Court File and Parties

COURT FILE NO.: CR-17-338 DATE: March 29, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Tim McCann for Her Majesty the Queen

- and -

ALBERT TREMBLAY AMANDA RUDDY Cedric Nahum, for the Accused Tremblay Mellington Godoy for the Accused Ruddy Accused

DATE HEARD: March 18, 2019

VOIR DIRE RULING RESPECTING BUSINESS RECORDS

James, J.

Introduction

[1] Earlier in this trial I made a ruling that the documents contained in voir dire Exhibit 1 (now Ex. 4) were admissible as business records pursuant to section 30 of the Canada Evidence Act with reasons to follow. These are my reasons.

[2] The documents in question consist of fax copies of prescriptions that were received at one of the two pharmacies that dispensed with medication involved in this case. These fax copies in several, but not all, cases included various handwritten notes and marks made by pharmacy personnel during the course of dispensing the medication.

[3] In addition, Crown counsel seeks to have documents referred to as the “prescription hard copies” admitted which set out the patient’s contact information, particulars of the prescription and other details. This document is computer-generated after the necessary information is inputted by pharmacy staff. Some of these documents have handwritten notes and markings on them as well. The evidence suggested that these markings were made during the course of dispensing the medication.

[4] Crown counsel called evidence from three pharmacists---one present and one former pharmacist at the Rexall Pharma Plus pharmacy in the Pembroke Mall and the pharmacist who owns and manages the Pembroke Shoppers Drug Mart.

[5] Sedu Gandhi is a pharmacist who worked at the Rexall Pharma Plus as a staff pharmacist from February 2016 until September 2016. Since that time he has been employed at a different location.

[6] Sameer Lail has been the managing pharmacist at the Rexall Pharma Plus Pembroke Mall location since May 2018.

[7] Andrew Rey-McIntyre is and was the pharmacist who is the owner/manager of the Shoppers Drug Mart in Pembroke.

[8] Messrs Lail and Rey-McIntyre were called to give evidence as persons knowledgeable in the area of pharmacy operations and records maintenance. They described the process whereby a prescription arrives at the pharmacy, in this case by fax, how and who processes the prescription. The evidence disclosed that the dispensary staff is made up of one or more of the following: a pharmacist, a pharmacy technician and a pharmacy assistant. A pharmacy assistant does not necessarily have any formal training but the others do. The operations are conducted under the supervision of the pharmacist. The paperwork appears to be standardized for all prescriptions but there are added requirements for narcotics.

Position of the Parties

[9] Crown counsel says that the documents in question meet the requirements of the statute.

[10] These requirements are summarized in the text, McWilliams, Canadian Criminal Evidence, at page 20:70.10 as follows:

Essentially, the contents of a business record are admissible for their truth where (1) the record is an original entry; it was made (2) contemporaneously with the event recorded; (3) in the course of normal business routine; (4) by a person who was under a specific duty to do and record the thing sought to be established by the record; and where that person (5) had no motive to misrepresent.

[11] Both defence counsel take issue with the inclusion of any handwritten notes or marks that may be placed on the documents.

[12] Mr. Nahum on behalf of Mr. Tremblay also takes issue with the adequacy of the notice required by the statute.

The Prerequisite Conditions

[13] I will address each of the prerequisite conditions in turn.

Are the documents business records?

[14] Subsection 30(12) sets out what may be included in the definition of a record.

[15] Subject to the restrictions contained in subsection (10), which are not applicable here, it is an expansive rather than narrow definition. In my view the “records” included all the documents involved in preparing a prescription starting with the fax transmission copy of the prescription sent to the pharmacy from the office of the prescribing physician which commences the process. In this case all the prescriptions were faxed to the pharmacy and the faxed copy of the prescription, as it was received at the pharmacy, was filed along with the prescription hard copy.

[16] I do not agree that the handwritten portions and marks ought to be excluded. The pharmacist witnesses described the process of filling a prescription which occurs within a relatively quick turnaround time. The prescriptions are ready for pick up the same day or maybe the next day. The marks vary from prescription to prescription and from pharmacist to pharmacist but generally they relate to matters such as confirming that the medication has been double counted to ensure accuracy, the number of the bin from which the medication was taken, the expiry date of the medicine and often an initial of the supervising pharmacist. In some cases there is a note referring to some unusual aspect of the prescription or if there has been a communication with the office of the prescribing physician or referencing the identity of the person who picked up the prescription. All these entries make up the record and can be explained as an aspect of preparing the prescription. There was nothing in the evidence of the pharmacists who explained the routine related to the dispensing process and the maintenance of pharmacy records that prompted a concern that the handwriting was unreliable or was not made contemporaneously with the dispensing of the medication. There is no principled reason to redact or delete portions of the record as they exist.

Is the record an original entry?

[17] This inquiry starts with the copy of the prescription that is faxed to the pharmacy. The records include the original copy of the fax. By definition a fax is a copy of the original but for the purposes of this voir dire I would treat the document that is printed by the receiving fax machine as an original document. As for the prescription hard copy, the proposed record is the printed copy of the inputted information necessary to complete the dispensing process.

Is the record contemporaneous with the event recorded?

[18] The evidence of the pharmacists established that the dispensing process occurs quickly. The faxed prescription portion of the record initiates the process which is completed the same day or the next. I am satisfied the records are contemporaneous.

Are the records made in the course of normal business routine?

[19] I am satisfied that these records are part of the normal business routine of the dispensary section of a pharmacy. All the prescriptions involved in this case consist of the same two documents: the fax copy of the prescription and the prescription hard copy.

Is the record created by a person under a duty to do and record the thing sought to be established?

[20] This inquiry starts with the doctor who wrote the prescription that got faxed to the pharmacy. This requirement is satisfied by the fact that medical doctors prescribe medication and send the request to a pharmacy. The dispensing staff share duties which appear to be interchangeable to some extent. Data entry to generate the prescription hard copy may be performed by anyone working in the dispensary, but all are under a duty to properly fill the prescription which takes place under the supervision of a pharmacist who has ultimate responsibility. The duty referred to in the statute can be a legal or professional duty but may also arise as an aspect of the person’s employment contract, that is, their job position, responsibilities or “duties”.

Does the record maker have a motive to misrepresent?

[21] There was nothing in the evidence that suggested the dispensing staff had a vested interest in any outcome other than to dispense the medication quickly, accurately and in compliance with regulatory requirements. There was an absence of evidence of a motive to fabricate, misrepresent or falsify the records.

Notice

[22] Subsection 30(7) provides that unless the court orders otherwise, no record shall be admitted in evidence as a business record unless at least seven days’ notice of a party’s intention to produce the record has been given. The ability of the court to dispense with the notice requirement distinguishes the federal legislation from its provincial counterpart.

[23] No particular form of notice is specified but the notice should sufficiently describe the documents and indicate the intention to introduce them as business records (see Boroumand v. Canada, 2016 FCA 313). In this case Crown counsel wrote to defence counsel in August, 2017 forwarding additional disclosure material wherein he specifically referenced prescriptions and said that “to the extent that this disclosure contains documentary evidence, this letter is notice that copies of such documents may be tendered in evidence at trial, preliminary inquiry or both pursuant to section 23 and 30 of the Canada Evidence Act.” It does not appear that defence counsel responded requesting any further particulars. Ideally, documents sought to be admitted pursuant to the business record provisions of the statute ought to be individually itemized in a notice that is accompanied by an affidavit of service. In the circumstances here, however, I am satisfied that the correspondence gave the other parties sufficient notice to warrant a responding inquiry if further information was required. Alternatively, I would dispense with the requirement of formal notice in this situation.

[24] For these reasons, the records in question were admitted pursuant to the provisions of section 30 of the Evidence Act (Canada).

Mr. Justice Martin James

DATE RELEASED: March 29, 2019

COURT FILE NO.: CR-17-338 DATE: March 29, 2019 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN

• and – ALBERT TREMBLAY and AMANDA RUDDY REASONS ON VOIR DIRE Mr. Justice Martin James

DATE RELEASED: March 29, 2019