JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

COMMITTEE EVIDENCE

CONTENTS

Tuesday, February 26, 2002

Á

1140

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Ms. Maggi McLeod (Vice-President, Education, Canadian Ski Patrol System)

Á

1145

Á

1150

The Chair

Mr. Sean P. McManus (Assistant ot the General President, Canadian Operations, International Association of Fire Fighters)

Á

1155

Â

1200

The Chair

Ms. Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association)

Â

1205

The Chair

Mr. Marc David (Treasurer, National Criminal Justice Section, Canadian Bar Association)

Â

1210

The Chair

Mr. Jason Gratl (Member at Large, Board of Directors, British Columbia Civil Liberties Association)

Â

1215

Â

1220

The Chair

Mr. Brian Fitzpatrick (Prince Albert, CA)

Â

1225

Mr. Jason Gratl

Mr. Fitzpatrick

Mr. Marc David

The Chair

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ)

Mr. Marc David

Â

1230

Mr. Michel Bellehumeur

Mr. Marc David

Mr. Michel Bellehumeur

Mr. Marc David

Mr. Michel Bellehumeur

Mr. Marc David

Mr. Michel Bellehumeur

The Chair

Mr. Marc David

The Chair

Mr. Michel Bellehumeur

The Chair

Mr. Strahl

Â

1235

Mr. Marc David

Mr. Strahl

Mr. Jason Gratl

Mr. Strahl

Â

1240

The Chair

Mr. Strahl

Mr. Jason Gratl

The Chair

Mr. John McKay (Scarborough East, Lib.)

Â

1245

Mr. Sean McManus

Mr. John McKay

Mr. Sean McManus

The Chair

Ms. Maggi McLeod

Â

1250

Mr. John McKay

Ms. Maggi McLeod

Mr. John McKay

The Chair

Mr. Marc David

The Chair

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR)

Â

1255

Mr. Marc David

Mr. Peter MacKay

Mr. Marc David

Mr. Peter MacKay

Mr. Jason Gratl

·

1300

The Acting Chair (Mr. Ivan Grose (Oshawa, Lib.))

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. Marc David

Mr. Paul Harold Macklin

Mr. Marc David

Mr. Paul Harold Macklin

Mr. Sean McManus

Mr. Macklin

Ms. Maggi McLeod

Mr. Paul Harold Macklin

Mr. Jason Gratl

Mr. Paul Harold Macklin

Mr. Jason Gratl

The Acting Chair (Mr. Ivan Grose)

Mr. Marc David

·

1305

Mr. Paul Harold Macklin

Mr. Marc David

Mr. Paul Harold Macklin

The Acting Chair (Mr. Ivan Grose)

Mr. Strahl

·

1310

Mr. Jason Gratl

Mr. Strahl

Mr. Jason Gratl

Mr. Strahl

Mr. Marc David

Mr. Strahl

Mr. Marc David

Mr. Strahl

Mr. Marc David

·

1315

Mr. Strahl

Mr. Marc David

Mr. Chuck Strahl

The Acting Chair (Mr. Ivan Grose)

Mr. Marc David

The Acting Chair (Mr. Ivan Grose)

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 065

l

1st SESSION

l

37th PARLIAMENT

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COMMITTEE EVIDENCE

Tuesday, February 26, 2002

[Recorded by Electronic Apparatus]

Á  (1140)  

[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call to order the 65th meeting of the Standing Committee on Justice and Human Rights. Today, we're considering Bill C-217, 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. We have four groups of witnesses that will assist us in our deliberations on this important piece of legislation, which is sponsored by Mr. Strahl, as a private member.

    I want to apologize for the fact that we're a little late getting started. We had a vote—as I hope you understood—but I'm hoping we'll be able to hold some people past one o'clock if it's not a problem for you. That way, we would be able to add some time on at the end.

    With that, I want to go quickly through the witnesses. They are Jason Gratl, from the British Columbia Civil Liberties Association; Maggi McLeod, from the Canadian Ski Patrol System; Sean McManus, from the International Association of Fire Fighters; and Joan Bercovitch and Marc David, from the Canadian Bar Association.

    I understand Mr. Gratl would like to go last, so I'm going to go to the Canadian Ski Patrol's Maggi McLeod.

    Ms. Maggi McLeod (Vice-President, Education, Canadian Ski Patrol System): Good morning. Thank you very much for allowing me the opportunity to speak to you today. It is indeed a privilege.

    Firstly, I must admit my job has been made easier by the fact that I'm not the first to speak to this committee on this issue. I have the advantage of having heard some of the previous testimony that has been provided to the committee. As such, I have a luxury of being able, in some aspects, to respond to some of the testimony simply from a different perspective, rather than having to break new ground on the issues presented by the discussions that you've had.

    I'm not a police officer, I'm not a firefighter, I'm not a medical emergency services worker, and I'm not a health care professional. In fact, I'm the executive director of a small Canadian charity that provides assistance to people in the small country of Belarus who are dealing with the Chernobyl disaster. It isn't my profession that brings me here today. It is my passion for my volunteer job. For the past eleven years, I've been a member of the Canadian Ski Patrol System, whose mandate is to promote safe skiing and provide first aid and rescue services to the skiing public in Canada. We have over 5,500 members—both volunteers and paid employees of ski areas—who perform this valuable service, one that is essential to the operation of ski areas in Canada.

    For over sixty years, the Canadian Ski Patrol has trained people in first aid and rescue techniques. The first aid course offered by our organization is recognized as a leading-edge course, and the full training requirements in the first year are comprised of almost a hundred hours. Subsequently, our patrollers are required to recertify their first aid skills annually.

    The members of our organization come from every profession, and it could be said that while most of us are volunteers with the Canadian Ski Patrol, we are also professionals other fields. We have doctors, lawyers, nurses, soldiers, government employees, executive directors, and homemakers. We join the organization because of one common thread—we all love to ski. We stay with the organization because we develop a firm commitment to helping people.

    Our primary function, of course, is providing first aid and rescue services to people who are injured at the ski areas across the country where we volunteer and work. In the course of our work, we come across people who are severely injured, as well as those who simply require a band-aid. When called to an accident site, we very often don't know which it will be. Just last month, members of our organization here in the Ottawa area attended to an accident a young skier ultimately did not survive. Skiing is considered to be a high-risk sport, and accidents often involve high-speed collisions with inanimate objects such as trees. Sometimes the trees win even when pitted against our very best efforts.

    We are also asked to provide first aid services at many non-skiing events across the country each year, from golf tournaments to hockey games to marathons, and even to fundraising events for other charities. We are well-trained volunteers in first aid who also take these services with us wherever we go: to work, walking down the street, and driving in our cars. We are those people who stop at accidents on the side of the road, because we feel compelled to assist due to the fact that we have taken training. We're quite often the people who make the calls to 911 from those accident scenes, as we are often the first people there. I guess this makes us good Samaritans, although I don't think we really see ourselves that way.

    Until December 1999, when this bill was brought to the attention of the CSPS by one of its members who actually happens to be a paramedic, I was very blithely unaware that I was, at least under the law, afforded less rights than an injured person whom I might help. I've been well schooled in taking universal precautions and always practise them, but they are not absolute, they are not binding, and they are not failsafe. An accident can happen no matter how careful we are. My current professional position attests to the results of accidents.

    I had never even contemplated the possibility of what would happen if someone refused to provide a blood sample after I had helped them and had been inadvertently exposed to their bodily fluids. I had always assumed that my rights would be protected, especially if I was doing something good for somebody else. Obviously, that was naive, in light of what I now know, but it is still inconceivable to me that somebody would refuse to provide a blood sample. I've thought long and hard about why someone would have the right to refuse, and what situation would support that right. I haven't come up with any answer that makes sense to me.

Á  (1145)  

    To illustrate the position our members are in, I want you to imagine the following scenario. Your wife or your husband and child are on their way to pick you up at the airport. It's a late-evening flight and it's raining. Through no fault of their own, they're forced off the road. They're unconscious, in their car, and badly injured. A first-aider happens to see the accident and stops. In seconds, they survey the scene, decide there isn't any immediate danger to themselves—no power lines down, the car is in an upright position, there's no smoke coming from the car—so they park their car with the four-way flashers going, grab their cell phone, and race over to the car. As they go, they make a call to 911 to report the emergency. They look into the car through the window, see blood everywhere inside the car, and note that the two injured people aren't moving. As they tell the 911 operator that they have an unconscious adult and child who are bleeding badly, they're putting on their gloves to protect themselves. Their hand goes through the glove, they grab another pair, and a third one as well. They carefully open the door, making sure not to move either of the injured people, and ensure that the car's ignition is turned off.

    What do they do now? Do they stop to think about what happens to them if they're exposed to this blood? Might the injured person refuse to provide a blood sample if asked for one later? Should they take the risk anyway and help the injured person? Do they simply close the door again and wait for professional help to arrive before they do anything, while your family lies bleeding in their car? I don't think so.

    In situations like this, our training takes over and we run almost on autopilot. In our previous naïveté, we wouldn't even stop to think about the risk. Should we now? Maybe, as long as we don't live in Quebec. If we choose not to help in Quebec, we could find ourselves in contravention of the Quebec Charter of Human Rights and Freedoms, chapter I, section 2, which covers the right to assistance. It states:

Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.

    We are left to wonder what a valid reason may be. For those who say this is a choice that we make and that we must therefore assume the risks associated with it, large or small, this may well be true, except in Quebec, of course, where we are bound by their charter to help. In Quebec, it's even conceivable that if we choose not to help, we could be charged with an offence in contravention of the injured individual's rights. This is an interesting choice: break the law or put yourself in a position in which there is a potential of risk that leaves you with no recourse if that risk actually becomes a reality.

    Why do we choose to stop and help at all? Even in Quebec, I don't think it's because a law says we must. Like the emergency service professionals we support, we have indeed actually made a conscious choice to help people. Just two weeks ago, on a flight to Europe, I used my first aid skills to help somebody. I can't imagine driving past an accident site with no emergency personnel on the scene, and I would hope that if it were me in that accident, someone else would stop to help me. Wouldn't you?

    Would you not hope I would help you if you had some type of accident, allergic reaction, heart attack, or stroke, right here in this room right now? Would you not be glad somebody in the room had training that could assist you? Please understand that I don't for one minute truly believe anyone in this particular room would refuse to provide me with a blood sample if the need arose, but that isn't the point. The point is, do you really want me thinking about it instead of focusing my efforts on treating you or your family?

    Quebec aside, knowing what we do now—that without this bill, we are unequal in terms of the law—we may need to consider what happens if people do choose not to help. Will they still volunteer while knowing the law appears to think less of their willingness to help people than it does of the privacy of those in whose aid they have volunteered? Perhaps.

    In recent presentations to this committee, I noticed comments to the effect that this does not seemingly affect a large number of people. For example, someone said the possibility of someone actually being impacted by accidental contact is so small that it should be considered negligible. The logical end to this thought process seems to be a perception that Bill C-217 is somewhat like hitting a thumbtack with a sledgehammer. I must disagree. That even one person should be made to feel that their health comes second to the privacy of another individual in the eyes of the law is sufficient to make it an issue that needs to be dealt with in some way.

Á  (1150)  

    The CSPS certainly acknowledges and supports the argument that there must be well-crafted controls in place to protect the privacy of those individuals. This right, however, must be balanced with the right of other individuals to protect their own health, whether they are emergency workers, volunteers, or simply good Samaritans. It would seem to me that it is the people in this room who have the knowledge and the skills needed to find a way to create that balance, to find that delicate but critical component in order to make this type of bill work for everyone.

    I thank you again for the opportunity to speak to you, and I would be more than happy to address any questions you may have.

    The Chair: Thank you very much.

    In my haste to get started because we were late, I didn't outline the ground rules. I very much appreciate your ability to read my signals so well, Ms. McLeod.

    It is our custom that the presenters come in inside ten minutes in terms of their presentations, and that if there is more than one presenter in a group, that time would be shared.

    I'd also like to bring to your attention a visiting delegation that is here with the Canadian Bar Association. We have with us a delegation of members of the criminal law committee of the All China Lawyers' Association. They are interested in the operation of the legislative process in Canada.

    Welcome. We hope you enjoy your stay. We also hope you have become hockey fans while you're here.

    With that, we'll go to Mr. McManus.

     Mr. Sean P. McManus (Assistant ot the General President, Canadian Operations, International Association of Fire Fighters): Thank you, Mr. Chairman.

    Good morning. My name is Sean McManus, and I am the Canadian operations assistant to the general president of the International Association of Fire Fighters. On behalf of our general president Harold Schaitberger and the more than 17,000 professional firefighters and emergency medical services personnel we represent in Canada, the IAFF appreciates this opportunity to provide the committee with our position on Bill C-217, the Blood Samples Act, as this proposed legislation addresses important health and safety issues that affect our members, who are front-line workers in the field of emergency response.

    On behalf of our 245,000 members across North America, I would first like to begin by thanking each of you personally for the many kind words of condolence and support that have come from Parliament Hill in response to the loss of more than 340 members of our association in the World Trade Center attack on September 11. These brave professionals showed us the finest examples of selflessness and public service when they gave their lives on that day so that others might live, and we, too, continue to mourn their loss.

    At the outset, we want to make it perfectly clear that the IAFF supports and advocates for a firefighter's right to know whenever there is a potential or actual exposure to any type of infectious disease. Firefighting is dangerous enough without the added stresses and threats to a firefighter's safety that come through not knowing or not being able to access that vital information. As will be seen from our submission, we have some reservations about whether or not the bill, as currently worded, would afford firefighters the information in a timely manner, so that an informed decision on medical treatment could be made. In that regard, we have proposed some changes to address our concerns.

    Firefighting is inherently a dangerous occupation. While most people understand that firefighters are routinely exposed to toxic smoke and dangerous structural conditions in the course of their duties, it is also a fact that firefighters at fire scenes, at medical calls, and while responding to vehicular accidents and other emergencies, commonly face exposure to pathogenic hazards while they deal directly with injured victims who may be suffering heavy blood loss due to traumatic injury, or who may be carrying an infectious disease that can be transmitted through the air.

    To illustrate this point, a 1998 survey of professional firefighters showed that one in every 32 firefighters was exposed to a communicable disease in the line of duty during that year. The most common exposures were tuberculosis, HIV/AIDS, meningitis, hepatitis C and hepatitis B. Of those exposures, 99% occurred at the scene of an emergency incident, with 87.4% occurring while the firefighter responded to a medical emergency, 8.7% during fire suppression activities, and 2.9% during victim rescue.

    A victim at a fire or accident scene must be removed from danger as quickly as possible to ensure the best chance of saving his or her life. This means an emergency responder must act quickly, often without regard to their safety. Such extrications commonly occur in difficult-to-access situations, such as a mangled vehicle or a building that has endured structural damage. Once extrication of the victim is complete, firefighters may be involved in on-scene medical treatment ranging from basic first aid intervention to the most advanced and invasive life-saving procedures. It is during these time-critical operations that a firefighter can be exposed to pathogenic agents and communicable diseases.

    At the time of extrication and medical treatment of victims, the emergency responder almost never knows the infectious disease status of the victim. For two critically important reasons, a firefighter must have the right to know, as soon as possible, whether there has been exposure to an infectious disease in the course of his or her duties. First, if there has been an exposure, it is extremely important that prophylactic treatment or some other appropriate medical care be initiated as soon as possible. Second, the emotional stress of not knowing whether infection has occurred can become overwhelming for the firefighter and his or her family.

Á  (1155)  

    In Canada, the issue of infectious disease notification is currently addressed by a federal protocol that was passed in 1995 and has been adopted at the provincial level in British Columbia, Alberta, Saskatchewan, and Ontario. This protocol details the manner in which emergency responders are able to obtain information about the infectious status of an individual with whom they have come in contact during the course of their duties. The protocol applies when an emergency response worker is exposed to an individual's blood or other body fluids through the skin or through a mucous membrane—or suffers airborne exposure, in the case of tuberculosis—in the course of attending, treating, assisting, transporting, or otherwise encountering an individual during the line of duty.

    Pursuant to the existing federal protocol, the employer designates an officer—either a fire, police, or emergency services employee with demonstrated experience in infection control—to be responsible for coordinating requests and responses. The designated officer is bound by strict rules of confidentiality regarding the infectious disease status of both the emergency responder and the victim. The designated officer has the responsibility of maintaining communication with the department, all community health care professionals, and the local public health officer. The designated officer also has the responsibility to investigate exposure incidents, notify members of exposure, document that exposure, and ensure that appropriate medical follow-up is received.

    If the designated officer determines, through investigation, that an exposure was sustained by an emergency response worker in the line of duty, a written request can be submitted to the receiving medical facility for notification of the victim's infectious disease status. This must be performed within 48 hours of the exposure.

    The receiving medical facility must have in place a procedure for responding to these requests, as well as a procedure for automatically notifying the designated officer of any emergency responders who have transported a victim found to have infectious pulmonary tuberculosis. In turn, the fire, police and emergency services departments must have in place procedures through which an emergency response employee can make requests to the designated officer regarding an actual exposure incident, as well as procedures through which the designated officer can properly carry out his or her duty to handle all search requests regarding exposure. If it knows the infectious disease status of the victim, the current protocol allows for the receiving medical facility to report it to the designated officer.

    I've taken some time with respect to the Infectious Disease Notification Protocols for Emergency Responders because now we address the issues found in Bill C-217. As opposed the Infectious Disease Notification Protocols, which rely on blood work already in existence, the Blood Samples Act proposes measures for obtaining a blood sample from an individual who has refused to provide it. Putting aside constitutional considerations for a moment, if the warrant process was initiated as an extension of any existing infectious disease notification protocols, many of the confidentiality concerns would be addressed. In other words, the criminal process would only be required if the medical facility did not have the necessary information or if the victim was in fact not treated at a medical facility. For this reason, those provinces that have not yet introduced any infectious disease notification protocols would have to do so to ensure uniform application and protection for firefighters and emergency medical services personnel across Canada. As it currently stands, that uniformity does not exist.

    The IAFF supports language specifying that the application for processing a warrant must be initiated by the employer through the designated officer, and not by the exposed individual. Accordingly, as this issue deals solely with on-the-job exposure to infectious diseases, all costs associated with processing the warrant and obtaining the sample must be borne by the employer, as is the case now with the Infectious Disease Notification Protocols.

    With regard to the specific wording of Bill C-217, the IAFF proposes that the term “designated virus” be changed to “designated infectious diseases” in order to specifically include infectious pulmonary tuberculosis, hepatitis B, hepatitis C, HIV/AIDS, diphtheria, hemorrhagic fevers, meningococcal disease, plague, and rabies. Also, the term “contact” in the proposed legislation should be replaced with the terms “inhalation” and “percutaneous and mucocutaneous exposure”, meaning “through the skin” or “through a mucous membrane” respectively. This language would address situations in which pathogens are introduced into the emergency responder's body, as in the case of being struck with a bloody needle; sustaining a cut with a sharp, contaminated object; or having blood or body fluids enter through an open wound, abrasion, chapped skin, or broken cuticle; as well as situations in which blood or body fluid is splashed into the eyes, nose, or mouth. An airborne exposure means contact with an individual suspected or confirmed airborne disease or with air that may contain aerosolized airborne disease. These changes would utilize the language found in the existing Infectious Disease Notification Protocols for Emergency Responders.

  (1200)  

    The IAFF also submits that the entire issue of infectious disease notification, as addressed in Bill C-217, demands the strictest confidentiality.

    In conclusion, the International Association of Fire Fighters wholeheartedly supports a firefighter's right to know the infectious diseases status of an individual with whom they have come in contact during the course of their duties, so that appropriate prophylactic or other treatment can begin as soon as possible, and in order to eliminate the stress that results from not knowing. For these reasons, it is critically important that there be a system in place through which an exposed firefighter can quickly obtain information about the infectious disease status of an individual with whom they have come in contact during the course of their duties. However, it is also important that definitions contained in legislation that proposes to address these issues are examined closely, that costs associated with the process of infectious disease notification are borne by the employer, and that issues of confidentiality are given the utmost respect during this process.

    Once again, thank you for the opportunity to appear before you this morning on an issue of great importance to our members. I'd be more than pleased to answer any questions you may have.

    The Chair: Thank you very much.

    We'll now turn to the Canadian Bar Association.

    Ms. Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): Good morning. My name is Joan Bercovitch, and I am senior director for legal and governmental affairs for the Canadian Bar Association.

[Translation]

    The Canadian Bar Association represents more than 37,000 lawyers from everywhere in Canada. In proving the law and the administration of justice are among our purposes and objectives. It is in that perspective that we present our brief today.

  (1205)  

[English]

    Our submission will be presented by Maître Marc David, who is a defence counsellor from Montreal. He also teaches at the McGill Faculty of Law and the Barreau du Québec. Marc is a member of our national section on criminal justice, and will present the brief and take our questions.

    Thank you.

    The Chair: Monsieur David.

    Mr. Marc David (Treasurer, National Criminal Justice Section, Canadian Bar Association): Thank you, Mr. Chair, members of the committee, for this opportunity to address you.

    Obviously, the point of view of the Canadian Bar Association criminal law section is very different from what you've heard so far this morning, in the sense that we obviously do not have a hands-on interest in the legislation. We do not occupy one of the professions or occupations that is targeted by the legislation in terms of giving rights to access possible blood samples or the results of blood samples.

    The National Criminal Justice Section endorses the spirit of the legislation. We see positives in this legislation, and our position has been exposed in a submission, a written document. It's a three-page submission that has been distributed to the members of this committee. I will highlight essentially four of the main or principal concerns that we have in considering this legislation.

    As I say, in spirit, we are in favour of the measures or provisions that this law provides for. It is difficult not to be in favour of this kind of legislation when, in today's world, we know very serious infectious diseases can be contracted by various emergency personnel. However, this committee and, ultimately, Parliament will have to weigh different interests.

    A balancing act is going to be required with this legislation. The balancing act is obviously between the privacy interests of the citizens of this country. First, there are privacy interests insofar as certain people simply do not want to know whether they've been attained with certain infectious diseases. Secondly, there are privacy interests in terms of the confidentiality of the information that will be obtained if somebody is required to submit to blood sampling and analysis. Thirdly, there is the question of whether the legislation attains physical integrity insofar as we are talking about a blood sample, which is a much more severe form of attaining physical integrity than a saliva sample, a hair sample, or other kind of bodily sample is. On the other hand, you clearly have the interests of a potential new victim of an infectious disease, as described in the circumstances that the legislation foresees, namely firefighters, emergency technicians, police officers, and peace officers. So this is where the dilemma or the weighing of the interests will have to take place.

    As I said, we wish to highlight four areas in terms of introductory comments. First, we are concerned that clauses 14 and 15, which provide for the confidentiality of the results, do not go far enough. We would recommend the possibility of destroying results, which the legislation does not foresee in its present form. We would also recommend the possibility of sealing results, much akin to the present dispositions of the Criminal Code as contained in section 487.3 in terms of search warrant sealing. So we feel the issue of confidentiality is not sufficiently addressed.

    The second area of concern is the creation of—I won't call it an offence—the possibility, in clause 9, of somebody being the target of a warrant when they fail to or refuse to submit to the blood sampling process. We are concerned with regard to this disposition insofar as it does not provide for the possibility of a reasonable excuse that would justify non-compliance with a warrant authorization.

    The third area of concern for the criminal law section of the Canadian Bar Association is the fact that the warrant authorization process is submitted to a justice as defined by section 2 of the Criminal Code. We recommend that the legislation, if adopted, should foresee that the matter be brought before either a provincial court judge or a judge of the superior court. Similar provisions have been adopted elsewhere in the Criminal Code when it comes to fairly serious intrusions into the privacy interests of Canadians. Two such examples are contained in dispositions that concern electronic wiretapping.

  (1210)  

    If you refer to subsection 184.2(2) of the Criminal Code, you will see that when the state is seeking an authorization to wiretap a person in Canada, it must bring forth the application to either a provincial court judge or a superior court judge, and that this section excludes the possibility of seeking judicial authorization from a justice, which in fact corresponds to a justice of the peace. We believe this is important because you have to understand that, in Canada, a justice of the peace is not necessarily somebody who is trained in law. In Quebec at the very least, I can tell you that the role of a juge de paix is oftentimes a role that is undertaken by simply a civil servant who works for the justice department.

    Again in the Criminal Code, another example of when you seek an authorization from a provincial court judge or a judge of the superior court rather than a justice, is contained in subsection 487.05(1) when it comes to DNA sampling.

    So those are two examples of Parliament, in the past, having required that the procedure go before a judge and not a justice when the intrusion is more serious. We believe this legislation is such a circumstance in which the intrusion, in terms of the physical integrity of the target person, warrants that the application be brought before a judge.

    The last point that I wish to raise on a preliminary basis is contained in paragraph 3 of page 2 of our submission. It is a focal point of our submission. In no way does this legislation require objective medical justification for the grounds of the reasonable belief of the person seeking the authorization or of the judge who would be authorizing the issuance of the warrant. I refer you, of course, to clauses 3 and 5 of the legislation, wherein the criteria for issuing a warrant are outlined in paragraphs (a), (b), (c), and (d). In no case concerning paragraphs (b) and (c) do we refer to the obligation of having supporting medical testimony—be it in the form of an affidavit or otherwise—substantiating that there are reasonable grounds to believe there is in fact a risk of contracting an infectious disease. Insofar as the legislation is deficient in that regard, we have serious reservations with the present version.

    So those are the preliminary comments that I wish to make. Obviously I'm open to answering any questions you may have.

    Thank you.

    The Chair: Thank you very much.

    We'll now go to Mr. Gratl for ten minutes.

    Mr. Jason Gratl (Member at Large, Board of Directors, British Columbia Civil Liberties Association): On behalf of the association, I'd like to thank the committee for the opportunity to present our submission on Bill C-217, the Blood Samples Act. In this submission, I will focus on three questions. First, is involuntary testing necessary to address an important problem? Second, what beneficial information will involuntary testing provide? Third, does the bill wrongfully discriminate?

    First, is involuntary testing necessary? In Canada, we have a long tradition of requiring a person to give their informed consent to a blood sample. The bill represents a departure from that tradition, and an introduction of government force to impose blood testing. Because a government should only use force against its own citizens when necessary, we need some evidence before we depart from the tradition of requiring consent. This evidence can only be evidence that people tend to withhold their consent in the context of occupational exposure. We have not heard of any anecdotes involving significant occupational exposure in which the source person has refused consent, nor do we have any statistics to show that the bill is necessary.

    An overwhelming majority of persons will consent to have their blood tested. Dr. Stephen Shafran, director of the infectious diseases department at the University of Alberta, has stated that source persons in the hospital setting have a 99% voluntary consent rate. The remaining 1% do not represent enough of a threat to justify a regime of involuntary testing. Only a fraction of bodily substances, chiefly bodily fluids such as blood, carry a risk of transmitting the designated viruses. When this is factored in, the risk falls to a fraction of 1%. Even if the bodily substance carries a risk, transmission will not occur unless there is a significant exposure to tissue under the skin, mucous membranes, or skin that is not intact, which again will only occur in a fraction of cases. So now we are at a fraction of a fraction of 1%.

    Even significant exposures only transmit a virus in a fraction of cases. The risk of infection from a single percutaneous exposure to HIV-infected blood, for example, is estimated to be only 0.3%. The risk from exposure to bodily substances, in the absence of a voluntary blood test, is now at a fraction of a fraction of a fraction of 1%.

    It is easy to overstate the risks from contact with bodily substances by telling horror stories about needle sticks and blood splashes, but when contemplating charter violations and the use of coercive force, we should take a long, hard look at those horror stories, and make sure those stories operate at the level of reason and appreciable risk, not at the level of ignorance and hysteria. A departure from the tradition of informed consent should not be grounded in irrational fear.

    I'll now turn to the second question. What information will involuntary testing provide?

    The best information resulting from involuntary testing would relate to a marginal decrease in the risk of infection. Due to the window period in which the virus is undetectable in the blood, a blood test cannot prove with certainty that a source person has not contracted the virus during the window period, so a risk would remain even after an involuntary blood test.

    Would knowledge of a decrease in the risk of infection lead to a decrease in adverse side effects from post-exposure treatment to HIV? We do not know this for a fact, but the B.C. Civil Liberties Association can say it has found no medical or government protocol that would suggest that once a source person has been tested, the exposed person can immediately cease post-exposure treatment. Would knowledge of a decrease in the risk of infection then lead an exposed person to experience a decrease in anxiety? Again, we do not know; however, we suspect that the best cure for an exposed person's anxiety is counselling for themselves and counselling for their loved ones.

  (1215)  

    To answer the second question, it is far from clear that the information provided by involuntary testing is of such importance to the exposed person as to justify the obvious invasions of privacy, bodily integrity, and security of the person, that the bill would entail.

    The third question is whether the bill would result in wrongful discrimination. Health Canada has stated that, in particular, certain groups are at risk of infection with hepatitis B, hepatitis C, and HIV. These groups include, for example, those who have engaged in injection drug use and high-risk sexual behaviour. The bill has the effect of targeting these groups for involuntary testing.

    The discriminatory effects of the bill are easily seen in the failure of the bill to promote reciprocity between citizens. Why can doctors and police officers apply under the bill for the involuntary testing of patients and prisoners, but patients and prisoners cannot apply under the bill for involuntary testing of doctors and police officers? The bill grants different entitlements to citizens who have been exposed to the same risks, and thereby discriminates against certain groups on irrelevant grounds.

    The discriminatory effects of the bill can also be illustrated by its narrow selection of viruses. Aside from HIV, hepatitis B, and hepatitis C, many viruses present a risk of infection after contact with bodily fluids, including syphilis, meningitis, and tuberculosis, but we have yet to hear a principal explanation for why only HIV, hepatitis B, and hepatitis C were selected by this bill.

    The bill wrongfully discriminates by singling out certain groups for involuntary testing; by denying reciprocity and by failing to treat equal citizens equally; and by selecting only HIV, hepatitis B, and hepatitis C for involuntary testing.

    In sum, the B.C. Civil Liberties Association believes there is no proven need to depart from the tradition of informed consent; that benefits of involuntary testing are marginal and speculative; and that the bill explicitly targets certain risk groups, such as prostitutes and drug users, for violations of their bodily integrity and privacy. The Civil Liberties Association therefore recommends to the committee that it should report to Parliament that Bill C-217 is unnecessary, incompatible with fundamental Canadian values, and should not be passed into law.

    Those are our submissions.

  (1220)  

    The Chair: Thank you very much.

    We now turn to Mr. Fitzpatrick for seven minutes.

    Mr. Brian Fitzpatrick (Prince Albert, CA): A lot has been said here this morning, so I don't purport to try to deal with all of it. What I'd like to do is go over the four points raised by the Canadian Bar Association and deal with those.

    First, as a commentary, I would be inclined to agree with safeguards to protect privacy and with strengthening the bill in that regard. I think Mr. Strahl is already looking at changes to the bill in that area. I can't think of what the reasonable excuse might be, but I guess there might be situations that we cannot contemplate that would provide a reasonable excuse, and that option should be available to a person.

    I share your concerns about justices of the peace. I have had some dealings with them, so I know what you're talking about. It's a big assumption to assume they have any legal training or understand even the basic principles of law. But if we get into judges, the concern I have in this area is the time factor. If time is of the essence in some of these matters, going through elaborate procedures to deal with a superior court judge or provincial court judge may cause you to lose the benefit of that, so that's something that has to be weighed the other way on that matter.

    On objective medical evidence as a precondition, I have a lot of problems with that. I'm not a doctor, but how does a doctor make a diagnosis and determination? It seems to me we may be creating a more intrusive measure whereby the doctor would have to put the person through a full medical before he determines that he has to stick a small needle into his thumb or arm to get a sample of blood. If I was in that position, I might find that to be more intrusive than just giving the blood sample to start with. I'm really at odds with that, and I'm trying to figure out how a medical doctor, without taking some intrusive steps, is going to make that determination anyway.

    I'll just make one comment about the Canadian Civil Liberties Association's presentation—

  (1225)  

    Mr. Jason Gratl: It's British Columbia, sir.

    Mr. Brian Fitzpatrick: Oh, British Columbia. I'm sorry. I don't want to get the jurisdictions fighting with one another.

    If we waited until we had perfect information before making decisions in this life, a lot of decisions would never be made. I'm certain that happens in the medical area all the time. We don't have perfect information, but we make calculated decisions. I very much sympathize with the people involved with this matter. Some balancing has to take place, because they have a right to know.

    I've heard lots of evidence here. You say there's no anecdotal evidence. At the last hearing, we heard lots of it from people explaining how this has impacted on their own personal lives. Just that simple knowledge would help them get on with their lives, their own relationships, and so on. There is evidence of that, and I don't dismiss it. I agree that this science may not be perfect, but if I was in that situation, it would still provide me with a better feeling than having no information at all or being totally ignorant of the entire subject matter would. But that's just a comment on your point.

    Maybe I can ask the witnesses to respond, especially to the ones about moving it from a justice to a judge and about objective medical information.

    Mr. Marc David: I think the more important of the two points is the objective medical evidence, but let me first deal with the judge issue.

    I gave two examples to this committee of where the Criminal Code now requires that a matter be brought either before a provincial court judge or a judge of the superior court, in terms of obtaining wiretap authorization or in terms of obtaining a warrant to get a DNA sample from somebody in the course of an ongoing investigation, such as a sexual assault case. There certainly can be a time issue in terms of having an accused person appear within 24 hours if it were required that the person appear in front of a judge rather than a justice.

    When it comes to judicial authorization for the issuance of a warrant, the code clearly now foresees the possibility of a telewarrant if ever there was an urgency to the matter. Telewarrants are and have long been part of our criminal law process, and I think they would certainly answer your concerns. However, I wish to also underline to this committee that in its present form, this legislation in no way obliges somebody to submit to the process. If a warrant is issued, the person who is the target does not have to submit the blood sample, so the whole time issue can become a moot point.

    The authorization that is given by the justice—and I refer you to clause 5 of the legislation—provides that a peace officer can require a medical practitioner to take a sample. That is the nature of the order given by a judge: You, the peace officer, tell that doctor to take the blood sample. In no way does the legislation require this person who is the target to submit to the process. In fact, the person can refuse. The consequence of his refusal is contained in clause 9, under which the person can be sent to jail. The person is not prosecuted because the person is not committing an offence. It is not a summary conviction offence, nor is not an indictable offence. It is simply the consequence of his refusal to comply with the order.

    Such a situation is much akin to what is called the peace bond under section 810 of the Criminal Code. Section 810 now allows a judge to order somebody to keep the peace, to engage in good behaviour, and possibly not to communicate with somebody for a period of up to one year. If the person refuses to sign that peace bond and the undertaking that the judge is ordering, what's the consequence? The judge can send that person to jail. So there's a parallel here.

    All I'm saying to you is that this legislation, the process in place, may not even allow the good Samaritan to obtain the results in the end.

[Translation]

    The Chair: Thank you.

[English]

    Seeing no one else, I go to Mr. Bellehumeur for seven minutes.

[Translation]

    Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): Mr. David, do you think that Bill C-217, which we have before us, is a piece of criminal legislation, or do you feel that it should be considered a health related bill?

    Mr. Marc David: Mr. Bellehumeur, it is clear to me that in its current form this bill is not a criminal or penal piece of legislation. No offences are created in this bill. It is a civil piece of legislation with health connotations. I think that it is a good thing that it is being presented in this form.

    I would like to make a comment that is not in our written brief but which is a part of the thoughts we shared with you. I don't think that part II of the bill, which contains provisions concerning peace officers, should be included in amendments to the Criminal Code. It seems to me that that distinction should not be made. I feel that provisions concerning peace officers and security guards should be included in the main part of the bill, in part I.

  (1230)  

    Mr. Michel Bellehumeur: It may be a good thing that the law is presented in its current form, but perhaps the Parliament of Ottawa should not be adopting it.

    Mr. Marc David: This is a matter I leave to your wisdom.

    Mr. Michel Bellehumeur: I think that the rest is very clear, Mr. David, and I agree with your comments entirely. I have had the same reservations from the beginning. Like you, I am not against the principle. I agree with you that everyone should adhere to this principle, but in light of the manner in which this bill has been drafted, I do not believe that Parliament should be the one adopting it.

    If the bill concerned only people such as policemen and firemen who in the course of their work become the victims of a criminal act, for instance in cases where someone decides to use a needle as a weapon and jabs it into the arm of a policeman or a fireman, would you see things in a different perspective if there were an obligation to obtain a warrant, since right from the outset, a criminal act would have been committed?

    Mr. Marc David: I understand the dynamics. To my way of thinking, it would change absolutely nothing if the source of the potential infection was a criminal act. It would not change the nature of the remedy the affected citizen wants to obtain. First, he wants to know whether it is possible that he has been infected. To me, that is not a qualification of what the law could allow. It is not a matter which falls under criminal law.

    Mr. Michel Bellehumeur: So, finally, it is just about impossible to improve such a bill, without looking at it squarely as a health matter and improving it at that level if that is possible.

    Mr. Marc David: I have 12 points I might suggest to the committee. I don't know if you want to hear about these 12 points I have identified, which might help the committee and Parliament to perhaps improve the bill.

    We feel there are some major shortcomings in this bill and we have identified several points that would merit your examination. We are not making suggestions, nor taking up a position as this is not our role, and that is not the hat we are wearing here today. But if you wish, I could discuss those points with you. It would be a pleasure.

    Mr. Michel Bellehumeur: Our time is rather limited.

[English]

    The Chair: Perhaps you could table—

[Translation]

    Mr. Marc David: We could send you a clean copy.

[English]

    They are in a handwritten, manuscriptal form right now, Mr. Scott, so I don't think it's appropriate. We will send them to the committee, though.

    The Chair: We'd appreciate that. Thank you.

[Translation]

    Mr. Michel Bellehumeur: Thank you very much.

[English]

    The Chair: Mr. Strahl.

    Mr. Chuck Strahl (Fraser Valley, PC/DR): Thank you, Mr. Chair.

    I'd like to say thank you to all the witnesses for their comments today. For the group before us, it is interesting that whether people are pro or con, they all start their comments by saying they like the intent of this thing. Some then say, “Go get 'em”, while the others say, “But...”, and then we've heard some problems with it.

    I do want to thank those who have...particularly you, Mr. David, for your specific advice on the clause-by-clause issues. I look forward to the further paper that you'll send to us, because that is very useful for those of us who are trying to get to the spirit of this legislation and are trying to make it as good as possible for Parliament's consideration. I think we go to clause-by-clause on Thursday, so I hope you'll do that ASAP. I realize it's asking a lot, but if you can do that as soon as possible, that's also very good.

    I just wanted to make a couple of comments and ask a couple of questions about some of the specifics. One is on the issue of telewarrants, which, as you mentioned, are frequently used already. Does the term “telewarrants” have to be included specifically in the legislation, or can we just assume that if telewarrants are commonly used now—and they have been brought up by other witnesses—it's one way to get around this time constraint?

  (1235)  

    Mr. Marc David: In my opinion, it would have to specifically be mentioned simply because the process for the issuance of a warrant is normally in affidavit form, wherein the affiant, the person who is seeking the order, appears physically in front of the judge. The telewarrant is an exception.

    Mr. Chuck Strahl: Thank you. That clarifies it for me as well, then.

    From the civil liberties angle, there is an argument that knowing whether or not someone possibly has an infectious disease makes a huge difference in post-exposure prophylactic treatment. The same Dr. Shafran, whose earlier testimony you quoted, was before the committee when this bill was in its previous incarnation. He said that as soon as they have a negative test come back, although there are all these possibilities and minute ways in which somebody may have been in the incubation period and so on, they immediately stop. In his experience, they immediately stop post-exposure prophylactic treatment because that alone is so invasive. So I do think there is evidence that it makes a huge difference in terms of how people treat victims of this.

    I would also argue that it's not so much about the small fraction of a fraction that you mentioned who do get the disease—there is obviously a small chance of that—it's the fairly large number who have to go through the treatment. The treatment is what's so invasive for all these folks, and not knowing also creates the mental anguish side of it, which seems to be as difficult for them as the actual physical stuff.

    So I just wondered if you could comment on that, because Dr. Shafran's opinion is that it does make a huge difference when you know whether or not someone has a blood-borne disease.

    Mr. Jason Gratl: Thank you for the question.

    Let me begin by commenting that I had the opportunity to read Dr. Shafran's remarks—the transcript of the hearing that occurred two years ago—only last night. I specifically recall that Dr. Shafran did not say all medical professionals follow that protocol. He said that, in his view, he would advise his patient to cease post-exposure prophylaxis after a negative test. That, I would suggest, is a far cry from a generally accepted medical practice.

    Secondly, I would suggest that even though involuntary testing may lead to knowledge of a marginal decrease in the level of risk, it does not necessarily imply that the side effects from post-exposure prophylaxis would go away. There's an intermediate step. Namely, a decision has to be made to cease post-exposure prophylaxis. Moreover, all the evidence that we know of indicates that post-exposure prophylaxis does not always lead to adverse side effects. Again, only a portion of the individuals who undergo that treatment experience negative side effects.

    Finally, we cannot help but point out that there are no adverse side effects that we know of for the treatment for hepatitis B, and there is no post-exposure treatment for hepatitis C. Adverse consequences do not flow from those two viruses, and no justification on that basis can therefore be advanced for those two viruses.

    Mr. Chuck Strahl: Except, of course, that if you've been exposed to hepatitis C, it may well change what you do when you go home that night with the rest of your family—whether or not you kiss your kids good night or whether you put a mask on before you do so. It does make a difference.

    It does seem to me, as well.... Everyone goes back to this idea that there's much better compliance in hospitals, and asks what the problem is. Of course there is big compliance. For example, in the capital region health facilities around here, the reason it's so good is that before anybody gets treated, they have to sign a form. That form says they agree to blood testing for blood-borne viruses, hepatitis B, hepatitis C, and HIV. That's before anybody touches them in the nice, clinical surroundings of the hospital. Before anyone touches them, they have to sign that piece of paper, and after they sign the piece of paper, the hospital gets on with the treatment. There's a big difference between that and being on the ski slopes, the firefighting application, or ambulance work. There, the individuals have no forms to be filled out, everybody's unconscious, thrashing around, perhaps having a seizure, or who knows what.

    Once you get them in the hospital, everything is much nicer, I agree. The problem is those situations in which people aren't in the hospital setting, they're being arrested, they're unconscious, or they're in a car accident like the one described by Ms. McLeod. There are all kinds of cases in which they're not in the hospital setting. In the hospital setting, where everybody's wearing the gowns and can do what's necessary to keep everything contained, it's a much different environment.

    So I would just argue that there's...and you get them to sign this form, which makes it all kind of moot. They just say that's what the person needs to sign before anything happens.

    Could I just ask one other quick question?

  (1240)  

    The Chair: We'll get Mr. Gratl to respond. We'll be back to you before it's over, Chuck.

    Mr. Chuck Strahl: Okay, thank you.

    Mr. Jason Gratl: If I understand your question correctly, you have two concerns. One, despite there being negative side effects resulting from the treatment for hepatitis B or hepatitis C, there is still some concern about how the exposed person should conduct him- or herself around family members. The second is a concern with a lower rate of consent outside a hospital setting.

    On the first point, your example of kissing children is a telling one. HIV and, to my knowledge, hepatitis B and hepatitis C, cannot be transmitted through kissing. If an exposed person were properly counselled on the risks of exposure for those viruses, they would not feel any anxiety about kissing their children or hugging their children, or even doing what is sometimes mentioned, that being risking sexually transmitting the diseases. Of course, everyone in this room is well aware of the safer sexual practices that can even further reduce transmission by that means.

    On your second point on the lower rate of consent outside hospital settings, I would suggest that protocols can be put into place to ensure a sensitive and compassionate approach to individuals in settings such as prisons or others in which persons are under detention. In those contexts, I'm positive those individuals fear the eventual disclosure of the test results. I think it is likely that should protections of privacy and confidentiality be enacted, consent would far more readily be attained. Rather than forcing them to undergo involuntary tests, then, measures can be put in place to encourage consent.

    The Chair: Thank you very much.

    Mr. McKay, for seven minutes.

    Mr. John McKay (Scarborough East, Lib.): My first question is to Mr. McManus and Ms. McLeod, and it has to do with the presumptions in the bill that “good Samaritans” are being exposed to blood-borne pathogens unknowingly and that they are at risk when someone won't volunteer a sample. What we haven't explored is the reverse presumption, and that is the so-called good Samaritan, the firefighter, or the police officer who has their own blood-borne pathogens within their body and is exposing the public to risk. From both of your perspectives, I'm interested in knowing whether or not either you or your organizations have taken any position with respect to the involuntary testing of people who are either good Samaritans or who are, by means of occupation, exposed.

    Secondly, Mr. McManus, has the IAFF taken any position with respect to mandatory employer testing of its employees?

    So that's my first question.

    My second question is to you, Mr. David, with respect to having objective medical grounds to believe a person is likely to be infected. I can't imagine how you establish those “objective medical grounds” before a JP or a judge—and I agree with your submission on judges. I can't imagine how you establish those grounds without some sort of profiling, such as knowing a person is picked up in a known drug district and appears to be a drug user or infected by some sort of disease. How can you arrive at objective grounds without saying the individual we want the blood sample from looks like a person infected with AIDS, looks like a drug user, looks like whatever, based upon the fact they live at this location or apparently carry on this particular kind of lifestyle? I put those two questions to you.

  (1245)  

    Mr. Sean McManus: Thank you for those questions.

    First off, I listened very carefully to the previously asked questions with respect to the health aspect of this legislation, and I just wanted to make a comment with respect to that issue.

    The frustration in all of this is that if it's not under this type of legislation, we have to ask where we go. That question has been posed to us, and I'm sure it has been posed to all other organizations. The simple matter of it is that there is no enforcement mechanism elsewhere to be able to attack this situation. Quite honestly, that health aspect of it is a red herring in the sense that you can't go under occupational health and safety and you can't go under any other type of program out there, simply because there is no ability to address the particular circumstances of the individual saying no.

    With respect to your question about whether or not we have a position with respect to mandatory testing of our members, yes, we do. We're firmly against it, simply because if you're going to take a position that all employees are tested regardless of any evidence of any kind of wrongdoing or the like, we're going to be against it. This bill is different in the sense that some type of activity or circumstance has led to an individual firefighter saying there has been a potential exposure. In those provinces where there is no infectious disease notification protocol and firefighters have not been able to access that information, this is where Bill C-217 would kick in.

    But with respect to our position on mandatory testing, we're against it.

    Mr. John McKay: But there was a subquestion before that. When a firefighter is exposed or is involved in a situation in which bodily fluids are being exchanged, if you will, would you support the position that there be mandatory testing of that firefighter? Arguably, what's good for the goose is good for the gander.

    Mr. Sean McManus: What is our position? We would obviously want to address that on a case-by-case basis if this legislation weren't in place, but if this legislation passes as it is currently drafted, there would be no choice in that respect.

    The Chair: Ms. McLeod.

    Ms. Maggi McLeod: From the Canadian Ski Patrol's perspective, we're again a little bit different. We don't have the same sort of structure as an organization like the International Association of Fire Fighters. We're a group of volunteers, and because of what we do, we're probably representing good Samaritans.

    As I said in my presentation, we have people in our organization who are lawyers, doctors, nurses, or members of the military. I'm sure each one of them would probably represent a different opinion on whether or not there should be mandatory testing in those cases. But I think I'm safe in saying that should exposure occur, I suspect that not one of our members would object if they were exposed, so I don't know that they would come under this. However, if they did object, I would hope this bill would protect the person who was injured as well as it does the person who is treating them.

  (1250)  

    Mr. John McKay: I don't think it does. Is that a fair statement? In other words, a member of the public would not get the same rights.

    Ms. Maggi McLeod: And I'm not sure, based on what people are...perhaps I misunderstood your question.

    If an injured person requested a blood sample from me, for example, if I was in an incident that involved exchange of bodily fluids, I would not object to it to begin with. However, I suspect we have members within our organization who would.

    Mr. John McKay: Yes.

    The Chair: Thank you, Mr. McKay.

    I guess we're going to Monsieur David.

    Mr. Marc David: If I understand you correctly, your concern is that if we do introduce objective medical standards, we may also possibly going to be targeting certain people, such as prostitutes or drug users—profiling, in other words—to convince the judge that there are reasonable grounds.

    Our position is that in their present form, clauses 3 and 5 do not contain sufficient objective medical standards. In the bill's present form, we fear that unless objective medical standards are included, we will be targeting certain groups and will be possibly identifying and profiling. Objective medical standards, in our opinion, would avoid the targeting and profiling of certain groups.

    Insofar as we mention objective medical standards, we're not referring to the target, we're referring to the circumstances, to the event. In other words, never mind who is involved, but does what happened possibly expose the applicant to an infection? That means you consider the circumstances. Is it tears? Is it saliva? Is mucus? Is it blood? Is it sperm? You then look at it in terms of where the person was touched. Was it on the skin? Was it in a passage? Was there blood-to-blood contact? That's why we're saying you need that medical knowledge.

    It's clearly not parliamentarians and it's clearly not judges and lawyers who are going to be able to objectively assess whether or not there is a risk of transmission. Insofar as you don't have that objective assessment in the particular circumstances of a particular case in which there is a potential transmission, we don't think the legislation will meet a potential charter challenge.

    The Chair: Thank you very much, Monsieur David.

    We'll go to Peter MacKay for three minutes, and then I'm going to excuse myself. I have another appointment, so Mr. Grose will take the chair.

    Thank you, Peter.

    Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Thank you, Mr. Chair.

    I think Mr. McKay is onto some very important points, and that you're witnessing exactly how a committee should work at its best. That is, we have the opportunity to delve into these issues before legislation hits the books and before it results in court challenges. Mr. Strahl made the point that almost all of you and almost all the other witnesses we've heard, with perhaps the notable exception of the B.C. Civil Liberties Association, have agreed with the principle of the bill. If we do this, if we pass this legislation, we certainly want to get it right.

    One of the issues you were just been talking about, Mr. David, is this need for a protocol with justices of the peace, but if it moves into this realm of only certain judges—be they superior court or provincial court judges—being the ones to make that determination, I still believe a medical protocol is necessary. I think you're saying the same thing. I do disagree, however, that it is only based on the circumstances and not the individual. In any warrant application, I think any judge is still going to want to know not only the individual sought and the circumstances around that person, but the likelihood that the individual is a carrier, so it's not just the circumstance of how the potential exchange took place.

    Sadly, a transsexual prostitute who is also a drug user is more likely to be a carrier, just based on even an objective criterion, let alone a subjective one. That may be labelled profiling, but it is just an unfortunate reality in terms of a risk that is posed to a person who comes into contact with a person administering health assistance, be it because of an accident or because this individual has taken a seizure.

    Would you not agree that this still has to be a part of the overall consideration of circumstance that a judge is weighing? Can we address some of the concerns that have been raised by you and by others with an accompaniment of protocol? That is to say, should any attempt to change the legislation here mandate that certain training protocols be followed as well? Should there be a re-examination of the type of warrant or special warrant that may have to be drafted? Is it similar to what we saw when the Feeney decision came down—the need to redraft the warrant itself, so that a special warrant would have to be obtained?

  (1255)  

    Mr. Marc David: As I understand it, there is a special warrant. This legislation itself is creating a special warrant for very particular circumstances, so I'm not sure I agree with you.

    I understand your point that who the target is is obviously relevant in determining the probability—put it that way—that there is a risk of infection. That's true. It's undeniable. However, if you're looking at the criteria that a judge would have to apply in order to determine whether he or she is confronted with reasonable grounds to believe...to believe what? It's to believe there is a real risk of transmission. In that regard, we're saying it doesn't matter who the target is. What is relevant are the physical circumstances and the medical science that underlie those circumstances and explain whether those circumstances constitute a risk.

    We don't want the country to allow for such physical intrusion as taking a blood sample unless there's a substantiated possibility of transmission. For instance, if the intervener was wearing gloves, blood was splattered on the gloves, and it was clearly established that these were the only spots attained, do we still want to allow the applicant to get the warrant, to get the authorization in those circumstances? Maybe we don't, because then we're balancing the interests of the applicant versus the privacy interests of Canadians.

    Mr. Peter MacKay: So you feel the subject source has no relevance.

    Mr. Marc David: I don't think it is a criterion that should be considered. For me, it's a question of medical science and medical knowledge. That evidence could be made by way of affidavit, and if he or she wants, I think we should allow for the target to be able to cross-examine the medical practitioner who is testifying in affidavit form, because I don't think it would be viva voce. If we made it viva voce, we would be making the process very heavy and time constraints would come into play.

    But I don't agree necessarily that profiling is relevant to a judge's position.

    Mr. Peter MacKay: If he wants to, I would like to give Mr. Gratl an opportunity to respond as well.

    Mr. Jason Gratl: I would like to take an opportunity to discuss some of the potential revisions that have been suggested by other witnesses today. These include common-sense protections like requiring a judge to issue a warrant, rather than having a justice do so; having a medical examination to make sure that any order issued is issued on the basis of medical evidence rather than stereotype; ensuring for privacy and confidentiality for source persons; ensuring that evidence is presented in proper affidavit form; and allowing the source person to mount a defence or to rebut the evidence of the experts, perhaps by cross-examination or perhaps by introducing their own expert evidence.

    I would like to make two points about all of these revisions. One, they will lead to an enormous delay and an enormous judicial mechanism that will ensure that the act is unable to deliver, as it needs to, any information in a timely manner. I would be surprised if a full, robust procedure that would protect the rights of source persons would be able to deliver that information in a matter of less than weeks. In the case of AIDS, for example, it's quite possible the exposed person would pass through the two-week window period, or what can be a two-week window period, such that the exposed person no longer requires the information from the source person and can have themselves tested.

    Secondly, however many revisions are made to this act to ensure that it meets charter standards, the act will still not fall under the criminal law powers granted to the federal government under section 91, class 27, of the Constitution Act, 1867.

    So both of those are fundamental flaws that cannot be rectified by any revision of this proposed bill.

·  (1300)  

    The Acting Chair (Mr. Ivan Grose (Oshawa, Lib.)): Thank you.

    As everyone knows, I'd never cut off a witness. If you can put all your questions into three minutes, it can go on forever.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Wonderful.

    I'm actually following up on the point just made by Mr. Gratl. One of our previous witnesses suggested that, for this matter to go forward, we would in fact have to find a basis in criminal law to support this particular bill and to create a criminal offence. I was wondering if the Canadian Bar Association has looked at that and taken any position on it.

    Mr. Marc David: Absolutely not. The question of jurisdictions between provincial parliaments and the federal Parliament has not been addressed by our paper, by our submission.

    Mr. Paul Harold Macklin: And you personally have no submission in that regard ?

    Mr. Marc David: I have qualified that, in its present form, the legislation does not create an offence. In our opinion, clause 9 is not an offence, so that's the extent of the comments I'll make at this point.

    Mr. Paul Harold Macklin: In following through, has anyone looked at the Ontario situation in terms of the existing law that has been instituted there, in terms of its ability to meet the needs that are the concerns of all of you before this committee? Could I receive any comments that you have on its applicability and where it falls short? From our perspective, where should we be looking if that is the way in which one would proceed, with provinces doing one portion and the federal government doing a different portion?

    Mr. Sean McManus: I believe the new bill that was recently passed in Ontario was Bill 105, and it was supported by our provincial association. In the case of somebody declining to provide the blood sample, what that bill provided for was an application that would be made to the local public health official, who would step in and get that sample. The potential shortfall arises over where the power of the public health official would be in terms of enforcing the act if, again, that person still refused despite the fact that you had some kind of permission to get that sample.

    Mr. Paul Harold Macklin: Are there any other comments?

    Ms. Maggi McLeod: I have the same answer.

    Mr. Paul Harold Macklin: You have the same answer.

    Does anyone have any statistics? I know it was mentioned this morning that, on this issue, there's a shortage of statistics relating to those who refuse to give permission, first of all. Of those who refuse to give permission, what is the net effect?

    Mr. Jason Gratl: I understand that the Canadian HIV/AIDS Legal Network has prepared a comprehensive backgrounder on that subject, and that the information is available on the Internet. I do not have it before me at this moment.

    Mr. Paul Harold Macklin: Is there a way in which you could provide that material to this committee?

    I think it would be very much appreciated, Mr. Chair.

    Mr. Jason Gratl: I'd be happy to provide you with that.

    The Acting Chair (Mr. Ivan Grose): Please.

    Thank you, Mr. Macklin.

    Mr. Marc David: We're not defending the legislation. We're just here to give our objective comments on it. One of those comments is that if you are considering further exploration of this legislation, then in terms of observations, you may want to consider—and, again, we're not taking a position on this—that the legislation should allow for a consent procedure, because there is no consent procedure.

    In other words, one of the good things about this legislation is clause 4. It's unique to a warrant situation, in that clause 4 requires the judge or justice to convene the parties. It's not an ex parte procedure. Warrants are always ex parte, but not in this case.

    Insofar as the parties are convened in front of a judge, why not seek the possibility of a consent? Why not first verify that the target is willing to consent? They may be. It seems to me that most Canadians would understand the concerns of the applicant and would say yes. Insofar as a consent would be refused, we would then go into the warrant authorization procedure, but I think the denial of consent should be a precondition to that procedure.

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    Mr. Paul Harold Macklin: And in reviewing this, how would the justice cause the parties—in other words, force a reluctant party—to appear before him?

    Mr. Marc David: Clause 4, in its present form, says, “A justice who receives an application under section 3 shall cause the parties...”. Now, the law is deficient insofar as there's no mechanism to issue a warrant for the arrest of a recalcitrant target. There is no mechanism foreseen in the law.

    Mr. Paul Harold Macklin: That's fine. Thank you.

    The Acting Chair (Mr. Ivan Grose): Thank you, Mr. Macklin.

    Mr. Strahl, you've heard some rather strong testimony. I think everyone would agree that I could be a little bit generous with the time.

    Mr. Chuck Strahl: Well, thank you. Again, the good part of the committee process...it's too bad that our observers have all left, because this is the whole essence of trying to make workable or make doable a bill that most people say is laudable. I do appreciate all the testimony. It's all useful stuff, and I bet we're going to see some of this reread into the clause-by-clause debate that is going to come here at week's end.

    I do agree about the need for a medical doctor to be part of recommending whether or not a blood sample should be taken, and there is a clause in Bill 105, the Ontario legislation, that basically covers that. It describes quite neatly the necessity of doing so, and I would argue that it's not about profiling anyone. I don't think that's going to be necessary, because the doctor is going to say—as did our paramedic testimony—that if a serious exposure occurs because of intermingling of blood or whatever, the paramedics don't care what type of person it is. You can't tell by looking at a person whether or not they have a blood-borne disease. If it's a serious exposure, they just want to know if they can get that medical information. So I think we could very easily insert a clause here that would necessitate that and would be based on objective medical standards.

    Just to get to the fellow from the B.C. Civil Liberties Association, from my neck of the woods, to be clear, you were talking about whether or not it was necessary for hepatitis C versus HIV. Of course, I was quite specific that HIV doesn't transfer by giving somebody a goodnight kiss. I know that, and everybody knows that. But you were asking specifically why it would matter if you have an untreatable disease. Having an untreatable disease means you have to take universal precautions, not that you shouldn't kiss your children goodnight. That wasn't my point.

    I did want to ask about something else, though, Mr. Gratl. All paramedics, for example, have been required to be inoculated for hepatitis B. That's a condition of their employment in Ontario, although many of them didn't want to take it. They don't feel they should have to, but they've been told that they have to take it as a condition of employment or else they're done.

    That procedure does seem to me to be a fairly invasive one. It's asking someone not for a blood sample, which is something coming out of the body, but is instead forcing them to have something put into their body whether they like it or not. Otherwise, they're unemployed. That seems to me to be a fairly heavy-duty invasion of their civil liberties, because they don't have a disease yet have to take this virus into their bodies as a condition of employment. The reason, the rationale, whether you agree with the paramedics or not, is that it will possibly prevent the spread of some sort of contagious disease down the road, so all paramedics have to take it.

    Aren't we dealing with a weighing of rights here? It's the right of a paramedic not to have to be instructed to take inoculations, versus the right of the public being served by these folks to know that every possible precaution, including inoculations, has taken place. It's always a weighing of rights. Isn't that what we have here? It's always going to be contested in the courts, but it does seem to me that this is a weighing of rights, so what we have tried to suggest here is that there is a right to know.

    This is a difficult one. We have to make sure privacy is ensured, and we have to make sure doctors are involved, and perhaps judges instead of justices. We have to make sure a series of steps provide protection and make sure it's not cavalier, but there does come a time when the weighing of rights tips it in favour of, for example, firefighters who are just doing their job but now need to know whether the person whom they gave mouth-to-mouth to and who was throwing up in their mouth while they were doing it gave them a disease or not. Isn't it just a weighing of rights? Those aren't absolutes. That's what my point is.

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    Mr. Jason Gratl: To respond to your question, yes, there appears to be a weighing of rights in that case as well, but that particular context can be distinguished from our context in two very important ways. Firstly, the administration of the hepatitis B vaccine to paramedics does not engage the rights to confidentiality and privacy, and it does not carry a risk of abuse of confidentiality and privacy, unlike Bill C-217. Secondly, the employment context that exists between hospitals or public health boards and paramedics likely does not engage the charter.

    Now, while that's a subject of some legal technicality, I am quite confident the administration of a vaccine to a paramedic in an employment context does not engage the charter of rights. In that case, the right to privacy, the right to dignity, the right to security of the person, and the right to bodily integrity that are guaranteed by the charter, are not being weighed. You have an employment law versus a potential side effect, but the massive apparatus contemplated by Bill C-217 is missing. The type of charter justification that Bill C-217 calls for is not necessary in the employment context.

    Mr. Chuck Strahl: The paramedics would argue that their right to integrity of the person has been violated, but—

    Mr. Jason Gratl: It wouldn't be a charter right, though.

    Mr. Chuck Strahl: It's not their right, too? Who knows? Just about anything that goes to the court is a charter channel.

    My final question is to Mr. David, perhaps, but this was brought up by Mr. McManus earlier. We keep getting bounced around on this problem, from jurisdiction to jurisdiction. You didn't take a jurisdictional position on this because you don't want to go where fools like me will willingly tread. But if it's not this type of legislation, I guess you don't really have an alternative suggestion.

    The difficulty everybody is facing is that they all come to the committee and say this is a problem and that somebody should do something about it. But then we all go home, years go by, and nothing happens. That's why this bill is here. It sprung from an individual case in my riding, but it has had support from, I think, eighty national organizations since that. They want it to go through or at least want it addressed, because everybody keeps telling those groups, “It's not my job.”

    Mr. Marc David: The initiative is virtuous, but whose job is it? That's what you're asking me, right?

    Mr. Chuck Strahl: Right.

    Mr. Marc David: We are not the brainchild of this legislation. We come here to give you our comments, as best we can, on its existing form. I think the initiative is something for either the Parliament of Canada or the provincial legislatures.

    Understand that I have not read the Ontario legislation, Bill 105, but you have an initiative there at a provincial level. It may be interesting to explore that, but I don't know what is most appropriate. On whether it should be done provincially or federally, I don't have a position.

    Mr. Chuck Strahl: Just as my last question, one of our other committee members suggested that the whole issue should be given to the law reform commission, was that it?

    Mr. Marc David: The Law Commission of Canada, yes.

·  (1315)  

    Mr. Chuck Strahl: Yes, because it's one of those dicey jurisdictional issues. They say we should throw it back at them and let them grind on it for a while. I'm not sure that's the answer, but does that law reform commission deal with jurisdictional issues like that?

    Mr. Marc David: I don't know, but another approach is to seek an opinion from a professor who teaches law in a faculty of law. There's also the possibility of a reference to the Supreme Court of Canada, if you want to run that way too, but....

    Mr. Chuck Strahl: That would be speedy.

    Okay, thank you.

    Thank you, Mr. Chair.

    The Acting Chair (Mr. Ivan Grose): Thank you, Mr. Strahl.

    Do any of the witnesses have anything else they'd like to say to sum up?

    Mr. Marc David: I would just wish to thank the members of the committee for your attentive ears. It was a pleasure to appear before you, and I thank you for your reception.

    The Acting Chair (Mr. Ivan Grose): I'd like to thank the witnesses very much. As a matter of fact, you made some points clear for me this morning. I just wish you wouldn't use those Latin phrases though. Without being a lawyer, and having never even paid attention to Latin in high school...and, yes, they taught it when I went to high school.

    Anyway, thank you very much.

    We're adjourned.