College of Nurses of Ontario v. Angelino Aguas, 2016 CanLII 104243

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Grace Fox, NP Chairperson

Tanya Dion, RN Member Mary MacMillan-Gilkinson Public Member Desiree Ann Prillo, RPN Member

Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for

) College of Nurses of Ontario

• and - )

) NO REPRESENTATION for

) Angelino Aguas

ANGELINO AGUAS )

Registration No. 9600438 )

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: October 25, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (“the Panel”) on October 25, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

As Angelino Aguas (the “Member”) was not present, the hearing recessed for 30 minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not present and was not represented.

Counsel for the College provided the Panel with evidence that the Member had been sent the Notice of Hearing on July 25, 2016. The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and therefore proceeded in the Member’s absence.

Publication Ban

The Panel ordered a publication ban following a motion by College Counsel, pursuant to s. 45(3) of the Health Professions Procedural Code of the Nursing Act, 1991. The order bans the public disclosure outside of the hearing room, including a ban on the publication or broadcasting, of the names of the clients referred to in the Discipline Hearing of the Member and information that would reasonably tend to identify the clients referred to.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated July 21, 2016 are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that on May 29, 2015, in the Superior Court of Justice in [ ], Ontario, you were found guilty of offences relevant to your suitability to practise, and in particular, you were convicted the following charges:

a. on or about the 20^th day of May in the year 2012, at the City of [ ], in the [ ] Region, you did commit voyeurism on [Client A], contrary to section 162(1)(b) of the Criminal Code of Canada; and

b. on or about the 22^nd day of May in the year 2012, at the City of [ ], in the [ ] Region, you did commit a sexual assault on [Client B], contrary to section 271 of the Criminal Code of Canada; and/or

2. You have committed an act of professional misconduct as provided by subsection 51(1)(b.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that while working as a Registered Nurse at [the Hospital], you sexually abused a client, as follows:

a. on or about May 22, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client B]; and/or

b. on or about February 16, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client C]; and/or

c. on or about May 20, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client A]; and/or

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at the Hospital, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, as follows:

a. on or about May 22, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client B]; and/or

b. on or about February 16, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client C];

c. on or about May 20, 2012, you engaged in physical sexual relations, touching of a sexual nature, or behaviour or remarks of a sexual nature toward [Client A].

Counsel for the College advised the panel that the College was not calling any evidence with respect to the allegations set out in paragraphs 2(b) and 3(b) of the Notice of Hearing.

Member’s Plea

Given that the Member was not present nor represented, he was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member is a Registered Nurse who was registered with the College from October 1995 until August 1, 2013. At that time, the Inquiries, Complaints and Reports Committee of the College suspended his Certificate of Registration. In Exhibit 10 dated June 17, 2014, the Member, with representation from his counsel, signed a waiver agreeing to have this Discipline Hearing postponed until after his criminal proceedings were completed.

The Member was working in the Emergency Department of [the Hospital] between February 2012 and May 2012. A criminal proceeding in the Superior Court of Justice has found that during this time, the Member committed the offences of voyeurism on [Client A] and sexual assault on [Client B].

[Client B] first met the Member in the triage unit of the Hospital on May 22, 2012. [Client B] had suffered abrasions and emotional trauma as a result of being thrown out of a car driven by [Client B’s] ex-boyfriend. The Member took [Client B] to a small examination room and proceeded to take various photographs of [Client B]. [Client B] believed that the Member was collecting evidence to provide to the police. The Member asked [Client B] to pose for photos. The Member physically moved [Client B] into provocative positions, which showcased [Client B’s] private body parts. These positions were not medically necessary and had no relevance to [Client B’s] injuries. The Member complimented [Client B’s] appearance and made sexualized comments to [Client B] as he was taking the pictures. Without permission, the Member also took a video of [Client B]. Prior to leaving the hospital the Member entered [Client B’s] personal phone number into his cell phone. It was only after meeting with a doctor on a subsequent day that [Client B] realized that a sexual assault had occurred. [Client B] then notified the police. Shortly afterwards, the Member contacted [Client B] through texts. The police, who were in possession of [Client B’s] cell phone, responded to the text messages as if they were [Client B]. The Member was arrested at [the Hospital] and his cell phone was seized.

The police reviewed the contents of the Member’s cell phone. They discovered a single photograph of another [ ] victim who was later identified as [Client A]. In the photograph, [Client A] was laying on a gurney, with medical equipment attached, and [Client A’s] left [ ] exposed. [Client A] had attempted suicide and was unconscious at the time. [Client A] had not given permission for the picture to be taken.

The Member was charged criminally with the offence of voyeurism regarding [Client A] and sexual assault regarding [Client B]. He was also charged with an offence regarding a third client, [Client C].

The Member pled not guilty in the Superior Court of Justice on all counts. On May 29, 2015, he was convicted of the offences relating to [Client A] and [Client B]. Exhibit 12 contained a certified copy of these convictions and also showed that the Member was found not guilty relating to the charges against [Client C]. Although [Client C] had participated in the pre-trial proceedings [Client C] could not be located for the criminal trial.

The College tried unsuccessfully to contact [Client C]. As a result, College Counsel did not lead evidence on Allegations 2 (b) and 3(b).

The Panel was asked to consider:

1. Was the Member found guilty of the offences of voyeurism and sexual assault?

2. If so, are either or both of those offences relevant to the Member’s suitability to practise?

3. Did the Member engage in touching of a sexual nature and engage in behaviour of a sexual nature toward [Client B] and [Client A]?

4. Would the Member’s proven conduct be reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional?

Having considered the evidence and the onus and standard of proof, the Panel found that the Member had committed acts of sexual assault and voyeurism. This is professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a) and 2(c) in the Notice of Hearing. The Panel concluded that the acts of sexual assault and voyeurism strike at the heart of nursing and that such conduct is relevant to the practice of nursing in that it puts the public’s safety at great risk. The Panel found that the Member misused his trusted position as a nurse, used deceit to take advantage of vulnerable clients and caused them long-lasting psychological trauma. The Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

The Panel dismissed allegations 2(b) and 3(b), as there was no evidence relating to [Client C].

The Evidence

Was the Member Found Guilty of Criminal Offences?

College Counsel provided the Panel with Exhibit 12, which is a certified copy of the verdict of Justice K.L. Campbell dated May 29, 2015, documenting the findings of guilt relating to the sexual assault of [Client B] and voyeurism on [Client A]. As the Member did not initiate an appeal, section 22.1 of the Evidence Act permits the Panel to use these convictions as evidence that the crimes were committed.

In Exhibit 13, the Reasons for Sentence, Justice K.L. Campbell set out the background and facts of the Member’s criminal case. College Counsel asked the Panel to accept the judge’s reasons for conviction as evidence. College Counsel referred to the 2003 Supreme Court decision of City of Toronto v. CUPE 2003 SCC 63. The Supreme Court concluded that the convictions of a criminal court judge can be assumed to be true and should be respected in subsequent administrative proceedings, except in rare circumstances. Since the Member did not appeal his criminal convictions and was not present at this hearing to rebut Justice K.L. Campbell’s conclusions, the Panel accepted the judge’s reasons as evidence.

Justice K.L. Campbell stated that the parties in the criminal proceeding reached two agreed statements of fact (“ASF”). In the first, the Member only admitted that:

1. He was employed as a nurse at [the Hospital] in May 2012.

2. He was involved in the treatment of both [Client B] and [Client A].

3. The cell phone that was seized by the police belonged to him.

After a pre-trial ruling, which allowed the contents of the Member’s iPhone to be admitted into evidence, the Member then accepted a second ASF. Justice K.L. Campbell summarized the evidence in this second ASF.

Justice K.L. Campbell referred to the Member’s iPhone, which contained 17 photographs of [Client B] in various stages of undress. It also included a 28-second video of [Client B] showing [Client B’s] “[ ], buttocks and [ ] area.” Justice Campbell referred to suggestive remarks made by the Member regarding [Client B]. For example, “He told [Client B] that [Client B] was beautiful and that he was lucky to have been working that night.” The iPhone also contained the text message exchanges between the Member and the police officer that was posing as the complainant. Justice K.L. Campbell acknowledged that [Client B] had only consented to the photographs for medical purposes and not for any sexual reason.

Justice K.L. Campbell in his written decision referred to the single photograph of [Client A]. [Client A] was seen laying on a gurney with medical equipment attached to [ ] chest with [ ] eyes closed. “[Client A’s] blue hospital gown is pulled down exposing [ ] bare left [ ].” [Client A] had no recollection of the incident. [Client A] did not know who had taken the picture. Justice K.L. Campbell wrote, “There was no medical reason for [Client A’s] bare left [ ] to be exposed or photographed in the hospital.”

Justice K.L. Campbell summarized the impact these incidents had on the complainants. He wrote that [Client B], as a result of this incident, no longer feels safe in hospital. [Client B] does not feel safe around people in authority. [Client B] believes, he writes, that there are a percentage of people who abuse their positions. [Client B] worries that [ ] will be assaulted and fears that [ ] will “never heal”. [Client A] also lost her ability to trust people in positions of authority. [Client A] worries that the Member might have done something else to [ ] while [ ] was unconscious. [Client A] is fearful of medical situations where [ ] might have to undergo anaesthesia. [Client A] finds it difficult to concentrate at work. As a result, [Client A] has had to seek help from a psychiatrist.

Are the Convictions Relevant to the Member’s Suitability to Practice?

The Panel referred to Exhibit 18 which is the College’s Reference Document regarding Professional Misconduct. It references that sexual assault convictions have been found relevant to a nurse’s suitability to practise in discipline cases. Although it is up to each Panel to make its own decision, this Exhibit is some evidence putting members on notice as to what the Discipline Committee considers relevant to suitability to practise.

Is this Conduct Sexual Abuse?

The Health Professions Procedural Code of the Nursing Act, 1991, subsection 51(1)(b.1) states that it is professional misconduct to sexually abuse a patient. The Panel referred to Exhibit 12, which is a record of the Member’s criminal convictions of sexual assault and voyeurism.

Sexual abuse is defined in subsection 51(1)(b.1). It includes “touching, of a sexual nature, of the client by the member” and “behaviour or remarks of a sexual nature by the member toward the client.” The Member in his second ASF from the criminal trial admits to those actions.

The Panel reviewed Exhibit 17, the College’s Practice Standard regarding the Therapeutic Nurse-Client Relationship. It states that nurses need to protect their clients from abuse by not engaging in behaviours or by making remarks that may be perceived as sexually suggestive, exploitive and/or sexually abusive. In Appendix A of Exhibit 17, abusive behaviour also includes “non-physical sexual activity such as viewing pornographic websites with a client.” The Panel considers voyeurism to be analogous to taking pornographic videos. The Member in his second ASF admitted to taking the photograph of [Client A] without [Client A’s] permission.

Disgraceful, Dishonourable or Unprofessional Conduct

The Panel relied on the evidence in Exhibits 12-18. The Panel also focused on Justice K. L. Campbell’s conclusion that, “The dominant element of this case is the shocking breach of trust by the accused inherent in the commission of these offences”.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1(a), 1(b), 2(a) and 2(c) of the Notice of Hearing. In particular, the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable, disgraceful and unprofessional by committing sexual assault and voyeurism.

As to allegations 2(b) and 3(b), College Counsel advised that she was not calling any evidence in respect of them. Accordingly, the Panel dismisses allegations 2(b) and 3(b) in the Notice of Hearing.

Reasons for Decision

The Panel considered the evidence and the unchallenged submissions by College Counsel. The Panel relied on Exhibits 12 & 13 and is satisfied that the Member has been convicted of sexual assault and voyeurism contrary to the Criminal Code of Canada. Given the nature of these convictions, the Member has committed professional misconduct and is unsuited to the practice of nursing.

The Member’s conduct was an unacceptable abuse of power. He failed to maintain professional boundaries and was knowingly deceptive. He demonstrated a total disregard for the physical and emotional needs of his vulnerable clients. He victimized [Client B] and [Client A] and used them for his own sexual gratification. This behaviour cast serious doubt on his moral fitness and his ability to be governed. The Panel unanimously believes that the Member’s conduct constitutes dishonourable, disgraceful and unprofessional behaviour.

Penalty

The College submitted that the Panel should make an Order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. Directing the Executive Director to immediately revoke the Member’s Certificate of Registration.

Penalty Submissions

College Counsel provided the Panel with three cases that were similar in nature to the Member’s. The penalties, in those cases, are within the range of what is being requested.

College Counsel submitted that the actions of the Member:

1. Were a gross and shocking breach of public trust;

2. Were exploitive in nature;

3. Caused significant and lasting trauma to his victims; and

4. Require revocation in order to protect the public.

Penalty Decision

The Panel makes the following order as to penalty:

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

2. The Executive Director is directed to immediately revoke the Member’s Certificate of Registration.

Reasons for Penalty Decision

The reprimand is a mandatory component of the penalty. Revocation is not mandatory, however, the Panel found it to be the appropriate order in this case.

The Panel considered the seriousness of the offences and the long-term effects that the Member’s conduct had on his clients. The Member chose not to participate in this hearing. As a result, the Panel did not hear him express any remorse for his actions and the Panel does not know if rehabilitation is possible. The Member’s two criminal convictions show that it was not one isolated incident but rather evidence of repeated behaviour. The Panel acknowledges that the Member practised for 18 years without any disciplinary action against him. The Panel believes, however, that the Member’s behaviour has put public safety in jeopardy. The Panel feels strongly that public confidence in the profession will be eroded if he were permitted to practise nursing. The Panel has concluded that revocation is necessary and is consistent with previous cases. This penalty provides for specific deterrence to the Member. It sends a strong message to the nursing profession that this conduct will not be tolerated. It protects the public because the Member will be unable to practise.

I, Grace Fox, NP, 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:

Tanya Dion, RN

Mary MacMillan-Gilkinson, Public Member

Desiree Ann Prillo, RPN

Chuck Williams, Public Member