ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11066
DATE: 2013/03/08

BETWEEN:

Her Majesty the Queen

Brian D. White, for the Applicant

• and -

David Kent

Brian E. Chambers, for the Respondent

HEARD: July 23, 2012 and January 22, 2013

RADY J.:

REASONS

Introduction

[1] The Crown seeks an order that certain files and records seized from the respondent that he “allegedly obtained through fraudulent means” not be disclosed pursuant to s. 37 of the Canada Evidence Act because their disclosure “would encroach upon a specific public interest and privacy concern of the alleged victims of this fraudulent conduct”.

[2] The respondent opposes the application and asks for an order returning the files to him because they are his work product and are not required for investigation or trial. In the event they are required, he asks for copies pursuant to his right to disclosure.

[3] In support of its application, the Crown relies on five “will say” statements of former patients of the respondent as well as affidavits by each of them addressing the personal harm that they foresee if the records were made public and available to the accused.

Background

[4] The respondent is charged with four counts of fraud under $5000. contrary to s.380(1)(b) of the Criminal Code and one count of fraud over contrary to s. 380(1)(a). He is apparently also charged with offences under the Registered Health Professions Act. The complainants are former patients of the respondent. They say that as a result of his representations, they believed he was either a doctor of psychiatry or psychology who provided therapeutic treatment. They say that they shared intimate details of their life with him, which he may have reduced to writing because he kept notes of their counseling sessions. The complainants are said not to consent to the disclosure of “their records” to the respondent.

[5] The respondent denies the allegations. He is said to be a psychotherapist and hypnotherapist who carries on practice as the Mind Body Clinic from his residence in London.

[6] On April 22, 2010, the London Police Service executed a search warrant for his residence. Police seized patient records and notes that the respondent says he created during the course of his professional practice.

[7] The police did not file a report to the Justice of the Peach who issued the warrant, as required by s. 490(1) of the Code, until December 7, 2011.

[8] The respondent has prepared an application to be heard before a Justice of the Peach for the return of the records and notes pursuant to s. 490(10) of the Code. That application is being held in abeyance pending the outcome of this application.

The Parties’ Positions

[9] The Crown says that the release of the patient records would encroach upon a specific public interest and privacy concern of the alleged victims of his fraudulent conduct. Courts have always protected the privacy interests in patient’s medical records.

[10] The defence submits that the Crown’s reliance on s. 37 is misplaced and the notes and records are the respondent’s work product, are required in the ongoing operation of his practice and are required in order to make full answer and defence.

The Law

[11] The relevant sections of s. 37 of the Canada Evidence Act are as follows:

37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.

(1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.

(2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.

(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.

(6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information.

(6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.

[12] The Crown relies on two cases in support of its application. The first is Regina v. Richards (1997), 1997 3364 (ON CA), 34 O.R. (3d) 244 (C.A.). In that case, the Crown sought to prevent disclosure during a preliminary hearing of details of police investigative techniques. The court dealt primarily with the jurisdiction and procedure to be followed in its decision.

[13] The headnote for the decision captures the Court of Appeal’s reasoning:

Where a claim of public interest privilege arises at the preliminary inquiry, the Crown should normally seek a ruling as to the admissibility of the privilege before proceeding under s. 37 of the Canada Evidence Act. The judge will decide whether the common law privilege operates to render the requested information inadmissible at the preliminary inquiry. If the judge holds that the privilege applies, there will be no need for a s. 37 application. If the judge orders disclosure, the Crown can commence a s. 37 application objecting to the disclosure required by the ruling.

Disclosure of police investigative techniques is subject to a qualified privilege. Where the claim is made, the judge must first decide whether the information sought is relevant to an issue in the proceedings. If relevant, evidence of the investigative techniques used will not be disclosed if the public interest in effective police investigation and the protection of those involved in, or who assist in such investigation, outweigh the legitimate interests of the accused in disclosure of the techniques. The preliminary hearing judge has jurisdiction to adjudicate claims relating to public interest privilege. If disclosure is resisted by the Crown on the basis that the information sought would breach the police informer privilege, and the preliminary hearing judge concludes that this privilege is engaged, the privilege must be applied to bar the release of the information. The only basis for an exception to the police information privilege is that the information is required to establish the innocence of the accused and the accused’s innocence is not at stake during a preliminary inquiry.

[14] The court concluded that the order made in the courts below under s. 37 prohibiting disclosure was correct but disagreed with the conclusion that defence entitlement to make full answer and defence was not engaged by the information sought.

[15] The other case, R. v. Serendip Physiotherapy Clinic (2004), 2004 39011 (ON CA), 73 O.R. (3d) 241 (C.A.) is not a s. 37 case but rather a consideration of s. 487 of the Criminal Code. It dealt with the propriety of quashing a search warrant for the search and seizure of medical records of a clinic alleged to be involved, in an insurance fraud. The Crown relies on this case to demonstrate that there is a heightened expectation of privacy in personal information contained in medical records and a public interest in their protection. The court concluded that there was no principled basis for exempting the records at issue from the requirements of s. 487.

[16] Justice Rosenberg writing for the court observed as follows:

I accept this characterization of the issue and of the nature of the intrusion. The question, however, is whether the statutory conditions in s. 487 of the Criminal Code strike the proper balance between the state interest in law enforcement and the public and individual interest in protecting the confidentiality of health records. In my view, with the possible exception of psychiatric records, the section does strike the proper balance. In the absence of a direct attack on the constitutionality of s. 487, that section must be taken as meeting the requirements of the constitution, including the privacy protections contained in ss. 7 and 8 of the Charter. The section is designed to mediate between the state interest in the investigation and the public and individual interest in documents and other materials in which there is a reasonable expectation of privacy. As a result of s. 487, Parliament has permitted a judicial officer to authorize all manner of serious intrusions into the privacy of individuals. If the requirements of s. 487 are met, the police can enter a private home and seize the most intimate of records such as diaries and personal papers. The Criminal Code does not mandate a further post-seizure process other than the procedures in s. 489.1 dealing with the return of seized property. Using s. 487, the police can obtain financial and other records from third parties, material about the individual’s lifestyle, intimate relationships and even personal opinions. They can gain access to a core of biographical and other information that is protected by s. 8 of the Charter. But, it has never been suggested that a properly issued search warrant, meaning a search warrant that was obtained in accordance with the requirements set out in s. 487, authorizes an unreasonable search and seizure.

Analysis

[17] In my view, s. 37 of the Evidence Act does not apply to the facts of this case. The seized notes and records belong to the respondent and should be returned to him. I agree with Mr. Chambers’ submission that s. 37 is intended to apply where an accused seeks disclosure of records or information generated by the state and its agents or through the interaction between complainants and third parties, which have never been the accused’s possession.

[18] Support for this conclusion is found in an examination of other cases decided under s. 37. Courts have recognized public interest immunity in cases involving:

• documents in the possession of the Parole Board: R. v. Stewart (1984), 1984 647 (BC SC), 13 C.C.C. (3d) 278(B.C.S.C.);

• informer privilege: R. v. Babes (2000), 2000 16820 (ON CA), 146 C.C.C. (3d) 465 (Ont. C.A.); R. v. Basi (2009), 2009 SCC 52, 248 C.C.C. (3d) 257 (S.C.C.); R. v. Omar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 (Ont. C.A.);

• police practices, investigative techniques, police intelligence: R. v. Trang (2002), 2002 ABQB 19, 168 C.C.C. (3d) 145 (Alta. Q.B.)

[19] The section has not codified all categories of public interest immunity: R. v. Chan (2002), 2002 ABQB 287, 164 C.C.C. (3d) 24 (Alta. Q.B.) and there may well be situations where medical records are subject to immunity, but this is not such a case.

[20] In this case, the records and notes are the respondent’s own work product and they belong to him. In McInerney v. MacDonald, 1992 57 (SCC), [1992] 2 S.C.R. 138, the Supreme Court of Canada found that, although the information contained in medical records belongs to the patient, the physical records themselves belong to the creator (ie. the physician, clinic, or hospital). At paras. 13-14, 38, the court noted:

The current position of the medical profession with respect to the right of patients to information in their medical records is reflected in the policy statement of the Canadian medical Association published in 1985:

CONFIDENTIALITY, OWNERSHIP AND TRANSFER OF MEDICAL RECORDS

The Canadian Medical Association (CMA) regards medical records as confidential documents, owned by the physician/institution/clinic that compiled them or had them compiled. Patients have a right to medical information contained in their records but not to the documents themselves. The first consideration of the physician is the well-being of the patient, and discretion must be used when conveying information contained in a medical record to a patient. This medical information often requires interpretation by a physician or other health care professional. Other disclosures of information contained in medical records to third parties (eg. Physician-to-physician transfer for administrative purposes, lawyer, insurance adjuster) require written patient consent or a court order. CMA is opposed to legislation at any level which threatens the confidentiality of medical records.

I am prepared to accept that the physician, institution or clinic compiling the medical records owns the physical records.

Since I have held that the tangible records belong to the physician, the patient is not entitled to the records themselves. Medical records play an important role in helping the physician to remember details about the patient’s medical history. The physician must have continued access to the records to provide proper diagnosis and treatment. Such access will be disrupted if the patient is able to remove the records from the premises. Accordingly, the patient is entitled to reasonable access to examine and copy the records, provided the patient pays a legitimate fee for the preparation and reproduction of the information. Access is limited to the information the physician obtained in providing treatment. It does not extend to information arising outside the doctor-patient relationship.

This ownership by the medical practitioner is further supported by the legislative provisions entitling physicians to refuse disclosure in particular enumerated circumstances and those obligating physicians to maintain a certain level of care and control over the records: see Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A; O. Reg. 856/93 and 241/94 to the Medicine Act, 1991.

[21] I recognize that the respondent is not a medical doctor and there is an issue with respect to the basis on which he provided his services to the complainants. Nevertheless, the principles identified in the court’s analysis seem applicable to this situation.

[22] The respondent is entitled to the return of the seized material. The application is dismissed.

Justice H.A. Rady
Justice H. A. Rady

Released: March 8, 2013

COURT FILE NO.: 11066
DATE: 2013/03/08

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

• and –

David Kent

REASONS

RADY J.

Released: March 8, 2013