Zero Tolerance for Sexual Abuse and Sexual Relationships
Regulated health professionals in Ontario are not permitted to have sexual relationships with their patients, regardless of whether the relationship is consensual or involves a power imbalance. There is simply a zero-tolerance policy, with narrow exceptions only for spouses of members of certain professions which have adopted regulations permitting such exceptions. Not all health care professions have adopted the spousal exception. In Tanase v. College of Dental Hygienists of Ontario, the Council of the College of Dental Hygienists of Ontario (the “College”) did not adopt the spousal exception until October 2020, well after the events in question leading up to the appeal.
Mr. Tanase was a dental hygienist. He entered into a sexual relationship with S.M., a woman he was treating. They eventually married and Mr. Tanase continued to treat her well into their marriage. In 2016, a complaint was made to the College and he was eventually found guilty of professional misconduct and had his certificate of registration revoked, which was mandatory pursuant to section 51(5) of the Health Professions Procedural Code (the “Code”).
Mr. Tanase appealed to the Divisional Court, which dismissed his appeal. He then appealed to the Court of Appeal for Ontario and described the revocation of his registration as an “absurdity” and asked the court to revisit its previous decisions in Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, and Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653, which both held that mandatory revocation for sexual abuse as defined by the Code did not violate Charter protected rights.
Mr. Tanase also argued that the zero-tolerance policy violated Charter rights and that it was not the government’s intent to prohibit regulated health professions from treating their spouses in circumstances where sexual abuse was not present.
Leering Remains Good Law: There is Zero Tolerance for a Reason
The court held that revoking a health professional’s certificate of registration is an extremely serious penalty, but it is not an absurd one. The court further held that it was open to the provincial government to form this rule and that it must be respected by the courts. The Code is clear when it comes to sexual relationships – it was neither ambiguous nor vague. The Code did not prohibit only “abusive” sexual relationships. It prohibits all sexual relationships between a member and a patient, subject only to the spousal exception. It is not a question of actual sexual abuse in a criminal law context. The purpose of the rule was to establish a clear prohibition that is easy to understand and follow: sexual relationships with patients are forbidden and regulated health professionals must govern themselves accordingly, regardless of whether that rule seems harsh, excessive, or unfair for any particular professional.
Mussani Remains Good Law: Charter Rights do not protect against Mandatory Revocation
The court also held, as it did in Mussani, that there is no constitutional right to practice a profession and that mandatory revocation penalties are not cruel and unusual. Mandatory revocation of a professional’s licence is not so excessive that it would outrage the standards of decency nor would it be grossly disproportionate to what is appropriate in the circumstances. The court held that not only is there no right to practice a profession, there is no right to practice free of regulation. Ultimately, the fact that a sexual relationship which may begin during treatment could blossom into a marriage or loving relationship but still lead to the revocation of that health professional’s certificate of registration does not make the provisions unconstitutional or overbroad. The health professional need only terminate the treatment relationship.
When Consent is not Enough
It is clear that the sexual abuse provisions in the Code leave no room for interpretation whether a sexual relationship is a consensual one.
If you are the subject of a complaint or investigation for allegations of sexual abuse, whether consensual or not, you should contact a lawyer experienced in professional regulation. At Damien Frost & Associates LLP, we will advise you of your rights to respond to complaints and investigations, explain your obligations and duties to cooperate, and represent you before your complaints committee or discipline committee to ensure you have a fair hearing and that your rights are protected.
Contact our office to schedule a free 30-minute consultation with one of our lawyers to get immediate assistance.