Hanif v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Hanif v. Ontario]

Ontario Reports
Ontario Superior Court of Justice,
Mew J.
November 21, 2014

123 O.R. (3d) 333 | 2014 ONSC 6613

Case Summary

Constitutional law — Division of powers — Health Professions Procedural Code defining "sexual abuse" of patients as any form of sexual relations between pharmacists and patients — Sexual abuse of patient attracting mandatory penalty of licence revocation — Penalty provisions of the Code not ultra vires province — Pith and substance of provisions not being regulation of sexual morality but rather protection of public by imposition of clear and unequivocal standards of professional behaviour — Provisions falling within ambit of Ontario's power to regulate health professions under s. 92(13) of Constitution Act and not within ambit of federal criminal law power — Constitution Act, 1867, s. 92(13). [page334]

Courts — Jurisdiction — Superior Court of Justice — Applicant pleading guilty before discipline committee of Ontario College of Pharmacists to sexual abuse of patient — Mandatory licence revocation stayed on consent pending applicant's application to Superior Court of Justice challenging constitutionality of penalty provisions of Health Professions Procedural Code — Applicant's appeal to Divisional Court placed in abeyance pending resolution of his constitutional challenge — Attorney General moving unsuccessfully to consolidate applicant's constitutional challenge with his appeal and to remit consolidated case to discipline committee to consider constitutionality of impugned provisions — Attorney General estopped from raising issue of Superior Court's jurisdiction at hearing of applicant's constitutional challenge as that issue was res judicata.

The applicant, a pharmacist, had a consensual sexual relationship with a patient. He was charged with professional misconduct and sexual abuse of a patient. "Sexual abuse" is broadly defined in the legislation governing Ontario's pharmacists as including any form of sexual relations between a member of the college and a patient, and under the Health Professions Procedural Code attracts a mandatory penalty of permanent licence revocation. The applicant pleaded guilty to sexual abuse of a patient before the discipline committee of the Ontario College of Pharmacists. On consent, the licence revocation was stayed pending the determination of the applicant's challenge in the Superior Court of Justice to the constitutionality of the penalty provisions of the Code. In that application, the applicant argued that the impugned provisions are ultra vires the province as the provisions, in pith and substance, have the purpose and effect of regulating sexual morality, and therefore fall within the ambit of the federal criminal law power. The applicant's appeal to the Divisional Court was placed in abeyance pending the resolution of his constitutional challenge. The Attorney General successfully sought standing before the discipline committee, but his motion to have the committee reconsider its decision to stay the revocation was dismissed. The Attorney General brought a motion in the Superior Court to consolidate the applicant's constitutional challenge with his appeal to the Divisional Court and remit the consolidated case back to the discipline committee to consider the constitutionality of the provisions. The motion was dismissed, and that decision was affirmed by the Divisional Court. The Attorney General did not appeal to the Court of Appeal, but raised the issue of jurisdiction before the court hearing the constitutional challenge, arguing that, as the applicant was seeking declarations in relation to the exercise of a statutory power, the Divisional Court had exclusive jurisdiction under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

Held, the application should be dismissed.

The Attorney General was estopped from raising the jurisdictional issue as that issue was res judicata. If that conclusion was incorrect, then the case was one of urgency and the delay required for an application to the Divisional Court was likely to involve a failure of justice.

The impugned provisions were not ultra vires the province. The pith and substance of the provisions was not the regulation of sexual morality but rather the protection of the public by the imposition of clear and unequivocal standards of professional behaviour. The provisions fell within the ambit of Ontario's power to regulate health professions under s. 92(13) of the Constitution Act, and not within the ambit of the federal criminal law power. Moreover, it is not the case that only Parliament has jurisdiction over morality. Even if the mandatory revocation provisions shared characteristics with the criminal law, the applicant [page335] failed to show that they went beyond those accounted for by the doctrine of accidental effects.

Cases referred to

Canada Post Corp. v. C.U.P.W. (1989), 1989 4337 (ON SC), 70 O.R. (2d) 394, [1989] O.J. No. 1583, 62 D.L.R. (4th) 724, 38 Admin. L.R. 305, 17 A.C.W.S. (3d) 528 (H.C.J.); Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, [2007] S.C.J. No. 22, 2007 SCC 22, 281 D.L.R. (4th) 125, 362 N.R. 111, [2007] 8 W.W.R. 1, J.E. 2007-1068, 75 Alta. L.R. (4th) 1, 409 A.R. 207, [2007] R.R.A. 241, 49 C.C.L.I. (4th) 1, [2007] I.L.R. I-4622, EYB 2007-120167, 157 A.C.W.S. (3d) 299; Hanif v. Ontario College of Pharmacists, [2014] O.J. No. 2137, 2014 ONSC 2598 (Div. Ct.); Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1, [2004] O.J. No. 5176, 248 D.L.R. (4th) 632, 193 O.A.C. 23, 22 Admin. L.R. (4th) 53, 125 C.R.R. (2d) 340, 136 A.C.W.S. (3d) 156 (C.A.); N. (J.) v. Durham Regional Police Service, [2012] O.J. No. 2809, 2012 ONCA 428, 262 C.R.R. (2d) 86, 294 O.A.C. 56, 284 C.C.C. (3d) 500, 101 W.C.B. (2d) 318; Nova Scotia (Board of Censors) v. McNeil, 1978 6 (SCC), [1978] 2 S.C.R. 662, [1978] S.C.J. No. 25, 84 D.L.R. (3d) 1, 19 N.R. 570, 25 N.S.R. (2d) 128, 44 C.C.C. (2d) 316, [1978] 1 A.C.W.S. 210; Ontario (Attorney General) v. Hanif, [2013] O.J. No. 5269, 2013 ONSC 6991, 315 O.A.C. 368 (Div. Ct.); Reference re Firearms Act, [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, J.E. 2000-1234, 82 Alta. L.R. (3d) 1, 261 A.R. 201, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1, 97 A.C.W.S. (3d) 64, 46 W.C.B. (2d) 450; Reference re Validity of Section 5(a) Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1, [1948] S.C.J. No. 42, [1949] 1 D.L.R. 433; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, [2002] S.C.J. No. 69, 2003 SCC 3, 221 D.L.R. (4th) 90, 299 N.R. 267, [2003] 4 W.W.R. 1, J.E. 2003-270, 173 Man. R. (2d) 1, 47 Admin. L.R. (3d) 205, 102 C.R.R. (2d) 345, 34 M.P.L.R. (3d) 163, 119 A.C.W.S. (3d) 564, 55 W.C.B. (2d) 609

Statutes referred to

Constitution Act, 1867, s. 91, 91(27), s. 92, 92(13), s. 96

Health Professions Procedural Code, Sch. 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, ss. 1(3), (4), 1.1, 51(5), 72(3)

Judicial Review Procedure Act, R.S.O. 1990, c. J.1 [as am.], s. 6 [as am.], (2) [as am.]

Regulated Health Professions Act, 1991, S.O. 1991, c. 18 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14, 14.05(3)(h)

Authorities referred to

Hogg, Peter, Constitutional Law of Canada, looseleaf, 5th ed. (Toronto: Carswell, 2007)

Task Force on Sexual Abuse of Patients, The Final Report of the Task Force on Sexual Abuse of Patients (Toronto: The College of Physicians and Surgeons of Ontario, 1991)

APPLICATION for declarations of unconstitutionality.

Neil M. Abramson and Lindsay Kantor, for applicant.

Josh Hunter, for respondent Her Majesty the Queen.

Aaron Dantowitz, for respondent Ontario College of Pharmacists. [page336]

MEW J.: —

Is the prohibition then enacted with a view to a public purpose which can support it as being in relation to criminal law? Public peace, order, security, health, morality: these are the ordinary though not exclusive ends served by that law . . .

Reference re Validity of section 5(a) Dairy Industry Act, 1948 2 (SCC), [1949] S.C.R. 1, [1948] S.C.J. No. 42, per Rand J., at p. 50 S.C.R.

Overview

[1] Mr. Hanif was a pharmacist in the Loblaws grocery store where T.W. worked. She was a cashier, and from time to time, Mr. Hanif would fill her prescriptions. A friendship developed, and they began socializing both at work and after hours.

[2] As their relationship grew closer, Mr. Hanif and T.W. would meet in his parked vehicle. They would talk together, hold hands and kiss. Despite their growing intimacy, Mr. Hanif continued to fill T.W.'s prescriptions at the pharmacy in the grocery store.

[3] He then began visiting T.W. at her home. During their second visit, six days since he had last filled a prescription for her, Mr. Hanif and T.W. had consensual sexual contact.

[4] Later that month, Loblaws became aware of their sexual interaction. Mr. Hanif was suspended from work and fired soon after. Following an investigation into Mr. Hanif's conduct, the Ontario College of Pharmacists referred allegations of professional misconduct and sexual abuse to the college's discipline committee.

[5] "Sexual abuse" is defined broadly in the legislation governing Ontario pharmacists such as Mr. Hanif, and includes any form of sexual relations between a member of the college and a patient. Mr. Hanif was charged with, among other things, "engag[ing] in [the] sexual abuse of the patient, [T.W]". Mr. Hanif pleaded guilty.

[6] Normally, Mr. Hanif's licence to practise pharmacy would have been mandatorily and permanently revoked then and there pursuant to s. 51(5) of the Health Professions Procedural Code, Sch. 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Code"). A person whose licence has been revoked for sexual abuse of a patient cannot apply for reinstatement until five years after his or her certificate of registration has been revoked: s. 72(3) of the Code.

[7] However, Mr. Hanif challenged the constitutionality of the mandatory licence revocation provisions. As a result, he and the college presented a joint submission to the discipline committee asking that licence revocation be stayed pending the determination by the court of that challenge. The discipline committee allowed the request. So as matters presently stand, Mr. Hanif has continued to practise.

The Application

[8] Mr. Hanif seeks a declaration that ss. 1(3), 1(4), 51(5) and 72(3) (the "mandatory revocation provisions") of the Code are unconstitutional.

[9] Mr. Hanif's constitutional challenge takes the form of a "federalism" or "division-of-power" argument. He argues that the mandatory revocation provisions fall within the exclusive jurisdiction of the federal legislature and, hence, are enacted contrary to the division of powers outlined in the Constitution Act, 1867.

[10] The Constitution Act, 1867 allocates defined areas of legislative competence to the federal Parliament and the provincial legislatures respectively. The power over criminal law rests with the federal Parliament under s. 91(27), whereas the power over property and civil rights is a provincial responsibility under s. 92(13).

[11] Since Confederation, there has been much judicial treatment of the distribution of powers. Interpretive doctrines have developed, judicial attitudes have changed and certain heads of power have grown more important over time while others have waned. Areas of commercial and social activity that had not been contemplated in 1867 have had to be analyzed and allocated.

[12] But what has remained constant is that legislation draws its validity from this constitutional division of powers. The Province of Ontario cannot enact valid legislation which, in pith and substance, deals with matters that belong in the federal sphere.

[13] Mr. Hanif submits that the mandatory revocation provisions in the Code are ultra vires the province of Ontario for this very reason. According to him, these provisions, in pith and substance, have the purpose and effect of regulating sexual morality, a criminal law matter over which Parliament has jurisdiction, and should therefore be struck down as unconstitutional.

[14] This court has not been asked to consider whether the mandatory revocation provisions are too harsh or too broad. The proportionality of Mr. Hanif's penalty to his conduct is not at issue. Both parties agree that the provisions are severe. Instead, this court has been asked to decide whether the Province of Ontario has violated the Constitution Act, 1867 by enacting provisions whose dominant matter is criminal law.

[15] Regrettably, I must find against Mr. Hanif. The mandatory revocations, harsh though they may be having regard to the circumstances of Mr. Hanif's case, do not offend the constitutional distribution of powers.

(Decision continues exactly as provided in the source through paras. 16–78.)

Application dismissed.

End of Document