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]

Thursday, April 6, 2000

• 0946

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call the meeting to order.

The first order of business is that we're hearing from our colleague member from Fraser Valley, Mr. Strahl, on 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 is the custom of this committee in the cases of such legislation, we'll offer the sponsoring member the opportunity to explain his bill and we'll have an opportunity following that to put questions and inform ourselves further.

With that, Mr. Strahl, you have the floor.

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you, Mr. Chairman. I thank the committee members for this opportunity to speak to this bill.

I'm coming from the prayer breakfast ceremony. I'm feeling kind of scriptural this morning. I'm not sure of the words to say, but I'm hopeful that the right words will come to me to persuade you that this bill is a good one and should be supported.

I do want to say at the outset that for me, the whole purpose of coming here today is to let you know that I am prepared and want to work cooperatively with you on this bill. If there are improvements or amendments that need to be made, I'm eager to do that. I have spoken both to you, Mr. Chairman, and to the justice minister herself. I've mentioned to her as well that I do stand ready to improve this bill if there are ways to improve it. I don't claim perfection on the first try. I do think the gist of the bill, the thrust of the bill, is very apropros. I do think it's something Canadians would support and I do think it's an improvement to our current system.

There are five things I want to accomplish in a few minutes. As you say, then we will open it up to questions, I'm sure.

First I would like to table, if I could, letters of support I've had from national organizations across the country. If I could table that and leave those with you, I would like to do that, and you can go through them at your leisure. These are from people from across the country, groups like the Canadian Police Association, the Solicitor General's union, all kinds of organizations from across the country. I'd like to leave these with the committee just to show that there is broad support for the idea behind this bill. That may be helpful to explain, also in those letters, why they think it's necessary.

I'd like also to just briefly explain the genesis of this bill from my perspective, a very personal story. This is just a short excerpt from a letter I received from a father who lives in my riding. He said the following:

...my eldest son was involved in an incident at work (Canadian Tire in Abbotsford) a few weeks ago which has raised a large question for me. He helped apprehend a would-be shoplifter and in the scuffle some blood from the accused came to be on my son. My son is now on medication from the AIDS Prevention Society (St. Paul's Hospital in Vancouver). We won't be able to test him to see if he has contracted any disease until after three months. However, all it would take is for the accused to take a blood test to see if he has any such disease (he's a known heroin addict to the RCMP in Abbotsford). The accused refuses to take such a blood test and the law, I've been told, supports him in his refusal. Here again is a case where the victim is being punished and the accused's rights take precedence over the victim's rights. What can we as a family do? What, as our MP, can you do to help us, to help my son?

• 0950

That story, along with many others, including particularly in the local area here a story from Constable Isobel Anderson, who's with us in the audience here today, sparked me to put this bill together to try to address this concern. What do we do in a society when someone in the line of their duty, a frontline worker such as a police officer, health professionals, paramedics, emergency room doctors, and so on, is exposed to bodily fluids in a way that could have contaminated them and caused them possibly to catch a communicable disease?

I put this bill together with the help of my assistant, Chad Shaver, and the Parliament of Canada researchers and so on. This bill is designed particularly to address this concern. What it does is it helps Canadians, whether they're in that professional capacity or out of the goodness of their heart, a good Samaritan, like this young boy I mentioned. It would help them to know to the best scientific ability whether or not the person they helped was a carrier of a communicable disease.

This blood samples act compels a person who has either accidentally or deliberately spilled bodily fluids onto this health professional, good Samaritan, emergency professional, or whatever it might be.... If a person has had this blood or bodily fluid spilled on them in such a way that it's possible that they could have contracted a disease, the other person would then have to submit a sample of his or her blood for analysis to determine the presence, if any, of HIV, hepatitis C, or hepatitis B.

What the legislation does is it enables a judge to order the taking of a blood sample from any person who has either accidentally or deliberately contaminated any of these people. The person's blood would be tested. The blood test analysis would only be shared with the individual from whom the blood sample was taken, the affected person, a qualified medical practitioner conducting the test, and the police officer responsible for executing the warrant.

The blood test analysis would only be used for medical treatment, which is important as well because there has been concern. I would understand it if it were not the case, but what if this blood sample is taken and then used in a criminal court of law or used in some other civil case or whatever? This bill deliberately excludes that. It says this blood sample cannot be used for any other purpose, either civil or legal.

In the initial hour of debate, there have been some questions raised about the charter compatibility of this bill. I do recognize that you always have the debate about the security of the person from whom the blood sample is taken. I would argue that what this bill has tried to do is balance between the rights of the person who has potentially been contaminated with this infected blood, for example.... It tries to balance those two rights, the two conflicting charter rights, both of them having to do with the security of the person.

In other words, it's not just all a one-way street here. Obviously you can't flagrantly just take blood from someone for no good reason. On the other hand, people who are in the frontline of society, helping out society and being good Samaritans, as far as that goes, also deserve some charter protection for the security of their person. It's a balancing act and this bill tries to balance those two conflicting charter-protected rights. It does that in several ways.

First of all, the bill says you must go to a justice in order to get approval to take a blood sample. It must be an independent judicial officer who is involved in that decision. That judge would have to weigh all the given criteria and be convinced that the contamination was of a serious enough nature and was intrusive enough that they determined future testing was necessary. Again, each and every case would require almost a search warrant; each and every case would have to be justified on its individual merits.

• 0955

This bill will not give carte blanche to police officers or to medical professionals or to anyone else to step in and take blood samples or to test people's blood. What this bill does do is on rare occasions it will allow people—a judge—to order such a blood sample to be taken, and again, only on those rare occasions when all those other criteria are fulfilled.

I do think this bill is timely. I know there are all kinds of issues; this is probably Parliament's busiest committee, and I understand you have a lot on your plate and so on, but I do think the bill is timely.

There is broad support and growing concern from national organizations and from people such as my constituent, who said that there is a loophole in the law that needs to be filled just because of a growing realization of new types of contagious diseases that are out there. This is something that no one would have foreseen 25 to 30 years ago, probably. Yet there have been dozens and perhaps hundreds of cases, which we now have on file, of people who say that if only they could have tested the blood of the person that contaminated them they wouldn't have had to go through a very intrusive drug therapy program. They would have had the knowledge necessary to look after their physical well-being, which is, they feel, their charter-protected right as well.

Perhaps, Mr. Chairman, I should leave it at that. I know there will be a lot of questions. Maybe it would be best if I just answered them in a speech, but I'll just answer them as they come to me.

The Chair: Thank you very much, Mr. Strahl.

Before beginning our round of questioning, I would also invite you to submit to the committee suggestions for people who, when the time comes, could also offer insight into the legislation.

Mr. Chuck Strahl: I do have a preliminary list of witnesses that I could leave with you today as well. There are two or three more we're working on to see if we can get them to agree to come. I'll leave this preliminary list with you, if I may.

The Chair: Thank you very much.

Now we'll go to questions. I'll begin with Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

Thank you, Mr. Strahl, for being here today. I know that we gave you relatively short notice on this.

I just have a couple of simple questions; they certainly won't take up seven minutes. We know that probably...in fact, we can be certain that charter issues are going to be brought up, and I'm sure some of my colleagues across the way will bring them up. Do you have any actual legal opinions to support this as far as its charter compatibility is concerned?

Mr. Chuck Strahl: I do think that the committee will want to bring in some expertise—obviously greater expertise than my own—on this. I do think this is going to be the crux of issue: what is the proper balance between the rights of someone who has been contaminated and the rights of the security of the person that the blood sample is being taken from?

I did have the Library of Parliament put together several analyses for me to determine where this legislation would best fit and how to address the issue and so on. The analysis I have from them is that the best safeguards we can see, from both a section 7 challenge.... It's likely going to be challenged in several ways. Section 7, which is “life, liberty and security of the person and the right not to be deprived thereof”, is best covered, I think....

Again, first of all, this is not a willy-nilly test. It's not someone that just.... You can't take this test indiscriminately; it will require prior authorization. There needs to be an independent judicial officer involved. In other words, you need a judge to order this. That judge must hear from all the parties concerned. In other words, he'll have to conduct a hearing to do that. He has to weigh the given criteria on an individual, case-by-case basis. As best we can determine, that really quite onerous task to get a blood sample would protect the life, liberty, and security of the person, until it comes in conflict with that other one in such a way that it tips the balance one way more than the other.

Under the section 8 challenge, “Everyone has the right to be secure against unreasonable search and seizure.” Again, the best defence is within the bill, I think, and I'm open to suggestions if we can improve this. But again, there are very clear criteria. I've tried to define who's covered, what diseases can be tested for, what happens to the blood sample afterwards, the privacy and confidentiality of that information and how it's going to be handled and so on. I've tried to give very clear criteria. Perhaps it can be tightened up, but the attempt was made to have very clear criteria.

• 1000

Again, it requires a prior judicial authorization, and it also requires that judge to weigh the competing interests individually. You'll have to say that in your opinion the contamination wasn't serious enough to warrant a blood test or the conditions were such that there's a very slim chance that.... You're going to have to be a very persuasive arguer, I think, to get the judge to approve that.

We've tried, under both those sections, to come up with wording in the bill to look after that.

Finally, there is section 15, which gives the right to “equal protection and equal benefit of the law without discrimination”. This bill doesn't target any group. This bill is not targeted at intravenous drug users or anybody else. All it says is that if the contamination is of a serious enough nature and is extensive enough that there is, in the opinion of the judge and the medical officer, a likelihood of contamination, then the judge can order that sample to be taken. It doesn't target one group of people. It doesn't say drug users or people with a criminal record or anything; it doesn't single out anyone.

That part of the charter, of course, is very firm that it has to apply equally to all persons. I think it does that.

The Chair: Thank you very much.

We have a few minutes left.

[Translation]

Mr. Bellehumeur.

Mr. Michel Bellehumeur (Berthier—Montcalm, BQ): Do you have any statistics showing the number of good Samaritans who contracted HIV or some other disease under the circumstances you described?

[English]

Mr. Chuck Strahl: Pardon me? Are you looking for examples or...?

[Translation]

Mr. Michel Bellehumeur: Statistical evidence.

[English]

Mr. Chuck Strahl: Oh. I don't have any statistical evidence. I would think the numbers would be relatively small, statistically, but that is because the numbers of instances are very large and there's no way of tracking it right now because there is no bill that covers it. We have dozens of letters from hospital boards, emergency workers, and front-line workers giving anecdotal evidence, and in every single case they say “but I can't get a blood sample”, so that's just the end of it.

There really is very little statistical evidence that I can bring forward other than.... I'm happy to leave all these letters with you, the dozens of cases, but there is no way of tracking it because right now there is no way of confirming it. It's not followed through on under the current law.

[Translation]

Mr. Michel Bellehumeur: In your opinion, are the conditions set out in clause 3 of your bill for obtaining and executing a warrant cumulative? Must all of the conditions described in a), b) and c) be met before a judge will issue a warrant?

[English]

Mr. Chuck Strahl: The answer is yes. I think that a judge is going to be very reluctant to order this to happen because of all the charter concerns, but I guess the point is that if they go through these four tests and they bring the parties in and they say that in their opinion it's an extensive enough contamination.... In other words, if someone says they were splashed with a couple of drops of blood on the back of the hand, the judge is going to say, listen, I'm not going to order a blood test for that. I would think that any judge would say that's not a reasonable expectation that you could have contracted any disease.

If, on the other hand, someone without the proper medical equipment is giving mouth-to-mouth to someone, it can be a very messy, very unpleasant experience, with a lot of bodily fluid exchanges and so on. The judge may say that in his opinion, based on what's presented to him, this fulfils the criteria, the four steps that were mentioned, and he may order a test.

• 1005

So I do think that it is cumulative, as you say, that it would have to meet all of the criteria. And if that happened the judge would move forward and order that blood sample to be taken.

[Translation]

Mr. Michel Bellehumeur: I have two last questions. How will clause 3 and the criteria you mentioned help the Canadian Tire worker you spoke of? As I see it, this individual does not fall into any of these categories. Furthermore, how will your bill help this person obtain a warrant from a judge? Please explain that to me.

Secondly, don't you find it rather odd that a person can go before a judge and ask for a warrant to be issued when a crime has not even been committed?

[English]

Mr. Chuck Strahl: Again, there are other people who suggest that what we need is a bill that specifically targets those convicted of a criminal offence. This bill doesn't pretend to be that; this is not about criminal activity. It's not meant to be someone who's.... The key point here is not that this constituent of mine helped to apprehend a criminal, although that was the case. What's important here is that my constituent was contaminated by this blood in an effort to assist the police officer. So it's not to aid with conviction, prosecution, or any such thing. All it does is provide the maximum amount of medical information to that person to allow them to decide what kind of medical treatment to follow through on.

In the case of Isobel Anderson, for example, she was pricked with a blood-filled syringe while she was frisking someone down. She was told that the person was an intravenous drug user, that there could be a high incidence of contracting these diseases, and it was suggested that if she wanted the maximum benefit from the medical treatment she would have to start this intrusive drug therapy immediately, which she did.

The effects of the drug therapy were so profound that they knocked her flat. She was unable to.... Without getting graphic, it glued her into her chair, which she couldn't get out of even for her basic body functions. It was a serious drug therapy program.

It happened in her case that a police officer said to this person—it was a street person, a sad case—“Listen, if I give you a Big Mac, will you give me a blood sample?” And the guy says “Heck, for a Big Mac, you bet”. So for the price of a Big Mac, he gave a blood sample. They tested it and it tested negative.

What happened then is that Ms. Anderson completely changed her medical treatment, not because she's 100% sure that she's never going to be contaminated by this substance, but because she had the maximum amount of information that allowed her to make a good decision about her own security of person.

I can give you many other cases where people said “When I found out that the test was negative, I decided on the balance of averages because the risk of infection is relatively low, especially when that negative test comes back. I felt that intrusive drug therapy, which is very hard on the body, wasn't worth that risk to my body and I changed my treatment program.”

So this is about giving maximum information to the person. There are no guarantees in this bill that you'll always have 100% assurance, but it gives you the maximum information. It would have helped my constituent and many others make that decision based on the information.

The Chair: Thank you very much, Mr. Bellehumeur and Mr. Strahl.

Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Thank you.

First of all, I want to commend you for bringing the bill forward. It's timely, it's important, and I know a lot of work went into it.

I have a couple of concerns, some of which you've touched on.

You said this is not about criminal activity and that there are times when people may fear infection through either deliberate action or accident. If there's deliberate action, then I can understand this, but why, if it's not criminal, are we using the Criminal Code as a vehicle to get where we want to go? Is there—and I don't know the answer to this—another vehicle, for example labour or health and safety legislation, that could be equally effective and less like a hammer coming down?

• 1010

We're dealing with Criminal Code legislation, where usually we suggest there's an intention to do harm. When you talk about those who deliberately threaten say a policeman, where an offender bites him and says “You're going to arrest me, but guess what I did to you”, then okay, maybe the Criminal Code would be an appropriate avenue to use. But when it's in the course of performing one's work, should we not find another vehicle to get to the same station? Have you explored that?

Mr. Chuck Strahl: Thank you for that. Yes, we have explored other options.

Again, I had a paper put together by the Parliament of Canada to see if we could address especially the workers through the Canada Labour Code—not good Samaritans, but people who would be covered under the Canada Labour Code. We did try to find, whether through the occupational health and safety regulations or some other way, a way to, as you say, use less of a hammer on this. Unfortunately, we couldn't find a spot in the labour legislation that would be able to force this issue the way this bill does.

I realize it's a tough bill in the sense that it will undoubtedly require people to balance those charter rights, one against the other. It's going to be a balancing act, and I hope you can help me to fine-tune it if necessary.

But when we looked at the Canada Labour Code—and I'm happy to pass along a copy of this analysis—it did seem that no matter where we tried to fit it in, it just didn't have any oomph to it. We couldn't make anything stick. We tried several different ways and couldn't make it work. So my answer is that we tried other less intrusive ways, and the analysis we received back is that it just wouldn't do the job.

Mr. Peter Mancini: Okay.

I have a second question. Again, I don't pretend to be an expert on testing, but recently I've read about rapid screening, that in fact there is now a device you can use outside a laboratory that reduces the wait for results from two weeks to fifteen minutes. It's not licensed yet in Canada. But I'm wondering if, for example, those in the helping professions—and that's what I'll call them—could be issued one of these rapid-testing devices, whereby they could do a test on themselves to determine whether they had been infected. It would reduce the waiting time from two weeks to fifteen minutes.

You know how this place works. Is there a chance that by the time we deal with this, there will be technological advances that could achieve the same result, without intruding on the rights of the other individual?

Mr. Chuck Strahl: Dr. Keith Martin, who is a colleague of ours and an emergency-room doctor, has a similar bill in the system. I don't have medical expertise, but my understanding from talking with him is that the waiting period you're talking about is not for the person who could have been infected; it's the testing period, the window, if you will, on that other blood sample. I don't think you can test someone—and I'll leave it to other medical experts—fifteen minutes after they may have been contaminated, and have the results.

There have been some encouraging new tests—and Dr. Martin mentioned several of them at the news conference we jointly held with Ms. Anderson—that, as you say, by the time this bill would become law may have been approved for Canadian use. They might cut that window down from several months to a reasonable period. I think, from the newspaper reports, those tests are improving rapidly. But I don't claim to have that medical expertise. I have suggested a few people who I think could bring you up to speed on that.

• 1015

Mr. Peter Mancini: I have one final question. Are we in danger here of opening some floodgates? By that I mean that what this bill sets out to do is protect the rights of those who might be infected through their work—and you used the example of mouth-to-mouth resuscitation. Down the road, can you foresee somebody else introducing a bill because they say “You know what? I may have been helped by a good Samaritan who may have been infected. Therefore, I have the right as a citizen to know whether that firefighter, that police officer, or that nurse may have come into contact with HIV. I want a warrant to get them tested.”

Mr. Chuck Strahl: That's a good point, and there may well be. I don't know if there would be a flood of that, but there may be other legislation or other ideas that may come about some day. I'll leave that to someone else to bring that forward, but I understand your concern on that.

It is interesting that one of the recommendations of the Canadian Medical Association, for example—recommendation 7 from resolutions adopted from their 1998 general council—was that all patients undergoing any procedure where a health care worker could be accidentally exposed to that patient's bodily fluids be required to sign a waiver that would allow appropriate testing of that patient's status for HIV and hepatitis if such exposure should occur, while ensuring patient confidentiality. In other words, the CMA suggests that any patient should have to sign ahead of time a release saying that if I'm a surgeon, I hit the artery, and I get blood covering me in such a way that it could have contaminated me, I have the right to test. In other words, their suggestion is that they need to be protected from all patients. Now, that may come, but—

Mr. Peter Mancini: But my point is, if I'm the next guy going into surgery, do I have the right to say to the doctor that I want to know if he has been infected?

Mr. Chuck Strahl: Briefly on that, if such a procedure were to come forward, I would suggest you would have to show a justice—again, this isn't in the bill—that the surgeon cut himself severely in the midst of your operation and spilled enough blood on you in such a way that you could convince.... You couldn't just say you want a blood sample. It's going to have to go the judge and the judge just has to be convinced of it.

The Chair: Thank you very much, Mr. Mancini and Mr. Strahl.

Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Speaking as a physician, we were always a bit worried about whether we were treating ourselves or treating our patients when we ordered certain things or when we recommended certain things. I guess this bill worries me a little bit in terms of the so-called reassurance of knowing that the person you have helped tests negative immediately for something like HIV. Something like that may indeed have an incubation period of up to two weeks before the test is positive. If the person was exposed the night before, the test will be negative, but we know we have to start the post-exposure prophylaxis the next day or as soon as possible. The fact is that you could get a negative test and be falsely reassured, when you should have begun the PEP treatment, right?

In medicine, we have what we call universal precautions. We presume everybody has AIDS when we stick ourselves. To actually give people false reassurance because they have one negative blood test.... Are you going to say this person has to be tested again in two weeks to make sure they're still negative, and then be tested again in six months to make sure they're still negative? I'm a bit concerned.

I'm also a little bit concerned about why this is confined to persons administrating and enforcing the law, and to good Samaritans. We don't even have the right to do this on rape victims. So I guess I'm worried that this may be treating ourselves and making us feel good about making people think they feel better, when it's actually not medically correct.

Mr. Chuck Strahl: Okay, there are a couple of answers on that. One is on the Criminal Code side. If someone wanted to propose that a rape victim has the right to know whether the person who raped them has a communicable disease, that's a whole other issue, which this bill doesn't cover. I personally would be in favour of trying to come to some remedy in that, but this bill doesn't try to do that.

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The reason I restricted this bill to front-line workers and good Samaritans involved in the same type of thing is that I didn't want to get into the issues of trying to convict someone of a criminal offence, of getting DNA from them, of using it in a criminal case, or of using it in any way against the person you took the blood sample from. To me, the big row, the big fight, would be that I took a blood sample by force, and now I'm going to use that blood sample against you in some way. I don't know how to craft a bill like that. It would be a huge fight, and I don't know how you'd win it.

Ms. Carolyn Bennett: But if by getting a negative test we have falsely reassured somebody who should have taken the medication, it seems like an odd thing for society to be doing. All the medical people are saying universal body precautions are what we have to take.

When we were at the UN AIDS meeting in Geneva last year, they talked about best practices in AIDS legislation. We are still waiting for that volume in terms of the consensus reached, but it was really clear that we must take a human rights perspective rather than a public health perspective on anything to do with AIDS, because just trampling on people's human rights is the slippery slope in a public health paranoia.

I guess I am a little worried mainly about the false reassurance. How would you feel, Chuck, if somebody didn't take the medication because of even the wrong lab test or the fact that this person turned positive two weeks later?

Mr. Chuck Strahl: I understand that. What it does, though, is give to a person the maximum amount of information available at that point in time, in order to allow them to make that informed decision about their medical treatment.

You know that the PEP procedure that you talked about is a very intrusive drug therapy program. You're saying you might have contracted something, so you're going to put yourself through this in hopes of preventing a disease that you may or may not have. People make the decision based on a number of factors. If somebody had some blood spilled on their hands but they washed it off right away and they didn't have any cuts—you would know all the worry things better than I would—they can then say that, based on all that, they're not going to take this intrusive drug therapy because it's just not worth the risks. Those risks are versus the risks of the drug therapy, on balance, allowing the person to make an informed decision that they're not going to proceed with it.

But if somebody said a series of other conditions took place—they cut themselves during surgery at the same time when they had blood on it, while at the same time they had a positive test—or if a bunch of factors came together, then based on all of the information and the best advice of their physician and so on, they could say they think it's best for all concerned, and for their own security, that they take this precautionary drug therapy treatment. But one of the factors in that—one of them, and only one of them—is the test of the blood itself.

We can again use the example of Ms. Anderson's case, but in many other cases paramedics, firefighters, and other front-line workers have said to me that they had to decide whether to get into this huge drug therapy program based on all these other factors. Quite often a person will give voluntary blood samples and they come back negative. So since that was one of the factors, these workers decided on balance—because chances of infection are very low anyway—what their future medical treatment would be, based in part on that sample. In part, I think that's why the CMA wants that blood sample as well. That's part of the resolutions from the medical association as well.

Ms. Carolyn Bennett: I don't think they've looked at whether or not it would meet a charter challenge, though. These are doctors, not lawyers, actually.

I would say that if I had the Canadian Tire story and had a known IV drug user, I'm not sure the negative test the next day would change my advice to that patient about taking the PEP.

Mr. Chuck Strahl: It may not, but it did in Ms. Anderson's case and many other cases. In many other cases that I can give you, people said it did make the difference.

Ms. Carolyn Bennett: But what if we were wrong?

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Mr. Chuck Strahl: But that's up to the patient, as you know, to determine whether they want to follow through on any treatment, and they just say it's one of the factors. One is how much bodily fluid I got spilled on me, in what manner and in how intrusive of a way, and all these other factors. If the physician starts off by saying “Listen, with the amount of blood you got on you there, or whatever it was, man, I just don't think you likely ever could have caught anything from that”. That person would likely say “Okay, I take your advice”. But if it's just one of many factors, then this would allow them to make that decision.

I agree with you, the CMA is not a law body, and they weren't looking at the charter challenge. But what I think they were looking at under this resolution is saying “As a medical practitioner, I want the maximum amount of information given to me, and then I'll make the decision. I may still follow through with it because of the potential of a false negative, but at least I'll have all the information, and based on all the other factors plus this information, I'll proceed with what I think is appropriate treatment.”

I hear anecdotal stories from hospitals that in a hospital situation, especially if the person ended up as a patient in the hospital, there are times when people say “I did find out somehow that somebody had a communicable disease and I took appropriate responses”. But that's not legal. It's just that you happened to be the lab technician who happened to see that somebody had a.... That goes on, but that only helps medical practitioners who happen to be in a hospital, happen to have the information, and all that.

That's not the way to handle it. This is up front, and in my opinion it allows people to make an informed decision on their own future drug therapy program.

The Chair: Thank you, Ms. Bennett.

Mr. Reynolds? Mr. Mancini?

Mr. Peter Mancini: No, I'm fine.

The Chair: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I want to pick up on your line of questioning with Mr. Mancini, because he articulated some concerns I had.

Your response to his question was that you had examined or had the Library of Parliament examine the health and safety issue as to whether this kind of idea, which on the face of it is an attractive idea, could be put someplace other than in the Criminal Code.

First, can you give a synopsis of the reasoning that there could not be room created in the health and safety?

Secondly, could you table that opinion?

Thirdly, have you thought about the provincial implications of this? You've obviously spoken about the charter issues, but clearly the provinces would have some area of jurisdiction in this matter as well.

Mr. Chuck Strahl: Certainly, and if I could, I will leave with the committee the opinion I received from the Library of Parliament.

Their first concern was that under the Canada Labour Code, only a very small number of people are covered, especially among health care professionals, under federal legislation. As you know, it's almost all provincial. So only a very small percentage of the people who have contacted us and supported this bill would be covered under the Canada Labour Code. I don't know what percentage, but only a very small percentage of the overall labour force in these fields are covered under the Canada Labour Code. Whether it's emergency staff or ambulance attendants...even most police forces are not covered under the Canada Labour Code. So it doesn't help any of those people. Firefighters, good Samaritans...none of them are covered under the Canada Labour Code.

That's the first and biggest problem. It doesn't cover the target group that I've tried to hit with this bill.

The second thing they mention here relates to the process under the Canada Labour Code. If there's going to be a prosecution under that code, it has to proceed with the consent with the Minister of Labour. That's just the way the bill is laid out. So it's a restrictive bill, a difficult one. I think you'd have to get the Minister of Labour involved in each and every case. I don't think that's practical, and I don't think it would work. I do think having a judge involved is a better way to do it.

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Lastly, the opinion we got stressed the fact that the Canada Labour Code is a good place to stress the prevention and the good practices that Dr. Bennett mentioned. That is a good place to talk about preventive measures, preventive training, and making people aware of all the problems and risks, but it's not a good place to deal with the taking of a blood sample. It's a good preventive measure, it's a good regulatory thing from the prevention side, but it doesn't deal with a Criminal Code amendment such as I have, which allows a judge to order that the test be taken.

No matter how we tried to fit that in, it didn't seem to affect enough people. It involved the Minister of Labour in any court proceedings. And lastly, it said the labour code is just not designed as an after-the-fact thing; it's a preventive thing, a regulatory body, and, they suggest, not the place you could have this type of regulation.

The Chair: Thank you, Mr. McKay. We'll come back, John, if you would like.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have two quick questions. First of all, I want to thank you for introducing this bill. I think it's important for us to reflect upon these matters.

Either I didn't quite understand or the answer to the question put by Mr. Mancini about reverse situations was overly evasive. Is the same recourse available to a person who has been injured, be it a victim or even a suspect, should it happen that the good Samaritan was himself infected? Can the injured party seek a warrant to obtain a blood sample under the circumstances?

I realize that this may be a theoretical question, but I would like us to be consistent in our approach. I understand that hospitals have certain procedures in place to cover every eventuality. For example, consider the case of ambulance attendants who are frequently called to the scene of a motor vehicle accident, sometimes seven or eight times a week. Are they going to request that blood samples be taken from every person they treat, that is every person who poses a potential threat? If that's the case, where do we in fact draw the line?

[English]

Mr. Chuck Strahl: Thank you.

To take those in order, the first is that the bill does not cover the reciprocity issue. Perhaps we want to make an amendment that way, I'm not sure. Although the bill wasn't designed for that, perhaps it could fit where you could say, in turn, someone who may have infected a person they were helping could go through the same process.

But again, under the circumstances it just seems to me we're talking about two different things, really. One is someone who is helping someone out. Generally, you're helping someone. You yourself are not injured or cut, or you don't have a syringe or you haven't bitten someone. None of those things have taken place, yet all those are potential problems for a police officer, as an example. So the bill doesn't cover that. Perhaps it could be amended. I haven't thought of it in that sense, but it could cover other people that way. This bill doesn't cover lots of things. It only covers this one set of people.

The other thing is, if you look at the bill itself, you have to be able to convince a judge that by reason of the circumstances under paragraph 5(b), by reason of the circumstances in which the applicant came into contact with a bodily substance, the applicant may have been infected by a designated virus.

In other words, you're going to have to be able to go before a judge and convince the judge, explain what happened and that it was such a serious contamination of that person's bodily fluids, whether it be saliva or blood or whatever, and it happened in such an intrusive way that I'm convinced I could have caught it, the medical practitioner agrees, and the police officer is there, all that stuff is there. Based on all of that, the judge says the circumstances are that drastic that he or she is going to order that a sample be taken.

But it can't be everybody you come in contact with. It can't be people you shake hands with. It can't even be people you treat as a medical practitioner. It has to be something where you say it was such a drastic contamination, an accident of such enormity that the judge is convinced that you may have contracted and will order that testing. That will be a rare occasion, but not impossible.

The Chair: Thank you very much.

I would bring to everyone's attention the fact that we have to get back to the House for a vote.

You will know that we are beginning clause-by-clause on Bill C-3 on Tuesday at 9:30 a.m. We've received notice, but I've not seen a motion. I don't think he's left instruction with anyone to introduce the motion.

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Mr. Alcock.

Mr. Reg Alcock (Winnipeg South, Lib.): On that point, though, does that mean the motion is still open?

The Chair: That means no notice of motions have been tabled with the committee. The problem, of course, has been that many times when we would have been entertaining these motions we've not had quorum. That's been the problem. It's not the case right now, but with respect to the member who presented the notice, the member's not here, so I assume we can adjourn.

Mr. Reg Alcock: I want to raise one procedural question, Mr. Chair, just for consideration of the steering committee.

Notice provisions originally were intended to separate the debate over procedural items from the time that witnesses were appearing. A lot of committees have done that in order not to have witnesses who travel to be here be interrupted—and not in this case, but it often happens—by this kind of debate. By our accepting that this motion is now tabled and open, it means it can be called at any time. I think there's a flaw in our procedures that needs to be corrected.

The Chair: Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Canadian Alliance): I did have a motion. It has been circulated. Do we have time to move that right now? It'll be very quick, I think.

The Chair: We would have time to move it, but we'd have to come back. If that's your wish, we'll be back.

Mr. John Reynolds: It's just a motion to get John Reid before the committee.

Mr. Reg Alcock: He was here a while ago. What's the purpose of bringing him here?

Mr. John Reynolds: To consider the main estimates of his office.

Mr. Reg Alcock: Oh, sure. Yes.

The Chair: Is everyone familiar with the motion?

Mr. John Reynolds: We circulated it.

The Chair: Do we have agreement?

Mr. John Reynolds: Yes, Reg agreed.

Mr. Reg Alcock: I agreed.

The Chair: Then so moved and adopted?

(Motion agreed to—See Minutes of Proceedings)

The Chair: The meeting is adjourned.