



COURT OF APPEAL FOR ONTARIO

CITATION: Hanif v. Ontario College of Pharmacists, 2015 ONCA
    640

DATE: 20150921

DOCKET: C59765

Laskin, MacPherson and MacFarland JJ.A.

BETWEEN

Mohamed Imran Hanif

Applicant (Appellant)

and

Ontario College of Pharmacists and Her Majesty
    the Queen in right of Ontario

Respondents (Respondents)

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

Heard: September 17, 2015

On appeal from the order of Justice
Graeme
Mew of the Superior Court of Justice, dated November 21, 2014.

By
    the Court:

[1]

The appellant Mohamed Hanif is a pharmacist. He was involved in a
    consensual sexual relationship with a patient. Sexual activity between a health
    professional and a patient constitutes sexual abuse under the
Health
    Professions Procedural Code
(
Code
). A finding of sexual abuse
    results in a mandatory revocation of the health professionals certificate of
    registration: see s. 51(2) and (5) of the
Code
, being Schedule 2 of
    the
Regulated Health Professions Act
, 1991, S.O. 1991, c. 18.

[2]

The appellant challenged the constitutional validity of the mandatory
    revocation provisions of the
Code
. He did so on distribution of powers
    (federalism) grounds, not under the
Charter
. He claimed that the Code
    intruded into federal jurisdiction over the criminal law under s. 91(27) of the
Constitution Act, 1867
.

[3]

In a decision dated November 21, 2014, with reasons reported at 2014
    ONSC 6613, Mew J. of the Superior Court of Justice dismissed the appellants
    application. He said:

The imposition of mandatory licence revocation in certain cases
    of sexual abuse may well be seen by some as too blunt an instrument to address
    the undoubted harm caused by health care professionals who have sexual
    relations with a patient, but that does not render the impugned provisions of
    the
Code
criminal law.

These provisions are, in pith and substance, concerned with
    regulating health professions under section 92(13) of the
Constitution Act,
    1867
.

[4]

The appellant appeals this decision. At the conclusion of the
    appellants oral argument, the panel did not call on the respondents Her Majesty
    the Queen in Right of Ontario (Ontario) or Ontario College of Pharmacists.
    The panel indicated that the appeal would be dismissed with brief reasons to
    follow. These are those reasons.

[5]

We begin with a preliminary point. The respondent Ontario brought a
    motion relating to the proper route for getting this appeal to this court. The
    three parties disagreed on the route. However, they all agreed that this court
    could hear the appeal. In light of that agreement, and because of the clear
    importance of the issue raised by the appeal, the panel suggested that the
    merits of the appeal be addressed. The parties agreed. We observe, however,
    that the jurisdictional issue raised by Ontario may arise in the future.

[6]

The application judge accepted the correct analytical approach for
    addressing a distribution of powers question. He started with a pith and
    substance analysis of the challenged legislation:

When the validity of legislation is challenged on federalism
    grounds, the starting point is to analyse the pith and substance or dominant
    purpose of those provisions:
Canadian Western Bank v. Alberta
2007
    SCC 22 at para. 25. What are the most important characteristics of these
    provisions? What do they do? What are they about? What is their leading
    feature?

[7]

The application judge then proceeded, again correctly, to consider both
    the purpose and effects of the
Code
: see
Reference re Firearms Act
,
    2000 SCC 31 at para. 16.

[8]

The application judge summarized his description of the purpose of the
Code
in this fashion:

The mandatory revocation provisions are concerned with the
    sexual abuse of patients by professionals. They prohibit sexual activity in an
    effort to prevent sexual abuse. They make sexual acts inconsistent with a
    professional-patient relationship.



[I]t is abundantly clear that the purpose of the mandatory
    revocation provisions of the
Code
is the protection of the public by
    the imposition of clear and unequivocal standards of professional behaviour.

[9]

The appellant does not challenge the purpose component of the
    application judges reasons.

[10]

The
    application judge then turned to an analysis of the effects of the
Code
.
    He said:

The legal effects of the mandatory revocation provisions mirror
    the purpose of the provisions.



The provisions identify a type of prohibited conduct for which
    ones licence to practice will be revoked. Although the personal effect of
    losing ones licence can be significant for an individual and his or her
    family, these personal effects are not the focus of the pith and substance
    analysis. At this stage, we are chiefly concerned with effects in the sense of
    how the statute changes the rights and liabilities of those who are subject to
    it (Peter Hogg,
Constitutional Law of Canada
, 5th ed. (Toronto: Thomson
    Carswell, 2007) at 442.

The imposition of a condign sanction for what is now recognised
    as one of the most serious manifestations of professional misconduct is not
    inconsistent with the regulation of health care professionals. All professions
    impose the right to terminate the privileges of a licensee in appropriate
    circumstances.

[11]

The
    appellant contests the application judges effects analysis. He says that it is
    too narrow. He submits that the effect of the mandatory revocation of a
    professional licence not only terminates a persons livelihood (in itself, a
    very serious consequence); it also carries with it  because of its tie to
    sexual abuse  a substantial stigma. The professional is in effect branded in
    the public eye as a sexual abuser. This stigma, says the appellant, makes 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 this line is crossed, the
Code
leaves the safe
    provincial harbour of s. 92(13) and intrudes into one of the core components of
    federal criminal law under s. 91(27) of the
Constitution Act, 1867

    morality.

[12]

We
    do not accept this submission, essentially for three reasons.

[13]

First,
    the impugned
Code
provisions do not have the effect of regulating
    morality. The intended, and in fact overwhelming, effect of the provisions is
    to protect the public. Legislation that declares that any sexual activity, even
    consensual, between a health professional and a patient is inconsistent with
    the professional-patient relationship does not make a statement about morality;
    rather it speaks to the maintenance of the integrity of the
    professional-patient relationship.

[14]

Second,
    the
Code
provisions do not have the effect of criminalizing activities
    that fall outside the delivery of health services. They do not have the effect
    of importing notions of sexual morality on consenting adults. Rather, 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.
    Treating a patient while involved in a sexual relationship undermines the
    integrity of the professional-patient relationship.

[15]

Third,
    all offences  federal, provincial, criminal, regulatory  involve a degree of
    stigma. If you break the law, you may lose respect in the public eye. When the
    appellant says that a contravention of the
Code
in the domain of
    sexual activity between health professionals and patients can lead to both loss
    of livelihood and social stigma, he is right. But to say that this combination
    removes the law from regulation of the health professions and places it in
    criminal law is a bridge too far. Breach of a provincial law can in some cases
    bring with it a potential social stigma in the public eye.

[16]

In
    the end, the mandatory revocation provisions of the
Code
are, as the
    application judge found, 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 is irrelevant. Under the aspect or
    double aspect doctrine, both levels of government can regulate different
    aspects of the same activity under their respective heads of power:
Canadian
    Western
,
supra
, at para. 30. Here, the impugned
Code
provisions rest comfortably inside s. 92(13) of the
Constitution Act, 1867
and there is no duelling federal law to consider.

[17]

The
    appeal is dismissed. No costs.

John
    Laskin J.A.

J.C.
    MacPherson J.A.

J.
    MacFarland J.A.


