The trade-offs between an individual’s rights and society’s needs will always be complex. We’ll never get it perfectly right. And a fascinating case in Ontario shows us exactly why that balance will remain forever out of each.
The case involves allegations of sexual misconduct against an Ontario physician. It’s complicated stuff (and hat tip to the fine work of the Toronto Star’s Jacques Gallant, whose reporting informs my column). A woman, known only as Patient A, had two doctors’ notes written for her in 2010 by Toronto physician Suganthan Kayilasanathan. The notes excused her from exams. She later went to another physician, seeking a test for a sexually transmitted infection she feared she had contracted from Kayilasanathan. She claimed they had a sexual encounter during the week his notes had excused her from exams.
This is where things get a bit complicated: the second physician, from whom Patient A was seeking the STI test, reported the alleged incident to the College of Physicians and Surgeons of Ontario. In Ontario, it is forbidden for doctors and patients to have sexual contact (a normally unobjectionable rule that has had some completely absurd outcomes). It is further required for a doctor who becomes aware of such a relationship to report it to the College. And that’s what happened here: the second doctor reported Kayilasanathan to the College for the alleged sex with Patient A.
Kayilasanathan has previously been accused of misconduct — assault, actually; he was acquitted at trial. One can understand the College’s desire to pursue a full investigation. But there’s a problem. Patient A did not make any report herself. Mainly for personal reasons, she does not want to.
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To pursue its investigation into Kayilasanathan, the College has resorted to using the judicial powers it holds to issue a summons and compel Patient A to testify. If she refuses, she can be arrested. The College has said it is prepared to take legal action to compel her testimony, if necessary.
And there it is, the collision between the obligations of the state (in the form of the quasi-judicial College) and the individual.
Does society have a need to root out sexual offenders? Absolutely — the #MeToo movement has, if nothing else, revealed how much work there is to be done on that front. All of us should want to see standards of conduct, professional or otherwise, upheld after a proper investigation. The College is playing its part, to our mutual benefit: a protocol was established to alert them to possible abuse; the protocol was followed; an investigation is now underway; and the College is prepared to use its legal powers to ensure the investigation is successful. Great!
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No, no, wait a minute. Because the woman involved doesn’t want to take part, and has said so, and has even retained a lawyer to try and have the summons quashed (unsuccessfully, thus far, but she has the option of further appeals). So it’s not just that Patient A would kinda, sorta, rather not testify — she is actively fighting to not be forced to. So Patient A — the victim here, the College contends — is being threatened with arrest if she doesn’t share details about her sex life.
You’ll all have heard of the old saying about how the road to hell is paved with good intentions. That’s clearly the case here. The College has a valid interest in seeking a full hearing into Kayilasanathan’s alleged misconduct, and that interest would be to my benefit. Would I want my daughter or son going to a doctor guilty of these kinds of acts? Hell no. Throw the bums out of the profession, I say. Good riddance.
But I simply cannot bring myself to support compelling a woman to testify against her will. If the College is right and she is a victim, I don’t see how anyone can, in good conscience, use the coercive power of the law to force her into acts that are against her will. Is that not just another form of victimization? To me, yes. I hope the College backs down.
But let’s not pretend there’s a “good” answer here. It’s pick your poison. I’ve chosen mine. Which can I pour you?
Matt Gurney is host of The Morning Show on Global News Radio 640 Toronto and a columnist for Global News.
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