Kelly v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: Kelly v. Ontario]

Ontario Reports

Ontario Superior Court of Justice,

Belobaba J.

July 16, 2014

121 O.R. (3d) 653 | 2014 ONSC 3824

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — Exclusion under s. 24(1) of Charter — Police seizing doctor's computer pursuant to invalid search warrant and finding child pornography on hard drive — College of Physicians and Surgeons obtaining copy of hard drive and charging doctor with unprofessional conduct — Doctor seeking orders under s. 24(1) of Charter that copy of hard drive be destroyed and that college be prohibited from using evidence of child pornography in discipline proceedings — Application dismissed — Destruction not appropriate as it would permanently eliminate reliable and probative evidence that might be admissible in disciplinary proceedings — Prohibition not appropriate as discipline committee was in best position to determine whether admission of impugned evidence in administrative context would bring administration of justice into disrepute — Canadian Charter of Rights and Freedoms, s. 24(1).

Acting pursuant to an invalid search warrant, police officers entered the home of the applicant, a doctor, and seized his computer. They found images of child pornography on the hard drive. Criminal charges against the applicant were withdrawn because of the bad search warrant. Meanwhile, the College of Physicians and Surgeons began its own investigation. It obtained a copy of the hard drive and charged the applicant with unprofessional conduct. The applicant applied for two remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms: an order that the copy of the hard drive be destroyed and an order prohibiting the college from using the evidence of child pornography before the discipline committee.

Held, the application should be dismissed.

Assuming for the purposes of this application that the prohibition remedy was available under s. 24(1) of the Charter and that the police acted in bad faith and misled the justice who issued the search warrant, the remedies sought were not just and appropriate in the circumstances. An order that the hard drive be destroyed would not be just and appropriate as it would result in the permanent elimination of reliable and probative evidence that might be admissible in the disciplinary proceedings. An order prohibiting the college from using the impugned evidence would not be just and appropriate as the discipline committee was in the best position to determine whether admission of the evidence in the context of its regulatory mandate would bring the administration of justice into disrepute. Even where there is serious police misconduct in a criminal proceeding and the unlawfully obtained evidence was or could have been excluded under s. 24(2) of the Charter, it does not follow that the same evidence will or should be excluded in the very different context of civil or administrative proceedings.

Mooring v. Canada (National Parole Board), 1996 254 (SCC), [1996] 1 S.C.R. 75; R. v. Conway, 2010 SCC 22; R. v. Mills, 1986 17 (SCC), applied.

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