Cooperating with the Police

The subject of when regulators should cooperate with police investigations raises complex policy and legal issues. On a policy level, regulators can be criticized for keeping secret information they possess about serious criminal conduct. On the other hand, immediate, automatic, and full disclosure might jeopardize regulatory investigations and may traumatize complainants and witnesses who do not wish for this disclosure to be made, such as in sexual abuse matters. Some regulators have developed policies to guide the timing and extent of any such disclosure.

In terms of legal aspects, many regulators have confidentiality obligations that may limit their ability to disclose information to the police voluntarily (e.g., in the absence of a search warrant), at least until the matters otherwise become public (e.g., through the discipline process). The reasons provided in R. v. El-Azrak, 2023 ONCA 440 (CanLII), provide some guidance.

There, a pharmacist was under investigation by the regulator for their management of narcotics, specifically fentanyl patches. At the same time, police were investigating the source of those narcotics as part of a drug trafficking investigation. The police investigation raised the possible involvement of the pharmacist and the police sought information from the regulator. The regulator provided some contact information about the pharmacist and a redacted drug usage report. The drug usage report essentially indicated that the pharmacist was dispensing a high volume of fentanyl patches but did not indicate to whom. Not all the information requested by the police was provided, in particular, information about third parties was not provided.

The police used the information from the drug usage report, along with other information they had obtained independently, to obtain a search warrant for the pharmacist’s home. That search discovered cell phones containing incriminating information. The pharmacist was convicted criminally of fentanyl trafficking and possession for the purposes of trafficking. The pharmacist sought to appeal the conviction on the basis that the search warrant, in particular the police reliance on the regulator’s information to obtain the warrant, breached the pharmacist’s constitutional protection against unreasonable search and seizure. The Court of Appeal upheld the validity of the search warrant and dismissed the pharmacist’s appeal of the conviction.

In doing so, the Court found that this regulator’s statute contained an exception to the confidentiality requirements permitting (but not requiring) disclosure to aid in a law enforcement investigation or proceeding, so long as the disclosure did not contain information about third parties. The regulator had discretion as to whether and to what extent it would make such disclosure. The pharmacist practised in a highly regulated environment. The pharmacist knew that the regulator “would be highly engaged, indeed, concerned with narcotic distribution, would be watching such distribution closely, and would be in a position to share information with the police”. As such, the pharmacist had a low expectation of privacy in the information disclosed.

The Court also found that the regulator exercised independent and informed judgment when deciding what information it would disclose to the police.

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