THIS IMPORTANT LEGAL CASE AFFECTS THE PRIVACY RIGHTS OF ALL CANADIANS
PLEASE JOIN US MONDAY MARCH 6, 2023 at 2:00 PM
Superior Court of Justice 330 University Avenue Toronto Courtroom 5-5.
THIS LEGAL CASE AFFECTS THE PRIVACY RIGHTS OF ALL CANADIANS
Privacy is a fundamental human right and a basic tenant of a free and democratic society. Almost 40 years ago the Supreme Court of Canada described our right to privacy as follows:
“In the same way that this Court recognized in Re B.C. Motor Vehicle Act, supra, that the “principles of fundamental justice” in s. 7 are informed by fundamental tenets of our common law system and by ss. 8 to 14 of the Charter, I think that the terms “liberty” and “security of the person” must, as essential aspects of a free and democratic society, be animated by the rights and values embodied in the common law, the civil law and the Charter. In my view, it is not without significance that one of those rights, s. 8, has been identified as having as its fundamental purpose “to protect individuals from unjustified state intrusions upon their privacy” (Hunter, supra, at p. 160). The right to be secure from unreasonable search and seizure plays a pivotal role in a document that purports to contain the blueprint of the Canadian vision of what constitutes a free and democratic society. Respect for individual privacy is an essential component of what it means to be “free”. As a corollary, the infringement of this right undeniably impinges upon an individual’s “liberty” in our free and democratic society.”[1]
CPSO ENGAGING IN UNLAWFUL BREACH OF PRIVACY
The College of Physicians and Surgeons is the regulating body of the Ontario doctors. Using the COVID declaration of a pandemic as an excuse, the CPSO has started a new unprecedented attack on Canadian citizens and their privacy. Targeting Ontario doctors who provide patients with information about treatment and prevention of illness related to COVID, or exemptions to, COVID19 shots, the CPSO begins its own investigation – without the patient’s knowledge or consent – and even though there is NO patient who has complained. Without any evidence of harm or injury, and in a presumptive and patronizing move, the CPSO claims that these doctors are “harming” and “injuring” their own patients and demands the release of all their patient records for “investigation”. The CPSO wants to know which Ontario patients are exempting themselves by exercising informed consent with their doctor and not taking the jab. The investigation is not to protect patients, otherwise there would be a patient complaint. There is none.
The investigation is initiated by the CPSO Registrar and is rubber stamped by an internal committee in the CPSO called the ICRC. The CPSO then orders dozens of investigators to seize all files of patients who obtained COVID-19 Vaccine medical exemptions. This is not an investigation: it is a fishing expedition against the doctor and an abuse of power that results in violating the privacy of a patient. Moreover, the CPSO bans the doctor from de-personalizing data from the records to protect information that has nothing to do with COVID or her own clinical notes, such as the patient’s name and personal details that is no business of the CPSO. The CPSO claim it has unlimited power to know everything about the patients who are exercising their right to refuse the shot.
Many Ontario doctors have been forced to hand over their patient records without their patient’s knowledge or consent despite the fact there was NO patient complaint, harm, or injury. A few very brave doctors have defended the rights and requests of their patients that their privacy be protected. One of those doctors is Dr. Rochagne Kilian. The CPSO filed an injunction last year for the Court to order Dr. Kilian to release the medical records knowing the patients object and have not complained.
LEGAL BATTLE
In a long and winding legal battle that few Canadians know about, a group of conscientious patients of Dr. Kilian sought to intervene in Ontario Superior Court to voice their concerns about the unlawful breach of their privacy. That was in February 2022. They also brought a judicial review of the abusive overreach and power grab by the CPSO in Divisional Court. The Superior Court heard the patients concerns, over two full days of hearings in February and March 2022. On April 19, 2022 the Superior Court judge decided it was prudent to stay (put on hold) the CPSO demand for medical records until the Divisional Court decided whether it was lawful for the CPSO to ask for them in the first place. The judge remained seized of the case. Which means that the same judge that hears the evidence on a case must also be the one to make the decision. In other words, the case cannot be taken away from the judge.[2] This was a victory for patient privacy.
But the CPSO was not happy with a judge not ruling in their favour, as they usually get whatever they want from the Courts especially on COVID cases. The CPSO appealed the Superior Court decision even though it is completely the discretion of the judge to decide how best to ensure justice is done in her own Court.
On November 7, 2022 the Divisional Court ruled that patients of a doctor under investigation for being accused of harming or injuring them (even when they say that they are not), have no say or right to ask the Court to review of the CPSO decision to investigate the doctor and demand their records. The Divisional Court ruled that patients should not have an expectation of privacy regsarding their own medical records! The Court removed the patients from the case before they even had a chance to argue in Court. In an absurd ruling the Court said it was too early for Dr. Kilian to challenge the investigation BEFORE she handed over the Medical Records for the CPSO to complete the investigation. In other words, the patient’s privacy rights were to be breached before Dr. Kilian could go to Court to prevent the breach! The Patients are asking the Court of Appeal permission to review this absurd decision!
Then on December 5, 2022 the Court decided to hear the CPSO appeal of the stay even though the stay was lifted by virtue of the November 7, 2022 decision and the case should have been returned to the Superior Court judge who was seized to finally decide the issue of the patients’ intervention. But since the CPSO wanted to take the case away from the first judge (who appeared to be doing her job impartially) and put it into the hands of a judge who would give the CPSO what they wanted, they asked the Court to remove the seized judge! Not only did the Divisional Court allow the CPSO to go “judge shopping” but they also said any new judge hearing the demand for medical records must not consider Charter arguments or the lawfulness of the demand. Dr. Kilian MUST comply with the demand for Medical Records even if it is UNLAWFUL or UNCONSTITUTIONAL!
What does this say about the Rule of Law? What does this mean for privacy? Are we living in a “free and democratic” Canada or one where the CPSO is above the law and the abuse of their power is rubber stamped by judges?
Come and listen to the continuation of this case on Monday, March 6, 2023. Dr. Kilian’s patients will be forced to argue their right to be heard ONCE AGAIN, this time in front of a new judge.
Please join us in court
MONDAY MARCH 6, 2023 at 2:00 PM
Superior Court of Justice
330 University Avenue
Courtroom 5-5.
THANK-YOU SO MUCH FOR YOUR SUPPORT!
[1] R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411, <https://canlii.ca/t/1frdh>
