CITATION: Sliwin v. College of Physicians and Surgeons, 2017 ONSC 1947

DIVISIONAL COURT FILE NO.: 167/15

DATE: 20170327

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, SACHS and LOCOCO JJ.

B E T W E E N :

DR. SAMMY JOE SLIWIN

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Marie Henein and Matthew Gourlay

for the Appellant

Elisabeth Widner and Amy Block

for the Respondent

HEARD at Toronto: June 28, 2016

AMENDED JUDGMENT

THEN J.:

A. Nature of the Proceeding

1The applicant appeals to this court pursuant to s. 70(1) of the Health Professions Procedural Code (the "Code") that is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the "Act"), from the orders of the Discipline Committee (the "Committee") of the College of Physicians and Surgeons of Ontario (the "College") dated September 11, 2013 (the "Merits Decision") and April 1, 2015 (the "Penalty/Stay Decision"). The Committee found that the appellant committed professional misconduct by engaging in sexual abuse with a patient and subsequently revoked his license to practice medicine as mandated by the Code. The Committee rejected the constitutional challenge to the mandatory revocation provisions of the Code as well as the defence of officially induced error and also refused to stay the proceedings on the basis of the conduct of the College and in particular of the Registrar.

2The appellant seeks an order from this Court allowing the appeal and granting a stay of proceedings or in the alternative imposing a lesser penalty.

3In my view, the appeal must be dismissed for the reasons that I will elaborate.

background

(1) Relationship between Dr. Sliwin and C.H.

4The appellant, Dr. Sliwin, is a plastic surgeon who practices at this own private facility, the Forest Hill Institute of Aesthetic Plastic Surgery (the “Clinic”), and also has an office at Scarborough Hospital.

5The allegations against Dr. Sliwin arise out of his relationship with C.H. who, at various times between 1992 and 2008, was in Dr. Sliwin's employ, his patient, and in an intimate relationship with him.

6In order to appreciate the nature of the relationship between Dr. Sliwin and C.H. and in particular the timing of their sexual encounters in terms of the status of C.H. as a patient, it is necessary to outline the employment, medical and intimate relationship between them in some detail.

7Dr. Sliwin and C.H., accompanied by their spouses, met at a party at the invitation of mutual friends in 1988.

8In 1992, when Dr. Sliwin was in the process of setting up his private cosmetic surgery facility, C.H. applied for and obtained a job as his receptionist. C.H. described her working relationship with Dr. Sliwin as "not very good", testifying that he was hard on her and made her feel incompetent.

9In December 1992, Dr. Sliwin performed surgery on C.H.'s right ear (setback otoplasty) (the "1992 procedure"). Approximately two years later, a minor revision of the surgery was required and was performed by Dr. Sliwin (the "1994 follow-up").

10In 1995, C.H. ended her employment because of prohibitive child care costs and remained at home until 1997 when she commenced working at the office of two family practitioners.

11In January 1997, while no longer in his employ, C.H. saw Dr. Sliwin for a consultation with respect to her suitability for a laser refinishing procedure on her lower eyelids. Dr. Sliwin advised she was not suitable for this procedure and instead required cosmetic eyelid surgery (surgical blepharoplasty). C.H. elected not to proceed with surgery at that time (the "1997 consultation").

12In November 2000, C.H. applied for and obtained a position as office manager for Dr. Sliwin's practice. C.H. said the working atmosphere was much lighter and less intimidating than during her prior employment at the Clinic, testifying that Dr. Sliwin was more easy-going and would socialize or flirt with office staff. During her work as an office manager, C.H. and Dr. Sliwin regularly commuted together between the Clinic and the Dr. Sliwin's hospital office. Their personal relationship evolved.

13On March 8, 2001, Dr. Sliwin and C.H. had their first sexual encounter consisting of sexual intercourse. They both testified they regarded this as a "one-time thing", but their mutual attraction remained strong and the encounters continued. C.H. kept track of the sexual relations on her calendar.

14On March 16, 2001, Dr. Sliwin performed breast enlargement surgery (bilateral augmentation mammoplasty) on C.H. at his Clinic (the "2001 procedure"), with follow-ups until April.

15C.H. testified that Dr. Sliwin told her that, if she proceeded with the breast augmentation, they could no longer be intimate. However, the sexual relationship between Dr. Sliwin and C.H. resumed about two weeks after the surgery (in March or April) and continued throughout 2001. The frequency of sex was intermittent, taking place a few times per week or month or sometimes not taking place for months.

16There is no record of sexual encounters during the first eight months of 2002. C.H. left her marriage in 2002 and was divorced sometime thereafter.

17On March 8, 2002, Dr. Sliwin performed a cosmetic eyelid surgery (bilateral lower blepharoplasty) on C.H. at his Clinic. On June 21, 2002, Dr. Sliwin gave C.H. two different filler injections in her upper lip (the "2002 procedures").

18There is a record of sexual encounters in September, October and November 2002. Throughout 2003 and 2004, sexual encounters took place three to four times per month, with some gaps.

19On April 8. 2004, Dr. Sliwin performed a procedure relating to C.H.'s breast augmentation, releasing scar tissue (bilateral capsulotomies) and replacing the saline implants with gel implants, at the Scarborough Hospital (the "2004 follow-up"). C.H. had signed a consent form for the procedure on March 1, 2004, and a physical examination was conducted between March 31 and April 5, 2004. On April 13 and 14, 2004, Dr. Sliwin and C.H. had intercourse.

20The sexual relationship was ongoing throughout 2005. In May 2005, Dr. Sliwin gave C.H. Botox injections (the "2005 procedure").

21In late summer of 2005, C.H. believed Dr. Sliwin contemplated leaving his wife. He moved out of his home and rented an apartment, but moved back in with his wife a month later. C.H. found this upsetting and decided to leave her job. In November 2005, C.H. left Dr. Sliwin's employ and got a job working for another plastic surgeon.

22In March 2006, C.H. resumed working for Dr. Sliwin doing typing after hours to earn extra income. The sexual relationship likewise resumed and became even more clandestine, usually occurring when Dr. Sliwin visited the office after hours.

23The sexual relationship was ongoing throughout 2006 and 2007, with decreasing frequency.

24On June 29, 2007, Dr. Sliwin performed a facelift on C.H. at his Clinic (the "2007 procedure"). Dr. Sliwin and C.H. had intercourse before and after this procedure on June 21, 2007.

25In September 2007, Dr. Sliwin and C.H. had their final sexual encounter. C.H. testified that the relationship "ended badly" and that Dr. Sliwin was abusive and cold. She continued typing for Dr. Sliwin for several months but did not interact with him in person.

26On August 13, 2008, Dr. Sliwin performed a procedure relating to C.H.'s breast augmentation, releasing scar tissue and replacing the right breast implant (the "2008 follow-up").

27C.H. was not charged for any of the procedures and Dr. Sliwin assumed the cost of paying the anesthetist and other operating room personnel. Though not her family doctor, Dr. Sliwin made medical referrals, ordered tests and x-rays, and prescribed medications for C.H. Dr. Sliwin testified that standard patient procedure was followed with respect to C.H.'s operations -consultation, workup, operative procedure, and follow-up – with the sole exception that follow-up may have been informal as he saw her nearly every day at the office.

28In 2008 C.H terminated the employment relationship and commenced a civil suit against Dr. Sliwin that was ultimately settled. On the advice of her counsel, C.H. also filed a complaint with the College. The complaint by C.H. resulted in allegations being brought before the Discipline Committee alleging that Dr. Sliwin committed professional misconduct (1) under s.51(1)(b.1) of the Code, by engaging in sexual abuse of a patient, and (2) under para. 1(1)33 of O. Reg. 856/93 made under the Medicine Act, 1991, S.O. 1991, c.30, by engaging in conduct relevant to the practice of medicine regarded by members of the profession as disgraceful, dishonourable, and unprofessional.

C. RELEVANT STATUTORY PROVISIONS

Health Professions Procedural Code as Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18

Sexual abuse of a patient

1.(3) In this Code"sexual abuse" of a patient by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the patient. 1993, c. 37, s. 4.

Exception

(4) For the purposes of subsection (3)"sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided. 1993, c. 37, s. 4.

Exception, spouses

(5) If the Council has made a regulation under clause 95 (1) (O.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of "sexual abuse" in subsection (3) do not constitute sexual abuse if,

(a) the patient is the member's spouse; and

(b) the member is not engaged in the practice of the profession at the time the conduct, behaviour or remark occurs. 2013, c. 9, s. 1 (1).

Definition

(6) For the purposes of subsection (5)"spouse", in relation to a member, means,

(a) a person who is the member's spouse as defined in section 1 of the Family Law Act, or

(b) a person who has lived with the member in a conjugal relationship outside of marriage continuously for a period of not less than three years. 2013, c. 9, s. 1 (1).

Statement of purpose, sexual abuse provisions

1.1 The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members. 1993, c. 37, s. 5.

Regulations

95. (1) Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations,

(O.a) providing that the spousal exception in subsection 1 (5) applies in respect of the College; ...

Professional misconduct

51. (1) 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;

(b) the governing body of a health profession in a jurisdiction other than Ontario has found that the member committed an act of professional misconduct that would, in the opinion of the panel, be an act of professional misconduct as defined in the regulations;

(b.0.l) the member has failed to co-operate with the Quality Assurance Committee or any assessor appointed by that committee;

(b.1) the member has sexually abused a patient; or

(c) the member has committed an act of professional misconduct as defined in the regulations.

Orders relating to sexual abuse

51. (5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):

52. Reprimand the member.

53. Revoke the member's certificate of registration if the sexual abuse consisted of, or included, any of the following,

i. sexual intercourse,

ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,

iii. masturbation of the member by, or in the presence of, the patient,

iv. masturbation of the patient by the member,

v. encouragement of the patient by the member to masturbate in the presence of the member.

Statement re impact of sexual abuse

(6) Before making an order under subsection (5), the panel shall consider any written statement that has been filed, and any oral statement that has been made to the panel, describing the impact of the sexual abuse on the patient.

Applications for reinstatement- Time of application, sexual abuse cases

72.(3) An application under subsection (1) [by a person who [sic] certificate has been revoked or suspended as a result of disciplinary proceedings to have a new certificate issued or the suspension removed], in relation to a revocation for sexual abuse of a patient, shall not be made earlier than,

(a) five years after the date on which the certificate of registration was revoked; or

(b) six months after a decision has been made in a previous application under subsection (1). 2007, c. 10, Sched. M, s. 52.

B. The Issues

29This appeal raises several issues which may be posed in the form of the following questions:

1. Did the Discipline Committee err by rejecting the defence of officially induced error?

2. Did the Committee err in concluding that the actions of the College and in particular of the Registrar prior to the hearing before the Committee did not constitute an abuse of process and accordingly did not warrant a stay of proceedings?

3. Did the Committee err in finding that mandatory revocation applies on the facts of this case?

4. Can the Committee or this Court reconsider the decisions of the Court of Appeal on mandatory revocation?

5. Did the Committee err in finding that the mandatory revocation provisions do not infringe s.7 of the Charter of Rights and Freedoms?

C. The Standard of Review

30I agree and it would appear common ground that findings of professional misconduct subject to revocation under the Code are questions of law within the expertise of a professional disciplinary body reviewable on a reasonableness standard and that the decision that the mandatory revocation provisions do not contravene s.7 of the Charter are subject to review on a standard of correctness.

31The appellant submits that the question of whether the facts as found give rise to the officially induced error defence is reviewed for correctness. Abuse of process raises a question of mixed fact and law and accordingly the decision of the Committee is to be reviewed on the standard of correctness with respect to the applicability of legal principles while deference is warranted with respect to its finding of fact and the exercise of its discretion to grant or refuse a stay.

32The respondent submits that the issues raised by the appellant pertaining to the Committee’s decision to reject the defence of officially induced error, and its decision to refuse a stay of proceeding are fact specific and questions of mixed fact and law which attract deference (See: Gale v. College of Physicians and Surgeons of Ontario, 2015 CarswellOnt 4358 (Div. Ct.) at paras. 6-9). With respect to the issue of whether the mandatory revocation regime applied in this case, the respondent submits that deference is presumed where the tribunal is interpreting the Code, its governing statute. Moreover, the standard of correctness applies only to questions of law that are both (1) of “central importance to the legal system” and, (ii) outside the scope of the tribunal’s specialized expertise. (See: Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 S.C.C. 9 at paragraph 45, 53-55, 60, 62-64; A.T.A. v. Alberta Information Authority Inc. 2011 SCC 59, 2011 S.C.C. 59 at paragraph 30; M.A.H.P. v. Nor-Man Regional Health Authority Inc. 2011 S.C.C. 59 at paragraphs 37-39).

33I agree with the respondent that the availability of the defence of officially induced error and whether the conduct of the College constitutes an abuse of process are questions of mixed fact and law in which the specific facts of this case are inextricably wound up with the applicable principles of law and are accordingly not questions which can properly be characterized as “of central importance to the legal system and which fall outside the expertise of the Discipline Committee”. In my view, the Committee’s decision to reject the defence of officially induced error and the exercise of its discretion to refuse a stay of proceedings based on an alleged abuse of process by the College are subject to review on a reasonableness standard.

Issue 1 – Did The Discipline Committee Err By Rejecting The Defence Of Official Induced Error?

34The Supreme Court of Canada in Lévis (City) v. Tétreault, 2006 SCC 12 at paras. 26-27 set out the elements which the accused must establish in order to successfully invoke the defence of officially induced error as follows:

1. an error of law or mixed law and fact was made;

2. the person who committed the act considered the legal consequences of his or her actions;

3. the advice came from an appropriate official;

4. the advice was reasonable (and advice from an appropriate official is presumed to be reasonable unless it appears on its face to be utterly unreasonable);

5. the advice was erroneous; and

6. the person reasonably relied on the advice in committing the act.

35The Committee concluded that the defence was not available to Dr. Sliwin for three reasons: (i) the advice did not come from an appropriate official; (ii) the reliance was unreasonable; and (iii) Dr. Sliwin knew that his conduct was wrong; and it is to those conclusions to which I shall now turn.

36In concluding that the advice was not obtained from an appropriate official the Committee stated the following:

In this case, it was argued that the "appropriate official'' is the College of Physicians and Surgeons. The "advice" consisted of periodic publications of College policies and summaries of discipline cases published in Members' Dialogue, as interpreted by Dr. Sliwin. Dr. Sliwin conceded in his testimony that he made no attempt to confirm his interpretation with any official of the College, by contacting the CMPA or by seeking legal advice. Therefore, to the extent there was any reliance, it was on his own interpretation, rather than on advice that he sought and relied upon. The Committee did not accept that there was reliance by Dr. Sliwin on “advice” from the College that justified his conduct.

37The appellant submits that the Committee erred in finding that the publications and guidelines of the “College” are not “advice” from an appropriate official in circumstances where the College is recognized by the medical body responsible for advice about professional conduct.

38The appellant relies on the opinion of Lamer C.J.C. in R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55 who was prepared to consider the written approval of the film board as “advice” for the purposes of the defence of official induced error. However, in that case the majority of the court did not consider the defence of officially induced error and further, held that approval by a provincial censor board does not constitute a justification or excuse.

39The appellant also relies on the decision of Goulding J. of the Newfoundland Supreme Court in R. v. Ralph where at para. 17 he states:

17 The Appellant, Shawn Ralph demonstrated that he relied on the Administrative Guidelines and that his reliance was reasonable. He had no choice but to rely on the Administrative Guidelines as it was clear that they would apply to him. The Crown states that this defence is not available to the Appellant because he did not actually seek out the advice. I think the Appellant's case for officially induced error is even stronger because the Guidelines were imposed on him by officials responsible for the enforcement of the particular legislation under which he was charged. The Crown took the unusual position at trial, claiming that the Guidelines were irrelevant, a red herring, and did not apply, but that is not consistent with the wording of the Administrative Guidelines.

40Finally, the appellant contends that given his reliance on official College guidelines and documents it was unnecessary to contact any official of the College or to seek legal advice.

41It is the position of the respondent that the Committee did not find that the publications, summaries and guidelines did not constitute “advice”, but rather that the appellant did not rely on this “advice” and instead relied on his own strained interpretation of this “advice”. In other words, the Committee appears to have found as a fact that the respondent did not rely on the actual, unambiguous “advice”, but rather his own view of what the “advice” was, without seeking clarification from an appropriate official of the College or seeking legal advice.

42In my view, whatever interpretation the appellant made of the guidelines and other documents provided by the College does not change the nature of those guidelines or documents as official “advice”. However, his misinterpretation of those guidelines or documents renders his reliance on those documents as advice unreasonable. His failure to seek confirmation of his interpretation from an official of the College or from legal counsel may be a further indication of recklessness or unreasonable reliance, especially in circumstances where, as the College found, the guidelines pertaining to sexual relationships during treatment, the spousal exemption and the treatment of family members are clear and unambiguous.

43The reasoning of the Committee on this point in the end amounts to a determination that the interpretation of the appellant of the College’s “advice” was unreasonable and it is to this second reason for the Committee rejecting the defence of officially induced error to which I shall now turn.

44On the issue of whether the appellant’s reliance on the “advice” was reasonable the Committee stated the following:

The defence of Officially Induced Error also fails, in the opinion of the Committee, on the fifth criteria of reasonableness. Exhibit #25, Tab, 1 contains the CPSO policy on "Physician-Patient Dating'', which Dr. Sliwin testified he consulted when he was seeking guidance as to whether he could resume a sexual relationship with [C.H.] having performed her breast augmentation surgery. This policy of the College is not ambiguous. The policy's very first provision, passed by the Council of the College in May, 1992, reads, ''sexual relationships between doctors and patients during treatment are prohibited." The prohibition against sexual relationships between doctors and patients during treatment cannot be reasonably interpreted for surgeons to mean only the dates on which surgery takes place. Treatment is a broader medical concept that includes the pre­operative and post-operative steps to assess and provide medical services to a patient before and after surgery as described above.

With regard to the argument that Dr. Sliwin was in a "spousal relationship” with [C.H.], this is not a reasonable interpretation of the policy, it is not relevant in light of the case law and in any event, it is not supportable on the facts as found by the Committee. Dr. Sliwin’s view that his conduct somehow fell within the College policy about not treating self or family members, except for minor or emergencies conditions, is without merit. [C.H.] was not a family member or a "spouse" when Dr. Sliwin decided to continue having sex with her after the bilateral augmentation mammoplasty of March 16, 2001. Furthermore, this and the subsequent surgeries he performed on her were neither minor matters, nor emergencies.

45The appellant accepts that the guidelines provided by the College make it clear that “sexual relationships between doctors and patients during treatment are prohibited.” He submits, however, that the Committee’s conclusion that the sexual acts occurred during treatment ignores the fact that the sexual acts occurred prior and subsequent to surgical procedures and, accordingly, ignores the distinction between “sexual abuse” (which the appellant denied committing) and a “boundary violation” (which the appellant conceded).

46The second guideline that the appellant consulted dealt with the treatment of self and close family members. It stated that it was “inappropriate for physicians to diagnose or treat either themselves or family members except for minor or emergency conditions” as this might lead to a loss of objectivity necessary to render reasonable care. The appellant testified that he believed that this guideline applied to his involvement with C.H. and conceded that he was accordingly liable to be sanctioned for a “boundary violation” but not liable to be sanctioned for “sexual abuse”. He acknowledged that by 2002 the policy statement “Drugs and Prescribing – Treating Self and Family Members” indicated that such conduct may constitute professional misconduct. He testified that he understood by 2007 that more than “episodic” treatment of a sexual partner could constitute “sexual abuse”. According to him, his treatments of C.H. were episodic.

47The respondent submits that as the Committee found the policy on sexual relationships with patients is clear and unambiguous. A reasonable surgeon would not consider that this prohibition applied only to the dates on which surgery took place as treatment is a broader medical concept including, in the case of the appellant’s surgical practice, pre and post-operative steps, which, according to the appellant’s evidence, could take place up to one year post-surgery. The Discipline Committee found as a fact that sex occurred within days before and after surgical procedures. The respondent also submits that it was unreasonable for the appellant to interpret his clandestine sexual relationship which was consummated mostly in his office while C.H. was his employee and while he continued to live with his wife as akin to a spousal or family relationship. Indeed, C.H.’s description of her relationship with the appellant was the correct one; she was his mistress. Moreover, it was unreasonable for the appellant to consider the several cosmetic surgeries conducted under full anaesthesia as minor or emergency care or as episodic.

48In my view, based on all the evidence it was both open to and reasonable for the Committee to find that the appellant did not place reasonable reliance on the official “advice” when engaging in sexual intercourse with C.H.

49Finally, the Committee rejected the defence of officially induced error because the appellant knew that what he was doing was wrong. The Committee stated:

Dr. Sliwin knew that what he was doing was wrong. He told [C.H.] at one point that he could not be her doctor if they had a sexual relationship. Dr. Sliwin engaged in conduct that under the Code constituted sexual abuse of a patient. The Committee did not accept that there was erroneous advice from the College or that he reasonably relied on erroneous advice.

50The appellant submits that the Committee failed to appreciate that the defence may not exculpate the appellant completely but may lead to a finding of guilt on a lesser offence, such as a boundary violation.

51The respondent submits that the appellant’s unsupported assertion that the defence of officially induced error may compel a finding of guilt on a lesser offence rather than exculpating the appellant altogether has no legal basis.

52The respondent submits that the defence of officially induced error is an exception to the general rule that ignorance of the law is no excuse, which will result in a stay of proceedings if made out. It is only available in the clearest of cases, to ensure that the morally blameless are excused from being held professionally or criminally responsible for their actions. (See R. v. Jorgensen, supra, at paras. 2, 37). The respondent contends that the defence is not available to someone who has made a calculated decision to engage in conduct he knows to be wrong because he believes that the penalty for the misconduct may not be as severe. The respondent relies on the authorities in the Ontario Superior Court that hold that the defence of officially induced error is only available where the defendant was induced by official advice to conclude that his actions were legally acceptable: (See R. v. Brown 2000 ONCJ 33 at paras. 40-41; R. v. Halloran 2010 ONSC 4321 at paras. 6-9; R. v. Barcalzo 2013 ONSC 6326 at paras. 18-19).

53In my view, in rejecting the defence of officially induced error the Committee could reasonably find and indeed was entitled to find that the appellant knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice. At a minimum, this case does not constitute the clearest of cases. I would not give effect to this ground of appeal.

Issue 2 – Did the Committee err in concluding that the actions of the College and in particular of the Registrar prior to the hearing before the Committee did not constitute an abuse of process and accordingly did not warrant a stay of proceedings?

54It will be necessary to set out the factual background with respect to this issue first in respect of the communications between the College and the CMPA and secondly between C.H. and the College.

55On September 1, 2011, the appellant’s counsel appointed by the Canadian Medical Protective Association (“CMPA”), served a notice of Constitutional Question challenging the constitutionality of the mandatory revocation provisions. This prompted the College’s prosecutor, Ms. Silver, to write to Ms. Stephenson, the appellant’s counsel, and to express the view that the Charter argument was abusive, having already been decided; and that she would bring this to the CMPA’s attention.

56Prior to the commencement of the hearing before the Discipline Committee the Registrar sent an e-mail to the CEO of the CMPA, which provides legal support for the defence of members of the College in disciplinary proceedings. Without identifying the appellant specifically, the Registrar expressed surprise that a CMPA counsel was bringing a constitutional challenge to the mandatory revocation provisions of the Code when such a challenge had already been raised before and rejected by the Ontario Court of Appeal. The Registrar indicated that he would consider seeking costs above the tariff rate against the CMPA. The Registrar invited the CEO of the CMPA to call him back, if he thought it appropriate, to discuss the matter. The CEO indicated by e-mail that he would discuss the matter with CMPA counsel and get back to the Registrar the following week. The CEO of the CMPA called the Registrar to inform him that counsel had already reviewed the matter and that the CMPA had decided not to fund the constitutional challenge but that the appellant could retain his own counsel and appeal the CMPA’s decision. Counsel for the appellant was not apprised of these communications as they were occurring.

57Following the decision of the CMPA, McCarthy Tétrault withdrew as counsel for the appellant on the basis of its contractual arrangements with the CMPA. The appellant’s litigation counsel, Ms. Stephenson, also withdrew because she could not in good conscience represent the appellant without raising the constitutional challenge.

58The appellant retained Sack Goldblatt Mitchell ("SGM") to seek a review of the CPMA decision and an adjournment of the hearing. The appellant was unsuccessful on the review as the CMPA did not change its position. An adjournment of the disciplinary hearing was granted. College counsel informed SGM it would be unlikely to retain SGM again if it acted against the College, and there was concern that representing Dr. Sliwin could be seen as contrary to the duty of loyalty owed to the College as an existing client.

59At the Disciplinary Hearing SGM subsequently informed the College that it had made a business decision not to accept a retainer to represent Dr. Sliwin in order to obtain further work from the College. SGM also agreed with the College that there was a legal concern that accepting a retainer to represent Dr. Sliwin could be contrary to the duty of loyalty the firm owed to the College as an existing client. Subsequently, the appellant retained his present experienced counsel.

60C.H. made two communications to the College after submitting the complaint. First, in response to an information package sent to C.H. by the College pertaining to the referral for discipline, C.H. e-mailed College Investigator Ian Held on June 25, 2009, to express concerns about the use of the term "sexual abuse" as she felt it did not characterize her relationship with Dr. Sliwin. She later called Mr. Held to follow-up. Mr. Held did not make a record of the phone conversation in the investigative file, but did recall speaking to C.H.. He testified before the Committee that, after explaining why the term was used in a complaint as set out in the Code, C.H. did not express further concerns.

61Second, C.H. testified that she phoned the College in May 2011 and told an unknown person that she wished to withdraw her complaint. There is no record of such a call in the investigative file. The investigator on the file at the time was Garry Hickey, who had replaced Mr. Held after his retirement in late November 2010.

62The appellant brought a motion based on abuse of process which he contended should result in a stay of proceedings before the Discipline Committee on a number of bases. First, he argued that the Committee should disqualify itself because the Registrar’s interference with his defence led to a reasonable apprehension of bias on the part of the Committee. Second, he submitted that the Registrar’s e-mail to the CMPA caused the appellant to lose Ms. Stephenson as his counsel of choice. Third, he contended that the interference of College counsel improperly caused SGM to refuse to represent him at the Disciplinary Hearing before the Committee. Finally, he argued that the failure of College staff to disclose the desire of C.H. to withdraw the complaint and her objection to the characterization of her relationship with the appellant as “sexual abuse” prejudiced the appellant.

Findings of the Committee on the Stay Motions

i) Disqualification of Committee

63The Committee rejected the motion that the Committee disqualify itself, which was based on the appellant’s argument that the Registrar has a central role in the College and therefore his interference with the proposed defence of the appellant would raise a reasonable apprehension of bias on the part of the Discipline Committee, which also held a central role in the College. The Committee noted that the Registrar interacts with Committee members only as part of their professional duties. The Committee held that there is no bias or appearance of bias if, as is the case here based on the evidence, the Registrar is not a personal friend of the members of the Committee panel and if he does not discuss the matter with them. The Committee invoked the doctrine of necessity as the interactions between the Registrar and the Committee arise by necessity from the statutory provisions of the Code. It should be noted that the appellant did not seek to disturb this ruling in argument before this court.

The Registrar’s e-mail to CMPA

64The Committee found that the communication between the Registrar and the CEO of the CMPA was reasonable and legitimate in the context of the relationship between the two institutions as it was normal to discuss issues common to both, such as costs. The Committee also found that the communication between the Registrar and the CMPA did not cause the appellant to lose his counsel of choice. Rather, the decision not to fund the constitutional challenge was the independent decision of the CMPA. It was that independent decision that caused the law firm to withdraw because of contractual arrangements and for litigation counsel to withdraw as a matter of conscience.

65More importantly, notwithstanding the communication between the Registrar and the CMPA, the independence of the Disciplinary Committee was not compromised as there is no evidence of any communication by either the Registrar or the CMPA with members of the Committee nor did the Registrar have any role in the adjudication of the allegations against the appellant. Accordingly, the Committee found that the communication did not in any way compromise the fairness or appearance of fairness of the discipline proceeding as the appellant was ultimately allowed to fully advance his constitutional challenge with the assistance of experienced counsel.

66Finally, the Committee found that even if there had been misconduct that amounted to abuse of process, this is not a case where a stay is warranted. The misconduct did not cause unfairness in the discipline hearing; a stay was not necessary to prevent future misconduct and going forward with the discipline hearing would not offend society’s sense of justice.

3. The Withdrawal of SGM as Counsel

67With respect to the communication by College counsel to SGM to the effect that the College would not retain the firm again if it accepted a retainer to act against the College and the expression of concern as to SGM’s duty of loyalty to the College, given that SGM currently represented the College in two matters the Committee held that those communications were appropriate communications between counsel and that the decision to not represent the appellant was taken by SGM both on a business and on a legal basis as SGM also had a concern with respect to their duty of loyalty to the College. The Committee was satisfied that the appellant was not in any way prejudiced as he subsequently retained experienced counsel.

4. Failure of College to Record and Disclose Communications

68Finally, the Committee held that there was no violation of the appellant’s rights to make full answer and defence by the non-disclosure by the College investigators of communications made to them by C.H. The e-mail to Mr. Held in which she expressed her concern with the term “sexual abuse” as a description of her relationship with the appellant was subsequently disclosed to the appellant even though C.H.’s understanding of “sexual abuse” was irrelevant to the disciplinary proceeding. The communication to Mr. Hickey of C.H.’s desire to withdraw her complaint was neither recorded nor disclosed. The Committee held that there was no misconduct in either case as it found that the failure to record or disclose or both was neither wilful nor deliberate and in any case both communications were irrelevant to the disciplinary proceeding as the College had an obligation to proceed notwithstanding the views of the complainant.

69The Supreme Court of Canada in R. v. Babos, 2014 SCC 16, 2014 S.C.C. 16 has established the test for a stay of proceedings where the doctrine of abuse of process is engaged. A stay is only available in the “clearest of cases”, where the conduct is so offensive to the notions of fair play and decency that it will either render the trial proceedings unfair or be harmful to the integrity of the justice system. At paras. 31-32 the test is outlined by Moldaver J. as follows:

31 Nonetheless, this Court has recognized that there are rare occasions -- "the clearest of cases"-­ when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial , or by its outcome" (Regan, at para. 54);

2. There must be no alternative remedy capable of redressing the prejudice ; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

70The Court further explains the issue in each of the stages of the test in paragraphs 34 to 35 and 44 as follows:

34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairness to the accused.

35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

44 Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accused who seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay of proceedings will be "exceptional" and "very rare" (Tobiass at para. 91). But this is as it should be. It is only where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings will be warranted (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667).

71The appellant submits that the Committee erred by approving the Registrar's conduct, discounting the appearance of impropriety, and dismissing the motion for a stay. The College improperly interfered with Dr. Sliwin's right to counsel of choice and to control his own defence and created a reasonable apprehension of bias that, together with other circumstances, amounts to an abuse of process justifying a stay of proceedings in the following manner:

(a) The Committee's appearance of independence from improper outside influence was gravely compromised: the College, through its most senior official who oversees its prosecutorial mandate, committed itself to a view that Dr. Sliwin's central defence was without merit, actively intervened before the CMPA, created an illegitimate pressure to ensure the defence would not be mounted, with the predictable result that Dr. Sliwin would be subjected to the stress and delay of obtaining new counsel, and did so while keeping Dr. Sliwin in the dark about these discussions. The communications crossed the line and cannot be justified as a costs discussion because the CMPA does not pay the costs awarded against a member in a College hearing. Rather the communications were motivated by a desire to avoid the costs of defending the constitutional challenge at the hearing on an issue that the Registrar believed to be without merit. This is analogous to a Crown prosecutor engaging in ex parte communications with Legal Aid Ontario to express a view that a defence is improper and should not be funded.

(b) The College exacerbated the prejudice caused by the Registrar by forcing SGM to make a “business decision" between acting for Dr. Sliwin and foregoing future College retainers or cutting Dr. Sliwin loose, which is unsavory and unfair. Any duty of loyalty by SGM towards the College is balanced against the countervailing interest that a litigant should not be deprived of their choice of counsel without good cause. The College's reliance on this duty was tactical rather than principled – it is commonplace for government bodies to accept that counsel will act both for and against them in unrelated cases;

(c) The College further exacerbated the prejudice by failing to disclose significant communications with C.H.: Mr. Held did not note or disclose C.H.'s expressed opposition to the label "sexual abuse" at the commencement of the investigation in 2009, or her wish to withdraw the complaint in May 2011. This information, though not necessarily determinative or relevant to the College's choice to proceed, was a crucial piece of evidence for the defence, both for potential resolution purposes and as support for the constitutional argument.

(d) The only appropriate remedy is a stay of proceedings, as the appearance of fairness and independence in the proceedings were irreparably compromised by the College’s improper conduct, and granting a stay would not cause any serious concerns about public protection as the conduct was situational and is unlikely to be repeated.

72The respondent submits that the actions and conduct of the College, either individually by the Registrar, by counsel or by staff or cumulatively do not constitute an abuse of process.

73First, it was open to the Registrar to discuss the matter of costs with CMPA in the context of a routine discussion of matters of mutual interest. In his e-mail the Registrar specifically noted that he was open to arguments that the College should not seek costs above the typical rate and indicated in his evidence that he had no illusions that he could dissuade the CMPA from doing what they considered appropriate. Most significantly, there is no evidence that the Registrar’s e-mail to the CMPA had any effect on the CMPA’s independent decision to withdraw funding for the appellant’s constitutional challenge, or that the inquiry within the CMPA was not initiated before that communication and the decision was to withdraw funding independently made before the Registrar and the CEO of the CMPA spoke. Further, the decision of litigation counsel to withdraw was a direct result of the CMPA’s decision, independent of the actions of the Registrar.

74It was open to the appellant to appeal the decision of the CMPA and when the appellant exercised his right to appeal the position of the CMPA to deny funding for the constitutional challenge was upheld.

75Finally, there is nothing connecting the Registrar’s communications with CMPA to the disciplinary proceedings and accordingly the Committee’s independence was not in any way compromised as the Registrar did not discuss any aspect of the case with any of the Committee members.

76Secondly, the College had the right to assert a “duty of loyalty” in withholding its consent for “SGM” to act against it and it was also appropriate for the College to indicate its policy that it would reluctantly not provide work to SGM in the future if SGM took the appellant’s retainer to act against the College at the disciplinary hearing. Moreover, SGM was entitled to make its own business decision not represent the appellant in view of the policy of the College and its own legal assessment that its duty of loyalty to the College (who was an ongoing client) would be compromised.

77In any event, there is no evidence that either the withdrawal of McCarthy Tétrault or SGM or its respective counsel had any bearing on the appellant’s right to a fair hearing before the Disciplinary Committee as he ultimately was represented by experienced counsel who manifestly advanced a full defence including the constitutional challenge and who was granted an appropriate adjournment to prepare.

78Thirdly, the respondent submits that the alleged failure of the College investigators to record and disclose communications with the complainant C.H. had no impact on the disciplinary proceedings. Her objection to the characterization of her relationship with the appellant as “sexual abuse” was disclosed to counsel for the appellant. In any event her views on this issue as well as her attempt to withdraw the charge against the appellant were canvassed before the Committee, who correctly found her views irrelevant, either to the continuation of the proceeding or to the legal issues therein.

79Finally, the College contends that even if the conduct of the College engaged the abuse of process doctrine, a stay is not appropriate in this case. First, the appellant’s right to a fair hearing was not impaired and no unfairness was perpetrated by the hearing. Secondly, the public interest in adjudicating sexual abuse allegations far outweighs any alleged harm to the integrity of the justice system.

80In my view, as in the decision of the Supreme Court in Babos, supra, the impugned conduct of the Registrar did not prejudice the fairness of the hearing, but it did risk undermining the integrity of the discipline process. However, as in Babos, I am of the view that, while the conduct of the Registrar was inappropriate, it was not egregious enough to outweigh society’s interest in having a final decision on the merits with respect to a serious allegation of sexual abuse under the Code.

81In my view, the Committee erred in characterizing the communication by the Registrar as a benign interchange between the College and the CMPA concerning the potential liability of the CMPA for costs should the constitutional challenge fail as it is clear that only the appellant would have been liable for such costs. Rather, the e-mail from the Registrar was a carefully veiled, albeit unsuccessful, attempt by the Registrar to have the CMPA review its funding for the constitutional challenge, which the Registrar believed had no merit so as to minimize the College’s costs with respect to the disciplinary proceeding.

82While the concern of the Registrar as to its costs of defending against arguments which in his view are completely devoid of merit is understandable, the appellant was entitled to advance its case without interference from the Registrar, whether his defences had merit or not. The analogy of the prosecution in a criminal case approaching legal aid to offer the opinion that funding should not be available for defences with which the prosecution disagrees is apt.

83Nevertheless, in my opinion the conduct of the Registrar did not prejudice the fairness of the trial. There is no evidence that the e-mail had any influence on the independence of the decision of the CMPA to not fund the constitutional challenge and indeed the evidence of the CMPA is that the decision was completely independent. Both the appellant and the CMPA invoked privilege over their discussions about the funding of the constitutional challenge. Moreover, the appellant exercised his right to appeal the decision of the CMPA and the decision was upheld. In my view, it was open on the evidence and reasonable for the Committee to find that the decision of the CMPA was an independent decision, free of any taint from the communications of the Registrar.

84I am also of the opinion that the fairness of the trial was not prejudiced by any loss by the appellant of counsel of choice resulting from the actions of the Registrar. Once it is accepted that the decision not to fund the constitutional challenge was taken independently by the CMPA, it follows that the decision of McCarthy Tétrault to withdraw because of its contractual arrangements with the CMPA and that of litigation counsel associated with the firm to withdraw because she could not proceed in good conscience without advancing the constitutional challenge is attributable solely to the decision of the CMPA and not to the Registrar’s actions.

85With respect to the refusal of “SGM” to accept the appellant’s retainer to represent him at the disciplinary hearing, I agree with the submission of the respondent that it was not inappropriate and indeed it was fair to “SGM” for counsel for the College to apprise “SGM” of the policy of the College to not retain counsel who act against it and to express its concerns with respect to the “duty of loyalty” of “SGM” to the College as an ongoing client. In these circumstances I see nothing nefarious in the Committee’s acceptance at face value that “SGM” made a valid business decision not to represent the appellant at the disciplinary hearing to assure future business with the College and relied on its own understanding of its legal obligation with respect to the duty of its loyalty to its client, having regard to its own assessment of the decision of the Supreme Court of Canada in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631.

86The appellant’s submission that the Registrar’s e-mail to the CMPA compromised the fairness or appearance of fairness of the hearing before the Disciplinary Committee must also be rejected. There is no evidence that the Registrar attempted to influence any members of the Disciplinary Committee.

87The appellant relies on the decision of the Supreme Court in Canada (Minister of Citizenship and Immigration v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391 and of MacBain v. Lederman (1985), 22 D.L.R. (4th)). In Tobiass, supra, the Crown sought to revoke the Canadian citizenship of two suspected war criminals. As a result of the significant delay in completing argument before the Associate Chief Justice, the assistant Deputy Attorney General approached the Chief Justice of the Federal Court to express his displeasure at the delay and to advise that the Department of Justice was considering a reference to the Supreme Court to determine some of the preliminary issues due to the delay. As a result the Chief Justice approached the Associate Chief Justice and both agreed that to avoid the reference the court was committed to completing the arguments within the dates already set. These matters were reduced to letters that were subsequently disclosed to counsel, although counsel were initially not copied nor were counsel invited to participate in the discussions between the Chief Justice and the Deputy Attorney General. There is no suggestion that the merits of the case were discussed. The Supreme Court held that the Chief Justice’s interaction with the adjudicator was inappropriate and damaging to the appearance of judicial independence. At paragraph 69 the court stated the following:

Though it is very important that the judiciary should actually remain independent, it is equally important that the judiciary should be seen to be independent. In our view, there is no sufficient evidence to support the conclusion that the Chief Justice and the Associate Chief Justice did not in fact remain independent. However, the evidence does compel us to conclude that the appearance of judicial independence suffered significantly as a result of what happened on March 1, 1996.

88In my view, however, Tobiass, supra, is distinguishable. In this case there is no evidence that the Registrar attempted to influence the members of the Committee or the decision maker, whereas in Tobiass, because of the approach of the Chief Justice to the decision maker, the appearance of trial fairness was compromised. In this case there was an inappropriate, misguided and ultimately unsuccessful attempt to influence the CMPA. However, the Committee was entitled to find that the CMPA decision was independent and that ultimately no unfairness was perpetuated as the appellant was able to fully advance his constitutional challenge before the Disciplinary Committee. In my view, in the circumstances of this case, not only is there no evidence of trial unfairness, there is also no evidence of an appearance of trial unfairness.

89In an administrative law context the appellant relies on the decision of the Federal Court of Appeal in MacBain v. Lederman. In that case the Commission that investigated the complaint and decided it had merit also appointed the tribunal designated to hear the case in which the Commission also acted as prosecutor. In these circumstances, the court found that a reasonable apprehension of bias on the part of the Tribunal existed where at page 10 the court states the following:

In my view, the apprehension of bias also exists in this case because there is a direct connection between the prosecutor of the complaint (the Commission) and the decision-maker (the Tribunal). That connection easily gives rise, in my view, to a suspicion of influence or dependency. After considering a case and deciding that the complaint has been substantiated, the “prosecutor” picks the Tribunal which will hear the case. It is my opinion that even if the statute only required the Commission to decide whether there was sufficient evidence to warrant the appointment of a Tribunal, reasonable apprehension of bias would still exist.

90MacBain is also distinguishable as in the instant case the Committee was entitled to find, based on the evidence of the Registrar as well as on all the evidence, that there was no evidence of any attempt on the part of the Registrar to influence the Committee and no evidence that any appearance of unfairness could be inferred from the nature of the association of the Registrar and the Committee.

91With respect to the failure to record or disclose the views of the complainant regarding whether her relationship with the appellant constituted “sexual abuse” and her wish to withdraw the complaint, I agree with the respondent that her views as to sexual abuse were subsequently disclosed and that her views on both issues were not only not relevant to whether a hearing would be held or to the principle issues at the hearing, but were in any event fully canvassed in evidence so that any failure to disclose is of little moment in assessing whether an abuse of process occurred that would warrant a stay of proceedings. (See: Volochay v. College of Massage Therapists, 2012 ONCA 541, [2012] O.J. No. 3871 (C.A.) at paragraphs 10, 46; Leering, supra, at 45-46).

92In my view, the appellant has failed to discharge the burden to demonstrate that a stay of proceedings is required, as the Committee was correct in finding that neither the fairness of the hearing nor the appearance of a fair hearing had been compromised, and that no unfairness had been perpetuated by the conduct of the hearing. Further, in my view, the conduct of the Registrar in unsuccessfully attempting to influence the decision of the CMPA to not fund the constitutional challenge does not rise to the level of an abuse of process so as to compromise the integrity of the judicial process requiring a stay of proceeding. Even if I am wrong that no abuse of process has occurred, I am of the opinion that, on balance, the public interest in an adjudication on the merits of the serious allegation of sexual abuse outweighs any potential harm to the integrity of the judicial system warranting a stay of proceedings. I am fortified in my conclusion as the Supreme Court of Canada has consistently held that a stay of proceedings is not available in circumstances more egregious than those present in this case.

93In R. v. Babos, supra, at paragraph 72, a stay was not granted even though the misconduct at issue included: (i) the Crown’s attempt to intimidate the accused by threatening the accused with additional charges; (ii) in the face of evidence of collusion by two police officers to mislead the court about the seizure of a firearm; and (iii) the use of improper means by the Crown to obtain the medical records of the accused. The court concluded the conduct was reprehensible but that it did not require a stay. See also: R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98 at paragraph 90, where the court refused a stay where the Crown failed to make full disclosure despite being ordered to do so by the trial judge. R. v. Scott, 1996 259 (SCC), [1996] S.C.J. No. 13 where the court refused a stay where the Crown stayed the proceedings and shortly thereafter commenced fresh proceedings in order to avoid an unfavourable evidentiary ruling. R. v. Regan (2002), S.C.C. No. 12 where the court refused a stay where the Crown instructed the police to delay laying charges to avoid bringing the matter before a judge who might be sympathetic to the accused.

94In my view the Committee was correct or at a minimum reasonable in refusing to grant a stay of proceedings in the circumstances of this case. I would not give effect to this ground of appeal.

Issue 3: Did the Committee err in finding that mandatory revocation applies on the facts of this case?

95In its initial decision on September 11, 2013, the Committee addressed the merits of whether the appellant engaged in conduct relevant to the practice of medicine that having regard to the circumstances would reasonably be regarded by members as disgraceful, dishonourable and unprofessional amounting to sexual abuse which under s. 1(3)(a) of the Code consists of sexual intercourse or other forms of physical sexual relations between the member and the patient.

96The Committee noted that to fall within the meaning of “sexual abuse”, the sexual relationship must be concurrent with the doctor-patient relationship. If the relationship was not with a patient or not concurrent, the allegations of sexual abuse must be dismissed.

97After extensively reviewing the employment, medical, and personal history between the appellant and C.H. to which reference has been made previously, the Committee found that C.H. was a patient of the appellant and that the sexual relationship between them was concurrent with the doctor-patient relationship. There was ample evidence to support those findings.

98The Committee found that there was a doctor-patient relationship. The Committee rejected the appellant’s arguments that there was no sexual abuse because of the fact that C.H. was a sophisticated consumer of cosmetic surgery who was not a vulnerable patient in a doctor-patient relationship with a power imbalance or that there was no sexual abuse because C.H. did not consider herself to have been sexually abused and had communicated to the College that her sexual relationship with the appellant was consensual. The Committee relied on the decision of the Court of Appeal in Leering v. College of Chiropractors (Ontario) 2010 ONCA 87 for the proposition that “sexual abuse” does not require that there be a power imbalance between doctor and patient or that the sexual relationship be non-consensual, where at paragraph 45 the Court stated:

The Divisional Court correctly identified the purpose of these provisions of the Code, which is to prevent a health care professional from being in a position to use the power imbalance between a doctor and patient to obtain consent to sexual activity. However, the offence is complete when a doctor is in a sexual relationship with a patient, regardless of whether there was any power imbalance in the particular case, and whether it was used in fact to obtain consent to sex.

99The Committee also found that there was a substantial evidentiary basis to conclude that the appellant was C.H.’s doctor during the period from March 14, 2001 through to 2008. The Committee found that the doctor-patient relationship includes the time period for assessment and treatment before and after the surgery and that the appellant and C.H. engaged in sexual relations during the post-operative treatment period after the 2001 procedure and both during the pre and post-operative period for the 2004 follow-up as well as the 2007 procedure.

100On the basis of the evidence and the arguments presented to that point in the proceeding, the Committee found that the appellant engaged in sexual abuse of a patient by his sexual relationship with her during the currency of their doctor-patient relationship. In my view based on the authority of Leering, supra, it was open to and reasonable for the Committee to so find as a matter of law, and additionally, it was open to and reasonable for the Committee to make the findings of fact to which this court must defer on the issue of whether C.H. was a patient and whether the sexual relationship was concurrent with the doctor-patient relationship, notwithstanding that a solitary act of sexual intercourse occurred before the doctor-patient relationship was established. However, that is not the end of the matter, as on June 13 in the penalty phase of the proceeding the appellant brought a constitutional motion to the effect that the mandatory penalty provisions are contrary to the Charter of Rights and to the extent that they are unconstitutional do not apply to the appellant. It is to this issue that I now turn.

4. Can the Committee or this Court reconsider the decisions of the Court of Appeal as to mandatory revocation?

101The principle submission of the appellant before the Committee was that the mandatory revocation regime was never meant to apply to pre-existing sexual relationships between doctor and patient as the concern about the exploitation of the power dynamic between doctors and their patients does not arise where the sexual relationship pre-dated the doctor-patient relationship. Where such a relationship exists, the subsequent act of performing cosmetic surgery on a sexual partner does not vitiate their long standing consent or transform the physician into a sexual abuser. Such an interpretation is contrary to the ordinary meaning of “sexual abuse” and the policy objective of guarding against abuse of power. Accordingly, it was contended that the three leading cases of the Court of Appeal, Mussani v. College of Physicians of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1; Rosenberg v. College of Physicians of Ontario (2006), 2006 37118 (ON CA), 275 D.L.R. (4th) 275; and Leering v. College of Chiropractors of Ontario (2010), 2010 ONCA 87, 98 O.R. (3d) 561 were wrongly decided and should be reconsidered on the basis of the pronouncements of the Supreme Court of Canada in Canada v. Bedford, 2013 SCC 72, 2013 S.C.C. 72 allowing for departure from stare decisis in appropriate circumstances. According to the appellant, both Mussani, supra, and Leering, supra, have been undermined by more recent legal and social developments. It is contended that the decision in Leering caused a backlash that led to the legislative enactment of the spousal exemption and that the development of jurisprudential principles of fundamental justice i.e. arbitrariness, overbreadth and gross disproportionality have cast doubt on the treatment of those principles in Mussani, supra.

102The respondent submits that the appellant seeks to redefine “sexual abuse” in the regulatory context based on notions of consent when that is directly contrary to the legislative scheme that specifically defines the term. That definition has been consistently respected and recognized by the Court of Appeal in Mussani, Rosenberg and Leering as requiring only a concurrent sexual and doctor-patient relationship without regard for the intricacies of the sexual and emotional relationship between the complainant and the professional. The respondent contends that it was not necessary for the Committee to reconsider the leading cases of the Court of Appeal as the test in Bedford, supra, has not been met. The respondent submits that the spousal exemption for married or common law spouses is not a legislative reaction to a backlash to the decision in Leering, but simply an opt-in provision available to various health care regulators, which the College has chosen not to adopt. In any event, an exemption for pre-existing relationships such as the appellant’s has not been specifically enacted by the Legislature in circumstances where the Legislature could have chosen to do so and the appellant, who has conducted a clandestine sexual relationship while remaining married, manifestly does not in any event qualify under the exemption which has been enacted.

103The Committee rejected the appellant’s argument that the mandatory revocation provisions of the Code, sections 1(3), 51(5)(2) and 72(3)(a), are intended to apply to pre-existing sexual relationships that pre-date the doctor-physician relationship because those pre-existing sexual relationships do not invoke the concern over the power imbalance which motivates the provisions. The Committee found that it was bound by the decisions of the Court of Appeal in Mussani, Rosenberg and Leering which hold that the mandatory revocation provisions are constitutionally valid and apply in all cases where the sexual acts took place concurrently within the doctor-patient relationship and most significantly, there is no exception for pre-existing sexual relationships that pre-date the doctor-patient relationship. In support of its findings respecting constitutional validity the Committee cited the following statements from Mussani, first at paragraph 41:

The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession.

104and at paragraph 43:

I am satisfied, therefore, that there is no constitutionally protected right to practice a profession, and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter.

105With respect to the interpretation of the mandatory revocation provisions the Committee relied on paragraph 25 of Rosenberg:

The legislation, like the Task Force recommendations, is clear and unambiguous: when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibitions with a drastic sanction and no exceptions or exemptions. The zero tolerance policy precludes inquiry into any explanation or excuse for the sexual activity. A patient’s consent is irrelevant.

and also the statement in Leering at paragraph 37:

The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a health care professional-patient relationship. There is no further inquiry once these two factual determinations have been made.

106The Committee found that even if it had the authority to depart from the leading cases on mandatory revocation on the basis of Bedford, the criteria to do so had not been met by the appellant.

107Finally, the Committee found that the relationship between the appellant and C.H. is not analogous to the exemption provided for spouses. Even if the College had chosen to adopt that exemption, “spouse” is defined in terms of both married and unmarried cohabitants or common law partners which manifestly does not apply to the sexual relationship between C.H. and the appellant. The appellant who, while married to someone else, never cohabited with C.H. He did, however, engage in a sexual relationship with her throughout a long standing doctor-patient relationship.

108In my view, it is evident that the question of whether the Committee and indeed this Court is bound by the decisions of the Court of Appeal is of pivotal importance in determining first whether the mandatory revocation penalty applies to the appellant’s circumstances and secondly, whether the mandatory revocation regime passes constitutional muster. I agree with the position of the respondent that both the Committee and this court are bound by the decisions of the Court of Appeal in Mussani, Rosenberg and Leering.

109In Canada (Attorney General) v. Bedford the Supreme Court spoke directly to the circumstances in which a lower court or tribunal may reconsider the decision of a higher court at paragraphs 42-44:

42 In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

43 The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional. It submits that lower courts should not be limited to acting as "mere scribe[s]", creating a record and findings without conducting a legal analysis (I.F., at para. 25).

44 I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

110It is clear that the court sought to establish a high threshold for reconsideration of decisions of higher court by tribunals and lower courts. A lower court is not entitled to ignore binding precedent unless a new legal issue is raised (which was not subject to binding precedent) or there is a significant change in the circumstances or evidence. I agree with the respondent that neither of these conditions apply in this case.

111In my view, the appellant has raised no new legal issue as the decisions of the Court of Appeal in Mussani, Rosenberg and Leering precisely address the arguments raised by the appellant as to the constitutionality of the mandatory revocation regime as well as his challenge on the basis of “pre-existing sexual relationship” as is evident from the passages cited by the Committee outlined above.

112The appellant argues that the legislative amendments to the Regulated Health Professions Act whereby a spousal exemption to what would otherwise constitute sexual abuse was enacted which health care regulators could in turn opt to enact as part of their penalty regime but which the College chose not to do is a new legal issue. The appellant characterizes this amendment as a response to a strong public reaction to Leering, supra, and as a “legislative fix” to shield pre-existing relationships from mandatory revocation. However, it is difficult to see how the provisions of the amendment by their terms accomplish the task claimed by the appellant. The spousal exemption states:

Exception, spouses

(5) If the Council has made a regulation under clause 95 (1) (0.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of "sexual abuse" in subsection (3) do not constitute sexual abuse if,

(a) the patient is the member's spouse; and

(b) the member is not engaged in the practice of the profession at the time the conduct, behaviour or remark occurs. 2013, c. 9, s. 1 (1).

Definition

(6) For the purposes of subsection (5)"spouse", in relation to a member, means,

(a) a person who is the member's spouse as defined in section 1 of the Family Law Act, or

(b) a person who has lived with the member in a conjugal relationship outside of marriage continuously for a period of not less than three years. 2013, c. 9, s. 1 (1).

113The Legislature, in my view, chose to provide a very narrow exemption for spouses, both married and living at common law, and did not choose to provide an exemption for all pre-existing relationships, sexual or otherwise. In this case it is clear that the exemption does not apply for two reasons. First, the sexual relationship between the appellant and C.H. was conducted in a clandestine fashion while the appellant was married and the parties never lived together. Thus, C.H. was not the appellant’s “spouse” as that term is defined in the exemption. Second, the conduct at issue did take place while the appellant was engaged in the practice of his profession. By requiring that the conduct not take place during the practice of the profession, the Legislature codified that the sexual conduct not be concurrent to the doctor-patient relationship, which is precisely the gravamen of the decision in Leering, supra. Therefore, I would not give effect to this ground of appeal.

Issue 5: Did the Committee err in finding that the mandatory provisions do not infringe s.7 of the Charter of Rights and Freedoms?

114Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In dealing with s.7 of the Charter the Committee made this brief observation:

With respect to section 7 of the Charter, it was argued that the mandatory revocation provisions were overbroad, grossly disproportionate to legitimate regulatory interests, and arbitrary. The Court of Appeal dismissed this argument and the Discipline Committee considers itself bound by that decision.

115In Mussani the Court of Appeal found that there was no constitutionally protected right to practise a profession. Before us, the appellant submits that the Court of Appeal in Mussani did not address whether s.7 of the Charter imposes some limitations on the scope of a professional regulator’s disciplinary authority, thus leaving room for the development of s.7 in the professional disciplinary context. The appellant submits that his liberty and security interests are engaged by the mandatory revocation regime. The liberty interest is engaged because the regime trenches upon his liberty right to make fundamental life choices free from unreasonable state interference by forbidding him from having a consensual, non-exploitive sexual relationship and by depriving him of his chosen livelihood based on his involvement in such a relationship. The security interest is engaged because the regime imposes serious psychological stress by requiring revocation based on an unwarranted inquiry into a consensual adult relationship. The regime constitutes an intrusion into a person’s choice of a sexual partner.

116The appellant argues that the mandatory provisions are not in accordance with the principles of fundamental justice as they are overbroad. They do more than is needed to achieve their intended purpose to protect the public from health professionals who exploit patients for sex. The provisions are also disproportionate as the stigma of being branded a “sexual abuser” and the draconian penalty of revocation is disproportionate to the legitimate regulatory interest. Finally, the appellant contends that the spousal amendment is arbitrary because it excludes all non-spousal pre-existing sexual relationships for reasons unrelated to the policy objective of the exemption, which the appellant claims was to correct the injustice caused by deeming pre-existing consensual relationships to be sexual abuse only because one partner provided medical treatment or services to another.

117The respondent submits that section 7 is not engaged as what the appellant seeks to protect does not engage any constitutional rights. Mussani has established that mandatory revocation does not violate s.7 of the Charter as there is no constitutionally protected right for a physician to have sex with an ongoing patient. The true interest the appellant seeks to protect is his right to practise medicine rather than his right to choose sexual partners and the Charter does not guarantee a person’s right to practise a profession. The appellant’s liberty interest is not engaged as he is not deprived of a fundamental life choice. Rather, he is simply faced with the professional consequences that flow from his choice to combine a sexual and medical relationship with C.H. Similarly, the stigma or stress of being disciplined for sexual abuse does not engage a security interest, but results from his unwillingness to make the choice of either being C.H.’s lover or her surgeon. Moreover, Mussani specifically rejected the argument that mandatory revocation is overbroad and reconsideration is not warranted. Also, Mussani has rejected the argument that revocation is disproportionate because of the seriousness of the issue it seeks to address, namely preventing the abuse of patients. The purpose of the spousal amendment was essentially to codify that which the case law had already established and to present the various health care regulators with an option to enact it. If, as the appellant claims, the spousal amendment is arbitrary, it is conceded that this does not render the mandatory revocation regime arbitrary. In any event, even if the spousal amendment had been adopted by the College, it would not apply to the appellant.

118I agree with the respondent that the decision of the Court of Appeal in Mussani conclusively establishes that mandatory revocation does not violate section 7 of the Charter and that the Committee, as well as this court, are bound by this decision of the Court of Appeal.

119As a preliminary matter the Court of Appeal in Mussani held that there is no constitutionally protected right for a physician to have sex with an ongoing patient even if the sex is consensual nor is there a constitutional right to practice a profession. These observations were made in the face of arguments virtually identical to those advanced before this court. At paragraphs 39-43 the court stated:

39The essence of what Dr. Mussani is seeking to protect is not the right to choose a consensual sexual partner from amongst his patients, but rather the right to engage in the economic activity of his choice. Despite his efforts to contextualize and to characterize his claim otherwise, he is trying to protect the right to practise his profession. The Charter does not protect such a right, however.

41The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession.

(authorities omitted)

43I am satisfied that there is no constitutionally protected right to practise a profession and that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter. This conclusion is, in my view, sufficient to dispose of this case. In the event that I am in error, however, and because of the importance of the Charter arguments to the [page17] 21 different health professions governed by the Code in Ontario, I propose nonetheless to deal with the parties' submissions respecting ss. 7, 12, and 2(d) of the Charter.

(emphasis added)

120That section 7 of the Charter does not protect economic interests has been affirmed by the Court of appeal in R. v. Schmidt 2014 ONCA 188 where at paragraphs 37-38 the court stated:

37 The appellant argues that the impugned legislation infringes the liberty interest by limiting his right to freedom of contract and the freedom of the cow-share members to make a decision of fundamental personal importance.

38 As the appellant candidly conceded in oral argument, in making this submission, the appellant invites us to depart from the existing jurisprudence. While the Supreme Court of Canada has not foreclosed the possibility that s. 7 may evolve to protect certain economic rights such as a basic minimum level of subsistence, the proposition that s. 7 protects freedom of contract or the right to engage in the economic activity of one's choice has been rejected. In Siemens v. Manitoba (Attorney General), 2003 SCC 3 at para. 46, the Supreme Court held that "[t]he ability to generate business revenue by one's chosen means is not a right protected under s. 7 of the Charter." In Edwards Books and Art Ltd. v: R., 1986 12 (SCC), [1986] 2 S.C.R. 713 at pp. 785-6, Dickson C.J. held that the right to liberty protected by s. 7 "is not synonymous with unconstrained freedom" and "does not extend to unconstrained right to transact business whenever one wishes." Even if it were in the power of the court to do so, I can see no reason to depart from these authorities on the facts of this case.

121Before specifically dealing with the treatment of section 7 of the Charter by the Court of Appeal in Mussani, it is helpful to start with the guidance given by the Supreme Court of Canada in Blencoe v. B.C. (Human Rights Commission) 2000 SCC 44, 2000 S.C.C. 44 with respect how section 7 is to be applied where at paragraph 24 the court stated:

Before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7.... [I]f no interest in the respondent’s life, liberty or security of the person is implicated, the s. 7 analysis stops there.

(emphasis added)

122The court in Mussani specifically addressed the arguments with respect to deprivation of liberty and security of the person advanced by the appellant in that case, which, in my view are virtually identical to those advanced by the appellant in this case. At paragraph 46 the court states:

46The appellant submits the Mandatory Revocation Provisions violate his "liberty" interest under s.7 because they interfere with his right to make fundamental personal life choices, unimpeded by state action: see Blencoe v. British Columbia (Human Rights Commission), supra; Goldbout v. Longueuil (Ville), 1997 335 (SCC), [1997] 3 S.C.R. 844, [1997] S.C.J. No. 95, R. v. Malmo-Levine, (4th) 104 (C.A). at paras. 92-93 and 101-02. He contends they infringe his “security of the person” because of state imposed psychological stress that results from mandatory revocation proceedings: see New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.J. No. 47, at para. 59.

123The court in Mussani rejected the argument that there was a deprivation of any security interest at paragraph 50-51:

50Here, the argument is that the stigma of being disciplined by the College for sexual abuse of a patient, the publicity associated with such a proceeding, the loss of privacy and disruption to the doctor's personal and emotional life, and the mandatory revocation of the doctor's certificate of registration, result in psychological stress that interferes with the doctor's right to security of person. I do not agree.

51As already noted, the appellant accepts that the Code properly prohibits a health professional from having sexual relations with a current patient. The appellant is licensed to practise in a regulated profession. A certain amount of stress, anxiety and stigma inevitably arises in the context of disciplinary proceedings relating to sexual abuse allegations. Just as the personal trauma arising from delays in being investigated in human rights proceedings did not attract the protection of s. 7 in Blencoe, however, the difficulties experienced by a health professional who is disciplined for sexual abuse of a patient by the loss of his or her certificate of registration do not deprive the doctor of his or her security of the person .As Bastarache J. noted in Blencoe"[t] here is no constitutional right or freedom against such stigma protected by the s. 7 rights to 'liberty' or 'security of the person"' (para. 96).

124The court in Mussani then considered and rejected that there had been a breach of the appellant’s liberty interest based on two identical arguments advanced by the appellant in this case. With respect to the first argument, at paragraphs 53-54 the court stated:

53The Appellant and his supporting intervenors argue that the Mandatory Revocation Provisions “interfere with the intensely personal decision as to whether to enter into an intimate relationship with another person” on a consensual basis and in circumstances that are not exploitive or predatory in nature … As I have already pointed out, however, this is not the issue on the appeal.

54While the argument that the liberty interest guarantees a right to choose ones consensual sex partner, on fundamental life choice grounds, is an intriguing one, and may find some support in the jurisprudence at the end of the document, it need not be decided in the [page 19] circumstances of this case. The parties and intervenors all concede that sexual relations between a health professional and his or her patient are unacceptable. In the context of a regulated health profession, then, the liberty interest cannot extend to the point of protecting a doctor’s right to decide to have sex with a current patient. There is no valid liberty interest, in that sense. Indeed, the appellant acknowledges as much. He concedes that in the many instances where an intimate relationship between a health professional and a patient is inherently exploitative, “any ‘liberty’ interest held by the health professional to enter into such a non-consensual relationship may not be a 'legitimate' interest with which s.7 is concerned”.

125Dealing with the second argument the court stated the following at paragraphs 58-60:

58The second argument is the following. There is admittedly a range of conduct properly captured by the Mandatory Revocation Provisions without violating s. 7, namely those situations where there are power imbalances, potential exploitation and a lack of real consent. But there is another range of situations where there may be no power imbalance, no exploitation, and actual consent -- albeit a small sub-set of the whole of this type of conduct. Capturing those situations by mandatory revocation does violate a legitimate liberty or security interest. Therefore, the argument goes, the Mandatory Revocation Provisions as a whole are unconstitutional: see R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No.101.

59I do not accept this argument. However, I will deal with it more fully in the portion of these reasons addressing "overbreadth" and the principles of fundamental justice because it relates more to those issues than to the questions of "liberty" or "security of the person" in themselves.

60For the reasons I have just outlined, I find that the Mandatory Revocation Provisions do not deprive the appellant of his right to "life, liberty and security of the person". If necessary, however, I would also dismiss the s. 7 claim on the basis that the Provisions are in accordance with the principles of fundamental justice. I turn to that issue now.

126In my view, it is clear that the Court of Appeal in Mussani held that the appellant in that case had not discharged the burden to demonstrate a deprivation of either a liberty or security interest and, in doing so, the court rejected the arguments of the appellant in that case which were virtually identical to those advanced by the appellant in this case. I agree with the conclusion of the Court of Appeal that there has been no violation of section 7 as there has been no deprivation of a liberty or security interest. More importantly, however, I find that there has been no new legal issue raised or any significant change in circumstances to cast doubt on the conclusion of the Court of Appeal that no deprivation of a liberty or security interest has occurred so as to allow a reconsideration by this court of the conclusion of the Court of Appeal that section 7 of the Charter has not been violated.

127Accordingly, this court is bound by the decision of the Court of Appeal in Mussani and the Committee committed no error in holding that it was bound by the decision of the Court of Appeal that no violation of section 7 has occurred. This, in my view, is sufficient to dispose of this ground of appeal. However, as the Court of Appeal in Mussani, supra, also held that the mandatory revocation provisions accorded with the principles of fundamental justice I make the following observations if necessary.

128In Mussani on the issue of overbreadth, the appellant argued that the mandatory revocation regime is overly broad because it applies a “one size fits all” sanction “regardless of the facts, regardless of the impugned relationship (i.e. there may be cases where there is genuine consent, no power imbalance, and no exploitation) regardless of the medical treatment being provided”. In this case the appellant advanced the comparable argument that to apply the mandatory revocation regime to the conduct of the appellant who engaged in a sexual relationship prior to entering into a doctor-patient relationship during which the sexual relationship remained consensual and non-exploitive amounts to applying the law “to conduct that shares no relevant features with conduct the law actually seeks to target …” In other words, the law sweeps in certain individuals needlessly, in a manner that does not even advance the law’s own objectives.

129The Court of Appeal in Mussani rejected the argument that the mandatory revocation regime was overbroad. At paragraphs 71 to 74 the court stated:

[71] The ultimate purpose of the sexual abuse provisions in the Code is "to eradicate the sexual abuse of patients by members" (s. 1.1). In more general terms, the objective of the legislative scheme is to ensure that discipline for serious forms of sexual abuse signals the serious harm that such abuse causes the patient as well as the breach of trust committed by the health professional and the harm such misconduct causes to the profession itself. The goals are to encourage the reporting of sexual abuse by patients and to enforce the principle of zero tolerance by deterring future abuse and by dealing with the significant risk of recidivism through the removal of the offender from the practice for a minimum period of time. These are legitimate state concerns, mirroring fundamental values underlying our legal system, including the protection and enhancement of human dignity and integrity.

[72] There are admitted problems with zero tolerance/mandatory penalty regimes. They are rigid. They can lead to results in individual cases that are harsh, extreme, and even arguably unjust. They deprive the body imposing the penalty of any discretion to tailor the result to meet the requirements of the circumstances. In particular, they deprive the reviewing body of any flexibility in responding to situations where there may be genuine consent to a relationship between mature adults, and no power imbalance or exploitation on the part of the health professional.

[73] However, the Mandatory Revocation Provisions were enacted in response to a recognized and growing problem of sexual abuse in the medical profession. Indeed, they were enacted specifically to rectify a situation where discretionary sanctioning on the part of professional disciplinary committees and the courts had been found to be wanting. They must be considered in the context of a general power imbalance between a doctor and patient that can lead to easy exploitation of the relationship by the doctor at the risk of considerable harm to a vulnerable patient: see Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, at pp. 246, 255 and 259-60 S.C.R., per La Forest J. (citing the Task Force Report). In addition, they must be considered in the context of a regulated profession. The legislature acted upon the recommendations of a Task Force that had carefully examined the difficulty, and after consulting broadly with health professionals in relation to Bill 100. A health professional need only say "no" to either the sexual or the professional relationship.

[74] As noted above, the legislature is entitled to deference with respect to the remedies it chose.

130Finally, at paragraph 80, the court concluded:

[80] Here, the means chosen to meet the legislative objectives -- i.e., the revocation of the health professional's certificate of registration in the case of the frank sexual acts listed in s. 51(5) para. 2 of the Code -- do not go too far, in my opinion. They are not overly broad. Mandatory revocation in such circumstances (a) signals the seriousness with which the sexual abuse of patients is to be taken, (b) underscores the gravity of the breach of trust involved, (c) emphasizes the considerable impact of the practitioner' s failure to meet his or her responsibility towards maintaining the integrity of the profession, and (d) responds to the need to protect the public from the risk of recidivism by removing the practitioner from the practice for a minimum period of time. The importance of responding to these objectives is not contested.

131Once again, I find that the appellant raises no new legal issue nor is there a significant change in the evidence to warrant reconsideration by this court.

132In Mussani the court did not address the issue of whether the penalty provision of the mandatory revocation regime is grossly disproportionate in the context of section 7 of the Charter but rather found the penalty provisions of the regime not be grossly disproportionate under section 12 of the Charter. In my view it is not necessary to revisit the reasons given in Mussani as to why the penalty provision of mandatory revocation is not grossly disproportionate under section 12 of the Charter.

133The appellant’s essential submission summarized in his factum is that: “Revoking a physician’s licence simply because it is convenient to apply the law to all “concurrent” relationships (as in Leering) – rather than allowing the tribunal to consider which relationship came first – is a grossly disproportionate response … the seriousness of deprivation is totally out of sync with the objective of the measure.”

134At bottom this submission amounts to an assertion that Leering is wrongly decided. It is convenient to reiterate that in Leering the Court of Appeal stated the following at paragraph 37:

The disciplinary offence of sexual abuse is defined in the Code for the purposes of these proceedings as the concurrence of a sexual relationship and a health care professional relationship. There is no further inquiry once those two factual determinations have been made.

(emphasis added)

and also at paragraph 45:

45 The Divisional Court correctly identified the purpose of these provisions of the Code, which is to prevent a health care professional from being in a position to use the power imbalance between a doctor and patient to obtain consent to sexual activity. However, the offence is complete when a doctor is in a sexual relationship with a patient, regardless of whether there was any power imbalance in the particular case, and whether it was used in fact to obtain consent to sex.

135The appellant refuses to accept the constituent elements of sexual abuse as defined in Leering, which this court and the Committee are bound to accept. In my view, once it is accepted that there is no obligation to inquire into whether the sex and relationship pre-existed the doctor patient-relationship, there is no reasonable basis to contend that the penalty of mandatory revocation is unfit much less grossly disproportionate.

136Moreover, in my view the facts of this case support the conclusion that the penalty of mandatory revocation was appropriate. I agree that the initial doctor-patient relationship, established in 1992 and consisting of a relatively minor procedure cannot reasonably be conceived as persisting into 2001, when the first instance of sexual intercourse occurred. However, on March 8, 2001, after having sexual intercourse with C.H. the first time, the appellant realized that he had to make a choice as he informed C.H. that he could not perform breast augmentation surgery scheduled for March 16, 2001, and remain her lover. Notwithstanding that C.H. chose to have the surgery, further acts of sexual intercourse recommenced two weeks later and during the post-operative period. The appellant conducted his own research into the publications of the College and the extant case law and concluded that while his continuing sexual relationship with C.H., which he considered to be analogous to a spousal relationship, may have been a boundary violation, it was not sexual abuse. Both the Committee and this court have found that this was an unreasonable conclusion. The Committee found as a fact that the sexual relationship was concurrent with a doctor-patient relationship as the acts of sexual intercourse persisted concurrent to several other surgeries which cannot be considered to be either minor or episodic. As to the existence of a “spousal” relationship or an analogous relationship to that of a spousal relationship, the evidence disclosed that, apart from the one initial act of sexual intercourse which occurred one week prior to the establishment of a doctor-patient relationship, the appellant did not cohabit with C.H. and at all times remained married to his spouse. C.H. described her relationship with the appellant as that of a mistress in which there was no dating as such and which can be fairly described as clandestine with the sexual conduct largely occurring in the appellant’s office while the appellant continued to concurrently perform major cosmetic procedures without charge. The relationship between the appellant and C.H. can hardly be described as spousal “in all relevant respects” as the appellant contends. In my view, there is no gross disproportionality in the penalty warranted by the conduct of the appellant.

137In Bedford the Supreme Court held at paragraph 111 that “arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose.” The appellant’s submission on arbitrariness focuses on the recently enacted spousal exemption, not on the mandatory revocation regime per se. The spousal exemption outlined earlier in these reasons is reproduced for the sake of convenience and states:

Exception, spouses

(5) If the Council has made a regulation under clause 95(1)(0.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse if,

(a) the patient is the member’s spouse; and

(b) the member is not engaged in the practice of the profession at the time the conduct, behaviour or remark occurs.

(emphasis added)

Definition

(6) For the purpose of subsection (5)

“spouse” in relation to a member, means,

(a) a person who is the member’s spouse as defined in section 1 of the Family Law Act, or

(b) a person who has lived with the member in a conjugal relationship outside of marriage continuously for a period of not less than three years.

138In my view, the spousal exemption has accomplished two major objectives. First, by clearly defining “spouse” in subsection 6, the Legislature has addressed the interpretative difficulties addressed by the Court of Appeal in Rosenberg with respect to who constitutes a “spouse”. Secondly, and more importantly, in subsection 5(b) the Legislature has maintained the position of the Court of Appeal in Mussani, Rosenberg and Leering that sexual abuse refers to sexual conduct which is concurrent with a doctor-patient relationship.

139The spousal exemption is, of course, to be interpreted as allowing the physician to treat a spouse for minor medical ailments on an incidental or emergency basis as such treatment does not establish a concurrent doctor-patient relationship, as acknowledged by the Court of Appeal in Mussani at paragraphs 100-101 and in Rosenberg at paragraphs 42 to 51 and Leering at paragraphs 33 to 49.

140The appellant submits that “Because the C.P.S.O. has not opted in to the spousal exemption, and because the appellant was not in a “spousal” relationship with C.H. (they did not live together) he is still subject to mandatory revocation – even though his relationship with C.H. no more amounted to “sexual abuse” than any number of relationships now subject to the exemption.” In my view, the short answer to this submission is that the spousal exemption no more protects the physician from engaging in a spousal relationship concurrent to a doctor-patient relationship than it would protect the appellant from engaging in a concurrent doctor-patient relationship, even if his particular relationship with C.H. were included by the Legislature in the definition of “spouse” in the spousal exemption. In other words, even if the College had chosen to opt in to the spousal exemption, the result for the appellant would be the same.

141The purpose of the mandatory revocation provision is to protect patients and maintain a zero tolerance regime for sexual abuse defined as engaging in sexual conduct during the course of a doctor-patient relationship. The effect of the spousal exemption is no different for spouses in relation to the purpose of the mandatory revocation provisions than it is for the appellant. I would not give effect to this ground of appeal.

Funding of Patient therapy and Counselling

142In its decision on penalty (April 1, 2015) the Committee requested written submissions whether it would be appropriate to make an order under sections 51(2), 5.1 and 5.2 of the Code to provide funding in the event that C.H. decides she needs help by way of therapy or counselling resulting from the sexual abuse. Under the programme, pursuant to section 85.7 of the Code the College could advance up to a maximum of $16,000 for such therapy or counselling and the appellant could be required to post-security to reimburse the College if C.H. sought therapy or counselling. After written submissions were received the Committee determined that the appellant post security for the maximum amount of $16,000.

143The appellant submits that given the evidence of both the appellant and C.H. that the sexual relationship was not exploitive and was consensual throughout, and given that C.H. wished to withdraw her complaint which was launched not because of any sexual abuse which she felt she had suffered, but because the appellant was not as devastated by the break up of the relationship as she was, there is no reason to believe she will require therapy or counselling on account of sexual abuse. In the circumstances of this case the requirement to post the maximum is simply punitive.

144In my view the order to post security in the amount of $16,000 for future therapy and counselling is unreasonable in the circumstances of this case. The evidence of the complainant is that no exploitation occurred and that the sexual relationship was consensual. Moreover, the complainant sought to withdraw the charge of sexual abuse. Further there is no evidence before the court that since 2008 when her relationship with the appellant terminated to the date of the argument of the appeal before this court that the complainant has sought or received therapy or counselling for sexual abuse at the hands of the appellant or of any desire on the part of the complainant to do so in the future. In my view it is unreasonable in the circumstances of this case to provide for such a contingency on an indefinite basis, when all the evidence that is available leads to the conclusion that the contingency will not arise. Finally, the complainant pursued and settled a civil action against the appellant. If there was a need for counselling or therapy that could have been taken into account in that settlement I would vacate the order of the Committee that the appellant provide security for costs in the amount of $16,000.

145For all these reasons, [except for vacating the Committee’s order to provide security for therapy or counseling costs], I would dismiss the appeal.

146Counsel for the respondent have provided an outline of costs before the Disciplinary Committee. The court will await submissions on this from the appellant if any to be filed no later than one month of the receipt of the decision of this court.

147If counsel cannot agree with respect to the question of costs with respect to the appeal, the respondent shall file with the court a costs outline and brief written submission of no more than five pages written one month of the receipt of the decision of the court and the appellant shall file within two weeks thereafter his costs outline and brief written submissions of no more than five pages.

148In closing, I would like to thank all counsel for the excellent quality of both their written and oral submissions.

THEN J.

I agree _______________________________

SACHS J.

I agree _______________________________

LOCOCO J.

RELEASED: March 27, 2017

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on March 28, 2017, and the description of the corrections are appended:

• the spelling of counsel for the respondent, Elisabeth Widner, has been corrected on the first

page

• the heard date, on the first page, has been changed from June 28, 2017, to June 29, 2017

• the complainant’s name has been removed from the quotations in paragraphs 44 and 49 in

order to comply with the publication ban

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