ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-703
DATE: 2015-12-07
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAID ATTALLA
Accused
William Dorsey, for the Crown
Howard Rubel, for the Accused
HEARD: November 9-10, 2015
RULING - CROWN APPLICATION RE ADMISSIBILITY OF PRESCRIBER VERIFICATION LETTERS
DALEY RSJ.
Nature of Application and Evidentiary Record:
[1] The accused is charged with having defrauded the Ontario Drug Benefit Plan, Ontario Public Drug Programs, and the Ministry of Health and Long-Term Care of a sum exceeding $5000, by billing the Ontario Drug Benefit Plan for drugs not dispensed to the recipients, contrary to section 380(1) of the Criminal Code of Canada.
[2] On this pretrial application, the Crown applies for a ruling that documents referred to as “prescriber verification letters” prepared by physicians be admitted into evidence under the Canada Evidence Act R.S.C., 1985, c. C-5 as business records or under the common law as exceptions to the admission of hearsay evidence.
[3] It is the position of the accused that the prescriber verification letters are not business records and as such cannot be admitted.
[4] On the voir dire conducted relating to this application, the evidence offered by the Crown included the testimony of John Kwan (“Kwan”), an inspector employed by the Ministry of Health and Long-Term Care’s Ontario Public Drugs Program. Kwan commenced an audit of Rathburn Pharmacy in Mississauga, which, at a point in time, was owned by the accused.
[5] As part of his audit of the accused’s pharmacy, Kwan sent letters to five different physicians. The letters called for the physicians to advise whether they had written prescriptions for either the accused or members of his family on particular dates, which prescriptions had been represented by the accused as having been dispensed. The accused was reimbursed from the Ministry of Health for those prescriptions.
[6] The Crown called two physicians as witnesses on this voir dire namely Dr. Ayesha Hussain and Dr. Jean Barwell. Both of these physicians completed prescriber verification letters dated April 22, 2011 and May 5, 2011, respectively. These prescription verification letters were provided to the physicians by Kwan for their review and verification as to whether the prescriptions identified were issued by them.
[7] A prescription verification letter was also submitted by Dr. John Henein although he did not testify on this voir dire, a copy of his signed prescriber verification letter was introduced in evidence in the application record. An affidavit was submitted on behalf of Dr. Henein on this application.
[8] Although a prescriber verification letter was also completed by the accused’s wife, Dr. Mireille Attalla, dated May 5, 2011, counsel for the Crown advised that it would not be seeking to have that letter introduced in evidence at trial.
[9] Dr. Hussain testified that in April, 2011 she was provided with four prescriber verification letter forms by a representative of the provincial government. She acknowledged knowing the accused, as he was married to her colleague, Dr. Mireille Attalla. At that time they shared office space in their respective medical practices. The accused was also one of her patients.
[10] Dr. Hussain completed four prescriber verification letters with respect to her patients, including the accused and his family members, Mirna Attalla, Monica Attalla, and Jessica Attalla. In the course of submissions on this application, counsel for the Crown advised that the Crown was abandoning its application with respect to seeking an order admitting into evidence the prescriber verification letters relating to the accused’s family members. The application was only being advanced with respect to Dr. Hussain’s prescriber verification letter relating to the accused, which was dated April 22, 2011.
[11] Dr. Hussain states that she completed the patient verification letters, and in particular the one relating to the accused as her patient. However, she also stated that she did not place a copy of the prescriber verification letters within any of the patient files related to this audit. She further readily acknowledged that completion of patient verification letters does not ordinarily form part of her practice with respect to the care of patients. Further, she testified that this was the first time she ever prepared letters like these.
[12] At the time the patient verification letters were prepared, she did have access to her patient files. However, in her testimony during the voir dire, she indicated that she was reconstructing her memory based on the verification letters themselves.
[13] This witness further acknowledged that she may have actually prescribed some of the medication listed in the patient verification letters, which she had indicated she had not actually prescribed and she acknowledged that she was concerned that she may have completed these forms answering “no” to the question as to whether she prescribed certain medications, when in fact she may have.
[14] She testified that she did raise this concern with Kwan at her office and in response he advised her that “it’s still okay” to sign the form as she had. She testified that when Kwan came to retrieve the forms from her she told him that she may have issued some of the prescriptions where she said she had not. She also agreed that she may have provided prescriptions for the accused at his wife’s request, which did not appear in the verification letter relating to him.
[15] Dr. Jean Barwell also testified with respect to her completion of the prescriber verification letters which were provided to her by Kwan.
[16] As to her practice in giving prescription medications to her patients, Dr. Barwell testified that there may have been cases where she did not write every single prescription in the patient record, as time was limited or it may have been a renewal of the prescription.
[17] Like Dr. Hussain, Dr. Barwell testified that she completed the prescription verification letters after reviewing her clinical files.
[18] This witness acknowledged that in completing the prescriber verification letters she relied both on her patient records and her memory, however she could not say which part of her letter was based on her notes and which part on her memory when she filled it out.
[19] Dr. Barwell testified that she completed the prescriber verification letters in her office with her business manager while the investigator, who she described as an Asian man, was present. She recalled that the investigator advised her that the patient Reneh Butros was, in fact, in Egypt. She acknowledged that she was influenced by his comments and by the fact that he also informed her that the patient had died on a date prior to the date of some of the prescriptions.
[20] As far as Dr. Barwell’s prescription verification letters were concerned, counsel for the Crown advised that the Crown was no longer seeking a ruling with respect to the admissibility of the records relating to the patient Reneh Butros but he was seeking to have admitted her records relating to the patient Ghattas Gahmore, who Dr. Barwell denied ever having as a patient.
Position of the Parties:
[21] It is the position on behalf of the Crown that the prescriber verification letters are relevant and reliable records, and that they should be admitted as the physicians who completed the letters will be available for cross-examination at trial.
[22] Although Dr. Henein was not called as a witness on this voir dire, counsel for the Crown urged that his affidavit evidence was sufficient for the purpose of this application.
[23] With respect to the prescriber verification evidence provided by Dr. Hussain, counsel for the Crown submitted that the accused had 158 claims for prescriptions with Dr. Hussain and that the evidence contained in her prescriber verification letter should be admitted under the principled approach to hearsay evidence. It was submitted that this evidence is admissible as it is necessary, as it would be of assistance to the jury, and as Dr. Hussain’s records may not be available to the Crown. Further, the physician would be available for cross examination by the accused’s counsel.
[24] It was further urged on behalf of the Crown that the activities of Kwan did not constitute an investigation as contemplated by s. 30 (10) (a) (i) of the Canada Evidence Act R.S.C., 1985, c. C-5 which provides for the exclusion from evidence of “any record made in the course of an investigation or inquiry”.
[25] It was urged on behalf of the accused that the prescriber verification letters were not business records as there is no evidence that there was any duty on the part of the physicians to maintain the records. Further, there is no evidence that the physicians kept these records in the ordinary course of their practices. It was submitted that the letters were essentially statements taken from these physicians.
Analysis:
[26] The law with respect to documentary evidence and business records within the context of s. 30 of the Canada Evidence Act was thoroughly reviewed by Polowin J. in R. v. Farhan 2013 ONSC 7094, [2013] O.J. No. 5519.
[27] In considering the jurisprudence regarding the exclusionary provisions in s. 30 (10) (a) (i), Polowin J. reviewed several decisions including R. v. Dunn , 2011 ONSC 2752 and R. v. Schertzer [2008] O.J. No. 226, both being decisions by Nordheimer J.
[28] In the decision in Schertzer, Nordheimer J. stated as follows at para. 15:
[15] Further, in Monkhouse, Chief Justice Laycraft went on to explain the fundamental rationale for why business records are admissible without the need to call the author of the records. He said, at pp. 350-351:
These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.
[29] As was noted by Nordheimer J. in Dunn at para 22:
…. the principal reason why documents prepared in the course of an investigation retain their inadmissible nature, notwithstanding that they may constitute business records, is the concern that records prepared when litigation is contemplated can be intentionally or unintentionally colored or shaded in their contents. They therefore lose the fundamental requirement of reliability that business records are otherwise expected to have.
[30] In the same decision, Nordheimer J. also considered the common law admissibility of business records as had been well-established in Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608. It was set forth in that decision that records may be admissible at common law, as business records, if they contain: (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (VII) who had no motive to misrepresent.
[31] I have concluded that the prescriber verification letters are not business records contemplated by s. 30 of the Canada Evidence Act, nor are they business records under the common law principles as outlined in Ares v. Venner, supra . They are in simple terms interview statements incorporated into a form letter and signed by the physicians.
[32] The prescriber verification letters which the Crown seeks to adduce in evidence at the trial are firstly not records maintained by the physicians who executed them. They are not kept in their patient files and they are under no legal duty to maintain these records as part of their medical practices. Quite apart from these required features for a document to be characterized as a business record, given the evidence of the two physicians who testified, the records are of questionable reliability.
[33] Although I have concluded that the prescriber verification letters are not admissible pursuant to s. 30 of the Canada Evidence Act or at common law, I have also concluded that they are not admissible in evidence under the principled approach to hearsay. This approach requires that the admissibility of the proposed evidence be examined against the twin requirements of reliability and necessity. I have already determined that, based on the evidence of the physicians, serious questions remain as to the reliability of these records given their acknowledgments that some of the prescriptions, which they denied writing, may have in fact been written. Further, Kwan may have influenced one of the physicians in her understanding of the purpose of his inquiries and as such he may have thereby tainted her mind.
[34] With respect to the necessity requirement that, as well, is absent given that it is open to the Crown to call both of these physicians at trial to give evidence with respect to the prescription histories in question and to testify as to whether or not they actually wrote the prescriptions. No evidence was offered on behalf of the Crown that the physicians and their records would be unavailable for use at trial.
[35] In the result, for these reasons, the application by the Crown is dismissed.
Daley RSJ.
Released: December 7, 2015
COURT FILE NO.: CR-14-703
DATE: 2015-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SAID ATTALLA
Accused
RULING - CROWN APPLICATION RE ADMISSIBILITY OF PRESCRIBER VERIFICATION LETTERS
Daley RSJ.
Released: December 7, 2015