Sazant, a doctor, challenged the constitutional validity of a College investigator’s power of summons under the Health Professions Procedural Code, a schedule to the Regulated Health Professions Act 1991. A College investigator has the same powers to issue a summons (without prior judicial authorisation) as a commission under the Public Inquiries Act. Dr S’s licence to practise had been revoked by the College on account of sexual activity with young boys (one of whom was a patient). Sazant claimed that the investigator’s summons power violated ss 7 and 8 of the Charter because there was no system of prior authorisation, no requirement to establish reasonable grounds for an offence or that an investigation would afford evidence of that offence, and no limitation on the ability to seize documents that were not relevant. It was argued that in the context of medical practice, something very close to the standard applicable in a criminal case ought to apply.
The Divisional Court upheld the summons power, which in its view is not unbridled; it is restricted to relevant, non-privileged information and a witness must be informed of the right to object to questions. In the end, it is no different from the power of a civil litigant to issue a summons under the rules of civil procedure. The court was also mindful of the importance of self-regulated professions in protecting the public. An investigator’s power should not be restricted to a narrow range of activities (diagnosis, treatment, prevention of illness) but properly encompasses broader aspects of a doctor’s practice. The fact that two of the boys were not patients did not take them out of the scope of the inquiry into professional misconduct.
The Ontario Court of Appeal has dismissed Sazant’s appeal, holding that the Code’s investigative powers do not violate s 8 of the Charter and that the protracted nature of the investigation and prosecution of the doctor did not constitute an abuse of process: Sazant v College of Physicians and Surgeons of Ontario, 2012 ONCA 727. Simmons JA held that the Code’s investigative reach is not confined to matters related to a doctor’s medical practice but is clearly intended to permit the investigation of acts of professional misconduct. The summons power under the Code is reasonable and properly constrained by a requirement to use it solely to obtain non-privileged information that is relevant to a duly authorised investigation into specified misconduct. As a result, it is not overbroad. Sazant’s reasonable expectation of privacy in the information sought by the College was limited in the context of an authorised investigation, on reasonable and probable grounds, into alleged professional misconduct – and Sazant was under a professional duty to co-operate with that investigation. In light of this, and the context of a self-governing professional regulatory scheme, the summons power does not in and of itself violate the Charter (although it could conceivably be exercised in a way that does). On the second point, the fact that the investigation and prosecution were protracted did not necessarily mean that there had been abuse of process, and Sazant had failed to show that he had suffered such prejudice by virtue of the College’s proceedings as to bring the administration of justice into disrepute.
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