Ontario Court of Appeal Upholds Mandatory Revocation for Sexual Abuse as Constitutional

On September 21, 2015, the Ontario Court of Appeal (“ONCA”) released its decision in Hanif v. Ontario College of Pharmacists, marking the end of another chapter in a pharmacist’s lengthy constitutional challenge to the mandatory revocation provisions for sexual abuse under the Health Professions Procedural Code (“Code”).  The case began when, in the face of disciplinary proceedings for engaging in a consensual sexual relationship with a patient, Mr. Hanif launched an application in the Ontario Superior Court of Justice (“SCJ”) challenging the validity of the Code provisions that would require the Ontario College of Pharmacists (“College”) to revoke his licence to practice pharmacy if it found that his conduct amounted to sexual abuse.

Background Facts    Pharmacist

Mr. Hanif was employed as a pharmacist at a Loblaws grocery store where Ms. W worked as a cashier.  Occasionally, Mr. Hanif would fill Ms. W’s prescriptions at the store’s pharmacy.  The two developed a friendship, which over time grew into a romantic relationship that involved consensual physical contact in Mr. Hanif’s vehicle which by the way didn’t even have a motor trade insurance and one instance of consensual sexual activity at Ms. W’s home.  During this period, Mr. Hanif continued to dispense medications to Ms. W, including filling one of Ms. W’s prescriptions six days prior to their consensual sexual contact.  Shortly after Loblaws became aware of their sexual interaction, the company fired Mr. Hanif and reported his conduct to the College.

Sexual Abuse under the Regulated Health Professions Act

The Code, which is Schedule 2 to the Regulated Health Professions Act, 1991 contains strict, zero-tolerance provisions regarding sexual abuse of patients by regulated health professionals.  Any sexual activity between a health professional and a patient constitutes sexual abuse under the Code, even when it is consensual.  Where a health professional is found to have engaged in sexual abuse of a patient, he or she is subject to the mandatory revocation of his or her certificate of registration, and for certain specified frank sexual acts, including sexual intercourse, oral sex and masturbation, he or she cannot apply for reinstatement for five years.

College Discipline Committee Decision

Following an investigation into Mr. Hanif’s conduct, the College referred allegations of professional misconduct and sexual abuse to the College’s Discipline Committee on May 16, 2011.  In March 2012, Mr. Hanif commenced an application in the SCJ, challenging the mandatory revocation provisions for sexual abuse.  At the discipline hearing in June of that same year, Mr. Hanif pleaded guilty to the allegations and the hearing proceeded by way of an agreed statement of facts and a joint submission on penalty.  What was unique in this case, however, was that the College and Mr. Hanif also presented to the Discipline Committee an agreement on stay/suspension of penalty, pursuant to which Mr. Hanif and the College jointly requested that the mandatory 5-year revocation of Mr. Hanif’s licence be suspended pending the determination of Mr. Hanif’s constitutional challenge in the SCJ and any subsequent appeals.  The Discipline Committee allowed the request and imposed a stay of the penalty of revocation.

Ontario Superior Court of Justice Decision

Mr. Hanif’s constitutional challenge before the SCJ was grounded in a “federalism” or “division of powers” argument.  Specifically, Mr. Hanif argued that the mandatory revocation provisions of the Code fell within the federal government’s exclusive jurisdiction over criminal law and were, therefore, enacted contrary to the division of powers outlined in the Constitution Act, 1867 (“Constitution”).

By way of background, the Constitution assigns specific legislative powers to the Federal Parliament and to the Provincial Legislatures.  Section 91 lists areas exclusively within the jurisdiction of the Federal Parliament, while section 92 lists those areas that are exclusively within the jurisdiction of the Provincial Legislatures.  The validity of legislation depends upon this constitutional division of powers; provincial legislation that infringes on federal jurisdiction can be declared unconstitutional and therefore invalid.  When faced with a claim that the particular provisions of an act offend the constitutional division of powers, the court must engage in an analysis of the dominant purpose (also known as the “pith and substance”) of the legislation, as well as the purpose and effects of the challenged legislative provisions.  The Provincial Legislature is not permitted to enact legislation where the dominant purpose of such legislation is to address matters that are allocated to the Federal Parliament under the Constitution.

Mr. Hanif argued that the mandatory revocation provisions in the Code had the purpose and effect of regulating the sexual morality of health care professionals and their patients.  He argued that because morality is one of the core components of criminal law, over which the federal Parliament has exclusive jurisdiction under s. 91(27) of the Constitution, the provisions should be struck down as unconstitutional.

Justice Mew of the SCJ rejected these submissions.  Mew J. dismissed Mr. Hanif’s application, finding that the provisions of the Code at issue were, in pith and substance, concerned with the regulation of health care professionals in Ontario and, in particular, sexual abuse of patients by health care professionals.  In respect of the effects of the mandatory revocation provisions, Justice Mew found that although the loss of one’s professional licence was a significant personal effect, the analysis is meant to focus on the legal effects.  In this case, the provisions affected the legal standing of health professionals who sexually abuse patients by imposing a mandatory revocation of their licence to practice as a penalty for engaging in this conduct.  Accordingly, Justice Mew held that the mandatory revocation provisions were a valid exercise of the Province of Ontario’s power to regulate health professions under s. 92(13) of the Constitution and did not violate the constitutional division of powers.

Ontario Court of Appeal Decision

On appeal, Mr. Hanif challenged Justice Mew’s “effects” analysis.  He argued that the effect of the mandatory revocation of a health professional’s licence not only terminated a person’s livelihood, but also carried a substantial stigma because of its connection to sexual abuse.  According to Mr. Hanif, this stigma demonstrated that the Code’s provisions had the effect of regulating morality in the context of consensual sexual activity and therefore intruded into a core component of federal criminal law.

The Court of Appeal rejected this argument for the following three reasons:

  1. The effect of the Code provisions is to protect the public, not to regulate morality. The provisions speak to the maintenance of the integrity of the professional-patient relationship by prohibiting any sexual activity, even consensual, between a health professional and a patient.

 

  1. The Code provisions do not have the effect of imposing notions of sexual morality on consenting adults. Instead, they “require a health professional to make a simple choice: treat the patient or sever the professional-patient relationship and engage in a sexual relationship.”

 

  1. All offences involve a degree of social stigma, but this does not make provisions that regulate health professionals cross over into the realm of criminal law.

Based on this analysis, the Court held that the mandatory revocation provisions for sexual abuse rested comfortably within the province’s authority to regulate health professions under s. 92(13) of the Constitution, and dismissed Mr. Hanif’s appeal.

Unless Mr. Hanif is granted leave to appeal the ONCA’s decision to the Supreme Court of Canada, the penalty of revocation of his certificate of registration with the College and a reprimand will take effect shortly.

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