Police have extraordinary powers to obtain evidence of a suspected crime. However, the judicial scrutiny of the exercise of that authority is correspondingly rigorous. Issues arise when regulators wish to use police-obtained evidence that may have been illegally obtained. That issue arose in Kilian v. College of Physicians and Surgeons of Ontario, 2026 ONSC 5716 (CanLII).
Police were informed that the registrant “had been observed at a YMCA surreptitiously taking photographs of the buttocks of young girls who were lying on the ground while exercising. The girls were said to be approximately 14 years of age.” The police executed a search warrant at the registrant’s home where images consistent with voyeurism were obtained. However, the search warrant was defective (it was missing an attachment), and the Crown withdrew the resulting criminal charges. The regulator issued interim restrictions on the registrant’s medical practice requiring strict supervision and notification to patients. The registrant sought judicial review of the interim order.
The Court upheld the interim order, making the following points:
- Even though the interim order was made 22 months after the regulator was informed of the issue, there was no timeliness issue. Initially the registrant was not practising and then the registrant gave an undertaking not to practise. Once the registrant indicated that they were going to resume practise, the regulator acted promptly.
- The regulator did consider that the evidence may have been obtained by the police contrary to the Canadian Charter of Rights and Freedoms. It considered the different context in which the evidence was being used (i.e., in a protective professional regulation context). There had not yet been an actual determination that the evidence was illegally obtained.
- The regulator provided a plausible explanation as to why the conduct, which did not occur in a practice setting, was relevant to the practise of the profession. The regulator said, in part: “We have concerns about him treating any minor patients, as this pattern of behaviour can be a sign of inappropriate thinking processes regarding young people.”
- The severity of the interim order did not make it unreasonable. “The purpose of interim orders is to protect patients, and the ICRC can make any order that is necessary to achieve this purpose regardless of the effect it has on a physician, including suspension of the physician’s licence.” The Court also said: “The issue is not whether this court would have imposed an order with fewer restrictions, but whether the interim order that was made ‘falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’….”
- The registrant could ask the regulator to reconsider its decision by bringing fresh information.
- Even if the registrant did not ask for it, the regulator was obliged to conduct its investigation and any discipline hearing expeditiously.
- It was still open to the registrant to argue that the evidence was inadmissible at a discipline hearing because of the manner in which it was obtained. The issue before the Court was only whether the evidence could be used to make an interim order.
While regulators should always turn their mind to whether they can rely on evidence that may have been obtained illegally, there are circumstances in which it can, and should, rely on such information to protect the public.
