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Administrative Law – Investigative Powers –
College of Physicians and Surgeons
In this case the Divisional Court upheld the constitutionality
of search and seizure provisions embedded within more than 60
provincial statutes. The court also confirmed the jurisdiction of
the Discipline Committee of the College of Physicians and Surgeons
(the "College") to adjudicate the constitutionality of
its own provisions.
The Appellant Sazant, a longstanding Member of the College,
appealed a number of decisions of the Discipline Committee,
including the decision to revoke his licence. Before the Discipline
Committee and on appeal, Sazant challenged the constitutionality of
section 76 of the Health Professions Procedural Code
("Code"), Schedule 2 to the Regulated Health
Professions Act, 1991, S.O. 1991, c.18. This provision
provides a College investigator with the powers of a commission of
inquiry under the Public Inquiries Act, R.S.O. 1990, c.
P.41.
Sazant argued that the impugned provision violated his rights
under section 8 of the Canadian Charter of Rights and
Freedoms ("Charter") which contains the
right to be secure against unreasonable search and seizure. He
submitted that the provision infringed section 8 of the
Charter in three ways: (1) it empowered investigators to
issue their own summons to compel the production of any document or
witness without prior judicial authorization; (2) it gave
investigators the exclusive ability to determine issues of
relevance, privacy and privilege; and (3) the summonsing power is
unconstrained, entitling the investigator to compel both witnesses
who are not regulated by the College and documents that contain
highly personal information.
In upholding the constitutionality of the impugned provision,
the court distinguished the regulatory scheme of the College from
the rules that govern criminal trials. The court also stressed the
value to various self-regulated professions of this investigatory
power. Importantly, the court diminished concerns regarding a lack
of pre-authorization by describing the summons powers as a less
intrusive form of investigation than traditional searches. The
court ultimately concluded that safeguards embedded in the Code
removed any concerns regarding the constitutionality of the
section. Such safeguards include requiring investigators to
demonstrate reasonable and probable grounds to believe that the
member has committed an act of professional misconduct before being
appointed, and the limiting of the summons to relevant evidence
that is not subject to privilege.
Sazant also pleaded before the Divisional Court that the
Disciplinary Committee erred in ruling that it had jurisdiction to
adjudicate the constitutional question. Sazant had sought before
the Disciplinary Committee a declaration of unconstitutionality
pursuant to section 52(1) of the Constitution Act, 1982,
even though the Disciplinary Committee did not have jurisdiction to
strike down the legislation. The Divisional Court acknowledged that
the Disciplinary Committee does not have jurisdiction to strike
down the impugned provision, but concluded that the Disciplinary
Committee had properly decided the constitutional question. It
concluded that the Disciplinary Committee is able to avail itself
of the broad powers enshrined in section 24(1) of the
Charter to craft an appropriate remedy to cure the alleged
Charter violation.
The court rejected several other grounds of appeal and
ultimately upheld the findings of the Disciplinary Committee, as
well as the penalty and order of costs.
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