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Allegations and Plea
The College alleged that the Member was found guilty of a criminal offence that is relevant to his suitability to practise, namely, possession of child pornography and making available child pornography.
The Member admitted to the allegations, however he disputed the penalty order sought by the College.
Court documents confirmed that on November 16, 2012, the Member was found guilty of possession of child pornography in the form of a file and making available child pornography in the form of a video file. He was sentenced to a 90-day intermittent jail term, 18 months of probation and a DNA order. The terms of probation required him to undergo counselling and prohibited his contact with children.
The College submitted that the seriousness of the Member’s criminal conduct makes it highly relevant to his suitability to practise, even though the offences were committed outside of the nursing context.
The Panel found that the Member committed professional misconduct as alleged. The offence is relevant to the practice of nursing as this type of behaviour is inconsistent with the College’s mandate to protect the public. The exploitation of children in this manner is wholly contrary to the profession’s reputation and the public’s perception of the integrity of nursing.
Evidence and Submissions on Order
The Panel received College documents indicating that the Member resigned on February 4, 2013.
The Member provided two reports from counsellors, including a Forensic Psychiatrist report dated April 19, 2013, which indicated that the Member’s risk to reoffend in a similar manner was low. In addition, the Panel reviewed the Member’s curriculum vitae and letters of reference, which summarized the Member’s progressive, professional career as a staff nurse and clinical educator.
College Counsel sought an oral reprimand and revocation of the Member’s certificate of registration effective from the date the Member obtains an active certificate, should that ever occur in the future. In the alternative, College Counsel sought a reprimand, 12-month suspension following reinstatement, remediation, employer notification and limitations to a practice environment.
The Member contended that the hearing was unwarranted because he had resigned.
Independent Legal Counsel advised that, based on its view of the legislation, the Panel did not have jurisdiction to order revocation because the Member does not have a current certificate of registration. The Panel was advised that it could order the Member to be reprimanded.
The Panel requested written submissions regarding the advice of Independent Legal Counsel. The Member’s submission supported the advice. College Counsel’s submission argued that this interpretation was inaccurate and would limit the College’s ability to regulate its members. A voluntary resignation that prevents revocation does not have the same deterrent effect, nor does it have the same public protection role.
The Panel ordered that the Member attend for an oral reprimand. Had the Member had an active certificate of registration at the time of the Panel’s findings, the Panel would have ordered that his certificate be revoked. The oral reprimand provides general deterrence to the membership and specific deterrence to the Member.
Should the member seek to reinstate in the future, the Panel believes that the Registration Committee would have the authority to decline to register the Member or impose limitations at that time.
This matter is currently under appeal to the Ontario Superior Court of Justice (Divisional Court).