Mussani v. College of Physicians, (2004) 193 O.A.C. 23 (CA)

• Judge: Armstrong, Blair and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 29, 2004
• Jurisdiction: Ontario
• Citations: (2004), 193 O.A.C. 23 (CA)

Mussani v. College of Physicians (2004), 193 O.A.C. 23 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JA.006

Dr. Anil Mussani (appellant) v. College of Physicians and Surgeons of Ontario (respondent) and The Ontario Medical Association, Attorney General of Ontario, Ontario Nurses' Association and College of Nurses of Ontario (intervenors)

(C40577)

Indexed As: Mussani v. College of Physicians and Surgeons (Ont.)

Ontario Court of Appeal

Armstrong, Blair and Juriansz, JJ.A.

December 29, 2004.

Summary:

A doctor found guilty of professional misconduct for sexually abusing a patient had his certificate or licence to practice revoked by the Discipline Committee of the College of Physicians and Surgeons. The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate for a period of no less than five years for professional misconduct by sexually abusing a patient. The doctor appealed the penalty imposed, submitting that the mandatory revocation of his right to practise for a minimum of five years (zero tolerance penalty regime) violated ss. 7 (deprivation of liberty or security of the person) and 12 (cruel and unusual punishment) of the Charter of Rights and Freedoms and were of no force and effect. If successful on the constitutional validity issue, the doctor submitted that an appropriate penalty was a reprimand. The Ontario Medical Association (intervenor) submitted that the Mandatory Revocation Provisions violated freedom of association (Charter, s. 2(d)).

The Ontario Divisional Court, in a judgment reported (2003), 172 O.A.C. 1, dismissed the appeal. The Provisions did not violate ss. 2(d), 7 or 12 of the Charter. Alternatively, any Charter rights violation would be saved as a reasonable limit prescribed by law. The doctor appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 651.2

Liberty - Limitations on - Right to practice one's profession - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate for a period of no less than five years for professional misconduct by sexually abusing a patient - The Ontario Medical Association submitted that although the right to liberty under s. 7 of the Charter did not generally protect economic interests, the right to liberty should protect the interests of a professional facing the loss of a licence to practise - The Ontario Court of Appeal held 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." - See paragraphs 37 to 43.

Civil Rights - Topic 660.6

Liberty - Limitations on - Sexual relations with patients, clients, etc. - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate for a period of no less than five years for professional misconduct by sexually abusing a patient - The Ontario Divisional Court held that the right to liberty under s. 7 of the Charter did not guarantee the right to "consensual sexual relations" - The court stated that "it is difficult to discern a valid 'liberty' interest in sexual relations between physician and patient, even if consensual, given the concern over the power imbalance, the 'inherently suspect' nature of any 'consent', the exploitive nature of the relationship, and in circumstances where the cultural values of our society have held for centuries the belief that sexual contact between physician and patient is fundamentally improper" - The Ontario Court of Appeal agreed - The court rejected the submission that the Provisions violated "liberty" interests by interfering with a health professional's right to make fundamental personal life choices unimpeded by state action" - In any event, any deprivation of liberty would fail because the Provisions were in accordance with the principles of fundamental justice - See paragraphs 44 to 47.

Civil Rights - Topic 1415

Security of the person - Professional occupations - Sexual relations with patients, clients, etc. - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate or licence to practice for a period of no less than five years for deemed professional misconduct involving certain types of sexual abuse of a patient - A physician whose licence was revoked for having a consensual sexual relationship with a patient submitted that the Provisions violated his right to security of the person in a manner not in accordance with the principles of fundamental justice - The Ontario Divisional Court held that, assuming security interests were engaged, any denial of the right to security was in accordance with the principles of fundamental justice - The court rejected submissions that the meaning of "patient" was impermissibly vague, that the Provisions were overly broad, and that exclusion of consent as a defence and the removal of the Discipline Committee's discretion was contrary to the principles of fundamental justice - The Provisions struck a fair balance between the rights of the public and the individual - Had the Provisions violated s. 7, the court would have found them saved under s. 1 of the Charter as being demonstrably justified - The Ontario Court of Appeal affirmed the decision - See paragraphs 44 to 85.

Civil Rights - Topic 2103

Freedom of association - General - Scope of right - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate or licence to practice for a period of no less than five years for deemed professional misconduct involving certain types of sexual abuse of a patient - A physician whose licence was revoked for having a consensual sexual relationship with a patient submitted that the Provisions violated his s. 2(d) Charter right to freedom of association by restricting who he could have a sexual relationship with - The Ontario Divisional Court held that the physician's freedom of association was not violated - The court stated that "the purpose of s. 2(d) is to promote social interaction and collective action, not private sexual relationships. The courts have repeatedly refused to find that intimate personal relationships are protected under s. 2(d). ... In order to enjoy the guarantee of freedom of association, the association in question must advance some social value deserving of constitutional protection. ... a sexual relationship between a doctor and patient is of no social value due to the harmful effects it often has on the patient." - The Ontario Court of Appeal affirmed the decision - See paragraphs 104 to 109.

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - [See Civil Rights - Topic 1415 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See Civil Rights - Topic 1415 ].

Civil Rights - Topic 3807

Cruel and unusual treatment or punishment - General - Punishment - Meaning of - Mandatory revocation of professional's licence to practice - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate or licence to practice for a period of no less than five years for deemed professional misconduct involving certain types of sexual abuse of a patient - A physician whose licence was revoked for having a consensual sexual relationship with a patient submitted that the Provisions constituted cruel and unusual punishment contrary to s. 12 of the Charter - The Ontario Court of Appeal affirmed that s. 12 was not violated - Assuming, without deciding, that the revocation of a professional's licence to practice by his governing body constituted "punishment" or "treatment" within the meaning of s. 12, the licence revocation was not cruel and unusual treatment and punishment - Revocation as a penalty was not grossly disproportionate to the gravity of the proscribed misconduct - See paragraphs 86 to 103.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 1415 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1415 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - [See Civil Rights - Topic 660.6 ].

Medicine - Topic 2186

Discipline for professional misconduct - Punishments - Revocation of licence - The Mandatory Revocations Provisions in the Health Professions Procedural Code provided for a mandatory revocation of a physician's certificate or licence to practice for a period of no less than five years for deemed professional misconduct involving certain types of sexual abuse of a patient - A physician's licence was revoked for having a consensual sexual relationship with a patient - The Ontario Court of Appeal affirmed that the mandatory licence revocation did not violate s. 2(d) (freedom of association), 7 (liberty and security of the person) or 12 (cruel and unusual treatment or punishment) of the Charter of Rights and Freedoms - If there was a Charter rights violation, the court would have found the Provisions saved under s. 1 of the Charter as having been demonstrably justified.

Cases Noticed:

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 37].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1999), 118 O.A.C. 291; 44 O.R.(3d) 73 (C.A.), refd to. [para. 40].

Condo v. Registrar of Motor Vehicles (Ont.) (1999), 123 O.A.C. 111 (Div. Ct.), refd to. [para. 40].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 41].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1, refd to. [para. 41].

Biscotti, Costantini and Orton v. Ontario Securities Commission (1990), 40 O.A.C. 129; 74 O.R.(2d) 119 (Div. Ct.), revd. in part (1991), 45 O.A.C. 293; 1 O.R.(3d) 409 (C.A.), leave to appeal refused [1991] 1 S.C.R. vi; 136 N.R. 408; 50 O.A.C. 160, refd to. [para. 41].

Belhumeur v. Comité de discipline du Barreau du Québec et al. (1988), 16 Q.A.C. 1; 54 D.L.R.(4th) 105 (C.A.), refd to. [para. 41].

British Columbia Teachers' Federation et al. v. Board of Education of School District No. 39 (Vancouver) et al. (2003), 178 B.C.A.C. 250; 292 W.A.C. 250; 224 D.L.R.(4th) 63 (C.A.), refd to. [para. 41].

Walker and Robertson v. Prince Edward Island (1993), 111 Nfld. & P.E.I.R. 150; 348 A.P.R. 150; 107 D.L.R.(4th) 69 (P.E.I.C.A.), affd. [1995] 2 S.C.R. 407; 181 N.R. 158; 130 Nfld. & P.E.I.R. 181; 405 A.P.R. 181, refd to. [para. 41].

Karmash v. Ontario Association of Professional Engineers (1998), 109 O.A.C. 334 (Div. Ct.), refd to. [para. 41].

Cosyns v. Canada (Attorney General) et al. (1992), 53 O.A.C. 127; 7 O.R.(3d) 641 (Div. Ct.), refd to. [para. 41].

Charbonneau v. College of Physicians and Surgeons (Ont.) (1985), 52 O.R.(2d) 552 (H.C.), refd to. [para. 41].

Wilson v. Medical Services Commission (B.C.) (1988), 53 D.L.R.(4th) 171 (B.C.C.A.), dist. [para. 42].

Khaliq-Kareemi v. Health Services and Insurance Commission (N.S.) (1989), 89 N.S.R.(2d) 388; 227 A.P.R. 388; 57 D.L.R.(4th) 505 (C.A.), dist. [para. 42].

Branigan v. Yukon Medical Council et al. (No. 2) (1986), 1 Y.R. 95; 26 D.L.R.(4th) 268 (S.C.), dist. [para. 42].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 46].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1, refd to. [para. 46].

Hitzig et al. v. Canada (2003), 177 O.A.C. 321 (C.A.), refd to. [para. 46].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 46].

R. v. Transport Robert (1973) Ltée et al. (2003), 178 O.A.C. 361; 68 O.R.(3d) 51 (C.A.), refd to. [para. 49].

A.B. v. College of Physicians and Surgeons (P.E.I.) (2001), 205 Nfld. & P.E.I.R. 131; 615 A.P.R. 131 (P.E.I.T.D.), refd to. [para. 54, footnote 11].

Fancy v. Shephard (1997), 164 N.S.R.(2d) 274; 491 A.P.R. 274 (S.C.), refd to. [para. 54, footnote 11].

Lawrence v. Texas (2003), 539 U.S. 558, refd to. [para. 54, footnote 11].

National Coalition for Gay and Lesbian Equality v. Minister of Justice, [1998] 12 B. Const. L.R. 1517, refd to. [para. 54, footnote 11].

Dudgeon v. United Kingdom (1981), 4 Eur. Ct. H.R. 149, refd to. [para. 54, footnote 11].

Toonen v. Australia (March 31, 1994), Communication No. 488/1992 (U.N. Human Rights Committee), refd to. [para. 54, footnote 11].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 58].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1, refd to. [para. 63].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 63].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 63].

Boodoosingh v. College of Physicians and Surgeons (Ont.) (1990), 39 O.A.C. 51; 73 O.R.(2d) 478 (Div. Ct.), affd. (1993), 63 O.A.C. 173; 12 O.R.(3d) 707 (C.A.), leave to appeal refused [1993] 4 S.C.R. v; 164 N.R. 402; 69 O.A.C. 159, refd to. [para. 64].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 69].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 73].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 75].

Melunsky v. College of Physiotherapists (Ont.), [1999] O.A.C. Uned. 8 (Div. Ct.), refd to. [para. 76].

N. v. College of Physicians and Surgeons (B.C.) (1997), 86 B.C.A.C. 181; 142 W.A.C. 181; 143 D.L.R.(4th) 463 (C.A.), refd to. [para. 76].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1, refd to. [para. 81].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 81].

Henderson v. College of Physicians and Surgeons (Ont.) (2003), 172 O.A.C. 337; 65 O.R.(3d) 146 (C.A.), refd to. [para. 89].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 24 O.A.C. 321; 61 Sask.R. 105, refd to. [para. 91].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 91].

Brosseau v. Alberta Securities Commission - see Barry and Brosseau v. Alberta Securities Commission.

Adams v. Law Society of Alberta (2000), 266 A.R. 157; 228 W.A.C. 157 (C.A.), refd to. [para. 91].

Latulippe v. College des Médecins, [1998] A.Q. No. 1866 (C.A.), refd to. [para. 91].

Stevens v. Law Society of Upper Canada (1979), 55 O.R.(2d) 405 (Div. Ct.), refd to. [para. 91].

Warnes v. College of Physicians and Surgeons (Ont.) (1993), 62 O.A.C. 258 (Div. Ct.), refd to. [para. 91].

Piller v. Ontario Association of Land Surveyors et al. (2002), 160 O.A.C. 333 (C.A.), dist. [para. 92].

Matheson v. College of Nurses (Ont.) (1980), 27 O.R.(2d) 632 (Div. Ct.), dist. [para. 92].

Stoangi v. Law Society of Upper Canada (1978), 22 O.R.(2d) 274 (H.C.), dist. [para. 92].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 96].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 96].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 97, footnote 18].

R. v. McDonald (C.) (1998), 111 O.A.C. 25; 40 O.R.(3d) 641 (C.A.), refd to. [para. 97, footnote 20].

Catholic Children's Aid Society of Metropolitan Toronto v. T.S. and C.S. et al. (1989), 33 O.A.C. 213; 69 O.R.(2d) 189 (C.A.), refd to. [para. 107].

R. v. M.S. (1996), 84 B.C.A.C. 104; 137 W.A.C. 104; 111 C.C.C.(3d) 467 (C.A.), refd to. [para. 107].

R. v. Skinner, [1990] 1 S.C.R. 1235; 109 N.R. 241; 98 N.S.R.(2d) 181; 263 A.P.R. 181, refd to. [para. 107].

Horbas et al. v. Minister of Employment and Immigration et al. (1985), 22 D.L.R.(4th) 600 (F.C.T.D.), refd to. [para. 107].

Gray v. Minister of Manpower and Immigration, [1985] F.C.J. No. 407 (T.D.), refd to. [para. 107].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201, refd to. [para. 108].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 110].

College of Physicians and Surgeons (Ont.) v. K. (1987), 19 O.A.C. 51; 59 O.R(2d) 1 (C.A.), refd to. [para. 113].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81, refd to. [para. 113].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 113].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 113].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(d) [para. 104]; sect. 7 [para. 44]; sect. 12 [para. 86].

Health Professions Procedural Code - see Regulated Health Professions Act.

Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2 (Health Professions Procedural Code), sect. 1(3), sect. 1(4), sect. 1.1, sect. 51(5), sect. 72(1), sect. 72(3), sect. 73(5.1) [para. 30].

Authors and Works Noticed:

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Ontario, College of Physicians and Surgeons, Task Force on Sexual Abuse of Patients, Final Report (1991), generally [para. 2, footnote 2]; pp. 15, 16, 24, 92, 97 [para. 21, footnote 4].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, Standing Committee on Social Development, 3rd Sess., 35th Parliament (November 30, 1993), pp. s-612 to s-614 [para. 28, footnote 9].

Counsel:

W. Neils Ortved, Jonathan Lisus and Christopher A. Wayland, for the appellant, Mussani;

Paul Schabas, Lisa Brownstone and Vicki White, for the respondent, College of Physicians and Surgeons of Ontario;

Sean Hanley, for the intervenor, Attorney General of Ontario;

Christopher D. Bredt, for the intervenor, Ontario Medical Association;

Elizabeth J. McIntyre, for the intervenor, Ontario Nurses' Association;

Linda Rothstein and Robert A. Centa, for the intervenor, College of Nurses of Ontario.

This appeal was heard on June 24, 2004, before Armstrong, Blair and Juriansz, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Blair, J.A., and released on December 29, 2004.