JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, June 14, 2000

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[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call the meeting to order. This is the 59th meeting of the Standing Committee on Justice and Human Rights. Today we're dealing with Bill C-244, an act to provide for the taking of samples of blood for the benefit of persons administering and enforcing the law and good Samaritans and to amend the Criminal Code.

As we continue to hear from witnesses on this legislation, we are privileged today to be hearing from Gerald Chipeur, who is appearing as an individual; the Canadian HIV-AIDS Legal Network, represented by Richard Elliott; the Canadian Police Association, represented by Dale Kinnear and Isobel Anderson; and from the University of Alberta Hospital, Dr. Steven Shafran.

With that, I expect you all are aware of the way we do our business here. Each group has ten minutes for an opening statement, and then we'll proceed to questions from the members. Have you decided if it's going to be done in the order of presentation? If that's the case, then the first on my list is Mr. Chipeur.

Mr. Gerald Chipeur (Individual Presentation): Mr. Chairman, if it's all right with you, I would like to defer to Mr. Kinnear, and we can just go down the row this way.

The Chair: It's all right with me if it's all right with all of you.

Mr. Dale Kinnear (Director, Labour Services, Canadian Police Association): Thank you, Mr. Chair and committee members. My name is Dale Kinnear, and I appear today on behalf of the 30,000 members of the Canadian Police Association. I'd like to thank the chair and the committee for the opportunity to appear here today on Bill C-244. The Canadian Police Association has submitted a brief to the clerk. You'll find a copy of my notes in there, as well as some other background information.

I'm a police officer of some twenty years' general duties experience, and I'm here to try to provide some idea of the realities faced by front-line police officers who are dealing with the risk of communicable disease exposure in the course of upholding the rule of law.

I don't think there's any need for this panel to explain to the committee the escalating incidence of HIV, hepatitis B, and hepatitis C in the population. I don't think I need to tell you there are high-risk and high-incidence carriers of these communicable diseases in every region of the country—intravenous drug users, prostitutes, and the prison population, for example. For obvious reasons, some of these groups are liable to a higher incidence of interaction with the police, be it as victims of crime or as a result of police intervention in criminal activity. This sets the stage for the increasing amount of needle-sticks, deliberate attacks, and exposures that place our members at risk. You'll see at tab 6 some assorted newspaper articles that attest to that.

We're pleased that this proposed legislation is before the committee today and that we have the chance to address our members' concern. I would like to commend Mr. Strahl for putting this bill forward.

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We'll be the first to admit that perhaps in its present form, the bill is not perfect. There are some other issues that need to be addressed, particularly the balance between the right of the police officer to know and the right of the individual as regards that testing. But for all those reasons, we're pleased that it's before the justice committee to be heard and that appropriate witnesses are being called so that all concerns can be aired. We've sought this type of legislation for many years.

We've consulted with medical experts, and we know there are some in the profession who do not agree with our enthusiasm for this legislation. I believe you heard from some at Health Canada lately. In our opinion, those arguments are based on universal precautions and post-exposure treatment, and that is not necessarily all that's required to calm the fear of our members.

We realize there are post-exposure protocols in place. You'll see examples of those included in the brief as well. We welcomed those at the time and saluted the responsible jurisdictions for implementing them. The CPA and affiliate organizations played an active role in the initiation and development of those protocols, and although they do serve a purpose, they are in large part no more than due diligence and risk management on the part of governments, employers, and public health officials.

We don't condemn the spirit or the result. And although they provide useful post-exposure information for medical personnel, employers, supervisors, and employees, we don't believe they go far enough to address all the realities of an actual exposure.

Exposed officers need to be properly informed so they can make informed medical decisions. The so-called drug cocktail that is administered post-exposure brings its own medical risks. You'll hear about that from Constable Isobel Anderson from the Ottawa—Carleton Regional Police Service, who herself was in a situation where she had to take the drug cocktail. She can explain better than I some of the factors that go along with that.

Just to add to that, we're tracking the case of an officer down in the Maritimes, Nova Scotia, who as a result of having someone spit in his mouth took the cocktail, and within a month and a half or two months of that has gradually started to lose his eyesight. We can't produce any evidence here today that it is a result of that, but this person had no difficulties with his vision prior to this treatment.

We think there are precedents for this already, and the legal expert who is here today will give evidence on that in terms of comparisons to blood in impaired driving situations and DNA evidence. I won't get into that.

We recognize there are charter implications in this. There is legislation on the books that provides for the taking of samples in other circumstances. Again, you'll hear that from the legal expert. There are infringements upon the rights of Canadians within the criminal law, and the courts have deemed them as a justifiable limit.

We've heard the arguments and explanations about false negatives and false positives. I'll leave that to Dr. Shafran to deal with. We know there are some new testing methods and protocols out there. You'll see one of the tabs in the brief refers to a new test out of London that detects HIV in patients who were found to be HIV-free in conventional testing up to that point. There's a new screening test out there that provides results in 15 minutes. I guess I would ask a question of the committee. Are these new testing methods being considered for our own system? I can't produce any evidence on that today. I certainly hope so.

We think these kinds of advancements strengthen our argument that mandatory testing is a reasonable limit on the rights and freedoms of those who might be tested under the authority of legislation as proposed in this bill.

We think there should be some provision included in here as well for people who are assisting police officers in the lawful execution of their duty. I notice from the transcripts of yesterday's evidence at the hearing they seem to continually refer to what the benefit of this would be, what the risk of exposure is, and there was a constant overtone in there in regard to the person lying injured on the street and the police officer coming along to assist that person.

There's more to this than that. As you'll see from some of those newspaper articles, whether police officers are attacked by people they're trying to arrest or by people they get involved with in some type of intervention, we think this clearly establishes the nexus with the criminal law where police officers have been assaulted, or in the course of trying to uphold the rule of law have injured themselves, have been injured by the person they're trying to arrest, and there is an exposure.

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We think this is justifiable in certain circumstances. We're not looking for testing or screening of the population. I think this is going to come down to some very limited and very narrow circumstances where there will have to be that nexus with the criminal law. I think it's justified in those circumstances.

Bear in mind it's going to be laid out to a justice whenever you make that application. I would argue as well that in most situations there's going to be a medical doctor involved, whenever you attend at the hospital. That doctor is going to be contributing to the process, in that if it's just blood splashed on intact skin, the doctor in that situation is going to explain the chances of being infected. I think between the doctor and the justice of the peace or the judges, as the case turns out to be, there are going to be those safeguards in there. This is not just going to be some kind of fishing trip on the part of the police or on the part of the state.

As you'll see in one of the tabs in my brief, the Canadian Medical Association at their 1998 convention considered testing where there was risk of exposure for anybody coming into the medical system. Dr. Shafran will speak again on that.

The last point I want to touch on briefly is what was in the evidence yesterday regarding division of powers. The comment I would like to make on that is perhaps there were certain parts of this that belong quite rightly with the provinces, but I don't think the federal government wants to see ten different pieces of provincial legislation out there regarding this, particularly where it affects people's human rights. You're going to get a different piece of legislation in British Columbia from what you're going to get in P.E.I. Because some of those charter issues that were mentioned here yesterday, the federal government, in the Criminal Code, has to establish primacy over this. I think federal legislation is the place for this to be dealt with.

Again, if you look through the brief you'll see examples of deliberate attacks, different situations police officers get themselves in, whether it's having urine thrown on them, blood thrown on them, being spat upon. I told you the one situation where a prisoner, on purpose, spat into an officer's mouth while the officer was talking. We think that in those situations this is entirely justified.

We're asking for your assistance. In the police officer's profession you can't refuse unsafe work. There are situations where we have to intervene and take action that are far and away different from the good Samaritan situation.

Isobel, when she gives her explanation, can tell you how this affects not only the individual, but also their families. We would ask that you come to the assistance of police officers in this situation. It's not just about anxiety and calming people's anxiety. It's about the right to know, again balanced with the charter issues.

Thank you.

The Chair: Thank you very much.

Ms. Anderson.

Ms. Isobel Anderson (Police Officer, Ottawa—Carleton Police; Canadian Police Association): I'm here today to do my best to represent the people who are most affected by this issue. I bring a personal testimony, having gone through a significant exposure myself and sought treatment and answers after that, and having had the nightmare of having the source of the exposure refuse to supply a blood sample.

Having taken an active role in an attempt to correct what is clearly an imbalance of rights, I know my experience is not unique to me alone. In fact, hundreds before me have lived this nightmare, and it continues to happen.

During yesterday's presentation from the justice and health ministers, it was suggested that the focus should be made on universal precautions for first responders. However, what I think needs to be recognized is that in most cases where exposure would occur we often do not have the time or the option to suit up in a manner that would ensure that risk of exposure is reduced or eliminated. A police officer's first priority when responding to any call is to eliminate the risk so the community is made as safe as possible.

On October 1, 1997, I responded to an armed robbery just a few blocks from here. I arrived on scene within a few short minutes. After ascertaining that there were no life-threatening injuries, I set about to locate the suspect. A few blocks west of the drugstore, I came across a person fitting the description. I had a victim witness in the cruiser with me, who immediately identified the individual as being the suspect. I proceeded to perform a high-risk arrest, having been told earlier in the broadcast that the suspect was armed with a handgun.

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I handcuffed the suspect and before searching him I asked him three times, “Do you have any needles, knives, or guns, or anything that could hurt you or hurt me?” And three times he answered no.

It has been published that I put my hand in the suspect's pocket, but I'd like to point out, at this time, that I did not. I searched him the way I was trained by our use-of-force instructors—that is, I pulled the suspect's pocket out, and as I did so I was stuck by an uncapped needle that had fresh blood in the body of the syringe. I recoiled in horror, realizing what had just happened. I remember thinking, “Oh my God, I have AIDS!”

Fortunately, the back-up units arrived, allowing me to proceed to the hospital for treatment. When I arrived at the hospital I was told by the doctors that I had a two-hour window period, up to 36 hours on a sliding scale, to take a chemical cocktail that is said to either reduce or eliminate the risk of contacting HIV. I was told further that should the subject agree to submit to a blood test, and should the test results be negative, I could cease taking the medication, as I was informed that this medication could potentially be harmful to me if taken for a prolonged period of time.

There seemed to be a light at the end of the tunnel upon hearing this, and I called the police station and asked that the subject be brought to the hospital to undergo the testing.

I was informed after approximately half an hour that he had refused, and I was devastated. I proceeded to take the medication and within ten minutes of taking it I started experiencing the nausea. I stopped at the station to hand in my equipment before I went home and was told that the subject had changed his mind and he was on his way to the hospital to submit to a blood test.

I asked what had made him change his mind, and I was informed that, fortunately for me, he was hungry. He had bargained with the officers to buy a Big Mac meal if he would submit to a blood test.

The subject test was negative for HIV, but he was positive for hepatitis C. I cannot describe to you the relief I felt just knowing the results, even though I knew that there was a possibility I had contacted hepatitis C. I knew then I could prepare myself mentally and physically to meet whatever challenges were ahead of me. The monster now had a face. I was no longer facing an unknown. And as for the HIV, I knew that even though the subject had tested negative, meaning that the possibility of my contacting the HIV was reduced even further, I still had to err on the side of caution and continue to test for up to a year.

Fortunately, I tested negative for both HIV and hepatitis C. And I am grateful to have been given a new lease on life.

You may ask me what the benefit of testing the source could be, and I would answer that it would help me make a more informed choice on my health. Getting both mine and the subject's test results back in a couple of days would save my having to subject my body any further to the brutal assault of this intense form of chemotherapy. I am told the side effects can be serious and sometimes permanent. Stopping the prophylaxis means getting well and returning to work sooner.

There is also the financial aspect. A month's supply of this medication is in the region of $1,000. Another is that the information could be beneficial to the source if he or she had not been tested and then tested positive. It could be a deterrent for spreading the disease.

The elimination of anxiety is an important issue. You cannot begin to imagine the emotional trauma of going through such an exposure, having to adjust the level of intimacy with your spouse, your children, your family, and even your co-workers. It was my responsibility to make sure I did not put them at risk.

I remember being apprehensive about returning to patrolling the streets, knowing the risk was out there and will always be there. I would like to bring to your attention information from our health care representative that I obtained this morning: that in 1997 our department alone had 40 significant exposures. In 1999 we had 38. I am also told that the numbers continue to rise. How high then should they rise before the rising is done?

These diseases are a very present threat to our society. As a police officer I do not have the option to pick and choose who I attend to. I took an oath to save lives. And the fact that I made that oath does not mean I am expendable or any less a human being.

Most importantly, and most important for me, I am a mother. I am a mother of three and I'm my children's sole guardian. I'd like to know that twenty years from now I can be at my children's wedding or graduation or whatever the case may be. My children's livelihood and safety is utmost for me.

I take responsibility for my actions, and rightly so. In the same way, should not a person who has put another person in a life-threatening situation be made to take responsibility for their actions and to do the right thing?

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Lastly, I would like to point out that the Charter of Rights and Freedoms was intended, as I understand, to balance rights. A solution is required here by the thousands of men and women who, on a daily basis, put their lives on the line to make sure that you and I live free from fear and harm.

I'm asking that you give this serious consideration. I know that had this bill been in place that night, I would have had reassurance from the very beginning, and I would have saved my family, my friends, and even myself the needless anxiety we went through.

Thank you.

The Chair: Thank you very much.

Dr. Shafran.

Dr. Steven Shafran (Professor of Medicine, Director of Infectious Diseases Division, University of Alberta Hospital): Thank you very much, Mr. Scott. I appreciate the opportunity to be able to give some evidence today, particularly since I was in Ottawa attending a meeting of another federal government committee. I'm trying to use the taxpayers' money wisely, if I can.

The Chair: So do we.

Dr. Steven Shafran: I'm here as a specialist in infectious diseases and a professor of medicine and director of the division of infectious diseases in the department of medicine at the University of Alberta.

I have been involved with the HIV epidemic really since the beginning. I did my infectious disease training from 1983 to 1986 in Vancouver, where the outbreak was unfolding, and I've been in the field ever since, watching us deal with infections that we've tried our best to treat, going through the availability of the first drugs, and up to the situation now, where we have 14 drugs and are making enormous impact on the lives of those infected who are willing to come forward to undergo treatment.

I should tell you that my practice in HIV is quite varied. In northern Alberta we have quite a mixed clientele. We have gay men, we have a lot of injection-drug users, we have a lot of aboriginals, and we also run a clinic every month in one of the provincial prisons, because there's a very high rate of HIV and hepatitis C disease in the correctional systems throughout the country, and that's relevant to the proposed legislation.

I'm here to bring some medical evidence to bear and to speak in favour of the philosophy of where this bill is going, although I don't consider it to be perfect legislation in its present form.

The purpose of this legislation, as I see it, is to identify the risk of exposure to the blood-borne pathogens, specifically, hepatitis B, hepatitis C, and HIV, and then to allow rational decision-making regarding the use of post-exposure prophylaxis.

The risk of transmission of these blood-borne infections following percutaneous exposure, such as a needle stick, is about 10% to 40% for hepatitis B, 5% to 9% for hepatitis C, and about 0.3% for HIV. The risk is lower following exposure to mucous membranes and through human bites, but both clearly transmit infection. On rare occasions, transmission has been documented through splatter injuries to skin, but these occur at rates that are too low to calculate accurately.

At the present time, we have post-exposure prophylaxis available for both hepatitis B and for HIV, but not for hepatitis C. I do believe that sometime before I retire we will have effective post-exposure prophylaxis for hepatitis C, but not in the next few years.

The only one for which we have any type of pre-exposure prophylaxis is hepatitis B, where we have an effective vaccine, although I do point out that 10% of people do not produce protective antibody when given the hepatitis B vaccine, and that 10% is still at risk for infection.

We have school-based immunization programs for hepatitis B throughout the country. A generation from now we will have relative herd-immunity and the hepatitis B problem will go away. But that's many years off.

I think there are a number of benefits to the proposed legislation. Exposure causes significant anxiety because of the fear of blood-borne viruses. I read the transcripts of yesterday's testimony, and I seemed to think some Health Canada officials were playing down the issue of anxiety. I have difficulty understanding that, since I thought we were in a society where mental illness is considered as important as so-called physical illness.

There's tremendous anxiety associated with the exposure. It relates to not just whether the person is infected, but how it affects their personal life, particularly their sexual life. If they're a regular blood donor, they're going to have to avoid donating what's in short supply, and so on. So there are a lot of ramifications there as well.

The exposed person is not going to know with certainty until up to six months following exposure. So the anxiety is not just momentary; it lasts for six months in most cases. So there are real challenges here.

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The specific benefit of the legislation is that since the prevalence of infection with all three blood-borne viruses in Canada is low, if the source individuals were tested, the majority would test negative, and very quickly the anxiety level in the exposed individual would be reduced.

In the event that transmission does occur, there will be documentation as to how it occurred, and this is relevant in terms of issues of occupational exposure. I've dealt with the Workmen's Compensation Board in Alberta with claims of occupational infections with hepatitis C, and one needs a good case that it was acquired in the line of duty, as opposed to through other means.

The prompt identification of infected source patients will allow the most appropriate and judicious use of post-exposure prophylaxis, which is particularly relevant in the case of HIV because the post-exposure prophylaxis we administer consists of two or three drugs administered for four weeks at a cost varying from about $400 to $1,100. Incidentally, I read yesterday's testimony where a Health Canada official was saying 12 weeks. I have no idea where he got that information, because nobody gives 12 weeks of post-exposure prophylaxis. I don't think that individual has any personal experience treating either people with HIV or people who have had exposures.

These HIV drugs that we use all have quite significant side effects, at least in some people, including drug interactions and unknown effects on the unborn in the case of pregnant women. So it leads in some cases to the deferral of starting families. I've personally seen that happen with some exposed health care workers I've treated over the years.

We're not exactly sure of the precise efficacy of post-exposure prophylaxis, but in the best available study from the Centres for Disease Control in Atlanta using a single drug, AZT, which we now consider to be one of our less potent drugs, there was 81% protective efficacy, meaning that there was an 81% reduced risk of transmission following needle exposure with just one drug that's not all that potent. That is very similar to the 68% reduction when that same drug is given to pregnant women in terms of transmission to the child. The order of magnitude is really quite similar.

It's widely held by pretty much everyone in the HIV-AIDS field that combination drugs will be more effective, but nobody believes they'll be 100% effective. Indeed, there have already been a few case reports of transmissions despite starting multiple drugs. So we don't believe this is 100% effective, but we certainly believe it is substantially effective.

The next issue I want to discuss is voluntary versus compulsory testing. Some argue that we don't need legislation. Why not do voluntary testing of source individuals? I think this is drawing on the experience in hospitals where this practice is done and it works very well. We have needle-stick response programs in hospitals, and for the patients we're running about a 99% voluntary consent rate for being tested in the hospital setting.

If the only exposures were in occupational health care, I would not be in favour of this type of legislation. However, when you go outside of the health care setting, especially in the correctional and law enforcement environment, the rules are different. In health care we have a cooperative and collaborative relationship between patients and health care workers, and you can understand why consent rates would be high. But clearly there's an adversarial relationship with regard to peace officers and correctional workers.

The other thing is that although it was correctly mentioned yesterday that the prevalence of HIV in the hospital is higher than in the community at large, which I would agree with, the prevalence in prisons and in the accused is way higher than in hospitals. So it's even higher still. We know—and evidence has been given here—of instances where inmates in facilities or accused individuals willingly bite, spit upon, and attempt to expose peace officers and correctional officers as a form of taunting, more or less an intimidation. That clearly occurs.

The next issue I want to discuss is this window period, which is much maligned, I think. The window period for testing for HIV is in the period between the time when the infection actually occurs and the tests detect infection.

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The window period actually depends on which tests are used and what the principles of the tests are. The most common tests used for detection of HIV infection are tests to look for antibody. After exposure, the immune system takes a bit of time to produce antibody. Typically, it takes three to six weeks for antibodies to form, but really it can be as short as two weeks and it can be as long as six months. That's why it is an imperfect test for new infection; that is, if one is using antibody-based tests, which is the most commonly used test.

However, a couple of points need to be made. When you couple the relatively low prevalence of HIV in society at large and narrow it with the probability that a person was only infected in the last few weeks, now we're talking about a very rare event. We use serology, these antibody tests, every day in our practice in our needle sticks to influence our decisions, unlike the suggestions from Health Canada. In the voluntary testing that happens in the hospital patients, if they test negative, we do not offer post-exposure prophylaxis. It very much influences the way we practise.

The second issue I want to discuss related to that is tests other than antibody tests. Some of you may know that Canadian Blood Services and Héma-Québec are responsible for the safety of the blood system. When they screen blood, they have multiple systems in effect for screening blood, including donor questionnaires related to lifestyle. They also test the blood for HIV antibodies, which is the standard test, but they do a different supplemental test called nucleic acid testing. This is a test for the presence of the virus, not the antibody. It shortens the window period to less than a week. The testing is out there; it exists. There is no reason why nucleic acid testing could not be applied to source blood from the kinds of exposures this legislation addresses.

So the window period is a moving target, based on our technology, and our technology is getting better and the window period is getting smaller. I'm not sure we will ever have a test that will be 1,000% accurate in detecting infection, but I think you have to compare this to many other tests we do in medicine, and tests for HIV are far more accurate than tests for many other things we do. They're way more accurate than mammograms for detecting breast cancer and on and on. They're pretty darn good tests.

I think that's why I believe this legislation has a lot of merit. There are some logistical concerns that I think I should put on the table, the first of which is speed. Post-exposure prophylaxis, as far as we understand, works best when it's administered as soon as possible. We don't really know what the window is. A Health Canada official yesterday said two hours. I'm not sure where that figure came from. The Centre for Disease Control recommends it be done within 36 hours, but in clinical practice in the largest study available it was done within four hours in 67% of cases. So speed is of the essence. If we are really asking for representatives of both the source and the exposed individuals to come before a judge with counsel, this isn't going to have any practical utility.

This type of legislation will only work if there is some way to get an order within a matter of hours. I'm not quite certain how that could be achieved. There clearly has to be counselling of not just the exposed individual but the source individual so that this individual understands what their blood would be tested for and what it means if it's positive and what it means if it's negative.

The third issue is the confidentiality and access to information. Not only must the system protect the confidentiality, but there would have to be an ensurance that the exposed individual, who say is a police officer in some instances, would maintain the confidentiality of the results with respect to that source individual, particularly if the exposed individual didn't belong to a profession where that was part of their professional code. If it does, then it's already looked after.

The last two logistical issues are costs and public health issues. In terms of the costs, I don't know who would be paying for this testing; I'm just putting that on the table. And if we throw in nucleic acid testing, it's even more expensive than antibody testing. And I certainly don't know who would pay for the drugs.

My experience in terms of paying for the drugs when post-exposure prophylaxis is actually needed has been that first of all, if we allow testing, very few people are going to need post-exposure prophylaxis, so the drug costs will go way down if we can test. But when the drugs are needed, if it's in the line of duty, my experience has been that it's been paid by the occupational health programs for the people involved. But if you're a good Samaritan, you may have no occupational health program, so we don't know who's paying for these drugs at up to $1,100.

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The last thing is to point out the public health reportability. Granted, this is a provincial jurisdiction, but if the source subject tests positive for one or more of these viruses, there are requirements under the public health act in the various provinces and territories, which would need to be fulfilled.

The Chair: Thank you very much.

Our next witness is Mr. Chipeur.

Mr. Gerald Chipeur: Thank you very much. I will not take long this afternoon. I will try to be brief so that we can go into questions and answers and address issues of law and the Constitution that are of interest to this committee.

I have provided the committee with a copy of a letter I provided to a Mr. Chuck Strahl setting forth my opinion, and I've provided it to you in both French and English.

I also have with me, for your reference if you would like to take it with you, the original article my opinion is based upon, which was written and published in 1992-93. At that time I presented on the subject of compulsory blood testing at a conference in South Africa and the presentation was subsequently published in the International Journal of Medicine and Law. In that article I reviewed the law in Canada, generally, and focused on a particular decision of the Supreme Court of Canada, and that's the decision in R. v. Dyment, in 1988. In that decision, the Supreme Court of Canada addressed the issue of compulsory blood testing. To quote from the decision, I said:

In Dyment the accused was involved in a motor vehicle accident and taken to the hospital. At the hospital a doctor took a blood sample without the accused's knowledge or consent and then gave it to a police officer.

This raised the issue of privacy rights, rights against unreasonable search and seizure under section 8 of the charter, and the court addressed the issue of the accused's rights in that kind of situation where the state took away the accused's right to a health care test, and in fact tested the blood, and in this case tested it for non-medical reasons.

Justice La Forest wrote for the court and he made it very clear that the invasion of privacy, such as compulsory blood testing, will only be sanctioned by the charter where societal claims outweigh the privacy interests and where clear rules exist setting forth the conditions under which the right to privacy can be violated. Such rules would of course also be subject to charter scrutiny, he said.

In Dyment there were no such rules, and in that case the invasion of privacy was found to violate the charter. This is what I said:

The effect of the Supreme Court's decision in Dyment is to render non-consensual blood testing by government unconstitutional unless it is authorized by law. The case also suggests a high standard against which any law authorizing such testing will be measured. Laws authorizing `fishing expeditions of considerable latitude' will likely not meet the standard set by the charter.

Then I concluded by focusing on the law in Alberta and the common law with respect to this issue, and concluded that in fact there were some provincial statutes that did provide for compulsory testing in certain circumstances. And then I concluded as follows. I said

At the present time

—and this is 1992-93—

it would be difficult to establish that non-consensual blood testing of patients is reasonable under section 8 and justified in a free and democratic society under section 1 of the charter.

It would be even more difficult where the testing is to take place after the potential exposure to HIV. The weight of professional and academic opinion is against mandatory or compulsory blood testing. However, when considering the opinion of academics, one should keep in mind the observation of John Keown that some lawyers may have the tendency to state the law relating to HIV testing `as they would like it to be rather than as it is'.

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Then I said—and this is relevant to the state of medicine as it is today—that “if future advances in medical science make post-exposure HIV testing more useful, it may become easier to justify compulsory blood testing.”

I'm here today to render my legal opinion that we are at that day. It is my view that such advances in medicine have taken place that would today justify mandatory compulsory blood testing, notwithstanding the Charter of Rights and Freedoms protection of privacy in sections 7 and 8. The testimony you've just heard from Dr. Shafran makes it very clear that there is a societal interest involved, and that is the health of individuals who are enforcing the law. There is also efficacy to the test; in other words, this test will impact the health care these individuals will receive, these individuals who are enforcing the laws of the land.

With those two conditions met, there is also the third condition, and that is we actually have rules. This legislation will set rules, and that's one of the conditions the Supreme Court of Canada in the Dyment decision required. They required rules, they required a reason, a societal interest, and efficacy.

It is my opinion that today we have reached the point where society can justify this kind of invasion of privacy. We have to acknowledge it and admit it is an invasion of privacy, but we also have to weigh the societal interests at play here.

I can, just before I conclude, highlight a number of cases that you may wish to review as you deliberate and make your recommendations to the House of Commons. These decisions make it very clear that the Supreme Court of Canada and other courts in this country are concerned about the issue, believe that there is both a moral and legal issue involved in determining whether compulsory testing will take place. In virtually every case the courts have come down on the side of the societal interest in the health of the individual potentially infected and not on the side of the individual who has been the potential source of the infected blood.

Just to give you a flavour, I will briefly review a few cases that you may wish to review. The first is R. v. Cuerrier, 1998, 2 SCR 371. In that case the Supreme Court of Canada dealt with the issue of whether or not the intentional or negligent transmission, or potential transmission, of HIV by an individual who is aware they are HIV positive can be the subject of a criminal prosecution. The court said that it could be, and ordered a new trial in that case.

In R. v. Napora, a 1995 decision of the Court of Queen's Bench in Alberta, the court again said that there was a positive legal duty on an individual who was aware of their HIV status to do something to protect their potential sexual partners.

So we have two courts saying that if you are positive and know you are positive, then you have a duty. The question in this case is if you don't know whether you are positive but you have engaged in conduct, in this case conduct that may be just completely accidental but nonetheless it is conduct you have been involved in, is it possible for you to be required to participate in a blood test and be responsible for your actions?

The next case is Pittman Estate v. Bain. In that case, in an Ontario court decision in 1994 the court found that the Red Cross could be held liable in a case where there was a potential for the AIDS virus to have infected an individual through blood transfusion. The point there is the courts in the common law are finding that there is responsibility on the part of those who may potentially infect someone, maybe negligently, but possibly in cases as well where there is an intentional infection.

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The next case of importance is R. v. Brighteyes, a 1997 decision of the Alberta Court of Queen's Bench. Again, this is a case where the court ordered a DNA test, and they determined that—and they said it this way—the rights of the individual in this case were outweighed by the needs of society.

Another case is R. v. Borden, a 1994 decision of the Supreme Court of Canada. Again, the rights of individuals were an issue.

Finally, I'll mention an interesting case you probably are all aware of. That is, in a civil action against Paul Bernardo the Ontario court's general division ordered Mr. Bernardo to provide a blood sample for the sake of the individual who was potentially infected, for the sake of their mental health. This was not a situation where they were relying upon the Criminal Code, but rather it was the reliance upon civil process.

One cannot issue a statement of claim and go through a notice of motion and affidavit process in order to take advantage of the medical science that you heard about. So this would not be a normal option for individuals, but it does show that the criminal and civil processes today do in fact weigh the rights that are at issue before you as a committee, and over and over again they are weighing the rights in favour of society and against the individual where this kind of issue arises.

These cases all lead me to conclude that if Parliament were to pass this bill, it would not be struck down by the Supreme Court of Canada, or any other court, as a violation of the Charter of Rights and Freedoms.

Thank you very much.

The Chair: Thank you very much.

Mr. Elliott.

Mr. Richard Elliott (Director, Policy and Research, Canadian HIV-AIDS Legal Network): Mr. Chairman, honourable members, thank you for the opportunity to address you today.

I'm a lawyer. I've been involved in HIV and AIDS work for about ten years now. I work with the Canadian HIV-AIDS Legal Network, which some of you may know has done a considerable amount of work on legal, ethical, and human rights issues related to HIV in Canada and internationally. Our mission is to promote legal and policy responses to the HIV epidemic that respect the human rights of people living with HIV, that facilitate prevention efforts and that facilitate access to care and treatment.

We've undertaken extensive study and consultation on issues regarding HIV testing, the legal and ethical issues relating to HIV testing. I have copies of a document with me today that was produced in 1998, our report on HIV testing and confidentiality, which addresses the issue of compulsory testing in a number of different circumstances.

Just a few months ago we released a report on the issue of rapid HIV testing, and that report included some discussion of the legal and ethical dimensions of using these rapid tests following work-related exposures to HIV. One of the points we made in that report is that simply because new technology becomes available does not mean that we abandon ethical or legal requirements for informed consent to medical procedures. We need to do what's right, and we need to carefully weigh and consider the interests at stake, not simply let the technology drive the decisions.

Earlier this year we wrote to the Honourable Anne McLellan, the Minister of Justice, raising our concerns with Bill C-244. You've received a copy of that letter in both English and French. In that letter we raised three primary concerns with Bill C-244. In our view, there are three primary reasons why this bill should not proceed. The first is that it is unnecessary and of relatively limited benefit to those exposed to the risk of infection. The second is that forced testing is unethical. And the third is that such legislation is unconstitutional. When I come to the constitutional issues I'd like to address some of the points my friend has just made about some of the cases he cited to you.

My first point is that such a bill is unnecessary and offers at most a limited benefit to those who may be exposed in the workplace to the risk of HIV or hepatitis infection. In our view, authorizing forced testing of HIV, or other diseases, is not the way to address the concerns of those who may have been exposed.

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Let us first consider HIV. As you've heard, the exposed person must make a decision as to whether to initiate post-exposure prophylaxis, a regimen of anti-retroviral drugs taken in the hope of preventing infection. While the effectiveness of the PEP regimen has yet to be proven, current medical advice, as you've heard, is that it must be initiated within a matter of hours after the exposure if it is to have any likely effect.

But as you've also heard, it's highly unlikely that in such a short period of time it will be possible to arrange a judicial hearing, obtain a warrant, draw a blood sample from the source person if the warrant is obtained, and then receive test results. In any event, even if these test results were to be obtained within a matter of an hour, we must remember that testing the source person does not ultimately answer the exposed person's questions. These rapid tests do not provide the confirmed test results currently available through careful laboratory procedures involving repeated testing using different kinds of tests. In fact, they are designed to be over-sensitive so as not to miss any possible case—

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Could I ask you to go slowly? It's very difficult for translation.

[Translation]

Mr. Richard Elliott: I am sorry.

[English]

In fact these tests do not provide confirmed test results. What they offer is the first stage in a two-step testing procedure currently carried out in licensed laboratories that do provide confirmed test results. These tests are designed to be over-sensitive so as not to miss any possible case of infection.

The result is that many initially positive test results using rapid tests are in fact false positives. For example, recent annual statistics for Ontario showed that two-thirds of all initially positive results turned out to be false positives upon further confirmatory testing.

I also recently spoke with the chair of the federal-provincial-territorial committee on AIDS, who confirmed a similar ratio for tests conducted at various sites in Alberta.

So what is being proposed then is to authorize forced HIV testing when in the short period of time during which it might be of any possible benefit all that would be available is an unreliable test result. The person is still confronted with decisions about post-exposure prophylaxis. If the source person were to test HIV-positive on one of these rapid tests, obviously this might encourage the person to decide they definitely need to take the PEP regimen. Who, upon receiving that result, which could very well be an inaccurate or false positive result, would want to take the risk of forgoing the drug regimen?

Even if the source person tests HIV-negative, however, this does not completely rule out the possibility that the exposed person might still be infected. The source person, as you've heard, might still be within the window period. Yes, the window period is a moving target, but it remains a concern. It would be particularly of concern if the source person had recently engaged in high-risk activities, such as sharing injection equipment or having unprotected sex. If this fact were known to the exposed peace officer or health care worker, as it might well be in some circumstances that you can envision, then no doubt it would be in such cases in particular that the exposed person would be particularly concerned about possible infection. That's when their concern about the possibility of a false negative result would no doubt be greatest.

Again, even if you've received a negative test result, there's still a decision to be made about PEP. The only way to know whether you've been infected with HIV is to get tested yourself. Testing another person does not provide a complete answer.

A point was made about the changing technology, and it was pointed out that new tests are now available—nucleic acid testing—which tests for the presence of the virus itself, as opposed to the antibodies for the virus. That makes it a possibility to make nucleic acid testing—that is, testing for the virus itself—available for the person who has been exposed. You thereby shorten the period of time during which that person experiences the anxiety over whether they have been or not been potentially infected. You can do that testing with the exposed person, and you get at the answer directly, rather than violating what I will submit in a moment are constitutionally protected rights to privacy and security of the person.

Furthermore, we question whether this bill is as necessary as some suggest. I'm not sure we've seen the evidence that source persons are frequently unwilling to provide a blood sample for testing. It may well be that in some cases the person refuses, but we submit that stronger evidence of a significant problem should be required before we step onto the slippery slop of passing legislation that authorizes testing people for HIV without their consent for a limited benefit to another person.

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Furthermore, we should keep this issue in perspective. We're speaking of an extremely small number of cases in which occupational exposure has resulted in actual infection. According to the Canadian Medical Association, as of 1993 there had been only three cases in Canada of health care workers infected with HIV after an occupational exposure, and one of those actually occurred in a laboratory setting, not in a patient care setting.

The U.S. Centre for Disease Control, as Mr. Shafran has pointed out, has estimated that the average risk of HIV transmission after a percutaneous exposure to HIV-infected blood—that is, with a needle stick or a cut with a sharp object—is approximately 0.3%, and an exposure to mucous membranes carries a risk of actual infection of 0.09%.

What about hepatitis B and C? In our view, forced testing is even more unnecessary and of less benefit with regard to these viruses. As you have no doubt heard, and you've heard this afternoon, there is a preventive vaccine available for hepatitis B. Many Canadians at risk of infection have received it. Ensuring that peace officers, firefighters, and health care workers receive this vaccine would provide protection against infection to the vast majority of people who might come into contact through their workplace with hepatitis B. And this would be protection in advance of an exposure; it's not an after-the-fact attempt to deal with an unpleasant situation. This is obviously a preferable route to infringing on people's rights to bodily autonomy and integrity and privacy.

As for hepatitis C, you've also heard there is currently no effective or recommended post-exposure treatment for preventing the virus from taking hold. So forcing hepatitis C testing of the source person would be of no clinical value at all to the person who has been exposed because there would be no possibility of taking a post-exposure drug regimen to prevent infection. That potential benefit doesn't exist.

In our view, the limited benefits offered by forced testing must also be weighed against other ethical concerns. Our Supreme Court has repeatedly recognized that a person cannot be subjected to medical procedures without their informed consent, the most notable case being one dating back to 1980, the case of Reibl v. Hughes. This requirement has also been codified into statute in many provinces. Furthermore, this rule forms a part of the codes of ethical conduct for all health care professionals, and this legal doctrine reflects the fundamental ethical principle of respect for persons and their autonomy.

Now, this includes their bodily and psychological integrity, and it includes their right to privacy with respect to their own medical condition. Respect for persons—the ethical imperative—requires that people be treated as ends in themselves, not merely as means to the ends of other people. In our view, forced testing would be unethical, in that it violates this fundamental principle, and the limited benefit I've referred to wouldn't justify this ethical violation.

Finally, I wanted to turn to some of the constitutional issues.

In our submission, the state violates the Charter of Rights and Freedoms if it authorizes HIV testing without consent.

You've heard reference to the Dyment case. In that case, in 1988 our Supreme Court ruled, as Mr. Shepherd has pointed out, that “the use of a person's body without his consent to obtain information about him invades an area of personal privacy essential to the maintenance of human dignity...”.

Two years later, in the Duarte case, the Supreme Court ruled that the charter protects the right of the individual to determine for himself or herself when, how, and to what extent they will release personal information about themselves.

Taking bodily samples for testing without consent is clearly the exception in our law, rather than the rule. Indeed, our Criminal Code only allows it in two carefully limited circumstances; that is, testing for alcohol when there are reasonable grounds to believe an offence of impaired driving has been committed, and for the purpose of DNA analysis relating to a prosecution for certain designated serious offences.

In both those cases the infringement on privacy has been deemed justified in the interests of law enforcement once reasonable grounds exist for believing a person has engaged in criminal wrongdoing. But Bill C-244 proposes to violate bodily autonomy and privacy without even requiring this precondition. And in our view the violation of these constitutional rights cannot be considered trivial. Under this bill, refusal to provide a blood sample is punishable by up to six months in prison.

The violation of bodily integrity is also compounded by a violation of psychological integrity. The bill states that the source person must be informed of their test results. It thus removes from them the option to decide whether and when to get tested, solely because they may have been in an accident and bleeding when paramedics or firefighters arrived. Do we really want people to think that if they call for an ambulance they could end up getting tested for HIV without their consent?

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There are no provisions in this bill requiring that the certificate with their test results be destroyed. Forced HIV testing would set in motion a whole chain of possible consequences, one of which Dr. Shafran has already mentioned, that is, the person's HIV status would be reported to public health officials. This, in turn, would result in efforts to identify that person's past sexual or needle-sharing contacts, further compounding the detrimental effect on their privacy of a medical test to which they did not consent in the first place.

The bill provides no protections for keeping the source person's test results confidential, and you've heard that raised before as well. I submit that even if it did, such provisions, practically speaking, would likely be of little value. Our members know from experience that breaches of confidentiality are commonly experienced by people living with HIV, particularly in small or closely knit communities, and that the consequences can be devastating: loss of employment, loss of housing, and ostracism by family, friends, or the community at large.

We recently released a lengthy report identifying that HIV-related discrimination persists in Canada two decades into this epidemic, and the experience of people living with HIV and AIDS as witnessed by AIDS service organizations and other support services confirms this reality. Given the far-reaching adverse consequences and the value we place as a society on privacy and bodily integrity, the harmful effects of legislation such as Bill C-244 in our view far outweigh the limited benefit, and such legislation is not constitutionally defensible.

Mr. Chipeur adverted to a number of cases, most of them criminal cases dealing with both the issue of criminal liability for HIV exposure or transmission and the issue of forced testing. I want to speak to some of those briefly.

Mr. Chipeur mentioned the Cuerrier case. I happen to know something about that case, having appeared before the Supreme Court on that case as an intervener. At that time, one of the points we urged upon the court was the need for taking a “big picture” approach to this—that we shouldn't let individual cases necessarily result in the development of bad law.

Furthermore, cases such as Cuerrier or Napora or Pittman and Bain, which Mr. Chipeur mentioned, in my submission are not particularly relevant. These are not cases where the courts have been considering imposing forced testing for HIV or some other infection upon people. They've been cases in which the courts have been balancing policy concerns about whether or not there should be criminal liability for engaging in activity that risks transmitting HIV. That's a separate question and those cases don't really speak to the issues raised by Bill C-244.

However, the cases that do speak to them are twofold. One was mentioned by my friend, that is, the case of Paul Bernardo. That was a case in which, under civil procedure rules in Ontario, a woman who had been, she felt, exposed to the risk of HIV infection and other STDs by Paul Bernardo sought an order that he be forced to provide a blood sample for HIV testing and also to undergo other forms of STD testing. The crown appeared before the court in that case and said there is no authority in law for this proposition. They had some serious concerns about whether or not the court had jurisdiction to do this. Subsequently, Mr. Bernardo did not, in fact, oppose the order.

So the case itself does not set any sort of precedent, certainly not under a piece of criminal legislation, for saying that the courts have already considered this issue and said that it's perfectly constitutional to impose forced HIV testing on a person.

The other thing to know about that case is that it's a perfect example of hard facts or bad facts making bad law. In that case, it was unfortunate that the court didn't really take note of the fact that the woman's exposure—if there had been any—to the risk of infection had actually occurred about five or six years earlier. As you've heard, the outside period at which someone would seroconvert after being potentially exposed to HIV would be a matter of six months at the outside. So there was really no purpose to having ordered HIV testing in that case, and given the flaw in the reasoning of that case, I would submit that it shouldn't be of any significant concern to this committee.

The other case—and this is really the only case in Canada that is particularly close on point—is a Quebec case by the name of Beaulieu, in which a man accused of sexual assault was brought before the court and the applicant, that is, the woman whom he had assaulted, sought an order that he provide a blood sample for HIV testing. The court in that case, a Quebec trial court, expressly referred to the Supreme Court's decision in Dyment and said that this raises serious charter concerns and there is no authority in our law for doing this.

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So that's the only case that's closely analogous to the situation where you have a post-exposure situation, where someone has been occupationally exposed. The exposure in that case actually happened as a result of a sexual assault, but you can see the analogy, and in that case, the court said there were constitutional concerns about whether or not we should order HIV testing.

So in our view, what Bill C-244 amounts to is to propose to force HIV testing on a person not necessarily accused of any wrongdoing and to force them to learn the results of a medical test to which they have not consented, in the interests of providing possibly inaccurate information to another person who needs to quickly make a decision about a regimen of drugs whose effectiveness remains unproven. It does all of this in violation of the ethical principle of respect for autonomy and privacy, in violation of the legal requirement clearly established for informed consent to medical procedures, and in violation of the constitutional rights to security of the person and privacy.

In our view, there are better alternatives to forcing HIV testing. The first, of course, is to make sure that universal precautions are universal. This would, in many circumstances, significantly reduce the risk of any potential infection. Granted, there will be some circumstances in which universal precautions are not really practicable. That's an unfortunate reality. It doesn't necessarily mean that we should be creating legislation to impose forced testing.

Secondly, we need to ensure access to testing for HIV and hepatitis B and C for any exposed person. There needs to be timely access and they also need access to proper information, counselling, and support. This will be of far greater benefit to exposed persons than forcing another person to be tested. This would be particularly the case if we were to actually make available nucleic acid testing, a test that actually detects for the presence of the virus in a person who has been exposed, as opposed to testing the source person using a potentially inaccurate test.

The Chair: Mr. Elliott, how much longer do you think you'll be?

Mr. Richard Elliott: One minute, if I may.

The Chair: Thank you.

Mr. Richard Elliott: We sometimes read in the media and occasionally in actual court proceedings that six or twelve months or even years after possible exposure to HIV, police officers are still worrying about the chance that they may have been affected as the result of that exposure.

But our concern is a different one, that is, this demonstrates that these officers have not received the adequate counselling and support following exposure. We know that the exposed person who still tests HIV negative three months after the exposure has at most a slim chance of being affected and that the chance of seroconversion is even more infinitesimal after six months. If the person has not tested HIV positive by this point, there is very little chance that they will. But clearly, if such misinformation persists in people's minds and it continues to be a source of anxiety, what we need to do is improve the counselling and the information that people receive. We should not be resorting to forced testing.

There are two other possibilities as alternatives to forced testing. One is to consider legislating the use of safer needles and syringes in health care settings, as a workplace safety measure, to reduce the likelihood of needle-stick injury, which is, of course, the most common occupational exposure to HIV or other blood-borne pathogens in a health care setting. In some U.S. states this has been considered and in some it has been adopted.

Finally, we need to take measures to make it safer for source persons to be tested voluntarily. For example, destroy test results unless the source person requests otherwise, protect confidentiality better, make sure that test results obtained following an exposure to another person are not admissible in legal proceedings—which is a point that does appear in Bill C-244—and strengthen protections against HIV-related discrimination. Encouraging voluntary testing will better achieve the ostensible goal of this bill without damaging the persons and privacy of Canadians living with hepatitis or HIV or AIDS.

Thank you.

The Chair: Thank you very much.

We're now going to go to the members. I want to warn members that I have a tendency to be much more generous with the panellists who are visiting us on a one-off occasion in terms of going over their time, but I can also say that we treated everyone fairly because everybody went over.

Go ahead, Chuck.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you.

If for no other reason than the fact that I've really enjoyed the debate we've already had up front, I'm glad this bill is before the committee. I do want to thank all of the people who've come to testify today.

There are now 62, I think, national and provincial organizations that have written to me and to the minister expressing their support for the purposes of the bill, but I have yet to see a brief as thorough and outstanding as the one the Canadian Police Association has brought before us today. My compliments to them for their thoroughness. I think it's wonderful. I look forward to reading through that later—at my leisure, as they say.

I have some questions here. One is to Dr. Shafran.

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Specifically, you mentioned the increase in the level of infectious diseases in the prison population versus the general population in the hospital setting. What level of degree of difference are you talking about?

Dr. Steven Shafran: There's a huge order of magnitude difference, although it really depends on the infection.

There have been a number of studies. With hepatitis C in the general population, you're running in the order of 1%, and in prisons, there are some places where it's running over 30%. For HIV, it really depends on the facility you're talking about. In the community at large, you're looking at the order of 0.1% to 0.2% of Canadians, and in correctional facilities it varies. There are places where it's over 10% and there are others where it's under, but it is considerably higher.

Mr. Chuck Strahl: Just to use that as an example, then, for prison workers and guards, the Union of Solicitor General Employees has supported this bill. They say they feel it would be useful to them.

Now, a lot of testimony we heard yesterday said that even if you tested the blood of someone, what good would that do anyway? The argument went that you'd get the results, but it wouldn't be of any use to you. It might be interesting, but it wouldn't be any use to that person or to the medical treatment of that person.

Do you agree with that?

Dr. Steven Shafran: I assume you mean the results of the source person?

Mr. Chuck Strahl: Yes.

Dr. Steven Shafran: Then, no, I totally disagree with that. I think it's very relevant information. We use that all the time in the occupational setting, where we have very high rates of voluntary testing.

Mr. Chuck Strahl: What if someone had already started the treatment? For example, they wanted to start right away because they thought that was the best way to do it according to all the medical recommendations. When they get a needle stick or somebody bites them or whatever, they rush down and start the chemical cocktail, and two or three days later, when the source person's blood sample tests negative, would you stop the treatment at that time? The testimony yesterday said that once you start, you have to go for 12 weeks.

Dr. Steven Shafran: I would stop the treatment.

Mr. Chuck Strahl: You'd stop the treatment. It would make that much of a difference.

Dr. Steven Shafran: Definitely.

Of course, there are testing algorithms that can make it quicker. There are point-of-care tests, which you've heard some reference to. There are places, such as in northern Alberta, where if a sample is flagged as a needle-stick source it goes to the top of the list. So we get turnaround really quickly, at least within greater Edmonton. Of course, if the needle stick is somewhere in northern Alberta, the sample has to make it to our labs. There are logistical differences in rural areas.

Mr. Chuck Strahl: Okay.

Mr. Chipeur, I know you're appearing as a private citizen, as mentioned by the judge...or the chair.

An hon. member: Wannabe.

Mr. Chuck Strahl: Could you just briefly tell us what experience you have? You wrote a paper, and we heard about that, but do you have any experience arguing these constitutional cases before the Supreme Court? Do you have a copy of your resume or something?

Mr. Gerald Chipeur: I have a copy with me. I did provide a copy to someone who had requested it from one of the offices here on the Hill, but I can certainly provide it to you.

My practice is a constitutional and health care practice. I have been before the Supreme Court on over a half-dozen occasions on constitutional and human rights issues. I'm a partner with Fraser Milner Casgrain, one of the top five firms in the country. We often represent government and we often represent individuals against government involving issues of human rights and charter issues. We have a number of cases before the Supreme Court right now on charter issues.

So I do have experience dealing with these issues on a regular basis, and we have litigated with respect to the rights of patients in institutions as well as the right of prisoners with respect to their Charter of Rights and Freedoms.

Mr. Chuck Strahl: Maybe I could just ask a question on that. You mentioned in your letter to the committee—or I guess it was to me, copied to the committee—that you thought Bill C-244 would be constitutional. Yesterday, the legal representation we had from the government suggested that we had to prove that it was within the realm of the federal jurisdiction, that it wasn't just a provincial thing and so on.

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Could you comment on whether you think Parliament is within its rights, frankly, to pass this legislation, or parts of it? Could you give me your opinion on that?

I tried to make the argument yesterday that especially when you're dealing with federal institutions and federal employees, trying to enforce the federal Criminal Code, there seems to me to be a federal parliamentary role. Perhaps you could describe whether or not that's true.

Mr. Gerald Chipeur: Sure, I'd be happy to do that.

On that point, I have litigated cases in the Supreme Court of Canada on federal-provincial jurisdiction over dams and railways. This is of the same order of magnitude.

The question you're asking is whether or not this is within section 91 or 92 of the Constitution Act, 1867. I do have some concerns about parts of this bill. I believe, or it's my opinion, that the Parliament of Canada has the constitutional jurisdiction to pass legislation to further the enforcement of a federal statute. So to the extent that this bill would further the enforcement of the Criminal Code and ensure that those peace officers and others who are given the responsibility to enforce the Criminal Code are going to have the mental health, the ability to come back to work sooner, and the ability to address issues that arise, even if they don't arise in the context of a Criminal Code charge or conviction, it is my opinion that the Parliament of Canada does have the constitutional jurisdiction under its powers with respect to criminal law, but it would also have that jurisdiction with respect to its rights as employer with respect to the RCMP and prison guards in prisons that are within federal jurisdiction.

But I believe it goes beyond just those two groups when we talk about the enforcement of the Criminal Code, because obviously provincial employees also are involved as peace officers in enforcing that legislation. Where this bill goes beyond that it's my opinion that Parliament does not have that jurisdiction.

The Chair: Thank you, Mr. Strahl.

[Translation]

Mr. Ménard.

Mr. Réal Ménard: I have five questions that I will put all at once so that everyone can reflect on them at the same time. We realize that this is an important bill for policemen but we are also very concerned by the privacy aspect.

My first question is for the representatives of the Canadian Police Association. Do you think that police officers and fire-fighters should also undergo the test? In order to have complete information, it is not enough to have information on the serological status of the person with whom one has been in contact, there must also be information about the situation of the individual concerned.

Second, how do you react to the position taken by all our witnesses, including Health Canada, who say that the important thing here is protection from disease rather than imposing tests on persons with whom one has been in contact?

Dr. Shafran seemed on several occasions to call into question the expertise of Health Canada. I'd like you to tell us just exactly what the situation is with respect to the 12 weeks, the duration of the prophylactic treatment, the prescription and so forth. You seem to have a different opinion from Health Canada. I would like you to be very explicit about this.

My next question is addressed to your neighbour, Mr. Chipeur, who seems to be saying that it could be constitutional to impose tests without consent. We have been given quite exhaustive references to jurisprudence that Justice Canada will be sending to us. I'd like you to clarify your thought on this central concept of our law, that is the expectation of privacy. Based on this notion of law, it is hard to see how your point of view could be defended before the courts.

One last question for your neighbour, for the sake of fairness. That way, everyone will have had a question. All the AIDS organizations, whether it be the Quebec or Canadian coalitions, or the departmental council, are opposed to this bill because it goes much farther. For a long time, AIDS organizations have been fighting for the confidentiality of serological status and freedom from mandatory testing. I'd like you to comment on this.

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[English]

The Chair: Thank you very much, Monsieur Ménard. I think that will probably take up the seven minutes.

Mr. Dale Kinnear: Thank you, Mr. Ménard.

With regard to the first question, I guess it was deemed yesterday by the justice officials that the two-way street as to whether a police officer should be tested if they've exposed an individual... I would say where that person is perhaps a victim of what might be deemed to be an assault by the police officer, or a victim of some inappropriate activity, then they are a victim of criminal activity, and I would say certainly they are probably entitled to it.

In terms of a situation where, in the course of making an arrest, a police officer is injured and some of the police officer's blood gets into a cut on the victim, again, I would say certainly. I put that question to Constable Anderson this afternoon outside Mr. Strahl's office: In the circumstance she described, would she have provided a test for the benefit of that individual's information to make proper medical decisions? She indicated that certainly she would, so I don't see any difficulty with that at all.

In terms of the timeliness of the PEP cocktail, or the post-exposure treatment, I'm not a medical expert, and in terms of how soon it should be provided I'd defer to Dr. Shafran.

As for the length of time that people are taking it, we've been hearing from the members who have provided information to us that it's anywhere from two to three months. That's the information we're getting back.

Again, I would defer to Dr. Shafran on that. He's actually treated people for it and I'm relying on anecdotal information.

Thank you.

Dr. Steven Shafran: There are two issues. One is the issue in terms of the duration of treatment. The guideline that is used most commonly—and I would be happy to forward this to the committee—is from a report by the U.S. Department of Health and Human Services, entitled Public Health Service Guidelines for the Management of Health-Care Worker Exposures to HIV and Recommendations for Post-exposure Prophylaxis. It was published in May 1998. It's still the most comprehensive document, and it reviews the original literature.

They recommend in here a four-week treatment. This is the standard course when I discuss this with colleagues across the country who manage folks with HIV.

In terms of when to start, we don't have definitive data to say when we should start, but clearly it makes intuitive sense that it should be started as soon as possible. There are animal models using viruses that are similar, but not identical, to HIV that suggest the effect is lost after 36 hours. So if one is going to proceed with this, the sooner the better.

The Chair: Mr. Chipeur.

Mr. Gerald Chipeur: Thank you very much. I'll be brief.

The case in question, the Dyment case, and the cases that followed Dyment make it very clear that privacy rights are of the highest order. And it is my view that privacy interests will be protected vigorously by the Supreme Court of Canada.

The question then becomes the balance, because clearly we are violating, prima facie, the rights of the individual to privacy under the charter. Section 1 of the charter requires a balancing that this committee, Parliament, is the court of law that must balance this before it becomes legislation, and the courts must balance it if it were to become legislation. In that balancing process, you must balance the societal interests, the interests of society in having this legislation, with the rights of the individual.

In this case, it is my view that the courts would say that, on the one hand, we have the life of an individual at stake here. It's an individual's life. It's not just potential injury. It's not just discomfort. Their life is at stake. If they don't take the right health care decision here, they could die.

So on the one hand, we have the government's interest in protecting the life and health of the employees of the state—the police and peace officers, individuals in society—balanced against what the courts have found over and over again to be a very unobtrusive, non-threatening process of drawing blood. They've said it's nothing more, in terms of inconvenience, than a urine test.

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The issue is that inconvenience to the individual and violation of their right to protect their anonymity, with respect to HIV-positive status, is balanced against the life of another individual.

It is my view that the Supreme Court of Canada, in this case, if this bill were to become law, would come down on the side of saying section 1 of the charter justifies this bill. This bill is justified in a free and democratic society.

I do agree that all of the other restrictions and protections should be in place. I agree that the bill should be amended to require that the test results be destroyed; that the individual not be advised of their status unless they consent; and that there be a penalty imposed upon the peace officer or other individual for disclosing the information improperly.

Those are three good suggestions. But as long as this legislation is carefully crafted, according to the Dyment test, I believe it will pass muster when it's reviewed by the Supreme Court of Canada.

The Chair: Thank you very much. I think we have a question from Mr. Elliott.

Mr. Richard Elliott: I can tell the committee and the honourable member that the Canadian AIDS Society wrote yesterday to the chair of this committee to say they supported the position we've taken before the committee. Part of the reason they've done that, I think, is because they take issue, as do we, with the characterization of the benefits and interests that are at stake here.

Certainly I take issue with the characterization of my friend that on the one hand we're talking about the life of a person versus the inconvenience of a finger prick. I think that's an unfair characterization of the interests at stake. The life of the person who has been exposed will not be sacrificed, whether or not we impose HIV testing on the other person. That's not the interest at stake. It's less than that. It's certainly a significant interest, and I don't mean to minimize it, but it is not that significant an interest.

On the other hand, it is more than simply the interest of the person who is the potential source person, in avoiding a finger prick. As I said before, there are any number of possible consequences that flow from being tested for HIV. They are certainly far more significant than simply a finger prick.

The Chair: Thank you.

I would confirm that we are in receipt of the letter. I'm not certain whether it's been circulated or not.

Mr. Richard Elliott: I do not know if the ministerial council has taken a position on it, but I can find out and advise the committee.

The Chair: We were in receipt of it on June 13.

Mr. MacKay.

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair.

I want to thank the entire panel for their information and presentation. I also want to take a brief second to commend my colleague, Mr. Strahl, for bringing this matter forward. I think it's not only a very interesting but a very timely debate, given some actual instances we've seen in practice and in the field.

I have a couple of sort of practical technical questions I'd like to ask—first to Dr. Shafran—with respect to the minimum amount of time that would pass before STDs, AIDS, or HIV could be detected in a person who had been exposed. We've heard similar medical information, in the context of impaired driving legislation we were studying, on the samples that can be taken in instances for drug and alcohol testing. But what types of human samples, in practical terms, can be used to detect these types of afflictions?

Dr. Steven Shafran: First of all, I know little or nothing about drug and alcohol issues, so I'll stay away from them.

I think you asked about HIV and other STDs. The time it takes really depends on the infectious agent, because the incubation time is highly variable. If we're talking about gonorrhea, you may be able to detect infection in a recipient in two days, for example. With HIV, as we discussed, it depends on the technology used. To detect infection with antibody, it will be unlikely to find it before three weeks. Then it's variable, in terms of the time it takes for antibody.

Mr. Peter MacKay: I'm sorry to interrupt. With respect to HIV, in particular, is there a dormancy period, and are there carriers who wouldn't necessarily be detected but could have passed it on?

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Dr. Steven Shafran: Once HIV infection is transmitted... You may not have been here earlier.

Mr. Peter MacKay: No.

Dr. Steven Shafran: If infection is detected by the conventional means, which is antibody production, it will take a number of weeks for a person to produce antibody. There is biological variability from one person to another. It can happen as short as two weeks, but it may take even six months in an extreme case. Between three weeks and six weeks you usually find the first evidence of antibody in some people, so there is a period of time.

We talked about how nucleic acid testing can shorten that, but there is a period of time before the infection can be detected. That is really true for all infections. It's just that the number of days it takes differs for each infection.

Mr. Peter MacKay: With respect to the treatment, I think it's fair to say—and we all agree—that the proximity of the beginning of the treatment is very crucial. I've quickly read through the brief presented by the Canadian Police Association, but it seems there are sometimes very dire side effects that can come from the treatment itself. This is certainly an argument for early detection, for all kinds of reasons.

We heard the presentations and some of the discussion about the dire consequences of a person contracting one of these illnesses, whether it be AIDS or STDs—AIDS as the extreme example that could lead to death. There appeared to be very much an element of psychological harm and the full gamut—loss of income if a person were off work because of the stress, and individuals just wanting to know if they had inadvertently or deliberately been handed a death sentence. I don't think this can be overstated, as far as early intervention goes.

I have to completely disagree, Mr. Elliott, with your submission that this is not something that, on balance, can be justified in a charter context. I think we are very likely to see this go before the courts in fairly short order.

I think the section 1 Oakes test would be applied—you're both familiar with that—in terms of proportionality. That would very much favour the protection of a person's life, whether it be a peace officer, Samaritan, or guard. Anyone may wish to comment on that, but the timeliness appears to be very important.

Dr. Steven Shafran: You mean the timeliness, with respect to instituting post-exposure prophylaxis?

Mr. Peter MacKay: Yes.

Dr. Steven Shafran: Again, it depends on which pathogen we're talking about. If we're talking about HIV specifically, certainly we would recommend that if post-exposure prophylaxis is to be instituted, it should be initiated as soon as possible.

You made a point about side effects. Yes, these medications have a lot of side effects. I would argue that if we were able to test all the sources, we would markedly reduce the exposure. Since the majority of the sources would indeed test negative, the majority of the exposed people would never need to take those drugs, with their attendant costs and side effects.

The side effects are quite significant. Data from the San Francisco General Hospital, which has had a lot of occupational exposures because of the very high density of HIV in San Francisco, shows that a majority of people who started post-exposure prophylaxis didn't end up finishing all four weeks of it.

Mr. Peter MacKay: Thank you.

I would suspect that on the legal side of it there are going to be very interesting arguments. One that comes to mind that you may wish to comment on has to do with occupational health and safety. I don't see any major difference between a police officer, health worker, or even a good Samaritan, for that matter, who is exposed inadvertently or otherwise, and someone in a workplace environment, like a steel worker who has a girder fall on him.

If there are ways and means to prevent this through legislative initiatives, I think that's fairly incumbent upon us as legislators. There will eventually be an obligation on employers to ensure that all reasonable steps are taken. If that involves a level of intrusion, again I have to disagree with the submission that the removal of a hair... This technology is increasing at a very rapid pace. We looked at this in the context of breath and blood and hair samples—DNA samples for testing in impaired cases. That becomes a very esoteric argument, in terms of its level of intrusion.

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I do not see this as something that differs markedly in terms of this nuance between it being breath, blood, or DNA. I don't accept for a minute that this is something overly intrusive when it comes to the saving of a human life.

The Chair: Thank you, Mr. MacKay.

Mr. Elliott wants to respond, and then we go to Ms. Carroll.

Mr. Richard Elliott: Thanks for your question, Mr. MacKay. You raised the issue of the constitutionality of it and the Oakes test, which is to justify an infringement of constitutional rights. As you know, the Oakes test first of all requires there be a rational connection between the purported objective of the legislation and what it actually does; that is, its operation in practice—the infringement of the right.

In my mind, there isn't a rational connection in this case that's required to sustain this as being saved under section 1 of the Constitution. There isn't a rational connection between saving the exposed person's life and forcing the source person to be tested. This is what I've taken issue with. It may be that there's a connection between avoiding another week or two of unpleasant drugs and forcing testing. But if we don't mandate testing here against people's consent, the person who has been exposed is going to die. That connection is not what's being discussed here, and it simply doesn't exist.

If you consider the second branch of the Oakes test, which is that the legislation must minimally impair the charter rights in question, as I mentioned earlier, there is another less intrusive alternative here. If you want to avoid an additional two weeks of taking very unpleasant drugs, then let's make sure the people who have been exposed have access to tests for the presence of virus within their own body as quickly as possible.

If you get that result, you can then make a decision to say “I'm not going to take another two weeks of these drugs because I don't have the virus in me”. That's a much more direct and less charter-infringing method of getting to the information you want and need for that person than to say we'll test the exposed person, knowing it's not a fully reliable test result. It doesn't necessarily answer the question of whether or not the exposed person should stop taking the drugs.

Frankly, in some circumstances, if I had been exposed and the source person had tested negative, that wouldn't simply be the end of the inquiry for me. I would also want to take into account whether this person is likely to be infected and testing HIV negative. That might be the case if, for example, they were in prison and they'd been engaging in sharing of injection equipment. We've heard that the incidence of HIV in prisons is orders of magnitude higher than in the general population. It might very well be that even if this person has tested HIV negative using this test, I'm not going to take that risk, because it might very well be that they're still positive.

There is another alternative that's less violative of charter rights and I think actually serves people who have been exposed better. I'm not sure that it would withstand the constitutional—

Mr. Peter MacKay: Why not do both?

The Vice-Chair (Mr. Ivan Grose): Mr. MacKay, you're finished.

Mr. Peter MacKay: Thank you.

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): We have new rules here—a new order.

Ms. Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

Mr. Chipeur, you stated earlier, in your testimony or in response to questions, that in your view, Bill C-244 falls under Parliament's jurisdiction over the criminal law under section 91(27) of the Constitution. Yet later in your comments you said you had some concerns that some parts of the bill may not fall within, or indeed go beyond, federal jurisdiction. I wonder if you could explain that a little further.

I also would appreciate very much, given Mr. Elliot's constitutional background, hearing your views on that as well.

Mr. Gerald Chipeur: Thank you very much. My view is that part I is questionable. It is my view that if part I were challenged on the basis of jurisdiction, the court would find it is a matter of provincial responsibility. For example, Alberta has legislation dealing with these kinds of issues in a very general way—

Ms. Aileen Carroll: Like in public health education?

Mr. Gerald Chipeur: —as a matter of public health.

It's my view that this is a matter of public health as it relates to the general population. It becomes a matter of federal jurisdiction in part II because that part deals with individuals who are responsible for enforcing a federal statute and generally enforcing the criminal law.

My opinion might change after Thursday, depending upon the decision on the firearms case, because in that case the court is being asked to find that a requirement that gun registries be established as a matter of federal law is a valid exercise of criminal law power because there is a penalty attached to non-registration. If the Alberta appeal were to fail, I might come to the conclusion that part I is constitutional.

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Ms. Aileen Carroll: I'm having difficulty hearing him. I wonder if we could have this conversation outside.

Mr. Gerald Chipeur: I'll just repeat that. If the Alberta appeal were to fail—in other words, if the federal gun registry were to be upheld as a valid exercise of criminal law power—then in that case the court would have greatly expanded the definition of criminal law in section 91. Therefore, one would say in this case the federal government is placing a criminal penalty associated with failure to take a certain step, and that's the exact same analysis that's been taken in the firearms registry. That is, if you fail to register, which is generally a matter of provincial jurisdiction, there is going to be a criminal consequence for you.

Right now, it's my view that part I is not a proper exercise of Parliament's jurisdiction.

Ms. Aileen Carroll: Thank you, Mr. Chipeur.

Mr. Elliott.

Mr. Richard Elliott: Thank you.

In my view, this isn't the kind of legislation that falls within the jurisdiction of the federal Parliament. This is not a criminal law bill. The issue on the division-of-powers question is really about what the essential character of this legislation is. What is its fundamental nature? And it is not about criminal law. That is certainly within the competence of Parliament, but this bill does not fit within that subject matter, in my view.

The mere fact that some of the people who might seek to impose testing on another may be peace officers, some of them federal and some of them not, doesn't necessarily automatically transform the bill into a criminal law bill that comes within the criminal law power of the federal government.

The point is these are employees who have been exposed in their workplace to the risk of infection with a disease. The fact that they are peace officers is really irrelevant at that point. If you had Canada Post workers who were exposed to the risk of infection, it wouldn't make it automatically a criminal law issue just because they're federal employees. I don't think that analysis works.

The point is, this is a health bill. It's not about creating criminal offences. And the two provisions in the Criminal Code that do allow for forced testing are specifically linked to the pursuit of criminal prosecution; that is, for impaired driving or other listed offences when you need DNA analysis. That is, I think, the necessary nexus with the criminal law power of the federal government that does not exist with this bill.

Ms. Aileen Carroll: Thank you, Mr. Elliott. Thank you, Mr. Chipeur. Thank you, Mr. Chair.

The Chair: Thank you.

Chuck, you have three minutes.

Mr. Chuck Strahl: Certainly. I have a couple of questions. One is a just a follow-up on the answer given by Mr. Elliott that he felt the best thing to do if someone is worried is to get their own blood tested.

I think I saw Mr. Shafran chomping at the bit a little to also get his oars in the water. I wonder if he agrees that this is the best way, or is the blood sample... I think this is going to be critical, because the expert from the government yesterday said that unless we can prove that this is useful, then this bill is useless. It has to be useful. If it's not useful information, the court will never allow you to... You're not taking this for fun.

Mr. Shafran.

Dr. Steven Shafran: Well, as I said several times, I certainly believe testing the source patient for HIV infection is useful, but what I was nodding my head at was the suggestion by Mr. Elliott that for an exposed individual who starts post-exposure prophylaxis to have his or her blood tested for the viral RNA while he or she is receiving these drugs makes no sense at all, medically speaking. I've followed dozens of HIV-positive patients whose RNA tests are negative because they're on good, effective drugs. But they are absolutely HIV positive, and even though the viral loads are remarkably low in the blood, they can still transmit infection. That solution unfortunately isn't going to work.

Mr. Chuck Strahl: I have a question for Mr. Kinnear.

Dr. Shafran mentioned that the cooperation rate for someone in a doctor-client relationship is about 99% of people. Almost everyone will give a sample of blood if you ask for it. If you have some kind of problem, you ask for a blood sample to test it for something, because you stuck myself with the needle, and you get 99% cooperation. I'm not sure if there are any statistics or if you have any idea what the cooperation rate would be for that kind of request among the clientele you deal with, either within the prison system or the people you arrest and charge. Are they cooperating at a similar rate?

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Mr. Dale Kinnear: I couldn't give you any statistics on it. Nobody is tracking that particular thing, not at our organization or, as far as I know, by any of the individual employers. You have to appreciate that a lot of that is confidential because it is medical information. It's between the person who is exposed and their doctor.

As you can probably also appreciate, a lot of members are not willing to come forward and get into a lot of detail about this, beyond the fact that they've taken the cocktail. I wish I had that kind of information, but I have to rely on anecdotal information and comments from the members who have given us information. Routinely, they refuse, particularly in situations where the officer has arrested someone and there's been a little bit of a scuffle, or they've been dragged out of the house, or that kind of situation. They're not very pleased with the police in the first place, so their tendency to be cooperative is much like the situation that Isobel described.

The Chair: Thank you very much.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): As my colleague knows, I share his aim, particularly that of insuring that people who may, in the exercise of their functions, be in contact with possible transmitters, can protect themselves as much as possible, understanding of course that it is impossible to have an absolute guarantee of success.

So much then for the principle. As for the legislation itself, I do have a number of problems. Not being a lawyer, I don't intend to go into matters of jurisprudence.

Could one of you give me a more precise idea of the extent of the problem? I believe that Mr. Shafran and Elliott alluded to it. Yesterday, we were told that 0.15% of the population was affected by HIV. I think that you confirmed more or less these figures, Mr. Shafran. The figures are fairly similar for hepatitis B, hepatitis C and so forth.

Assuming that certain sectors are at a greater risk, such as penitentiaries for example, then it means that in the public at large, the figures are even lower. The likelihood that someone belonging to this category will find himself in a situation where there is risk of transmission is just a fraction of a fraction of this fraction. Is that not so?

I am not talking about support or opposition for this bill, but I would like you to help me understand this issue in relation to the extent of the problem. That is my first question. I have two other ones.

[English]

Dr. Steven Shafran: I think you're directing that at me.

In terms of the scope of the problem, I should have brought with me the statistics, because in the Edmonton area we have a needle stick response team that actually collects statistics on this. My recollection is that they handle in the order of 1,500 calls a year, but I don't want to mislead. I can get you the actual number, but I think it's in that ballpark.

These are all situations in the community. These include finding needles in playgrounds and garbage cans and so on, and from sources that are unknown to which this legislation doesn't speak at all. That's a different situation. Most hospitals have occupational health programs that have statistics. Ours does, and I think we average about one needle stick per day somewhere in the system.

Again in the occupational setting, although the needle sticks are occurring... We agree with the idea of universal precautions, but universal precautions don't do a lot to prevent puncture injuries. We are moving more and more to needleless systems, as you suggested, with connectors that snap as opposed to having needles. But you still have to use some needles to penetrate skin, and scalpels and so on, so we'll never get rid of all precutaneous injuries.

However, as I said before, in the hospital setting, with the cooperative relationship between patients and health care workers, the voluntary testing rate is so high that we wouldn't need legislation to address that.

The Chair: Thank you very much, Monsieur Saada. We're way over.

Mr. Jacques Saada: Can I come back after?

The Chair: Yes.

Mr. Peter MacKay: I have two very quick questions.

I completely understand the confidentiality concerns about this, and I think there's ample reason to have those concerns, given the recent revelations about information being collected by the government and the HRDC department and the leaks from that. So that's a valid concern.

Back to the issue, though, that was raised by Mr. Elliott about the nexus between criminality and this bill, I can think of ample examples in the criminal justice setting where we've seen acts that were certainly intentionally meant to spread a noxious substance, whether by a vial of a person's own blood, knowing they were infected, putting needles in the seats at a theatre, intentionally trying to inject a person, or an intentional assault whose purpose was to spread this illness. There are all kinds of scenarios that come to mind with respect to what would justify including this in the Criminal Code of Canada. So I think there is a nexus that can be made that somewhat rebuts what you've put forward.

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Is there a comfort level that comes about by beefing up or putting greater emphasis in this legislation, as has been suggested, that is aimed at safeguards for preserving confidentiality? I've read it through a few times, and there does appear to be a great deal of emphasis put on the prior judicial authorization. That is to say, the warrant application would certainly have to be very, very substantiated in order for this type of warrant to be issued, because of this confidentiality and because of this elevated level of intrusion. Can that be addressed?

We're here to try to draft—and Mr. Strahl has said it quite clearly—the most effective, most responsive piece of legislation. Therefore, I'd be interested in your input as to how we can address this confidentiality issue.

Mr. Richard Elliott: Thank you, Mr. MacKay.

Certainly I think it would be a significant improvement if the confidentiality provisions were to be added or improved in the legislation. That said, all the other concerns that I've raised with it would remain. With the greatest of respect to the other members of my profession who sit on the bench, I'm not, perhaps, as confident in the protection that's afforded by the fact that judicial authorization is required first.

We've seen, unfortunately, in Canada judges sentencing people to two years less a day of imprisonment for biting a police officer, simply on the basis that the person is HIV positive, when there is absolutely no appreciable evidence to suggest that there's any appreciable risk from the bite in question that HIV could be transmitted. So I think there's a great deal of misinformation out there. I'm afraid that the judicial authority that has this case come before him or her, who has that kind of misinformation about what HIV is, how it may or may not be transmitted, is the one to make the decision about whether or not there are reasonable grounds to believe that the person may have been exposed to the risk of infection. Clearly, there's a great deal of education that needs to go on there.

Yes, there is a certain degree of safeguard in the bill as it currently stands, but in all honesty I'm not sure it's really sufficient to deal with the concerns.

The Chair: Thank you very much.

I see Mr. Kinnear wants to answer. I'll recognize Mr. Saada after Mr. Kinnear.

Mr. Dale Kinnear: Perhaps I may respond to that very quickly.

That would be like saying, where the accused is before the court for attempted murder, “Yes, my client shot at the police officer, but he didn't mean to kill him.”

Thank you.

The Chair: Mr. Saada, you have your second question now.

[Translation]

Mr. Jacques Saada: Thank you. I will also ask my questions one after the other to make things easier.

The Criminal Code refers to crime. Of course, I can understand that in the case of Ms. Anderson, there may be a greater possible link with crime, but generally speaking, the scope of this bill is greater than that. Are there other examples in the Criminal Code which cover elements that have nothing to do with crime or a suspected crime?

Second, do police forces, including the Ottawa—Carleton Police, provide special preventive training for this type of potential incidents?

Third, you said, and correct me if I misunderstood,

[English]

that you had reservations on the bill. I haven't had time to read it, of course, but are you proposing specific amendments to the bill that would satisfy your concerns about the non-acceptability of the bill as is?

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Mr. Dale Kinnear: Perhaps I could respond first as far as the universal precautions and the training for police officers. The training on that issue is very good, but I think, by virtue of the fact that our members continue to bring this issue forward, it shows that the training is not enough.

You'll see at one of the tabs in the brief there is a provincial protocol in Ontario from the medical officer of health, and one from Health Canada as well. The training on this, in my experience since the mid-eighties, has become very good, the provision of equipment and everything else. But that is not enough. We're not getting enough information, we feel, and universal precautions just don't cut it any more, particularly in a situation where you don't have the opportunity to pull on your rubber gloves or get out your paper suit, as the case may be, or get the javex out and splash somebody down. I suggest that probably wouldn't go over very well, either, if it's a subject I've arrested and I wash him off with javex first so I can handle him. I think they just don't cut it any more.

The members are concerned. As I say, in situations where you're making an arrest or you've been attacked, you're trying to apprehend somebody, execute a warrant, whatever the case may be, a lot of our clients are not very cooperative. If they put up some kind of resistance, you don't have time to snap on the rubber gloves.

We've had people in this country complain about police officers because they approach them putting on rubber gloves. So I guess we're kind of caught between a rock and a hard place here. I mean, what do we do? We feel this is justified. Although the training is good and the universal precautions are as good as can be expected, in our view it is simply not enough.

The Chair: Thank you very much.

Mr. Gerald Chipeur: On the criminal connection issue, there is no doubt in my mind that when Parliament legislates to make it easier for individuals who are charged with the responsibility of enforcing the Criminal Code to do their job—in other words, taking away the anxiety that might exist, reducing the time they are off work—there's no doubt that is the necessary connection with the Criminal Code under federal jurisdiction today. So I do believe there is the necessary connection, constitutionally, to justify part II of this legislation.

You asked would I suggest any amendments. I would suggest that part II, as it is, is constitutional.

There are two areas that could use clarification. But that is merely a matter of drafting, not constitutionality. One is the question of confidentiality, which is the imposition of some duty on the police officer or peace officer to maintain confidence. I believe there are laws in place today that could be used to do that, but it might be best to have it repeated in this legislation.

The second issue is the question of whether or not the individual is informed. Again, a matter of medical ethics could govern that, but it would be better to amend the legislation to ensure that, where possible, the integrity of the individual and their ability to say no to knowing their status is maintained, if that's not necessary to achieve the objective of the legislation, which is, of course, to help peace officers in their health care decision-making.

The Chair: Thank you very much.

Mr. Strahl is going to get the last question. Before we go to that, though, because I suspect we'll all be racing out of here when that's over, I want to wish everybody a good summer. Also, if anybody has anyone they would like to see considered as witnesses, please bring their names forward. We've received something from Mr. Strahl. Not everybody has done that, but I offer that invitation.

Mr. Strahl.

Mr. Chuck Strahl: Thank you.

Again, I thank all the witnesses. They have helped to clarify my mind on some of the amendments that I think are going to be necessary to this bill, especially in part II, where I have tried to keep the confidentiality. Realizing the importance of it, I take the advice of the witnesses. I thought it could be done by regulation, but if it needs to be specifically amended, I think we should look at ways to assure people that confidentiality will be maintained.

I do have to say to Mr. Elliott that someone who knew they had AIDS and bit a police officer and got two years less a day I think got an entirely appropriate sentence. I'd throw the book at him again. I just think that's... You lost me on that one, but that's just a general comment.

There was a question earlier that I'd like to get Mr. Chipeur's comments on. Yesterday the comment from the legal folks was that rather than have a justice give this kind of a warrant, we should go to a superior court judge, that it's a better way to do it, it's a higher level of security to make sure there aren't frivolous claims and so on. I would like your opinion on that, and also, if you would, on the use of electronic warrants.

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When this bill came forward, I heard from a chief of police who has tried using electronic warrants and has found them effective. The courts and the judges have also found it a very effective way to have rapid use of warrants where necessary, still using, obviously, the judge's discretion on it. You can bring expertise to bear on that warrant quickly. I'm not sure if it's useful, but this chief of police suggested we should really look at that. So I would like your opinion on those two things, the superior court judge and the use of warrants.

Mr. Gerald Chipeur: My opinion is the justices of the peace are the appropriate decision-makers here. We just had a case in Alberta where we dealt with the role of justices of the peace. Justices of the peace deal with questions of guilt often, but as this is not a question of guilt, it is not something that should be necessarily put before a superior court judge.

The issue here is simply this. Is the person making the application acting in good faith? Is there an appropriate opinion from medical individuals to support the application? Those decisions require someone who is a third party to ensure that the medical opinion is there and the good faith is there. We do not need the level of a trial court in order to determine these issues. I think it would be appropriate to use justices of the peace, and I think it would be an inappropriate use of a superior court judge—not that they couldn't deal with it; I just think it's not an appropriate use of judicial resources.

The second issue is a broad issue. If you are in fact authorizing through the Criminal Code and other federal legislation the use of electronic means to make these decisions and make these orders, then it would be entirely appropriate to use it here, but I don't think this is an area where you need to have specific special legislation.

The Chair: Thank you very much. One can see the lights flashing. Thank you very much, witnesses.

The meeting is adjourned.