Oct 19, 2020

Formulating a Penalty Order in Discipline in Sexual Abuse Cases

Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2019 ONSC 4294 (CanLII)

There seem to be fewer areas in which courts have been giving confusing guidance to discipline panels than in the ordering of sanctions in sexual abuse cases. A major issue has been whether the range of sanctions should evolve to become more stringent in recognition of societal expectations or whether consistency with past decisions should be given priority. In Ontario (College of Physicians and Surgeons of Ontario) v Lee, 2019 ONSC 4294, http://canlii.ca/t/j1j5g the latter consideration seemed to prevail.

In that case the practitioner was found to have engaged in sexual misconduct (mostly language and gestures, but one instance of touching with his groin) with two patients. The discipline panel revoked his registration. The Divisional Court set that order aside and returned it for a new sanctioning hearing (where revocation was off the table) for a number of reasons including:

1. Revocation was not consistent with prior decisions involving more serious conduct;

2. Revocation was not proportional to the nature of the conduct that occurred;

3. Excessive consideration was given to specific deterrence despite the evidence that suggested the practitioner was previously compliant with restrictions on his practice.

4. The panel’s reliance on an earlier court decision that encouraged the increasing of sanctions for sexual abuse findings to reflect contemporary societal expectations, which court decision was later reversed on appeal.

5. The panel’s failure to consider that the impact of the conduct on one of the patients was minimal.

This latter point is puzzling as many would say that the sanction should not depend on how much the “victim” was impacted by the conduct, as that is a matter of sheer luck. Rather, one would think that the potential (or even usual) impact of the conduct is a much more objective and relevant consideration. In any event, it is thought by many working in the area of sexual abuse that some impacts of sexual abuse may not be apparent in the short term.

Other points of interest in the case include:

a. While it is preferable for the discipline panel to expressly discuss the lack of credibility of the practitioner when a finding is made against them, it is not always necessary. For example, in this case the testimony of the two patients was so diametrically opposite to that of the practitioner, that the discussion of their credibility implicitly addressed the lack of credibility of the practitioner.

b. The rule in Browne v Dunn does not require the practitioner to be cross-examined directly on the specifics of the allegations where the practitioner is aware of them when testifying. There is no unfairness in failing to give the practitioner another opportunity to explain their response to the allegations.

Ordering security for potential funding by the regulator should only be ordered where there is some evidence that the client will be making a claim for the funding.