College of Nurses of Ontario v. Tito Daguio, 2019 ONCNO 129288

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tanya Dion, RN Chairperson Carly Gilchrist, RPN Member Terry Holland, RPN Member Mary MacMillan-Gilkinson Public Member Christopher Woodbury Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for ) College of Nurses of Ontario

• and - )

TITO DAGUIO ) LORNE SABSAY for Registration No. AB829950 ) Tito Daguio

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: May 27, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on May 27, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Tito Daguio (the “Member”) as stated in the Notice of Hearing dated February 11, 2019 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, you were found guilty of offences relevant to your suitability to practise nursing, as follows:

(a) On March 24, 2017, you were found guilty of the following offence:

(i) on or about the 5th day of February in the year 2016 in [ ], in the Province of Ontario, you did, for a sexual purpose invite [the Individual], a person under the age of sixteen years, to touch directly with a part of [the Individual’s] body, the body of yourself contrary to section 152 of the Criminal Code of Canada;

(b) On April 7, 2017, you were found guilty of the following offences:

(i) on or about the 5th day of February in the year 2016 in [ ], in the Province of Ontario, you did, unlawfully commit a sexual assault on [the Individual] contrary to section 271 of the Criminal Code of Canada; and/or

(ii) on or about the 5th day of February in the year 2016 in [ ], in the Province of Ontario, you did, for a sexual purpose touch [the Individual], a person under the age of sixteen years, directly with a part of your body contrary to section 151 of the Criminal Code of Canada.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(a)(i), 1(b)(i) and 1(b)(ii) in the Notice of Hearing. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and Counsel for the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads as follows:

THE MEMBER

1. Tito Daguio (the “Member”) obtained a diploma in nursing from Humber College in 2011.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Practical Nurse (“RPN”) on April 2, 2012. On September 27, 2017, the Inquiries, Complaints and Reports Committee suspended the Member’s certificate of registration on an interim basis.

3. At the time of the incidents, the Member was employed at Credit Valley Hospital (the “Hospital”) in Mississauga, Ontario.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Charges and Finding of Guilt

4. On February 5, 2016, the Member was charged with:

• sexual assault contrary to sections s. 271 of the Criminal Code of Canada;

• sexual interference contrary to s. 151 of the Criminal Code of Canada; and

• invitation to sexual touching contrary to s. 152 of the Criminal Code of Canada.

5. The charges arose from a complaint from a [minor] (“[the Individual]”) who lived [ ]. [The Individual] said [they] entered the Member’s home to use the washroom [ ], and the Member forced [the Individual] to perform fellatio.

6. The Member self-reported the charges to the College on February 19, 2016.

7. Following his arrest, the Member was released on bail. The terms of his bail required the Member not to be in the company of or communicate with persons under the age of 16, including not working in a position of trust or authority towards persons under the age of 16.

Criminal Trial

8. The Member pleaded not guilty to all three charges and a trial was held on January 11-12, 2017. The entire case rested on [the Individual]’s credibility. The trial judge accepted [the Individual]’s evidence.

9. On March 24, 2017, the Ontario Court of Justice found the member guilty of invitation to sexual touching contrary to s. 152 of the Criminal Code of Canada.

10. On April 7, 2017, the Ontario Court of Justice found the member guilty of sexual assault contrary to s. 271 of the Criminal Code of Canada and sexual interference contrary to s. 151 of the Criminal Code of Canada.

11. In her reasons, the trial judge made the following findings of fact:

• [The Individual] entered the Defendant’s home and went to use the bathroom under the circumstance described by [the Individual] in [their] evidence.

• When [the Individual] left the bathroom [they] began to leave the house via the dining/living room.

• The Defendant was in the living room and was sitting on a couch with his pajama pants all of the way down around his ankles and was saying “suck it, suck it, suck it.”

• [The Individual] said words to the effect of “no, leave me alone, I’m leaving now,” “what are you doing – like, I’m leaving now, bye.”

• The defendant got up and stopped [the Individual] and there was a verbal exchange to the effect of “no, suck it now” with a reply of “no leave me alone” and a further statement by the Defendant of “no suck it.”

• The Defendant had one hand on [the Individual]’s shoulder, and he had his erect penis in the other.

• [The Individual] went to [their] knees and had the Defendant’s penis in [their] mouth for 30 to 60 seconds. The Defendant was saying “don’t tell anybody about this.”

• After [the Individual] ran out and then [ ].

12. On June 6, 2017, the Member was sentenced to 6 months in jail, 18 months’ probation, Sex Offender Information Registration for 10 years, a 5 year weapons prohibition, DNA order and a victim surcharge.

13. On June 6, 2017, the Member was released on bail pending appeal.

Appeals

14. The Member appealed the convictions to the Ontario Superior Court of Justice, Summary Conviction Appeal Court.

15. On March 5, 2018, the Member’s appeal was dismissed and his convictions were upheld.

16. The Court of Appeal for Ontario refused the Member’s leave to appeal the convictions on November 23, 2018.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

17. The Member admits that he was found guilty of invitation to sexual touching contrary to s. 152 of the Criminal Code of Canada on March 24, 2017, and that he was found guilty of sexual assault contrary to s. 271 of the Criminal Code of Canada and sexual interference contrary to s. 151 of the Criminal Code of Canada, on April 7, 2017, and that the findings of guilt are relevant to his suitability to practise.

18. The Member admits that he committed the act of professional misconduct as described above in paragraphs 4 to 16, and as alleged in paragraph 1(a)(i), 1(b)(i) and 1(b)(ii) in the Notice of Hearing, in that he was found guilty of offences relevant to his suitability to practise nursing.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities 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)(i), 1(b)(i) and 1(b)(ii) of the Notice of Hearing.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing. The professional misconduct in issue is established by s.51(1)(a) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act (the “Code”).

Section 51(1) provides:

A panel shall find that a member has committed an act of professional misconduct if,

(a) The member has been found guilty of an offence that is relevant to the member’s suitability to practise

Allegation #1(a)(i) in the Notice of Hearing is supported by paragraphs 9, 17 and 18 in the Agreed Statement of Facts. The Member admits that he committed an act of professional misconduct and admits that he was found guilty of an invitation to sexual touching contrary to s. 152 of the Criminal Code of Canada on March 24, 2017. This finding of guilt is relevant to the Member’s suitability to practice. It is untenable for a nurse to continue in practice after being found guilty of an offence such as this. The public would not have confidence in such a nurse’s suitability to provide safe and effective nursing care.

Allegation #1(b)(i) in the Notice of Hearing is supported by paragraphs 10, 17 and 18 in the Agreed Statement of Facts. The Member admits he committed an act of professional misconduct as alleged. On April 7, 2017, the Ontario Court of Justice found the Member guilty of sexual assault contrary to s.271 of the Criminal Code of Canada. This finding of guilt is relevant to the Member’s suitability to practice. It is untenable for a nurse to continue in practice after being found guilty of an offence such as this.

Allegation #1(b)(ii) in the Notice of Hearing is supported by paragraphs 10, 11, 17 and 18 in the Agreed Statement of Facts. The Member admitted that he was found guilty of touching for a sexual purpose of a person under the age of sixteen years, directly with a part of his body contrary to s.151 of the Criminal Code of Canada. This finding of guilt is clearly relevant to the Member’s suitability to practice. As a result he has committed an act of professional misconduct as defined in s.51(1)(a) of the Code.

Penalty

College Counsel and Counsel for the Member advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel 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

Submissions were made by College Counsel who reviewed with the Panel that the following could be considered mitigating factors: the Member had no previous findings of misconduct with the College and he was cooperative throughout the discipline process.

College Counsel indicated the aggravating factors of this case outweigh the mitigating factors. The aggravating factors were the seriousness of the criminal findings against the Member, which involved the Member being found guilty of invitation to sexual touching of a minor and sexually assaulting a person under the age of sixteen years of age. The Member’s conviction brings discredit to the profession and constitutes a breach of trust which has the potential to harm members of the public. College Counsel reinforced that the Joint Submission on Order meets the goals of penalty which are protection of the public, specific deterrence and general deterrence, and rehabilitation and remediation.

College Counsel indicated that the Joint Submission on Order was reasonable as it gives effect to s.51(5.2) of the Code that mandates the revocation of a member’s certificate of registration, if the member has been found guilty of professional misconduct under s.51(1)(a) of the Code and the offence is prescribed in a regulation made under clause 43(1)(v) of the Regulated Health Professions Act, 1991 (“RHPA”) . In addition, College Counsel submitted that even if revocation of the Member’s certificate were not mandatory, it would be appropriate in this case.

College Counsel submitted cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.

CNO v. Goldar (Discipline Committee, 2019). In this case the member was not present during the hearing nor represented. The member belonged to two governing bodies: the College and the College of Massage Therapists (“CMT”). The discipline panel of the College found the member had committed acts of professional misconduct under s.51(1)(b) of the Code by being found by the CMT to have committed acts of professional misconduct that included making comments of a sexual nature to a client and touching a client in a sexual manner without clinical indication and without consent, while working as a massage therapist. The discipline panel of the College made an order requiring the member to appear before the panel for an Oral Reprimand, and directing the Executive Director to immediately revoke the member’s Certificate of Registration.

CNO v. Amponsa (Discipline Committee, 2018). In this case the member was not present during the hearing nor represented. The member was found guilty of sexually assaulting a co-worker contrary to section 271 of the Criminal Code. The panel found that the member committed professional misconduct under s.51(1)(a) of the Code. The panel made an order requiring the member to appear before the panel for an Oral Reprimand, and directing the Executive Director to immediately revoke the member’s Certificate of Registration.

Member’s Counsel indicated that he agreed with College Counsel that revocation of the Member’s certificate of registration was mandatory in this case. However, he submitted that the Member continues to maintain that he did not commit the underlying acts that led to his convictions but accepts that, as a result of being found guilty of those acts, he has committed acts of professional misconduct which, in these circumstances, leads to the mandatory revocation of his certificate of registration.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

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 penalty proposed is mandatory in these circumstances and has been agreed to by both parties. There is, therefore, no basis on which the Panel could properly reject the Joint Submission on Order. Accordingly, the Panel accepts the parties’ agreed proposal. Even if the proposed penalty were not mandatory, the Panel would have accepted the parties’ Joint Submission on Order that the penalty as proposed is reasonable and in the public interest.

While the Member has co-operated with the College and reached an agreement on the resolution of this matter with the College, the charges of which the Member has been convicted are serious and the underlying facts, as found by the criminal court, constitute acts which will not be tolerated by this College. The proposed penalty provides specific and general deterrence and is in line with what has been ordered in somewhat similar cases by other discipline panels. The proposed penalty is, therefore, both reasonable and in the public interest.

I, Tanya Dion, RN, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.