R. v. France, 2017 ONSC 843

CITATION: R. v. France, 2017 ONSC 843

COURT FILE NO.: CR-17-10000034-0000

DATE: 20170202

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Joel France

BEFORE: MOLLOY J.

COUNSEL: Sapna Thakker, for the moving parties Mihael Cole and Heather Keating, for the Crown Nathan Gorham and Joanne Park, for Joel France

HEARD: January 30, 2017

ENDORSEMENT

[1] Joel France is charged with second degree murder in connection with the death of a two-year-old child. Mr. France was the boyfriend of the deceased child’s mother. On the afternoon of July 14, 2013, Mr. France and the child’s mother brought him to the Emergency Room of the Toronto Western Hospital, already deceased. Desperate attempts by ER staff to revive him were unsuccessful. There were a number of bruises and other relatively minor injuries on the child’s body. Medical staff called police and as a result of the ensuing investigation both Mr. France and the child’s mother were charged. The mother has since pleaded guilty to manslaughter and been sentenced. Mr. France’s trial is proceeding before me.

[2] On January 30, 2017, Ms. Thakker appeared before me as counsel for two of the doctors who treated the child in the Emergency Room, each of whom has been served by the Crown with a summons to testify as a witness at trial. Ms. Thakker requested that I make an order authorizing these doctors to disclose at trial personal health information about the deceased child. She advised that she was seeking such an order for the protection of the doctors “out of an abundance of caution” in light of the provisions of the Personal Health Information Protection Act 2004, S.O. 2004, c. 3, Sched. A (“the Act”).

[3] The relevant provision of the Act, which follows the heading “Disclosures for Proceedings,” is s. 41. It states:

41. (1) A health information custodian may disclose personal health information about an individual,

(a) subject to the requirements and restrictions, if any, that are prescribed, for the purpose of a proceeding or contemplated proceeding in which the custodian or the agent or former agent of the custodian is, or is expected to be, a party or witness, if the information relates to or is a matter in issue in the proceeding or contemplated proceeding;

(b) to a proposed litigation guardian or legal representative of the individual for the purpose of having the person appointed as such;

(c) to a litigation guardian or legal representative who is authorized under the Rules of Civil Procedure, or by a court order, to commence, defend or continue a proceeding on behalf of the individual or to represent the individual in a proceeding; or

(d) for the purpose of complying with,

(i) a summons, order or similar requirement issued in a proceeding by a person having jurisdiction to compel the production of information, or

(ii) a procedural rule that relates to the production of information in a proceeding.

[4] Counsel for the doctors acknowledges that they have been properly served with a summons within the meaning of s. 41(1)(d)(i) of the Act and also advises that the doctors will attend at trial in response to those summonses. Her concern is with respect to questions the doctors may be asked at trial. Whether the doctors are required to answer questions posed at trial is a matter to be determined by the trial judge at the time. A doctor who testifies at trial, under the supervision of the trial judge, cannot be said to have thereby breached any principle of confidentiality under the Act, any other legislation, or at common law. The witness is compelled by law to answer relevant questions and, in doing so truthfully, is not exposed to any liability. It is not necessary for an order to this effect to be issued by the trial judge prior to the witness attending at trial. There is no requirement for doctors to retain counsel and obtain a prior court order authorizing disclosure every time they are summoned to give evidence in a trial. That is an unnecessary expenditure of time and resources for the doctors involved. Further, and most importantly, the process of bringing such an application and issuing such an order is a waste of court time and resources, both of which are in limited supply.

[5] Accordingly, I declined to make the order requested.

MOLLOY J.

Date: February 2, 2017