Ont CA rejects Charter challenge to health regulator investigation power

30 Oct

Today, the Court of Appeal for Ontario 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 summon 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 The appellant – a doctor whose license was revoked for engaging in acts of sexual misconduct with three boys – argued that the power is wide-sweeping, prone to misuse and disproportionate in light of the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 Court dismissed this challenge.

In interpreting section 76(1) (subsequently amended), the Court held that it creates a power to inquire into all forms of professional misconduct and not merely inquire into the treatment of patients. Though this scope is associated with a greater intrusion into members’ private lives, the Court noted that the profession itself controls the scope of the conduct it regulates by articulating what “otherwise private” activity constitutes professional misconduct. It further held that section 76(1) is narrow in the sense that it only authorizes a seizure of information that is relevant to an investigation that has been duly authorized under the Code based on reasonable and probable grounds. The Court held that the registrar of a college must specify the misconduct alleged in authorizing an investigation so that an investigator’s powers are properly constrained, but also held that the Code‘s failure to require such specification did not render it unconstitutional.

The Court then endorsed the Divisional Court’s finding that the power in section 76(1) is reasonable based on the following factors:

  •  The investigation it supports is a regulatory investigation and not a criminal or quasi-criminal investigation.
  • 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.
  • 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 also dealt with an abuse of process/delay argument that I have not covered here.

Sazant v College of Physicians and Surgeons of Ontario, 2012 ONCA 727.

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