DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Dawn Cutler, RN Chairperson Andrea Arkell Public Member Neil Hillier, RPN Member Mary MacNeil, RN Member Lalitha Poonasamy Public Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO ALYSHA SHORE for College of Nurses of Ontario
- and -
JODY MACDONALD Registration No. AA805594 NO REPRESENTATION for Jody MacDonald
CHRISTOPHER WIRTH Independent Legal Counsel
Heard: March 22, 2021
DECISION AND REASONS
This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on March 22, 2021, via videoconference.
As Jody MacDonald (the “Member”) was not present, the hearing recessed for fifteen minutes to allow time for the Member to appear. Upon reconvening, the Panel noted that the Member was not in attendance.
College Counsel provided the Panel with evidence that the Member had been sent three Notices of Hearing on February 24, 2021 by way of an affidavit from [College Staff Member], Prosecutions Clerk, dated March 12, 2021. The affidavit indicated that a skip trace had been requested by [College Staff Member] but that it failed to identify a current address or active telephone number for the Member and that in the absence of a current address or active telephone number, [College Staff Member] sent correspondence, which included all three Notices of Hearing, on February 24, 2021 to the email address associated with the Member’s College membership record.
The Panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing and of the fact that if he did not participate in the hearing, it may proceed without his participation. Accordingly, the Panel decided to proceed with the hearing in the Member’s absence.
Publication Ban
College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing the public disclosure and banning the publication or broadcasting of the names, or any information that could disclose the identities, of the victims named in the criminal proceedings referred to orally or in any documents presented in the Discipline hearing of the Member.
The Panel considered the submissions of College Counsel and decided that there be an order preventing the public disclosure and banning the publication or broadcasting of the names, or any information that could disclose the identities of the victims named in the criminal proceedings referred to orally or in any documents presented in the Discipline hearing of the Member.
The Allegations
College Counsel advised the Panel that the College was requesting that the allegations in the first Notice of Hearing (Exhibit 1), dated February 23, 2021, be adjourned sine die and for leave to withdraw the allegations set out in paragraphs 2(a), 4(a) and 5(b)(i) in the second Notice of Hearing (Exhibit 2) dated February 23, 2021. The Panel granted these requests. The remaining allegations against the Member in the second Notice of Hearing are as follows:
IT IS ALLEGED THAT:
- 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 December 13, 2019, in the Ontario Court of Justice in Kingston, Ontario, you were found guilty of an offence relevant to your suitability to practice as follows:
(a) Between the 15^th^ day of May in the year 2018 and the 22^nd^ day of November in the year 2018 at the City of Kingston in the East Region did, without lawful excuse, possess child pornography, contrary to section 163.1(4) of the Criminal Code of Canada; and/or
(a) [Withdrawn]; and/or
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(18) of Ontario Regulation 799/93, in that, in or around November 2018, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1. (ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of CNO, and in particular, that you were charged with the following offences on or around November 22, 2018:
(a) Between the 15^th^ day of May in the year 2018 and the 22^nd^ day of November in the year 2018 at the City of Kingston in the East Region did, without lawful excuse, possess child pornography, contrary to section 163.1(4) of the Criminal Code of Canada;
(b) Between the 15^th^ day of May in the year 2018 and the 22^nd^ day of November in the year 2018 at the City of Kingston in the East Region did, without lawful excuse, access child pornography, contrary to section 163.1(4.1) of the Criminal Code of Canada; and/or
(a) [Withdrawn]; and/or
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 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, in that you failed to report charges and/or a finding of guilt to the Executive Director of CNO, as follows:
(a) On or around November 22, 2018, you were charged with the following offences, which you did not report:
i. Between the 15^th^ day of May in the year 2018 and the 22^nd^ day of November in the year 2018 at the City of Kingston in the East Region did, without lawful excuse, possess child pornography, contrary to section 163.1(4) of the Criminal Code of Canada;
ii. Between the 15^th^ day of May in the year 2018 and the 22^nd^ day of November in the year 2018 at the City of Kingston in the East Region did, without lawful excuse, access child pornography, contrary to section 163.1(4.1) of the Criminal Code of Canada; and/or;
(b) i. [Withdrawn].
College Counsel also advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraph 1(b) in the third Notice of Hearing (Exhibit 3) dated February 23, 2021. The Panel granted this request. The remaining allegations against the Member in the third Notice of Hearing are as follows:
IT IS ALLEGED THAT:
- 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, and defined in subsection 1(37) of Ontario Regulation 799/93, in that 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, and in particular, in March 2019 you breached an undertaking given to a Justice, for which you were found guilty contrary to the Criminal Code of Canada as follows:
(a) 1 count of failing to comply with a condition of an undertaking, contrary to section 145(3) of the Criminal Code of Canada, specifically not possess or use any computers or any other device that has access to the internet, except for work or educational or vocational programs; and/or
(b) [Withdrawn]
Member’s Plea
Given that the Member was not present nor represented, he was deemed to have denied the allegations in the Notices of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notices of Hearing against the Member.
Overview
The Member was a Registered Practical Nurse at Providence Care Hospital in Kingston, Ontario who was charged with possessing and accessing child pornography on November 22, 2018. The Member failed to report the charges to the College. The Member was later found guilty of possessing child pornography on December 13, 2019. In March 2019, the Member failed to comply with an undertaking given to a Justice to not possess or use any computers with access to the internet, for which he was subsequently found guilty, contrary to section 145(3) of the Criminal Code of Canada.
[The Witness], a College Investigator, was the sole witness called to provide evidence related to the charges and the Member’s findings of guilt. The Panel considered the Member’s findings of guilt and the statutory obligations of members to report charges and found the Member committed professional misconduct as provided by subsection 51(1)(a) and 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991. Additionally, the Panel found that the Member’s failure to report the charges and his breach in March 2019 of his undertaking given to a Justice for which he was found guilty contrary to section 145(3) of the Criminal Code of Canada, constituted conduct that would be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.
The Evidence
[The Witness] was the only witness called. [The Witness] is employed by the College as an Investigator to assess and collect information relevant to allegations against members. The College was notified of charges against the Member and [the Witness] was assigned to investigate.
[The Witness] identified the registration history for the Member (Exhibit 5) showing an Administrative Suspension of the Member beginning February 20, 2019 and expiration of his certificate of registration on March 22, 2019.
[The Witness] identified a certified copy of the Court Information document for the charges against the Member (Exhibit 6) which established that the Member was charged on November 22, 2018 with accessing and possessing child pornography between May 15, 2018 and November 22, 2018. [The Witness] testified that the Member did not report these charges to the College. This document also demonstrated that the Member was released from custody on February 4, 2019 upon his giving an undertaking to a Justice.
[The Witness] identified a Transcript of the Member’s Guilty Plea dated December 13, 2019 which demonstrated that the Member admitted to and was found guilty of possessing child pornography contrary to section 163.1(4) of the Criminal Code of Canada (Exhibit 7). [The Witness] testified that the Member did not report this finding of guilt to the College.
[The Witness] identified a copy of an Adult Probation Order dated December 13, 2019 indicating the Member’s terms of probation (Exhibit 8). Included in the terms of probation was a requirement that he would not use computers or other devices to access content on the internet that violates the law; directly or indirectly access any social media sites, social network, internet discussions forum or chat rooms or maintain a personal profile on any such service.
[The Witness] identified a certified copy of the Court Information documents for three charges against the Member dated September 6, 2019 (Exhibit 9) for failing to comply with an undertaking given to a Justice from March 3, 2019 until August 30, 2019. [The Witness] testified that these charges were not reported to the College by the Member.
[The Witness] identified a Transcript of the Member’s Guilty Plea dated September 10, 2020 (Exhibit 10) whereby he plead guilty to the three charges related to his failure to comply with his undertaking given to a Justice. [The Witness] testified that the Member’s guilty plea and findings of guilt were not reported to the College.
Final Submissions
With respect to allegation 1(a) in the second Notice of Hearing, College Counsel asked for a finding of professional misconduct pursuant to subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32 (the “Code”) as the Member was found guilty of an offence that is relevant to his suitability to practice. College Counsel submitted that the Panel should find nothing controversial in the evidence submitted by [the Witness] which clearly indicated that the Member pled guilty to and was found guilty of possessing child pornography contrary to section 163.1(4) of the Criminal Code of Canada which is an offence clearly relevant to his suitability to practice.
College Counsel submitted the following decision of this Committee where similar findings of professional misconduct had been made:
CNO v. Chaif (Discipline Committee, 2014). The member was found guilty of possessing child pornography contrary to section 163.1(4) of the Criminal Code of Canada. The panel found the charges were relevant to the member’s suitability to practice and made a finding of professional misconduct stating that “possessing and making available child pornography is inherently exploitive of underage individuals and is incompatible with the healing and caring nature of the profession”.
College Counsel submitted that the Member’s possession of child pornography also took place while he was registered with the College and that the Discipline Committee has jurisdiction to make a finding concerning him despite the Member’s guilty plea and the finding of guilt to the criminal offence having been made after his registration had expired. College Counsel reviewed the following relevant cases supporting this submission:
CNO v. Dumchin (Divisional Court, 2016 ONSC 626). This was a Divisional Court decision related to the jurisdiction the College has over members who have resigned their registration with the College. The Court recognized that the overriding duty of the College is to protect the public interest. The Court also recognized that Discipline Committees have jurisdiction to make findings that extend to both members and former members provided that the conduct occurred while the person was a member.
College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Lannard (Discipline Committee, 2019). The member was found guilty of sexual assault. The registration of the member was revoked at the time of the hearing but the conduct occurred while the member was registered. The member had been found guilty in criminal court and the Discipline Committee found that the conduct constituted professional misconduct.
In summary, College Counsel submitted it would be absurd to not find that the Member committed professional misconduct just because his guilty plea and finding of guilt occurred after his certificate of registration had lapsed.
With respect to allegations 3(a) and (b) in the second Notice of Hearing, the failure to report charges, the Member was an active member of the College when the charges for accessing and possessing child pornography were laid on November 22, 2018 (Exhibit 6). The Nursing Act, 1991, Ontario Regulation 275/94 s. 1.5(1)1.(ii) states that members shall provide to the College details of charges arising in any jurisdiction relating to any offence. The Member failed to comply with this regulation.
With respect to allegations 5(a)(i) and (ii) in the second Notice of Hearing, College Counsel submitted that the Member committed acts of professional misconduct that were disgraceful, dishonourable and unprofessional, when he failed to report the criminal charges which is an inherent understanding and obligation that all members of the College must comply with. The self-reporting of charges is also a necessary component of being a self-regulated professional. The Member’s failure to report his charges was dishonest and deceitful and showed a moral failing. The Transcript of Guilty Plea dated December 13, 2019 (Exhibit 7) indicated that the Member had in his possession 235 images and 51 videos of child pornography. This activity brought harm to children and showed a complete disregard to care and nurture the public. The conduct also brought shame on the profession.
College Counsel submitted the following case to the Panel to support her submission:
CNO v. Barrow (Discipline Committee, 2020). The member was found guilty of criminal charges and also failed to report the charges and findings of guilt. The panel agreed that the member was under an obligation to report criminal charges to the College as a condition of his certificate of registration and found the member committed acts of professional misconduct that were disgraceful, dishonourable and unprofessional.
With respect to allegation 1(a) in the third Notice of Hearing, College Counsel submitted that the Member committed an act of professional misconduct when he breached an undertaking given to a Justice for which he was found guilty, while still registered with the College. The breach took place beginning March 3, 2019 when he used the internet to log onto a dating site to begin a romantic relationship. The terms of the undertaking prohibited the Member from using devices to access the internet in this way. As well, the breach took place in early March 2019 while the Member was still registered with the College. College Counsel submitted that breaching an undertaking given to a Justice was deceitful and dishonourable and casts doubt on the Member’s moral fitness and the ability of the Member to be governed. College Counsel submitted that the Member’s conduct was disgraceful, dishonourable and unprofessional.
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 at paragraphs 1(a), 3(a), (b), 5(a)(i) and (ii) of the second Notice of Hearing and paragraph 1(a) of the third Notice of Hearing. As to allegations 5(a)(i) and (ii) in the second Notice of Hearing and allegation 1(a) in the third Notice of Hearing, the Panel finds that the Member engaged in conduct that would reasonably be regarded as disgraceful, dishonourable and unprofessional.
Reasons for Decision
With regard to allegation 1(a) in the second Notice of Hearing, the court documents clearly established that on December 13, 2019, the Member was found guilty of, without lawful authority, possession of child pornography between May 15, 2018 and November 22, 2018, contrary to section 163.1(4) of the Criminal Code of Canada. As held by this Committee in CNO v. Chaif, this conduct is clearly relevant to the Member’s suitability to practice and the Panel recognized the statutory requirement in section 51(1) of the Code to make a finding of professional misconduct when a member has been found guilty of an offence that is relevant to their suitability to practice. Further, the Panel accepted College Counsel’s argument that it has jurisdiction over the Member as the Divisional Court in Dumchin had found that Discipline Committees have jurisdiction over former members provided the alleged conduct occurred while the person was a member. In the Panel’s view, the Code must be interpreted in a manner to ensure protection of the public and it would lead to an absurd result not to find that it has jurisdiction over the Member just because his guilty plea and finding of guilt occurred after his certificate of registration had lapsed when his underlying conduct occurred while he was a member of the College.
With regard to allegations 3(a) and (b) in the second Notice of Hearing, the Panel makes a finding of professional misconduct. By not reporting his criminal charges to the Executive Director of the College after he was charged on November 22, 2018, the Member contravened the terms, conditions and limitations imposed on his certificate of registration by s. 1.5(1)1. (ii) of Ontario Regulation 275/94 which requires members to report charges to the College.
With regard to allegations 5(a)(i) and (ii) in the second Notice of Hearing and allegation 1(a) in the third Notice of Hearing, the Panel found the Member’s conduct to be disgraceful, dishonourable, and unprofessional. The Member’s conduct that lead to a finding of guilt contrary to section 163.1(4) of the Criminal Code of Canada, was clearly relevant to the practice of nursing. By failing to report his original criminal charges and finding of guilt and then by breaching his undertaking given to a Justice not to possess or use any computers or any other device that has access to the internet, except for work or educational or vocational work, for which he was found guilty contrary to section 145(3) of the Criminal Code of Canada, the Member exhibited a flagrant disregard for professional obligations. The Member’s conduct lacked judgement, was deceitful, dishonest and showed a complete lack of moral fitness to discharge the higher obligations the public expects from nurses. The Member’s behaviour also encouraged and provided opportunity for children to be assaulted and exploited; a violation of the principles and values of the nursing profession that provides care to and keeps safe those who are most vulnerable.
Penalty
Penalty Submissions
College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an Order as follows:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
Directing the Executive Director to immediately revoke the Member’s certificate of registration.
College Counsel submitted that the preeminent duty of the College is to protect the public, maintain confidence in the profession and ensure the penalty provides general as well as specific deterrence.
An aggravating factor in this case was the criminal nature of the conduct. The Member had in his possession a large volume of images and videos related to child pornography. Further, following the charges, the Member continued to engage in criminal acts and thereby breached his probation. The Member’s conduct was severe in nature and brought shame to himself and the profession.
The only mitigating factor was that the Member had no prior discipline history with the College but any other mitigating factors are unknown due to his non-participation during the investigation or the hearing proceedings.
The proposed penalty meets the goals of public protection, as well as specific and general deterrence ensuring that the Member will not practice again. College Counsel reviewed s. 51(5.2) of the Health Professional Procedural Code and submitted that it requires revocation of a member’s certificate of registration when a member has been found guilty of an offence relevant to suitability to practice and that offence is pursuant to s. 163.1(4) of the Criminal Code of Canada.
College Counsel also submitted the same two cases as earlier provided to the Panel, to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee.
CNO v. Barrow (Discipline Committee, 2020). In this case, the member was found guilty of sexual interference contrary to section 151(a) of the Criminal Code of Canada. The hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The penalty was an oral reprimand and revocation of the member’s certificate of registration.
CNO v. Chaif (Discipline Committee, 2014). In this case, the member was found guilty of possessing and making available child pornography. The statutory provisions requiring revocation of the member’s certificate of registration were not in place at the time but regardless, the panel determined revocation of the member’s certificate of registration was nonetheless appropriate in the circumstances.
Penalty Decision
The Panel accepts the College’s Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
The Executive Director is directed to immediately revoke the Member’s certificate of registration.
Reasons for Penalty Decision
The Panel understands the penalty should provide for protection of the public, as well as specific and general deterrence. The Panel also understands the statutory obligation for mandatory revocation of the Member’s certificate of registration when he has been found to have committed professional misconduct for having been found guilty of an offence and the criminal offence was possessing child pornography contrary to section 163.1(4) of the Criminal Code of Canada. With revocation of the Members certificate of registration, the public is protected as the Member will not practice again. The penalty is also appropriately severe and therefore provides specific as well as general deterrence to members of the profession. The penalty is also in line with what has been ordered in previous cases.
I, Dawn Cutler, 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.