Oral Health Group
Feature

Ontario’s Dumb, Stupid “Zero Tolerance” Law

September 1, 2012
by Dr. Lang


Two years ago I wrote an editorial titled “Dumb Stupid Laws.” In it I reported that if you ‘googled’ “dumb stupid laws”, you would immediately find hundreds of websites listing all sorts of ridiculous laws. A few of my favourites were:

• In Montana, it is against the law to be alone with a sheep in the cab of your truck.

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• In Georgia, it is illegal to use swear words over a dead body which lies in a funeral home.

• In Florida, it is against the law for men to be seen publicly wearing a strapless gown.

But the “grand prize” for the dumbest and stupidest law should be awarded to Ontario for its Zero Tolerance law, which states that a dentist, or hygienist, can be charged with sexual abuse for having sex with his or her spouse, if the spouse is also their patient. And the unbelievable mandatory penalty is revocation of the dentist’s or hygienist’s license for a minimum of five years. In other words, a professional ‘death penalty’ for simply cleaning your wife or husband’s teeth.

Plus, as an added bonus, your guilt of being a convicted ‘sex offender’ will permanently be on the public registry for all of your colleagues and patients to see. Your ‘unsavory’ reputation is sure to follow you wherever you go in the future.

Ontario is the only province in Canada with both mandatory license revocation and no spousal exemption. If you are one of the lucky 11,000 dentists who practice in a province other than Ontario, you are probably scratching your head and thinking to yourself — “Certainly the Ontario Government and its Minister of Health have come to their senses by now and have removed this absurd law with its Draconian penalty.” Well, guess what — they haven’t! Unfortunately, the Zero Tolerance law is still solidly in place and continues to be strictly enforced by the courts in Ontario.

So, what steps have been taken over the last couple of years to try to convince our Government to change the law? I will list a number of notable efforts:

• Both the Ontario Dental Association and the Royal College of Dental Surgeons have been lobbying this Government to change the law — however, possibly not as vigorously as some members claim they would like to see have happen.

• Karen Selick, the Litigation Director for the Canadian Consti­tution Foundation, in a National Post article titled “A Bad Law Waiting to be Ended,” listed a number of serious concerns that she has with Ontario’s Zero Tolerance law:

• “Why should a dentist’s spouse be denied his or her choice of a dentist when every other Ontarian is free to choose?”

• “If Ontario politicians aren’t prepared to tackle this no-brainer soon, the Canadian Constitution Foundation has been approached to take this issue to court on behalf of spouses who are being denied their choice of health care professional. One way or another, it’s time to end this silly law.”

• “This law has far too much potential to be used as a tool for extortion or personal vendettas against dentists. It’s not hard to imagine that a threat to tattle on a dentist who has been treating his or her spouse might have a large impact in divorce negotiations or even in professional partnership dissolutions.”

• “If Ontario Progressive Conser­vative Party leader Tim Hudak wants to take a page out of Stephen Harper’s book and win support by appealing to one slice of the electorate at a time, here is a suggestion for him. All regulated health professionals in Ontario — approximately 256,000 of them­— would be tickled pink if he pledged to amend one of the most unnecessary and irritating laws on the books — the Zero Tolerance law.”

• Two Burlington Ontario dentists, Dr. Larry Pedlar and Dr. Arthur Hobbs, along with their spouses, formed an organization called “The Coalition to Restore Spousal Rights and Freedoms.” This organization has received funding support from both dentists and their spouses, and is helping to keep the issue of dental spousal rights and freedom of choice at the forefront with this Government.

• Mandatory sentences with no flexibility have recently come under attack in both the courts and the press. Ontario Superior Court Judge Anne Molloy, in a 55-page decision, recently struck down a mandatory 3-year sentence for a first-time offender in a minor criminal matter. The judge ruled that a 3-year mandatory sentence, as is currently required by law, would be “unconstitutional, fundamentally unfair, outrageous and cruel and unusual punishment.” Hopefully, recent decisions like this will help convince the Minister of Health to also show similar wisdom and understanding and reconsider the 5-year mandatory license revocation law as it applies to dentistry.

• National Post columnist Matt Gurnew has written — “Ontario Health Minister Deb Matthews promised to look into the sex abuse law over a year ago, but nothing has been done … the law was badly written, resulting in a clearly unintended consequence… If the Ontario Ministry of Health cannot tackle even minor issues of its own making in a timely fashion, it is entirely fair to ask how successful they will be tackling the real challenges in delivering modern health care to an aging population in times of austerity. The answer isn’t encouraging.”

• Progressive Conservative MPP Steve Clark recently introduced a private members bill in the Ontario Legislature. It would finally allow dentists to treat their spouses without fear of being charged with sexual abuse and being given a mandatory 5-year license revocation. This bill supports changes proposed by both the Ontario Dental Association and the RCDSO. Unfortunately, further readings of this bill must wait on the pleasure of our current Liberal Health ­Minister.

• And finally, the Minister of Health could have quickly and easily solved the problem by simply issuing a letter to the RCDSO, the regulator in Ontario, stating that the Minister no longer considers a dentist treating his or her spouse, to be sexual abuse. This had actually been done by a previous Minister of Health years ago, but unfortunately, the current Minister rescinded the letter.

Instead, the Minister chose to refer the matter to the Health Profession’s Regulatory Advisory Council (HPRAC) and asked them to study the ‘fairness’ of the law that requires mandatory revocation of a dentist’s license for treating a spouse. So HPRAC took the better part of a year and spent thousands of taxpayer dollars to finally come to the same conclusion that every dentist, every spouse, every dental organization and every clear-thinking person had been telling the Ministry of Health for years… “that the treatment of a spouse by a dentist, or any other health care professional should not be regarded as sexual abuse.”

Now, before Ontario dentists and their spouses start cheering and singing “Happy Days are Here Again,” there is still a long way to go on the road to victory and many potential pitfalls may lie ahead.

The ‘fine print’ in the HPRAC report clearly states that the “HPRAC recommendations are ‘advisory only’ and the Minister is not bound to accept the advice.” The Minister also gets to study the report for as long as she wants. She then gets to decide whether or not to accept the recommendations and, if she does, which steps should be taken to solve the problem. And finally, she presents her recommendations to the Government.

And since the Minister of Health is currently surrounded by controversy and demands for her resignation due to the almost daily published allegations of mismanagement and scandal within her Ministry, I suspect that the problems
of a few thousand dentists seem rather small and unimportant to her right now.

So, the bad news, my fellow colleagues, is that our dumb, stupid, Zero Tolerance law has still not been changed. We can still be charged with sexual abuse and have our licenses revoked for five long years for cleaning our spouse’s teeth.

On the other hand, the good news is that there is still no law in Ontario that prohibits male dentists from driving around wearing a strapless gown with their pet sheep in the car. OH