on penalty.

The panel did accept the victim impact statement. It was consistent with the victim’s statements given at the hearing about [the Client’s] feelings and requiring medication and counselling. The panel is satisfied that a victim impact statement is exactly that, a statement provided by the witness as to how the commission of the sexual assault impacted [the Client’s] life. It is not and is not required to be a professional medical report. The panel accepts that the incident will have lifelong implications for [the Client].

The panel is satisfied that the order adheres to the principles of sanction. First and foremost is public protection, which is achieved by the immediate revocation of the Member’s certificate of registration. The revocation and reprimand also speak to specific deterrence with respect to the Member himself. General deterrence is also achieved with a very strong and clear message to the members of the profession that sexual abuse of [clients] will not be tolerated. As the Member cannot apply for reinstatement for a period of five years, there is also opportunity for the Member to seek rehabilitation.

With respect to the Member being required to reimburse the College for funding in an amount up to $5,000.00 and to provide security to guarantee the payment, the panel considers it appropriate that the Member contribute to healing the damage he inflicted on his victim. There is no penalty that can erase the [client]’s emotional pain and loss of trust and confidence sustained because of the Member's actions, but the panel believes it is fair and appropriate that the Member contribute to his victim's recovery.

The panel is certain that the order on penalty satisfies the provisions of the Code. The Member seeks suspension of those parts of the order that are not automatically stayed by his appeal until such time as his appeal can be heard. While the panel has the discretion and jurisdiction to suspend those terms of the order that are not automatically stayed (including the mandatory revocation), the panel finds there are no specified reasons and unique or extraordinary circumstances that warrant suspending the order in this case.

The panel is confident in its findings with respect to this case. This Member sexually preyed on a defenceless [client]. The panel has no faith that terms, conditions or limitations on the Member’s practice would protect the public, especially a public who under various circumstances may not be conscious of the people or the events taking place around them. The predatory nature of the act committed by the Member leaves the panel extremely reluctant to return the Member to nursing practice while he awaits appeal. Therefore the panel chooses not to exercise its discretion to suspend the mandatory provisions of this order, including the revocation.

I, Debra Mattina, Public Member, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members:

Lorenza Barron, RN

Michael Hogard, RPN

Renate Davidson, Public Member