Criminal Search Warrants for a Regulator’s Files

It is generally accepted that the confidentiality provisions for provincial regulators are subject to federal criminal search warrant powers. Federal law is paramount over inconsistent provincial law. However, the case of Boisvert c. Brisson, 2020 QCCA 906, indicates that this is not necessarily the end of the matter.

In that case a nurse was disciplined for sexual abuse of vulnerable patients in a psychiatric facility. The patients communicated with the regulator confidentially. Two of the patients went to the police. Four did not. The police obtained a search warrant for the regulator’s files in order to conduct a criminal investigation. The regulator challenged the search warrant arguing that the protection afforded to the public in being able to remove the nurse from practice would be jeopardized if patients could not choose whether or not to participate in the criminal process. The patients might then not be willing to participate in the regulatory process.

The Court agreed that on a case by case basis, such warrants could be quashed because the privilege attached to the regulatory process outweighed the benefits to society of allowing the criminal process to proceed. Applying what lawyers call the “Wigmore test”, the Court protected the regulator’s files in this case.

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