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Thursday, May 07, 2009

Charter expert says Alberta legislation on gunshot and stab wound reporting could be unconstitutional

A new piece of legislation that would make it mandatory for health care facilities and emergency medical technicians to report gunshot and stab wounds was introduced in the Alberta Legislature earlier this week, and the proposed law has one Calgary lawyer crying foul.

When law enforcement and heath care objectives collide in Alberta, should the rights of patients prevail over public safety concerns? Defence lawyer Michael Bates with Ruttan Bates LLP says “yes.”

“I cannot think of a more important fiduciary and confidential relationship than that of doctor-patient,” said Bates in an exclusive Western Standard interview.  “The public interest in proper investigation of crime is not important enough to violate the privacy of an individual who indeed presents his or her actual physical person and all of its secrets to a medical professional in order to seek aid. Prevention of impending crime or harm is one thing, but this Act is not addressed to that issue,” Bates continued.

Bates, who has appeared in the past before the Supreme Court of Canada, believes that Alberta government may be in violation with section 8 of the Charter of Rights and Freedoms which states that “Everyone has the right to be secure against unreasonable search or seizure.”

“Bill 46 specifically seeks to create a mandatory disclosure of intensely private information to state law enforcement officials as a precondition to receiving medical assistance. In my view that amounts to an unreasonable search and seizure pursuant to section 8 of the Charter,” concluded Bates.

Posted by Matthew Johnston

Posted by westernstandard on May 7, 2009 | Permalink


The Charter is a piece of shit and I resent the legal culture that has grown around it.

Posted by: Robert Seymour | 2009-05-07 5:25:45 PM

I don't like our Charter much either, Robert, but section 8 protects our basic legal right to due process.

Posted by: Matthew Johnston | 2009-05-07 5:44:17 PM

Matthew, except if a HRC complaint is involved.

Posted by: Alain | 2009-05-07 5:46:42 PM

Considering the fact that some of our learned members of the Supreme court have opined that they consider the Constitution a "living document", (code for "it means what we say it means"), i'm not sure how anything can be definitively considered unconstitutional.

Posted by: B clarkson | 2009-05-07 5:54:20 PM

Excellent point, Alain, which is why human rights matters are not criminal matters, although if one ingores a court order on a human rights decision these laws can have criminal implications like jail time.

Posted by: Matthew Johnston | 2009-05-07 6:07:14 PM

That's a fair comment, B clarkson, but section 8 is pretty uncontroversial. Without it we would have no constitutional right to due process.

Posted by: Matthew Johnston | 2009-05-07 8:07:11 PM

We had a constitutional right to due process long before the Charter was ever written. It is a right well supported by precedent in the tradition of English common law.

Posted by: Raging Ranter | 2009-05-07 8:59:38 PM

I'm with Robert Seymour. The Charter "is" a piece of shit. A meaningless "living" piece of shit. :)

Posted by: JC | 2009-05-07 9:03:00 PM

Well that is a bunch of bull. A (potential) crime has been committed and to hide behind the privacy section of the Charter is, like I said, bull.

The docs, I have to admit, are caught behind the 8-Ball in that scenario.

A judge can review the evidence and issue a judgment whether the alleged crime-doer's Charter Rights has been violated or not.

Posted by: Quebec1 | 2009-05-07 10:24:39 PM

A "potential" crime has been committed is almost the same as saying no crime has been committed? We have a presumption of innocence in Canada.

If you admit that health care workers are in a tight spot here, Quebec1, why support the legislation?

Posted by: Matthew Johnston | 2009-05-07 10:42:02 PM

Dudes, you are like totally missing the point. It isn't the criminals that have to reveal information to the doctors that the doctors have to reveal to the cops, it is the VICTIMS.

It is unnecessary in any case. The doctors pretty routinely call the cops on wounds and drug overdoses anyway. It isn't like there is some great big problem here that the law will solve. Mostly it is typical 'tough on crime' posturing.

Posted by: Norm & Al | 2009-05-07 10:47:24 PM

The patient goes through triage before seeing a doctor (even though that process may be fleeting in and emergency) and that is where the report should be made to the police. The police have the duty to try to apprehend the criminal before he/she has the opportunity to harm someone else. I don't see this as a charter problem.

Posted by: DML | 2009-05-07 11:54:17 PM

Well that is a bunch of bull. A (potential) crime has been committed and to hide behind the privacy section of the Charter is, like I said, bull.
Posted by: Quebec1 | 2009-05-07 10:24:39 PM

Under the vague and ambiguous legal system we have today (notice I don't say Justice system)we are all potentially criminals. So where does it stop, where do you draw the line?

Posted by: JC | 2009-05-08 5:44:58 AM

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