SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: DR. JEFFREY MILTON SEIDMAN (Appellant) v. THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO (Respondent)
BEFORE: McRAE, DUNNET and PITT JJ.
COUNSEL: Jerome R. Morse for the Appellant Louis Sokolov for the Respondent
HEARD: November 25, 2003
E N D O R S E M E N T
1This is an appeal from the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, dated February 13, 2003, revoking the certificate of registration of the appellant on the ground that he committed acts of sexual and professional misconduct.
2The appellant requests that the decision be set aside and (a) that the revocation of the certificate of registration be replaced with a suspension of a finite length and following the suspension, his certificate be reinstated without conditions or (b) that he be allowed to practice, subject to the conditions currently in place and a reprimand be recorded by the Registrar.
3This case involves the sexual abuse over several years of a 15 year old girl by a 38 year old doctor. The child had a serious history of sexual abuse, which was known to the doctor, and she attempted suicide while in his care. The doctor continued to be her physician during the time that he, by his own admission, carried on with conduct that was inappropriate.
4Counsel for the respondent concedes that the appellant was suffering from a mental disorder, but submits that this does not explain his behavior throughout the relevant time.
5At the outset of the hearing before the committee, counsel for the appellant stated that although it was open to the committee to consider a penalty less serious than revocation, he would have to overcome a “hurdle” to persuade them that any penalty other than revocation was appropriate.
6The committee accepted the very serious consequences set out in the victim impact statement and found the defence experts to be generally credible. The committee found, however, that the appellant had not disclosed pertinent factors to some of the experts, which rendered their evidence unhelpful.
7The committee then considered aggravating factors, including the age of the patient, the length of the period of sexual abuse, the nature of the sexual relationship, his knowledge of her vulnerability, the fact that he continued to provide psychotherapy notwithstanding the sexual relationship, that he pressed her into remaining silent and failed to accept full responsibility for his actions.
8The committee identified the character references as a mitigating factor and weighed them against the aggravating factors in concluding that the penalty of revocation would ensure the adequate protection of the public and the integrity of the profession.
9Counsel for the appellant submits that (a) the committee’s findings were not reasonably supported by the evidence of the defence experts; (b) the committee failed to give appropriate weight to the character evidence; and (c) the penalty imposed was unduly harsh.
10Since the decisions of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No 17 and Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18, we accept that the appropriate standard of review is reasonableness simpliciter, given the broad right of appeal, the absence of a privative clause and the expertise of the tribunal in assessing the medical and other evidence governing the imposition of a proper remedy.
11The appropriateness of a penalty engages the heart of the expertise of the tribunal, although section 70(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 vests in the court the duty to supervise. As was noted by Lane J. in Gale v. College of Physicians and Surgeons (Ontario) (10 October 2003), (Ont. Div. Ct.) [unreported] at para. 32:
… The question that we must ask ourselves is whether the Committee, in assessing credibility, finding the facts, applying the standard of proof (clear and cogent evidence) to those facts and formulating an appropriate remedy, acted unreasonably. The issue is not whether we would have done what they did. It is whether what they did is reasonably supported by reasons based on evidence and which can bear a somewhat probing examination.
12The committee determined that the medical evidence did not support the inference urged by the appellant that his judgment was so impaired during the period 1992 to 1994 so as to account for and excuse the ongoing sexual relationship with his adolescent patient. In addition, the appellant possessed sufficient judgment to protect his own interest by concealing a relationship that he knew to be wrong.
13The appellant called several expert witnesses. The refers refer to Dr. Umesh Jain incorrectly as a psychologist and not a psychiatrist. We are of the view that this may well be a typographical error. Regardless, we have not been persuaded that the committee discounted or inaccurately recorded Dr. Jain’s evidence.
14The appellant failed to disclose pertinent information to Dr. Peter Collins and Dr. Ron Langevin. As a result, any assistance their evidence could have provided to the committee was substantially undermined. Further, the appellant’s conduct in talking to himself throughout the phallometric testing diminished the accuracy of the results.
15Counsel for the appellant concedes that the appellant’s conduct was egregious and had tragic repercussions for a vulnerable adolescent. He relied on a number of cases, including College of Physicians and Surgeons (Ontario) v. Boodoosingh (1990), 1990 6686 (ON SC), 73 O.R. (2d) 478 (Div. Ct.), affirmed at (1993), 1993 8655 (ON CA), 12 O.R. (3d) 707 (C.A.); College of Physicians and Surgeons (Ontario) v. Gillen, (1990), 1990 6710 (ON SC), 1 O.R. (3d) 710 (Div. Ct.) affirmed at (1993), 1993 8641 (ON CA), 13 O.R. (3d) 385 (C.A.); Comeau (Re), [2001] O.C.P.S.D. No. 4 (O.C.P.S.D.C.) and Lazare (Re), [1999] O.C.P.S.D. No. 9 (O.C.P.S.D.C.). These cases can be distinguished on their facts from the present case.
16In dealing with whether a penalty imposed by this tribunal is harsh and unreasonable, the Divisional Court has held:
The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee. See Takahashi v. College of Physicians and Surgeons (Ontario) (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353 at para. 29.
17The committee heard three days of evidence and analyzed the evidence in their decision. They balanced the overwhelming aggravating factors and minimal mitigating factors within the ambit of their expertise. The committee obviously took into account that this was not a single act of poor judgment. We are of the view that the committee’s findings and the penalty imposed were reasonably supported by the evidence.
18In his submissions, counsel for the appellant likened the penalty to “capital punishment” of the medical profession. In that regard, we reiterate the words of O’Driscoll J. in Warnes v. College of Physicians and Surgeons of Ontario, [1992] O. J. No. 3748 (Div. Ct.):
We do not agree with counsel for the appellant that a Professional death sentence has been pronounced. It will be up to the appellant to show the College, (if, as and when he does so) that he is fit to accept the onerous duties, the onerous trust and the onerous responsibilities undertaken by a person licenced as a physician and surgeon in the Province of Ontario. The future of the appellant’s medical life lies with him and with any committee to which he may apply. … I can do no better than echo the words of Mr. Justice Grange when he was a member of this Court in the case of Re Pettit and College of Nurses of Ontario (1978), 2 L.Med.Q. 137, 138, where he said:
We take some comfort from the fact that this revocation of licence is not permanent.
He said: “not permanent”; we say: “not necessarily permanent”.
19Indeed at the conclusion of its findings, the committee addressed the criteria to be expected from the appellant should he apply in the future to reinstate his certificate.
20For these reasons, the appeal is dismissed with costs payable to the respondent and fixed at $7000.
RELEASED:
DUNNET J.