Court of Appeal for Ontario
Date: 20210705 Docket: C68512
Judges: Feldman, MacPherson, Juriansz, Huscroft and Jamal JJ.A.
Between:
Alexandru Tanase Appellant (Appellant)
and
The College of Dental Hygienists of Ontario Respondent (Respondent)
Counsel: Seth P. Weinstein and Michelle M. Biddulph, for the appellant Julie Maciura and Erica Richler, for the respondent S. Zachary Green, for the intervener Attorney General of Ontario
Heard: May 11, 2021 by video conference
On appeal from the order of the Divisional Court (Justices Julie Thorburn, David L. Edwards and Lise G. Favreau) dated September 9, 2019, with reasons reported at 2019 ONSC 5153.
Huscroft J.A.:
Overview
[1] Ontario has a “zero-tolerance” policy for sexual abuse by members of the regulated health professions in Ontario. Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, if they commit “sexual abuse” against a patient, which is defined in s. 1(3) as including “sexual intercourse or other forms of physical sexual relations between the member and the patient”.
[2] A finding of sexual abuse does not depend on establishing that a sexual relationship is inherently exploitive or otherwise wrongful; the prohibition of sexual relations between members and patients is categorical in nature. Sexual relationships with patients are prohibited, period, subject only to a spousal exception that may apply. With the approval of the government, the Council of the College of a regulated health profession may make a regulation permitting members to provide treatment to their spouses, but the exception is narrow in scope: “spouse” is defined as including only someone to whom the member is married or with whom the member has been cohabiting in a conjugal relationship for a minimum of three years. The Council of the College of Dental Hygienists of Ontario (“the College”) has a regulation adopting the spousal exception, but that regulation did not come into force until October 2020, well after the occurrence of the events that are the focus of this appeal.
[3] The facts in this case are not contested. The appellant is a dental hygienist who entered into a sexual relationship with S.M., a woman he was treating. Eventually they married and the appellant continued to treat S.M. following their marriage.
[4] In 2016, a complaint was made to the College and a Discipline Committee was convened. The Committee found the appellant guilty of professional misconduct, revoked his registration as required by s. 51(5) of the Code, and issued a reprimand. The Divisional Court dismissed the appellant’s appeal.
[5] The appellant describes revocation of his registration as an “absurdity” and invites this court to revisit its caselaw in order to “remedy this unfairness”. A five-member panel was convened in order to allow the appellant to challenge this court’s decisions in Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, 98 O.R. (3d) 561, in which the court held that sexual abuse is established by the concurrence of a health care professional-patient relationship and a sexual relationship, and Mussani v. College of Physicians and Surgeons of Ontario (2004), 248 D.L.R. (4th) 632 (Ont. C.A.), in which the court held that the penalty of mandatory revocation of a health professional’s certificate of registration for sexual abuse does not infringe either s. 7 or s. 12 of the Charter.
[6] In my view, Leering and Mussani remain good law and the Divisional Court made no error in applying them. It follows that this appeal must be dismissed and the appellant is subject to the mandatory penalty of revocation of his certificate of registration.
[7] Revocation of the appellant’s certificate of registration is an extremely serious penalty, but it is not absurd. It follows from the Ontario Legislature’s decision that sexual abuse in the regulated health professions is better prevented by establishing a bright-line rule prohibiting sexual relationships – an approach that provides clear guidance to those governed by the rule – than by a standard pursuant to which the nature and quality of sexual relationships between practitioners and patients would have to be evaluated to determine whether discipline was warranted in particular circumstances. This decision to adopt this rule was open to the Legislature and must be respected by this court. It does not violate the Charter and there is no basis for this court to frustrate or interfere with its operation.
[8] I would dismiss the appeal for the reasons that follow.
Background
[9] The facts in this matter are taken from an agreed statement of facts.
[10] The appellant was a duly registered member of the College of Dental Hygienists of Ontario. He and S.M. met in 2012 and became friends. S.M. confided in the appellant that she was afraid of dental treatment and had not sought dental care for several years.
[11] The appellant gained S.M.’s trust and he provided dental hygiene treatment to her at his workplace on two occasions, January 22, 2013 and September 13, 2013, at no charge. At the time of these treatments the relationship between the appellant and S.M. was platonic.
[12] The appellant rented a room in S.M.’s house in late 2013 and he and S.M. commenced a sexual relationship in mid-2014. Once their sexual relationship began, the appellant stopped treating S.M. because he understood he was not permitted to do so. However, in April 2015, a colleague told the appellant that the rules had changed and dental hygienists were permitted to treat their spouses. This advice was in error, but the appellant did not attempt to confirm that he was permitted to treat S.M. The College had proposed a “Spousal Exception Regulation”, but the enabling regulation had not yet been submitted to the Ontario government for approval. Moreover, the appellant admitted that if he had read the proposed regulation he would have understood that he was not permitted to treat S.M.
[13] The proposed regulation was not submitted to the Ontario government for approval until October 2015 and was not in force when the appellant provided treatment to S.M. on April 30, 2015, June 20, 2015, September 25, 2015, December 2, 2015, March 24, 2016, June 2, 2016, and August 26, 2016, while they were engaged in a sexual relationship. The latter three treatments occurred following the appellant’s marriage to S.M. in January 2016.
[14] The College’s spousal exception did not come into force until October 8, 2020, with the passage of O. Reg. 565/20, made under the Dental Hygiene Act, 1991, S.O. 1991, c. 22.
[15] In August 2016, a member of the College submitted a complaint to the College after seeing a post S.M. had made on Facebook on June 2, 2016 expressing her gratitude to the appellant for treating her. On September 19, 2016, the appellant was notified that the College was investigating him for professional misconduct. On June 19, 2018, the Discipline Committee found that the appellant had engaged in professional misconduct and ordered a reprimand and revocation of his certificate of registration. The Divisional Court stayed the Discipline Committee’s decision to revoke the appellant’s certificate of registration pending appeal, but on September 9, 2019, dismissed the appellant’s appeal of the Discipline Committee’s decision. On October 10, 2019, this court stayed the revocation pending the determination of this appeal.
The Legislation
[16] The relevant legislative provisions of the Code are set out below.
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.
Exception, spouses
1(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.
(6) For the purposes of subsections (3) and (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.
Professional misconduct
51(1) A panel shall find that a member has committed an act of professional misconduct if,
(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.
(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):
Reprimand the member.
Suspend the member’s certificate of registration if the sexual abuse does not consist of or include conduct listed in paragraph 3 and the panel has not otherwise made an order revoking the member’s certificate of registration under subsection (2).
Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following: i. Sexual intercourse.
The Decisions Below
The Discipline Committee’s decision
[17] The Discipline Committee concluded that there was no significant change in the law that would warrant deviating from the decision of this court in Mussani, which upheld the constitutionality of the mandatory registration revocation provisions. That being so, the agreed statement of facts required a finding of professional misconduct.
[18] The Committee ordered the appellant’s certificate of registration revoked and issued the following reprimand:
One of the rules that the Ontario legislature has enacted for health professionals is that they cannot have a concurrent sexual relationship with a patient they are treating. This policy of zero tolerance is backed up by mandatory revocation of the certificate of registration of the health professional. It is not discretionary. In your circumstances, where you were involved in a consensual spousal relationship, it appears a harsh penalty. In the societal interest of preventing sexual abuse, this penalty can be avoided by dental hygienists, like other health professionals, by ensuring that they comply with the rule of not engaging in a sexual relationship with a client/patient. While we are sympathetic to your personal situation, our hands are tied by a strong legal rule designed to protect patients. You have paid a heavy price for breaking the rule. We sincerely hope to see you again as an active member of the dental hygiene profession.
The Divisional Court’s decision
[19] The Divisional Court dismissed the appellant’s appeal from the Committee’s decision. The court held, based on Mussani, that the appellant has neither a constitutionally protected right to engage in sexual relations with a patient nor a right to practice as a dental hygienist. The court held, further, that the imposition of professional consequences as a result of the appellant’s breach of the Code did not engage the right to liberty or security of the person under s. 7 of the Charter, which does not protect economic interests, citing R. v. Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145, at paras. 37-38, leave to appeal refused, [2014] S.C.C.A. No. 208. Nor did the mandatory revocation provisions engage security of the person by preventing access to health care, as the law did not involve state intrusion into bodily integrity or create significant delays in obtaining health care. The court concluded that the prohibition would not be considered overbroad under s. 7 in any event, again applying Mussani.
[20] The Divisional Court also rejected the argument that mandatory revocation constituted cruel and unusual treatment within the meaning of s. 12 of the Charter. The court applied this court’s decision in Mussani in holding that mandatory revocation of registration did not constitute treatment within the meaning of s. 12 and would not be considered cruel or unusual in any event, as it was neither so excessive as to outrage the standards of decency nor grossly disproportionate to what was appropriate in the circumstances. The court concluded, further, that the combined effect of mandatory revocation and publication of the appellant’s discipline history did not constitute cruel and unusual treatment.
[21] The Divisional Court rejected the argument that there had been a significant change in circumstances since the decision in Mussani had been released, such that the decision should be revisited.
Discussion
[22] The appellant argues that the Code’s zero-tolerance scheme infringes s. 7 and/or s. 12 of the Charter and that Mussani must be distinguished or overruled. In the alternative, the appellant says that the court should revisit its decision in Leering to give effect to what he submits was the Legislature’s intent: to prohibit sexual abuse of patients while permitting regulated health professionals to treat their spouses in circumstances where sexual abuse is not present.
[23] The first question that must be addressed is whether the court’s decision in Leering is correct. If it is not, it is unnecessary to address the Charter arguments.
Leering remains good law
[24] Leering involved a chiropractor who was living with the complainant in a conjugal relationship when he began treating her as a patient. He treated her 28 times during the course of their relationship, which lasted for under 12 months, and billed her for the treatments. A dispute over fees owing at the end of the relationship led to a complaint to the College, which determined that the chiropractor should be charged with sexual abuse. The Discipline Committee of the College of Chiropractors found the chiropractor guilty of sexual abuse and imposed the mandatory penalty of revocation of registration. The Divisional Court reversed the decision on appeal, holding that the Discipline Committee was required to inquire into whether the sexual relationship arose out of a spousal or professional relationship in order to determine whether there was sexual abuse.
[25] The Court of Appeal held that the Divisional Court erred by imposing an obligation on the Discipline Committee to inquire into the nature of the parties’ sexual relationship. As Feldman J.A. explained, at para. 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 healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made. [1]
[26] The appellant argues that the Legislature “overruled” Leering by amending the Code in 2013 to authorize individual colleges to enact regulations permitting practitioners to treat their spouses. Although the spousal exception regulation for dental hygienists was not in place when treatment in this case took place, the appellant says that the Legislature’s “clear rebuke” of Leering means that the decision ought to be revisited in order to give the Discipline Committee the discretionary authority to determine whether treatment of a spouse involves actual sexual abuse. “On any reasonable view”, the appellant asserts, “the concerns about exploitation of a power dynamic or the inducement of consent simply do not arise where the professional and patient are in a pre-existing spousal relationship”. Moreover, the appellant argues, the mandatory revocation provisions “were never intended to apply to a member who, on a limited basis, treats his or her spouse or romantic partner where the romantic relationship preceded any treatment rendered.”
[27] This argument must be rejected. In essence, it invites the court to convert the bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships between practitioners and patients to be evaluated to determine whether discipline is warranted in particular circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the nature or duration of those relationships.
[28] The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship. The Legislature did not prohibit only sexual relationships that are abusive, leaving it to disciplinary proceedings to determine what constitutes abuse; it prohibited sexual relationships between regulated health practitioners and their patients per se. This approach obviates the need for discipline committees – bodies composed of health care professionals and laypeople – to inquire into the nature of sexual relationships and whether, as the appellant would have it, they give rise to “actual sexual abuse” because they arise out of coercion or exploitation. Justice Feldman’s observation in Leering, at para. 41, remains apt:
The discipline committee of the College has expertise in professional conduct matters as they relate to chiropractic practice. Their expertise is not in spousal relations or dynamics, nor would it be fruitful, productive or relevant to the standards of the profession for the committee to investigate the intricacies of the sexual and emotional relationship between the professional and the complainant. That is why the Code has defined the offence in such a way that the fact of a sexual relationship and the fact of a doctor-patient relationship are what must be established.
[29] The purpose of the rule-based approach established by the Code is to avoid any doubt or uncertainty by establishing a clear prohibition that is easy to understand and easy to follow. Sexual relationships with patients are forbidden and members of the regulated health professions must govern themselves accordingly, regardless of whether the rule seems harsh or unfair in their personal circumstances.
[30] Rules may be subject to exceptions, of course, but the Legislature’s decision to amend the Code to permit colleges to establish a spousal treatment exception cannot be taken to have overruled Leering. On the contrary, it acknowledged the decision while permitting individual colleges to mitigate the strictures of the rule by adopting a narrow and specific exception if they consider it appropriate to do so. And while that exception has since been adopted by the College of Dental Hygienists, it came into effect only after the appellant provided the treatment that gave rise to the finding of misconduct in this case. The appellant was required to comply with the rule prohibiting sexual relationships with patients at all relevant times – even after he and S.M. married.
[31] That said, it is important to clear up a misconception that underlies the decisions of both the Committee and the Divisional Court, as well as the appellant’s submissions, all of which use the term “spouse” without regard to its definition in s. 1(6) of the Code.
[32] As I have said, that definition is narrow and specific. It requires either (i) marriage or (ii) cohabitation in a conjugal relationship for a minimum period of three years. In other words, the exception applies only to sexual relationships of some permanence. Even if the exception had been in effect when he treated S.M. during their cohabitation in a conjugal relationship prior to their marriage, the appellant would have been in violation of the rule because that relationship had not run for the required three-year period.
[33] The appellant’s marriage to S.M. does not have retrospective effect, nor does it operate to render the definition of spouse irrelevant in the application of the exception. Treatment cannot be given to sexual partners outside the context of a spousal relationship, as defined by the Code, regardless of whether marriage occurs subsequently.
[34] In summary, the decision of this court in Leering remains good law. The Committee’s decision that the appellant’s actions violated the Code is correct. Even if it had been in force at the relevant time, the spousal exception would not have operated to excuse the appellant’s pre-marital treatment of S.M. after they began their sexual relationship. And because it was not in force, the spousal exception did not excuse the appellant’s post-marital conduct either.
Mussani remains good law
[35] In Mussani this court held that there is no constitutional right to practice a profession and that the penalty of mandatory revocation of a health professional’s certificate of registration affects an economic interest that is not protected by ss. 7 or 12 of the Charter. Security of the person was not engaged by the revocation of registration regardless of the stress, anxiety, and stigma to which disciplinary proceedings inevitably give rise in the context of sexual abuse allegations, nor was a liberty right engaged. The court concluded that the provisions of the Code were in accordance with the principles of fundamental justice in any event. Further, the court held that revocation of registration does not constitute punishment or treatment and that, even if it did, it would not be considered cruel and unusual as it is neither so excessive as to outrage standards of decency nor grossly disproportionate to what is appropriate in the circumstances.
[36] Although the Supreme Court has made clear that s. 7 of the Charter is not limited to the criminal law context and, in particular, to legal rights in that context, the application of the right outside the criminal law and the administration of justice has been limited. The generality of the rights that engage the protection of the principles of fundamental justice – life, liberty, and security of the person – does not mean that all laws necessarily trigger the application of s. 7. Thus, the right to liberty is not to be understood as a prima facie freedom from any restraints on action – as though it protects a right to do whatever one wants. As Newman and Régimbald point out in The Law of the Canadian Constitution, 2nd ed. (Toronto: LexisNexis, 2017) at §23.28, “it protects only those fundamental choices concerning which individuals have a genuine and legitimate claim grounded in the values of human autonomy and dignity. It is a protection of the fundamental and not the petty and of that which is rightfully claimed rather than what someone merely asserts to be important.” And while security of the person has been found to embrace psychological as well as physical security of the person, such that it includes bodily integrity and the choices relevant to bodily integrity, including serious psychological stress, as I will explain these concepts remain limited and it is clear that they do not extend to the economic interests advanced by the appellant, as this court held in Mussani.
[37] The appellant submits that Mussani is based on outdated case law that has been supplanted by an expansive interpretation of the liberty interest in s. 7. However, the appellant’s argument focuses on security of the person. He submits that the court must consider whether the permanent notation of the details of a finding of sexual abuse on the appellant’s record, and the requirement to publicize those findings – a requirement added in 2007 – engages the right to security of the person in a manner that was not considered in Mussani.
[38] The appellant says that the issue is properly characterized not as whether s. 7 protects a positive right to practice a profession unfettered by standards and regulations, but instead, as whether it encompasses the negative right not to be deprived of a state-granted privilege to practice a profession except in accordance with the principles of fundamental justice. The appellant argues that psychological stress flows directly and automatically from the revocation of registration, and that this stress should be considered analogous to the possibility of the removal of a child, which was held to have engaged security of the person in New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 SCC 653, [1999] 3 S.C.R. 46.
[39] These arguments must be rejected.
[40] The basic holding in Mussani is supported by what the Attorney General aptly describes as an unbroken line of authority from the Supreme Court of Canada confirming that s. 7 of the Charter does not protect the right to practice a profession or occupation, an example of what that court has described as “pure economic interests”. The cases include Walker v. Prince Edward Island, 1995 SCC 92, [1995] 2 S.C.R. 407, in which the Court summarily affirmed the decision of the Prince Edward Island Court of Appeal that s. 7 does not protect the right to practice a profession (in that case, public accounting) and Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45, in which the Court held that s. 7 “encompasses fundamental life choices, not pure economic interests” (in that case, the ability to generate business revenue by one’s chosen means).
[41] Nor is there a common law right to practice a profession free of regulation. As the Court held in Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 49, the right to practice a profession (in that case, law) is a statutory right – an important right, to be sure, but a right that is subject to adherence to the governing legislation and rules made under it. There is no common law, proprietary or constitutional right to practice medicine, as this court reiterated in Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, 147 O.R. (3d) 444, at para. 187.
[42] In my view, the holdings in these cases extend to all the regulated health professions. Revocation of the appellant’s certificate of registration for violating the Code engages neither the right to liberty nor the right to security of the person.
[43] The appellant’s attempt to repackage the Charter argument by expressing the claim negatively rather than positively – arguing that this case is concerned with the negative right not to be deprived of his state-granted privilege to practice his profession, rather than the positive right to practice his profession – neither distinguishes nor undermines Mussani. Mussani was concerned with the loss of professional registration, and security of the person is not engaged whether the claim is packaged negatively or positively. Rather, security of the person is engaged when there is either interference with bodily integrity and autonomy or serious state-imposed psychological stress: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 66-67. Neither has occurred in this case.
[44] Publication of the decision to revoke the appellant’s certificate of registration for sexual abuse does not alter the analysis. Professional discipline is stressful, to be sure, but it does not give rise to constitutional protection on that account. In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, and in G.(J.), the Supreme Court articulated the need for a “serious and profound effect” on a person’s psychological integrity before security of the person is engaged: Blencoe, at para. 81; G.(J.), at para. 60. The threshold was crossed in G.(J.) because a mother was facing the possibility that the state would sever her relationship with her child. This is a profound interference with family autonomy and decisions taken in the context of regulating health care practitioners pale alongside it.
[45] In saying this, I do not mean to minimize the significance of professional discipline. But s. 7 does not apply simply because legislation gives rise to serious consequences. Psychological integrity is a narrow and limited concept, and the right to security of the person is engaged only if there is a serious and profound effect on psychological integrity. The matter is to be judged on an objective basis, having regard to persons of ordinary sensibilities. It is irrelevant whether state action causes upset, stress, or worse. There must be a serious and profound impact on psychological integrity before the protection of s. 7 is engaged. Nothing in this case suggests that this threshold has been crossed, nor has the appellant proffered any basis for this court to revisit that threshold.
Revocation of registration is not inconsistent with the principles of fundamental justice
[46] Given that the rights protected by s. 7 are not engaged by the discipline process, it is unnecessary to determine whether mandatory revocation is contrary to the principles of fundamental justice. But for completeness, I am satisfied that it is not.
[47] The appellant argues that the impugned provisions are overbroad. The test for overbreadth is whether “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101; reiterated in Carter, at para. 85. As the Court explained in Carter, the test is not whether the legislature has chosen the least restrictive means; it is “whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature”: at para. 85 (emphasis added).
[48] This is a difficult test to meet and it is not met in this case. Indeed, as the Attorney General notes, the Code is more narrowly tailored than it was when Mussani was decided; it now includes a spousal exception, which colleges can choose to adopt, and in addition the regulations have been amended to remove the provision of minor or emergency treatment from the prohibition: see Code, s. 95(1)(0.a); Regulated Health Professions Amendment Act (Spousal Exception), 2013, S.O. 2013, c. 9, s. 2; and Patient Criteria Under Subsection 1 (6) of the Health Professions Procedural Code, O. Reg. 260/18, s. 1.2. Subject to these exceptions, the law establishes a zero-tolerance policy concerning treating relationships that are sexual.
[49] The Code’s rule-based approach is connected to the Legislature’s purpose in prohibiting sexual abuse of patients. It assures patients that their relationships with health care providers will not become sexualized – that they will not have to negotiate a sexualized atmosphere in seeking health care. Plainly, it is within the mischief contemplated by the Ontario Legislature and would not constitute overbreadth within the meaning of s. 7.
The rights of the spouse are not engaged
[50] For completeness, I would also reject the appellant’s argument that the impugned provisions of the Code engage the liberty or security of the person rights of spouses of health care practitioners, an argument not addressed in Mussani. The appellant argues that the Code engages the rights of spouses by forcing them to choose between their spousal relationship and their place of residence, and by requiring them to travel to seek treatment rather than be treated by their health practitioner spouses.
[51] It is not clear that it is appropriate to address this argument in the context of this case, which concerns the rights of practitioners rather than spouses. But in any event, I see no merit in the argument. Even assuming (without deciding) that the rights of spouses under s. 7 of the Charter are engaged in the present context, on the facts here travelling for health care treatment would constitute an inconvenience rather than an infringement of liberty or security of the person. The appellant draws a long bow in likening this case to R. v. Morgentaler, 1988 SCC 90, [1988] 1 S.C.R. 30, in which access to abortion was criminalized but permitted subject to compliance with a regulatory scheme that operated differently across the country. The inconvenience posited by the appellant in this case is minor, if not trivial. And to the extent that a health care professional provides care that is minor in nature or is required on an emergency basis, it is permitted on the basis that it does not establish a practitioner-patient relationship. In short, nothing in this case rises to the level of an infringement of s. 7 from the perspective of the spouse of a practitioner.
The fresh evidence application
[52] The respondent brings a fresh evidence application designed to demonstrate that there was no factual basis for the argument that S.M. would have suffered stress and anxiety if not treated by the appellant. In light of the rejection of the appellant’s s. 7 argument, the fresh evidence could not be expected to have affected the result in this case and I would not admit it.
Revocation of registration does not infringe section 12 of the Charter
[53] The appellant argues that the rejection of a s. 12 breach in Mussani was premised on the erroneous rejection of the very facts of this case as a reasonable hypothetical, because the court did not think these circumstances were possible. Further, the appellant says, the combined effect of mandatory revocation of registration and the permanent notation on the public register constitutes cruel and unusual treatment.
[54] The appellant’s submissions founder at the first stage of the inquiry. Although “treatment” may extend the protection of s. 12 beyond instances of punishment and other state action associated with the criminal law that affects individuals, there is no authority supporting the premise that professional regulation constitutes “treatment” within the meaning of s. 12. I see no basis for concluding that regulation of the health care professions is subject to s. 12, and no basis for concluding that it would meet the very high bar established by the Supreme Court in any event.
[55] Contrary to the appellant’s argument, this court did not reject the very facts of this case as a reasonable hypothetical in Mussani. The hypothetical in Mussani at para. 101 was premised on the provision of incidental care to a spouse, which the court considered unlikely to establish a physician/patient relationship. Moreover, Blair J.A. rejected the argument that the law wrongly included relationships that began during the course of treatment, as occurred in this case. As he explained at para. 79:
The fact that an intimate sexual relationship which began during treatment may blossom into a truly loving one but still lead to revocation of a health professional’s certificate of registration, does not necessarily make the Mandatory Revocation Provisions unconstitutionally broad, in the sense that they overshoot the legislative objectives. The health professional need only terminate the treatment relationship to avoid the problem. The issue is whether the means chosen by the Legislature – mandatory revocation of the certificate of registration – are overly broad in relation to the purpose of the legislation. If they are not, the legislature has the right to make difficult policy decisions that may, in rare cases, override what might otherwise be considered permissible conduct. [Emphasis in original; citations omitted.]
[56] The appellant’s argument that s. 12 is infringed must be rejected. Mussani remains good law.
The relevance of the Charter and fairness concerns
[57] Rejection of the appellant’s Charter arguments does not mean that health care practitioners do not enjoy the protection of the Charter. It means only that revocation of the appellant’s certificate of registration does not limit his rights in either ss. 7 or 12 of the Charter. The severity of the impact of this regulatory penalty on the appellant does not alter this analysis.
[58] In answer to a question from the panel during the hearing of the appeal, the appellant invited the court to stay the decision of the Discipline Committee pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, even if it upheld the decisions in Leering and Mussani, on the basis that it was harsh or unfair. In effect, the court was invited to nullify the legislation.
[59] The short answer to this invitation is no. The court cannot refuse to give effect to the lawful decision of an administrative tribunal on the basis that it disapproves of the outcome in a particular case.
[60] The court’s power to stay a matter in s. 106 is far more limited in nature: it is concerned with staying “any proceeding in the court”, rather than the decisions of administrative tribunals, and is typically invoked to stay judicial proceedings based on jurisdiction, convenience of forum, choice of law or venue clauses, or pending criminal or civil proceedings or arbitration. It is not available in this case. Nor is there any other basis to refuse to give effect to the Discipline Committee’s decision. If the penalty of mandatory revocation of a certificate of registration is considered unfair or unwise, it is a matter for the Legislature to address.
Conclusion
[61] In summary, as this court held in Leering, the Code defines sexual abuse as the concurrence of a sexual relationship and a health care professional-patient relationship. And as this court held in Mussani, neither this definition nor the penalty of revocation of registration establishes limits on either s. 7 or s. 12 of the Charter. It follows from the dismissal of the appeal that the decision of the Discipline Committee must be given effect.
[62] I would dismiss the appeal and award the respondent costs in the agreed amount of $5,000, all inclusive.
Released: July 5, 2021 “K.F.” “Grant Huscroft J.A.” “I agree. K. Feldman J.A.” “I agree. J.C. MacPherson J.A.” “I agree. R.G. Juriansz J.A.” “I agree. M. Jamal J.A.”
Footnote:
[1] The Court acknowledged that there was some room for interpretation when it comes to whether or not a complainant was a patient of the health care practitioner, involving cases of incidental treatment, an issue not relevant in this case.
