Court File and Parties

COURT FILE NO.: CR-17-002740 DATE: 20190617 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – GEORGE OTTO Defendant

Counsel: Geoffrey Roy and Amanda Hauk, for the Public Prosecution Service of Canada Daniel Stein, for the Defendant

HEARD: February 22 and April 25, 2019

RULING ON ADMISSIBILITY AND USE OF COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO INVESTIGATIVE FILE

DI LUCA J. :

[1] Dr. George Otto is charged with trafficking in fentanyl and possession of fentanyl for the purpose of trafficking. Following commencement of criminal proceedings against Dr. Otto, the College of Physicians and Surgeons of Ontario [“CPSO”] commenced a parallel but separate professional discipline investigation based on the nature of the criminal complaint. As part of the investigation, the CPSO appointed an investigator who demanded that Dr. Otto turn over certain patient files. The CPSO investigator, with the assistance of an appointed assessor, also interviewed Dr. Otto. The interview was compelled by statute. Following the interview, the assessor prepared a report in which he offered his opinion on whether Dr. Otto’s conduct fell below professional standards.

[2] The police were advised of the general nature of the CPSO investigation and on December 12, 2017, they obtained a production order for the investigative file. On an earlier occasion, the police had also obtained a production order for data relating to Dr. Otto’s Narcotic Monitoring System which was in the possession of the CPSO. [1]

[3] The Crown seeks a ruling on the voluntariness of Dr. Otto’s compelled statement. The Crown argues that the statement was not made to a person in authority as that phrase is understood in the case law. Further, the Crown notes that the mere fact of statutory compulsion does not render the statement involuntary within the meaning of R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3. The defence argues that the compelled statement is by definition involuntary, and therefore inadmissible for any purpose.

[4] The defence also raises Charter arguments seeking exclusion of the statement for all purposes due to its statutorily compelled nature. In this regard, the defence relies primarily on R. v. White, [1999], 2 S.C.R. 417 and R. v. Soules, 2011 ONCA 429. The defence further challenges the production order and suggests that the conduct of the police and CPSO violates the principles set out in R. v. Jarvis, 2002 SCC 73 and R. v. Ling, 2002 SCC 74. As such, the defence argues that the entire fruits of the production order should be excluded for all purposes.

[5] The Crown accepts that the use of a statutorily compelled statement raises self-incrimination concerns. However, rather than accepting exclusion for all purposes, the Crown seeks to use the statement within the confines of R. v. Nedelcu, 2012 SCC 59. As such, the Crown only seeks to use the statement to cross-examine Dr. Otto for impeachment purposes, limited to the extent that the cross-examination does not engage the right against self-incrimination.

[6] The Crown also indicates that it may use patient files that were turned over to the CPSO investigator [2], but argues that these files do not raise any self-incrimination issues. Lastly, the Crown indicates that it places no reliance whatsoever on the assessor’s report.

[7] For the reasons that follow, I find that Dr. Otto’s statement was not made to a person in authority. I am also satisfied that there is no reasonable doubt about its voluntariness. However, I am satisfied that this case is governed by R. v. White, supra, and as such the compelled statement by Dr. Otto is excluded under s. 24(1) of the Charter and is not admissible for any purpose.

[8] I decline to quash the production order used to obtain the CPSO file. Even after information derived from the compelled statement is excised from the Information to Obtain (“ITO”), in accordance with R. v. Soules, supra, there remains a sufficient basis to support issuance. Lastly, I am not satisfied that the conduct of the police and the CPSO engaged the principles discussed in R. v. Jarvis and R. v. Ling, supra, and thereby violated Dr. Otto’s Charter rights.

Background Facts

[9] Dr. Otto is a family physician and registered member of the CPSO. He practices out of a medical office located at 2111 Jane Street in Toronto.

[10] Following a police investigation into certain fentanyl trafficking activities, the police arrested a number of individuals including a pharmacist, Ms. El-Azarak, her brother Omar El-Azarak, a purported patient named Liridon Imerovik, and others involved in the distribution of fentanyl. On March 23, 2016, sometime after the initial arrests, Dr. Otto was also arrested and charged with trafficking fentanyl, possession of fentanyl for the purpose of trafficking and two counts of conspiracy to commit an indictable offence. As a result of the investigation, the police believed that Dr. Otto was paid to provide false prescriptions that were filled by Ms. El-Azarak and then resold or trafficked to others. The scheme involved a significant amount of fentanyl as well as cash.

[11] On April 5, 2016, following Dr. Otto’s arrest, the lead investigator, Detective Ibbott, emailed Steven Wright, an investigator with the CPSO, and advised him of the nature of the charges, bail conditions and next court date. Mr. Wright viewed the email from Det. Ibbott as providing reasonable and probable grounds to commence an investigation against Dr. Otto for misconduct and/or incompetence.

[12] On April 25, 2016, Mark Bellefontaine, an investigator with the CPSO, made a request to the Registrar of the CPSO to appoint a team of investigators to assess Dr. Otto’s general practice, including his prescribing of narcotics. In his request Mr. Bellefontaine referred to a number of documents including Det. Ibbott’s email, a copy of the court information, a police press release and an article that appeared in the Toronto Star.

[13] On May 10, 2016, a team of investigators were appointed pursuant to s. 75(1)(a) of the Health Professions Procedural Code (“HPPC”) under the Regulated Health Professions Act. Pursuant to ss. 76 – 78 of the HPPC, investigators are granted certain powers including warrantless entry into a member’s office and seizure of documents. A member has a statutory duty to cooperate under s. 76(3.1).

[14] On May 13, 2016, Dr. Otto was advised of the CPSO investigation. He was asked to complete a “Physician Questionnaire” and was advised that an investigator would be attending at his office at an agreed upon time. Dr. Otto’s counsel engaged in correspondence inquiring about the basis for the investigation and was provided with copies of the material provided to the Registrar.

[15] On November 29, 2016, Mr. Bellefontaine contacted Dr. Otto’s counsel to make arrangements to attend at his office to seize paper and electronic copies of certain patient records. These records were obtained on December 8, 2016. Further follow up was undertaken in relation to four patient charts that were sought by the CPSO. Dr. Otto eventually confirmed that he did not have records for those patients.

[16] On February 21, 2017, Dr. Mark Nassim was appointed as a Medical Inspector or Assessor as part of the investigation into Dr. Otto’s conduct. Dr. Nassim was tasked with reviewing the investigative file, and then conducting an interview of Dr. Otto to assess whether Dr. Otto met the standard of practice in relation to prescribing fentanyl.

[17] An interview of Dr. Otto was arranged for May 8, 2017. Prior to the interview, Dr. Otto attended for his preliminary inquiry on the criminal charges. On April 26, 2017, he was committed to stand trial and ordered to appear in the Superior Court of Justice on June 7, 2017.

[18] On April 27, 2017, Dr. Otto’s counsel telephoned Mr. Bellefontaine and requested that the interview be delayed pending the outcome of the criminal proceedings. Mr. Bellefontaine took the position that the CPSO investigation was not related to the criminal charges, but rather dealt with Dr. Otto’s standard of care regarding the prescription of narcotics. An exchange of correspondence followed and Mr. Bellefontaine confirmed that the CPSO had a duty to protect the public and, as such, it would continue its investigation. Mr. Bellefontaine also noted that the resolution of the criminal charges would not necessarily be dispositive of the CPSO’s investigation.

[19] Mr. Bellefontaine noted in his correspondence that Dr. Otto was not under summons to attend, but was under a statutory duty of cooperation which included attending for the interview.

[20] The interview took place on May 8, 2017, in the presence of Dr. Otto’s counsel. At the outset of the interview, Dr. Otto’s counsel indicated that he was there by virtue of his duty to cooperate. The interview lasted for approximately 2½ hours and was conducted primarily by Dr. Nassim. The bulk of the interview focussed on Dr. Otto’s fentanyl prescribing practices, and he was asked specifically about his practices in relation to a number of patients.

[21] On May 21, 2017, Dr. Nassim set out in writing his opinion that Dr. Otto had fallen below the standard of care with respect to 22 patient files that had been reviewed with Dr. Otto during the interview. He concluded that Dr. Otto’s prescriptions of fentanyl had demonstrated a lack of knowledge, skill and judgment, and had exposed his patients to risk.

[22] On May 23, 2017, a copy of Dr. Nassim’s report was provided to Dr. Otto’s counsel who was invited to comment. Counsel declined to comment in view of the outstanding criminal charges and renewed the request to suspend the investigation until the completion of the criminal charges.

[23] Det. Ibbott prepared an ITO and production order in relation to the CPSO’s investigative file on December 12, 2017. In the ITO, Det. Ibbott indicates that he was advised by Mr. Bellefontaine that the CPSO had obtained 26 patient charts from Dr. Otto’s practice and that Dr. Nassim had interviewed Dr. Otto and completed a report. Det. Ibbott was of the view that the CPSO investigative file would “corroborate” evidence gathered to date by the police and provide evidence regarding Dr. Otto’s fentanyl prescribing practices.

Voluntariness of the Compelled Statement

[24] This issue can be dealt with briefly. First, it is only statements that are made to a person in authority that must meet the voluntariness standard. Where a person makes a statement to someone who has no apparent authority over the course of the criminal investigation, the concerns that animate the need for a voluntariness determination are not present.

[25] In R. v. Hodgson (1998), 127 C.C.C. (3d) 447 (S.C.C.), the Supreme Court per Cory J. held at para. 32 that a person in authority is anyone who is formally engaged in the “arrest, detention, examination or prosecution of the accused.” The Court went further and noted that the definition could be enlarged to “encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement.”

[26] The central issue in determining whether a statement is made to a person in authority, is the extent to which the accused believes the person he or she is speaking to can influence or control the proceedings against the accused, see R. v. Belle, 2010 ONSC 1618 at paras. 28-30. This issue is assessed on a modified subjective approach. As stated in Watt’s Manual of Criminal Evidence at Chapter 37.02:

The test is subjective but not entirely so. What is involved is an inquiry into D’s state of mind. The matter must be resolved by considering it from D’s perspective. The core issue is whether D honestly believed, when s/he made the statement, that the person with whom s/he spoke had some degree of power over him/her. But the matter is not entirely subjective. There must also be a reasonable basis for the belief that D asserts, hence it is necessary for the trial judge to examine objective factors.

[27] In Hodgson, supra, the Supreme Court provided the following guidance at para. 34:

Thus, where the accused speaks out of fear of reprisal or hope of advantage because he reasonably believes the person receiving the statement is acting as an agent of the police or prosecuting authorities and could therefore influence or control the proceedings against him or her, then the receiver of the statement is properly considered a person in authority. In other words, the evidence must disclose not only that the accused subjectively believed the receiver of the statement to be in a position to control the proceedings against the accused, but must also establish an objectively reasonable basis for that belief. For example, if the evidence discloses a relationship of agency or close collaboration between the receiver of the statement and the police or prosecution, and that relationship was known to the accused, the receiver of the statement may be considered a person in authority. In those circumstances the Crown must prove beyond a reasonable doubt that the statement was made voluntarily.

[28] In terms of onus, the Crown bears the onus of proving voluntariness beyond a reasonable doubt. In terms of whether the statement was made to a person in authority, the defence has an evidential burden to point to evidence capable of raising a reasonable doubt on the issue. Where the accused meets this evidential burden, the ultimate or persuasive burden remains on the Crown to prove beyond a reasonable doubt that the statement was not made to a person in authority or, if so, was made voluntarily, see R. v. T. (S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688 and Hodgson, supra, at para. 48.

[29] While the test is mainly subjective, direct evidence from the accused is not required. The accused’s subjective beliefs can be established indirectly by reasonable inference, see Hodgson, supra, at paras. 45-47, R. v. Laidley, [2001] O.J. No. 6281 and R. v. De Zen et al., [2010] ONCJ 437 at paras. 17-24. In some cases, it will be obvious that the person the accused is speaking to is a person in authority, for example where the accused is speaking with a police officer. In other cases, the connection will be less obvious and will require evidence. In Hodgson, supra, at para. 47, wherein the following guidance is provided:

It should be emphasized that only rarely will a trial judge have heard sufficient evidence to trigger the need for a voir dire on the person in authority issue where the receiver of the statement is not a conventional person in authority. This follows because the evidence must establish more than the mere status of the receiver of the statement. Status or personal authority alone will not as a general rule provide evidence from which it can be inferred that the receiver of a confession is, in the eyes of the accused, a person in authority. Rather, in order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt. The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team. Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the person in authority issue, subject to waiver of the voir dire by counsel for the accused.

[30] Turning to the facts in this case, the defence argues that the CPSO investigator and appointed assessor are obviously persons in authority. While Dr. Otto did not testify on the voir dire, the defence argues that it has, nonetheless, met its evidential burden and placed the issue in play. Moreover, the defence argues that the Crown has not discharged its ultimate burden of proving that the statement was not made to a person in authority.

[31] I disagree. On the record before me, there is no evidence that the CPSO investigator, Mr. Bellefontaine and the appointed assessor, Dr. Nassir, were acting in concert with the police or acting as agents on behalf of the police. Unlike the scenario in R. v. DeZen, supra, at paras. 25-30, there is nothing in the record that supports an inference that either Mr. Bellefontaine or Dr. Nassir had any control or influence over the conduct or outcome of the criminal proceedings.

[32] I also have no direct evidence from Dr. Otto that he subjectively believed that the CPSO investigator and the appointed assessor had any degree of influence or control over the police investigation, which by the time of the interview had already been mainly completed and indeed was past the preliminary inquiry stage.

[33] The evidence suggests that while the CPSO investigation was commenced in response to the criminal investigation, the police did not direct or influence the CPSO investigation in any fashion.

[34] I am satisfied beyond a reasonable doubt that Mr. Bellefontaine and Dr. Nassir were not persons in authority.

[35] Notwithstanding this finding, I also am satisfied beyond a reasonable doubt that the statement to Mr. Bellefontaine and Dr. Nassir is voluntary. There is no suggestion that any of the classical issues that raise voluntariness concerns arise here. Dr. Otto attended the interview with his counsel at an agreed upon time and date. There are no threats, promises or inducements. There is no oppression or trickery. Dr. Otto has an operating mind.

[36] The only issue is whether the mere fact that the statement was statutorily compelled automatically renders it involuntary. This argument has been answered by binding and long standing authority which directs that statutory compulsion does not, by itself, render a statement involuntary, see Marshall v. The Queen (1960), 129 C.C.C. 232 at p. 235, Walker v. The King, [1939] S.C.R. 214, and R. v. Slopek (1971), 21 C.C.C. (2d) 362 (Ont.C.A.). [3]

[37] As such, even if the statement was a statement made to a person in authority, I find that it was voluntary.

Charter Application

[38] I turn next to Charter arguments. First, the defence argues that the contact between the CPSO and the police raises concerns that the CPSO investigation was used to advance the criminal investigation contrary to the Charter principles discussed in R. v. Jarvis and R. v. Ling, supra.

[39] To be clear, the defence accepts that the CPSO has a valid public protection mandate that supports its authority to investigate doctors and pursue professional discipline proceedings where appropriate. Indeed, the defence does not suggest that the CPSO wrongly or improperly conducted the investigation into Dr. Otto based on the commencement of the criminal proceedings. Rather, the defence objects to the alleged use of the CPSO’s investigative powers in support of the criminal investigation.

[40] This argument can be addressed in short order. This is not a case where there is evidence of a significant degree of cooperation or agency between the CPSO and the police. The police were not in any way directing the CPSO. There is no suggestion that the police used the CPSO, and more particularly, the CPSO’s powers of compulsion to advance the criminal investigation. The investigations were essentially independent of one another.

[41] The police were advised by the CPSO that it had conducted an investigation into Dr. Otto, and had concluded that his conduct fell below the standard of care for a physician prescribing fentanyl. Based on the information provided, the police obtained judicial authorization for the production of the CPSO investigative file.

[42] This is not like the scenario in Jarvis, where the court addressed the risk that the audit branch of the CRA could continue to compel a person to produce documents when the investigative branch had already decided to proceed with charges against person. The concern in that scenario is obvious, as the person is being compelled to produce documents that are then simply turned over from one branch of the CRA to another for the purpose of advancing an investigation.

[43] I do not read Jarvis as prohibiting any communication between an agency that is engaged in a regulatory investigation and an agency that is involved in a criminal investigation. The prohibition arises when the lines between the two agencies become blurred and the tools of the regulatory investigator become co-opted for the purpose of the criminal investigation, without respecting the accused’s Charter rights. That did not happen here.

The Production Order

[44] While the defence did not initially seek to quash the production order, as the argument developed the defence ultimately took the position that in view of R. v. Soules, supra, any reference to the contents of the compelled statements could not be relied upon to establish the grounds for issuance of the production order. The defence further argued that once these excisions were made, there would be an insufficient basis upon which the production order could have issued.

[45] While the Soules decision has been the subject of criticism, it remains the law in Ontario and is binding, see R. v. Roberts, 2018 ONCA 411, at para. 48. Appellate courts in other provinces have also adopted the same approach, see R. v. Powers, 2006 BCCA 454 and R. v. Porter 2019 ABCA 279. The Crown agrees that Soules remains the law in Ontario, but argues that it is inapplicable on the facts of this case based on the Court of Appeal’s decision in R. v. Jones.

[46] Assuming, without deciding that Soules applies to the facts of this case and thereby prohibits reliance on statutorily compelled statements for the purpose of establishing grounds, I am prepared to assess the ITO to see what excisions should be made. In this regard, I adopt the review of the applicable legal principles found in my earlier Garofoli Ruling in this case, which is reported at R. v. Otto, 2019 ONSC 2514.

[47] The production order ITO contains a summary of the entire police investigation in relation to the fentanyl trafficking scheme that Dr. Otto was allegedly a part of. There is no issue that this summary sets out sufficient grounds to believe that Dr. Otto is involved in the scheme with others, including Liridon Imerovik and Shereen El-Azarak.

[48] In terms of the grounds supporting a belief that the CPSO is in possession of material that will afford evidence of the offences under investigation, the affiant relates the general nature of the CPSO investigation at paras. 15 and 94-99. The source for this information is noted as a conversation with Mr. Bellefontaine from the CPSO.

[49] Paragraph 97 of the ITO states:

An audio captured interview of Dr. Otto was conducted by the Assessor and a CPSO investigator as part of this clinical investigation.

[50] Paragraph 98 of the ITO reveals that based on the investigation conducted by the CPSO, the assessor came to the conclusion that Dr. Otto did not meet the requisite standard of practice. This paragraph also notes that the investigative file contains the assessor’s opinion report, Narcotic Monitoring System Data, patient charts and a transcript of the interview with Dr. Otto.

[51] The actual content of the interview with Dr. Otto is not disclosed in the ITO. That said, it is implicit that the assessor’s opinion would have been based, at least in part, on the interview with Dr. Otto. In any event, if mention of the fact that Dr. Otto gave a compelled statement is excised, [4] I am of the view that there remains a supportable basis for issuance of the production order to obtain the CPSO investigative file. Further, even if a mention of the assessor’s opinion or conclusion should be excised because it is linked to the compelled statement by Dr. Otto, there remains nonetheless a supportable basis for the issuance of the production order.

[52] The evidence before the issuing justice amply established a basis for believing that Dr. Otto was involved in the commission of an offence. It also established that the CPSO had commenced an investigation into Dr. Otto’s fentanyl prescribing practices, and had an investigative file containing material relating to its investigation. The excisions noted above do not undermine the basis for issuing the production order. In my view, the production order was validly issued.

The Use of Fruits of the Production Order

[53] As indicated, the production order resulted in three items of relevance to this application; the assessor’s opinion report, the patient files and the interview with Dr. Otto. The Crown is not seeking to use the opinion report in any fashion, and as such I need not determine its admissibility.

[54] In terms of the patient files, the defence argues that Dr. Otto was compelled to create and eventually turn over the files, and as such his Charter rights are implicated by the use of these files at trial. This argument is readily answered by R. v. Fitzpatrick, [1995] 2 S.C.R. 154 and R. v. D’Amour (2002), 166 C.C.C. (3d) 477 (Ont.C.A.).

[55] Dr. Otto was required to keep and maintain patient files as part of participating in the highly regulated profession of medicine. The creation of patient records was not caused or compelled by the state in the context of an adversarial setting or investigation. Dr. Otto chose to enter a highly regulated profession that imposes on its members a high degree of record-keeping obligation and regulatory compliance. There is no violation of his s. 7 Charter rights when the state obtains these records under a valid production order.

[56] I turn lastly to the use of the compelled statement. This is a difficult issue. The Crown fairly takes the position that it cannot use the statement against Dr. Otto as part of its case. However, the Crown argues that in view of R. v. Nedelcu, supra, should Dr. Otto testify, the Crown is free to cross-examine him on the compelled statement as long as that cross-examination is for the purpose of undermining his credibility and not incrimination. The Crown argues that Nedelcu has changed the law not only in relation to evidence given in another proceeding, but also in relation to the permissible use of a compelled investigative statement.

[57] The defence argues that this case involves a straightforward application of the principles set out in R. v. White and applied in R. v. Soules. A compelled statement cannot be used for any purpose in a criminal trial. The defence argues that Nedelcu deals with the right against self-incrimination within the context of s. 13 of the Charter, whereas White deals with self-incrimination in the context of s. 7 of the Charter. The defence notes that the White decision is not mentioned in Nedelcu, and argues that if the Supreme Court had intended to change long-standing precedent it would have said so.

[58] I start my analysis of this issue by reviewing the principle against self-incrimination. The Supreme Court of Canada has declared the principle against self-incrimination to be “the single most important organizing principle in criminal law”, and has recognized it to be one of the principles of fundamental justice enshrined in s. 7 of the Charter, see R. v. S.(R.J.) (1995), 96 C.C.C. (3d) 1 (S.C.C.). The Supreme Court has also recognized that the principle against self-incrimination is not fixed. Rather, it is context driven and can mean different things in different situations, see White, supra, at para. 45.

[59] A review of the s. 7 Charter self-incrimination jurisprudence reveals the following core principles:

• The Charter generally permits testimonial compulsion as long as its predominant purpose is not to incriminate the person being compelled to speak;
• When s. 7 of the Charter is engaged, it protects people who are statutorily compelled to speak from having their statements used against them in penal proceedings, either directly or indirectly;
• Although not every form of statutory testimonial compulsion triggers s. 7 Charter protections, s. 7 is engaged by the compulsory accident reporting schemes in provincial highway traffic legislation (White, supra), and by the powers of testimonial compulsion granted by statute to provincial securities investigators (British Columbia Securities Comm’n v. Branch, infra);
• Section 7 requires statutorily compelled speakers to receive two forms of ex post facto protection against self-incrimination in subsequent penal proceedings:
  • “Use immunity” prevents the compelled statements from themselves being admitted as evidence against the speaker;
  • “Derivative use immunity” prevents the admission of evidence found by the police as a result of a compelled statement, unless the Crown can demonstrate that the police would have found the same evidence independently;
• A trial court that excludes evidence to prevent a s. 7 Charter breach can do so either pursuant to its common law authority to ensure a fair trial, or as an anticipatory s. 24(1) Charter remedy. Nothing significant turns on this distinction; and
• The exclusion of compelled statements and undiscoverable derivative evidence to prevent a s. 7 Charter breach is mandatory. It is not subject to the case-by-case discretionary balancing required when exclusion is sought under s. 24(2) of the Charter.

See R. v. S.(R.J.), supra, Re Application under s. 83.28 of the Criminal Code, 2004 SCC 42, 184 C.C.C. (3d) 449 at paras. 71 and 79, R. v. White, supra, at paras. 71 and 89, British Columbia Securities Commission v. Branch (1995), 97 C.C.C. (3d) 505 (S.C.C.), and R. v. Soules, supra, at para. 61.

[60] Against this backdrop, I note the Crown accepts that Dr. Otto was compelled to give a statement to the CPSO investigator and assessor. While the Crown also accepts that substantive use of Dr. Otto’s statements would violate his right against self-incrimination, the Crown argues that a non-incriminatory use of the statement does not offend the Charter.

[61] The divide between the parties is essentially an issue of remedy. The defence seeks exclusion of the compelled statement for all purposes under s. 24(1) of the Charter as was discussed in White. The defence argues that in accordance with White and its progeny, Dr. Otto is entitled to use and derivative use immunity in relation to his compelled statement. The defence notes that the request for complete exclusion for all purposes is consistent with the general rule of exclusion of evidence for all purposes under s. 24(2) of the Charter, see R. v. Calder, [1996] 1 S.C.R. 660.

[62] The Crown responds by arguing that Nedelcu applies and permits the use of the statement to test Dr. Otto’s credibility in cross-examination should he testify. In this regard, the Crown first seeks to draw a parallel between the compelled statement in this case and the prior testimony given by Mr. Nedelcu.

[63] The Crown notes that CPSO investigators were appointed under s. 75 of the Health Professions Procedural Code. An investigation under this section is subject to the provisions of s. 33(6) and (7) the Public Inquiries Act, which extends certain rights and protections to witnesses who testify at a public inquiry. While Dr. Otto was not summonsed or subpoenaed to give a statement, he could have been, much like Mr. Nedelcu could have been subpoenaed to testify at the civil discovery in that case. As such, the Crown argues that this case is essentially no different than Nedelcu and can be decided on the basis of s. 13 Charter jurisprudence.

[64] In my view, the analogy to s. 13 Charter jurisprudence is not apt in this case. Dr. Otto was being investigated by a state agency. He had a duty to cooperate with that investigation. His failure to cooperate would, or at least could have resulted in professional discipline proceedings. He was “invited” to provide a statement to investigators and he did so in keeping with his duty of cooperation. The statement was not under oath. He was not summonsed to attend the interview, and there was no suggestion that he would have been summonsed to attend if he decided not to show up.

[65] While I appreciate that the Public Inquiries Act applies to these types of investigations, its applicability does not change the nature of the process. Rather, the Act simply grants powers and protections should they be needed. I pause to note that the protections afforded under the Act would not, in any event, extend to criminal proceedings due to the fact that the Act is provincial legislation.

[66] Furthermore, describing the compelled investigative interview as an instance of “testimony” under the Public Inquiries Act mischaracterizes the encounter. What occurred in substance was that Dr. Otto was compelled to give a statement to his regulator in the course of an investigation into his performance as a doctor, on subject matter that was closely connected to criminal charges he was already facing. As such, it is difficult to view the interview as an instance of Dr. Otto testifying in another proceeding as required by s. 13 of the Charter.

[67] My answer might have been different if Dr. Otto had been compelled or summonsed to offer a statement against another doctor who was the subject of investigation. In that instance, the applicability of s. 13 of the Charter and the analogy to Nedelcu might have been more convincing.

[68] The Crown next argues that even if this case is not viewed as a s. 13 Charter case, the reasoning in Nedelcu, nonetheless, applies and permits the use of the statement in cross-examination for credibility purposes only. On this issue, the Crown argues that Nedelcu has refined or clarified the law on self-incrimination by highlighting the fact that where evidence has no incriminatory purpose or effect, there is no violation of an accused’s Charter right against self-incrimination.

[69] I acknowledge that the Crown’s argument on this issue has significant merit. Indeed, it seems incongruous that an accused like Mr. Nedelcu can be cross-examined for credibility purposes on evidence he gave at a discovery, but if that same evidence had been given in the form of a compelled highway traffic investigation statement it would be inadmissible for all purposes, including any cross-examination.

[70] This incongruity would be resolved, suggests the Crown, if one were to view Nedelcu as superseding White, thereby permitting the same result in both scenarios.

[71] One difficulty with this view is that White and its progeny are not mentioned in Nedelcu. If the Supreme Court in Nedelcu had intended to revamp the scope of use of immunity under s. 7 of the Charter, it would have signalled an intention to do so.

[72] A further difficulty arises when one considers R. v. Soules, R. v. Powers and R. v. Porter, supra. In accordance with these decisions, evidence obtained from a compelled statement cannot be put to any use at trial, including establishing reasonable and probable grounds for making a breath demand or obtaining a warrant. In the recent decision of R. v. Roberts, supra, at paras. 37-39, Paciocco J.A. explains:

The rule that Ms. Roberts relied upon to support her contention that statutorily compelled statements are not admissible for any purposes is grounded in the decisions in R. v. White, [1999] 2 S.C.R. 417, and R. v. Soules, 2011 ONCA 429, 105 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No. 375.

In White, at para. 67, the Supreme Court held that where a driver is statutorily compelled to make a statement for highway traffic purposes, the driver “is entitled, at least, to use immunity in criminal proceedings in relation to the contents of that statement.” The court set out the test for determining whether a statement is statutorily compelled. The accused, Ms. White, met that test. The court also held, at para. 89, that statutorily compelled statements are to be automatically excluded from evidence under s. 24(1) of the Charter. As a result, the Crown was prevented from using Ms. White’s statements at trial to prove that Ms. White was the driver of a hit-and-run vehicle. In other words, s. 7 of the Charter prevented the Crown from using Ms. White’s statutorily compelled statements to incriminate her.

In Soules, this court took the rule in White one step farther. Consistent with the broad language and reasoning employed in White, this court held that s. 7 prevents statutorily compelled statements from being used for any purpose in a criminal trial, including during a Charter voir dire to establish whether an officer had reasonable and probable grounds to arrest the subject.

[73] I consider myself bound by White, Soules and Roberts. In this regard, I agree with the defence that the compelled statement given by Dr. Otto to the CPSO investigators meets the four pronged test set out in White, supra, at paras. 53-66, and as such engages Dr. Otto’s right against self-incrimination.

[74] First, Dr. Otto was compelled to participate in the interview. His failure to cooperate would have, or at least could have been the subject of further discipline proceedings.

[75] Second, Dr. Otto was in an adversarial relationship with the state when he gave this statement. He was being investigated by the CPSO for professional misconduct and incompetence based on his fentanyl prescribing practices. While the police officers who were investigating him were not part of the CPSO investigation, Dr. Otto was never advised that the statement he was compelled to give would not be shared with police. There was also an obvious connection in terms of the subject matter. The CPSO investigation was commenced on the basis of the criminal charges and the interview covered some of the same ground as the criminal investigation.

[76] Third, in circumstances where Dr. Otto was not advised that the interview would not be shared with police, the prospect of an unreliable confession was a real one. Unlike the compelled creation of the patient charts, a compelled interview to an investigator creates both a fear of prejudice and an incentive to provide a false statement, see White, supra, at para. 62.

[77] Lastly, if compelled statements given to a professional regulator and obtainable by police using a production order were used in criminal proceedings, the risk of state abuse of power is increased, see White, supra, at para. 64.

[78] In my view, Dr. Otto’s compelled statement to the CPSO is directly analogous to the statement given by Mr. White following his accident. Much like Mr. White could not invoke the protection of s. 61(7) of the B.C. Motor Vehicles Act due to the constitutional division of powers, Dr. Otto could not, in a criminal proceeding, rely on the protection of s. 33(6) of the Public Inquiries Act, which is provincial legislation. Further, as indicated above, I do not accept that Dr. Otto’s compelled investigative interview amounts to testimony in “another proceeding” as that term is understood in the context of s. 13 jurisprudence. This was, in substance, a compelled investigative interview.

[79] In accordance with White, supra, at paras. 86-89, where a compelled statement engages the right against self-incrimination, the appropriate remedy is exclusion under either s. 24(1) of the Charter or under the Court’s common law power to exclude evidence that renders a trial unfair, as discussed in R. v. Harrer, [1995] 3 S.C.R. 562.

[80] In the circumstances of this case, I exclude the compelled statement for all purposes under s. 24(1) of the Charter.

[81] I should add that even if Nedelcu were to govern the use of the compelled statement in this case, it is difficult to see how the statement could ever be used in cross-examination without engaging the risk of self-incrimination. While that is a decision that would need to be made in the context of the evidence at trial and at the time when the Crown seeks to conduct the cross-examination, I note that the statement here involves a detailed, patient by patient review of Dr. Otto’s fentanyl prescribing practices. By contrast, the impugned evidence in Nedelcu was a complete denial of having any recollection about an accident. It essentially amounted to “non-evidence” and was, therefore, available to the Crown to cross-examine Mr. Nedelcu.

Justice J. Di Luca

Release Date: June 17, 2019

[1] There is no challenge to this earlier production order.

[2] This proposed use is now likely moot as the defence was unsuccessful in quashing the warrant that was executed on Dr. Otto’s medical office. Through that warrant, the police were able to obtain essentially the same patient files.

[3] In R. v. White, supra, at para. 36, Iacobucci J. noted that the trial judge had found the statutorily compelled statement in that case was voluntary. He further noted that voluntariness was not raised as an issue on appeal. Interestingly, in her dissenting reasons at para. 110, L’Heureux-Dube J. noted an inconsistency between a finding of statutory compulsion and a finding of voluntariness.

[4] To be clear, I am not satisfied that the mere mention that he gave a compelled statement must necessarily be excised to comply with Soules.