Doctor's conduct made penalty of revocation mandatory, court says
Editor’s Note: An image that originally accompanied this article depicting a Black doctor was removed. This image, which was included in error, may have misled readers about the race of Dr. Taliano, who is not Black. Our sincere apologies for the error.
The Ontario Divisional Court has affirmed a tribunal decision to revoke the licence of a doctor found to have made unwanted sexual advance toward his teenage patient.
In Taliano v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3529, the appellant is a family physician in St. Catharines, Ontario. A, a then-14-year-old patient of the appellant, alleged that the appellant sexually abused him by touching his genitalia under the guise of a physical examination.
During the College of Physicians and Surgeons of Ontario (CPSO) hearing, the appellant denied the allegation. He claimed that he had conducted a clinically appropriate examination to which A consented.
The CPSO found that the appellant had committed an act of professional misconduct by engaging in the sexual abuse of a patient and engaged in an act relevant to the practice of medicine that would reasonably be regarded as “disgraceful, dishonourable, or unprofessional.” It also found that the appellant’s conduct amounted to “masturbation” − an act that required mandatory revocation of his certificate of registration under the Health Professions Procedural Code.
The appellant appealed the decision to the Divisional Court, alleging that the CPSO erred in finding that the revocation of his certificate was mandatory since his conduct towards A did not amount to “masturbation.” He also alleged that for an impugned conduct to constitute “masturbation,” there must be a finding that he stimulated A’s genitalia for the purpose of giving or deriving sexual pleasure, but the CPSO made no such finding.
In its ruling, the Divisional Court held that the appellant failed to demonstrate that the CPSO erred in finding that his conduct towards A constituted “masturbation.” Thus, the penalty of revocation is not deemed unfit.
According to the court, the CPSO found in its decision that “masturbation is the attempt to sexually stimulate the genitalia,” and this finding made it clear that the touching must go beyond merely touching the genitalia, with the intent of stimulating sexual pleasure.
The court also cited some instances during the CPSO hearing, in which the appellant indicated that “he was in no doubt that A’s claim amounted to masturbation.” Some of these are: (a) the appellant testified that “he had no idea that A was going to create a story about me masturbating him”; (b) the appellant asked the CPSO’s counsel what she would expect to be in the missing clinical note, “Would you expect that in that note to say that I masturbated A?”; and (c) the appellant asked rhetorically, “Do I disagree with A’s evidence? He said I masturbated him. Yes. I disagree with every word that comes out of his mouth.”
“It was only after the [CPSO] accepted A’s evidence that the appellant took the position that what was described was not masturbation,” Justice Harriet Sachs wrote.
The appellant argued that his use of the word “masturbation” should have no impact on whether the conduct described was “masturbation.” The court disagreed.
“Interpreting legislation requires the tribunals to, among other things, consider the words used in their grammatical and ordinary sense,” Justice Sachs wrote. “The appellant’s use of the word ‘masturbation’ to describe what A was alleging is consistent with a finding that the impugned conduct amounted to ‘masturbation’ as that term is ordinarily used.”