Hanif v. College of Pharmacists (Ont.) et al., (2015) 339 O.A.C. 154 (CA)

• Judge: Laskin, MacPherson and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 17, 2015
• Jurisdiction: Ontario
• Citations: (2015), 339 O.A.C. 154 (CA);2015 ONCA 640

Hanif v. College of Pharmacists (2015), 339 O.A.C. 154 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.014

Mohamed Imran Hanif (applicant/appellant) v. Ontario College of Pharmacists and Her Majesty the Queen in right of Ontario (respondents/respondents)

(C59765; 2015 ONCA 640)

Indexed As: Hanif v. College of Pharmacists (Ont.) et al.

Ontario Court of Appeal

Laskin, MacPherson and MacFarland, JJ.A.

September 21, 2015.

Summary:

The appellant was a pharmacist. He was involved in a consensual sexual relationship with a patient. Sexual activity between a health professional and a patient constituted sexual abuse under the Health Professions Procedural Code. A finding of sexual abuse resulted in a mandatory revocation of the health professional's certificate of registration. The appellant challenged the constitutional validity of the mandatory revocation provisions of the Code, claiming that the Code intruded into federal jurisdiction over the criminal law under s. 91(27) of the Constitution Act.

The Ontario Superior Court, in a decision cited as 2014 ONSC 6613, dismissed the application. The court held that the provisions of the Code were, in pith and substance, concerned with regulating health professions under s. 92(13) of the Constitution Act, 1867. The appellant appealed.

The Ontario Court of Appeal dismissed the appeal.

Constitutional Law - Topic 1581

Extent of powers conferred - Double aspect doctrine - General - [See Constitutional Law - Topic 6444 ].

Constitutional Law - Topic 2950

Determination of validity of statutes or acts - Pith and substance or matter - General principles - [See Constitutional Law - Topic 6444 ].

Constitutional Law - Topic 6444

Federal jurisdiction (s. 91) - Criminal law - Matters not criminal - The appellant was a pharmacist - He was involved in a consensual sexual relationship with a patient - Sexual activity between a health professional and a patient constituted sexual abuse under the Health Professions Procedural Code - A finding of sexual abuse resulted in a mandatory revocation of the health professional's certificate of registration - The appellant challenged the constitutional validity of the mandatory revocation provisions of the Code, claiming that the Code intruded into federal jurisdiction over the criminal law under s. 91(27) of the Constitution Act - The application judge dismissed the application, holding that the provisions of the Code were, in pith and substance, concerned with regulating health professions under s. 92(13) of the Constitution Act - The appellant appealed - The appellant submitted that the effect of the mandatory revocation of a professional licence not only terminated a person's livelihood, it also carried with it (because of its tie to sexual abuse) a substantial stigma - The appellant said that that stigma made the Code cross over the line from permissible regulation of a profession into impermissible regulation of morality in the context of consensual sexual relations - Once that line was crossed, the Code left the provincial harbour of s. 92(13) and intruded into one of the core components of federal criminal law under s. 91(27) of the Constitution Act, 1867 - The Ontario Court of Appeal dismissed the appeal - The mandatory revocation provisions of the Code were in pith and substance the regulation of health care professionals, not criminal law - The fact that Parliament might be able to criminalize much of the same behaviour was irrelevant - Under the aspect or double aspect doctrine, both levels of government could regulate different aspects of the same activity under their respective heads of power.

Constitutional Law - Topic 6492

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Public morals - [See Constitutional Law - Topic 6444 ].

Constitutional Law - Topic 7284.3

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Regulation of health care professionals - [See Constitutional Law - Topic 6444 ].

Constitutional Law - Topic 7297

Provincial jurisdiction - Property and civil rights - Regulatory statutes - Professional associations - [See Constitutional Law - Topic 6444 ].

Cases Noticed:

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 7].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para.16].

Statutes Noticed:

Constitution Act, 1867, sect. 91(27) [para. 2]; sect. 92(13) [para. 11].

Regulated Health Professions Act, Schedule 2, Health Professions Procedural Code, sect. 51(2), sect. 51(5) [para. 1].

Counsel:

Neil Abramson and Lindsay Kantor, for the appellant;

Josh Hunter, for the respondent, Her Majesty the Queen in right of Ontario;

Aaron Dantowitz, for the respondent, Ontario College of Pharmacists.

This appeal was heard on September 17, 2015, before Laskin, MacPherson and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered on September 21, 2015.