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 - APPLICATION TO ADMIT SPREADSHEET SUMMARIES
Daley RSJ.
[1] On this application the Crown seeks a ruling allowing for the admissibility of spreadsheet summaries prepared by John Kwan (“Kwan”) and Jagdeep Jodha (“Jodha”), inspectors with the Ministry of Health and Long-Term Care; and Detective Cynthia Baldree (“Baldree”) the officer in charge of the investigation of the alleged fraudulent activities by the accused.
[2] 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 $5,000, 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.
[3] In June 2011, Kwan prepared a report of his audits of the accused’s pharmacy, Rathburn Pharmacy. It was asserted on behalf of the Crown that the primary conclusion of the audit was that the accused was unable to provide receipts to establish that he purchased sufficient stock of 10 specific prescription medications, in order to justify the payment to him of monies by the Ministry of Health in respect of prescriptions he had purportedly dispensed to patients.
[4] A purchase versus sales summary for the accused’s pharmacy covering the period April 1, 2009 to April 1, 2011 was prepared by Kwan following his review of claims records submitted by the accused’s pharmacy to the Ministry of Health, in respect of 10 specific medications, which were supposed to have been dispensed during that period. The Kwan spreadsheet concluded that there was $355,625.04 in unsubstantiated prescriptions with respect to the 10 medications in question.
[5] Baldree reviewed Kwan’s report and also billing information with respect to the accused’s pharmacy and reports obtained from the accused’s pharmacy’s computer along with data provided to her by McKesson Canada Corporation (“McKesson”), a drug wholesale company.
[6] At the conclusion of the viva voce evidence and during the course of submissions, counsel for the Crown advised that the application, so far as it related to the spreadsheet prepared by Kwan, was being abandoned and that the Crown was only seeking the admission of the spreadsheet prepared by Baldree.
[7] Jodha testified on this application that he assisted in the collection of certain information which he provided to Kwan. In carrying this out, he attended at the accused’s pharmacy on May 10, 2011, for the purpose of obtaining records from the accused’s computer. Specifically, he wished to obtain copies of purchase records with respect to the 10 selected medications in question, as purchased by the accused from McKesson.
[8] He acknowledged that in carrying out this task, he used the accused’s computer, located within the pharmacy, and in searching for McKesson records, he accessed the McKesson website and extracted information relating to sales from McKesson to the accused. He acknowledged that the documents obtained by him electronically were not from the accused’s own computer records. He printed copies of the records extracted from the accused’s computer from the McKesson website.
[9] Jodha agreed that he had no notes of what documents he received from McKesson via the search conducted on the accused’s computer, nor any records of what he turned over to Kwan relating to McKesson records of any pharmaceutical purchases made by the accused.
[10] Baldree testified with respect to the investigation of the accused’s pharmacy which began in September 2011. She reviewed the spreadsheet report prepared by Kwan and as well requested records from the Ontario Drug Plan (“ODP”) with respect to billings paid to the accused’s pharmacy in respect of the 10 medications in question. Also, records were obtained pursuant to a search warrant from the accused’s pharmacy computer.
[11] A Production Order was also obtained in March 2012, which was drafted by Baldree and submitted to McKesson for production of records relating to the 10 medications for the period under investigation.
[12] Baldree was present during the search of the accused’s pharmacy and evidence was extracted from his computer and downloaded onto a thumb drive. In the course of her investigation she viewed gross profit reports and drug usage reports obtained from the accused’s computer, all of which were downloaded onto the thumb drive. Based on the information obtained, Baldree prepared a chart outlining her analysis of the quantities of drugs purchased by the accused, the claims alleged to have been made to the Ontario government and to third-party insurance companies and she then calculated the unsubstantiated amount of the accused’s claims in the sum of $329,294.99.
[13] As to her activities when on-site at the accused’s pharmacy, Baldree acknowledged that she did not take all invoices for medications purchased by the accused. She agreed that she was not involved in the actual search of any computer records at the pharmacy. She could not state whether all of the invoices, for the 10 medications in question, were located in paper form or off the accused’s computer. In testifying at the preliminary hearing she acknowledged that she did not see all of the invoices of purchase. She agreed that she could not say what was actually found during the course of the search of the accused’s pharmacy or on his computer.
[14] As to information provided to Baldree by McKesson, she testified that she forwarded the Production Order to Jennifer Zerczy, senior vice president, legal affairs, for McKesson. She further testified that she received the documentation, that formed the McKesson records, by email from Jennifer Zerczy on April 5, 2012.
[15] Although an affidavit executed by Jennifer Zerczy, relating to her activities in forwarding the McKesson records to the police, was filed on the Crown’s application, it is notable that the affidavit is undated. As to its signature, however, it is marked as having been sworn at Montréal, Québec, October 6, 2015. Baldree acknowledged that she did receive any affidavit attached to the McKesson records attesting as to their authenticity as McKesson records, which formed part of the evidence she relied upon in preparing her spreadsheet. She further acknowledged that she never met Jennifer Zerczy and that the only source of evidence she had from McKesson was in the form of the documents sent to her by email.
[16] It is also notable that the affidavit sworn by Jennifer Zerczy on October 6, 2015, while making reference to certain documents delivered pursuant to the Production Order, in the form of spreadsheets and documents displaying information recorded in the McKesson computer system, does not describe the spreadsheets and documents in any way, but simply states that the documents, sent pursuant to the Production Order, were true copies of records made in the usual and ordinary course of McKesson’s business.
[17] Detective Bridgette Brousseau (“Brousseau”) testified as to her involvement in the execution of the search warrant at the accused’s pharmacy on February 15, 2012. She was tasked as part of the search team to extract data from the accused’s computer via its software known as Fillware. She was to search for and obtain data with respect to the 10 medications in question. The accused had two computers within his pharmacy, however only one was equipped with the Fillware software.
[18] Brousseau testified that she conducted a search of the Fillware software in the accused’s computer for the period April 1, 2009 to April 1, 2011, from which she obtained a drug usage report and a gross profit report regarding the medication in question. She acknowledged in cross-examination that she did not check the other computer located in the accused’s pharmacy as to any inventory that may have been recorded as purchased on that computer. She searched the Fillware software with respect to the gross profit report regarding the medications in question but acknowledged that she did not look elsewhere for any purchases with respect to the medication as may have been recorded.
[19] Notably she acknowledged that she could not say whether the data collected from the accused’s computer, which was equipped with the Fillware software, was data actually being held on the accused’s computer, or elsewhere. She further agreed that when a pharmacy changes hands and a new owner takes over, a new Fillware account would be created. Further, she confirmed that as of the date she conducted the search on the computer, the accused was no longer the owner of the pharmacy.
[20] In his submissions, counsel for the Crown acknowledged that the two reports extracted by Brousseau from the accused’s computer may be of questionable reliability as the information obtained may in fact relate to the subsequent owner’s records.
[21] It was submitted on behalf of the accused that the Baldree spreadsheet was prepared based on information obtained from two sources, namely the Ministry of Health records and the McKesson records and that as these source records were not proven to be business records, the Baldree spreadsheet is thus, on its face, inadmissible.
[22] As part of the evidence on the Crown’s application, an affidavit by Simon Lee, Manager of Pharmaceutical Strategy in the Drug Program Services Branch, sworn October 28, 2015 was filed in evidence. This affidavit was filed to support the Crown’s position that data provided to Baldree from the Ministry of Health regarding the prescription claims submitted by the accused, was kept in the form of business records within the context of s. 30 of the Canada Evidence Act or constituted a business record at common-law.
[23] The Lee affidavit is a very general and generic affidavit in that it simply describes the Ministry of Health’s Health Network System’s (“HNS”) provincewide computer network used for the purpose of tracking prescription drug products and therapeutic substances which were dispensed in Ontario and in respect of which coverage for the cost of those products was provided under the Ontario Drug Benefit Act. The affidavit offered no evidence as to the nature of the records purportedly relating to the accused, which were provided to Baldree for the preparation of her spreadsheet. Most importantly, there is no evidence within this affidavit or otherwise that any information conveyed to Baldree was in the form of a business record made in the usual and ordinary course of the business of the Ministry of Health, or its related agencies.
[24] Similarly, with respect to the email information provided to Baldree from McKesson, this witness acknowledged that in the course of considering that information, she never relied upon any affidavit evidence from McKesson, as to the accuracy or authenticity of the information conveyed to her, nor was she provided with any evidence that the information provided by McKesson represented a record made in the usual and ordinary course of business of that company. The only affidavit produced by McKesson with respect to the information conveyed was the affidavit of Jennifer Zerczy sworn on October 6, 2015. It makes no specific reference to the documents in question and simply makes the bald, unsupported statement that the spreadsheets and documents referred to in the affidavit were true copies of records made in the usual and ordinary course of business. None of the documents or records generically referred to in the affidavit are identified by the deponent.
[25] I have thus concluded that the underlying source documents from McKesson and as provided by the Ministry of Health to Baldree are themselves inadmissible for the reasons expressed.
[26] In the Court of Appeal decision in R. v. Scheel 1978 2414 (ON CA), [1978] O.J. No. 888, Martin J.A., in considering the admissibility of summaries of certain financial records, stated as follows at para 13:
We are all of the view that the summaries, based on evidence which had been properly admitted, were inadmissible to assist the jury in understanding the entire picture represented by voluminous documentary evidence. The usefulness of the summaries depended entirely, however, upon the acceptance by the jury of the proof of the facts upon which the summaries were based.
[27] More recently, Cowan J in R. v. Agyei [2007] O.J. No. 3914 (O.C.J.), in considering the admissibility of business records. In this case the court considered a spreadsheet prepared by a witness called on behalf of a bank. Although she did not create the source records used to prepare the spreadsheet, she testified that she had personally verified the information contained in the source records and was satisfied as to the records’ accuracy. It was also her evidence that the records in question were kept on the bank’s electronic system for maintaining its banking records.
[28] In my view, the records and source information obtained by Baldree from the Ministry of Health and from McKesson, standing on their own would not be admissible as the evidence offered did not demonstrate that these documents and records were business records within the terms of s. 30 of the Canada Evidence Act or within the common-law. As such, I have concluded that the spreadsheet prepared by Baldree stands no higher than the inadmissible source information and in the result the spreadsheet is inadmissible: R. v. Farhan [2013] O.J. No. 5579.
[29] Quite apart from the fact that I have determined that the spreadsheet is inadmissible as not being a business record, the viva voce evidence on this application gives rise to very serious concerns as to the accuracy and reliability of the spreadsheet and its underlying sources.
[30] In the result the Crown’s application 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 - APPLICATION TO ADMIT SPREADSHEET SUMMARIES
Daley RSJ.
Released: December 7, 2015