Toronto doctor gets no professional penalty for sex assault on 16 year old after panel finds he was struggling to express gay identity

A Toronto doctor who pleaded guilty to sexually assaulting a 16-year-old boy was “struggling to express his identity” as a gay man, said a discipline panel in deciding to impose no punishment.

A discipline panel at the College of Physicians and Surgeons of Ontario ruled in a rare split decision last month that Dr. Farooq Khan should receive no penalty and not have to pay any costs for his discipline proceedings.

In doing so, the majority of the panel rejected a joint submission from both the college’s and Khan’s lawyers that said the doctor should receive a 12-month suspension and pay $20,550 in costs.

Khan had admitted before the panel to an allegation of “having been found guilty of an offence that is relevant to his suitability to practise” — related to the fact that he pleaded guilty in court in 2015 to a criminal charge of sexual assault.

He received an absolute discharge in court, meaning he didn’t get a criminal record as a result of the guilty plea and didn’t have to serve a sentence.

The charge related to a 2009 incident in a which a then-24-year-old Khan, who was a medical resident at the time, was sleeping over at the home of a 16-year-old boy identified as AB in the discipline panel’s decision.

The two were sharing a bunk bed, and one night Khan went down to the bottom bunk and fondled AB while masturbating, believing him to be asleep, according to the panel’s decision.

In the discipline proceedings, three of the panel’s five members — two doctors and one community member — rejected the proposed punishment of a 12-month suspension submitted by both sides.

Joint submissions, whether at the college level or in court, are typically accepted. The Supreme Court of Canada has said they should only be rejected if it “would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.”

After reviewing evidence from mental health experts, the majority on the panel found that it was a single offence that happened “in the remote past,” that it was “impulsive,” that Khan was at a low risk to reoffend and that he has shown remorse for his actions.

“There is another delicate issue to consider. The assault took place when Dr. Khan was a young gay man struggling to express his identity in particularly trying circumstances,” wrote the three majority members, Drs. Deborah Hellyer and Harvey Schipper and community member Major Abdul Hafeez Khalifa.

They continued: “It is important to be clear that this is mentioned not to excuse the offence, only to contextualize it. Dr. Khan has been forthright and unwavering in that view, supported by ample expert evidence: nobody ‘gets off the hook’ for a criminal action by virtue of their colour, ethnicity or sexual orientation.

“However, the committee gives some recognition to the fact that prejudicial social pressures which, in recent years, our society has made strides in relieving, did play a role here.”

Lawyers specializing in sexual assault cases who spoke to the Star questioned whether the majority had fallen into myth and stereotype in coming to its decision to not impose a penalty.

“The heart of what they’re saying perpetuates one of the most dangerous myths and stereotypes about gay men: which is that in struggling to come to terms with their sexual identity, they are predatorial, assaultive and target young boys,” lawyer Angela Chaisson said.

“I don’t know a queer person who hasn’t struggled with their sexual identity, we all go through that period, but we don’t assault children as part of that figuring out process.” She added: “I think that all queer people would be insulted by this.”

Lawyer Gillian Hnatiw said the case comes down to the issue of consent, and that the ruling struck her as off.

“I think it plays to those antiquated stereotypes that there’s something inherently deviant or perverse about being gay and that somehow explains or excuses his conduct in a way that it wouldn’t have if it turned out he was straight,” she said.

The dissenting two members of the panel would have accepted the joint submission on Khan’s penalty.

“A 12-month suspension, even in the face of significant insight and rehabilitation, should give the public confidence that the profession will not tolerate sexual misconduct by any member of the profession,” wrote panel chair Dr. Carole Clapperton and community member Peter Pielsticker.

Khan worked as an emergency room physician for University Health Network in Toronto after receiving his certificate to practise medicine in 2014. He notified his superior of his criminal charge in 2015, who then notified the college, according to the panel’s decision.

A UHN spokesperson said Khan left in 2019. His lawyers did not return the Star’s request for comment this week.

The discipline committee is independent of the college. The regulator told the Star it is reviewing the decision and considering its options.

“This perpetuates that stereotype of ‘doctors will protect doctors,’” said lawyer Simona Jellinek, who specializes in civil sexual abuse cases and who described as “very reasonable” the joint submission on penalty that the majority rejected.

“While I applaud the fact that the college is sensitive to such matters, the fact remains that the college has a bigger duty than to that one physician who may have been struggling with his identity, and that is the protection of the public.”