Kenneth Cresswell – October 2009

Decision and Reasons for Decision:

A hearing before a panel of the Discipline Committee was held on September 24, 2009 at the College of Optometrists of Ontario council chambers to hear allegations of professional misconduct against Dr. Kenneth Cresswell. The hearing commenced at 10:00 a.m. after waiting for 30 minutes for Dr. Cresswell or his representative to make an appearance either in person or via teleconference. It was explained to the panel by counsel for the College that this was appropriate and within the Rules of Procedure. Independent Legal Counsel (ILC) for the panel concurred. It was explained that Sections 6 and 7 of the Statutory Powers Procedure Act allow the panel to proceed in Dr. Cresswell’s absence. It was also noted that the Notice of Hearing indicated “And further take notice that if you do not attend at the Hearing at the above date, or on any subsequent date fixed by the Discipline Committee, the panel of the Discipline Committee may proceed in your absence and you will not be entitled to any further notice.” The panel noted that Dr. Cresswell had not attended the pre-hearing conference and was convinced that Dr. Cresswell was given adequate notice of hearing. The panel decided that it was appropriate to proceed in Dr. Cresswell’s absence.

Motion to Ban Publication:

A motion was put forward by College prosecution to have a publication ban made on the proceedings. It was explained that much of the material to be presented to the panel was of a sensitive nature as it involved the identity of minors that were involved in alleged sexual impropriety by Dr. Cresswell. ILC advised the panel that this was appropriate and supported in law. The panel therefore made an order to ban publication of the names of the victims under section 45(3) of the Health Professions Procedural Code.

College’s Case:

Prosecution filed with the panel the Document Book as exhibit #1 which consisted of:

1. The Notice of Hearing dated March 26, 2009
2. Certified copy of Reasons for Judgment of Mr. Justice R. MacKinnon dated December 14, 2006
3. Certified copy of the Decision of the Ontario Court of Appeal dated January 30, 2009

Mr. Stephenson indicated that there were 5 allegations in the Notice of Hearing and that the College was only proceeding on allegations 1 and 2 as follows:

1. You committed an act of professional misconduct as provided by s. 51(1)(a) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 in that on or about December 14, 2006 you were found guilty of an offence that is relevant to your suitability to practise optometry.
2. You committed an act of professional misconduct as provided by s. 51(1)(c) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18, and as set out by s. 1(1), paragraph 49 of O. Reg. 859/93 of the Optometry Act 1991, S.O. 1991, c. 35, in that on or about December 14, 2006 you were convicted of an offence that affects your fitness to practise optometry.

The chair indicated that the panel would be proceeding as if Dr. Cresswell was pleading not guilty to the allegations.

To support the two allegations that the College was prosecuting, College prosecution referred to the Reasons for Judgment made by Mr. Justice MacKinnon of the Superior Court of Justice dated December 14, 2006 in Barrie, Ontario. The charges involved 5 counts of indecent assault and 1 count of sexual intercourse under 14. These included unwanted male homosexual genital fondling and masturbation by the accused together with his unwanted acts of fellatio and anal penetration on the then young boys whom were as young as 11 to when one was 21. These acts were unwanted and nonconsensual and occurred repeatedly over an extended period of time, as described in the Reasons for Judgment made by Mr. Justice MacKinnon. The accused was at all times about 20 years or more older than the boys. Dr. Cresswell was in a position of trust with the boys. Mr. Justice MacKinnon found Dr. Cresswell guilty on all 6 counts and entered convictions against Dr. Cresswell on all 6 counts.

As further support to the allegations, College prosecution also referred to the Court of Appeal Decision dated January 30, 2009. This document sets out the grounds for appeal and the reasons the Court dismissed the appeal. Dr. Cresswell at that point began his 9.5-year prison term.

The panel recessed after receiving legal advice from ILC.

Decision:

The panel was charged with deciding whether to make a finding of professional misconduct based solely on the evidence placed before it. The onus is on the College to prove its case. The evidence must be clear, convincing and cogent and the standard of proof is on the balance of probabilities (more likely than not that the event occurred).

As regards to allegation 1, the panel had to decide if the offences Dr. Cresswell was found guilty of were relevant to his suitability to practise optometry. We decided that the offences, especially in regards to minors, constituted dishonest and abusive behaviour, relevant to Dr. Cresswell’s suitability to practise. We therefore found Dr. Cresswell had committed professional misconduct on allegation 1.

As regards to allegation 2, the panel had to decide if the offences Dr. Cresswell was convicted of affected his fitness to practise optometry. The panel decided that Dr. Cresswell’s lack of judgment in issues of propriety affected his fitness to practise optometry. The public must be assured that their health professionals have an acceptable level of judgment and self control andthe actions of Dr. Cresswell clearly show he lacks these qualities. We therefore found that Dr. Cresswell had committed professional misconduct on allegation 2.

The panel dismissed allegations 3, 4, and 5 as listed in the Notice of Hearing as there was no evidence produced to support these allegations.

The hearing was reconvened and these decisions were announced.

College Submission on Penalty:

College prosecution proceeded with their submission on penalty. It was explained that the penalty should have both elements of specific deterrence and general deterrence. That is to say that the penalty should deter Dr. Cresswell from committing further acts of professional misconduct (specific deterrent) and the penalty should send a message to the profession that this type of behavior will not be tolerated (general deterrent). The College suggested a penalty which consisted of a 6 month suspension of his certificate of registration, a condition being placed on his certificate of registration that he must not provide services to patients under the age of 18, and a cost award to the College in the amount of $2500.00. The College believed that these various penalty elements provided adequate specific and general deterrence. The panel retired to consider its options after receiving legal advice from ILC.

Decision on Penalty:

The panel decided that the College had not suggested a strong enough penalty given the severity of the misconduct Dr. Cresswell had committed and in keeping with the wording of the applicable misconduct allegations. The wording stated that he was found guilty of an offence that is “relevant to your suitability to practise optometry” and was convicted of an offence that “affects your fitness to practise optometry”.

The panel had a number of penalty options open to it as provided for by legislation. These include a fine of up to $35,000.00; a reprimand; imposing terms, conditions, and limitations on the certificate of registration; a suspension of the certificate of registration; or a revocation of the certificate of registration.

The Panel Decided to:

1. Direct the Registrar to revoke Dr. Cresswell’s certificate of registration.

2. Order a cost amount of $5000.00 to the College.

Reasons for Penalty Decision:

The panel decided that due to the nature of Dr. Cresswell’s actions, he was neither suitable nor fit to practise optometry. This reflects back on the panel’s reasons for determining that professional misconduct did in fact occur. If he is neither suitable nor fit to practise optometry, then it flows to the conclusion that Dr. Cresswell should not have a certificate of registration.

This does not mean that he cannot apply to have his certificate of registration re-instated at some point in time after the mandatory one year revocation. He must apply to have his certificate of registration re-instated through another hearing where he would be assessed to ensure he is suitable and fit to practise again.

Dr. Cresswell was found guilty and convicted by Mr. Justice MacKinnon of five counts of indecent assault and one count of sexual assault. This was upheld in the Court of Appeal. These crimes were a series of sexual crimes against adolescents, committed by a health professional to the detriment of the health and welfare of children. It was proven in court that Dr. Cresswell had engaged in these criminal activities over a 10 year period with no gap against 5 different minor individuals. According to the submitted court documents, Dr. Cresswell offended and reoffended over a long period of time with 5 boys (starting at age 11-14) and these offences included forced anal intercourse, masturbation and fellatio and were regular and persistent in relation to 2 of the boys.

It was emphasized in court that Dr. Cresswell was in a position to have gained the trust of his victims and their parents (in some cases as a “Big Brother”) and had betrayed that trust by deliberately grooming and creating surprise sexual opportunities to molest them. Dr. Cresswell deliberately planned and executed these crimes and abused his position of influence and trust. One of his victims was in fact in an employee/contractor relationship (painting the office).

The panel determined that the College’s submission on an age restricted condition on his certificate of registration did not protect the general public enough from a person with such lack of judgment, abuse of influence, and deceit. It was also noted that one of the victims was abused until he was 21.

Dr. Cresswell’s lack of suitability to practise optometry relates to the public trust and confidence in the profession and its members. It was determined by the panel that it is neither in the public’s nor the profession’s interest to accommodate individuals with such lack of judgment, abuse of influence, and with this type of criminal activity. Dr. Cresswell’s consistent assertions that the various sexual encounters were fabrications even though there was clear evidence to the contrary reveal a lack of judgment and level of deceit which also affects his suitability and fitness to practise. This also reveals a lack of remorse. The Courts determined that the offences were serious enough to incarcerate Dr. Cresswell for 9.5 years. The seriousness of the crimes warranted a relatively serious penalty from a professional standpoint as well.

The panel also decided that the higher amount ordered for costs was more in keeping with the actual costs of running this discipline hearing.