



COURT OF APPEAL FOR ONTARIO

CITATION:
Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA
    482

DATE: 20210705

DOCKET: C68512

Feldman, MacPherson, Juriansz,
    Huscroft and Jamal JJ.A.

BETWEEN

Alexandru Tanase

Appellant (Appellant)

and

The College of Dental Hygienists
    of Ontario

Respondent (Respondent)

Seth P. Weinstein and Michelle M.
    Biddulph, for the appellant

Julie Maciura and Erica Richler, for
    the respondent

S. Zachary Green, for the intervener
    Attorney General of Ontario

Heard: May 11, 2021 by video conference

On appeal from the order of the
    Divisional Court (Justices Julie Thorburn, David L. Edwards and Lise G. Favreau)
    dated September 9, 2019, with reasons reported at 2019 ONSC 5153.

Huscroft J.A.:

OVERVIEW

[1]

Ontario has a zero-tolerance policy for sexual
    abuse by members of the regulated health professions in Ontario. Members are
    guilty of professional misconduct under s. 51(1) of the
Health Professions
    Procedural Code
(the 
Code
), being Schedule 2 to the
Regulated
    Health Professions Act,
1991,
S.O.
    1991, c. 18,
if they commit sexual abuse against a patient, which
    is defined in s. 1(3) as including
sexual
    intercourse or other forms of physical sexual relations between the member and
    the patient.

[2]

A finding of sexual abuse does not depend on establishing
    that a sexual relationship is inherently exploitive or otherwise wrongful; the
    prohibition of sexual relations between members and patients is categorical in
    nature. Sexual relationships with patients are prohibited, period, subject only
    to a spousal exception that may apply. With the approval of the government, the
    Council of the College of a regulated health profession may make a regulation
    permitting members to provide treatment to their spouses, but the exception is
    narrow in scope: spouse is defined as including only someone to whom the
    member is married or with whom the member has been cohabiting in a conjugal
    relationship for a minimum of three years. The Council of the College of Dental
    Hygienists of Ontario (the College) has a regulation adopting the spousal
    exception, but that regulation did not come into force until October 2020, well
    after the occurrence of the events that are the focus of this appeal.

[3]

The facts in this case are not contested. The
    appellant is a dental hygienist who entered into a sexual relationship with S.M.,
    a woman he was treating. Eventually they married and the appellant continued to
    treat S.M. following their marriage.

[4]

In 2016, a complaint was made to the College and
    a Discipline Committee was convened. The Committee found the appellant guilty
    of professional misconduct, revoked his registration as required by s. 51(5) of
    the
Code
, and issued a reprimand. The Divisional Court dismissed the appellants
    appeal.

[5]

The appellant describes revocation of his
    registration as an absurdity and invites this court to revisit its caselaw in
    order to remedy this unfairness. A five-member panel was convened in order to
    allow the appellant to challenge this courts decisions in
Leering

v.
    College of Chiropractors of Ontario
, 2010 ONCA 87, 98 O.R. (3d) 561, in
    which the court held that sexual abuse is established by the concurrence of a
    health care professional-patient relationship and a sexual relationship, and
Mussani

v. College of Physicians and Surgeons of Ontario
(2004)
, 248 D.L.R. (4th) 632 (Ont. C.A.),
    in which the court held that the penalty of mandatory revocation of a health
    professionals certificate of registration for sexual abuse does not infringe
    either s. 7 or s. 12 of the
Charter
.

[6]

In my view,
Leering
and
Mussani
remain good law and
    the Divisional Court made no error in applying them. It follows that this
    appeal must be dismissed and the appellant is subject to the mandatory penalty
    of revocation of his certificate of registration.

[7]

Revocation of the appellants certificate of registration
    is an extremely serious penalty, but it is not absurd. It follows from the
    Ontario Legislatures decision that sexual abuse in the regulated health
    professions is better prevented by establishing a bright-line rule prohibiting sexual
    relationships  an approach that provides clear guidance to those governed by
    the rule  than by a standard pursuant to which the nature and quality of sexual
    relationships between practitioners and patients would have to be evaluated to
    determine whether discipline was warranted in particular circumstances. This
    decision to adopt this rule was open to the Legislature and must be respected
    by this court. It does not violate the
Charter
and
there is no basis for this court to
    frustrate or interfere with its operation.

[8]

I would dismiss the appeal for the reasons that
    follow.

BACKGROUND

[9]

The facts in this matter are taken from an
    agreed statement of facts.

[10]

The appellant was a duly registered member of
    the College of Dental Hygienists of Ontario. He and S.M. met in 2012 and became
    friends. S.M. confided in the appellant that she was afraid of dental treatment
    and had not sought dental care for several years.

[11]

The appellant gained S.M.s trust and he
    provided dental hygiene treatment to her at his workplace on two occasions,
    January 22, 2013 and September 13, 2013, at no charge. At the time of these treatments
    the relationship between the appellant and S.M. was platonic.

[12]

The appellant rented a room in S.M.s house in late
    2013 and he and S.M. commenced a sexual relationship in mid-2014. Once their
    sexual relationship began, the appellant stopped treating S.M. because he
    understood he was not permitted to do so. However, in April 2015, a colleague
    told the appellant that the rules had changed and dental hygienists were
    permitted to treat their spouses. This advice was in error, but the appellant
    did not attempt to confirm that he was permitted to treat S.M. The College had
    proposed a Spousal Exception Regulation, but the enabling regulation had not
    yet been submitted to the Ontario government for approval. Moreover, the
    appellant admitted that if he had read the proposed regulation he would have
    understood that he was not permitted to treat S.M.

[13]

The proposed regulation was not submitted to the
    Ontario government for approval until October 2015 and was not in force when
    the appellant provided treatment to S.M. on April 30, 2015, June 20, 2015,
    September 25, 2015, December 2, 2015, March 24, 2016, June 2, 2016, and August
    26, 2016, while they were engaged in a sexual relationship. The latter three
    treatments occurred following the appellants marriage to S.M. in January 2016.

[14]

The Colleges spousal exception did not come
    into force until October 8, 2020, with the passage of O. Reg. 565/20, made under
    the
Dental Hygiene Act
,
1991
, S.O. 1991, c. 22.

[15]

In August 2016, a member of the College submitted
    a complaint to the College after seeing a post S.M. had made on Facebook on
    June 2, 2016 expressing her gratitude to the appellant for treating her. On
    September 19, 2016, the appellant was notified that the College was
    investigating him for professional misconduct. On June 19, 2018, the Discipline
    Committee found that the appellant had engaged in professional misconduct and
    ordered a reprimand and revocation of his certificate of registration. The
    Divisional Court stayed the Discipline Committees decision to revoke the
    appellants certificate of registration pending appeal, but on September 9,
    2019, dismissed the appellants appeal of the Discipline Committees decision.
    On October 10, 2019, this court stayed the revocation pending the determination
    of this appeal.

THE LEGISLATION

[16]

The relevant legislative provisions of the
Code
are set out below.

Sexual abuse of a patient

1(3) In this Code,

sexual abuse of a patient by a
    member means,

(a) sexual intercourse or other
    forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature,
    of the patient by the member, or

(c) behaviour or remarks of a
    sexual nature by the member towards the patient.

Exception
, spouses

1(5) If the Council has made a
    regulation under clause 95(1)(0.a), conduct, behaviour or remarks that would
    otherwise constitute sexual abuse of a patient by a member under the definition
    of sexual abuse in subsection (3) do not constitute sexual abuse if,

(a) the patient is the members
    spouse; and

(b) the member is not engaged in
    the practice of the profession at the time the conduct, behaviour or remark
    occurs.

(6) For the purposes of subsections
    (3) and (5),



spouse, in relation to a member,
    means,

(a) a person who is the members
    spouse as defined in section 1 of the
Family
    Law Act
, or

(b) a person who has lived with
    the member in a conjugal relationship outside of marriage continuously for a
    period of not less than three years.

Professional misconduct

51(1) A panel shall find that a
    member has committed an act of professional misconduct if,



(b.1) the member has sexually
    abused a patient; or

(c) the member has committed an
    act of professional misconduct as defined in the regulations.



(5) If a panel finds a member has
    committed an act of professional misconduct by sexually abusing a patient, the
    panel shall do the following in addition to anything else the panel may do
    under subsection (2):

1. Reprimand the member.

2. Suspend the members certificate
    of registration if the sexual abuse does not consist of or include conduct
    listed in paragraph 3 and the panel has not otherwise made an order revoking
    the members certificate of registration under subsection (2).

3. Revoke the members
    certificate of registration if the sexual abuse consisted of, or included, any
    of the following:

i. Sexual intercourse.

THE DECISIONS BELOW

The Discipline Committees decision

[17]

The Discipline Committee concluded that there
    was no significant change in the law that would warrant deviating from the
    decision of this court in
Mussani
, which upheld the constitutionality
    of the mandatory registration revocation provisions. That being so, the agreed
    statement of facts required a finding of professional misconduct.

[18]

The Committee ordered the appellants certificate
    of registration revoked and issued the following reprimand:

One of the rules that the Ontario legislature
    has enacted for health professionals is that they cannot have a concurrent
    sexual relationship with a patient they are treating. This policy of zero
    tolerance is backed up by mandatory revocation of the certificate of
    registration of the health professional. It is not discretionary. In your
    circumstances, where you were involved in a consensual spousal relationship, it

appears a harsh penalty. In the societal interest of preventing
    sexual abuse, this penalty can be avoided by dental hygienists, like other
    health professionals, by ensuring that they comply with the rule of not engaging
    in a sexual relationship with a client/patient. While we are sympathetic to
    your personal situation, our hands are tied by a strong legal rule designed to
    protect patients. You have paid a heavy price for breaking the rule. We
    sincerely hope to see you again as an active member of the dental hygiene
    profession.

The Divisional Courts decision

[19]

The Divisional Court dismissed the appellants
    appeal from the Committees decision. The court held, based on
Mussani
,
    that the appellant has neither a constitutionally protected right to engage in
    sexual relations with a patient nor a right to practice as a dental hygienist.
    The court held, further, that the imposition of professional consequences as a
    result of the appellants breach of the
Code
did not engage the right
    to liberty or security of the person under s. 7 of the
Charter
, which
    does not protect economic interests, citing
R. v. Schmidt
, 2014 ONCA
    188, 119 O.R. (3d) 145, at paras. 37-38, leave to appeal refused, [2014] S.C.C.A.
    No. 208. Nor did the mandatory revocation provisions engage security of the
    person by preventing access to health care, as the law did not involve state
    intrusion into bodily integrity or create significant delays in obtaining
    health care. The court concluded that the prohibition would not be considered
    overbroad under s. 7 in any event, again applying
Mussani
.

[20]

The Divisional Court also rejected the argument
    that mandatory revocation constituted cruel and unusual treatment within the
    meaning of s. 12 of the
Charter
. The court applied this courts
    decision in
Mussani
in holding that mandatory revocation of
    registration did not constitute treatment within the meaning of s. 12 and would
    not be considered cruel or unusual in any event, as it was neither so excessive
    as to outrage the standards of decency nor grossly disproportionate to what was
    appropriate in the circumstances. The court concluded, further, that the combined
    effect of mandatory revocation and publication of the appellants discipline
    history did not constitute cruel and unusual treatment.

[21]

The Divisional Court rejected the argument that
    there had been a significant change in circumstances since the decision in
Mussani
had been released, such that the decision should be revisited.

DISCUSSION

[22]

The appellant argues that the
Code
s
zero-tolerance scheme infringes s. 7 and/or s. 12 of the
Charter
and
    that
Mussani
must be distinguished or overruled. In the alternative,
    the appellant says that the court should revisit its decision in
Leering
to give effect to what he submits was the Legislatures intent: to prohibit sexual
    abuse of patients while permitting regulated health professionals to treat
    their spouses in circumstances where sexual abuse is not present.

[23]

The first question that must be addressed is
    whether the courts decision in
Leering
is correct. If it is not, it
    is unnecessary to address the
Charter
arguments.





Leering
remains good law

[24]

Leering
involved a chiropractor who was living with the complainant in a conjugal
    relationship when he began treating her as a patient. He treated her 28 times
    during the course of their relationship, which lasted for under 12 months, and
    billed her for the treatments. A dispute over fees owing at the end of the
    relationship led to a complaint to the College, which determined that the
    chiropractor should be charged with sexual abuse. The Discipline Committee of
    the College of Chiropractors found the chiropractor guilty of sexual abuse and
    imposed the mandatory penalty of revocation of registration. The Divisional
    Court reversed the decision on appeal, holding that the Discipline Committee
    was required to inquire into whether the sexual relationship arose out of a spousal
    or professional relationship in order to determine whether there was sexual
    abuse.

[25]

The Court of Appeal held that the Divisional
    Court erred by imposing an obligation on the Discipline Committee to inquire
    into the nature of the parties sexual relationship. As Feldman J.A. explained,
    at para. 37:

The disciplinary offence of sexual abuse is
    defined in the
Code
for the purpose of these proceedings as the
    concurrence of a sexual relationship and a healthcare professional-patient
    relationship. There is no further inquiry once those two factual determinations
    have been made.
[1]

[26]

The appellant argues that the Legislature overruled
Leering
by amending the
Code
in 2013 to authorize individual
    colleges to enact regulations permitting practitioners to treat their spouses.
    Although the spousal exception regulation for dental hygienists was not in
    place when treatment in this case took place, the appellant says that the Legislatures
    clear rebuke of
Leering
means that the decision ought to be revisited
    in order to give the Discipline Committee the discretionary authority to
    determine whether treatment of a spouse involves actual sexual abuse. On any
    reasonable view, the appellant asserts, the concerns about exploitation of a
    power dynamic or the inducement of consent simply do not arise where the
    professional and patient are in a pre-existing spousal relationship. Moreover,
    the appellant argues, the mandatory revocation provisions were never intended
    to apply to a member who, on a limited basis, treats his or her spouse or
    romantic partner where the romantic relationship preceded any treatment
    rendered.

[27]

This argument must be rejected. In essence, it
    invites the court to convert the bright-line rule prohibiting sexual
    relationships into a standard requiring the nature and quality of sexual
    relationships between practitioners and patients to be evaluated to determine
    whether discipline is warranted in particular circumstances. It finds no
    support in the language of the
Code
and would frustrate its clear
    purpose. Moreover, it begs the question by assuming that no concerns arise in
    the context of pre-existing sexual relationships, regardless of the nature or
    duration of those relationships.

[28]

The
Code
is clear when it comes to
    sexual relationships. It is neither ambiguous nor vague. Professional
    misconduct is established once sex occurs between a member of a regulated
    health profession and a patient. That the misconduct is termed sexual abuse
    neither mandates nor permits an inquiry as to the nature of a sexual
    relationship. The Legislature did not prohibit only sexual relationships that
    are abusive, leaving it to disciplinary proceedings to determine what
    constitutes abuse; it prohibited sexual relationships between regulated health
    practitioners and their patients
per se
. This approach obviates the
    need for discipline committees  bodies composed of health care professionals
    and laypeople  to inquire into the nature of sexual relationships and whether,
    as the appellant would have it, they give rise to actual sexual abuse because
    they arise out of coercion or exploitation. Justice Feldmans observation in
Leering
, at para. 41,

remains apt:

The discipline committee of the College has
    expertise in professional conduct matters as they relate to chiropractic
    practice. Their expertise is not in spousal relations or dynamics, nor would it
    be fruitful, productive or relevant to the standards of the profession for the
    committee to investigate the intricacies of the sexual and emotional
    relationship between the professional and the complainant. That is why the
Code
has defined the offence in such a way that the fact of a sexual relationship
    and the fact of a doctor-patient relationship are what must be established.

[29]

The purpose of the rule-based approach
    established by the
Code
is to avoid any doubt or uncertainty by
    establishing a clear prohibition that is easy to understand and easy to follow.
    Sexual relationships with patients are forbidden and members of the regulated
    health professions must govern themselves accordingly, regardless of whether
    the rule seems harsh or unfair in their personal circumstances.

[30]

Rules may be subject to exceptions, of course,
    but the Legislatures decision to amend the
Code
to permit colleges to
    establish a spousal treatment exception cannot be taken to have overruled
Leering
.
    On the contrary, it acknowledged the decision while permitting individual
    colleges to mitigate the strictures of the rule by adopting a narrow and
    specific exception if they consider it appropriate to do so. And while that
    exception has since been adopted by the College of Dental Hygienists, it came
    into effect only
after
the appellant provided the treatment that gave
    rise to the finding of misconduct in this case. The appellant was required to
    comply with the rule prohibiting sexual relationships with patients at all
    relevant times  even after he and S.M. married.

[31]

That said, it is important to clear up a
    misconception that underlies the decisions of both the Committee and the
    Divisional Court, as well as the appellants submissions, all of which use the
    term spouse without regard to its definition in s. 1(6) of the
Code
.

[32]

As I have said, that definition is narrow and
    specific. It requires either (i) marriage or (ii) cohabitation in a conjugal
    relationship
for a

minimum period of three years
.

In
    other words, the exception applies only to sexual relationships of some
    permanence. Even if the exception had been in effect when he treated S.M.
    during their cohabitation in a conjugal relationship prior to their marriage, the
    appellant would have been in violation of the rule because that relationship had
    not run for the required three-year period.

[33]

The appellants marriage to S.M. does not have
    retrospective effect, nor does it operate to render the definition of spouse
    irrelevant in the application of the exception. Treatment cannot be given to
    sexual partners outside the context of a spousal relationship, as defined by
    the
Code
, regardless of whether marriage occurs subsequently.

[34]

In summary, the decision of this court in
Leering
remains good law. The Committees decision that the appellants actions
    violated the
Code
is correct. Even if it had been in force at the
    relevant time, the spousal exception would not have operated to excuse the
    appellants pre-marital treatment of S.M. after they began their sexual
    relationship. And because it was not in force, the spousal exception did not
    excuse the appellants post-marital conduct either.

Mussani
remains good law

[35]

In
Mussani
this court held that there
    is no constitutional right to practice a profession and that the penalty of
    mandatory revocation of a health professionals certificate of registration
    affects an economic interest that is not protected by ss. 7 or 12 of the
Charter
.
    Security of the person was not engaged by the revocation of registration regardless
    of the stress, anxiety, and stigma to which disciplinary proceedings inevitably
    give rise in the context of sexual abuse allegations, nor was a liberty right
    engaged. The court concluded that the provisions of the
Code
were in
    accordance with the principles of fundamental justice in any event. Further,
    the court held that revocation of registration does not constitute punishment
    or treatment and that, even if it did, it would not be considered cruel and
    unusual as it is neither so excessive as to outrage standards of decency nor
    grossly disproportionate to what is appropriate in the circumstances.

[36]

Although the Supreme Court has made clear that
    s. 7 of the
Charter
is not limited to the criminal law context and, in
    particular, to legal rights in that context, the application of the right outside
    the criminal law and the administration of justice has been limited. The
    generality of the rights that engage the protection of the principles of
    fundamental justice  life, liberty, and security of the person  does not mean
    that all laws necessarily trigger the application of s. 7. Thus, the right to
    liberty is not to be understood as a
prima facie
freedom from any
    restraints on action  as though it protects a right to do whatever one wants.
    As Newman and R
é
gimbald point
    out in
The Law of the Canadian Constitution
, 2nd ed. (Toronto:
    LexisNexis, 2017) at §23.28, it protects only those fundamental choices
    concerning which individuals have a genuine and legitimate claim grounded in
    the values of human autonomy and dignity. It is a protection of the fundamental
    and not the petty and of that which is rightfully claimed rather than what
    someone merely asserts to be important. And while security of the person has
    been found to embrace psychological as well as physical security of the person,
    such that it includes bodily integrity and the choices relevant to bodily
    integrity, including serious psychological stress, as I will explain these concepts
    remain limited and it is clear that they do not extend to the economic
    interests advanced by the appellant, as this court held in
Mussani
.

[37]

The appellant submits that
Mussani
is
    based on outdated case law that has been supplanted by an expansive interpretation
    of the liberty interest in s. 7. However, the appellants argument focuses on
    security of the person. He submits that the court must consider whether the
    permanent notation of the details of a finding of sexual abuse on the
    appellants record, and the requirement to publicize those findings  a
    requirement added in 2007  engages the right to security of the person in a
    manner that was not considered in
Mussani
.

[38]

The appellant says that the issue is properly characterized
    not as whether s. 7 protects a positive right to practice a profession
    unfettered by standards and regulations, but instead, as whether it encompasses
    the negative right not to be deprived of a state-granted privilege to practice
    a profession except in accordance with the principles of fundamental justice. The
    appellant argues that psychological stress flows directly and automatically
    from the revocation of registration, and that this stress should be considered
    analogous to the possibility of the removal of a child, which was held to have
    engaged security of the person in
New Brunswick (Minister of Health and
    Community Services) v. G.(J.)
, [1999]
    3 S.C.R. 46
.

[39]

These arguments must be rejected.

[40]

The basic holding in
Mussani
is
    supported by what the Attorney General aptly describes as an unbroken line of
    authority from the Supreme Court of Canada confirming that s. 7 of the
Charter
does not protect the right to practice a profession or occupation, an example
    of what that court has described as pure economic interests. The cases
    include
Walker v. Prince Edward Island
,
[1995] 2 S.C.R. 407,

in which the Court summarily affirmed the decision of the Prince Edward
    Island Court of Appeal that s. 7 does not protect the right to practice a
    profession (in that case, public accounting) and
Siemens v. Manitoba
    (Attorney General)
,
2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45, in
    which the Court held that s. 7 encompasses fundamental life choices, not pure
    economic interests (in that case, the ability to generate business revenue by
    ones chosen means).

[41]

Nor is there a common law right to practice a
    profession free of regulation. As the Court held in
Green v. Law Society of
    Manitoba
, 2017 SCC 20, [2017] 1 S.C.R.
    360
, at para. 49, the right to practice a profession (in that case,
    law) is a statutory right  an important right, to be sure, but a right that is
    subject to adherence to the governing legislation and rules made under it. There
    is no common law, proprietary or constitutional right to practice medicine, as
    this court reiterated in
Christian Medical and Dental Society of Canada v.
    College of Physicians and Surgeons of Ontario,
2019 ONCA 393, 147 O.R. (3d) 444, at para. 187
.

[42]

In my view, the holdings in these cases extend
    to all the regulated health professions. Revocation of the appellants certificate
    of registration for violating the
Code
engages neither the right to
    liberty nor the right to security of the person.

[43]

The appellants attempt to repackage the
Charter
argument by expressing the claim negatively rather than positively  arguing
    that this case is concerned with the negative right not to be deprived of his
    state-granted privilege to practice his profession, rather than the positive
    right to practice his profession  neither distinguishes nor undermines
Mussani
.
Mussani
was concerned with the loss of professional registration, and
    security of the person is not engaged whether the claim is packaged negatively
    or positively. Rather, security of the person is engaged when there is either
    interference with bodily integrity and autonomy or serious state-imposed
    psychological stress:
Carter v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331,
at
    paras. 66-67. Neither has occurred in this case.

[44]

Publication of the decision to revoke the
    appellants certificate of registration for sexual abuse does not alter the analysis.
    Professional discipline is stressful, to be sure, but it does not give rise to
    constitutional protection on that account. In
Blencoe v. British Columbia
    (Human Rights Commission)
, 2000 SCC
    44, [2000] 2 S.C.R. 307,
and in
G.(J.)
,
the Supreme
    Court articulated the need for a serious and profound effect on a persons
    psychological integrity before security of the person is engaged:
Blencoe
,
    at para. 81;
G.(
J
.)
, at para. 60. The threshold was crossed in
G.(J.)
because a mother was facing the possibility that the state would sever her
    relationship with her child. This is a profound interference with family
    autonomy and decisions taken in the context of regulating health care
    practitioners pale alongside it.

[45]

In saying this, I do not mean to minimize the
    significance of professional discipline. But s. 7 does not apply simply because
    legislation gives rise to serious consequences. Psychological integrity is a
    narrow and limited concept, and the right to security of the person is engaged only
    if there is a serious and profound effect on psychological integrity. The matter
    is to be judged on an objective basis, having regard to persons of ordinary
    sensibilities. It is irrelevant whether state action causes upset, stress, or
    worse. There must be a serious and profound impact on psychological integrity before
    the protection of s. 7 is engaged. Nothing in this case suggests that this
    threshold has been crossed, nor has the appellant proffered any basis for this
    court to revisit that threshold.

Revocation of registration is not inconsistent with the
    principles of fundamental justice

[46]

Given that the rights protected by s. 7 are not
    engaged by the discipline process, it is unnecessary to determine whether
    mandatory revocation is contrary to the principles of fundamental justice. But
    for completeness, I am satisfied that it is not.

[47]

The appellant argues that the impugned provisions
    are overbroad. The test for overbreadth is whether the law goes too far and
    interferes with some conduct that bears no connection to its objective:
Canada
    (Attorney General) v. Bedford
, 2013
    SCC 72, [2013] 3 S.C.R. 1101,
at para. 101; reiterated in
Carter
,
at para. 85. As the Court explained in
Carter
,
    the test is not whether the legislature has chosen the least restrictive means;
    it is whether the chosen means infringe life, liberty or security of the
    person in a way that has
no connection with the mischief contemplated by
    the legislature
: at para. 85 (emphasis added).

[48]

This is a difficult test to meet and it is not
    met in this case. Indeed, as the Attorney General notes, the
Code
is
    more narrowly tailored than it was when
Mussani
was decided; it now
    includes a spousal exception, which colleges can choose to adopt, and in
    addition the regulations have been amended to remove the provision of minor or
    emergency treatment from the prohibition: see
Code
, s. 95(1)(0.a);
Regulated Health Professions Amendment Act (Spousal Exception)
, 2013,
S.O. 2013, c. 9, s. 2; and
Patient Criteria Under Subsection 1 (6) of the
    Health Professions Procedural Code
, O. Reg. 260/18, s. 1.2. Subject to
    these exceptions, the law establishes a zero-tolerance policy concerning
    treating relationships that are sexual.

[49]

The
Code
s
rule-based approach
    is connected to the Legislatures purpose in prohibiting sexual abuse of
    patients. It assures patients that their relationships with health care
    providers will not become sexualized  that they will not have to negotiate a
    sexualized atmosphere in seeking health care. Plainly, it is within the
    mischief contemplated by the Ontario Legislature and would not constitute
    overbreadth within the meaning of s. 7.

The rights of the spouse are not engaged

[50]

For completeness, I would also reject the
    appellants argument that the impugned provisions of the
Code
engage
    the liberty or security of the person rights of spouses of health care
    practitioners, an argument not addressed in
Mussani
. The appellant
    argues that the
Code
engages the rights of spouses by forcing them to
    choose between their spousal relationship and their place of residence, and by
    requiring them to travel to seek treatment rather than be treated by their
    health practitioner spouses.

[51]

It is not clear that it is appropriate to
    address this argument in the context of this case, which concerns the rights of
    practitioners rather than spouses. But in any event, I see no merit in the
    argument. Even assuming (without deciding) that the rights of spouses under s.
    7 of the
Charter
are engaged in the present context, on the facts here
    travelling for health care treatment would constitute an inconvenience rather
    than an infringement of liberty or security of the person. The appellant draws
    a long bow in likening this case to
R. v. Morgentaler
, [1988] 1 S.C.R.
    30, in which access to abortion was criminalized but permitted subject to
    compliance with a regulatory scheme that operated differently across the
    country. The inconvenience posited by the appellant in this case is minor, if
    not trivial. And to the extent that a health care professional provides care that
    is minor in nature or is required on an emergency basis, it is permitted on the
    basis that it does not establish a practitioner-patient relationship. In short,
    nothing in this case rises to the level of an infringement of s. 7 from
    the perspective of the spouse of a practitioner.

The fresh evidence application

[52]

The respondent brings a fresh evidence
    application designed to demonstrate that there was no factual basis for the
    argument that S.M. would have suffered stress and anxiety if not treated by the
    appellant. In light of the rejection of the appellants s. 7 argument, the
    fresh evidence could not be expected to have affected the result in this case
    and I would not admit it.

Revocation of registration does not infringe section 12 of
    the
Charter

[53]

The appellant argues that the rejection of a s.
    12 breach in
Mussani
was premised on the erroneous rejection of the
    very facts of this case as a reasonable hypothetical, because the court did not
    think these circumstances were possible. Further, the appellant says, the
    combined effect of mandatory revocation of registration and the permanent
    notation on the public register constitutes cruel and unusual treatment.

[54]

The appellants submissions founder at the first
    stage of the inquiry. Although treatment may extend the protection of s. 12
    beyond instances of punishment and other state action associated with the
    criminal law that affects individuals, there is no authority supporting the
    premise that professional regulation constitutes treatment within the meaning
    of s. 12. I see no basis for concluding that regulation of the health care
    professions is subject to s. 12, and no basis for concluding that it would meet
    the very high bar established by the Supreme Court in any event.

[55]

Contrary to the appellants argument, this court
    did not reject the very facts of this case as a reasonable hypothetical in
Mussani
.
The hypothetical in
Mussani
at para. 101 was premised on the
    provision of
incidental
care to a spouse, which the court considered
    unlikely to establish a physician/patient relationship. Moreover, Blair J.A. rejected
    the argument that the law wrongly included relationships that began during the
    course of treatment, as occurred in this case. As he explained at para. 79:

The fact that an intimate sexual relationship
    which began during treatment may blossom into a truly loving one but still lead
    to revocation of a health professionals certificate of registration, does not
    necessarily make the Mandatory Revocation Provisions unconstitutionally broad,
    in the sense that they overshoot the legislative objectives. The health
    professional need only terminate the treatment relationship to avoid the
    problem. The issue is whether the means chosen by the Legislature  mandatory
    revocation of the certificate of registration  are overly broad
in
    relation to the purpose of the legislation
.
If they are not, the legislature
    has the right to make difficult policy decisions that may, in rare cases,
    override what might otherwise be considered permissible conduct. [Emphasis in
    original; citations omitted.]

[56]

The appellants argument that s. 12 is infringed
    must be rejected.
Mussani
remains good law.

The relevance of the
Charter
and fairness concerns

[57]

Rejection of the appellants
Charter
arguments does not mean that health care practitioners do not enjoy the
    protection of the
Charter
. It means only that revocation of the
    appellants certificate of registration does not limit his rights in either ss.
    7 or 12 of the
Charter
. The severity of the impact of this regulatory penalty
    on the appellant does not alter this analysis.

[58]

In answer to a question from the panel during
    the hearing of the appeal, the appellant invited the court to stay the decision
    of the Discipline Committee pursuant to s. 106 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, even if it upheld the decisions in
Leering
and
Mussani
,
    on the basis that it was harsh or unfair. In effect, the court was invited to
    nullify the legislation.

[59]

The short answer to this invitation is no. The
    court cannot refuse to give effect to the lawful decision of an administrative
    tribunal on the basis that it disapproves of the outcome in a particular case.

[60]

The courts power to stay a matter in s. 106 is
    far more limited in nature: it is concerned with staying any proceeding in the
    court, rather than the decisions of administrative tribunals, and is typically
    invoked to stay judicial proceedings based on jurisdiction, convenience of
    forum, choice of law or venue clauses, or pending criminal or civil proceedings
    or arbitration. It is not available in this case. Nor is there any other basis
    to refuse to give effect to the Discipline Committees decision. If the penalty
    of mandatory revocation of a certificate of registration is considered unfair or
    unwise, it is a matter for the Legislature to address.

CONCLUSION

[61]

In summary, as this court held in
Leering
,
    the
Code
defines sexual abuse as the concurrence of a sexual
    relationship and a health care professional-patient relationship. And as this
    court held in
Mussani
, neither this definition nor the penalty of revocation
    of registration establishes limits on either s. 7 or s. 12 of the
Charter
.
    It follows from the dismissal of the appeal that the decision of the Discipline
    Committee must be given effect.

[62]

I would dismiss the appeal and award the
    respondent costs in the agreed amount of $5,000, all inclusive.

Released: July 5, 2021 K.F.

Grant Huscroft
    J.A.

I agree. K.
    Feldman J.A.

I agree. J.C.
    MacPherson J.A.

I agree. R.G.
    Juriansz J.A.

I agree. M.
    Jamal J.A.





[1]
The Court acknowledged that there was some room for interpretation
    when it comes to whether or not a complainant was a patient of the health care
    practitioner, involving cases of incidental treatment, an issue not relevant in
    this case.


