The constitutionality of mandatory reporting of gunshot wounds legislation.

• Author: Renke, Wayne
• Position: Canada

In its final report of October 2004, the Select Special Health Information Act Review Committee (the "Review Committee") decided that "the current provisions [of the Health Information Act] do not allow the police adequate access to health information to allow them to carry out their duty to enforce the law." (1) The Review Committee therefore offered a number of recommendations, including Recommendation 33: "The Government of Alberta should consider introducing separate stand-alone legislation requiring mandatory reporting by custodians to police services of gunshot wounds, stabbings and severe beatings" (the "Recommendation"). (2) It is worth emphasizing that no province, other than Ontario, has taken formal steps to introduce this type of legislation. (3) Whatever may be the position in the United States, the mandatory reporting of gunshot wounds is not Canadian law. The Review Committee did not provide any details about the contemplated legislation (e.g. when, exactly, reporting would be required; what, exactly, would be permissible uses of the information; how, exactly, police services would protect the information from improper use or disclosure; whether custodians would be granted immunity from civil or criminal proceedings for good-faith reporting). Nonetheless, despite its high level of generality, some observations may be made about the Recommendation's constitutional viability and political advisability. Mandatory reporting legislation, I suggest, is not necessary; current legislation permits reporting when it is warranted. The legislation, moreover, would face two types of constitutional difficulties: the legislation may fall outside provincial legislative authority and it may not be sustainable under the Charter. And even if the legislation could be supported under the Charter, there are good reasons for not enacting it. In the following, I will focus only on the gunshot wound reporting aspect of the Recommendation.

A patient's identity and the nature of his or her injuries are "health information" under the Health Information Act. (4) The basic rule is that health information may be used for health purposes only and may not be disclosed to third parties--such as the police--for non-health purposes--such as criminal prosecution. This basic rule, though, is subject to several statutory exceptions. A patient's health information may be disclosed to comply with (e.g.) a warrant or other court order. (5) A custodian may disclose health information to a police service "for the purpose of investigating an offence involving a life-threatening personal injury to the individual, if the disclosure is not contrary to the express request of the individual." (6) Finally--and this exception tracks the general public interest exception applicable to other confidentiality obligations--a custodian may disclose health information to "any person" (including a police service) "if the custodian believes, on reasonable grounds, that the disclosure will avert or minimize an imminent danger to the health or safety of any person." (7) In these circumstances, the public interest in disclosure outweighs the private interest in confidentiality.

This last exception is especially relevant in the gunshot context. There may be reasonable grounds for an apprehension that the shooter will arrive to finish the job. If the shooter does arrive, not only the patient but anyone in the vicinity will be at risk of injury. There may be reasonable grounds to believe that a third party has been shot or is at risk of being shot, and that the disclosure of health information concerning the patient will address the dangers to the third party's health.

This last exception has a few critical features. Disclosure is discretionary, not mandatory. Disclosure depends on a professional assessment of not only the injury, but its context. The objective of disclosure is defined broadly, but it is clear. The exception has a reasonably well-developed foundation in professional responsibility rules. (8) Furthermore, disclosure is expressly to promote health or personal safety. None of this betrays constitutional weakness. The same cannot be said of the mandatory gunshot reporting legislation proposed by the Review Committee.

Mandatory gunshot reporting legislation could claim some constitutional support. A province is entitled to regulate the use and disclosure of health information within the province. Under s. 92(14) of the Constitution Act, 1867, a province is also entitled to legislate in relation to the administration of justice in the province. Provinces do have significant legislative roles in even the criminal law area. Police services (other than the Royal Canadian Mounted Police) are regulated by provincial law. Prosecution services reporting to provincial Ministers of Justice or Attorneys General prosecute many criminal offences. The legislation, then, could be argued to be legislation in relation to health information; or, more specifically, in relation to the transmission of health information for purposes of the administration of criminal justice in the province.

This argument runs into two objections. First, the mandatory transmission of health information to the police does not serve (or, at least does not directly serve) individuals' health interests or the interests of the health system. It serves prosecution, a criminal law purpose. The legislation, then, falls outside the provincial entitlement to regulate health information. Second, by providing information to the police, the legislation creates a "prelude to prosecution;" (9) it establishes a warrantless information seizure mechanism that supplements police powers under the Criminal Code; it furthers investigations relating to criminal offences, concerning specific individuals. (10) These features of the legislation support its characterization not as legislation in relation to the administration of justice, but as legislation in relation to "criminal procedure," which is a legislative subject reserved to Parliament.

We have no decisive case law on whether mandatory gunshot reporting legislation falls within provincial or...