Reasons for Ruling

TUESDAY, JUNE 19, 2012

PUGSLEY, B. (Orally):

Yes, before we have the next witness, I have a ruling with respect to the admission of certain lettered exhibits, which I will render now.

Background

The defendant faces allegations involving allegedly diverted funds owned by the Shelburne Branch of the Royal Canadian Legion. The Crown seeks to pro-offer as exhibits certain records produced by the pharmacy at the No Frills grocery store, in Shelburne, pursuant to a production order obtained by the police. The defendant objects to the admission of these documents.

The documents in question are a series of printouts produced by the pharmacy manager of the pharmacy in question. The records relate to the filling of prescriptions by that pharmacy that were issued in the name of the defendant and/or his spouse.

The Crown seeks to match the cost of those prescriptions to specific expenses allegedly charged by the defendant against Legion funds. Notice of the Crown's intent and copies of the documents to be tendered as exhibits were properly given to the defendant before trial.

Evidence of the Pharmacy Manager

Mr. Gujjula is the pharmacy manager at the said pharmacy, and he testified as a Crown witness. He is also a pharmacist. He has been at the Shelburne store since March of 2010.

The Crown produced to the witness a series of documents which he identified as prescription receipts from the Shelburne store. When a prescription is filled, all the details are inputted by the pharmacy into their computer, generating receipts, a label for the bottle, and a hard copy for the store records. After this data has been entered, any store employee may print out future receipts. The original receipt is signed by the pharmacist. The documents produced to the witness had the word "copy" in place of this signature.

The witness stated during his evidence in-chief that one cannot tell from the document who printed the receipt out, but that when Sergeant Kerr, the Officer in Charge, requested the copies, Mr. Gujjula printed them off and gave them to Sergeant Kerr. The witness described how he could tell from the receipt who it was for, what the cost was of that prescription, and whether the cost was charged to an insurer or paid by the customer.

Each receipt has a separate entry for each drug that is dispensed. The date on the receipt is the date the prescription was processed, not necessarily the date it was picked up by or on behalf of the patient.

On each receipt to the right, is the patient profile, the history of past drugs dispensed by that store for that patient as of the date when the receipt was printed out. The prescription data is entered into the store computer when it is submitted to the store by the customer, and the file is kept both on the computer and by virtue of a hard copy. Every prescription must be entered into the computer or it cannot be filled and it is important to be accurate when entering the information. The pharmacist must check the prescription before it is given out to the patient.

The witness stated that these records must be kept as they are required by the Ontario College of Pharmacists.

The witness identified the proposed exhibits which were entered as lettered exhibits, subject to argument as to their admissibility.

Cross-Examination

In cross-examination, the witness agreed that in each case a hard copy of the prescription is kept by the store. He also identified a sample proposed exhibit as a duplicate of the original receipt printed from the computer. The customer has the original receipt.

He cannot tell from looking at the duplicate who printed it out, but he remembered giving Sergeant Kerr the receipts when the officer got the court order to do so.

The right side of each printout is only the patient's profile to check for drug interactions, changes of dosage, and so on.

The left side of the document sets out what the witness referred to as the total official details. The left side is the official date of that prescription. The right side is the patient profile as of the date when the duplicate was printed out. The hard copy is signed by the pharmacist and is kept for six or seven years.

Legal Arguments

Crown's Position

The Crown seeks to pro-offer the receipts contained in lettered Exhibits A1 through A5 as exhibits at the trial. The Crown relies upon Sections 31.1 and following of the Canada Evidence Act. In the alternative, the Crown submits that, as copies made by the witness, the records are admissible as a business record under Section 30 of the Act.

Defendant's Position

The defendant submits that the records cannot be admitted. If the records are a copy then Section 30 of the Act has not been properly complied with since there is a doubt as to who made the copies, the witness or someone else at his pharmacy.

Second, if the Crown is relying on the regime set out with regard to electronic documents in Sections 31.1 and following of the Act, the evidence lead has not satisfied the onus placed upon the Crown.

Finally, the defendant submits that clearly there is better evidence available, the original documents kept by the pharmacy in a drawer in Shelburne. The defendant also submits that the witness cannot say that these were the same documents he gave Sergeant Kerr.

Court's Ruling

Admissibility of the Documents

In my view, the lettered exhibits may properly be entered as exhibits at this trial. There are a number of routes that the Crown may choose to properly place business documents before the Court.

Here the Crown has obtained an order. Mr. Gujjula has created the documents referred to in the order and has given them to the Officer in Charge. Although the witness cannot say that these are the self-same documents that he gave to Sergeant Kerr, there is no other logical explanation. An order was obtained and complied with and duplicate receipts were printed by the witness, from the store computer, and given to Sergeant Kerr and, therefore, to the Crown and then to the defence.

There could be no other source of these documents since the original receipts were given to the patient.

Application of the Canada Evidence Act

Sections 31.1 and following of the Canada Evidence Act were passed into law in the year 2000. Presumably, this was, in part, a recognition by Parliament that more and more businesses were maintaining their records in an electronic format. The test for admission is set out in Section 31.1. The Crown here must lead evidence capable of supporting a finding that the electronic document is that which it is purported to be.

Section 31.2(2) sets out two means by which the best evidence rule of an electronic document may be satisfied. Subsection 31.2(1) on proof of the integrity of the electronic document system by or in which the electronic document was recorded or stored, or if an evidentiary presumption under Section 31.4 applies. Section 31.4 is not applicable here.

Subsection 31.2(2) provides a second way to satisfy the best evidence rule. In the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied upon or used as a record of the information recorded or stored on a printout.

Section 31.3 of the Act sets out how the requirement of integrity in Subsection 31.2(1) may be proven in the absence of evidence to the contrary. Paragraph 31.3(c) provides: "If it established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it."

Application to the Facts

The application of the law to the facts of this case could not be clearer. Mr. Gujjula testified that every prescription is recorded in the same way on the computer at his store. Drugs cannot be dispensed without using that computer system. The original receipt is given to the patient, a hard copy is kept by the store, and the records continue to exist on the store's computer. The integrity of the system is backed up by the duty imposed by the College of Pharmacists to keep these records.

Duplicate records are sometimes requested by patients who have lost their original receipt and who need to submit the duplicate to their insurer for repayment. The insurer is, therefore, also relying on the integrity of the computer records.

More to the point, the health and safety of the patients using the pharmacy is dependent on the accuracy and integrity of these electronic records, which are used, in part, to track drug interactions and changes in drug dosages.

Under the direction of the pharmacy manager and the pharmacists, these records are kept in the usual and ordinary course of business and there is a professional duty to do so. No one associated with these records is a party to this application.

Business Records Exception to Hearsay

At first principle, business records are an exception to the hearsay rule because they are kept with accuracy by an individual who has no axe to grind one way or the other in a subsequent dispute between other persons, such that the keeper of the record is indifferent to the outcome of any such dispute. Paragraph (c) of Section 31.3 of the Act codifies this basic presumption.

As the Act states, these represent the rules in the absence of evidence to the contrary. No such evidence has been lead here.

Best Evidence Rule

The defendant submits that the original documents kept as hard copies are the best evidence available here. Those documents, however, are only different from those sought to be filed by virtue of the fact that they have an original pharmacist's signature on them. Here the documents are not produced for the purpose of showing that the correct drug was dispensed or who dispensed it. The records are to show who the patient was, how much was charged and whether the charge was paid by an insurer or by the patient. The records sought to be relied upon need go no further than that to be the best evidence of the facts sought to be relied upon.

Moreover, the Crown has the right to seek to enter the documents in the manner they decide, subject to the risk that if not properly proven, they will not be admitted. Here I find that Section 31.1 of the Act is satisfied in all respects. I need not consider other paths to admissibility under Section 30 of the Act or common law.

Order

Letter Exhibit A1 shall, therefore, be marked Exhibit 3(a) and so on, until all of Exhibits A1 to A5 have been accordingly redesignated as numbered exhibits and those exhibits are accepted as proof of the contents thereof, being business records properly admitted by the Court.

I would like to thank both counsel for their submissions on this matter.

Transcript Ordered: June 19, 2012 Transcript Completed: July 30, 2012 Ordering Party Notified: July 30, 2012