Civil Code of Quebec Quebec Charter of Human Rights and Freedoms Quebec Court of Appeal Rulings

Cardiologist who had sex with patient ordered to pay $100,000

sexual abuse 3A cardiologist who had sexual relations with a patient was ordered by the Quebec Court of Appeal to pay $100,000 in damages to a former patient after it was determined that he had unlawfully interfered with her right to dignity and physical well-being, as per the Quebec Charter of Human Rights and Freedoms.

In a majority decision, the Court of Appeal held that the Dr. Jean Hamel took advantage of his ex-patient’s vulnerability and the power he exercised over her to carry out actions that demonstrated “total insensitivity” towards her condition.

“This is not merely a lover’s breakup as the appellant pleads, but rather a case in which a professional, with full knowledge of the facts, sexually abused a vulnerable patient,” wrote Justice Julie Dutil in a ruling that upheld a lower court ruling but lowered the damages from $247,628 to $100,000 because she was receiving indemnities from a provincial crime victim compensation program.

“The evidence shows the appellant’s insensitivity through out his meetings with the respondent,” added Justice Dutil in Hamel c. J.C., 2008 QCCA 1889. “It was he who decided the moment, the place and it was who led her to believe that he loved her, all the while committing actions of a sexual nature whose only goal was his satisfaction. As an aside, it is not so much the nature of the sexual acts carried out by the appellant, but rather the very existence of sexual contacts, under the circumstances, that constitutes sexual exploitation.”

Dr. Hamel first met with the patient, a mother of two and pregnant at the time, in November 1994. He had sexual relations on 11 occasions between March 1995 and January 1997. Depressive and anxious, she had a miscarriage. In the months following the break-up in February 1997, when the doctor told her he was not going to leave his wife, the former pharmacy technician was followed by a psychiatrist and was on sick leave.

In 2001, Dr. Hamel, who practiced both in Quebec City and Rimouski, was accused of sexual assault on two other patients, and was acquitted. The ruling was appealed but dismissed by the Court of Appeal on January 2003.

On April 2002 the disciplinary committee of the College of Physicians of Quebec found Dr. Hamel guilty of three counts of derogatory conduct towards the respondent and two other ex-patients, and he was fined $3,000 on each count and his license was revoked for 10 months. Dr. Hamel plead not guilty before the disciplinary committee but did not plead his case.

Before the Court of Appeal Dr. Hamel argued that the ex-patient’s testimony was riddled with contradictions. He also asserted that the absence of a defense before a disciplinary committee cannot constitute an implicit admission. He argued that he had chosen to remain silent because his acquittal was under appeal and he faced a possibility of a new trial. Further, he argued that under s. 2851 of the Civil Code of Québec an admission may not be inferred from mere silence.

The Court of Appeal disagreed. The Court noted that an admission can either be explicit or implicit, judicial or extrajudicial. Admission of guilt in a disciplinary case can be considered as an extrajudicial admission, said the Court. However, the doctor never plead guilty; he did not offer a defense. And he could have, without jeopardizing his constitutional rights because the disciplinary hearings were held in camera up and a non-publication ban over the evidence and reasons behind the disciplinary committee’s ruling were in force until a judgment was rendered in the criminal proceedings against him.

The Court also noted that the doctor, with the assistance of his counsel, helped to draft the sanctions decreed by the disciplinary committee. In it, he agreed to undergo therapy and concedes  that “this reprehensible conduct” took place over several months.

“The contents of the written statement in the sanction, combined with the fact that the appellant did not offer a defense, permitted the judge (of first instance) to conclude that there was an implicit admission,” wrote Judge Dutil, a conclusion she agreed with. “He did not view in the appellant’s conduct an implicit admission of responsibility but only an implicit admission that the appellant maintained intimate relations with the ex-patient” within the scope of his professional relationship.

Further, the Court noted that a condemnation by a disciplinary committee over a professional’s civil responsibility constitutes pertinent evidence “which possesses undeniable authority.”

Justice Paul-Arthur Gendreau, however, would have granted the appeal. Judge Gendreau is troubled by the fact that the ex-patient lodged a complaint against Dr. Hamel not when their relationship broke up but after she discovered that he had other liaisons with women – that is, a year later.

“The wound left by this revelation is profound and painful,” wrote Justice Gendreau. “But does it lead to a civil fault? I do not think so. Certainly we can ascribe the appellant’s conduct with the strongest of epithets but it remains that the ex-patient’s sufferance is not attributable to a sexual assault but rather to a feeling of rejection over a relationship she felt was sincere, intense, privileged and reserved to only her. The harm was not caused by the act of a doctor but by a man.”

Justice Jean-Louis Baudouin too was troubled by the fact that the ex-patient lodged a complaint against Dr. Hamel when she found out he had other escapades. But he said that “given the meticulous analysis over the evidence by the judge of first instance,” he felt that one could “legitimately support the conclusion between the fault and the causal link.”

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