



WARNING

The President of
    the panel hearing this appeal directs that the following should be attached to
    the file:

Publication Ban Notification

The Discipline
    Committee of the College of Physicians and Surgeons of Ontario has made an
    order in this case banning the publication of the name of the complainants or
    information by which they may be identified pursuant to s. 45(3) of the
Health
    Professions Procedural Code
.

The order
    restricting publication in this proceeding shall continue.




COURT OF APPEAL FOR ONTARIO

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

DATE: 20121030

DOCKET: C53838, C53840 & C53846

Simmons, Armstrong and Pepall JJ.A.

BETWEEN

Dr. Marvin Sazant

Appellant

and

The College of Physicians and Surgeons of Ontario

Respondent

Marie Henein and Matthew Gourlay, for the appellant

Scott C. Hutchison and Vicki A. White, for the
    respondent

Matthew P. Sammon, for the intervener Dr. Leonard Kelly

J. Thomas Curry and Jaan E. Lilles, for the intervener
    Dr. Allan Beitel

Robin K. Basu, for the intervener Attorney General of
    Ontario

Heard: May 1-2, 2012

On appeal from the order of the Divisional Court
    (Justices John R.R. Jennings, Katherine E. Swinton and Harriet E. Sachs), dated
    January 17, 2011, with reasons reported at 2011 ONSC 323, (2011), 21 Admin.
    L.R. (Ont. Div. Ct.), affirming the decision of the Discipline Committee of the
    College of Physicians and Surgeons of Ontario, dated February 20, 2009, with
    reasons reported at [2009] O.C.P.S.D. No. 5.

Simmons J.A.:

A.

Introduction

[1]

The issues on this appeal concern the constitutionality of the summons
    power contained in s. 76(1) of the
Health Professions Procedural Code
when used by investigators appointed under s. 75(1)(a) of the Code and whether
    delay by the College of Physicians and Surgeons of Ontario in investigating and
    prosecuting allegations of professional misconduct against the appellant
    amounts to an abuse of process.

[2]

The appellant, Dr. Marvin Sazant, practised family and sports medicine
    in Toronto for 47 years.

[3]

In 2009, following a lengthy hearing before the Colleges Discipline
    Committee, the appellants licence to practise medicine was revoked.

[4]

The Discipline Committee found that between 1970 and 1991 the appellant
    engaged in disgraceful, dishonourable or unprofessional conduct of a sexual
    nature with three young boys ranging in age from 8 to 14, one of whom was a
    patient. The Discipline Committee dismissed allegations involving a fourth
    complainant as not proven.

[5]

One
    of the boys complained to the police in 1991. No charges were laid by police
    until 1998, when a second complainant the former patient of the appellant 
    came forward. The police laid additional charges in 1999 when the third
  complainant came forward.

[6]

Consistent with
    its practice
, rather than conducting its own investigation of the
    allegations as they came to light, the College monitored the progress of the
    criminal proceedings. It was only after the charges involving the
second complainant, the
    appellants former patient
, were stayed in 2004 that the College
    changed the status of the appellant's file from monitoring to that of an
    investigation.

[7]

After the status of the appellant's file was changed, the College
    appointed investigators to investigate whether the appellant had committed an
    act of professional misconduct or was incompetent. The investigators were
    appointed under s. 75(1)(a) of the
Health Professions Procedural Code
,
    being Schedule 2 to the
Regulated Health Professions Act
,
1991
,
    S.O. 1991, c. 18.

[8]

Under s. 76(1) of the
Code
, a College investigator has the same
    investigatory powers as a commission under the
Public Inquiries Act
,
2009
,
    S.O. 2009, c. 33, Sched. 6. Such powers include the power to issue, without
    prior judicial authorization, a summons to any person, requiring that person to
    give or produce relevant evidence to the investigator.

[9]

During the course of the Colleges investigation of the appellant, one
    of its investigators issued summonses to the Toronto Police Service and to the
    Attorney General of Ontario to obtain material from police files and Crown
    briefs relating to the criminal charges that were laid against the appellant.
    Although the material obtained under the summonses was not adduced in evidence
    before the Discipline Committee, it is undisputed that the College relied upon
    such material in initiating proceedings before the Discipline Committee.

[10]

At the
    Discipline Committee hearing, the appellant challenged the constitutional
    validity of the summons power contained in s. 76(1) of the
Code
, and
    therefore the propriety of the proceedings commenced in reliance on the
    summonsed materials. The
    appellant also requested a stay of proceedings on the basis of
    abuse of process arising from inordinate delay. The Discipline Committee
    dismissed both requests.

[11]

The
    appellant appealed to the Divisional Court on several grounds. On January 17,
    2011, the Divisional Court dismissed the appellant's appeal from the Discipline
    Committees various rulings and disposition.

[12]

Although
    the appellant raised many grounds on his leave application to this court, leave
    was granted in respect of two issues only:

i)

Does s. 76(1) of the
Code
, which grants College investigators
    power to issue summonses without prior judicial authorization, violate s. 8 of
    the
Canadian Charter of Rights and Freedoms
? and

ii)

Did the discipline proceedings constitute an abuse of process due to the
    length of time it took the College to investigate and prosecute the allegations
    against the appellant?

[13]

As was the
    case in the Divisional Court, in this court the appellant is joined in his
    challenge to the constitutionality of s. 76(1) of the
Code
by Dr.
    Leonard Kelly and Dr. Allan Beitel (the Intervener Doctors).

[14]

Discipline
    proceedings are outstanding against the Intervener Doctors at the College, but
    have not yet proceeded pending the outcome of this constitutional challenge.

[15]

In
    addition to supporting the appellants constitutional argument, the Intervener
    Doctors also raise an alternative argument that, in accordance with the
    language of s. 76(1) of the
Code
, the summons power provided by that
    section should be limited to matters relating to the practice of the member
    to be investigated  that is, the diagnosis, treatment and prevention of
    disease.

[16]

The
    Attorney General for Ontario intervenes in support of the Colleges position
    that s. 76(1) is constitutional.

[17]

For the
    reasons that follow, I would dismiss the appeal.

B.

Background

(1)

The Allegations against the Appellant, the Complaints to the Police and
    the Progress of the Criminal Charges

(a)

Complainant
    J.H.

[18]

As I have
    said, the appellant was initially investigated by the Toronto Police Service in
    December 1991 when 12-year-old J.H. gave a statement to the police alleging one
    incident of sexual touching.

[19]

The police
    subsequently executed a search warrant at the appellants home and advised the
    College about their investigation. At the time, police officers expressed
    concerns about J.H.'s credibility. Nonetheless, in January 1992, the appellant
    entered into an undertaking with the Crown agreeing to: (i) forfeit his
    firearms; (ii) participate in two years of psychiatric counselling; and (iii)
    refrain from having contact with persons under the age of 16 except for the
    purpose of his medical practice. In exchange, it was agreed that the police
    would take no further action with respect to the complaint.

[20]

Despite
    this agreement, criminal charges were subsequently laid against the appellant
    in respect of J.H. in November 1998, after police received another complaint
    about sexual misconduct by the appellant, this time from a former patient.
    However, the charges relating to J.H. were stayed in 2000 because of the 1992
    undertaking the appellant gave to the Crown.

[21]

In his
    testimony before the Discipline Committee, J.H. alleged that, on one occasion
    in 1991, the appellant deliberately touched his penis for 10 to 20 seconds.
    J.H. also described incidents in which he and another boy tied the appellant to
    a bed with ropes and drank alcoholic coolers, and another incident in which the
    appellant tied him (J.H.) to the bed, tickled his sides and legs, and hit him
    lightly with a belt. In its decision on the merits, the Discipline Committee
    determined that items seized during the police's 1991 search of the appellant's
    home, including bondage magazines, pre-cut lengths of rope and an empty box of
    coolers in the appellant's bedroom refrigerator, were consistent with J.H.'s
    version of events.

(b)

Complainant
    G.M.

[22]

In January
    and July 1998, 34-year-old G.M. provided statements to police alleging that he
    had been subjected to multiple incidents of sexual abuse by the appellant
    between 1972 and 1978, both as a patient of the appellant in his office and as
    a visitor to the appellants home.

[23]

As
    mentioned, in November 1998, criminal charges were laid against the appellant
    with respect to the complaints made by G.M. and J.H.

[24]

In April
    2004, the Crown stayed the criminal charges involving G.M. while it awaited the
    outcome of an appeal to the Supreme Court of Canada in relation to charges
    involving a third complainant.
[1]

[25]

Before the
    Discipline Committee, G.M. testified that he began seeing the appellant as a
    physician with his parents when he was between six and eight years old. The
    appellant was friendly with his parents and often came to their home for lunch
    on Sundays. Over time, the appellant began having G.M. to his home.

[26]

G.M.
    alleged that on one occasion the appellant fondled his testicles when he
    attended the appellants office. He also claimed that the appellant abused him
    at the appellants home following outings the two would take together. In
    particular, he claimed that on multiple occasions over a number of years, the
    appellant undressed him, tied him to the bed, masturbated over him and fondled
    his genitals.

(c)

Complainant
    B.M.

[27]

After
    hearing media reports about the appellants arrest in relation to J.H. and
    G.M., in November 1998, B.M. complained to police about two incidents that
    occurred in 1981 or 1982. Criminal charges were laid with respect to B.M.'s
    complaint in March 1999.

[28]

Following
    a preliminary inquiry, the appellant was discharged in relation to B.M.'s
    allegations. However, in late 2004, the Supreme Court of Canada allowed a Crown
    appeal from the discharge and the charges were remitted to the preliminary
    inquiry judge. In 2005, the appellant was committed for trial. In April 2006,
    the charges involving B.M. were stayed for unreasonable delay.

[29]

Before the
    Discipline Committee, B.M. testified that he first met the appellant when the
    appellant coached his YMCA basketball team. The appellant befriended B.M. and
    talked to him about various problems the boy was having. The appellant sometimes
    took B.M. to lunch and eventually began having B.M. over to his house. On two
    occasions, the appellant kissed B.M., tied him to a bed and forced B.M. to
    perform oral sex on him.

(2)

The Colleges Investigation of the Appellant

[30]

Both of
    the issues raised on appeal concern the process by which the College
    investigated the allegations against the appellant. For this reason, a detailed
    review of that process is required.

(a)

1991-1998,
    1998-2004: Monitoring and Undertakings

[31]

As I have
    said, the College first learned about allegations involving the appellant in
    December 1991 when the police notified the College about J.H.'s complaint. The
    College opened a file in respect of the J.H. allegations in January 1992, but
    it was noted in the file that the police had determined not to proceed with
    charges due to a lack of evidence and because the appellant had agreed to get
    psychiatric treatment. Intermittent contacts with the police revealed no
    further complaints. The College officially closed its file concerning the J.H.
    allegations in early 1998.

[32]

However,
    in November 1998, the College was advised that the appellant had been arrested
    and charged in relation to the complaints by both G.M. and J.H. The College
    learned about the additional charges involving B.M. in March 1999.

[33]

In April
    1999, a College investigator asked the investigating police officer to contact
    the complainants and see if they would consent to the police sharing their
    statements with the College. The investigating officer said he would do so but
    there is no indication in the record that he did. In any event, the College did
    not receive copies of the complainants statements to the police in response to
    this request.

[34]

At the
    Colleges request, in June 1999, the appellant voluntarily signed an
    undertaking not to see patients under the age of 16 without another adult
    present. Six months later, the appellant signed a further undertaking not to
    see patients under the age of 16 except in the presence of an adult acceptable
    to the College who was aware of the pending charges and who agreed to report
    any untoward conduct to the Registrar of the College.

[35]

As already
    noted, rather than conducting its own investigation of the allegations as they
    came to light, the College monitored the progress of the criminal proceedings.
    This was in keeping with the Colleges practice of not pursuing discipline
    proceedings against members while criminal charges covering the same
    allegations are outstanding.

(b)

2004:
    From monitoring to an investigation

[36]

In 2004,
    after the charges in respect of G.M. were stayed, the College changed the
    status of the appellants file from monitoring to an investigation.

[37]

In
    September 2004, Tom McNamara, an employee of the Colleges Investigations and
    Resolutions Department, wrote to the Toronto Police Service and requested
    copies of five itemized occurrence reports concerning Dr. Sazant. He explained
    that the request was made pursuant to a memorandum of understanding between the
    Toronto Police Service and the College respecting disclosure and exchange of
    information. He later forwarded a signed consent from G.M. allowing the police
    to release a copy of G.M.s statements to the College.

(c)

March
    2005: The College appoints an investigator under s. 75(1)(a) of the
Code

[38]

When the
    police failed to provide the requested information, Mr. McNamara prepared a
    memorandum to the Registrar of the College with supporting material seeking an
    appointment of investigators under s. 75(1)(a) of the
Code
to
    investigate whether the appellant had committed an act of professional misconduct.
    The supporting material included the transcript of the preliminary inquiry into
    charges against the appellant relating to G.M., a summary of an interview
    between Mr. McNamara and G.M. conducted in November 2004, and an occurrence
    report from the Toronto Police Service documenting its investigation into
    allegations regarding the appellant and J.H. in 1991.

[39]

After
    reviewing the material provided, the Registrar confirmed that he had reasonable
    grounds to believe that the appellant had committed an act of professional
    misconduct. Ultimately, as was required under s. 75(1)(a), the Executive
    Committee of the College approved the appointment of investigators and in March
    2005, Mr. McNamara and others were formally appointed as investigators under s.
    75(1)(a) of the
Code
.

(d)

April-June
    2005: The summonses are issued

[40]

Following
    his appointment as an investigator, Mr. McNamara issued a summons to the
    Toronto Police Service under s. 76(1) of the
Code
requesting that the
    following items be produced: five itemized occurrence reports concerning Dr.
    Sazant; the undertaking that led to the withdrawal of the charges relating to
    J.H.; all police interviews with G.M.; and a copy of any letters and writings
    exchanged between G.M. and the appellant.

[41]

Mr.
    McNamara was advised by a representative of the Toronto Police Service that he
    should seek some of the requested material from the Attorney Generals office
    because criminal charges had been laid. Accordingly, Mr. McNamara issued an
    amended summons to the Toronto Police Service and an additional summons to the
    Attorney General. In both summonses, he requested a complete copy of the Crown
    brief, the appellant's criminal record and a list of any informations or
    charges reflected on the criminal record.

[42]

In a
    subsequent conversation with counsel at the Crown Law Office, Mr. McNamara
    clarified that, at that time, he was only interested in material relating to
    G.M.  in particular, he sought three police interviews of G.M. and a letter
    written by the appellant to G.M. before G.M. contacted the police.

[43]

The
    package of material Mr. McNamara received several weeks later from the Crown
    Law Office included information relating not only to G.M., but also to J.H.,
    B.M. and a fourth complainant. Rather than contacting the Crown Law Office, Mr.
    McNamara simply retained all of the material.

(e)

November
    2004-January 2006: The Investigators Contact with the Complainants

[44]

After
    speaking to a police detective who agreed to get in touch with G.M., Mr.
    McNamara spoke to G.M. by telephone in October 2004. In November 2004, Mr.
    McNamara met with G.M. in Nova Scotia. G.M. provided a written complaint about
    the appellant.

[45]

In July
    2005, Mr. McNamara sent a letter to the appellant, formally advising him of the
    investigation into G.M.'s allegations and asking for his patient records. He
    also invited the appellant to provide any comments he wished to make to the
    College.

[46]

In October
    2005, Mr. McNamara interviewed J.H. Shortly after, J.H. formally complained to
    the College. Mr. McNamara notified the appellant of J.H.'s complaint and
    invited any response.

[47]

In January
    2006, Mr. McNamara spoke with B.M., who advised that he would be willing to be
    a witness regarding the appellant. However, B.M. did not provide a formal
    complaint.

(f)

March
    2006: The Notice of Hearing is Issued

[48]

On March
    21, 2006, a notice of hearing was issued to the appellant alleging that he was
    guilty of professional misconduct:

·

by conduct or an act relevant to the practice of medicine that,
    having regard to all the circumstances, would reasonably be regarded by members
    as disgraceful, dishonourable or unprofessional; and

·

by engaging in sexual impropriety with patients.

[49]

Around the
    time the notice of hearing was issued, the College imposed conditions on the
    appellant preventing him from seeing any patient under 16 years of age. This
    condition was published in the Colleges public register.

(3)

The Discipline Committee Proceedings

[50]

In April
    2007, just before the scheduled start of the appellant's discipline hearing,
    the appellant moved for a stay on the ground that the delay in proceeding was
    an abuse of process. The motion was dismissed and the hearing began at the end
    of June 2007.

[51]

Two days
    into the hearing proper, the appellant brought a further motion to stay the
    proceedings, this time raising constitutional issues, including his claim that
    the summons power in s. 76(1) of the
Code
violates the
Charter
.
    The Discipline Committee heard this motion in the spring of 2008 after the
    evidence on the merits of the discipline charges had been led. The Discipline
    Committee released its decision dismissing the constitutional challenge on
    February 20, 2009, concurrent with the release of its decision on the merits.

(4)

The Discipline Committees Findings on the Merits

[52]

The
    Discipline Committee was unable to determine whether the events G.M. described
    as taking place in the appellant's office actually occurred. Apart from that
    evidence, the Discipline Committee accepted the evidence of J.H., G.M. and B.M.
    concerning sexual misconduct by the appellant and rejected the appellant's
    evidence as not believable.

[53]

In making
    its findings, the Discipline Committee dealt with the allegations of each
    complainant separately. After doing so, the Discipline Committee went on to
    find that the evidence concerning the use of ropes and the appellant's pattern
    of forming and nurturing relationships with the complainants met the test for
    admission as similar fact evidence.

C.

The Facts Relating to Drs. Kelly and Beitel

(1)

Dr. Leonard Kelly

[54]

Dr. Kelly
    is a family doctor. In May 2005, the College issued a notice of hearing
    alleging that between 1999 and 2002, Dr. Kelly was in possession of electronic
    images of child pornography. As I explained earlier, Dr. Kellys case has not
    yet gone to the Discipline Committee.

[55]

The
    misconduct allegations against Dr. Kelly arose from a criminal charge that was
    eventually withdrawn because of concerns about the validity of a search
    warrant.

[56]

In 2001,
    police obtained a warrant to search Dr. Kelly's credit card statements based on
    information gathered as part of an international child pornography
    investigation. It was later revealed that much of that information was
    incorrect. However, even after this came to light, the police continued to rely
    on the discredited information to obtain further search warrants.

[57]

One of
    those warrants was used to search Dr. Kellys home and to seize the hard drive
    of his personal computer. Dr. Kelly was subsequently charged with one count of
    possession of child pornography. In September 2004, the charge was withdrawn
    because the Crown concluded that the search warrant may have been invalid.

[58]

The police
    returned the computer hard drive to Dr. Kelly but kept a mirror copy as well as
    other information that may have been illegally obtained.

[59]

The
    College opened a file on Dr. Kelly in 2001 and monitored the status of the
    criminal charge. After the charge was withdrawn in 2004, Mr. McNamara requested
    access to the information held by the police. The police advised him that the
    requested material had likely been seized unlawfully. They later agreed to
    provide him with the material if they were presented with a summons under s.
    76(1) of the
Code
.

[60]

After
    being appointed as an investigator under s. 75(1)(a), Mr. McNamara issued a
    summons to the police and received credit card statements and a description of
    the material on Dr. Kellys hard drive. The College issued a notice of hearing
    into allegations of professional misconduct in May 2005.

[61]

Dr. Kelly
    brought an application in the Superior Court of Justice seeking, among other
    things, a declaration that s. 76(1) of the
Code
is unconstitutional.
    His application was adjourned on consent and he was granted intervener status
    to argue the issue on Dr. Sazants appeal to the Divisional Court.

(2)

Dr. Allan Beitel

[62]

Dr. Beitel
    is a psychiatrist. In July 2005, he was notified that the College had initiated
    an investigation under s. 75(1)(a) of the
Code
due to allegations that
    he had conducted himself in a manner unbecoming the profession and had failed
    to maintain the standards of practice of the profession. The allegations arose
    out of criminal charges laid against Dr. Beitel for possession of property
    obtained by crime, possession of child pornography and accessing child
    pornography.

[63]

In 2003,
    Dr. Beitel took a laptop computer in for repairs. A store employee noted that
    the computer had been flagged as stolen and called police. Dr. Beitel
    maintained that the computer was his. When the police arrived, they seized the
    computer without a warrant and later examined the hard drive. Dr. Beitel did
    not consent to the seizure or to the examination.

[64]

Following
    the police examination of his computer, Dr. Beitel was charged with possession
    of child pornography. News of his arrest was reported in the
Toronto Sun
,
    which brought the matter to the Colleges attention. Consistent with its usual
    practice, the College opted to monitor progress of the criminal charges before
    embarking on its own investigation.

[65]

Further
    searches of Dr. Beitel's residence in 2004 led to additional charges including
    fraud and breach of recognizance. Following a preliminary inquiry in 2005, Dr.
    Beitel was committed for trial on five counts: possession of stolen property;
    possession of and accessing child pornography; and two counts of breach of
    recognizance (the first indictment).

[66]

After the
    Crown Law Office failed to respond to numerous requests for information about
    the pending charges, Mr. McNamara, who had been appointed as a College
    investigator under s. 75(1)(a), issued a summons to the police requesting
    copies of the Crown brief and all anticipated exhibits prepared for the prosecution
    of Dr. Beitel. The police did not provide the information, citing concerns
    about the process for disclosure of the Crown brief set out in
D.P. v. Wagg
(2004), 71 O.R. (3d) 229 (C.A.).

[67]

In 2008,
    after further searches of Dr. Beitels residence by the police, new charges
    were laid against him for breach of recognizance and perjury (the second
    indictment).

[68]

In 2009,
    the charges in the first indictment were stayed at the Crown's request due to
    the length of time that had passed, and in the light of the outstanding charges
    on the second indictment.

[69]

In October
    2011, a Superior Court judge held that the 2008 searches of Dr. Beitels home
    violated his rights under s. 8 of the
Charter
and excluded the
    evidence obtained during those searches under s. 24(2).

[70]

There is
    nothing in the appeal record to indicate that the police or the Crown has
    supplied information to College investigators pursuant to the summons that was
    issued.

[71]

Like Dr.
    Kelly, Dr. Beitel brought his own application in the Superior Court challenging
    the constitutionality of s. 76(1). That application was adjourned on the same
    terms as Dr. Kellys.

D.

The summons power issue

(1)

The Statutory Framework

[72]

Under s.
    75 of the
Code
, the Registrar of the College may appoint an
    investigator if, among other reasons, the Registrar has reasonable and probable
    grounds to believe that a member has committed professional misconduct or is
    incompetent. The Executive Committee of the College must also approve the
    appointment. The full text of s. 75(1) is set out in Appendix A. Section
    75(1)(a) reads as follows:

75. (1) The Registrar may appoint one or more investigators to
    determine whether a member has committed an act of professional misconduct or
    is incompetent if,

(a)  the Registrar believes on reasonable and probable grounds
    that the member has committed an act of professional misconduct or is
    incompetent and the Executive Committee approves of the appointment.
[2]

[73]

It is the
    appointment of an investigator that triggers the summons power under s. 76. At
    the relevant time, that provision stated:

76.  (1) An
    investigator may inquire into and examine the practice of the member to be
    investigated and has, for the purposes of the investigation, all the powers of
    a commission under Part II of the
Public Inquiries Act
.
[3]


[74]

Part II of
    the
Public Inquiries Act
, s. 7, provided:

(7)   A commission may require any person by summons,

(a)   to give evidence on oath or affirmation at the inquiry;
    or

(b) to produce in evidence at the inquiry such documents and
    things as the commission may specify,

relevant to the subject-matter of the inquiry and not
    inadmissible in evidence under section 11.

[75]

Section
    11 of the
Public Inquiries Act
provided: [n]othing is admissible in
    evidence at an inquiry that would be inadmissible in a court by reason of any
    privilege under the law of evidence.

[76]

It is also
    noteworthy that s. 77 of the
Code
allows a justice of the peace to
    issue a search warrant on an application by an investigator, upon the
    investigator showing reasonable and probable grounds that: (a) the target of
    the investigation has committed an act of professional misconduct or is
    incompetent; and (b) there is something relevant to the investigation at the
    place identified in the application.

[77]

Section
    77(1) reads as follows:

77.  (1) A justice of the peace may, on the application of the
    investigator made without notice, issue a warrant authorizing an investigator
    to enter and search a place and examine any document or thing specified in the
    warrant if the justice of the peace is satisfied that the investigator has been
    properly appointed and that there are reasonable and probable grounds
    established upon oath for believing that,

(a)  the member being investigated has committed an act of
    professional misconduct or is incompetent; and

(b)  there is something relevant to the investigation at the
    place.

(2)

Other Relevant Legislation

[78]

Section 3
    of the
Medicine Act, 1991
, S.O. 1991, c. 30, addresses the scope of
    the practice of medicine. It provides:

3. The practice of medicine is the assessment of the physical
    or mental condition of an individual and the diagnosis, treatment and
    prevention of any disease, disorder or dysfunction.

[79]

Section 1
    of O. Reg. 856/93, enacted under the
Medicine Act, 1991
, lists various
    acts that constitute professional misconduct for the purposes of the
Code
.
    Section 1(1) (33) and (34) state the following:

1.       (1) The following are acts of professional misconduct
    for the purposes of clause 51(1)(26) of the
Health Professions Procedural
    Code
:

33.     An act or omission relevant to the practice of medicine
    that, having regard to all the circumstances, would reasonably be regarded by
    members as disgraceful, dishonourable or unprofessional.

34.     Conduct unbecoming a physician.

(3)

The Interpretation Issue

[80]

As I have
    said, in addition to supporting the appellant's challenge to the
    constitutionality of the s. 76(1) summons power, the Intervener Doctors also
    raise an alternative argument that, properly interpreted, the summons power
    provided by that section is limited to matters directly related to the practice
    of medicine as that term is defined in s. 3 of the
Medicine Act, 1991
 essentially, the assessment, diagnosis, prevention and treatment of disease.
    As the proper interpretation of the section could affect its constitutionality,
    I will deal with the interpretation issue first.

(a)

The
    Divisional Courts Reasons on the Interpretation Issue

[81]

The
    Divisional Court dealt with this issue succinctly at paras. 172 to 175 of its
    reasons. In essence, the court held that the Intervener Doctors proposed
    interpretation is inconsistent with the purposes of the legislative scheme,
    general principles of statutory interpretation, and the special principles of
    interpretation applicable to professional discipline statutes. In addition, the
    court said that the Intervener Doctors proposed interpretation would lead to
    absurd results.

[82]

The
    Divisional Court explained, at para. 172, that the Legislature has granted the
    College a wide range of powers and imposed upon it significant duties. This
    includes oversight over a wide range of activities that constitute
    professional misconduct, including infamous, disgraceful or improper conduct
    in a professional respect and engaging in conduct unbecoming a physician.
    Given the wide range of conduct encompassed by the legislation, the court
    went on, and keeping in mind that the purpose of the legislation is the
    protection of the public, to inquire into the practice of the member
    necessarily means examining
any
matter that could expose members of
    the public to risk (emphasis added).

[83]

The
    Divisional Court went on to note that the scope of powers granted under s.
    76(1) of the
Code
was considered by the Court of Appeal in
Gore v.
    College of Physicians and Surgeons
, 2009 ONCA 546, (2009), 96 O.R. (3d)
    241. The question in that case was whether an investigator appointed under s.
    75 has the power to observe members as they perform the medical procedures that
    make up their practice. The appellant doctors had argued that recognizing such
    a power would violate their patients privacy. This court rejected that
    argument. It held, at para. 17, that it would take clear words to deprive the
    investigator of power necessary to carry out the important task of protecting
    the public.

[84]

The
    Divisional Court further held, at para. 174, that to restrict the
    investigators power under s. 76(1) to a narrow range of activity involving
    only the assessment, diagnosis, prevention and treatment of disease could lead
    to absurd results. The Justices explained:

For example, a College investigator who is investigating an
    allegation that a psychiatrist is engaging in sexual relations with the patient
    would be prevented from using s. 76(1) to obtain records such as hotel
    receipts, airline tickets or e-mail sent on personal computers for the purpose
    of setting up assignations. Similarly, the College could not use its powers
    under s. 76(1) to investigate allegations that a physician is engaging in
    illicit drug use outside of the office or is selling drugs. The personal
    records of physicians who use their positions of trust to take money from
    vulnerable patients could also not be investigated through the use of the s.
    76(1) summons power if this narrow reading were correct.

[85]

The court
    concluded, at para. 175: Without the information discussed above, the College
    might be hampered in its ability to protect the public by obtaining the
    evidence necessary to prosecute the physician for his or her behaviour.


(b)

The
    Intervener Doctors Argument on Appeal

[86]

On appeal
    to this court, the Intervener Doctors rely, in particular, on the plain
    language of s. 76(1), noting that it provides that an investigator may inquire
    into and examine the practice of the member.

[87]

As I have
    already explained, s. 3 of the
Medicine Act, 1991
, describes the scope
    of the practice of medicine as the assessment of the physical or mental
    condition of an individual and the diagnosis, treatment and prevention of any
    disease, disorder or dysfunction.

[88]

According
    to the Intervener Doctors, having regard to the specific language of these
    provisions, there was no basis for the Divisional Court to incorporate a broad
    notion of protecting the public from professional misconduct into the s. 76(1)
    summons power.

[89]

Unlike s.
    77 of the
Code
, which permits a justice of the peace to issue a search
    warrant where there are reasonable and probable grounds for believing a member
    has committed an act of professional misconduct, s. 76(1) makes no reference to
    professional misconduct.

[90]

Moreover,
    given that the Divisional Court found the s. 76(1) summons power constitutional
    having regard to a members diminished expectation of privacy that arises from
    engaging in a regulated activity, it only makes sense that the summons power
    must be restricted to matters directly related to the regulated activity.
    Otherwise, s. 76(1) would allow unjustified intrusions into members private
    lives.

[91]

Finally,
    the Intervener Doctors submit that to hold otherwise would not produce absurd
    results. Section 77 of the
Code
permits an investigator to obtain a
    search warrant to investigate matters involving professional misconduct falling
    outside a members practice.

(c)

Discussion

[92]

I would
    not give effect to these submissions.

[93]

The modern
    approach to statutory interpretation requires that "the words of an Act
    are to be read in their entire context and in their grammatical and ordinary
    sense harmoniously with the scheme of the Act, the object of the Act, and the
    intention of Parliament":
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42,
[2002] 2 S.C.R. 559
,
at para.
    26, citing Elmer A. Driedger,
Construction of Statutes,
2nd ed.
    (Toronto: Butterworths, 1983), at p. 87.

[94]

Applying
    this approach to the case at bar, I agree with the Divisional Court that the
    main purposes of the
Regulated Health Professions Act, 1991
, and the
Code
,
    are the proper regulation of the medical profession and the protection of the
    public.

[95]

Having
    regard to these broad and important purposes and the overall legislative
    scheme, in my view, the obvious purpose of s. 76(1) of the
Code
is to
    extend the summons power created by the
Public Inquiries Act
to
    investigations authorized under s. 75(1).

[96]

As I have
    explained, s. 75(1)(a) of the
Code
permits the Registrar to appoint an
    investigator to determine whether a member has committed an act of
    professional misconduct.

[97]

In O. Reg.
    856/93, professional misconduct is broadly defined to include, for example,
    conduct
unbecoming a physician
and an act or omission relevant to
    the practice of medicine
that  would reasonably be regarded by members as
    disgraceful, dishonourable or unprofessional
 (emphasis added).

[98]

Clearly,
    the aim of this broad definition is to ensure that members are, and remain, fit
    to carry out their practice according to the standards the profession sets for
    itself. Fitness in this context includes conduct in the physicians private life
    that reflects on his or her integrity: Richard Steinecke,
A Complete Guide
    to the Regulated Health Professions Act
, looseleaf (Toronto: Canada Law
    Book, 2001) at 6:60.20(6).

[99]

Bearing
    this in mind, in my view, s. 76(1) must not be read narrowly, as restricting an
    investigators power under the section to inquiring into and examining matters
    described in s. 3 of the
Medicine Act, 1991
,

as falling
    within the scope of the practice of medicine
.
Rather, s. 76(1) should
    be given a broad and purposive interpretation to enable an investigator to
    carry out his or her duty to investigate. This in turn assists the College in
    its statutory mandate to properly regulate the profession and protect the
    public.

[100]

Considered in this way, the
    power to inquire into and examine the practice of the member to be
    investigated must include the power to inquire into whether the member has
    committed acts of professional misconduct.

[101]

The Supreme Court of Canada
    has consistently emphasized the need for courts to interpret professional
    discipline statutes with a view to ensuring that such statutes protect the
    public interest in the proper regulation of the professions: see e.g.
Rocket
    v. Royal College of Dental Surgeons of Ontario
, [1990] 2 S.C.R. 232, at p.
    249;
Finney v. Barreau du Québec
, 2004 SCC 36, [2004] 2 S.C.R. 17, at
    para. 40.

[102]

As the court put it
    unequivocally in
Pharmascience Inc. v. Binet
, 2006 S.C.C. 48, [2006] 2
    S.C.R. 513, at paras. 36-37:

The importance of monitoring competence and supervising the
    conduct of professionals stems from the extent to which the public places trust
    in them.



In this context,
it should be expected that individuals
    with not only the power, but also the duty, to inquire into a professional's
    conduct will have sufficiently effective means at their disposal to gather
all information relevant
to determining
    whether a complaint should be lodged
. [Emphasis added.]

[103]

As the Divisional Court
    observed, the Intervener Doctors proposed interpretation would leave College
    investigators without the powers necessary to carry out their important duties.
    This is precisely the approach that
Pharmascience
instructs against.

[104]

In the circumstances, I see
    no error in the Divisional Courts conclusion that the s. 76(1) summons power
    is not limited to matters directly related to the practice of medicine as
    described in s. 3 of the
Medicine Act, 1991
.

(4)

The Constitutional Issue

(a)

The
    Appellant's Position before the Divisional Court

[105]

Section 8 of the
Charter
states: Everyone has the right to be secure against unreasonable search and
    seizure.

[106]

Before the Divisional Court,
    the appellant acknowledged that the level of protection afforded by s. 8 is
    informed by the claimant's reasonable expectation of privacy, and that
    reasonableness varies with the context. He further accepted that a person has
    a diminished expectation of privacy in the regulatory sphere versus the
    criminal or quasi-criminal sphere. Nevertheless, the appellant argued that the
    s. 76(1) summons power infringes s. 8 because it fails to strike the
    appropriate balance between the members interest in being left alone and the
    government's interest in protecting the public.

[107]

As a starting point, the
    appellant submitted that the breadth and scope of the s. 76(1) summons power
    knows no bounds.

[108]

According to the appellant's
    interpretation, following his or her appointment, a College investigator acts
    alone, effectively as a Commission of Inquiry of one. The investigator issues
    the summons, it is returnable before the investigator and he or she rules on
    issues of relevance and privilege. Unlike Commissions of Inquiry under the
Public
    Inquiries Act,
which are conducted in public and therefore provide
    procedural protections for the exercise of the summons power, investigations
    under the
Code
are conducted in private and provide no similar
    protections.

[109]

Further, the appellant
    contended that, unlike Commissioners, College investigators are not judicial
    officers  nor are they subject to regular supervision in their exercise of the
    summons power.

[110]

Moreover, the summons power
    is not limited to documents created in the course of the regulated activity or
    to regulated actors.

[111]

Rather, the documents that
    can be compelled include records that may contain highly personal information
    belonging to a member or to third parties, including: cell phone records;
    psychiatric records; bank records and school records. The people who can be
    summonsed also include members of the public.

[112]

In effect, the appellant
    argued that investigators are unconstrained, unrestricted and entirely
    unreviewed in their use of the summons power to compel production of any
    document anywhere, or to compel any person to give evidence.

[113]

The appellant also noted
    that there are few parallels between the purposes and functions of a Commission
    of Inquiry and a College investigation. While a Commission of Inquiry cannot
    establish either civil or criminal liability, a College investigation may lead
    to proceedings before a panel of the Discipline Committee and can result in a
    members licence being revoked or suspended.

[114]

As noted in
Hunter v.
    Southam Inc.
, [1984] 2 S.C.R. 145, the purpose of s. 8 of the
Charter
is to prevent unreasonable searches before they happen.

[115]

In
Thomson Newspapers
    Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade
    Practices Commission)
, [1990] 1 S.C.R. 425, at p. 499, Wilson J.
    summarized the four criteria set forth in
Hunter v. Southam
that must
    be satisfied for search and seizure legislation to withstand
Charter
scrutiny in the criminal/quasi-criminal context:

a)   a system
    of prior authorization, by an entirely neutral and impartial arbiter who is
    capable of acting judicially in balancing the interests of the State against
    those of the individual;

b)   a
    requirement that the impartial arbiter must satisfy himself that the person
    seeking the authorization has reasonable grounds, established upon oath to
    believe that an offence has been committed;

c)   a
    requirement that the impartial arbitrator must satisfy himself that the person
    seeking the authorization has reasonable grounds to believe that something
    which will afford evidence of the particular offence under investigation will
    be recovered; and

d)   a
    requirement that the only documents which are authorized to be seized are those
    which are strictly relevant to the end offence under investigation.

[116]

The appellant contended that
    the s. 76(1) summons power meets none of

these criteria. While he
    acknowledged that different standards apply in the regulatory context than in
    the criminal context, he argued that the s. 76(1) summons power is most often
    used by investigators dealing with criminal conduct.

[117]

Having regard to the context
    and the breadth and scope of the s. 76(1) summons power, the appellant
    submitted that a proper balance can only be struck by requiring prior
    authorization for a summons to be valid. Moreover, a requirement for prior
    authorization could reasonably be imposed without frustrating a College
    investigator's duties. Section 77 of the
Code
already provides a
    process by which an investigator may obtain a judicially-authorized warrant.

(b)

The Divisional
    Courts Reasons Concerning the Constitutional Issue

[118]

After a detailed review of
    the appellant's and the Intervener Doctors arguments, the Divisional Court
    began its discussion of the constitutional issue by reviewing the basic
    principles of a s. 8
Charter
analysis that apply in this case:

·

compelling production through a summons constitutes a seizure
    under s.  8:
Thomson Newspapers
;

·

the freedom to be protected from unreasonable search and
    seizure enshrined in s. 8 can be expressed as a positive entitlement to a
    reasonable expectation of privacy:
Hunter v. Southam
; and

·

a person's reasonable expectation of privacy varies depending on
    the context. The standard of reasonableness that prevails in the criminal
    context will usually not be appropriate in an administrative or regulatory
    context. The greater the departure from the realm of criminal law, the more
    flexible will be the standard of reasonableness:
Thomson Newspapers
.

[119]

In rejecting the appellant's
    constitutional challenge to s. 76(1) of the
Code
, the Divisional Court
    examined the s. 76(1) summons power through the lens of four contextual
    factors: the nature of the context in this case; the nature of the power
    granted under the statute; the nature of the regime; and the specific context
    at issue.

(i)

The
    Nature of the Context in this Case  Criminal/Quasi-Criminal or Regulatory?

[120]

The Divisional Court
    rejected the appellant's argument that the s. 76(1) summons power is being used
    in a realm where the departure from criminal law is not great. Although the
    summons power was used in this case to investigate conduct that is considered
    criminal, the scheme of the
Code
and the
Regulated

Health
    Professions Act
is not quasi-criminal in nature. The court held, at para.
    149, that the summons power exists not to collect evidence with a view to
    laying a criminal charge, but rather to take proceedings against the doctor in
    a regulatory context for the purpose of removing or restricting his licence to
    practise medicine.

[121]

Further, relying on
R.
    v. Wigglesworth
, [1987] 2 S.C.R. 541, and
R. v. Jarvis
, 2002 SCC
    73, [2002] 3 S.C.R. 757, the court noted that 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. Here, the proceedings were focused on
    determining whether the appellant should be disqualified from practising
    medicine. Thus, they could not be considered criminal or quasi-criminal in
    nature.

(ii)

The Nature of the
    Power  Summons versus Search Warrant

[122]

The Divisional Court
    observed that in contrast to the circumstances under consideration in
Hunter
    v. Southam
, where officials were authorized to enter into premises for the
    purposes of conducting a search and seizure without prior judicial
    authorization, the s. 76(1) summons power is much less intrusive. The subject
    of the summons has the opportunity to seek judicial review of the summons
    before being obliged to answer it and before any intrusion has taken place. The
    Supreme Court of Canada confirmed the importance of this distinction with
    respect to documentary production in
British Columbia Securities Commission
    v. Branch
, [1995] 2 S.C.R. 3, when it said, at para. 60, that the demand
    for production of documents contained in the summons is one of the least
    intrusive of the possible methods which might be employed to obtain documentary
    evidence.

(iii)

The Regime Within Which the
    Summons Power is Granted

[123]

The Divisional Court noted
    that the statutory regime in which the s. 76(1) summons power operates provides
    various protections to the person being investigated before the power can be
    exercised.

[124]

Under s. 75(1)(a) of the
Code
,
    an investigator  the person entitled to use the summons power  must be
    appointed by the Registrar of the College. Before the Registrar can seek the
    appointment of an investigator, the Registrar must have a belief, based on
    reasonable and probable grounds, that the member has committed an act of
    professional misconduct.

[125]

Moreover, before the
    Registrar can appoint an investigator, the Registrar must seek the approval of
    the Executive Committee. The Executive Committee is a body that can and does
    exercise quasi-judicial discretion in this and other contexts, including
    imposing interim suspensions. Thus, s. 75 creates certain parallels to the
    preconditions for a reasonable search that emerged from
Hunter v. Southam
and
Thomson Newspapers
 namely, reasonable and probable grounds to
    believe that an act of misconduct has been committed and the review of that
    belief by a body capable of exercising quasi-judicial powers.

[126]

In addition, an
    investigator's power to summons under s. 76(1) is not unbridled. It is
    restricted to evidence that is both relevant to the inquiry he or she is
    conducting and that would not be inadmissible because of any privilege under
    the law of evidence. A requirement that the evidence be relevant to the subject
    matter of the inquiry also parallels the preconditions for a reasonable search
    set out in
Hunter
and
Thomson
.

[127]

Further, the s. 76(1)
    summons power is no greater than the power that exists under the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194. Under rule 39.03, civil litigants
    may summons a third party to give evidence before an examiner in aid of a
    motion or application.

[128]

Finally, the Divisional
    Court noted that 61 Ontario statutes confer the summons power under Part II of
    the
Public Inquiries Act

 suggesting that the power is not
    extraordinary when the context at issue is not criminal or quasi-criminal.

(iv)

The Specific Context at Issue

[129]

In this regard, the
    Divisional Court noted that the s. 76(1) summons power is exercised in the
    context of a self-governing professional regulatory scheme.

[130]

In
Pharmascience
,
    the Supreme Court of Canada emphasized the important public protection
    responsibilities of professional regulators and the need for them to have
    effective means to carry out their duties.

[131]

The Divisional Court
    observed that members of the medical profession often have access to the most
    private parts of people's lives, both emotionally and physically. If doctors
    abuse the trust placed in them by the public and by their patients, the impact
    of the violation can be enormous. The court concluded, at para. 166:

Given this, it is not unreasonable to expect doctors to have a
    very limited expectation of privacy when it comes to allowing their regulator
    to ensure that they are carrying out their practices in a manner that will not
    expose the public to risk. An individual chooses to become a doctor and in so
    doing accepts that his or her activities will be supervised and monitored. Not
    only does this benefit the public, but it also benefits the member by
    preserving the integrity of his or her profession.

(c)

The
    Appellant's Position in This Court

[132]

On appeal to this court, the
    appellant essentially repeats his position in the Divisional Court that the s.
    76(1) summons power is an unconstrained, unrestricted, unreviewed and
    unnecessary search power that is not justified by the regulatory context in
    which it is found.

[133]

The appellant acknowledges
    that the key question in assessing the constitutionality of s. 76(1) under s. 8
    of the
Charter
is a modification of the question that was framed by
    LaForest J. in
Thomson Newspapers
, at p. 508, that is:

What degree of privacy can those subject to investigation under
    s. 75 of the
Code
reasonably expect in respect of the activities and
    matters with which such investigation may be concerned?

[134]

The appellant submits that
    to answer this question, the court must conduct a contextual analysis that
    includes consideration of: i) the scope of the legislation that creates the
    investigative power; ii) the context at issue; iii) the purpose of the
    investigation; and iv) the nature of the documents and other information that
    may be compelled.

[135]

The appellant argues that the
    Divisional Court failed to conduct such an analysis, and, in particular, failed
    to recognize that the power in issue is completely unrestricted by the
    regulatory scheme in which it is found.

[136]

The appellant contends that,
    having regard to the broad definition of professional misconduct, the reach of
    the summons power is essentially limitless.

[137]

Moreover, the appellant
    reiterates that while the scheme may be, strictly speaking, regulatory  as
    opposed to criminal or quasi-criminal  the purpose of an investigation is to
    determine whether disciplinary charges should be brought. Such charges may
    result in professional disqualification and a high level of social stigma, akin
    to that found in the criminal context.

[138]

Concerning the scope of the
    authorized investigation and the nature of the documents and information that
    can be compelled, the appellant emphasized the evidence of Dr. Patrick
    McNamara, the Medical Director of the Investigations and Resolutions Department
    of the College (no relation to the investigator, Mr. McNamara). Dr. McNamara
    had supervisory responsibility for the Colleges investigation of the
    appellant.

[139]

During cross-examination on
    his affidavit, Dr. McNamara indicated that investigators have discretion to
    determine the scope of their investigation. Further, he confirmed that the
    summons power has been used to obtain a wide range of documents, which, in
    other contexts, attract significant expectations of privacy. These include, for
    example: computer records; insurance company records; medical and pharmacy
    records; post-secondary school records; banking records; hotel records and cell
    phone records.

[140]

Dr. McNamara also confirmed
    that there is no obligation on an investigator to notify either a member or a
    third party with a potential privacy interest in summonsed documents of the
    existence of the summons.

[141]

In addition, Dr. McNamara
    acknowledged that the summons power extends to compelling a witness to provide
    evidence and has been used to obtain evidence from third parties  for example,
    the son of a physician who was alleged to have had a sexual relationship with a
    patient. In that case, the physicians son was unwilling to speak with a
    College investigator unless he was served with a summons.

[142]

Dr. McNamara also
    acknowledged that there is no internal procedure for authorizing the issuance
    of the summons through the Executive Committee, the Complaints Committee or the
    Registrar.

[143]

An investigator is not
    required to hold his inquiry in a specific location; there is no obligation
    on the investigator to take notes or record what is stated during an
    examination; there is no requirement that examinations be conducted under oath;
    there is no neutral third party to review whether documents produced or
    evidence given at an inquiry are relevant; and the investigation is not
    conducted in a public forum. If a person refuses a summons, he or she may be
    cited for contempt.

[144]

Dr. McNamara testified that
    in 2006, investigations involving sexual impropriety made up only about 1% of
    the total investigations conducted. Moreover, of approximately 2500
    investigations conducted in 2006, about 60 summonses were issued by a College
    investigator.

[145]

The appellant concedes that
    the
Hunter v. Southam
requirements are not universally applicable and
    that the level of protection afforded by s. 8 in a given context must be
    responsive to the level of privacy reasonably expected by the claimant.
    However, he contends that the s. 76(1) summons power constitutes an unjustified
    departure from the
Hunter v. Southam
standard of reasonableness in
    that evidence is compelled:

·

without any prior authorization or review by anyone;

·

without requiring reasonable and probable grounds;

·

without requiring prior evidence that the search will afford
    evidence of the particular offence; and

·

without limiting the documents seized based on relevance and
    without requiring a report or review by a justice or by any reviewing body.

[146]

In addition to arguing that
    the Divisional Court failed to conduct the necessary contextual inquiry
    mandated by the regulatory quartet of cases that followed
Hunter v. Southam
in the Supreme Court of Canada, the appellant submits that the Divisional Court
    made several errors in concluding that the regulatory context in which the s.
    76(1) summons power is found justifies such a significant departure from the
Hunter
    v. Southam
standard.

[147]

First, the Divisional Court
    erred by overemphasizing the criminal/regulatory distinction drawn in
Thomson
    Newspapers
and
R. v. McKinley Transport Limited
, [1990] 1 S.C.R.
    627. Instead, the Divisional Court should have heeded the comments of Sopinka
    J. in
Baron v. Canada
, [1993] 1 S.C.R. 416, at p. 444, that the
    criminal/regulatory distinction is useful but not determinative.

[148]

Second, the Divisional Court
    erred by placing undue emphasis on the Supreme Court's comments concerning the
    nature of a summons power in
Branch
without acknowledging that the
    summons power at issue in that case was restricted to business-related
    documents. This, the appellant contends, distinguishes it from the sweeping
    summons power challenged here.

[149]

Third, the Divisional Court
    erred by relying on
McKinley Transport
for the proposition that a
    summons is by its nature less intrusive than a search. The appellant contends
    that this distinction only holds when the target of the summons is the same
    person who holds a privacy interest in the requested evidence. It does not
    apply when the material sought is in the hands of third parties, because those
    third parties are unlikely to challenge the summons.

[150]

Finally, the appellant
    argues that the s. 76(1) summons power is unnecessary. The College resorts to
    the summons power in only a small minority of cases. Moreover, most other
    provinces do not have provisions analogous to s. 76(1) in their respective
    medical regulatory statutes.

(d)

Discussion

[151]

For the purposes of my
    analysis, I assume, but do not decide, that the appellant has standing under s.
    8 of the
Charter
to challenge the constitutionality of the s. 76(1)
    summons power when used by investigators appointed under s. 75(1)(a) of the
    Code and, if successful, to seek a declaration of invalidity under s. 52 of the
Charter
.

[152]

I do not accept the
    appellant's submissions that the s. 76(1) summons power violates s. 8 of the
Charter
when used by investigators appointed under s. 75(1)(a) of the Code.

[153]

The appellants claim that
    the s. 76(1) summons power is an overbroad, unrestricted power rests in part on
    the assertion that, once investigators are appointed under s. 75(1)(a), the s.
    76(1) summons power confers on the investigators an unlimited power to conduct
    a free-wheeling fishing expedition into any and all aspects of a member's
    private life. He argues that this is demonstrated in this case by the general
    language of the appointment of investigators, authorizing them to investigate
    whether the appellant had committed an act of professional misconduct or was
    incompetent.

[154]

Contrary to this assertion,
    in my opinion, a proper interpretation of the relevant statutory provisions
    demonstrates that, when used by investigators appointed under s. 75(1)(a) of
    the Code, the s. 76(1) summons power is a reasonable power, properly
    constrained by the requirement that it be used solely to obtain information
    that is relevant to a duly authorized investigation into specified professional
    misconduct, and further restricted by the requirement that the information
    sought cannot be privileged.

[155]

It is important to remember
    that, in this case, the s. 76(1) summons power was triggered by the appointment
    of investigators under s. 75(1)(a) of the Code.

[156]

To appoint investigators
    under s. 75(1)(a), the Registrar must believe on reasonable and probable
    grounds that the member to be investigated has committed an act of professional
    misconduct or is incompetent. It is that act (or acts) of professional
    misconduct or incompetence that the investigators are authorized to
    investigate. In this regard, counsel for the College acknowledged in oral
    argument before us that it is the practice of the College to seek a new
    appointment of investigators under s. 75(1)(a) of the Code where investigators
    uncover matters unrelated to the originally authorized investigation. I repeat
    the text of s. 75(1)(a) of the Code for ease of reference:

75 (1) The Registrar may appoint one or more
    investigators to determine whether a member has committed an act of
    professional misconduct or is incompetent if,

(a)
The Registrar believes on reasonable and
    probable grounds that the member has committed an act of professional
    misconduct or is incompetent and the Executive Committee approves of the
    appointment
. [Emphasis added.]

[157]

Importantly, by its terms,
    the s. 76(1) summons power is restricted to matters relevant to the authorized
    investigation:

76 (1) An investigator [i.e. appointed under s.
    75(1)] may inquire into and examine the practice of the member to be
    investigated
and has, for the purposes of the investigation, all the powers
    of a commission under Part II of the Public Inquiries Act.
[Emphasis
    added.]

[158]

Section 7 in Part II of the
Public
    Inquiries Act
establishes the requirement for relevance:

(7)   A commission may require any person by summons,

(a)   to give evidence on oath or affirmation at the
    inquiry; or

(b)   to produce in evidence at the inquiry such
    documents and things as the person or body conducting the inquiry may specify,

relevant to the subject matter of the inquiry
and not inadmissible in evidence under section 11. [Emphasis added.]

[159]

Read together, these
    provisions make it clear that the scope of the s. 76(1) summons power is
    limited to matters relevant to the authorized investigation  and that the
    authorized investigation relates to the acts of professional misconduct or
    incompetence the Registrar formed reasonable and probable grounds to believe
    the member committed. Finally, section 11 of the
Public Inquiries Act
(now
    s. 33 of the
Public Inquiries Act, 2009
, restricts the testimony and
    documents that may be summonsed to evidence that is not privileged.

[160]

In my view, it follows from
    these conclusions concerning the proper interpretation of s. 75(1)(a) and s.
    76(1) that, when appointing investigators under s. 75(1)(a), the Registrar
    should provide a brief description of the act(s) of professional misconduct he
    or she believes on reasonable and probable grounds were committed.
[4]
Such a requirement serves two important purposes.

[161]

First, it ensures that the
    necessary prerequisite to the appointment of investigators  namely, the
    formation of reasonable and probable grounds to believe that the member has
    committed an act of professional misconduct or incompetence  has been
    satisfied.

[162]

Second, it ensures that the
    scope of the investigation authorized under s. 75(1)(a) is clearly defined and
    that the corollary summons power under s. 76(1) can be exercised only to obtain
    information relevant to the
authorized
investigation.

[163]

The notion that the
    Registrar should provide a brief description of the misconduct to be
    investigated when appointing investigators under s. 75(1)(a) of the Code is
    neither novel nor particularly controversial. In his text on the
Regulated
    Health Professions Act
, Richard Steinecke offers the following precedent
    for an appointment under s. 75(1)(a), at p. 5-72:

I, [
name of Registrar
]  appoint [
investigator's

name
]
    to inquire into and examine the conduct or actions of [
name of member
]
    pursuant to ss. 75 to 79 of the
Health Professions Procedural Code
to
    ascertain whether [
name of member
] has committed an act of professional
    misconduct [
add, where necessary, or is incompetent
] in respect of [
insert
    a brief description of the type of concerns being investigated and the time
    period covered by the investigation
]. [Italics in original; bold
    added.]

[164]

That said, I agree with
    counsel for the College that the requirement that the Registrar describe the
    acts of professional misconduct or incompetence he or she formed reasonable and
    probable grounds to believe were committed should not be interpreted in a
    manner that would frustrate the Colleges ability to carry out its statutory
    mandate.

[165]

So, for example, if the
    Registrar authorizes an investigation based on reasonable and probable grounds
    to believe that a member is having sexual relations with an adult patient, the
    investigators use of the s. 76(1) summons power is limited to that
    investigation. However, if the investigators uncover evidence that the member
    has had sexual relations with another, previously unknown, adult patient, a new
    appointment may not be necessary, given that the nature of the misconduct falls
    within the category of sexual misconduct with a patient. On the other hand, if,
    during the same investigation, the investigators uncovered evidence of unrelated
    misconduct  for example, that the member is trafficking narcotics in unrelated
    circumstances  a new appointment would be required before the investigators
    could resort to the s. 76(1) summons power to pursue this new avenue.

[166]

I reject any suggestion that
    the failure of the Registrar in this case to specify the act(s) of professional
    misconduct he formed reasonable and probable grounds to believe the appellant
    committed affects the constitutionality of the s. 76(1) summons power. The fact
    that a constitutional power is exercised in a manner that may be
    unconstitutional does not make the power unconstitutional; rather, it may give
    rise to a remedy under s. 24 of the
Charter
.

[167]

In any event, I am not
    persuaded that the use of the summons power in this case violated the
    appellants s. 8 rights.


[168]

Although the wording of the
    s. 75(1)(a) appointment of investigators was very general, the material
    submitted to the Registrar in support of the request for an appointment made it
    clear that the proposed investigation related to allegations that the appellant
    had engaged in sexual impropriety with adolescent males and that reasonable and
    probable grounds existed to believe that the appellant had engaged in such
    activity. Equally important, the material summonsed did not extend beyond the
    scope of those allegations.


[169]

In addition, the Discipline
    Committee found that the appellant did not have a reasonable expectation of
    privacy in the summonsed material. He therefore lacked standing to assert an
    individual s. 8 claim or to seek a
s. 24(2)
Charter
remedy. That ruling is not part of the subject matter of this appeal. The
    Divisional Court dismissed this ground of appeal and this court did not grant
    leave on this issue.

[170]

Accordingly, contrary to the
    appellants submissions in this regard, rather than being an overbroad,
    unrestricted power, I conclude that the s. 76(1) summons power is a limited
    power, restricted to the scope of the investigation authorized under s.
    75(1)(a)  namely, the act(s) of professional misconduct or incompetence the
    Registrar formed reasonable and probable grounds to believe the member
    committed.

[171]

I also reject the
    appellant's arguments that the Divisional Court failed to conduct a proper
    contextual analysis or made any other error of law in its analysis of the
    constitutionality of the s. 76(1) summons power.

[172]

From its recitation of the
    appellant's arguments and its reasons, it is apparent that the Divisional Court
    was well aware of the appellant's position concerning the scope of the
    legislation, the context at issue, the purpose of the investigation, and the
    nature of the documents and other information that may be compelled.

[173]

Like I do, the Divisional
    Court concluded that the scope of the investigation and the nature of the
    documents and other information that may be compelled is properly constrained,
    restricted and reviewed by: i) the restrictive scope of the investigation that
    is authorized; ii) the limiting factors of relevance and privilege; and iii)
    the requirement that the Executive Committee review the Registrar's initial
    determination of reasonable and probable grounds before the appointment is
    approved.

[174]

Moreover, the fact that the
    s. 76(1) summons power may give an investigator access to documents and
    information that could only be obtained through a warrant in other contexts
    carries little weight. For the purposes of s. 8 of the
Charter
, it is
    the claimant's reasonable expectation of privacy that defines the scope of the
    constitutional protection. In the context of a self-governing professional
    regulatory scheme where the regulator has reasonable and probable grounds to
    believe that a member has committed an act of professional misconduct, a member
    has a limited expectation of privacy in relation to an authorized
    investigation.

[175]

Practising a profession such
    as medicine is not a right; rather, it is a privilege conferred by statute
    where a person possesses the necessary qualifications and undertakes to abide
    by the governing regulatory regime.

[176]

In this regard, ss. 1(33)
    and (34) of O. Reg. 856/93 under the
Medicine Act, 1991
, make it clear
    that, as the regulator of a self-governing profession, the College relies on
    standards established by its members to determine what types of conduct will
    constitute acts of professional misconduct. This includes conduct that in other
    contexts  including in other professional regulation contexts  might
    otherwise be considered private.

[177]

So, for example, a
    consensual sexual relationship between a physician and a patient is
prima
    facie
considered professional misconduct under the
Code
and is
    punishable by mandatory revocation of the physicians licence:
Rosenberg v.
    College of Physicians and Surgeons of Ontario
(2006), 275 D.L.R. (4th) 275
    (Ont. C.A.). By contrast, there is no such automatic prohibition on lawyers
    having sexual relations with clients: see Law Society of Upper Canada,
Rules
    of Professional Conduct
, rule 2.04

[178]

I repeat the relevant
    sections of the
Medicine Act
regulation for ease of reference:

1.    The following are acts of professional misconduct for the
    purposes of clause 51(1)(26) of the
Health Professions Procedural Code
:

33. An act or omission relevant to the practice of medicine
    that, having regard to all the circumstances, would reasonably be regarded by
    members as disgraceful, dishonourable or unprofessional.

34.   Conduct unbecoming a physician.

[179]

Where conduct would be
    regarded as professional misconduct by other members of the profession, it can
    hardly be surprising to a member that he or she would be subject to
    investigation by the regulator where the regulator has reasonable grounds to
    believe that the member has engaged in such conduct.

[180]

Moreover, once the grounds
    for a professional misconduct investigation exist, a member has a professional
    duty to cooperate with the regulators investigation: s. 76(3.1) of the
Code
.
    Viewed in this light, it is difficult to understand the nature of the members
    reasonable expectation of privacy concerning matters relevant to the
    investigation.

[181]

As for members of the
    public, they are not the target of the investigation and an investigator has a
    broad duty of confidentiality in relation to the Information they provide. This
    duty is set out in s. 36 of the
Regulated Health Professions Act, 1991
,
    and reproduced in Appendix B.

[182]

Further, I reject the
    appellant's arguments that the Divisional Court erred by overemphasizing the
    criminal/regulatory distinction drawn in
Thomson Newspapers
and
McKinley
    Transport
,

and the distinctions that exist between a summons and
    a search warrant.

[183]

In my view, the Divisional
    Court properly recognized that these were important, but not conclusive,
    factors in the necessary contextual analysis.

[184]

On the facts of this case,
    the crucial factors were: i) the context at issue  that of a self-governing
    professional regulatory scheme; ii) the requirement for the Registrar to
    certify that he or she has reasonable and probable grounds to believe the
    member has committed an act of professional misconduct; and iii) the
    requirement that the Executive Committee of the College review and approve that
    decision.

[185]  In my opinion, the
    Divisional Court correctly held that the s. 76(1) summons power, as it arises
    in the context of investigators appointed under s. 75(1)(a) of the
Code
,
    does not contravene s. 8 of the
Charter
.

[186]

As
    for the issues raised by the fact situations involving the Intervener Doctors,
    it remains to be determined whether the College could, through the use of the
    summons power, obtain and rely on information in the hands of the Crown or the
  police that was seized unlawfully.

[187]  In
    my view, that issue is properly determined on an application under ss. 8 and
    24(2) of the
Charter
. As I have said, the fact that the summons power
    may be exercised in a manner that violates the
Charter
E.

The abuse of process issue
(1)

Introduction
[188]

As I have explained, the
    appellant brought his initial motion for a stay of proceedings in April 2007,
    shortly before the discipline hearing was to begin. At the motion, he argued
    that the delay in bringing this matter forward amounted to an abuse of process.
[189]

The Discipline Committee
    heard the initial abuse of process motion over four days in April and May 2007
     it dismissed the motion in June 2007.
[190]

The appellant renewed the
    abuse of process motion about a year later, after the presentation of the
    evidence on the merits was completed. In February 2009, the Discipline
    Committee released its decision dismissing the renewed motion concurrent with
    its findings on the merits.
[191]

Before the Discipline
    Committee, it was undisputed that there had been a lengthy delay in bringing
    the appellants case forward and that the delay was in large part attributable
    to the Colleges decision to await the outcome of the criminal proceedings
    before moving forward with its own misconduct investigation and prosecution.
[192]

The notice of hearing in
    respect of all the allegations was issued in March 2006. This was:
·

more than 15 years after the College first learned about J.H.s
    allegations and more than 5 years after the criminal proceedings in relation to
    J.H. had come to an end;
·

more than 7 years after the College first learned about G.M.s
    allegations and almost 2 years after the criminal proceedings in relation to
    G.M. had come to an end; and
·

more than 7 years after the College first learned about B.M.s
    allegations, and about a month before the criminal proceedings in relation to
    B.M. were stayed.
[193]

Despite the length of the
    delay, the Discipline Committee found that it did not constitute an abuse of
    process. In reaching its conclusion, the Discipline Committee relied heavily on
    the leading case of
Blencoe v. British Columbia (Human Rights Commission)
,
    2000 SCC 44, [2000] 2 S.C.R. 307.
[194]

As
Blencoe
was
    crucial to the Discipline Committees analysis, I will review it in some
    detail.
(2)

Blencoe
[195]

The main issues before the
    Supreme Court of Canada in
Blencoe
were whether the
Charter
applies to the actions of the British Columbia Human Rights Commission and
    whether the British Columbia Court of Appeal was correct in holding that the
    respondents s. 7 rights to liberty and security of the person were violated by
    state-caused delay in a human rights proceeding.
[196]

Although the Supreme Court
    determined that the
Charter
applies to the actions of the Commission,
    it concluded that the Court of Appeal erred in holding that the delays in that
    case deprived the respondent of his s. 7 rights.
[197]

As part of his discussion of
    the s. 7 issue, Bastarache J., writing for the majority, noted, at para. 88,
    that s. 11(b) of the
Charter
has no application in civil or
    administrative proceedings and that there is no constitutional right outside
    the criminal context to be tried within a reasonable time.
[198]

After determining the s. 7
    issue, Bastarache J. turned to the question of whether the respondent was
    entitled to a remedy pursuant to administrative law principles.
[199]

At the outset of this
    discussion, Bastarache J. explicitly rejected the proposition that delay in
    bringing forward an administrative proceeding can, on its own, constitute an
    abuse of process. He explained, at para. 101: [D]elay, without more, will not
    warrant a stay of proceedings as an abuse of process at common law. Staying
    proceedings for the mere passage of time would be tantamount to imposing a
    judicially created limitation period (citations omitted).
[200]

Rather, Bastarache J. held:
    In the administrative law context, there must be proof of significant
    prejudice which results from an unacceptable delay. He proceeded to explain
    that this prejudice can take two different forms.
[201]

First, Bastarache J. noted
    that it is well-established that the passage of time may taint the quality of
    the evidence presented at the administrative hearing such that a stay of
    proceedings is required.
[202]

At para. 102, he explained:
    Where delay impairs a partys ability to answer the complaint against him or
    her, because, for example, memories have faded, essential witnesses have died
    or are unavailable, or evidence has been lost, the proceedings may be rendered
    unfair and a stay of proceedings will be appropriate.
[203]

In
Blencoe
, the
    application judge had rejected the respondents claims of prejudice impacting
    the fairness of the hearing (including allegations that two witnesses had died
    and that the memories of many witnesses may have faded) as vague assertions
    that fall short of establishing an inability to prove facts necessary to
    respond to the complaints. Bastarache J. found that the respondent had not
    established any basis upon which to interfere with the application judges
    findings in this regard.
[204]

At
    para. 115, Bastarache J. concluded, that even if the passage of time has not
    affected the fairness of the hearing, a second form of prejudice, such as
    psychological harm or stigma attaching to a persons reputation, can be
    sufficient to give rise to an abuse of process.
[205]

However, to give rise to an
    abuse of process, delay in such circumstances must be inordinate and cause
    actual prejudice of such magnitude that the publics sense of decency and
    fairness is affected.
[5]

[206]

Moreover, this personal form
    of prejudice must be directly caused by the delay in the administrative proceedings,
    and not by the underlying events giving rise to those proceedings.
[207]

Bastarache J. explained, at
    para. 122, that the determination of whether a delay has become inordinate is
    not based on the length of the delay alone, but on contextual factors such as
    the nature and complexity of the case, the purpose and nature of the
    proceedings, and the applicants role in contributing to or waiving the delay.
[208]

Quoting LHeureux-Dubé J. in
R. v. Power
, [1994] 1 S.C.R. 601, at p. 616, he held that the court must
    find that the proceedings would be unfair to the point that they are contrary
    to the interests of justice. He noted that cases of this nature will be
    extremely rare (at para. 122) and will merit a stay of proceedings only in
    the clearest of cases (at para. 118).
(3)

The Appellant's Initial Motion for a Stay of Proceedings
[209]

Before the Discipline
    Committee, the appellant argued that the Colleges delay in bringing his case
    forward caused both types of prejudice discussed in
Blencoe
, and that
    a stay was the only appropriate remedy.
[210]

After reviewing the relevant
    passages of
Blencoe
and the chronology of the proceedings, the
    Discipline Committee began its analysis by noting that while pre-complaint
    delay is not the fault of the College, an abuse of process will occur if the
    member is prejudiced in making full answer and defence.
[211]

The Discipline Committee
    observed that at the time the College was notified of the criminal
    investigations involving the appellant, it was the practice for administrative
    bodies to await the outcome of criminal charges before proceeding with
    discipline hearings.
[212]

The Discipline Committee
    acknowledged that in three benchmark cases, discipline proceedings that
    awaited the outcome of criminal proceedings were stayed because of inordinate
    delay:
Stinchcombe v. Law Society of Alberta
, 2002
    ABCA 106, (2002), 212 D.L.R. (4th) 675 (Alta. C.A.);
Misra v.
    College of Physicians & Surgeons of Saskatchewan
,
    (1988), 52 D.L.R. (4th) 477 (Sask. C.A.); and
Thomson v. College of
    Physicians and Surgeons of British Columbia
, (1998), 65
    B.C.L.R. (3d) 209 (Sup. Ct.)
.
[213]

In
Stinchcombe
and
Misra
,
    the discipline proceedings were stayed in part because the professionals
    involved had been suspended and therefore deprived of their livelihood during
    the lengthy periods of delay.
[214]

By contrast, the Discipline
    Committee held that the appellants case was clearly distinguishable because
    the practice restrictions imposed on him were not tantamount to a suspension.
[215]

The initial voluntary
    undertaking that he gave to the College (which required him to have another
    adult present when he examined patients under age 16) conformed to his bail
    conditions. He subsequently agreed to a modification of the undertaking
    requiring that the adult present during medical examinations had to be
    pre-approved by the College. Finally, the conditions that the College imposed
    when the appellants case was referred to the Discipline Committee were not of
    the magnitude of a suspension (the College prohibited the appellant from seeing
    any patients under age 16).
[216]

The Discipline Committee
    found that these practice restrictions did not cause any significant prejudice.
    The appellants own evidence was that by 2000, he had almost no children in his
    practice, and that he continued to maintain a vibrant practice even as the
    discipline proceedings got underway in 2007.
[217]

The Discipline Committee
    explained that in the third benchmark case,
Thomson
, discipline
    proceedings were stayed due to delay in part because the professional had
    requested a timely hearing on the merits and the disciplinary body had refused.
    Again by contrast, the Discipline Committee observed that the appellant had not
    requested an earlier discipline hearing on the merits of the allegations
    against him.
[218]

Further, although s. 28 of
    the
Code
states that a panel of the Complaints Committee is required
    to make a decision regarding a complaint within 120 days, this time frame is a
    guideline not a mandatory requirement:
Katzman v. Ontario College of
    Pharmacists
, [2001] O.J. No. 586 (Div. Ct.), revd on other grounds
    (2002), 223 D.L.R. (4th) 371 (C.A.).
[219]

In the end, the Discipline
    Committee found that it was not practical to proceed with the discipline
    hearing in this case until all of the complainants cases were completed in the
    criminal courts. Further, the Discipline Committee concluded that the delay of
    14 months from the date on which the charges against B.M. were stayed (April
    2006) to June 2007 was not excessive and that the overall delay was not
    inordinate. The Discipline Committee said:
It would not have been practical, nor desirable from a fairness
    point of view, for [the appellant] to face a discipline hearing at the same
    time that he was required to answer to criminal charges. It was also more
    practical for the College to await the results of the criminal trial, as a
    subsequent lengthy discipline hearing on the merits of the allegations may not
    have been required had [the appellant] been convicted. The criminal process
    took a considerable period of time, as there were delays due to appeals to the
    Court of Appeal and the Supreme Court of Canada, with the result that both [the
    G.M. and the B.M.] cases were stayed.

A conviction on just one of the allegations would have obviated
    the need for hearing. Moreover, investigating the complainants independently
    may have tainted the criminal proceedings. Scheduling discipline hearings would
    have been difficult given the constraints with the criminal court process.

Since first learning of [the J.H.] allegations in 1991, the
    College investigations department has kept a file on [the appellant] and,
    although it was not always active, the investigations department monitored the
    physician at times, and monitored the subsequent criminal proceedings as well.
    The complexity of the cases with multiple complainants in the ensuing criminal
    process contributed to the delay. The time required for a regulatory College to
    investigate and process complaints and for the hearings to be scheduled all
    contributed to the time delay. Some of the delay has also been due to [the
    appellant's] motions that have preceded the scheduled discipline hearing in
    June 2007. Although the time in bringing these allegations to the Discipline
    Committee has been lengthy, it has not been inordinate.
[220]

The Discipline Committee
    then turned to the issue of whether the appellant had demonstrated significant
    prejudice to his right to a fair hearing caused by delay or other relevant
    factors.
[221]

The appellant itemized
    several forms of prejudice which he claimed he had suffered:
·

he was forced to sell his office building in 2004 due to personal
    financial circumstances resulting from his legal fees;
·

he was precluded from acting as the ringside doctor for amateur
    boxing events because of practice restrictions;
·

he found the practice restrictions humiliating to explain to
    patients and their parents;
·

media coverage had been humiliating and a source of distress;
·

he suffered from anxiety and depression;
·

he was deprived of the evidence of various witnesses who died
    between 1982 and 2005; and
·

he was deprived of the evidence of the layout of his house and
    his clinic because they were demolished or destroyed in 1995 and 1997,
    respectively.
[222]

The Discipline Committee
    considered each of these claims and rejected the appellant's assertion that he
    had suffered significant prejudice. With the exception of the last two claims,
    the Discipline Committee was not persuaded that the College proceedings, as
    opposed to the criminal proceedings, were a significant contributing factor to
    any prejudice the appellant suffered. Concerning the alleged loss of evidence,
    the Discipline Committee was satisfied that the appellant had adequate
    alternate sources of evidence with respect to any of the lost evidence that was
    of any significance.
[223]

Although the delay between
    the alleged professional misconduct and the hearing was lengthy, the Discipline
    Committee was not satisfied that the appellant's right to make full answer and
    defence had been substantially prejudiced, nor did he experience significant
    personal prejudice as a result of the administrative delay. Having regard to
    the nature of the case, the purpose and nature of the proceedings and the
    public interest in ensuring that the issues were dealt with, the Discipline
    Committee concluded that this was not an appropriate case for a stay of proceedings.
(4)

The Appellant's Renewed Motion for a Stay
[224]

After he testified, the
    appellant renewed his motion for a stay of proceedings based on abuse of
    process. He argued that the complainants had provided new evidence bearing on
    the significance of the lost evidence and the prejudice suffered as a result of
    pre-charge delay.
[225]

The College argued that it
    was apparent from the appellant's testimony that he had a clear recollection of
    his interactions with the complainants and was not at all hampered in raising a
    defence to the allegations.
[226]

The Discipline Committee
    remained satisfied that the appellant had adequate alternate sources of
    evidence with respect to any significant aspects of the lost evidence.
(5)

The Divisional Courts Reasons
[227]

The appellant appealed the dismissal
    of his stay motions to the Divisional Court along with his appeal on the
    merits. At the outset of its analysis, the Divisional Court noted that
    deference was owed to the facts found by the Discipline Committee respecting
    prejudice and the impact of the delay on the hearing process. However, the
    Discipline Committee was required to be correct with respect to the legal
    principles that apply to the appellant's claims of abuse of process and denial
    of natural justice.
[228]

The Divisional Court
    addressed four main issues in its reasons:
·

was the delay inordinate;
·

was there a denial of natural justice because of lost evidence;
·

was the investigative delay an abuse of process; and
·

did the delay amount to an abuse of process that would bring the
    administration of justice into disrepute?
[229]

Concerning the inordinate
    delay issue, the Divisional Court was satisfied that the Discipline Committee
    set out the correct legal test and considered the appropriate factors in
    concluding that the delay was not inordinate.
[230]

Although the Divisional
    Court observed that the delay between criminal charges and the disciplinary
    action by the College was lengthy and gives rise to concern, it agreed with the
    Discipline Committees conclusion that it was reasonable for the College to
    await the outcome of all the criminal proceedings before pursuing disciplinary
    proceedings.
[231]

Concerning the lost evidence
    issue, the Divisional Court noted that the Discipline Committee was in the best
    position to determine the impact of the lost evidence on the fairness of the
    proceeding. The court went on to hold that the Discipline Committees
    conclusion that the appellant did not suffer significant prejudice as a result
    of lost evidence was reasonable. Accordingly, the Discipline Committees
    finding that delay in this case did not amount to a denial of natural justice
    was correct.
[232]

Concerning the investigative
    delay issue, the Divisional Court agreed with the Discipline Committee that s.
    28 of the
Code
did not impose a deadline for the investigation in this
    case. Citing
Stanley v. Ontario (Health Professions Appeal and Review
    Board)
, (2003), 172 O.A.C. 56 (Div. Ct.), at para. 16, the Divisional
    Court stated there are no statutory guidelines or time limits on the
    investigation of matters reported to the Executive Committee of the College.
[233]

The Divisional Court also
    agreed with the Discipline Committee that the decisions in
Misra
and
Stinchcombe
do not assist the appellant in this case. This is not one of the clear cases
    where there has been real prejudice to the appellant's ability to make full
    answer and defence.
[234]

Finally, the Divisional
    Court rejected the appellants submission that the negative impact of the delay
    on his reputation, his mental health and his lifestyle generally was so serious
    as to bring the administration of justice into disrepute. As the Discipline
    Committee had done, the Divisional Court noted that the appellant was not
    subject to a suspension during the lengthy pre-hearing period. On the contrary,
    even under practice restrictions, the evidence showed that the appellant
    maintained a very healthy practice comprised mainly of elderly patients. The
    Divisional Court also agreed with the Discipline Committees conclusion that
    most of the stigma and stress the appellant experienced arose from the criminal
    proceedings, not from the delay in the College proceedings.
[235]

The Divisional Court
    concluded by holding that the public interest was served by considering the
    allegations against the appellant on the merits. It explained, at paras.
    227-228:
Here, there were very serious allegations that four young boys
    had been sexually abused. The College was acting in the public interest by
    investigating and taking disciplinary action in order to protect other patients
    or potential patients of the appellant. As well, the complainants had an
    interest in having their complaints determined on the merits.
We conclude that this is not one of the rare cases where the
    delay was so inordinate that proceeding with the disciplinary hearing has
    brought the system of administrative justice into disrepute. The committee did
    not err in refusing to stay the proceedings on the ground of inordinate delay.
(6)

The Appellant's Position in this Court
[236]

In his written submissions
    to this court, the appellant takes issue with the reasonableness of the
    Discipline Committees factual findings regarding the impact of the lost
    evidence as well as the correctness of its legal conclusions regarding the
    abuse of process claim.  In oral argument before us, counsel for the appellant
    submitted that even if the findings on lost evidence were reasonable, it was
    open to us to conclude that the delay was simply too long, and the impact on
    the appellant too great, to be considered acceptable.
(7)

Discussion
[237]

In my view, the appellant
    has failed to identify any reversible error in the Divisional Courts review of
    the Discipline Committees findings concerning the impact of the delay on the
    fairness of the appellants hearing. As was noted by the Divisional Court, and
    as has been acknowledged by the appellant, the Discipline Committee was in the
    best position to determine that issue and its findings are entitled to
    considerable deference.
[238]

Accordingly, I do not
    propose to review all of the pieces of lost evidence the appellant submits
    impaired his ability to respond fully to the allegations against him. Suffice
    it to say, I agree with the Divisional Courts conclusion that the Committees
    findings were reasonable in the circumstances.
[239]

To take but one example, the
    appellant submits that the death of his mother during the period of pre-charge
    delay prejudiced his ability to defend himself against the allegations of
    sexual misconduct.
[240]

In dismissing the initial
    motion for a stay in June 2007, the Discipline Committee observed that the
    appellants mother passed away years before the College learned of any of the
    allegations against him. The Committee also observed that it was difficult to
    conclude that the appellant had been significantly prejudiced by the loss of
    her potential evidence since, although the appellant lived with his mother at
    the relevant time, there was no suggestion that she was actually present when
    the abuse occurred.
[241]

In its reasons dismissing
    the renewed abuse of process motion following the hearing of evidence, the
    Discipline Committee acknowledged that the appellants mother might have been
    able to speak to some of the issues that arose in the complainants testimony.
    However, it went on to note that some of this evidence was elicited in
    cross-examination of the complainants, and in any event, the Committee had
    determined that the appellants mother was not present during any of the
    incidents of abuse. Most importantly, the Committee reiterated that there could
    be no prejudice arising from the Colleges investigative delay given that the
    appellants mother died nearly a decade
before
the first allegations
    against the appellant were raised.
[242]

The Divisional Court agreed
    with the Discipline Committees findings respecting this and other pieces of
    lost evidence. I see no reason to interfere with its conclusion.
[243]

With regard to the
    appellants argument that the delay in this case was simply too long to be
    countenanced regardless of the impact of the lost evidence, three points must
    be borne in mind.
[244]

First, as I explained
    earlier,
Blencoe
makes it clear that the mere passage of time, without
    more, does not give rise to an abuse of process. Rather, the reviewing court
    must adopt a contextual approach that takes account of all of the circumstances
    surrounding the delay.
[245]

In this case, that context
    included allegations against the appellant involving multiple complainants who
    were likely to be called as similar fact witnesses in each of the criminal
    proceedings. As the Discipline Committee held, it would have been impractical
    and unfair to the appellant for the College to pursue misconduct charges in
    respect of one or more of these complainants until after the criminal
    proceedings had been fully resolved.
[246]

Second, and importantly, the
    appellant failed to demonstrate that he suffered actual, significant prejudice
    caused by the delay in the College proceedings of a magnitude that would bring
    the administration of justice into disrepute.
[247]

Again, the Discipline
    Committee found that the practice restrictions imposed on the appellant were
    not particularly onerous, were consistent with his bail restrictions, and on
    his own evidence did not prevent him from maintaining a vibrant practice.
    Similarly, the Committee found that whatever stress and stigma the appellant
    experienced arose primarily from the fact of the allegations and the criminal
    charges, not from the Colleges delay in bringing the matter forward. These
    findings were upheld as reasonable by the Divisional Court and the appellant
    has failed to demonstrate any basis upon which this court should revisit them.
[248]

Finally, as the Divisional
    Court observed, there was a strong public interest in having the appellants
    case considered on the merits. The allegations against the appellant were
    extremely serious. The various criminal charges were stayed for reasons that
    had nothing to do with the strength of the evidence against him. The College
    has not just the right but the duty to protect the public from members who may
    pose a danger. In my view, a stay of discipline proceedings in these
    circumstances would not enhance public confidence in the administration of
    justice; it would imperil it.
F.

CONCLUSION
[249 ]For the foregoing reasons, the appeal is dismissed. No
    costs were sought or awarded in the Divisional Court. Similarly, no costs are
    sought or awarded in this court.

Released: RPA October 30, 2012               Janet
    Simmons J.A.
I
    agree Robert P. Armstrong J.A.
I
    agree S.E. Pepall J.A.
Appendix
    A
Health Professions Procedural Code
, being Schedule
    2 to the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18
Investigators
75.
(1) The
    Registrar may appoint one or more investigators to determine whether a member
    has committed an act of professional misconduct or is incompetent if,
(a) the Registrar believes on
    reasonable and probable grounds that the member has committed an act of
    professional misconduct or is incompetent and the Executive Committee approves
    of the appointment;
(b) the Executive Committee
    has received a report from the Quality Assurance Committee with respect to the
    member and has requested the Registrar to conduct an investigation; or
(c) the Executive Committee
    has received a written complaint about the member and has requested the
    Registrar to conduct an investigation.
Appendix B
Regulated Health Professions Act
,
1991
,
    S.O. 1991, c. 18
Confidentiality
36.
(1) Every person employed, retained or
    appointed for the purpose of the administration of this Act, a health
    profession Act or the
Drug and Pharmacies Regulation Act
and every
    member of a Council or committee of a College shall preserve secrecy with
    respect to all information that comes to his or her knowledge in the course of
    his or her duties and shall not communicate any information to any other person
    except,
(a) to the extent that the
    information is available to the public under this Act, a health profession Act
    or the
Drug and Pharmacies Regulation Act
;
(b) in connection with the
    administration of this Act, a health profession Act or the
Drug and
    Pharmacies Regulation Act
, including, without limiting the generality of
    this, in connection with anything relating to the registration of members,
    complaints about members, allegations of members' incapacity, incompetence or
    acts of professional misconduct or the governing of the profession;
(c) to a body that governs a
    health profession in a jurisdiction other than Ontario;
(d) as may be required for
    the administration of the Drug Interchangeability and Dispensing Fee Act, the
    Healing Arts Radiation Protection Act, the Health Insurance Act, the
    Independent Health Facilities Act, the Laboratory and Specimen Collection
    Centre Licensing Act, the Ontario Drug Benefit Act, the Narcotic Control Act
    (Canada) and the Food and Drugs Act (Canada);
(d.1) to a police officer to
    aid an investigation undertaken with a view to a law enforcement proceeding or
    from which a law enforcement proceeding is likely to result;
(e) to the counsel of the
    person who is required to preserve secrecy; or
(f) with the written consent
    of the person to whom the information relates.
Reports required under Code
(1.1) Clauses (1) (c) and (d)
    do not apply with respect to reports required under section 85.1 or 85.2 of the
    Code.
Definition
(1.2) In clause (1) (d.1),
"law enforcement
    proceeding" means a proceeding in a court or tribunal that could result in
    a penalty or sanction being imposed.
Limitation
(1.3) No person or member
    described in subsection (1) shall disclose, under clause (1) (d.1), any
    information with respect to a person other than a member.
No requirement
(1.4) Nothing in clause (1)
    (d.1) shall require a person described in subsection (1) to disclose
    information to a police officer unless the information is required to be
    produced under a warrant.
Not compellable
(2) No person or member
    described in subsection (1) shall be compelled to give testimony in a civil
    proceeding with regard to matters that come to his or her knowledge in the
    course of his or her duties.
Evidence in civil proceedings
(3) No record of a proceeding
    under this Act, a health profession Act or the Drug and Pharmacies Regulation
    Act, no report, document or thing prepared for or statement given at such a
    proceeding and no order or decision made in such a proceeding is admissible in
    a civil proceeding other than a proceeding under this Act, a health profession
    Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an
    order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[1]

The stay was apparently entered by the Crown when the trial
    judge refused to grant a Crown request for an adjournment. A memo to file by a
    College investigator suggests the Crown hoped to lift the stay and reinstitute
    the prosecution if the charges involving the third complainant could catch up
    within a one-year period.


[2]
In 2009, s. 75 was amended to transfer the approval function from the Executive
    Committee to the Inquiries, Complaints and Reports Committee:
Health Systems
    Improvements Act, 2007
, S.O. 2007, c. 10. This change took place after the
    time period at issue in this appeal and the parties made no mention of it.


[3]

The wording of this section was recently amended to conform to
    the new
Public Inquiries Act, 2009
, which came into force on June 1, 2011. The section now reads: An
    investigator may inquire into and examine the practice of the member to be
    investigated and section 33 of the
Public Inquiries Act, 2009
applies to
    that inquiry and examination.
For the purposes of this appeal, nothing
    turns on this change to the statutory language.


[4]

In
Krop v.
    College of Physicians and Surgeons of Ontario
(2002),
    156 O.A.C. 77 (Div. Ct.), leave to appeal refused [2002] S.C.C.A. No. 382, the
    Divisional Court rejected the proposition that the appointment of an
    investigator requires that the Registrar spell out a specific act or acts of
    professional misconduct to avoid fishing expeditions. The court held, at para.
    17, that it was neither unfair nor unreasonable to direct an investigation of
    the members practice as opposed to itemizing each act. The court explained
    that the appointment is an administrative, not a criminal process, that
    initiates an investigation and not a prosecution. Dr. Krop did not seek leave
    to appeal on this aspect of the Divisional Court's decision, and, in any event,
    the constitutional dimension of the issue was not raised or discussed in that
    case.


[5]
The minority in
Blencoe
would have concluded that unreasonable delay is
    not limited to situations that bring the administrative system into disrepute
    either by prejudicing the fairness of the hearing or by otherwise rising above
    a threshold of shocking abuse. Rather, it was prepared to recognize that,
    depending on the circumstances of the case, a delay may be unreasonable but
    fall short of the threshold required to justify a stay of proceedings. In such
    a case, a lesser remedy such as an order for an expedited hearing and/or for
    costs would be appropriate:
Blencoe
, at para. 155.
