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In its final report of October 2004, the Select Special Health
Information Act Review Committee (the Review Commit-
tee) 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.' The Review Committee therefore offered
a number of recommendations, including Recommendation
33: The Government of Alberta should consider introduc-
ing separate stand-alone legislation requiring mandatory
reporting by custodians to police services of gunshot
wounds, stabbings and severe beatings (the Recommen-
dation).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 leg-
islation permits reporting when it is warranted. The legisla-
tion, moreover, would face two types of constitutional
difficulties: the legislation may fall outside provincial legis-
lative 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 par-
ties - 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.' 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 individ-
ual, if the disclosure is not contrary to the express request of
the individual.6 Finally - and this exception tracks the gen-
eral public interest exception applicable to other confidenti-
ality obligations - a custodian may disclose health
information to any person (including a police service) if
the custodian believes, on reasonable grounds, that the dis-
closure 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 con-
text. 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 concern-
Volume 14, Number 1 3
The Constitutionality of
Mandatory Reporting of Gunshot
Wounds Legislation
Wayne Renke
Volume 14, Number 1
3](ViewImageLocal?handle=hein.journals/hthlr14&div=1&collection=&method=preview&ext=.png&size=3)
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