CITATION: College of Veterinarians of Ontario v. Choong, 2019 ONSC 946

DIVISIONAL COURT FILE NO.: 306/18 DATE: 20190220

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Morawetz R.S.J., C. Horkins, Matheson JJ.

BETWEEN:

College of Veterinarians of Ontario

Appellant

– and –

Dr. Derek Choong

Respondent

Bernard LeBlanc, Natasha Danson, and Robin McKechney, for the Appellant

Michael Lacy and Maureen Salama, for the Respondent

HEARD at Toronto: December 19, 2018

c. hORKINS J.

introduction

Introduction

1The College of Veterinarians of Ontario (“College”) appeals a decision of the Discipline Committee of the College of Veterinarians (the “Discipline Committee”).

2The Respondent, Dr. Derek Choong, is a veterinarian licensed by the College.

3During an investigation the police collected evidence supporting an allegation that the Respondent accessed, possessed, made available and/or distributed child pornography. The evidence led to criminal charges against the Respondent. The charges were eventually withdrawn because the Crown concluded that the Respondent’s rights under s. 8 of the Charter had been violated and the evidence would not be admissible.

4The College subsequently commenced disciplinary proceedings against the Respondent and sought to rely on the evidence that the police had collected.

5The Respondent brought a motion before the Discipline Committee to exclude the evidence. It was agreed that the police had violated the Respondent’s s. 8 rights to be secure against unreasonable search and seizure. The sole issue before the Discipline Committee was whether the evidence should be excluded from the disciplinary proceeding under s. 24(2) of the Charter.

6The majority of the Discipline Committee held that the evidence was inadmissible and dismissed the allegations of professional conduct, since without the evidence the College had no basis to discipline the Respondent.

7The College asks this Court to set aside the Discipline Committee’s decision, declare that the evidence is admissible, and order a re-hearing of the allegations of professional misconduct before a fresh panel.

The Police Investigation

The Police Investigation

8The following is set out in the Agreed Statement of Facts that the parties presented to the Discipline Committee.

9In January 2012, the police in London Ontario received information that an Internet Protocol (“IP”) address was suspected of being involved in downloading and making available child pornography through a peer-to-peer computer network called Edonkey.

10The police investigation identified an IP address 99.250.32.29 in London with a Globally Unique Identifier known as a “GUID”. This IP address was suspected of downloading and sharing child pornography through the Edonkey network.

11On January 16, 2012, the police wrote to Rogers Communication Inc. and requested “the last known customer name and address of the account holder associated with IP address 99.250.32.29” on the date and time it had been used to connect the GUID to the Edonkey network.

12Rogers responded on January 17, 2012, and advised the police that the subscriber was “Dr. Derek Choong, [Residential Address], Ontario”. These reasons will refer to this address as the “Residential Address” throughout.

13Police surveillance conducted on January 30, 2012 confirmed that Dr. Choong resided at the Residential Address, with his family. Dr. Choong was observed leaving the home in a vehicle registered in his name. His wife was seen leaving the home with a child in another vehicle that was registered in her name.

14On February 14, 16, 17, 18 and 21, 2012, the police observed that the same GUID was in possession of additional suspected child pornography files. On each day, the GUID was connected to the Edonkey network using IP address 99.249.163.95.

15On February 24, 2012 the police emailed Rogers a Letter of Request for Account Information Pursuant to a Child Sexual Exploitation Investigation requesting “the last known customer name and address of the account holder associated with IP address 99.249.163.95 used on February 18, 2012 at 8:22 am and February 21, 2012, at 9:36 am”. These are the dates that the suspect GUID was connected to Edonkey and in possession of suspected child pornography files.

16On February 27, 2012 Rogers gave the following answer: “Derek Choong, [Residential Address], Ontario”.

17The police conducted further investigation on March 2, 2012 and found that the same IP address had been used on February 28, 2012 to connect with Edonkey and was in possession of a file suspected to contain child pornography.

18Relying on this investigation, the police swore an Information to Obtain a Search Warrant (“ITO”) and a search warrant was issued.

19On March 5, 2012, the police executed a search warrant at the Respondent’s [Residential Address]. The Respondent, his wife and children were home. The police found child pornography on two computers, one of which was determined to be associated with one of the IP address the police had been investigating. The police also found a USB in the Respondent's nightstand which had contained deleted images of child pornography and files related to the London Veterinary Association.

20The Respondent was arrested at the scene and was subsequently charged with accessing child pornography contrary to s. 163.1(4.1), making available child pornography contrary to s. 163.1(3), and possession of child pornography contrary to s. 163.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. The Respondent pleaded not guilty to the charges.

21The Crown eventually sought and was granted leave to withdraw all the charges against the Respondent.

Proceedings before the Discipline Committee/ Committee decision

Proceedings before the Discipline Committee/ Committee decision

22The College was informed of the charges against the Respondent after his arrest and it monitored the criminal proceedings.

23After the charges were withdrawn, the College obtained the evidence from the police. Based on this evidence, the Executive Committee of the College referred the allegations to the Discipline Committee on the grounds that the allegations demonstrated professional misconduct, pursuant to ss. 17(1)(44) (an act or omission relevant to the practice of veterinary medicine that, having regard to the circumstances, would be regarded by members as disgraceful, dishonourable or unprofessional) and (45) (conduct unbecoming a veterinarian) of O. Reg. 1093 under the Veterinarians Act, R.S.O. 1990, c. V.3.

24The College served the Respondent with a Notice of Hearing on May 30, 2016. On November 21, 2017, the Respondent brought a motion to exclude the evidence. He argued that the evidence was obtained through a breach of his s. 8 Charter rights, and was therefore inadmissible under s. 24(2) of the Charter.

25The Discipline Committee heard the motion on January 16-18, 2018. A three-member majority of the Discipline Committee agreed that the evidence was inadmissible under s. 24(2), while the two other Discipline Committee members dissented.

26The parties filed the Agreed Statement of Facts with the Discipline Committee and in para. 15 they agreed as follows:

It is agreed that London Police violated Dr. Choong’s rights under section 8 to be secure against an unreasonable search and seizure (i.e. a section 8 Charter violation) in the following ways:

(a) The police obtained the subscriber information in relation to the IP address from Rogers without obtaining a court order (R. v. Spencer);

(b) The police did not have a sufficient basis to conclude that [Residential Address], Ontario was the physical address where the internet service was being used as opposed to simply the address of the subscriber (USA v. Viscomi); and,

(c) The police failed to adequately explain how they obtained the GUID information and whether or not it was publicly broadcast or involved a search of the computer when it was connected to the Edonkey network as otherwise described in the ITO.

27Since the parties agreed that the Respondent's s. 8 rights had been violated in the course of obtaining the evidence, the only issue the Discipline Committee had to decide was whether the evidence should be excluded under s. 24 of the Charter, which provides:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

28The Discipline Committee considered whether it should exercise its jurisdiction to exclude the evidence according to a balancing of the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

(i) The seriousness of the Charter infringing state conduct;

(ii) The impact of the breach on the Charter protected interests of the individual; and

(iii) Society's interest in adjudicating the case on its merits.

29The Discipline Committee reviewed the three s. 8 breaches set out in the Agreed Statement of Facts and applied the Grant factors.

30Dealing with the first breach, the Discipline Committee found that failing to obtain judicial authorization when seeking the subscriber information from Rogers was a “good faith Charter breach”. In February 2012, when the police made their requests, the law did not require them to obtain judicial authorization in advance. In 2014, the law changed when the Supreme Court of Canada ruled that authorization was required (R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500).

31The Discipline Committee turned to the second breach: “The police did not have a sufficient basis to conclude that [Residential Address], Ontario was the physical address where the internet service was being used as opposed to simply the address of the subscriber.” They found that the second breach was “serious” and explained this finding as follows.

32First, the Discipline Committee found that the ITO was drafted in a way that was “materially misleading”. At para. 45 of the Reasons the Discipline Committee stated:

We found this to be materially misleading because while the IP address was assigned to Dr. Choong, there was no proof that it was actually being used at his address. Rogers only told the police that the relevant IP address had been assigned to Derek Choong. Had the issuing justice been told that Rogers only had the address of Dr. Choong as the accountholder, and not the address from where the internet was used, the issuing justice could not have issued the warrant to search Dr. Choong’s residence.

33Second, the Discipline Committee rejected the College’s position that it is reasonable to infer that the subscriber of an internet account uses the internet from the address that he has registered with the internet service provider. The Discipline Committee found that this was “an unreasonable inferential leap” that is not “legally permitted” based on the decision of United States v. Viscomi, 2015 ONCA 484, 126 O.R. (3d) 427.

34Third, the Discipline Committee held that the officer who swore the ITO should have known that he was not “making full, frank, and fair disclosure regarding the IP address” and this demonstrated a “lack of good faith on the part of the police”.

35The two dissenting members agreed that the ITO was materially misleading but not “intentionally misleading”.

36The third breach was a failure of the police to adequately explain in the ITO how they obtained the GUID information. The police identified the GUID as having been connected to the Edonkey file sharing network on various days and on each of these days the user was observed to be in possession of suspected child pornography files.

37The Discipline Committee determined that failing to “adequately explain how they obtained the GUID information” was not a serious s. 8 breach. Viewed together with the second breach, the Discipline Committee found that the third breach aggravated the seriousness of the police misconduct as a whole. This argued “strongly in favour of exclusion of the evidence obtained through the search.”

38The Discipline Committee found that the second factor of the Grant test strongly favoured excluding the evidence. The warrant was executed at the Respondent's residence and on his personal devices, which attract a strong expectation of privacy. However, the Discipline Committee reasoned that the Respondent was not facing criminal sanctions in this proceeding, which mitigated the impact on his Charter rights. The Discipline Committee stated that the “jeopardy is reduced because at worst the individual may be deprived of their right to practice.” The right to practice is a “privilege and not a constitutional right.”

39The Discipline Committee considered whether the College could have lawfully obtained the evidence through some other means. They noted that the College could have potentially obtained the evidence through its powers as a regulator of the profession. Specifically, it could have summoned the Respondent to produce all of his digital devices and this would not have required judicial authorization. The Discipline Committee found that this mitigates the impact on the Respondent's informational privacy interests but not his territorial privacy interests. While the College could have obtained the evidence by other lawful means, this is not what happened. Based on all of the evidence, the Discipline Committee concluded that the breach significantly impacted the Respondent's rights.

40Turning to the third Grant factor, the Discipline Committee stated that since the first two factors “push strongly toward the exclusion of evidence,” they had to be careful not to place “undue emphasis on the third Grant factor.” The Discipline Committee realized that the challenged evidence was “reliable and critical to the College’s case” against the Respondent. However, they were not convinced “that there is a greater societal interest in a professional disciplinary proceeding than there is in a criminal proceeding”. They observed that the Crown had withdrawn the charges on the basis of the same Charter breaches. Finally, the Discipline Committee held that society's interest in adjudicating the case on the merits was not sufficient to outweigh the first two Grant factors that favoured exclusion. As a result, the Discipline Committee decided that the evidence should be excluded, effectively ending the College's case against the Respondent.

41The dissenting opinion considered and balanced the Grant factors differently. The dissent concluded that the Charter-infringing conduct was not serious, as the police acted reasonably in the circumstances and were not intentionally misleading. The dissent agreed that the second Grant factor strongly favoured excluding the evidence. The dissent considered the third Grant factor to be most significant, as exclusion of the evidence would bring the administration of justice into disrepute, as well as undermining the public's confidence in "the College's mandate to regulate the veterinary profession in the public interest."

42The dissent would have dismissed the Respondent's motion to exclude the evidence, but opined that it would only have decided the matter on the charge of conduct unbecoming a veterinarian (s. 17(1)(45) of O. Reg. 1093). The dissent would not have adjudicated on the charge of an act or omission relevant to the practice of veterinary medicine that, having regard to the circumstances, would be regarded by members as disgraceful, dishonourable or unprofessional (s. 17(1)(44) of O. Reg. 1093), since the allegations did not relate to veterinary practice.

standard of review

Standard of Review

43The parties do not agree on the standard of review. Ordinarily, decisions of a professional regulatory body, such as the Discipline Committee of the College of Veterinarians, are reviewed on a standard of reasonableness.

44The Respondent argues that a reasonableness standard applies and deference is owed to the Discipline Committee.

45The College argues that a standard of correctness should apply because the Discipline Committee decided a legal issue that did not involve the interpretation of its home statute or fall within the scope of its specialized expertise.

46As explained in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the correctness standard applies to “constitutional questions regarding the division of powers between Parliament and the provinces” (at para. 58), “true questions of jurisdiction or vires” (at para. 59), questions of central importance to the legal system and outside the expertise of the administrative decision maker (at para. 60), and questions concerning the jurisdictional lines between two specialized decision makers (at para. 61).

47More recently, in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, the court considered the standard of review when an administrative decision maker, such as a discipline committee, applies Charter values to a specific set of facts and makes a discretionary decision. Questions decided by tribunals concerning whether legislation violates the Charter are constitutional questions and are reviewed on a correctness standard (Doré at para. 43). In contrast, decisions involving the application of the Charter, such as s. 24(2), are reviewed on the basis of reasonableness. As the court stated in Doré at para. 45, “the fact that Charter interests are implicated does not argue for a different standard.” The Supreme Court applied this approach in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, 423 D.L.R. (4th) 197.

48Following Doré, I proceed on the basis that the reasonableness standard applies.

grounds of appeal

Grounds of Appeal

49The College raises two grounds of appeal:

i. The Discipline Committee failed to differentiate or appreciate the differences between a criminal proceeding and a disciplinary proceeding in a self-regulated profession in its determination that the admission of the impugned evidence would bring the administration of justice into disrepute; and

ii. The Discipline Committee failed to properly apply the three-part test set out in Grant, having regard to the relevant principles in the civil/disciplinary context.

50The first ground of appeal is subsumed in the second ground. The first ground of appeal deals with the third part of the Grant analysis.

Analysis

Analysis

51I find that the Discipline’s Committee’s decision was unreasonable. When the Discipline Committee considered the second Charter breach, they relied on Viscomi, a decision dealing with extradition. Reliance on Viscomi in the context of an ITO and a s. 8 Charter breach is wrong in law as explained in R. v. Nguyen, 2017 ONSC 1341. This infected the Grant analysis and makes the decision to exclude the evidence unreasonable. I will now explain the basis for this decision.

52I start with Nguyen, a decision of Fairburn J., as she then was. The facts in Nguyen are very similar to those before this court. Mr. Nguyen was charged with possessing, accessing and making available child pornography. To prove these charges, the Crown relied on evidence seized pursuant to a search warrant that was executed at the address associated with the subscriber of the suspect IP address. Mr. Nguyen moved to exclude the evidence, arguing that his s. 8 rights had been breached.

53In Nguyen the police located an IP address and a GUID suspected of accessing child pornography. They asked the internet service provider (ISP) for the subscriber name assigned to this IP address on a specific date. The ISP informed the police that it was assigned to Daniel Colton at 66 Barr Crescent.

54The police went to the address and detected a secure Wi-Fi connection coming from the home. There were no insecure connections within 150 metres of the home, leading the affiant of the ITO to believe that there were no unauthorized users of the 66 Barr Crescent connection

55The affiant also ran inquiries into the residents of the home, including checking the registered owners of vehicles parked out front. Mr. Nguyen’s vehicle was seen parked in front of the home on October 17, 2013. There was no evidence in the ITO confirming that the sending and receipt of child pornography was taking place at the subscriber’s address.

56The ITO was sworn on October 25, 2013 and the warrant issued that day. It was executed and Mr. Nguyen was arrested on October 30.

57Mr. Nguyen relied on Viscomi and argued that reliance on the subscriber information was insufficient to establish the reasonable and probable grounds required to obtain a search warrant. At paras. 55-58, Fairburn J. reviewed Mr. Nguyen’s position and explained why the reliance on Viscomi for a s. 8 breach was “misplaced” in the circumstances:

[55] The Internet can be accessed from any place where there is an Internet connection. The applicant claims that subscriber information is nothing more than information as to who is being billed for Internet use. The applicant argues that subscriber information does not provide insight into where the Internet is being used. In other words, the applicant argues that while subscriber X may live at Y location, he may be accessing the Internet from his phone at Z location. The applicant says that to conclude that the location of the subscriber is the location where the Internet is being used, is a leap and does not amount to reasonable and probable grounds to believe. The applicant relies upon United State of America v. Viscomi, 2015 ONCA 484, in support of this position.

[56] The applicant’s reliance on Viscomi is misplaced. Viscomi arises in the context of an extradition case where the sole evidence connecting Mr. Viscomi to an Internet communication with a girl in the United States was the subscriber information. The US authorities were able to trace the communications with the child through a residential ISP in Ontario who provided Mark Viscomi as the subscriber with a specified residential address. The police confirmed the name and address through his Ontario driver’s licence. He was ordered extradited. Nothing else was relied upon in support of his extradition.

[57] The Court of Appeal considered a simple question: “was it open to the extradition judge to draw the inference that he drew from the information relating to the IP address and Mr. Viscomi’s residential address, namely that it was Mr. Viscomi who was the user of that IP address at the relevant time?” See Viscomi, at para. 11. Justice Blair held that “it was simply too great a leap to draw the inference that he was the user of the IP address at the relevant time” [emphasis in original]: Viscomi, at para. 18.

[58] It is important not to conflate the issue related to who is using a computer with the issue as to whether evidence will be found in a location to be searched. Mr. Viscomi’s extradition turned on whether he was the user of the computer that was used to communicate with the complainant. The fact that he was the subscriber of the IP address did not necessarily put him behind the computer. Even considering the relaxed standard for extradition, mirroring the test for committal, there was no evidence placing Mr. Viscomi behind the computer used for the communication: United States of America v. Shephard (1976), 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; United States of America v. Leonard, 2012 ONCA 622, at para. 31.

58At paras. 59- 61, Fairburn explained the difference between an application for a search warrant and trials, preliminary inquiries, and extradition hearings. Of note, she explained that, unlike Viscomi, there does not have to be proof that the “actual sending and receipt of the child pornography was from the address associated to the subscriber”:

[59] Applications for search warrants do not resemble trials, preliminary inquiries or even extradition hearings. They are investigative tools used to gather evidence. A s. 487 warrant is simply a means by which to search for and seize evidence with respect to the commission of an offence. As noted in Canadianoxy Chemicals Ltd. v. Canada (Attorney General), 1999 680 (SCC), [1999] 1 S.C.R. 743, at para. 21, at the investigative stage, authorities look at many issues, including the what and who, as well as whether the conduct is criminally culpable. Search warrants are “staple investigative tool[s]” used in answering these questions.

[60] There need not be any information that anyone in particular was involved in the offences related to child pornography. Unlike Viscomi, the ITO did not have to establish such a connection. Nor did there need to be proof that the actual sending and receipt of the child pornography was from the address associated to the subscriber. All that was required were reasonable grounds to believe that in that location, the police would find evidence related to the offence under investigation.

[61] Reasonable grounds to believe do not require proof beyond a reasonable doubt or on a balance of probabilities: R. v. Sadikov, 2014 ONCA 72, at para. 81. The ITO need only satisfy the issuing justice on a standard of credibly-based probability. As Lamer J. (as he then was) held in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167: “[t]he state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.”

[Emphasis added.]

59Finally, Fairburn J. explained in paras. 62-64 that the issuing justice is “permitted to draw reasonable inferences from the evidence in the ITO”:

[62] In assessing this issue, it is also important to recall that the issuing justice must make his or her decision based on the ITO as a whole and is permitted to draw reasonable inferences from the evidence in the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at pp. 364-65. In assessing the ITO and considering reasonable inferences, the reviewing court plays a limited and highly deferential role. It is not to consider the ITO de novo, or to consider whether it would have issued the warrant. Rather, the function of the reviewing court is to consider whether the issuing court could have done so: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. As LeBel J. held in Araujo, [2000 SCC 65], at para. 54, the question for the reviewing court is whether “there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge” [emphasis in original].

[63] In this case, it was entirely open to the issuing justice to grant the warrant on the basis of the information provided. There was ample credibly-based probability that at the location to be searched there would be evidence respecting the offences listed. The IP address came back to the location searched. Cst. Artkin confirmed a secure Wi-Fi connection in the area of the residence. It was open to the issuing justice to infer that there would be evidence of the offences in that location. The warrant could have issued on this basis and I defer to that decision.

[64] The challenge based on this issue cannot succeed.

[Emphasis added.]

60As noted, in this case the parties signed an Agreed Statement of Facts. There is only one reference to Viscomi in the Agreed Statement of Facts and it is found in the description of the second s. 8 breach as follows:

(b) The police did not have a sufficient basis to conclude that Residential Address, Ontario was the physical address where the internet service was being used as opposed to simply the address of the subscriber (USA v. Viscomi)

61It is fair to say that the parties relied on Viscomi in agreeing that this was a s. 8 breach. If reliance on Viscomi led them to agree that (b) was a s. 8 breach, then it was wrong in law for them to draw this conclusion.

62Several days before the hearing of this appeal, this court brought Nguyen to the attention of counsel and asked that they be prepared to address it at the hearing of the appeal.

63Counsel for the College was not aware of Nguyen when the Agreed Statement of Facts was signed and Nguyen was never brought to the attention of the Discipline Committee. Counsel for the Respondent were aware of Nguyen when the Agreed Statement of Facts was negotiated and signed.

64Respondent’s counsel do not say that the law as stated by Fairburn J. is incorrect. They offered no authorities to show that Nguyen should not apply to this case. Respondent’s counsel seem to suggest that, regardless of Nguyen, the agreed facts support the conclusion that the Discipline Committee reached. Further, they say that the facts in Nguyen are distinguishable because the ITO in Nguyen did not mislead the issuing justice, whereas the ITO in this case was misleading. I disagree.

65The Agreed Statement of Facts dealing with the second breach does not state that the police mislead the issuing justice. The Discipline Committee found that the ITO was “materially misleading” during the Grant analysis, while relying on Viscomi. The Discipline Committee found that the breach was serious because the ITO did not specifically tell the issuing justice that “while the IP address was assigned to Dr. Choong, there was no proof that it was actually being used at his address.” Relying on Viscomi, the Discipline Committee found that the issuing justice made an “unreasonable inferential leap” that is not “legally permitted”.

66The Discipline Committee made findings during this analysis that were premised on the assumption that Viscomi applied, when it did not. Nguyen makes it clear that an ITO for a search warrant does not need to establish that the subscriber is necessarily the user of the internet service. Rather, an ITO only requires reasonable grounds to believe that the police will find evidence related to the offence under investigation in that location.

67The ITO in this case did not draw any conclusions on who the user of the IP address was, nor was it required to. Given the law as stated in Nguyen, it was unreasonable for the Discipline Committee to describe the ITO as “materially misleading”. In doing so they incorrectly assumed that Viscomi applied.

68The Discipline Committee’s reliance on Viscomi was wrong in law and this unreasonably infected the Grant analysis. On this basis alone, the decision must be set aside.

69There is a second reason why the Discipline Committee’s decision is unreasonable. When the third Grant factor was considered, the Discipline Committee stated that it was “not convinced that there is a greater societal interest in a professional disciplinary proceeding than there is in a criminal proceeding in the circumstances of this case — and the Crown withdrew the criminal charges on the very same Charter breaches conceded by the College.”

70The Discipline Committee infers that the Crown viewed the societal interest as insubstantial. The Discipline Committee did not know how the Crown balanced the Grant factors. The charges were withdrawn before a criminal court ruled on the issue.

71Moreover, even if it can be discerned that the Crown determined that there was little societal interest in proceeding with the criminal charges, the same reasoning is not strictly applicable to the disciplinary context. The Discipline Committee did not consider the distinction as Justice Belobaba explained in Kelly v. Ontario, 2014 ONSC 3824, at para. 36:

Nonetheless, even where there is serious police misconduct in a criminal proceeding and the unlawfully obtained evidence is or could have been excluded under s. 24(2), it does not follow that the same evidence will or should be excluded in a civil or administrative proceeding. The strong message of the Supreme Court in the Mooring to Conway line of cases discussed earlier is two-fold: one, evidence excluded in criminal proceedings may well be admitted in administrative proceedings because the context of the s. 24(2) inquiry in the civil or administrative context is very different; and two, given that specialized administrative tribunals have primary jurisdiction to make s. 24(2) decisions, they should be allowed to do so.

72This is an unusual situation. The College does not seek to resile from the Agreed Statement of Facts because it states that it is bound by the agreement. Counsel for the Respondent also say that the parties are bound by the agreement. However, counsel agree that the Court is not bound by an agreement when the foundation for the agreement is wrong in law. As Code J. stated in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at para. 35, the Court is not bound by “erroneous concessions, especially in constitutional litigation”. In these circumstances, no deference is owed to the Discipline Committee.

73In summary the Discipline Committee’s reliance on Viscomi was wrong in law and this led to an unreasonable decision. The Discipline Committee’s analysis of the third Grant factor heightens the unreasonableness.

conclusion

Conclusion

74The appeal is allowed and the decision of the Discipline Committee is set aside. The matter shall be returned to the College for a new hearing before a different Discipline Committee panel of the College, for the purpose of conducting the Grant analysis and deciding the Respondent’s motion to exclude the evidence.

75In the circumstances of this appeal, I make no costs order.

___________________________ C. Horkins J.

I agree: ___________________________

Morawetz R.S.J.

I agree: ___________________________

Matheson J.