College of Nurses of Ontario v. Forero, 2021 ONCNO 153186

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carly Gilchrist, RPN Chairperson Sylvia Douglas Public Member Aisha Jahangir, RN Member Karen Laforet, RN Member Marnie MacDougall Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - ) JORGE FORERO ) NO REPRESENTATION for Registration No. AD049763 ) Jorge Forero ) PATRICIA HARPER ) Independent Legal Counsel ) Heard: October 27, 2021

DECISION AND REASONS

This matter came for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on October 27, 2021, via videoconference.

As Jorge Forero (the “Member”) was not present and was not represented, the hearing recessed for 15 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 the Notice of Hearing on September 23, 2021, by way of an affidavit from [ ], Prosecutions Associate, dated October 20, 2021, confirming that [ ], Prosecutions Clerk sent correspondence, which included the Notice of Hearing, on September 23, 2021 to the Member’s last known address on the College Register.

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 name of the victim, or any information that could disclose the victim’s identity, referred to orally or in any documents presented at the Discipline hearing of Jorge Forero.

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 name of the victim, or any information that could disclose the victim’s identity, referred to orally or in any documents presented at the Discipline hearing of Jorge Forero.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated September 22, 2021 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 an offence relevant to your suitability to practice, as follows:

(a) on or about July 30, 2020, in the Ontario Court of Justice in Brampton, Ontario, you were found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code;

2. 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 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 a charge or charges relating to any offence to the Executive Director of the College of Nurses of Ontario (“CNO”), and in particular, that you were charged with the following offence on or around November 28, 2018:

(a) on or about the 14th day of November, 2018 at the City of Mississauga in the Central-West region you did commit a sexual assault contrary to section 271 of the Criminal Code;

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(18) of Ontario Regulation 799/93, in that, on July 30, 2020, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, in that you failed to report a finding of guilt to the Executive Director of CNO, and in particular, you were found guilty of the following offence, which you did not report:

(a) on or about July 30, 2020, in the Ontario Court of Justice in Brampton, Ontario, you were found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code;

4. 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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in that you failed to report a finding of guilt to the Registrar (being the Executive Director) of CNO, as follows:

(a) on or about July 30, 2020, in the Ontario Court of Justice in Brampton, Ontario, you were found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code; and/or

5. 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, as follows:

(a) On or around November 28, 2018, you were charged with the following offence, which you did not report to the Executive Director of CNO:

i) on or about the 14th day of November, 2018 at the City of Mississauga in the Central-West region you did commit a sexual assault contrary to section 271 of the Criminal Code;

(b) On July 30, 2020, you were found guilty of the following offence, which you did not report to the Executive Director of CNO:

i) on or about July 30, 2020, in the Ontario Court of Justice in Brampton, Ontario, you were found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code.

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 was a Registered Practical Nurse initially registered with the College in 2014. At the time of the incident on November 14, 2018, the Member still held an active registration. The Member was charged with sexual assault contrary to section 271 of the Criminal Code. The Member entered a plea of guilty to the offence and was convicted at a hearing before the Ontario Court of Justice in Brampton, Ontario on July 30, 2020. As set out below, the Panel found the Member to have committed an act of professional misconduct relevant to his suitability to practice nursing. The Panel found that the Member’s conviction of sexual assault contrary to section 271 of the Criminal Code and failure to report the charges related to the offense for three years is fundamentally incompatible with the integrity of the profession. The Member’s certificate of registration was revoked.

The Evidence

College Counsel relied on the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and Section 22.1 of the Evidence Act, R.S.O. 1990, c. E.23 that provided the Panel with the authority to rely upon certified copies of previous court documents as evidence in hearings without witness corroboration.

College Counsel presented uncontested evidence, including the Affidavit of [ ], an investigator at the College, dated October 15, 2021, with exhibits attached thereto. The exhibits included certified copies of the Court proceedings, including final charges and penalties (Exhibits B, C and D) specific to the charge of sexual assault, dated November 28, 2018, the Ontario Court of Justice Indictment, dated December 10, 2018, and the Ontario Court of Justice Decision, dated July 30, 2020 that includes the Member’s admission of guilt, conviction of sexual assault and penalty.

Paragraphs 19-26 of the Affidavit of [the Invesitgator] outlined the College’s Mandatory Reporting process, including the member’s Guide regarding this process, published in February 2018. Members are required to answer five questions when renewing their membership, regardless if they are in a General or Non-Practising Class. The questions specifically ask if the member has been charged with an offence in any jurisdiction and has the member been found guilty of an offence.

The Affidavit of [the Invesitgator], paragraphs 27–32, 35 and 37 confirms that the Member failed to report the charge of sexual assault in 2018, 2019, and 2020 and failed to report a finding of guilt in 2020 to the Executive Director of the College.

Final Submissions

College Counsel submitted that the documents presented establish the Member’s conviction for sexual assault, the victim of which the Member knew while in a position of trust.

The Member’s failure to report the criminal charge and subsequent conviction over a three-year period demonstrates a serious and persistent disregard for his professional obligations.

College Counsel provided the Panel with the following previous decisions with similar examples of professional misconduct pertaining to sexual assault:

CNO v. Daguio (Discipline Committee, 2019): In this case, the member was present and represented at the hearing. The parties settled on an Agreed Statement of Facts which included the acknowledgement that the member was found guilty of three offences including sexual assault contrary to s. 271 of the Criminal Code. The panel found that the member committed professional misconduct under subsection 51(1)(a) of the Health Professions Procedural Code. The penalty included an oral reprimand and revocation of the member’s certificate of registration.

CNO v. Amponsa (Discipline Committee, 2018): In this case, the member was not present nor represented at the hearing. The member was found guilty of sexually assaulting a co-worker contrary to s. 271 of the Criminal Code. The panel found that the member committed professional misconduct under subsection 51(1)(a) of the Health Professions Procedural Code. The penalty included revocation of the member’s certificate of registration.

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), 2(a), 3(a), 4(a), 5(a)(i) and 5(b)(i) of the Notice of Hearing. With respect to allegations 5(a)(i) and 5(b)(i), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel found that the evidence presented established the Member was charged on November 28, 2018 for committing sexual assault contrary to s. 271 of the Criminal Code on November 14, 2018. The Member pleaded guilty and was convicted of this charge on July 30, 2020. Exhibit “B” to the Affidavit of [the] Investigator [ ] sets out the Member’s plea and conviction. The trial judge provided clear reasons for the sentencing decision (Exhibit “D” to the Affidavit of [the] Investigator [ ]).

Allegation 1(a) in the Notice of Hearing is supported by paragraphs 9–11 in the Affidavit of [the Investigator]. The Ontario Court of Justice found the Member guilty of sexual assault and the certified copies of the court proceedings detail the conviction. The Member pled guilty to the sexual assault charge. The charge is relevant to the Member’s suitability to practice, as well as the public’s confidence in the nurse’s suitability to provide safe care.

Allegations 2(a), 3(a) and 4(a) in the Notice of Hearing are supported by paragraphs 27-29 and 31-36 of the Affidavit of [the Investigator], as well as Exhibits “H” and “I” thereto.

Specific to the allegation of professional misconduct in contravening a term, condition or limitation on the Member’s certificate of registration, this evidence demonstrated that the Member failed to report the charge of sexual assault from the date of the charge (i.e. November 28, 2018) to January 15, 2021 and the finding of guilt from the date of conviction (i.e. July 30, 2020) to January 15, 2021, to the Executive Director of the College.

With respect to allegations 5(a)(i) and 5(b)(i), the Member engaged in conduct that would reasonably be regarded by members of the profession to be disgraceful, dishonourable, and unprofessional by not reporting the sexual assault charge from 2018 – 2021 and the sexual assault conviction of July 2020.

The Member demonstrated unprofessionalism by choosing not to adhere to the College’s reporting obligations year-over-year despite clear instructions and directions. The Member was dishonourable when he falsified his record from 2018 – 2021, indicating on his renewal there were not any charges or convictions. The serious and persistent dishonesty and disregard for professional obligation has brought shame to the Member and to the profession making the Member’s conduct disgraceful.

Penalty

Penalty Submissions

College Counsel submitted that, in view of the Panel’s findings of professional misconduct, it should make an Order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

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

Revocation of the Member’s certificate of registration is a mandatory and appropriate penalty established by subsection 51(1)(a) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

Any other decision except to revoke the Member’s certificate of registration would compromise the public’s trust and the integrity of the nursing profession.

Penalty Decision

The Panel accepts College Counsel’s submission and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within 3 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 the Penalty Decision

Revocation of the Member’s certificate of registration as submitted by College Counsel is the appropriate penalty. Furthermore, it is a mandatory penalty.

A Court found the Member guilty of sexual assault. Sexual assault against anyone is a serious misconduct and one that compromises the integrity of the profession. The Member showed a disrespect for the law and breached the trust of the public and the profession.

Further, the Member chose not to adhere to the obligations of the profession to self-report a charge and a conviction thereby compromising the public trust in the nursing profession’s ability to self-regulate.

The objectives of public protection and general deterrence are maintained with this penalty order.

As demonstrated by the cases relied upon by the College, this penalty is consistent with previous decisions of the Committee for similar circumstances.

I, Carly Gilchrist, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.