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Case is reminder evidence can be used without consent

Focus on Professional Regulation & Discipline Law
|Written By Shannon Kari
Case is reminder evidence can be used without consent
Robin McKechney says an argument to exclude evidence will be much stronger if a regulator or government agency asked a private individual to assist in obtaining information of misconduct.

A recent decision of the Ontario Judicial Council is a reminder that evidence of misconduct in a professional disciplinary hearing will likely be admitted even if it has been obtained surreptitiously by a private individual and without consent.

The four-person panel concluded that the Charter did not apply in circumstances where an individual made a copy of text messages on the phone of provincial court Justice John Keast and turned them over to the Children’s Aid Society without his knowledge.

The content of the text messages formed the basis of the alleged misconduct, which ultimately resulted in the judicial council panel imposing a 30-day suspension without pay against the judge, who presides in Sudbury, Ont.

“The initial search of Justice Keast’s cell phone and subsequent seizure of the text messages (by copying) was carried out by an individual, acting in his or her private capacity,” the panel headed by Court of Appeal Justice Eileen Gillese wrote in the decision issued Dec. 15.

“The state did not search or seize Justice Keast’s cell phone. Any reasonable expectation of privacy that Justice Keast had in the contents of his cell phone, was intruded on by the individual who copied the text messages, not by a state actor,” stated the panel, which also included provincial court Justice Lise Parent, Borden Ladner Gervais LLP partner Christopher Bredt and community member Judith LaRocque.

In the context of a disciplinary proceeding, the decision to admit the evidence was not surprising, says Simon Bieber, a partner at Adair Goldblatt Bieber LLP in Toronto. 

“There is a large body of case law. Even if you allege it was stolen, it may not impact whether it is admissible,” says Bieber, who acts regularly in professional discipline and negligence matters.

The judicial council panel heard that the individual — whose name is subject to a publication ban — became suspicious about the actions of Keast related to a child protection matter. 

The individual copied the texts and provided them to the local children’s aid agency, which filed a complaint against the judge.

The panel noted that Keast had been an “exemplary judge” for 17 years. However, the texts revealed that as a result of what it described as a “challenging personal situation,” the judge communicated confidential information, used a friendship to access private information and made comments that implied a bias against the CAS, as well as provided legal advice to a friend. 

At the disciplinary hearing, the judge’s lawyer argued that given that the text messages were provided to the children’s aid agency, which is a state actor, the Charter should apply.

In rejecting that argument, that panel stated the application of the Charter requires a state actor to be a participant in the “search and seizure” of the evidence. 

“The CAS’s only action was to receive the text messages and acting upon legal advice, to provide them to the Council when it filed the complaint,” the panel wrote.

The mandate of disciplinary tribunals in regulated professions is why the method by which the evidence of misconduct is obtained is not going to be as significant as in a criminal proceeding, says Robin McKechney, a partner at Steinecke Maciura LeBlanc in Toronto, a firm that focuses on professional regulation.

“Their mandate is to regulate in the public interest. The regulator does not ask how did we get this information. They ask is the public at risk,” McKechney explains.

While disciplinary tribunals may not be pleased that evidence before them has been “stolen” or taken surreptitiously, Bieber suggests that as long as the regulator or any state actor was not involved at this stage in the process, the information will likely be admissible. 

“They are trying to protect the public,” he says. 

As well, Bieber points out that, in the Keast hearing, the texts were the evidence of misconduct. 

“When the very thing is the evidence of misconduct, regulators will have a hard time excluding it,” he says.

This point was stressed by the panel in its decision. 

“In a hearing to determine whether judicial misconduct took place, it is virtually inconceivable that the administration of justice would be better served by excluding the evidence of the alleged misconduct, rather than admitting it,” the panel wrote.

An argument to exclude evidence will be much stronger if a regulator or government agency asked a private individual to assist in obtaining information of misconduct, McKechney observes. 

“Context is always key in these matters,” he says.

McKechney adds that even evidence obtained by police in breach of the Charter will likely be admissible in disciplinary matters, as outlined by Ontario Superior Court Justice Edward Belobaba in his 2014 ruling in Kelly v. Ontario. The judge found that the College of Physicians and Surgeons could consider evidence of child pornography on the hard drive of a doctor’s computer, despite the fact it was seized unlawfully by police and criminal charges were withdrawn. 

“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,” Belobaba wrote.

“It is the Discipline Committee that is in the best position to understand its regulatory context and whether or not the admission of the impugned evidence in this context would bring the administration of justice into disrepute,” he stated. 

While the case law to date has been in favour of admissibility, Bieber suggests the issue may arise more frequently in future disciplinary hearings given the amount of private information that individuals, including regulated professionals, store on mobile phones and other devices. 

“It may be a hotbed of litigation,” he says.

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