The authority and process for investigators to access and copy the electronic devices of registrants is an evolving area of law for regulators. A discipline panel decision provides a detailed analysis of the issues that might be useful for other regulators: College of Physicians and Surgeons of Ontario v. Khulbe, 2024 ONPSDT 17 (CanLII).
The regulator received information alleging that a physician engaged in sexual behaviour and failed to maintain boundaries with a patient and former patient. The information indicated that some relevant communications had been conducted electronically.
The regulator wished to “image” (or copy the contents of) the physician’s electronic devices. The investigators arrived at the physician’s office unannounced, provided a copy of their appointment documents, and advised the physician to contact legal counsel. The investigators did not take a formal statement from the physician (although the physician did make some incriminating statements before legal counsel arrived). The investigators waited until legal counsel appeared before imaging the devices, including the physician’s “personal” devices. A third party was retained to conduct the actual imaging and to retain the information independently of the regulator. The third-party representatives were formally appointed as investigators.
The physician sought to exclude the information gleaned from the devices from use at her subsequent discipline hearing. The panel rejected the first argument that the physician had been detained by the investigators contrary to sections 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The panel concluded that, regardless of what the physician might have subjectively felt, objectively speaking she had not been detained. Despite being under a duty to answer questions (i.e., provide the passwords for her devices), the investigators were not police officers, they had not constrained her movements, and they waited until she spoke with legal counsel before accessing the devices. [One distinction between this profession and many others is that there is a reasonable expectation that most physicians can access legal counsel promptly.]
The panel also found that there had been no unreasonable search and seizure contrary to section 8 of the Charter. The panel did find that there was a reasonable expectation of privacy in the physician’s electronic communications with patients and former patients. Particularly in small communities, physicians can reasonably have personal communications with patients (e.g., if they belong to the same social networks). However, the regulatory regime authorizes investigators to access such information, when relevant to an investigation, based on an investigator’s appointment made on reasonable and probable grounds and which, in this case, was approved by a statutory committee.
The panel found that the distinction between personal and work devices was not feasible. Registrants do use work devices for personal communications and those personal communications ought to be protected when irrelevant. And many registrants also use personal devices for practice-related purposes. In any event, in this investigation, personal communications with the patient were the focus of the investigation.
The panel was further reassured by the safeguards employed when searching the devices. They included using a third party to hold and conduct the searches of the information. The search terms used were likely to retrieve relevant information (e.g., the names and phone numbers of the patients). Indeed, the investigators consulted with defence counsel on the search terms in advance. Even then, the third party was directed to exclude irrelevant information and communications between the physician and her legal counsel.
The physician also argued that the regulator had exceeded the terms of the consent and the agreement (relating to ongoing involvement of the physician’s counsel in the search process) it made with the physician’s lawyer at the time of the imaging. However, the panel found that the investigators had acted on the basis of their legal authority and that they had not agreed to the disputed terms.
Pending greater judicial guidance, the approach taken by the panel in this case might be of non-binding assistance to other regulators.