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Mar 1, 2006 | Article

The Constitutional Guarantee Against Unreasonable Search & Seizure

by: Philip Abbink and Mia London

The statutory regimes that govern regulated health professionals and teachers are created by legislation. The Regulated Health Professions Act (“RHPA”) and the Ontario College of Teachers Act (“OCTA”) provide the professional colleges with the necessary powers to ensure that professional standards are met. Because these professional colleges are created by statute, the Canadian Charter of Rights and Freedoms applies to searches and seizures that are carried out under the legislation that governs the colleges. Two provisions of the Charter are directly relevant:

8. Everyone has the right to be secure against unreasonable search or seizure.

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

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

The legal rights guaranteed by the Charter require that any search or seizure carried out by a professional college must be reasonable. If a search is deemed to be unreasonable, the evidence obtained through the search may be excluded. Courts have stated that evidence collected in the course of a disciplinary proceeding may be excluded pursuant to s.24 of the Charter: see Huerto v. College of Physicians and Surgeons (Sask.) (2001), 211 Sask. R. 200 at 25.

Regulated health professionals and teachers are occasionally subject to criminal proceedings. For a search to be reasonable in the criminal context, it must:

a) be authorized by law (in this case the RHPA and the Health Professions Procedural Code or the OCTA);

b) the law itself must be reasonable and;

c) the search must be conducted in a reasonable manner.

The definition of these criteria may differ, however, depending on the nature of the evidence sought and the premises are being searched: Thomson Newspapers v. Canada, [1990] 1 S.C.R. 425. The criteria will be defined more rigorously as the expectation of privacy in the location increases. Personal searches and searches of dwelling places have the highest expectation of privacy.

Legislative Powers of Search and Seizure in Professional Regulation

An investigator employed by one of the professional colleges may enter the “place of work of the member or the premises of the member’s employer” when the member is a teacher (see OCTA, s.36(5)) or the “business premises of the member” if the member is covered by the RHPA (see the Health Professions Procedural Code, s.76(2)). Although these powers do not appear to have been judicially considered, they are probably reasonable under the Charter for the following reasons. First, the teaching and health professions are highly regulated. Second, there is a lower expectation of privacy in the workplace and, in particular, with respect to a highly regulated profession.

Section 77 of the Health Professions Procedural Code and s.37 of the OCTA are nearly identical. They permit investigators to obtain a search warrant from a justice of the peace where there are reasonable and probable grounds for believing that the member has committed an act of professional misconduct, is incompetent or is incapacitated, and that there is something relevant to the investigation at that location. Because search warrants require the oversight of a justice of the peace, searches conducted pursuant to such warrants are authorized by law.

Similar provisions in other provincial legislation have been held to comply with the Charter. See Lambert v. College of Physicians and Surgeons, [1992] S.J. No. 311 (Sask. C.A.) and Mitton v British Columbia (Securities Commission), [2001] B.C.J. No. 665 (B.C.S.C.). As a result, it is likely that the Ontario laws authorizing such searches are also reasonable.

The ability of the professional colleges to search is not without limits, however. In particular, there are statutory limitations to the manner of the search. Although investigators may enlist the assistance of others to enter a place by force (Health Professions Procedural Code, s.77(3); OCTA, s.37(3)), searches must be conducted by day unless specified otherwise in the warrant (Health Professions Procedural Code, s.77(2); OCTA, s.37(2)). The investigator must identify himself or herself upon request (Health Professions Procedural Code, s.77(4); OCTA, s.37(4)). These limitations help to ensure that the manner of the search is reasonable. However, the facts of a particular case may provide the opportunity to argue that the manner of search was unreasonable.

Some Practical Considerations

As a practical matter, professionals should not consent to having any location, documents, or records within their control searched. Nevertheless, they should allow the search to be conducted after expressly stating that they do not consent to the search. In the event that the search is illegal, the argument will need to be made later that the evidence should be excluded.

Obstructing an investigator is an offence under both the Health Professions Procedural Code (s.76(3)) and the OCTA (s.36(6)). Obstructing an investigator includes withholding, concealing or destroying anything that is relevant to the investigation. Under no circumstances should members destroy or actively conceal evidence. Material requested by the college during the course of a search should be produced while at the same time immediately voicing an objection to its production. Objections can be made during litigation to the admission of evidence that is inadmissible or illegally obtained. As it is an offence to obstruct an investigator, it is recommended that members to be as cooperative as possible in the first instance.

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