Court finds regulator reasonably relied on phone evidence despite Charter challenge
The Divisional Court of the Ontario Superior Court of Justice upheld interim practice restrictions the College of Physicians and Surgeons of Ontario (CPSO) imposed on a physician previously charged with voyeurism.
In Kilian v. College of Physicians and Surgeons of Ontario, 2026 ONSC 5716, the court found that the regulator reasonably relied on evidence obtained during a police investigation despite the withdrawal of the criminal charges. It dismissed the physician’s application for judicial review of an order requiring continuous practice monitoring, patient notification and posted notices outlining the restrictions.
The physician, an emergency medicine specialist, faced four counts of voyeurism charges in February 2024 following allegations that he secretly photographed the buttocks of teenage girls exercising at a YMCA.
Police seized his phone during a search of his home and subsequently obtained warrants to examine its contents. The investigation uncovered photographs of young girls exercising.
The Crown withdrew the charges in September 2025 after defence counsel challenged the search warrants and sought to exclude the phone evidence under the Canadian Charter of Rights and Freedoms. The Crown concluded that no reasonable prospect of conviction remained.
However, the criminal proceedings ended without a judicial determination that police violated the physician’s Charter rights or that the evidence should be excluded.
After the physician notified the CPSO that he intended to resume practising, the CPSO’s Inquiries, Complaints and Reports Committee (ICRC) imposed interim conditions in December 2025.
The physician challenged the order, arguing that the committee improperly relied on evidence obtained through an allegedly unconstitutional search. He also disputed the connection between the allegations and patient safety and argued that the restrictions effectively prevented him from practising.
The Divisional Court rejected those arguments, finding that the committee reasonably considered the phone evidence because no court had determined that a Charter violation occurred or that the evidence should be excluded. The court also noted that different considerations govern professional regulatory proceedings and criminal proceedings.
The court also found that the committee reasonably connected the alleged conduct involving vulnerable young people to circumstances involving vulnerable patients in an emergency department.
Under s. 25.4(1) of the Health Professions Procedural Code, the committee may impose interim restrictions if it believes a physician’s conduct exposes or is likely to expose patients to harm or injury. A mere risk of harm is insufficient.
The court concluded that the committee applied the correct test. It also found that the committee considered limiting monitoring to patients under 18 but reasonably rejected that option because emergency department practice is dynamic.
It also rejected the procedural fairness challenge, finding that the physician received notice, information about the allegations and an opportunity to make submissions.
The court acknowledged that the restrictions could effectively prevent the physician from working in an emergency department but found that this did not make the order unreasonable. The physician may request reconsideration of the restrictions, while the CPSO has a statutory obligation to investigate and prosecute the matter expeditiously.
The court dismissed the application and ordered the physician to pay costs.
