In the case under review, a 75 year old physician was found guilty of acts of professional misconduct in that he had engaged in sexual acts with 3 boys, one of whom had been a patient. The incidents had occurred many years before the discipline hearing. In addition, the College had learned about them about 8 years before the hearing took place, as the police were conducting a criminal investigation.
The case considers many issues, too numerous to address here, but which include issues of delay, abuse of process, consideration of improperly obtained evidence, and whether the discipline committee was authorized to consider constitutional questions.
One of the more significant rulings was that the summons power did not infringe the constitutional right to freedom from unreasonable search and seizure (S.8 Charter). In a thorough review and analysis of the applicable case law, the Ontario Supreme Court held that the framework in which the summons power operated was not unbridled, and that a physician had only a limited expectation of privacy in his/her professional practice in view of a regulator's obligation to ensure public protection.
The Court also held that the discipline committee is authorized to consider questions of law including constitutional questions, and that the delay of 8 years from the time the College learned of the events and took its own proceedings, although of concern was not an inordinate delay.
The Court upheld the Committee's decision to cancel the registrant's license noting that it had considered all aggravating and mitigating factors, and that its concerns with denunciation and specific deterrence were reasonable. It should be noted that the Committee's award of $95,000.00 in costs against the physician was not disturbed, but the physician did not provide any evidence upon which that finding could be considered and if appropriate, disturbed.
Savant v. College of Physicians & Surgeons of Ontario
2011 ONSC 323
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