The Saskatchewan Court of Appeals
This appeal raises the challenging question of the extent to which a professional regulatory body can discipline a member of its profession for off-duty conduct. The demarcation between conduct that is private and beyond the scope of the regulatory discipline and that which is unprofessional is often difficult to determine.
The College of Physicians and Surgeons of Saskatchewan [College] charged Jesse Leontowicz, M.D., with one count of professional misconduct arising from an off-duty sexual encounter he had with a woman who was not his patient. The Discipline Hearing Committee [Committee] accepted the complainant’s evidence and found Dr. Leontowicz guilty of unbecoming, improper, unprofessional or discreditable conduct within the meaning of s. 46(o) of The Medical Profession Act, 1981, SS 1980-81, c M-10.1 [MPA]: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (11 June 2020) Saskatoon, CPSS [Committee Decision]. By way of penalty, the Council of the College [Council] suspended Dr. Leontowicz’s licence indefinitely and issued a reprimand: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (25 September 2020) Saskatoon, Council of the CPSS (Sask) [Penalty Decision]. The Council later imposed a full indemnity costs award against him totalling $96,577.10: Leontowicz v College of Physicians and Surgeons of Saskatchewan (20 November 2020), Saskatoon, Council of the CPSS (Sask) [Costs Decision].
Facts
At the time of the events in question, Dr. Leontowicz was in the fourth year of his medical studies with the College of Medicine at the University of Saskatchewan. He and the complainant, J.T., had connected online through a well-known dating application. They met at a local restaurant, had supper and a few drinks, and generally appeared to get along.
Dr. Leontowicz and J.T. ended up at his apartment and proceeded to his bedroom a short while later. J.T. agreed to have sexual intercourse with Dr. Leontowicz, but asked him to wear a condom. He obliged. During the intercourse that followed, Dr. Leontowicz inquired if she liked rough sex. J.T. said she did. He then slapped her lightly and manhandled her limbs. After the intercourse ended, Dr. Leontowicz went to the bathroom and removed his condom.
The parties differed on what followed next. According to J.T., Dr. Leontowicz pinned her down by the sternum and penetrated her vaginally without wearing a condom. She also testified that he struck her repeatedly on the face (roughly 50 times) and that she was “beaten … to the point of seeing stars”. She said he then put his penis in her mouth, masturbated and ejaculated on her face.
J.T. agreed that she had consented to having vaginal sex with Dr. Leontowicz with a condom and some amount of rough sex (which she interpreted as manhandling, hard thrusting, gentle slapping, spanking and hair pulling), but maintained that she did not consent to sex without a condom or to the infliction of pain and bruises.
In key respects, Dr. Leontowicz’s testimony differed from J.T.’s. He recounted four separate, sequential episodes of consensual sex, with each occasion lasting about 20 minutes. He claimed to have worn a condom on the first three times they engaged in sexual intercourse but not the last because J.T. had initiated things by getting on top of him. Dr. Leontowicz described that episode as being spontaneous and consensual. Like J.T.’s evidence, he said their interaction ended with oral sex and him ejaculating into her mouth. Dr. Leontowicz was adamant that J.T. had consented to all of the sexual activities they had engaged in throughout the evening.
Their testimony also differed on the extent and severity of the physical contact Dr. Leontowicz had inflicted on J.T. During their first sexual encounter, Dr. Leontowicz said J.T. agreed to having what he called rough sex and that, after a few slaps, he inquired if she was okay with it. He claimed to have repeatedly checked in with J.T. about the rough sex throughout the time they had sexual intercourse and said that J.T. willingly agreed to it and even reciprocated by choking him with both hands. In total, Dr. Leontowicz said he slapped J.T. five to seven times, spit on her, and ejaculated on her face and called her a “dirty slut”. He steadfastly maintained that all of his actions were consensual.
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