Access to Crown Disclosure Briefs

A recent Alberta case reaffirms that regulators with the authority to compel information from registrants can require a registrant to give the regulator a copy of the Crown disclosure brief that the registrant received when facing criminal charges. In College of Physicians v Dr Ghassan Al-Naami, 2022 ABQB 438 (CanLII), the registrant, a pediatrician, was charged with various child pornography offences. Despite providing some assurances that the regulatory investigation would be put in abeyance pending the criminal trial, the regulator re-opened its investigation and sought the Crown disclosure brief from the registrant. The registrant objected.

The Court upheld the regulator’s authority to require production of the Crown brief. It was obviously relevant to the regulator’s investigation and the legislation required the production of it. The Court declined to address any concerns about the regulator discontinuing its previous assurances about putting the investigation in abeyance as that issue was not before the Court. The Court adopted the approach taken in College of Physicians and Surgeons of Ontario v. Peel Regional Police, 2009 CanLII 55315 (ON SCDC), that the public interest concerns about access to the Crown disclosure brief were properly addressed by the regulator notifying the Attorney General who, in this case, did not object to the regulator receiving it. The Court also found that the registrant’s right to silence in criminal proceedings did not reduce the regulator’s right to receive the document.

The Court also found that providing the Crown brief to the regulator did not constitute a breach of the Criminal Code prohibitions against distributing child pornography because the regulator “is a public interest regulator entrusted by the Alberta Legislature to maintain the confidentiality of sensitive information.”

It is noteworthy that regulators often have more success in obtaining the Crown disclosure brief from their registrants than directly from law enforcement.

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