On January 17th, the Divisional Court held that the power to issue a summons without judicial authorization that is granted to investigators appointed under the Health Professions Procedural Code complies with section 8 of the Canadian Charter of Rights and Freedoms.
Section 76(1) of the Code gives investigators appointed by a college of a regulated health profession the power to summons a person to give evidence on oath or produce evidence relevant to the subject matter of an investigation. The appellant – a doctor whose license was revoked for engaging in acts of sexual misconduct with three boys – argued that the power is wide-sweeping, prone to misuse and disproportionate in light of the legislative purpose underlying the Regulated Health Professions Act and its Code. The appellant also argued that the power interferes with the public interest in keeping the contents of a Crown brief private.
The Court dismissed this challenge. It held that the power was reasonable based on the following factors:
- The investigation is a regulatory investigation and not a criminal or quasi-criminal investigation. The Court said, “the fact that the same act may also give rise to a criminal consequence does not mean that when the act is dealt with in the regulatory context, the ‘context’ of the regulatory proceedings is criminal or quasi-criminal.”
- A power of summons is less intrusive than a power to enter and search a premises because it can be challenged prior to being answered. This ability to challenge is enjoyed by the Crown when it is asked to produce a copy of all or part of a Crown brief.
- Appointment by a college based on a belief in misconduct on reasonable and probable grounds is a precondition to exercising the summons power.
- There is a strong public interest in regulating health professionals. The Court rejected an argument that the power to investigate need not extend to doctors’ personal (as opposed to professional) activities. It held that acceptance of this argument would lead to impractical and absurd results.
The Court also dealt with a number of grounds of appeal related to the disciplinary committee’s handling of the appellant’s case that I have not covered here.