WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (2.1),
    (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of
    the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by
    the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

(3)     In proceedings in respect of
    an offence under section 163.1, a judge or justice shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
    22,48; 2015, c. 13, s. 18.

486.6(1)       Every person who
    fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rule, 2021 ONCA 499

DATE: 20210706

DOCKET: M52571 (C69544)

Brown J.A. (Motions Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Arthur Rule

Applicant

Fredrick R. Schumann, for the applicant

Adam Wheeler, for the respondent

Heard: June 18, 2021 by video conference

ENDORSEMENT

A.

OVERVIEW

[1]

The applicant, Arthur Rule, applied for leave to
    appeal his custodial sentence and bail pending appeal. The following
    endorsement was read at the end of the hearing on June 18, 2021:

For reasons to follow, the application for
    leave to appeal sentence and the application for bail pending appeal are
    granted. The terms of bail shall be those in the draft order submitted by
    counsel.

[2]

These are those reasons.

[3]

Mr. Rule is 71 years old. He pleaded guilty to
    three counts of possessing and one count of accessing child pornography,
    contrary to ss. 163.1(4) and (4.1) of the
Criminal Code
. By reasons
    dated May 4, 2021, the sentencing judge concluded that the appropriate sentence
    was a term of imprisonment for a period of 22 months, concurrent on all counts,
    followed by probation for three years. She deferred the imposition of sentence
    until June 18, 2021.

[4]

Mr. Rule applied for leave to appeal sentence
    and, if leave were granted, bail pending appeal. The Crown did not oppose Mr.
    Rules application for leave to appeal his sentence:
Criminal Code
, s.
    675(1)(b). I therefore granted leave to appeal.

[5]

The contested matter at the hearing was Mr.
    Rules application for bail pending appeal:
Criminal Code
, s. 679(4). The
    Crown acknowledged that Mr. Rules sentence appeal is not frivolous.
    However, it opposed the application on two grounds: (i) the sentence appeal
    lacks sufficient merit that, in the circumstances, it would not cause
    unnecessary hardship if the applicant were retained in custody; and (ii) the
    applicant has not demonstrated that his detention is not necessary in the
    public interest.

B.

BACKGROUND

[6]

The applicant is a retired teacher who lives in
    Kenora. Prior to his conviction on these charges, he had no criminal record.

[7]

A police investigation resulted in the search of
    Mr. Rules home and the seizure of his computer. As described by the sentencing
    judge, at paras. 9-11:

The items seized from Mr. Rules computer
    revealed a vast collection of images and videos of children being sexually
    abused and exploited. Over 100,000 images and videos were examined by the OPP
    child sexual exploitation unit. The police categorized 22,429 images, 204
    movies or videos and determined these images fit the definition of child
    pornography. 92,984 images were not categorized, but the Crown noted these
    items would have met the criteria for child pornography.

Approximately two thirds of the material focus
    on the genitals of the children depicted. One third of the images depict persons
    under the age of 18 engaged in graphic sexual activity. There appeared to be a
    preponderance of images involving prepubescent girls and less so of boys under
    age 18. The additional 92,000 + images were not categorized because of the time
    and resources needed to fully examine the contents of Mr. Rule's extensive
    collection.

In addition, the police noted that Mr. Rule's
    screen saver on the computer was an image of a prepubescent girl, naked with
    her legs spread. He had the other images and videos saved under various folders
    on his computer.

C.

ANALYSIS

[8]

Under
Criminal Code
s. 679(4)(a), the
    applicant must establish that his appeal has sufficient merit that, in the
    circumstances, it would cause unnecessary hardship if he were detained in
    custody. The extent of the inquiry into the merits of the appeal under that
    criterion has variously been described as asking whether the appeal has
    arguable merit, some hope or prospect of success, or it is more probable
    than not that a successful sentence appeal would result in a significantly
    lower sentence:
R. v. McIntyre
, 2018 ONCA 210, at para. 24;
R. v.
    Hewitt
, 2018 ONCA 293, at para. 18.

[9]

In his notice of appeal, the applicant argues
    that the custodial sentence of 22 months was demonstrably unfit for two main
    reasons: (i) the sentencing judge erred in not granting a conditional sentence;
    and (ii) she disregarded the evidence of Mr. Rules health problems, the care
    he requires, and the hardship incarceration would impose.

[10]

On the issue of the availability of a conditional
    sentence, the Crown concedes that the sentencing judge mis-stated the law when
    she wrote, in para. 47:

Section 163.1 (4)(a) of the
Criminal Code
sets out a range of punishment for offenders on indictment to be a minimum of
    12 months to a maximum of 10 years imprisonment for accessing child
    pornography. The
Criminal Code
also sets out that conditional
    sentences are not available for offenses under this section. I have reviewed
    the jurisprudence provided by counsel, all the relevant post-
Friesen
jurisprudence, and the amendments to the
Criminal Code
, in the result,
    I cannot entertain a conditional sentence here.

[11]

In fact, the former 6-month minimum for
    possession of child pornography was struck down by this court in
R. v. John
,
    2018 ONCA 702, 142 O.R. (3d) 670, as violating s. 12 of the
Canadian
    Charter of Rights and Freedoms
. As well, in subsequent cases, in light of
John
the Crown has conceded the likely unconstitutionality of the minimum sentence
    for accessing child pornography in
Criminal Code
s. 163.1(4.1): see,
    for example,
R. v. Rytel
, 2019 ONSC 5541, at para. 8. As
    this court observed in
R. v. M.N.
, 2017 ONCA 434, 37 C.R. (7th) 418,
    at para. 40, the identical penalties for accessing and possession of child
    pornography indicate a legislative view that the moral culpability for the two
    offences is the same.

[12]

Although the sentencing judge returned to the
    issue of the availability of a conditional sentence later in her reasons, she
    proceeded on the basis that a conditional sentence would offend the
    proportionality principle and not constitute a fit sentence because of the
    requirements set out in the
Criminal Code
, the nature of the offences,
    and recent jurisprudence: at para. 57.

[13]

The applicant submits that the sentencing judge
    failed to adequately consider a conditional sentence as an alternative to
    incarceration, as required under the statutory principle of restraint in s.
    718.2(e) of the
Criminal Code
. Given that her analysis got off on the
    wrong legal footing, there certainly is merit in this submission.

[14]

Indeed, there is sufficient merit that, in the
    circumstances, it would cause Mr. Rule unnecessary hardship if he were detained
    in custody. Mr. Rule suffers from several medical conditions. One is rectal
    cancer, for which Mr. Rule has received chemotherapy and radiation treatment.
    As a result of cancer-related surgery, Mr. Rule has to wear an ostomy bag. In
    his affidavit, he describes the daily challenge of wearing an ostomy bag:

The ostomy bag needs to be changed frequently.
    This involves the following:

(a) In my bathroom, pulling the pouch off
    while sitting on a toilet to catch any spillage;

(b) Cleaning the stoma site with warm
    water;

(c) Waiting for the excretions from the
    site to stop;

(d) Moving to the dining room where I keep
    the ostomy equipment;

(e) Using a mirror to see the underside of
    the hernia (described below), and using scissors to cut out the portion of the
    ostomy pouch that fits overtop;

(f) Further cleaning and drying the skin
    around the stoma;

(g) Applying a glue sealer to the ostomy
    pouch;

(h) Pressing the pouch into place on my
    stomach;

(i) Lying down and pressing on the pouch
    with my hand for around fifteen minutes to use heat to seal the glue; and

(j) Applying special elastic tape on the
    outside of the pouch to further attach it to my body.

Generally this process is required once a day,
    but it may be twice a day, or once every two days. The time that the changing
    is required is not at all predictable, and may be any time of the day or night.

I need a great deal of equipment for the
    ostomy care. It takes up the surface of my dining room table.

I have experienced some internal leakage at
    the site of the operation where my intestines were affected. This leakage has
    caused excretions of fecal matter and blood from my rectum. This is called an
    anastomosis. There is also a hernia underneath the stoma site, meaning that
    some of my internal organs are pushing through a hole in my abdominal muscles.
    The result is a large lump at the stoma site the size of half a grapefruit.

[15]

While the sentencing judge acknowledged the need
    for this daily procedure, she was satisfied that [t]his regimen can be
    addressed in a correctional facility as it is the states responsibility to
    protect and provide proper medical care for those in its care or custody.
    Although the Crown submitted that the correctional facility could accommodate
    Mr. Rules medical needs, given their extraordinary nature I concluded that it
    would cause Mr. Rule unnecessary hardship if he were detained in custody.

[16]

As to the criterion in
Criminal Code
s.
    679(4)(c) that Mr. Rule establish his detention is not necessary in the public
    interest, a qualitative and contextual assessment is required to resolve the
    balance between enforceability and reviewability:
R. v. Oland
,
    2017 SCC 17, [2017] 1 S.C.R. 250, at para. 49. While, as the Crown submits, the
    offences for which Mr. Rule has been convicted are very serious ones, I
    conclude that this is a case where the public interest in reviewability
    overshadows the enforceability interest: there are no public safety or flight
    concerns, and the grounds of appeal clearly surpass the not frivolous
    criterion:
Oland
, at para. 51.

[17]

For these reasons, I granted Mr. Rules
    application for bail pending appeal.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Weisberg v. Dixon, 2021 ONCA 491

DATE: 20210706

DOCKET: C68364

Fairburn A.C.J.O., Lauwers and
    Harvison Young JJ.A.

BETWEEN

Dr. Fay Weisberg and Fay G.
    Weisberg Medicine Professional Corporation

Plaintiffs
    (Appellants
/

Respondents
    by way of cross-appeal)

and

Dr. Marjorie Dixon and 2435665
    Ontario Inc.

Defendants
    (Respondents/

Appellants
    by way of cross-appeal)

Arthur
    Yallen and James Lawson, for the appellants
/respondents by way of cross-appeal

Kevin
    OBrien, Lauren Harper and Marleigh Dick, for the respondents/appellants by way
    of cross-appeal

Heard: June 8, 2021 by video conference

On appeal from the judgment of Justice Shaun
    S. Nakatsuru of the Superior Court of Justice, dated April 24, 2020, with
    reasons reported at 2020 ONSC 2536.

REASONS FOR DECISION

Factual Overview

[1]

Dr. Fay Weisberg and Dr. Marjorie Dixon are
    fertility doctors who practised together for a number of years.

[2]

While the parties, along with another doctor, were once the officers and
    directors of First Steps Fertility Inc., that entity was defunct and had not
    filed income tax returns for some time. Dr. Dixon eventually planned to open a
    new fertility clinic at a new location.

[3]

In September 2014, Dr. Dixon incorporated
2435665
    Ontario Inc
. with the intention of naming her new fertility clinic
    First Steps Reproductive Health. This clinic was eventually named Anova
    Fertility & Reproductive Health. While she offered Dr. Weisberg the opportunity
    to invest as a minority shareholder in the new corporation, Dr. Weisberg
    eventually declined to do so on August 21, 2015.

[4]

On October 28, 2015, Dr. Dixon completed and submitted a funding
    application to obtain lucrative government funding for fertility treatments. Dr.
    Dixon stated that the name of the fertility clinic applying for funding was
    First Steps Reproductive Health. Therefore, the funding application was made
    for Dr. Dixons new fertility clinic. In that funding application, Dr. Dixon
    made reference to Dr. Weisberg and her experience and Electronic Medical
    Records data. While Dr. Weisberg testified at trial that she was unaware that Dr.
    Dixon had received and filled out the funding application until the day it was
    due and that she did not know that the application was filled out on behalf of
    the new fertility clinic, the trial judge rejected her evidence on this point,
    preferring the evidence of Dr. Dixon.

[5]

As well, although Dr. Weisberg testified that she never intended to move
    to the new location, the trial judge rejected her evidence on this point,
    instead finding that, while she was originally intending to move to the new
    location at the time of the preparation of the funding application, she changed
    her mind soon after receiving Dr. Dixons draft Senior Associate Agreement on
    January 20, 2016. This Agreement placed Dr. Dixon as the principal physician of
    the new fertility clinic, while Dr. Weisberg would be an associate. It also
    contained terms that Dr. Weisberg found to be insulting. On February 4, 2016,
    Dr. Weisberg informed Dr. Dixon that she would not be moving to the new fertility
    clinic. That conversation led to the breakdown of their professional
    relationship.

[6]

Dr. Weisberg sued Dr. Dixon, claiming that Dr. Dixon had filled out the
    government funding application without her knowledge, thereby depriving her of that
    funding. She said that this constituted a breach of fiduciary duty. Dr.
    Weisberg also claimed that Dr. Dixon was unjustly enriched by her actions. In
    lengthy and considered reasons, rooted squarely in factual findings linked to
    credibility assessments, the trial judge rejected Dr. Weisbergs arguments and dismissed
    the action.

Analysis

[7]

First, this appeal is predicated largely on objections to the trial
    judges findings of fact. According to Dr. Weisberg, the trial judge made
    numerous palpable and overriding errors in his factual determinations regarding
    the alleged fiduciary duty and unjust enrichment. We do not intend to explore
    every factual issue raised. In our view, Dr. Weisberg is attempting to
    relitigate the factual issues that were live before the trial judge, issues
    that he directly confronted and resolved. The trial judges factual findings
    are grounded in the evidence and solid assessments of credibility. As the trial
    judge said, he was not able to accept [Dr. Weisbergs] testimony on the key factual
    matters where it differed from Dr. Dixon.

[8]

It is not for this court to revisit those credibility assessments
    or factual conclusions. We have been shown no basis upon which to do so. Simply
    put, there are no palpable and overriding errors in the trial judges factual
    findings.

[9]

Second, Dr. Weisberg maintains that the trial
    judge erred by finding that Dr. Dixon did not owe her a fiduciary duty. We see
    no error in the trial judges approach to this issue. He correctly concluded
    that one of the fundamental prongs of a fiduciary relationship  an
    undertaking by the alleged fiduciary to act in the best interests of the
    beneficiary  was absent:
Alberta v. Elder Advocates of Alberta Society
,
    2011 SCC 24,
[2011] 2 S.C.R. 261, at para. 36
. On the evidence and the factual conclusions reached by the trial
    judge, the absence of an express undertaking or even an implied undertaking was
    fatal to the claim. Moreover, even if a fiduciary duty existed, Dr. Dixon did
    not breach that duty because, based on the trial judges factual conclusions, Dr.
    Dixon acted honestly and did what the parties agreed to do regarding the
    funding application.

[10]

Third, and finally, in claiming that Dr. Dixon
    was unjustly enriched by her actions at Dr. Weisbergs expense, Dr. Weisberg argues
    that the trial judge erred by concluding that there was a juristic reason for Dr.
    Dixons enrichment. The difficulty with this argument is that the trial judge
    concluded that Dr. Dixon filled out the application for government funding in
    an honest way, in accordance with the agreement of the parties. Specifically,
    the trial judge found as a fact that at the relevant time the funding application
    was made, Dr. Weisberg had agreed to move to the new fertility clinic at the
    new location, where she would benefit from the funding. It was only later that Dr.
    Weisberg changed course on this decision.

[11]

Therefore, we see no error in the trial judges
    approach to this issue, simply returning to the trial judges finding, as
    supported by the evidence, that Dr. Weisbergs ultimate exclusion from the
    funding arose from decisions she made before and after the funding had been
    obtained: she declined to invest as a minority shareholder in Dr. Dixons new
    corporation on August 21, 2015; and she ultimately decided not to move to the new
    fertility clinic on February 4, 2016.

[12]

It was open to the trial judge to find, based
    upon the factual backdrop at trial, that Dr. Dixon met her onus in establishing
    a juristic reason for her enrichment. As the trial judge said: morally, Dr.
    Dixons claim to the enrichment is not at all tenuous. There is no wrong-doing
    by her that she is profiting from. It was effectively decisions made by Dr.
    Weisberg that have led to the situation where she is unable to access
[the]
funding.

[13]

In light of our conclusions on the previous
    points, there is no need to address the alleged errors in the trial judges
    assessment of damages, an assessment he gave in the alternative should he have
    been found to have erred in dismissing the claim. We have concluded that he did
    not err, and so there is no need to reach the issues regarding damages. This is
    equally true as it relates to the cross-appeal, which need not be addressed.

Disposition

[14]

The appeal is therefore dismissed.

[15]

Costs will be paid to the respondents in the agreed
    upon amount of $15,000, inclusive of disbursements and applicable taxes.

Fairburn
    A.C.J.O.

P.
    Lauwers J.A.

A.
    Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fabbro, 2021 ONCA 494

DATE: 20210705

DOCKET: C69106

Simmons, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin James Fabbro

Appellant

Donald Orazietti, for the appellant

Adam Wheeler, for the respondent

Heard: May 26, 2021 by video conference

On appeal from the sentence imposed on February
    12, 2021, by Justice John P. Condon of the Ontario Court of Justice.

Gillese J.A.
:

[1]

This appeal exposes the ongoing challenges for
    sentencing judges arising from the opiate scourge in our province.

I.        OVERVIEW

[2]

Justin James Fabbro, the appellant, comes before
    this court because of an incident that took place on January 20, 2019, in Sault
    Ste. Marie, Ontario. He was 36 years old at that time and in the throes of a
    heroin addiction. His domestic situation had broken down. He wanted to end his
    life.

[3]

The appellants addiction started when he was overprescribed
    Percocet and OxyContin
[1]
at age 25, following a boating accident. Later, he had surgery on his shoulder
    and knees. After four or five years of taking pain medication, the doctors
    would no longer prescribe them and he began buying drugs on the street.

[4]

The appellant also suffered from serious unresolved
    trauma arising from three events. In the year before the boating accident: he
    found the body of a neighbor who had committed suicide by hanging; he saw a
    friend decapitated in front of him; and, he saw a snowmobiler go over a cliff. His
    resulting grief and trauma issues had not been addressed.

[5]

In the month leading up to the incident, the
    appellant went to the Sault Area Hospital on three occasions to get medical help
    for suicidal ideation but was sent away each time. Two earlier visits to the
    hospital had also been unsuccessful.

[6]

Just before 10:00 a.m. on the day of the
    incident, the police received information that the appellant had been seen leaving
    a residence with a gun and that he might harm himself. At the time, the
    appellant was wanted on a surety revocation warrant related to outstanding
    firearm charges. He was also bound by a recognizance not to possess firearms.

[7]

Shortly after receiving the call, the police located
    the appellant, who was driving a truck. They initiated a traffic stop. The
    appellant pulled into the driveway of a residence with which he had no
    connection and put a shotgun in his mouth. The police officer on the scene
    called for backup. More police officers, the Emergency Services Unit, and a
    negotiator arrived on the scene.

[8]

The appellant spoke to the police officers. He was
    emotional and upset. He repeatedly said that he did not want to hurt the police
    or anyone else, only himself. He also said he had a tough life, was still using
    heroin but wanted to stop, did not want to go to jail, and did not know if he
    wanted to live.

[9]

While negotiations with the appellant were
    taking place, the occupants in the residence were evacuated.

[10]

After a standoff of several hours, the appellant
    threw the gun out of the passenger-side window and got out of the truck. The
    gun had been sawed off. It was not loaded but it was capable of firing. He was
    arrested and taken to hospital where he was admitted pursuant to the
Mental
    Health Act
,
R.S.O. 1990, c. M.7.

[11]

The appellant was eventually released on bail
    and undertook sustained, significant steps to address his substance addiction and
    mental health challenges. Those steps included: attending and successfully
    completing a residential treatment program; enrolling in another such program and
    attending until it was shut down due to COVID-19; participating in the
    methadone program at the addiction treatment centre in Sault Ste. Marie; and, being
    under the care of a psychiatrist to address his addiction and the root issues
    that were affecting his mental health.

[12]

As a result of the incident, the appellant was
    charged with
carrying a weapon for a purpose dangerous
    to the public peace (
Count 1
). Later, he was charged with: possessing
    a prohibited firearm with readily accessible ammunition while not being the
    holder of a license; while on recognizance, failing without lawful excuse to
    comply with the condition that he not possess any weapons; and, having a
    sawed-off shotgun in his possession while prohibited from doing so under a
    recognizance.

[13]

The appellant pleaded guilty to the offences and
    was sentenced to two years less a day in prison, followed by three years of
    probation. Several ancillary orders were also made.

[14]

The sentencing judge acknowledged that the
    appellant
was suffering from compromised mental health
    and a drug addiction at the time of the incident and had since
chosen a path of significant rehabilitation. He described the
    incident as the catalyst for an awakening or intervention  causing the
    pursuit of a course of rehabilitation and reformation. However, because the incident
    involved a firearm  in particular, a sawed-off shotgun  he viewed the primary
    sentencing principles to be denunciation and deterrence.

[15]

The sentencing judge also acknowledged that the
    appellant had pleaded guilty and expressed remorse. Further, he found that,
    during the incident, the appellant never threatened harm against anyone but himself
    and his actions were consistent with that. As well, the trial judge observed that
    the appellant had been on strict bail conditions for over two years following the
    incident and there had been no breaches in that time.

[16]

On appeal, the appellant submits that the
    sentence is demonstrably unfit. He does not appeal the conditions of probation
    or the ancillary orders.

[17]

For the reasons that follow, I would allow the
    appeal and substitute a conditional sentence on the terms that the parties have
    agreed to.

II.       THE ISSUES

[18]

The appellant argues that the sentence is
    demonstrably unfit because the sentencing judge:

1.

placed undue emphasis on the principle of
    protection of society;

2.

failed to award
Downes
[2]

credit
    for time he spent under house arrest; and,

3.

erred by not imposing a conditional sentence due
    to the appellants mental health.

III.      ANALYSIS

[19]

Sentencing judges are in the best position to
    determine just and appropriate sentences and are entitled to considerable
    deference:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    41. Appellate intervention is warranted in only two situations. First, where
    the sentencing judge commits an error in principle, fails to consider a
    relevant factor, or erroneously considers an aggravating or mitigating factor,
    and the error had an impact on the sentence:
Lacasse
, at para. 44.
    Second, where the sentence is demonstrably unfit:
Lacasse
, at para.
    51. In either situation, the appellate court may set aside the sentence and
    conduct its own analysis to determine a fit sentence in all the circumstances.

[20]

In my view, the sentencing judge erred in
    principle in two regards. First, he failed to consider a relevant factor, which
    led to an undue emphasis on the principles of denunciation and deterrence. Second,
    he failed to consider whether there was a causal link between the appellants
    mental health condition and his criminal conduct when deciding whether a
    conditional sentence was warranted. As both errors had an impact on the
    sentence, in my view, it falls to this court to conduct its own analysis and
    determine a fit sentence.

[21]

In terms of the first error, the sentencing
    judge pointed to this courts jurisprudence to conclude that, because the offences
    involved firearms, the primary sentencing principles were denunciation and
    deterrence. In my view, this fails to take into consideration the relevant fact
    that the appellant had the gun because he intended to use it to commit suicide.
    In Canada, it is not an offence to commit suicide or attempt to commit suicide.
    The appellants offence was that he was carrying a weapon for a purpose
    dangerous to the public peace.

[22]

There can be no doubt that when a person carries
    a firearm, there is always the potential for danger to the public. However, the
    danger was much attenuated in the circumstances of the present case: the shotgun
    was not loaded (although the appellant had ammunition nearby); the appellant said
    he was not going to hurt anyone other than himself and the trial judge found
    that his actions [were] consistent with that; and, the officers at the scene
    indicated they did not feel any direct threat against them.

[23]

The appellant had the gun because he intended to
    use it to commit suicide. An act of attempted suicide is the ultimate plea for
    help. It does not cry out for a denunciatory sentence. This consideration, coupled
    with the much-attenuated danger to the public, leads me to conclude that the
    primary sentencing principles in this case are not limited to denunciation and
    deterrence  they include rehabilitation. This view finds support in the second
pre-sentence report where the author provides this
    assessment:

If we remove the weapon from the equation of the
    offence we are dealing with a young man with undiagnosed/untreated mental
    health issues combined with substance addiction  [H]is intent was not to harm
    anyone other than himself, numerous times he expressed attempts to seek help
    through the hospital and being turned away. In dealing with the offenders
    mental health and continued abstinence of substance use the risk to further
    self-harm to himself and collateral harm to the community is very minimal at
    best.

Continued involvement with professional
    services, abstinence, and community supports will even lessen the risk of the
    offender contemplating self-harm in the future.

The offender has proven for the past 10 months
    that with community and family supports he is capable of being a productive
    member of the community.

[24]

In terms of the second error, the Crown submits that
    the evidence did not indicate a causal link between the appellants mental
    state and the offences. It argues that there was no evidence the appellant was
    experiencing a delusion or in a mental state that rendered him incapable of
    appreciating the consequences of his actions. He did not challenge his
    criminal responsibility or mental capacity at sentencing.

[25]

Respectfully, the Crowns argument misses the
    point. The question is not whether the appellant was suffering from delusions
    or a mental disorder. For mental health to be considered a mitigating factor in
    sentencing, the offender must show a causal link between their illness and
    their criminal conduct. That is, the illness must be an underlying reason for
    the conduct. And, there must be evidence that a lengthy sentence would have a
    serious negative effect on the offender such that it should be reduced on
    compassionate grounds. See
R. v. Megill
, 2021 ONCA 253, at para. 171;
R.
    v. Hart
, 2015 ONCA 480, at para. 6; and
R. v. Pioriello
, 2012
    ONCA 63, 288 O.A.C. 198, at paras. 11-12. In
Hart
, on a Crown appeal,
    this court upheld the conditional sentence imposed by the trial judge where the
    mitigating factors included the inference that the appellants mental health
    played a causal role in the commission of the offence. At para. 6, this court
    found that was a proper inference. And, at para. 8, this court stated:

The record also supports the trial
    judges conclusion at para. 50 of her reasons, namely: To now impose a
    custodial sentence would likely destroy any progress that has been made by Mr.
    Hart with respect to his mental health and in my view serve no genuine societal
    purpose.

[26]

While the sentencing judge acknowledged the
    appellants addiction and mental health challenges, he did not consider whether
    there was a causal link between them and the offences. He was required to
    determine the extent to which those matters contributed to the appellants conduct
    and the impact of that finding on the appropriate sentence:
R. v. Ellis
,
2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused,
    [2014] S.C.C.A. No. 53. There was ample evidence of that causal link in the: two
    pre-sentence reports; medical records which included the appellants attempts
    to get treatment at the Sault Area Hospital in the months leading up to the
    incident; and, reports from Dr. Pistor (psychiatrist), John Mertes
    (therapist), and Frank Perri (social worker). The conclusion that there was
    such a causal link is virtually inescapable on the evidence: the appellant
    wanted to commit suicide (using the shotgun) because of his addictions, his
    unresolved mental health issues, and the ensuing breakdown of his life. That
    the appellants mental health problems and addiction played a central role in
    the offences is borne out by the appellants conduct once on bail and being
    treated. He abided by strict bail conditions for over two years without a
    breach and fully complied with the rules and regulations of the John Howard
    Society Bail and Supervision Program.

[27]

Even if denunciation and deterrence were the
    overriding objectives in this case, a sentence of imprisonment was not the only
    route to achieve them. A conditional sentence recognizes the seriousness of the
    offences while at the same time acknowledging and promoting the significant
    strides in rehabilitation that the appellant has made with the help of his
    family and the medical community. Imposing a custodial sentence was likely to
    have a serious negative effect on the appellants progress and would not serve the
    genuine societal interest.

[28]

Finally, I reject the appellants submission
    that the sentencing judge erred in failing to give him credit for the time he
    spent under house arrest.
While the sentencing judges
    reasons on
Downes

credit are sparse, a careful reading of
    paras. 62-63 shows that the appellant was given credit for that time.

[29]

In para. 62, the sentencing judge acknowledged
    that there had been no further breaches of bail on charges that arose over two
    years earlier. He then stated, Credit must be given to [the appellant] for
    compliance with those restrictive bail conditions. The sentencing judge went
    on, in para. 62, to describe the extensive progress the appellant had made
    while following a path of significant rehabilitation.

[30]

When he sentenced the appellant on Count 1 to 20
    months custody, at para. 63 of his reasons, the sentencing judge stated that he
    had factored in the appellants considerable rehabilitation and lengthy
    compliance with the current bail order. He concluded that In the absence of
    these mitigating factors, a penitentiary sentence would have been imposed. From
    this, it is clear that the sentencing judge reduced the sentence imposed for
    Count 1 by at least four months in consideration of his rehabilitation efforts
    and as
Downes

credit.

IV.
DISPOSITION

[31]

For these reasons, I would grant leave to appeal
    sentence, allow the appeal and substitute a two-year-less-a-day conditional sentence
    for the two-year-less-a-day custodial sentence, on the terms that the parties
    have agreed to. The conditional sentence order, containing these agreed-upon
    terms, is attached to the final order. The probation order and ancillary orders
    imposed by the sentencing judge remain undisturbed.

Released: July 5, 2021 J.S.

E.E. Gillese
    J.A.

I agree. Janet
    Simmons J.A.

I agree. Grant
    Huscroft J.A.

[1]
The appellant
said he was prescribed 300 Percocet and 180
    OxyContin per month after the boating accident. The author of the first pre-sentence
    report was unable to confirm this because the initial prescribing physician had
    been suspended from practicing medicine.

[2]

R. v. Downes
, 79 O.R.
    (3d) 321.


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.