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Should Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

One Comment
  1. I am shocked
    What are the Canadian law on
    A spouse getting control of my personal health files while I was away
    Then refusing to give me them
    Because He wanted and got upper hand in divorce
    I also got locked out of my owner joint title
    And he put up a camera then got a restraining order by lying to judge
    Then changed the locks
    I got scared of police they seem to have no clue re exclusive possession of matrimonial home
    And neither did the legal aid lawyer
    They said just wait a year
    It’s been 7
    He took the house and entire contents
    I never got in cuz he got a RO
    Every year and I gave up cuz
    I was v sick and he knew it
    He moved the mistress in got a high paid lawyer.
    Took my name off without my permission or notice
    Off home insurance he then
    Gor the entire property if matrimonial
    $500.000 and got it down to paying my share as $30000.
    The mediator even said all his # were wrong cuz he had all my documents from
    20 years ago
    I could not get mutual guns values now cuz over 5 years they did not files
    I kept every single paper
    I could not any docs prior to marriage
    For my property and finds prior
    He knew what he needed and planned it
    All
    He also said he closed his Inc
    But still on website and never got me full financial disclosure or discovery
    He just got a no contact order went to court with all false fudged made up invoiced cut and pasted them
    And came up with 30g
    He also used the city assessment
    For house and refused to get a real estate appraisal done
    He still has all the furniture and my clothes and shoes and entire 30 year
    Marriage.i traveled a lot and my picture are worth a lot before marriage
    I also had ERSPS AND Gold which he also never gave me
    At all .basically an abusive misogynistic liar
    I do have proof of him taking his mistress to exact resort we went to in Mexico
    He has never given me a cent
    I could not deal with stress as I had to survive with chronic complications from chemo
    And being kicked out with nothing
    Please give me some advice
    Thank you
    Sincerely
    Ms S Patel that I as a disabled person have no rights to my health records I kept meticulously from my ex husb

    March 20, 2017

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