A Mississauga doctor who showed a gay porn magazine to a female patient will get a second chance at keeping his licence, following a recent court decision.

Dr. Martin Lee’s licence was initially revoked in 2017 by the discipline committee of the College of Physicians and Surgeons of Ontario. Among other things, the committee found the rheumatologist had sexually abused one patient by showing her gay pornography and asking: “What is S&M? What do they get from it? How could two men do that?”

The committee also found he sexually abused another patient by rubbing his groin against her hip area while providing injections, and by “using sexually explicit and crude language when asking her personal questions about her sex life.” That patient had testified at the discipline hearing that Lee asked her questions like: “Is your husband’s c--- big?” and “Can he still put it in my p----?”

Lee appealed to the Divisional Court, where in a ruling released last month the court upheld the findings of sexual abuse, but overturned the penalty of revocation.

The court has sent the case back to the discipline committee to come up with a new punishment.

“In this case, the penalty was not carefully tailored to the circumstances of the case; was not consistent with prior decisions; and was not proportionate,” said the decision delivered by a panel of three judges, Frances Kiteley, Robert Del Frate and Helen Rady.

“The evidence did not support revocation. The committee made an error in principle by imposing revocation and in so doing, ordered an unfit penalty which must be quashed.”

One of Lee’s lawyers, Mark Veneziano, declined to comment to the Star as the case will now be going back to the committee.

At the hearing before the discipline committee, the college’s lawyer had argued for revocation of Lee’s licence, while the doctor’s lawyers argued for a six-month suspension and a requirement that Lee not be able to practise on female patients for two years unless in the presence of a chaperone.

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That hearing took place on May 2, 2017. Less than a month later, while the committee was still deliberating its decision on punishment, the provincial government’s Bill 87 came into law. The bill made changes to the law around sexual abuse by health professionals, sparked by a years-long Toronto Star investigation into doctors who were still practising despite having been found guilty by the college of sexual abuse.

Among other things, the bill removed the power of discipline committees to impose gender-based restrictions on a doctor’s licence, such as the restriction being requested by Lee’s lawyers. The college argued that the amendments were retrospective and should be applied in Lee’s case. The discipline committee sided with the college and went on to revoke Lee’s licence.

The Divisional Court disagreed with the committee that the amendments are retrospective. It also found the committee was wrong not to consider the penalties in prior cases when crafting a punishment for Lee. The doctor’s lawyers had filed several prior cases where the conduct by the physician was comparable or worse than Lee’s, but where the penalty was suspension and not revocation.

The judges pointed to a Court of Appeal ruling involving the college, which found “it is important in establishing a penalty that there be consistency with prior decisions.” In sending the case back to the discipline committee, the Divisional Court stated that revocation is not a fit penalty and cannot be on the table.

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“The committee held that revocation would send a clear message to other victims of sexual abuse by physicians that reporting such behaviour is encouraged and will be taken seriously,” the Divisional Court wrote.

“But the committee did not consider whether other penalties would accomplish the same objective.”