Police began an investigation of a veterinarian, a member of one of Ontario’s regulated professions, who they suspected of downloading and sharing child pornography. As the investigation proceeded, a search warrant was obtained. A search of the member’s home produced evidence that he had downloaded and shared the pornography. He was arrested and charged with possession under the Criminal Code of Canada.

The charges were withdrawn by the Crown attorney by reason of the search being arranged and conducted in contravention of the member’s rights under the Canadian Charter of Rights and Freedoms (Charter). The criminal charges were now no longer an option.

The College of Veterinarians of Ontario (College) had followed the investigation. When the criminal charges were dropped, the College commenced disciplinary proceedings against the member and sought to use the Charter-excluded evidence that the police had collected. Without it, the College would have no basis to proceed with the hearing.

Do the Rules of Excluded Evidence in a Criminal Matter Carry Over to Disciplinary Proceedings?

An agreed statement of facts was supplied to the Committee in which there was an acknowledgment by the College that the police had violated the member’s right to be secure against unreasonable search and seizure. Having made that admission, the only decision left to the Committee was whether the evidence should be used in the disciplinary proceedings. A majority of the committee decided that they would exclude the evidence and the matter could not therefore proceed.

They did so by reviewing s. 24 of the Charter which provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The exclusion of the evidence by the discipline committee was based on the balancing of factors set out by the Supreme Court of Canada (SCC) in R. v. Grant (2009) as follows:

(i) The seriousness of the Charter infringing state conduct;

(ii) The impact of the breach on the Charter protected interests of the individual; and

(iii) Society’s interest in adjudicating the case on its merits.

The College appealed the committee’s decision to the Ontario Divisional Court.

Committee Erred in Analyzing the Factors Under Grant

The standard of review was reasonableness, not correctness, based on the SCC decision in Dore v. Barreau du Québec (2012).

The ONSC determined that the committee’s decision was unreasonable based primarily on the committee’s reliance on the Ontario Court of Appeal’s decision in United States of America v. Viscomi (2015).

The reliance on Viscomi was misplaced. Viscomi arose in the context of an extradition case where the sole evidence connecting Mr. Viscomi to online communications with an underage girl in the United States was ISP subscriber information. The US authorities were able to trace the communications with the child to a residential ISP in Ontario who provided Mark Viscomi as the subscriber with a specified residential address. The police confirmed the name and address through his Ontario driver’s licence. He was ordered extradited. Nothing else was relied upon in support of his extradition.

The Court of Appeal considered a simple question: “was it open to the extradition judge to draw the inference that he drew from the information relating to the IP address and Mr. Viscomi’s residential address, namely that it was Mr. Viscomi who was the user of that IP address at the relevant time?”  Justice Blair held that “it was simply too great a leap to draw the inference that he was the user of the IP address at the relevant time”

It is important not to conflate the issue related to who is using a computer with the issue as to whether evidence will be found in a location to be searched. Mr. Viscomi’s extradition turned on whether he was the user of the computer that was used to communicate with the complainant. The fact that he was the subscriber of the IP address did not necessarily put him in front of the computer at the relevant time. Even considering the relaxed standard for extradition, mirroring the test for committal, there was no evidence placing Mr. Viscomi at the computer at the time of the communication.

There need not be any information that anyone, in particular, was involved in the offences related to child pornography. Unlike Viscomi, the ITO did not have to establish such a connection. Nor did there need to be proof that the actual sending and receipt of child pornography was from the address associated with the subscriber. All that was required were reasonable grounds to believe that in that location, the police would find evidence related to the offence under investigation.

Secondly, the decision was unreasonable, given that in reviewing the third Grant factor, the Committee did not appreciate the difference between societal interest in a criminal and a disciplinary process. They relied on a decision of Kelly v. Ontario where it was stated:

Nonetheless, even where there is serious police misconduct in a criminal proceeding and the unlawfully obtained evidence is or could have been excluded under s. 24(2), it does not follow that the same evidence will or should be excluded in a civil or administrative proceeding. The strong message of the Supreme Court in the Mooring to Conway line of cases discussed earlier is two-fold: one, evidence excluded in criminal proceedings may well be admitted in administrative proceedings because of the context of the s. 24(2) inquiry in the civil or administrative context is very different; and two, given that specialized administrative tribunals, have primary jurisdiction to make s. 24(2) decisions, they should be allowed to do so.

The Court allowed the appeal and remitted the matter back to the committee for a revised analysis of the Grant factors.

At Wise Health Law, we rely on our significant experience before discipline panels of various regulatory Colleges to provide our clients with exceptional guidance and representation through this often-overwhelming process. To find out more about how our lawyers can help, contact us online, or at 416-915-4234 for a consultation.

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