January/February 2009 - Ontario College of Pharmacists

deciding on discipline
Case 1
Member found guilty of an offence
relevant to his suitability to practise
Member: Roger Demers
Hearing Date: October 8, 2008
Facts
The College commenced an investigation
into the Member’s conduct after
learning that the Member may have
been charged with a criminal offence.
Through subsequent inquiries, the College
learned that in or about July 2004,
the Member had been charged with
possessing child pornography. Through
his counsel, the Member cooperated
with the College concerning the criminal
proceedings.
In an Agreed Statement of Facts
with the Crown, the Member admitted
to having used his home computer
to purchase access to three different
websites on three separate occasions in
April 2002, April 2003, and June 2003,
which websites contained child pornography
as defined by the Criminal
Code of Canada. He further admitted
to having accessed additional child pornography
websites during the period
March 8, 2000 to July 28, 2004, and
to having in his possession at his home
10 printed images and 34 electronic images
of child pornography. The Member
pleaded guilty to the charge of possession
of child pornography and was
sentenced in criminal court.
The discipline hearing proceeded
by way of Agreed Statement of Facts
and Joint Submission on Penalty. The
Member admitted that he had committed
acts of professional misconduct,
namely that he had been found guilty
of an offence relevant to his suitability
to practise, and that he had engaged in
conduct or performed an act relevant
to the practice of pharmacy that, having
regard to all the circumstances,
would reasonably be regarded by members
of the profession as disgraceful,
dishonourable or unprofessional.
The Joint Submission on Penalty included
a reprimand, a suspension of the
Member’s Certificate of Registration
for two months to be served in two
one-month blocks, and costs of $4,500
to the College. The Joint Submission
also included certain terms, conditions
and limitations on the Member’s Certificate
of Registration with respect to
providing current and future employers
with the Discipline Panel’s decision.
Decision and Reasons
The Discipline Panel found this case
to be very challenging when it came
to crafting a penalty. This is a case
that underscores that a pharmacist’s
behaviour outside of the place of employment
is integrally connected to his
or her professional standing in the community
and in the profession. The circumstances
of the Member’s conduct
are troubling, but the Panel believed
the Member is paying his dues in regards
to the criminal process. In the
professional disciplinary context, his
misconduct does not go to his fitness
to practise pharmacy on a technical or
skills based level, but rather his moral
fitness to hold himself out as a professional
pharmacist. The Panel could not
simply order course work, order a suspension
and impose a fine as a means
to protect the public, and trust that the
Member will not reoffend. Rather, the
Panel’s focus in protection of the public
was perhaps even more heightened
than in more typical discipline cases.
The Panel had two problems with
the Joint Submission on Penalty. The
Panel was acutely aware of the overwhelming
body of case law directing it
to accept Joint Submissions, but did not
feel it could do so in this case without
implementing greater protections for
the public. To the credit of the Member,
the College and their respective
counsel, the Panel was able to raise its
concerns at the hearing, and the parties
were able to come up with a suitable
additional term to further protect
the public.
The Panel was concerned about
members of the public learning, after the
fact, that the Member, as their pharmacist,
may have been counselling their children
on prescriptions given the nature
of the Member’s criminal conduct. Accordingly,
the Panel proposed that the
Joint Submission be amended to include
a term that the Member would not counsel
patients under the age of 18 without
an adult being present during that counselling,
with the Panel’s preference being
that the other adult be a member of
the professional staff of the pharmacy.
When attendance by another professional
staff member was not possible, the
Panel expected the Member to pursue
alternative methods, such as counselling
by telephone, or the patient reattending
another day for counselling.
The Panel was also concerned that
the proposed suspension was to be
broken up into two blocks of time, to
accommodate some scheduling difficulties
of the owner/Designated Manager
of the pharmacy in which the Member
was employed. Without being disrespectful
to the pharmacy owner, the
20 pharmacyconnection • January/February 2009