R. v. Charles H. Best Diabetes Centre 2016 ONSC 1761
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
CHARLES H. BEST DIABETES CENTRE
Applicant
M. Flagg, for the Respondent (Crown)
T. Balka, for the Applicant
HEARD: March 9, 2016
SALMERS J.
RULING ON APPLICATION
Introduction
1From its name, it is obvious that the Charles H. Best Diabetes Centre is involved in the treatment of patients with diabetes. The Best Centre was served with a production order for records of a patient, Desmond Morse. The Best Centre has produced the patient’s medical chart. However, the issue is whether the production order compels the Best Centre to obtain Mr. Morse’s blood sugar data that is on the website of an arm’s length party, Diasend, and then produce that data to the police. For the reasons that follow, in the circumstances of this case, the production order will be varied to specify that the Best Centre does not have to obtain or produce the Diasend data.
Analysis
2The production order was obtained pursuant to s. 487.014 of the Criminal Code. The application before me is for review of a production order pursuant to s. 487.0193 of the Criminal Code.
3The production order required the Best Centre to “produce a document that is a copy of Desmond Morse’s medical records (chart) including data/reports from his insulin pump.” The production order states that Appendix A to the order lists the items that are believed to be in the possession or control of the Best Centre that will afford evidence of the alleged offence of Mr. Morse. Appendix A itself states:
“Items to be searched For:
- All medical records in Desmond MORSE’s chart, including all data or reports generated by the Animas pump worn by Desmond MORSE that are in the possession of or are accessible by the staff at the Charles Best Diabetic Centre, located at 360 Columbus Road East, Brooklin.” [Emphasis added.]
4Mr. Morse wears an insulin pump. That pump stores data about Mr. Morse’s blood sugar. Mr. Morse’s blood sugar is a relevant factor in one of the charges that he faces. Mr. Morse is able to download his blood sugar data from that insulin pump at his home with software that is linked to a secure website on which his blood sugar data is analyzed and stored. Also, during Mr. Morse’s appointments at the Best Centre, his blood sugar data contained in the insulin pump was downloaded, linked to, and then analyzed and stored on the same secure website. That secure website is the website of a company known as Diasend.
5The Crown’s position is that because the Best Centre has Mr. Morse’s permission to access his blood sugar data on the Diasend website, the production order compels the Best Centre to access that website in order to download that data and then produce a copy of the data to the police.
6For a multiplicity of reasons, the applicant’s position is that the production order does not compel the Best Centre to access the Diasend website and produce data as the Crown submitted. The applicant’s counsel told the court that he had contacted counsel for Mr. Morse who advised that Mr. Morse was taking no position on this application.
7Pursuant to a s. 487.014 production order, a party must produce “a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.”
8There is a paucity of case law concerning applications to vary production orders pursuant to s. 487.0193, undoubtedly due to the provision’s recent addition to the Criminal Code. Nonetheless, in the extant jurisprudence, “possession” and “control” have been construed fairly narrowly.1 Courts have adopted a “common sense” reading of the phrase “possession and control” in s. 487.014.
9Diasend is a Swedish company that is totally independent of the Best Centre. There is no connection between Diasend and the Best Centre, either by ownership or corporate officers or directors or personnel. Diasend has possession and control of the website on which Mr. Morse’s blood sugar data is recorded and stored.
10The evidence is that the Best Centre has Mr. Morse’s permission to access his blood sugar data records on the Diasend website, but that the Best Centre only accesses the website for that purpose when Mr. Morse attends at the Best Centre for appointments. During his appointments, Best Centre staff review the records to assist in helping Mr. Morse manage his diabetes. When reviewing Mr. Morse’s data on the Diasend website, Best Centre staff may note that data on Mr. Morse’s medical records (chart) as staff deem necessary. Best Centre staff do not access Mr. Morse’s data on the Diasend website at any other times. Apart from what is recorded in Mr. Morse’s chart, the Best Centre does not store or keep records of Mr. Morse’s blood sugar data that was viewed on the Diasend website.
11The Best Centre had Mr. Morse’s permission to access the Diasend website to obtain his blood sugar data only to enable the Best Centre to assist in management of Mr. Morse’s diabetes. As stated above, the Best Centre only accessed the Diasend website for that purpose during Mr. Morse’s visits to the Best Centre. There is no evidence that Mr. Morse’s permission was that the Best Centre could access his data at any other time or for any other purpose. Apart from what is recorded on Mr. Morse’s chart, the best that can be found is that the Best Centre staff momentarily possessed and controlled Mr. Morse’s blood sugar data on the Diasend website while Best Centre staff viewed that website when treating Mr. Morse during his visits at the Best Centre. I am not satisfied that the Best Centre possessed or controlled Mr. Morse’s blood sugar data on the Diasend website at other times. Particularly, I am not satisfied that the Best Centre possessed or controlled the website data when the Best Centre received the production order.
12Mr. Morse was not at the Best Centre when it received the production order.
13The data in question were neither made, edited, formatted, nor stored by the Best Centre. To expand the accepted definitions of “possession” or “control” so that it applies to the circumstances of this case is neither in keeping with established jurisprudence nor in accordance with the objectives of the legislative provision governing such orders.
14Based on the evidence, I find that when the Best Centre received the production order, the only documentation or data that the Best Centre possessed or controlled about Mr. Morse’s medical condition, including his blood sugar, was contained in Mr. Morse’s medical chart. The Best Centre does not object to producing that chart.
15Accordingly, the production order cannot compel the Best Centre to access the Diasend website and produce data as requested by the Crown. The production order will be varied in accordance with the applicant’s request.
16After receiving the production order, the Best Centre also received a preservation order. After receiving the preservation order, the Best Centre was concerned that it might commit a criminal offence if it did not download and store the data in question. Therefore, the Best Centre downloaded and stored the data in question pending my ruling on this application. The Best Centre did so without asking Mr. Morse and contrary to its practice in dealing with Mr. Morse and accessing his data on the Diasend website only when he visited the Best Centre. In these circumstances, I am satisfied that the data obtained after receiving the preservation order cannot be viewed as data possessed or controlled by the Best Centre when it received the production order. For those reasons, that subsequent download of data does not result in the Best Centre having to produce that data pursuant to the production order.
17As that disposes of the application, it is not necessary to address the applicant’s other arguments. Those arguments for revocation or variation pursuant to s. 487.0193(4) of the Criminal Code included the following:
only Diasend could provide information and evidence about the accuracy and integrity of the records; and
only Diasend could provide information and evidence about issues of privilege between Diasend and Mr. Morse
18Diasend certainly would be the best entity to provide the data it analyzed and holds about Mr. Morse’s blood sugar data. Also, there may be merit to those other arguments of the applicant. However, I need not analyze those arguments because of my findings on the possession and control issues.
Summary
19For all of these reasons, when the Best Centre received the production order, the Best Centre was not in possession or control of Mr. Morse’s blood sugar data on the Diasend website. Accordingly, the production order does not compel the Best Centre to download that data from the Diasend website and then produce the data. The test to vary a production order pursuant to s. 487.0193(3)(a) of the Criminal Code has been met. Namely, it would be unreasonable to require the Best Centre to produce that data as the Crown submits is directed by the production order. Accordingly, the production order is amended so that the copies of documents or data to be produced are:
Desmond Morse’s medical records (chart) including data/reports from his insulin pump as contained in those medical records (chart), but that nothing herein shall be construed as compelling the Charles H. Best Diabetes Centre to obtain any further information from the Diasend website that is not already recorded in the medical records (chart) of Desmond Morse.
20While there may be merit in the other arguments advanced by the applicant, it is unnecessary. Accordingly, I have not analyzed those arguments.
21Both counsel are commended for their skilful argument on this matter.
Order to go accordingly.
Salmers J.
Released: March 10, 2016
Footnotes
- R. v. Rogers Communications Partnership, 2015 ONSC 70, [2016] O.J. No. 15; R. v. CTV, 2015 ONSC 4842, [2015] O.J. No. 4352