INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, March 18, 1999

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.)): Pursuant to an order of reference of the House dated Tuesday, November 3, 1998, this is consideration of Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used, or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act, and the Statute Revision Act.

I'm very pleased to welcome our witnesses here today. We have six groups with us this morning. Unfortunately, the Ontario Association of Medical Laboratories was unable to come this morning, due to a crisis. However, we do have with us Dr. Richard Speers, from the Canadian Dental Association; Mr. Michael McBane, from the Canadian Health Coalition; Ms. Noëlle-Dominique Willems, from the Canadian Pharmacists Association; Dr. John Millar, vice-president of the Canadian Institute for Health Information; Dr. Susan Hutchison, from the Canadian Medical Association; and Gilbert Sharpe, the director of the legal services branch of the Ontario Ministry of Health.

If you don't already have them in front of you, everyone should be receiving a brief from each of these organizations. What I would propose is that each organization give us five to seven minutes' worth of opening comments, and then we'll proceed to questions.

We'll start with Dr. Speers, if that's okay.

Dr. Richard Speers (Chairman, Committee on Ethics, Canadian Dental Association): Thank you, Madam Chair, and good morning. The Canadian Dental Association is grateful for the opportunity to speak on this bill.

My name is Dick Speers. I'm a practising dentist in Toronto, and I presently chair the ethics committee of the Canadian Dental Association. I've been active in this area by representing CDA on the implementation committee of the Canadian Standards Association, and I delivered an invited presentation to the MacKay task force on finance.

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Dentists are interested in Bill C-54 because our members collect extensive amounts of personal data. We do this under an ethical and legal agreement of privacy and confidentiality, and we have concerns that the information we need to render safe and efficacious care won't be forthcoming if we can't guarantee some level of privacy. It's our opinion that Bill C-54, by virtue of its dependence on the CSA code, fails the critical needs of health care protection.

A lot has been written on health care information, starting with the Krever commission in 1980, which addressed the issue of illegal and unauthorized access. It dealt with the perceived right of a patient to control his or her own information. This was reinforced in 1997 by the Standing Committee on Human Rights in the publication Privacy: Where do we Draw the Line? That committee opined as well the ability of the patient to consent to sharing information being an essential part of controlling one's own privacy. They also felt the individual should be the rightful owner of their own information.

We believe that was articulated in the 1992 Supreme Court decision in McInerney v. MacDonald, whereby the court defined in a fundamental sense that health information is one's own. The court also ruled that the patient's interest in and control of that information should continue after disclosure.

In Ontario in 1995, when Bill 26, the omnibus bill, was tabled, there was quite a public backlash when the Minister of Health sought the ability to collect, share, and disclose health information.

The CDA did participate in the implementation committee of the CSA, and we felt that we would have—by following the wording of the CSA code—a true privacy code. We were mistaken. Our experience has shown that the implementation of the CSA code has developed it into an access code. Our feeling is that privacy has been effectively lost if we implement the CSA code as it stands.

Using the life and health insurance as an example of how this has been allowed to happen, in our report we've appended contemporary consent forms that are the instrument for accessing health information. This proves to us, and I think it should demonstrate, how the wording of the code has been taken at its literal extent, and the practice of the code has completely opened patient information for scrutiny. We argued at the time the CSA code was written that there should be a full informed consent release of health information. Obviously we lost, and it is now collected with the knowledge of the patient.

We submit that very few people know the extent of the information captured about them by various agencies. We have objected to the fact that there is no time limit on consent; effectively the consent can continue even after you've withdrawn an application for insurance.

If you look at some of the consent forms there it requires the release of any personal information, not just health. It could be your sexual orientation, your religious and political affiliation, not to mention your tax return. I would submit that very few Canadians would offer this information to their government, and even fewer would allow their own mothers to review that.

One company has taken it upon themselves to open the health information to anyone who performs an insurance function within the company. So by taking the limitation clause of the CSA code they virtually have taken unlimited information to unlimited personnel.

We believe the consent forms that are before you are the instrument for third parties to get on-time, on-line, real-time access of health information for undetermined time. By virtue of these examples, we submit there is compelling evidence to conclude the CSA model privacy code upon which C-54 is based is insufficient to protect health information.

As a professional body, the Canadian Dental Association developed guidelines on personal data protection for our own members. This is an ethical document we have developed that supersedes laws. As you know, ethical requirements may have much more scope than legislation. In that document we have defined the patient as the owner of their own information, and we've also applied a standard of informed consent release, whereby the patient can see the information we're going to release and at that time withdraw consent.

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We believe the secondary and commercial use of health information is of such monumental importance to individual privacy and dignity as to be afforded special consideration in Bill C-54. We have proposed amendments to this.

We also recognize how important this bill is to trading of commerce and personal information. We recognize the commitment to the European Union, but we don't think this was written to address health issues.

We have asked for a definition of property interest in health information as being the patient's. We believe there should be an informed consent release protocol and there should be true limitations on collection, time of collection, and administrative use of health information.

We think there should be reasonably defined time limits and we would also support the removal of ceilings on punitive damages presently stated in Bill C-54. I think they're low enough that they can be construed as the cost of doing business.

Another point we feel it's important should be addressed here is there's no evidence that a bank purchasing a life insurance company will be restricted in their access of health information. We expect that within the next five to ten years charter banks may take on ownership positions of life and health insurance companies. If they control that database and link it to the financial database they have, the amount of information they have on each and every one of us will be compelling.

I'd like to close on a very personal issue. We're not talking about obtuse items, we're talking about the personal health records of everyone in this room and it's not so much that we may have nothing to hide, but by the same token, if you have nothing to hide, you probably wouldn't let me go into your personal desk and review your own papers, and that's essentially what is going to happen with health records.

If you ever wonder what use can be made of health records, we would suggest you stop in the Loblaws' check-out line and just read the tabloids. That's the misuse of health information. On a more Canadian level, we may ask rhetorically, does Frank know?

I thank you for your consideration today.

The Chair: Thank you very much, Dr. Speers.

I'm going to turn it over to Mr. Michael McBane, please, from the Canadian Health Coalition.

Mr. Michael McBane (Coordinator, Canadian Health Coalition): Thank you, Madam Chair.

We support the leadership the government is taking on this bill and we thank the committee for the opportunity to participate in the panel of health organizations.

We strongly support the purpose of the Personal Information Protection and Electronic Documents Act, which is to provide Canadians with the right of privacy with respect to their personal information.

I must state at the outset that we did not examine closely the CSA code, and we are very concerned with the access it may give in an improper sense to medical information that has been outlined by the Dental Association. So we will speak to some other principles. We do share these concerns about improper access to health information.

Obviously the legislation is intended for a wider sphere than just the health sector, but it does have some direct impact on commercial health activity, and rightly so. Health care industries must not be exempt from privacy rules in Bill C-54.

Fears about the misuse of health information technology are well founded. There is no legal protection. Canada is in fact the only nation in the industrial world that does not have an ethics code enshrined in law to deal with health research or a privacy code enshrined in law to deal with health research—the only developed nation. This was pointed out of course by the privacy commissioner in the national forum on health. So we applaud this initial step in the direction of privacy rights.

We reject the argument that private for-profit providers of health services in products and others engaging in commercial activities, such as selling health information, should be exempted from legislation. Members of this committee should be very aware of this argument, particularly when it's put forward by ministries of health or other publicly funded health organizations.

Simply stated, having received an investment right in the North American Free Trade Agreement, the health industry is hardly now in a position to argue for an exemption from privacy rules for commercial activities as laid out in Bill C-54. If they're commercial enough to get trade rights in these international agreements, these businesses are commercial enough to be covered by this legislation. If anything requires privacy legislation, it's health information. It should be greater and definitely not lesser than any standards established in other areas of trade and commerce.

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There's currently no protection, as I say, in Canadian law against improper disclosure of health information. It's considered extremely valuable for many commercial enterprises, as well as employers, detectives, police, information brokers, political campaign managers, and many others.

As the previous witness has pointed out, linkage of medical databases with databases of banks and insurance companies can create new opportunities for extremely harmful and abusive behaviour. A real-life example is a case of the Maryland banker who cross-referenced a list of patients with cancer against a list of people with outstanding loans at his bank and then he called in all the loans. The reference is The New England Journal of Medicine, 23 November 1995. These are real-life cases. This is real technology. This is real commercial activity.

Federal and provincial governments are spending hundreds of millions of dollars to assist in the development of privately controlled, commercially managed patient information data banks. Strategic partnerships are being formed with global corporations to manage health records and provide links with the health information highway. Have any governments thought through the strategic implications of bringing large, often U.S.-based corporations into the medicare system? Have health policy managers thought through, for that matter, the implications for the quality of human care when computer-based practice guidelines crowd out professional judgment, skill, and the healing care of providers? There's no sign yet that governments intend to install adequate patient-directed safeguards on health information that's now moving across borders, between providers, and a growing number of corporations with a major financial stake.

In Manitoba the most disturbing example is the contract handed over to the Royal Bank's subsidiary, SmartHealth, to develop electronic patient records. Manitoba has no protection in law for the selling of public health information or the trading of such information. Recently a 51% share of SmartHealth was sold to EDS Canada Limited, a global corporation based in Texas. I would like to know who owns that information when it's managed outside Canada or managed cross-border when there is actually no protection for the use of that public health information.

The head of SmartHealth was appointed—and this is a question we would like answered by the government—to the Minister of Health's advisory council on health infostructure. Do public-private partnerships in this area mean that conflict of interest no longer is recognized or to be avoided? It's not that this technology doesn't have potential in the health sector; the question is why would it not be developed in the public sector for the public-good objectives of health care, as opposed to handing it over to the private sector?

Another commercial activity that is extremely disturbing is the widespread systemic practice of IMS Canada, a subsidiary of a global multi-billion-dollar business, which purchases customer and physician information from 4,000 drugstores in Canada currently and has on-line daily real-time activity tracking of 1,200 Canadian physicians. The clients of this data are not the ministries of health, the clients are the 70 members of the Pharmaceutical Manufacturers Association of Canada.

The Chair: Mr. McBane, can I ask you to summarize in about 60 seconds?

Mr. Michael McBane: Okay.

I want to point out that PMAC, the drugstores, IMS, are not charities and they're not educational institutes. They're commercial businesses with the fiduciary duty to maximize profits for shareholders.

Bill C-54 is an important step in establishing privacy rights for personal information. Obviously, other legislation is needed to protect health research from commercial activity. As I mentioned, we're the only developed country without a legislated code. It raises the question, where is Health Canada? There needs to be further legislative protection in the field of access and the integrity of health research.

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We have specific amendments we want. The first amendment is we want the punitive damages eliminated, because the penalty is so weak it can become a cost of doing business.

The second recommendation is that the penalties should include a prohibition on the violating company from doing business in the electronic field for a minimum of two years. Financial penalties are not seen as an incentive. Nor is public shame seen as perhaps strong enough, because they don't rely on brand loyalty in their business.

Finally, we think there should be prison penalties in clause 28, and we've tabled these with you.

Thank you.

The Chair: Thank you very much, Mr. McBane. Everyone has your recommendations and your brief in front of them.

I'm now going to turn to the Canadian Pharmacists Association. We have Ms. Noëlle-Dominique Willems.

Ms. Noëlle-Dominique Willems (Director, Government and Public Affairs, Canadian Pharmacists Association): Thank you very much, Madam Chair. Members of the committee, thank you very much for listening to us today on this important issue of Bill C-54.

[Translation]

Although our presentation is in English, I would be pleased to answer questions in French if there are any.

[English]

The Canadian Pharmacists Association is the national volunteer organization representing 10,000 pharmacists across the country, about half of the pharmacists across the country. To give you an idea of the scope of the transactions we handle on a day-to-day basis, community pharmacists across the country receive private information from patients on 190 million prescriptions every year. They also often collect information on non-prescription medication their patients are taking. Though outside of hospital settings they seldom are provided with diagnosis, we usually can deduce that from the prescription itself.

Apart from rules, regulations, ethics and moral obligations that promote and protect privacy and confidentiality, pharmacists are subject to other forces that make maintenance of privacy and confidentiality an essential requirement of practice. Basically, they would be out of business if they didn't maintain that, because as you know, the rumour mill in a community would make sure it would happen.

I would like to expand a little bit on the types of electronic transactions that pharmacists make on a daily basis. As you know, across Canada the processing of prescription claims is made possible by the Canadian Pharmacists Association's claim standard. This major effort by the Canadian Pharmacists Association with input from four key stakeholder groups—provincial governments, pharmacists, pharmacy software vendors, and private insurers—provides the basis for claims processing in all private sector drug plans and provincial government plans with the exception of Saskatchewan at this point.

We are working right now on developing an enhanced claims standard that will allow for HL7 to be integrated in it, making it possible to expand the applications to other health care providers as well.

Based on ten years of experience in electronic information exchange, pharmacists are pleased to offer the following comments and recommendations on the proposed legislation. Though most people often do not realize the extent of pharmacists' involvement in electronic information exchange, they have readily embraced the benefits they derive from them. Whether covered under a provincial or private drug benefit plan, most transactions with payers today take place on line in real-time adjudication. Many programs have also a built-in concurrent drug review capacity, and you will find a detailed account of those transactions in the full brief submitted.

In the coming years it is expected that prescriptions will be sent electronically from physicians' offices to pharmacies selected by the patient. This will constitute an electronic exchange of health information for the purpose of responding to patients' needs. The current bill does not clearly establish whether this exchange is to be considered commercial or not.

CPA strongly supports the need to improve the sharing of information on individual patients, with appropriate measures in place to ensure confidentiality and security. We have, however, some major concerns with the lack of definition of what constitutes a commercial activity under the bill, even with the recently proposed amendments about the commercial character. And we would like to reiterate comments expressed by Mr. Bruce Phillips, the privacy commissioner, in his written submission. He noted: “The bill does not define `commercial activity', creating confusion about the scope of the bill. For example, would the records kept by a physician be subject to legislation?” We don't think so.

Pharmacists are in a unique position in the health care environment. We are both health care providers and businessmen. But our health care intervention, the provision of necessary medication, while not covered under the Canada Health Act except in hospitals, falls within the purview of provincial pharmacy acts. The provision of medications and the professional services that accompany this might fall in the commercial domain, though one can easily recognize that without the provision of medications the medical intervention is incomplete.

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The Canadian Pharmacists Association would submit that the electronic exchange of information is part of the necessary exchange for therapeutic purposes and would therefore oppose the consideration of this information exchange under the proposed legislation as a commercial activity. If such a transaction were to be considered a commercial one, then all reimbursement requests from physicians, dentists, and other health care professionals to provincial and private payers would also be subjected to this law. This would directly result in an increase in the burden to all involved.

Instead, it has become customary to deduce that there is implied consent through the fact that by handing his or her medicare card the patient has accepted that the information could be forwarded to the government in order for it to be covered under the plan. The same should apply with coverage of medications by employers or government-sponsored plans.

One can also think of problems arising from the impossibility to transfer patient records from one province to the next. This has been raised by a number of our counterparts at the provincial level who have seen, time and again, problems for simple transactions that do not involve an emergency situation.

An additional concern of the association is to know exactly where Bill C-54 fits in the flurry of initiatives on the protection of personal information. We wish to understand where this legislation fits in regard to the health infostructure initiative of Health Canada and the Canadian Institute for Health Information, which works based on the CSA standard to expand to cover health information.

Like many other organizations that have appeared in front of this committee, we believe privacy matters should be dealt with under a specific instrument, as many provinces have already recognized, and not in conjunction with electronic information transfer.

Questions have also been asked as to the application of this legislation in provinces such as Quebec, which already have strong privacy legislation. I think you heard some of those presentations this week as to the constitutionality of it, so I won't spend more time on it.

One of the major principles recognized by the health infostructure initiative is the need to harmonize access to health information across Canada. This is but one way to ensure that the Canada Health Act principle of portability is respected. The Canadian Pharmacists Association fears that unless health information is explicitly excluded from the purview of Bill C-54, the application rules will prevent the network from being built and will therefore negatively impact the portability provisions of the Canada Health Act and the health of Canadians.

From the inception of the profession, pharmacists' codes of ethics have strongly maintained the obligation to protect the patient's right to confidentiality. We continue to do so and are committed to finding the best ways of doing it. We feel, however, that Bill C-54 may not be the ideal instrument to deal with this complex and far-reaching issue.

In closing, the Canadian Pharmacists Association would encourage the committee to enlist the assistance of Health Canada and the Department of Justice to work on drafting a privacy legislation that would establish the levels of protection to which all Canadians are entitled. If the committee recommends that Parliament proceed on the basis of this bill, we would strongly recommend that the committee have the foresight to exclude health-related transmissions from its purview.

Thank you very much.

The Chair: Thank you very much, Ms. Willems.

I'm now going to turn to Dr. John Millar, the vice-president of the Canadian Institute for Health Information.

Dr. John S. Millar (Vice-President, Canadian Institute for Health Information): Thanks very much, Madam Chair and committee members.

As a brief word on what the Canadian Institute for Health Information is, it was established in late 1993 to continue the work of pre-existing databases that had been housed within government. The Canadian Institute for Health Information is a non-government, non-profit organization that was set up by government as an independent body to be able to process health care data to provide information to provincial governments, to health care institutions, and to the public on how the health care system is performing and the expenditures that are being made on health across the country.

The major databases that are housed within the institute are hospital utilization data, health care expenditure data, health human resource manpower data, and there are registries on organ replacement and on trauma. We are also in the business of getting data from other sources and making it available to provinces and regional health authorities.

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The organization has operated those databases for four years, and prior to that, for over thirty years, processing literally millions of personal health records on an annual basis without any breaches of confidentiality, despite the fact that there has not been national legislation. The reason for this is that we have complied with and encouraged the use of provincial legislation across the country. But we certainly agree and welcome this initiative by the federal government to undertake to create national-level legislation.

In reviewing the proposed legislation, there are five issues we have identified that I think would, if addressed, improve what is intended here.

The first issue has already been mentioned by my colleague here, which is the issue of commercial activity and its definition. We feel that this is inadequately defined. In fact, we are concerned that our organization be included under this legislation, and it's not clear if we would be considered a commercial organization or not. Even if we were, we could be exempt.

The transborder provisions in the proposed legislation should include everything for transactions within the province of Ontario, for example, and unless we were clearly identified as a commercial organization, we may be exempt from this legislation, which we don't think would be good.

The second issue is that of the definition of “personal information.” “Personal information” is not defined in this legislation. You will find in a number of provincial enactments that it is very carefully defined, and this is very much related to the third point, that unless it is very well defined what personal information is, it is not clear what has to be stripped from a personal record to render it anonymous and, therefore, exchangeable. So we're urging that the definition of “personal information” be included, and we would suggest to you that you look at, for example, the B.C. privacy legislation, which we think has a very good and workable definition on this.

The fourth point is the issue of disclosure of information that has been obtained without consent, for research purposes. The proposed legislation mentions that it can be released for scholarly research. We take “scholarly research” to mean university-based research, although it's not defined in the legislation. If the information could only be released for university-based research, that would seriously restrict our ability to collect, disclose, and use this information, because much of the information that we use here is for research purposes outside of universities, with non-university types of institutions.

The fifth issue, which I think is the thorniest for us, is the conditions under which personal information that has been collected without consent can be released and disclosed to us and by us. The problem is that most hospital records, which is the bulk of our activity at the moment, are collected without consent at this time. The proposed legislation puts onerous and, we think, appropriate restrictions under which this information can be collected and disclosed.

For collection, the proposed legislation says that it can be collected for purposes of scholarly research, or where individual good can be demonstrated, or where there cannot be timely consent obtained, and the privacy commissioner has to be advised. Those are four severe conditions on collection, which we think are appropriate and we encourage. However, the point I'm making is that for existing databases out there right now, none of them will meet these conditions. Similarly, for the use of the data, again, it has to be for research purposes and only if timely consent could not be obtained.

For us, the problem with that would be that if this were to be enacted next week, for example, the existing databases may not be available to us. It is not sufficiently clear in the legislation that we would be able to continue to indirectly collect this information through hospitals from patients, therefore the data sources on which we rely to report to the government and to the public on the performance of the health care system would not be available to us and that would severely compromise our ability to function.

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Hence, we think what is obviously needed in the longer term is conditions across the country where when patients enter a hospital, there is a consent process in place and they are made aware that their information may be shared, or that there be routine encryption of that data so that it cannot be traced back to an individual.

Until such conditions are in place, we are suggesting this proposal here that allows us to continue business as we have done in the past. It essentially means that we will be able to continue to collect this information from the provincial ministries of health and directly from hospitals, where there is provincial legislation that allows us to do that, so that we can carry on business until the more appropriate conditions can be put in place across the country.

Thank you, Madam Chair.

The Chair: Thank you very much, Dr. Millar.

I'm now going to turn to the Canadian Medical Association, and we have Dr. Susan Hutchinson here.

Dr. Susan Hutchinson (Chair, Forum on General and Family Practice Economics, Canadian Medical Association): Thank you very much, Madam Chair, and thank you very much to the committee members for allowing us to speak today.

The Canadian Medical Association is pleased to have been invited to appear before the Standing Committee on Industry during its review of Bill C-54, the Personal Information Protection and Electronic Documents Act. I'm joined today by Carole Lucock, senior counsel and director of legal services for the Canadian Medical Association. I'm a practising family physician, and I worked on the CMA health information privacy code.

Physicians take their patients' privacy very seriously. It's a cornerstone of a special bond between patients and their physicians. In recognition of the importance of the privacy of health information, the CMA has produced the health information privacy code. It is on this basis and out of concern to ensure that the privacy of patient information is adequately safeguarded that we speak to you today.

The CMA believes our patients expect and deserve nothing less than the exacting standards for the protection of privacy we have set out in our code. In our research and polling and ten focus groups held across Canada, we found considerable concern about informational privacy in connection with information technology and broad support for the principles set out in our code.

I would like to share with you some highlights from some polling Angus Reid did for the CMA. Eighty percent of the public believe physicians keep their information confidential. Thirteen percent of patients report having withheld information from their doctors because they were concerned that this information could be passed on to others. A majority of Canadians do not want their health information used for research purposes without their consent even when personal identifiers have been removed from that information.

Our code, like Bill C-54, starts from the minimum standard set in the Canadian Standards Association code. However, we have gone further and developed a code with input from physicians.

The details of our critique of Bill C-54 are laid out in our submission to you, and we will not repeat them here.

We understand that this committee has been led to believe Bill C-54 will not apply to health information. However, we believe the stated scope is sufficiently broad to cover health information in certain contexts. Let me be more specific. Clause 4 of the bill states its intended application. As you know, there are three categories. The first category is information collected, used, or disclosed in the course of commercial activities. The question is, what constitutes a commercial activity, and what are the consequences to health information when it enters the commercial realm? There's a lack of clarity here. Given the broad spectrum of the provision of health care products and services to Canadians in both the public and private arena, there is no neat dividing line.

This lack of clarity may lead to a number of conclusions. For example, it could result in some health information being collected, used, or disclosed in the course of commercial activity, thus subjecting it to the provisions of the bill, or when health information enters the commercial realm, for insurance purposes, for example, or is collected in a commercial context, such as a private nursing home, it becomes commercial information and subject to Bill C-54, thus rendering health information a commodity.

Finally, if all health information is considered to be beyond the purview of Bill C-54, then a legitimate defence for non-compliance could be provided by Bill C-54, giving health information even less protection than other information. None of these cited consequences are desirable.

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Paragraph 4(1)(b) of this bill applies to the collection, use and disclosure of information interprovincially or internationally. Clearly this section is not qualified or restricted and therefore would apply to health information. Given the federal government's initiatives to link health information across the country, the application of this section would mean that Bill C-54 would govern the protection afforded health information.

The final category is information collected about some employees. This information may also include employee health information. The CMA asks that this committee consider very carefully what it is doing with respect to health information. We ask that this committee accept that Bill C-54 will apply to at least some health information, and we ask that this committee take a proactive approach and provide the appropriate protections for health information that will fall within the purview of Bill C-54.

The CMA recommends that Bill C-54 be amended to incorporate specific provisions relating to health information. The provisions of the CMA health information code provide the basis for such provisions. The CMA recommends that the proposed rules for health legislation be subject to the legislative test found in the CMA's code and formulated in light of this process.

Physicians across Canada are listening to our patients' concerns on this issue of health information privacy. We urge you to do likewise. We thank you very much for the opportunity to speak to you today.

The Chair: Thank you very much, Dr. Hutchinson.

We will now turn to the Ontario Ministry of Health. We have Mr. Gilbert Sharpe, the director of the legal services branch.

Mr. Gilbert Sharpe (Director, Legal Services Branch, Ontario Ministry of Health): Thank you, Madam Chair. I have with me today a couple of colleagues from Ontario, Juta Auksi and Halyna Perun, who will perhaps assist with the questions following our presentation.

We're all patients of the health system, and we all value our privacy very highly, particularly when it comes to health information. The Ontario Ministry of Health's concern is not to disagree with the need for very high standards of protection and security, but rather with the mechanisms and forms necessary to afford that kind of protection. We don't expect to get into the constitutional arguments today. We feel they are significant, but we're going to address clinical accountability management issues that pertain specifically to the Ontario government, and I would imagine to other governments.

I thought it would perhaps be most instructive, in the few moments I have, to take you through our submission—I assume everyone has it—and just highlight some of the provisions in the submission. Our submission addresses the negative impact the bill would have on key activities of the health system Ontario regulates. It talks about how Ontario's proposed personal health information protection act would more adequately address concerns with respect to collection, use and disclosure of personal health information. It highlights the confusion and uncertainty that would be created by the current bill.

The health sector was not consulted on the implications of this bill. It's only just beginning to realize the enormous consequences of this legislation for health and health care. It is our view that the bill would impact negatively on many critical activities of the health system, and was not developed with the health system in mind.

The Ministry of Health has serious concerns that the bill would lead to an ineffective, inefficient health system. It would be impossible to carry out the objectives of Health Canada and the provincial ministries of health, to realize the potential of the health information highway to improve the health care of Canadians.

In the February 1999 budget the federal government announced the plan to restore billions of dollars to the provinces to deal with immediate concerns about health care and build a stronger health care system. Yet at the same time, another arm of the government is proceeding with a bill that would impede health care delivery, planning and management of the health system, and research. The Ministry of Health strongly urges that the bill be amended to avoid harm to Ontario's health care system. The amendment should clearly exempt the health system from the application of the bill, to permit us to proceed with our own legislation.

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We've given a few examples throughout the submission. There's one on page 3 that the seniors' community brings quite frequently to our attention. An elderly man living in the community has several health conditions and sees numerous doctors. He takes a variety of drugs and has prescriptions filled at whatever pharmacy is convenient. Without an ability to quickly link information among these doctors and pharmacists, the risk of over-prescription and adverse drug reaction is significant.

In such cases it is a slow, next to impossible process to get valid consents to determine who signs for children and mentally incapable adults, responds to refusals to sign consent for services needed, or tracks consents as the patient moves through the system. It's not even clear who would be responsible for getting consents in these circumstances—pharmacists, doctors, labs, hospitals, whomever.

There are many difficulties this bill would compound, particularly since the bill doesn't even have provisions that deal with how you handle incapacity in these circumstances.

Management of the health system is another critical issue. We're all concerned about improving public accountability. There's a broad range of information that needs to be collected to determine unmet and changing health needs of the population, so gaps or duplication in services can be addressed for utilization management, guideline development and quality management, to ensure that resources are used appropriately and cost-effectively.

There's another example at the top of page 5. In the public health forum, information systems permit monitoring of the progress of thousands of women through the breast cancer screening process over a period of years, from initial testing to follow-up of abnormalities, and for some, on to treatment. Information compiled from such a program can be used to determine which screens and treatments are most effective and where best to allocate cancer resources.

In order to efficiently manage the health system, we must be able to demonstrate that the funds spent translate into concrete deliverables that benefit the population. We want to be assured that the recent transfer of federal health dollars to the provinces will result in system improvements that can be demonstrated. With this bill, it's not clear whether this will be permitted. In fact, it's arguable that these goals will be impeded of accountability.

On page 6 we talk about fraud and the abuse of health resources. Abuse would be, for example, visiting several physicians in search of a particular medication; repeated testing for the same condition; non-residents using borrowed, stolen, purchased or counterfeit health cards; and inappropriate billing. The abuses and fraud in the health care system and the amounts of money wasted are obvious.

Bill C-54 would not permit the collection, use or disclosure of personal information without consent, for the detection and prevention of fraud. This is inconsistent with other personal information legislation, like the federal and provincial public sector legislation on privacy. Consultations on our own health information law revealed that health care providers need clearer ability to disclose for these purposes.

Bill C-54 is inconsistent with the CSA code, which the bill incorporates but with some very significant changes. The bill requires that the notes in the code be disregarded, yet these very notes provide the flexibility that is missing in the bill itself, in terms of being able to deal with accountability, clinical practice and fraud.

On page 7 we talk about our own legislation, and the fact we've been through two extensive rounds of consultation since 1996. Key stakeholders involving provider groups in health care, many consumer groups and our own Ontario privacy commissioner have supported the exceptions to the need for consent in the interests of the goals I've described earlier today. Yet there has been really little awareness across the country and amongst provinces of the application of Bill C-54 to health care. Health and Welfare Canada, when we discussed matters about this bill with them, seemed to give us different messages than Industry Canada, and we'll come to that in just a moment, as I conclude my comments.

On page 8 of the bill we point out that other provinces, such as Manitoba, Alberta, Saskatchewan, and other jurisdictions, such as New Zealand and Australia have taken a similar approach to Ontario in setting specific rules for the health system on specialized health information, with appropriate exceptions to the need for consent that go well beyond Bill C-54.

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Indeed, the Ontario information and privacy commissioner and groups like the Ontario Medical Association have been very strong supporters of our provisions. The federal government's staff has questioned the number of different disclosures in our draft act, and has raised doubt that Bill C-54 would ultimately designate as substantially similar the provisions we want to promulgate over the next while in order to protect health information in our province.

Finally, Madam Chair, on page 9 we summarize some of the clear confusion created through the bill and through comments we've had with government staff. Industry Canada has said Bill C-54 would not apply to doctors. Other health professionals, like pharmacists, dentists and nurses, have not been mentioned as excluded, yet the same provincial professional regulatory scheme applies to them, and they play an important role in health care delivery.

Industry Canada has said the bill would not apply to hospitals. A hospital, which is publicly funded and non-commercial, may send a lab test requisition to a private commercial lab, and in some cases the tests will be paid for with public funds. Would the test results be subject to the provisions of the bill while at the lab, while at the hospital? In some cases, commercial labs, clinics or pharmacies operate inside hospitals. What rules would govern those patients' records?

A plastic surgeon removes a basal carcinoma from a patient's cheek. That's a procedure covered by our health insurance plan. At the same time, he removes a mole, which is a cosmetic procedure not covered by the plan. Would this bill make a distinction between publicly funded and privately paid for services?

Would the bill apply to planning organizations such as CIHI? Industry Canada has said it would, but Health Canada has said it wouldn't.

These are just some of the examples of the confusion that concern us about the bill. This confusion and inconsistency around health information flies in the face of efforts to integrate the health care system.

Finally, on page 10 we point out that it's difficult to see how the recommendations of the report and the advisory council on health infostructure and the CIHI report and road map submitted to Health Canada and just released could be implemented if some or all of the personal health information is subject to the bill's rules that focus on consent, to the exclusion of other ways of protecting privacy. Electronic patient records and telehealth and other initiatives would also be stalled at their inception.

The effect of the bill on the health system would be to create roadblocks, when the intent of the health information highway initiatives is to remove barriers. The bill's rules, once in place, would hinder the collaborative efforts to harmonize health information legislation now under way among the federal, provincial and territorial governments and ministries of health. Although unsuitable for the health system, the bill would effectively be a de facto standard. It would hinder the collaborative effort to harmonize legislation at a time when we're all trying to move towards integration and higher accountability.

In conclusion, Madam Chair, the Ontario Ministry of Health recommends that subclause 4(2) of Bill C-54 be amended to provide that part 1 of the bill clearly does not apply to organizations in respect of personal information relating to the health of an individual or the provision of health care to an individual that the organization collects, uses or discloses for health care purposes, including management of the health system.

The ministry appreciates the opportunity to comment on Bill C-54, and urges this committee to give serious consideration to its recommendations.

Thank you, Madam Chair.

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

We will now go to questions, beginning with Ms. Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): Thank you, Madam Chair.

From listening to all of your presentations, it's clear to me there's a problem here. My question to all of you—and specifically to you, Mr. Sharpe—is whether or not amendments to Bill C-54 can deal with your concerns, or should there be an exclusion of health care providers, be they hospitals, commercial, or public, and the drafting of new legislation that would be specific to that field? Could you all comment on that? Would amendments to this act protect the privacy of the patient, as well as allow for a collection of data that's important for research, scholarly use, or for ministries of health across the country, to make sure the system is efficient?

The Chair: Were you addressing your question to all of them?

Ms. Val Meredith: To all of them, yes, but start with Mr. Sharpe.

The Chair: We'll start with Mr. Sharpe, then.

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Mr. Gilbert Sharpe: Thank you, Madam Chair.

We don't believe it would be possible to do that. However, we would be prepared to enter into discussions if we could see a specific exemption or if there were more of an opportunity or more time to consult, to bring in our colleagues from other provinces, to bring in provincial health organizations, to bring in consumer groups in health care that are active and have concerns, to bring in provincial privacy commissioners with interests in this area. And although I realize the difficulty in that, because I understand that this committee is going into clause-by-clause next week, that opportunity has not been forthcoming.

As I say, we have spent several years developing specific legislation that does afford the balance necessary to protect the information, and that protection must be in place. The goals of this legislation are critically important. We don't dispute that at all. Our concern is that we tailor-make provisions.

Very briefly, in the early eighties, Madam Chair, I did some work with the federal Department of Justice in crafting mental disorder provisions for the Criminal Code. I travelled the country and found that there was great utility in crafting specific laws that are designed to deal with a very specific subject and that do not impede the flow of information necessary, because psychiatric information can arguably be the most highly sensitive of health information in some circumstances and can do the most damage if inappropriately released. With time to consult our provincial and federal partners and colleagues in a collaborative effort, I believe we were able to craft clearly specific laws under the criminal law power. We don't feel that opportunity has been afforded here, nor do we believe this bill can be fixed to address the needs of the system.

The Chair: Thank you, Mr. Sharpe.

I would just ask everyone to try to be brief. I apologize for some members of this committee who are new, but we have five-minute-question rounds. If you ask a question to all six persons, that's going to probably take up most of your question time.

Dr. Hutchinson.

Dr. Susan Hutchinson: Yes, thank you, Madam Chair.

It is the position of the CMA that this legislation will include health information, and that there is no clear dividing line between health information and commercial information. As a consequence, it is our position that the bill needs to be amended to include specific provisions to protect health information.

The Chair: Dr. Millar, did you have anything to add?.

Dr. John Millar: In answer to the question, our view would be that we certainly support the spirit of what's being attempted here, which is to protect personal information. But until there are processes in place at the point of collection so that people know their information may be shared, or until there's routine encryption of the data so that personal identifiers have been altered and you can't track it back when it is made available in the system, the information flow would be severely impeded in its current draft form. That point has already been made.

For our purposes, in our institution, where we are in the business of collecting hospital-based data, we believe our needs could in fact be met by basically making the amendment we have suggested here. That would allow us to continue to do business as we have been doing it, which is consistent with existing provincial legislation.

So we believe the answer is yes, it could be. Our operation could continue with an amendment.

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: Thank you.

In French there is a saying that goes Qui trop embrasse mal étreint.

The bill is trying to do too much, and I agree with you that it needs to be split. Health information needs to have its own enshrined privacy legislation in order to really make sure you actually get to the target you want to get to.

The Chair: Mr. McBane.

Mr. Michael McBane: We support the bill going through with some improvements. Obviously there needs to be health legislation as well, but it's not either/or. We need both.

The Chair: Dr. Speers, do you have anything to add?

Dr. Richard Speers: We're supportive of the amendment process, simply to get some privacy protection on the table and to stop the development of a data haven within another province.

The Chair: Ms. Meredith, do you have another question? This would be your last question.

Ms. Val Meredith: I'll pass, thanks.

The Chair: Mr. Keyes.

Mr. Stan Keyes (Hamilton West, Lib.): Thank you, Madam Chair. I'll get right to the point, because time is short.

To our witnesses, can you imagine if the government were to address in very specific terms each and every request from every organization that came forward and made a representation on this bill? I dare say the bill might end up being as thick as this room is high. We therefore have to rely on some standards to try to put together a consensus, if you will, on how we're going to deal with the concerns from a broad spectrum, from everyone. As the parliamentary secretary, Mr. Lastewka, has said, this bill is going to affect each and every person, each and every organization.

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I'm showing a bit of frustration here, and I'll start with Dr. Speers.

Dr. Speers, you said in your remarks that the bill fails the critical need of health care protection. Yet if this bill were to proceed, the CSA code would apply in part 1, with its defining basic principles that include accountability, identifying purposes, consent, limiting collection, limiting use and disclosure. So why would you say it fails the critical need of health care protection?

Dr. Richard Speers: We submit that the consent forms that we've provided, which are contemporary consent forms, show how the intent of the CSA code has been avoided by the wording. The present consent has basically a total invasion.

Mr. Stan Keyes: The problem is with your forms, it's not with the bill.

Dr. Richard Speers: I think you need stronger consent protection. The instrument of consent is where we feel the violation is occurring. There's no oversight body to control that.

Mr. Stan Keyes: All right, let me go back one step. In the early going in the nineties, the CSA gathered representatives from the public sector, industries, transport, telecommunications, information technology, insurance, health and banking, yet you're saying that health care providers were not consulted.

Dr. Richard Speers: The Canadian Medical Association was not on the development committee, and the Canadian Dental Association was the sole health representative after the code had been developed. We were on the implementation committee. The interest of information exchange outweighed the interest of information protection.

Mr. Stan Keyes: Oh, did it? In 1994 what we were attempting to do with the CSA standard was well publicized, requests were put out to organizations including yours, and it was gazetted. Were you aware of it?

Dr. Richard Speers: I was at the table for some of that, and I was roundly trounced for the attempt to establish an informed consent procedure.

Mr. Stan Keyes: Trounced by whom?

Dr. Richard Speers: Mostly representatives of the health industry. If you look at the document, information is a—

Mr. Stan Keyes: The health industry? What do you mean?

Dr. Richard Speers: The Canadian Life and Health Insurance Association. So if you look at—

Mr. Stan Keyes: Oh, I see, your feelings were hurt by the insurance companies.

Dr. Richard Speers: It's not that feelings were hurt, but that they deferred collection with the knowledge of the patient, which we feel is insufficient, because the patient's not aware of—

Mr. Stan Keyes: That aside, Dr. Speers, did you put forward any kind of a brief or any kind of representation?

Dr. Richard Speers: Yes, I did. I'm on record with the federal privacy commissioner and your own Industry Canada people. I have a—

Mr. Stan Keyes: But in 1994, when we specifically publicized and gazetted requests for input from your organization, did your organization specifically give information to—

Dr. Richard Speers: Yes, we did. I have documents of files to Helen McDonald at Industry Canada, among others. If it wasn't gazetted, it's because of my ignorance of the procedure.

Mr. Stan Keyes: The standards apparently then went out for public comment after that step. Did you supply public comment then as well?

Dr. Richard Speers: Yes, we did.

Mr. Stan Keyes: Well, I'm getting conflicting information here, and I'm going to have to find out exactly—

Dr. Richard Speers: We're certainly on record, and I have the documentation to back up our position.

Mr. Stan Keyes: I'm still not clear on this business of your form. If the CSA code provides for such things as personal information collection being identified by the organization, and the knowledge and consent of the individual being required for the collection, use, or disclosure, etc., why is it a problem?

Dr. Richard Speers: We submit that the amount of information being requested is vague, and there's virtually no limit to the collection. The consent forms support that. We believe the patient, in releasing health care, should be aware of what information has been requested, what information is being gathered, and should have the right to withdraw consent before it's released. That may mean withdrawal of an application, but there may be information in the health record that is so important to that patient that they don't want it released.

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Mr. Stan Keyes: But it also says in the principles that personal information shall not be used or disclosed for purposes other than those for which it is collected, except with the consent of the individual.

Dr. Richard Speers: But even the actual collection of that information by a third party may be harmful to the patient.

Mr. Stan Keyes: By a third party?

Dr. Richard Speers: I mean the collection of information by an insurance company or an employer. There have been instances—

Mr. Stan Keyes: I want you to speak for the medical people, not the insurance people. Let's be specific to the matter.

Dr. Richard Speers: The insurance company is collecting medical information. The disclosure of that to a third party, an insurance company, may be harmful to the patient.

Mr. Stan Keyes: When can it be disclosed to the third party without consent of the individual?

Dr. Richard Speers: Within the health information field, an employer challenged an insurance company to hand them the claim forms on drug use. The employer submitted that they owned the claim forms that identified the drug use of their employees. This happened to be a separate school board and they were looking to see if any employees were on oral contraceptives. They felt that would be a criterion for dismissal because of the role of being a practising Catholic within the separate school board.

Mr. Stan Keyes: But wouldn't the CSA protect them from that?

Dr. Richard Speers: We're not sure whether it would.

Mr. Stan Keyes: Last question quickly—

The Chair: That was your last question, Mr. Keyes.

Mr. Stan Keyes: I'll ask it in the second round.

The Chair: Okay. Thank you, Mr. Keyes.

[Translation]

Mr. Dubé, please.

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): I know that most witnesses wish to avoid the constitutional question. This is perhaps not your field of specialization, but it remains that the management of health services clearly comes under the jurisdiction of the provinces by virtue of the Constitution. In Quebec we have had Bill 68 for the past five years and it relates to personal information. The Bloc Québécois is very adamant about that.

Before asking a question on your interpretation of this, I would like to ask the representatives of the four associations, namely the Canadian Dental Association, the Canadian Health Coalition, the Canadian Pharmacists Association and the Canadian Medical Association, if they have had the time to consult their members in Quebec on this issue. You could perhaps each answer in turn, beginning with the Canadian Dental Association.

[English]

The Chair: Did you say the Dental Association, or did you mean the health coalition? Who do you want to answer? You said the Dental Association.

[Translation]

Mr. Antoine Dubé: We could perhaps begin with the Canadian Dental Association, because there are four Canadian associations here.

[English]

The Chair: Dr. Speers.

Dr. Richard Speers: I'm feeling a bit warm here.

I have personally reviewed the Quebec bill. We have not consulted with the Quebec government, nor did we consult with the Ontario government on this. We took this as a CSA federal government initiative.

I hope that answers your question.

[Translation]

Mr. Michael McBane: The Canadian Health Coalition must look at the federal legislation. There are federal powers defined by the Constitution, especially for interprovincial matters. It is therefore clear that there is a federal role here. Obviously, there are also provincial laws. Health is an area in which both levels of government have commitments and involvement. Therefore, it isn't a case of one or the other.

Mr. Antoine Dubé: I would like to clarify my question because the witness hasn't answered it. Do you have members from Quebec?

[English]

The Chair: Mr. Dubé, you've asked each of them a question, so you have to allow them all to answer before you change your questioning.

[Translation]

Mr. Antoine Dubé: I haven't changed my question; I am simply clarifying it.

Mr. Michael McBane: We have members in every province, including Quebec.

[English]

The Chair: Do you want to clarify your question, Mr. Dubé?

[Translation]

Mr. Antoine Dubé: No, it is simply that Mr. McBane was already anticipating my second question. I wanted to know if each one of the associations had consulted its members in Quebec before announcing its position.

The Chair: Madame Willems.

Ms. Noëlle-Dominique Willems: Thank you for your question, Mr. Dubé.

We are not a federation, but we have members in Quebec. Our brief was approved by the Board and thus by our Quebec members as well.

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[English]

The Chair: Dr. Millar, do you have anything to add, or was it directed to Dr. Hutchinson?

Ms. Carole Lucock (Senior Counsel, Director of Legal Services, Canadian Medical Association): In answer to the first part of your question, we have not consulted with either the Government of Quebec or any other provincial governments with respect to our position.

In answer to the second part of your question, the CMA is set up with divisions across Canada, so each province or territory has a division. For example, in Quebec it's the QMA. They all sit at our board and would have read our brief and our privacy code and approved them. But we tend to be split federally-provincially, so provincial politics tend to be dealt with at the provincial level, and federal politics at the national level, although it doesn't always work perfectly.

The Chair: Last question, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: I will address this question to the representative of the Ontario Ministry of Health, Mr. Sharpe.

I noted the enforcement difficulties you would anticipate for Bill C-54 with, if I understood correctly, the act you have in Ontario regarding personal health information. I presume that you have had consultations with other departments in the Ontario government. In a broader perspective, does the Ontario government foresee enforcement difficulties in other sectors as well?

[English]

Mr. Gilbert Sharpe: I'm not sure of the question. Are you talking about the application of the proposed bill to other parts of the Ontario government?

[Translation]

Mr. Antoine Dubé: Yes.

[English]

Mr. Gilbert Sharpe: I don't have any direct knowledge of that. We examined the bill in the context of the obvious constitutional split, federal-provincial, in terms of trade and commerce. We assumed the trade powers within the province and the clear mandate of a province to regulate health care would make this a provincial and not a federal issue. However, because I'm here for the Ministry of Health, we have not examined the implications of the bill for other types of commercial activities in the province.

The Chair: Thank you.

Mr. Lastewka.

Mr. Walt Lastewka (St. Catharines, Lib.): I want to direct my questions to Mr. Sharpe.

When will the personal health Information protection act for Ontario come into effect?

Mr. Gilbert Sharpe: We expect it will be introduced some time this year. Then it will simply be a matter, like this bill, of going through the parliamentary process.

Mr. Walt Lastewka: Am I right to understand the bill has been in the process since the 1980s?

Mr. Gilbert Sharpe: No, it has been in the process since 1996. There has been discussion of confidentiality matters since the 1980s. Prior to that, significant provisions were added to our Mental Health Act in 1978. Other types of provisions were put into other health statutes throughout the 1980s and into the 1990s by various governments. But a comprehensive approach by the government to health information protection was first promulgated in the form of a white paper and then draft legislation from 1996 onwards.

Mr. Walt Lastewka: Yes, but it's been in the mill since the 1980s, in one way or another.

Mr. Gilbert Sharpe: No. As I said, we've done piecemeal amendments on specific matters like mental health and psychiatric records.

Mr. Walt Lastewka: I'll switch to another item. When your bill comes forward, it will have many exemptions. Am I correct?

Mr. Gilbert Sharpe: There will be a number of exemptions to the need for consent. That's correct.

Mr. Walt Lastewka: Will there be over twenty?

Mr. Gilbert Sharpe: I believe so.

Mr. Walt Lastewka: You mentioned the Ontario privacy commissioner earlier, who was also here and did an excellent job. The privacy commissioner from Ontario and other privacy commissioners from the various provinces who have availed themselves to be here have very clearly said three things. One, it's an excellent first step; two, the provinces need to adopt comparable legislation; and three, any exemptions should be kept to a very narrow number, because there is the fear of having too many exemptions. Would you agree with that?

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Mr. Gilbert Sharpe: I wasn't privy to the submission of the privacy commissioners from the provinces. Did they specifically address health care information?

Mr. Walt Lastewka: I'll read from the Ontario one if you want. When the privacy commissioner was here, most of the time was spent on privacy, not on the electronics documents. They covered privacy of individuals wherever that data was being collected. So it was right across the board.

Mr. Gilbert Sharpe: I would agree with that, except Ann Cavoukian and her office reviewed every one of the exemptions in the proposed legislation on our personal health information statute and supported the exemptions in our bill. I don't know what her recommendations were here on the broader issues of privacy protection, which as I say we all support very strongly. Our only concern is when it deals with health information protections, the concerns we've heard the last couple of years through consultations with all sectors of the health care community—consumers and providers—are reflected in the bill, and are not sensitively reflected at all in Bill C-54, which arguably was not designed as a health protection bill.

Mr. Walt Lastewka: On page 3 of your report, you write

Whether those individuals are engaged in a “commercial activity” when delivering health care is irrelevant to the achievement of continuity of care for the patient

What about privacy?

Ms. Halyna N. Perun (Counsel, Legal Services Branch, Ontario Ministry of Health): That is basically to address the questions we have around the application of the legislation vis-à-vis, for example, laboratories—public sector laboratories and private sector laboratories. It's not clear to what extent this legislation would apply to the private sector laboratories that effectively do the same kind of work as the public sector ones.

That's what that statement was addressing. Certainly privacy is very important to the ministry, and that is why it's proceeding with its own draft health information piece as well.

The Chair: Last question, Mr. Lastewka.

Mr. Walt Lastewka: I want to go back to not being consulted. It's my understanding members of your health committee have been working on this since December, after the bill was tabled in October, and have met with departmental...I guess it was health care in January. Am I right?

Ms. Halyna Perun: Yes.

Mr. Walt Lastewka: Weren't meetings held with Health Canada?

Ms. Halyna Perun: Yes, we had a meeting on an informal basis with Industry and Health Canada at the end of January, to discuss with them how our legislation works. The issue of consultation more broadly was to advise this committee that consultations with associations and the government, prior to the bill itself being put forward in its current form, did not occur.

Mr. Walt Lastewka: Weren't discussions held in 1994? I don't want to follow up on what Mr. Keyes said, because he was right.

The Chair: That's it, Mr. Lastewka.

Mr. Walt Lastewka: Okay, thank you.

The Chair: Thank you very much.

Mr. Jones, please.

Mr. Jim Jones (Markham, PC): Thank you.

All of you in your briefs have outlined significant problems with Bill C-54, as it pertains to the delivery of health care. The bill's potential impact on health care really seems to be the hidden story of this legislation. I'd like to ask all of you if you've been properly consulted on this bill by the federal government.

The Chair: Are you asking each one that question, Mr. Jones?

Mr. Jim Jones: Yes.

The Chair: Dr. Speers, maybe we'll start with you.

Dr. Richard Speers: I've been involved in the issue of representing the CDA for a number of years. We've had very good support and information from Industry Canada personnel. I think the level of disclosure and the attempts to keep us on-line were very good. We did lose track of it around the time the bill was tabled, and that's why we were late coming in.

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Overall this is an incredibly complex piece of legislation. It's trying to do an incredible balancing act, and we respect that. But it still doesn't do the job, in our mind, and we were worried about this when the CSA code came out.

The Chair: Mr. McBane.

Mr. Michael McBane: I'd have to say the health coalition received better information from Industry Canada on this than we get normally from Health Canada on other issues.

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: For us, it's exactly the opposite. We were called by Industry Canada only when we said we wanted to appear.

The Chair: Dr. Millar.

Dr. John Millar: We received a survey instrument that we responded to. We made a submission on that basis. Is that adequate or not? That's for others to judge.

The Chair: Dr. Hutchinson.

Dr. Susan Hutchinson: It is the position of the CMA that we were not, but I would like to ask Carole Lucock to expand on that.

Ms. Carole Lucock: If the question is about working with industry officials, they've been very cooperative. If the question is aimed at whether this process is sufficient today to be representative of the health care sector and that issue, then I'd say to have seven people sitting here with very little time or opportunity to express our concerns to you means we have been inadequately consulted about our concerns. It's not just us—we're sitting at this table—but if you listen to Dr. Speers, just with his concerns about the insurance industry.... I believe the insurance industry sat before this commission for significantly longer than this particular sector has an opportunity to do. So I suppose it depends on what you're talking about, in terms of consultation.

The Chair: Mr. Sharpe.

Ms. Halyna Perun: Certainly I would echo what Ms. Lucock has said in terms of Industry Canada staff, who have been very cooperative. With the release of the bill, we've had a lot of discussions with them. But I wanted to advise that when the government staff attended provincial meetings in March to basically take the provincial government through what a bill would address, they assured the provincial government representatives that the scope of the legislation would apply only to banking, interprovincial highways, and communications. So there was no indication that it would apply to the health care sector, and it caught us by surprise when the legislation was introduced.

The Chair: Mr. Jones, do you have a final question?

Mr. Jim Jones: In the written submissions, both the Minister of Health, and to a similar extent, the Canadian Medical Association, strongly doubted whether the final recommendations of the advisory council on health infostructure and the Canadian Institute for Health Information's health information road map report, which was submitted to Health Canada and released in 1999, could be implemented. I would like to ask Mr. Sharpe and Ms. Lucock to expand on the reasons for this, and ask the other groups whether they share this view.

Ms. Halyna Perun: The concerns we have with respect to the Health Canada initiatives are that the Health Canada initiatives certainly highlight the need for integrated delivery of care and for better use of health information for planning and management of the health system, and that there is an encouragement in that initiative to harmonize provincial legislation to ensure these goals are not impeded, yet sound rules are developed to protect health information. So with respect to those initiatives, it is our view that Bill C-54 would in fact create barriers to this occurring because of the fact that the rules around collection, use, and disclosure do not recognize the health care delivery or the planning and management of the health system aspects, particularly as set out in clause 7 of Bill C-54.

The Chair: Ms. Lucock.

Ms. Carole Lucock: Certainly CMA hasn't had the opportunity to comment officially on the advisory council's report, but having said that, the objective of the advisory council's report is to establish within Canada essentially a national database of health information, provincial and federal, and that clearly contemplates interprovincial transfer of information.

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If you look at subclause 4(2) of the bill, you will see—and we've made this point both in our speech and in our brief—there's no limit in that clause that talks about commerce. It's strictly if information is flowing from one province to another. So the initiative to develop a fairly substantial database and the comments within that report that deal specifically with the privacy of information are at odds with the bill as it's currently worded.

The Chair: Thank you.

Dr. Millar.

Dr. John Millar: The question was whether the bill in its current form would impede the implementation of the health information road map, and the answer is yes. The health information road map is a huge enterprise. It relies heavily on the processing of hospital-based data, but also on the further development of personal identifiers, personal-oriented information systems. Now, some of the road map is protected under the Statistics Act through Statistics Canada, but much of it is not; it's outside of that and would come under this. And as I pointed out in my presentation, without amendment, it would severely impede the implementation of the road map.

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: Yes, we did mention in our brief that we felt it would result in some problems for the health of Canadians to have that kind of bill applied to the infostructure.

The Chair: Mr. McBane, did you have a comment?

Mr. Michael McBane: Yes. I'm actually quite surprised by the Ontario Ministry of Health arguing the case of the drug industry. The British Columbia Ministry of Health has prohibited the practice of selling information from drug stores to physicians. Why? Because they're in the health policy and health care jurisdiction. They're not in the drug sales business. And they have strong lobbyists on their own. They don't need health departments to be pushing the rights of commercial marketing of drugs.

Health policy needs to be protected from commercial businesses. This bill, it's true, has shown a bigger impact than some originally realized, but that just means it's more important than we first thought, and that it's needed more than some people think it's needed.

As far as a roadblock to the information highway is concerned, you bet there's a roadblock. That highway won't go anywhere until privacy is dealt with and until the integrity of health research is dealt with. And Health Canada has had nothing to say on this yet. So we commend the leadership of this committee for a good start.

The Chair: Thank you.

Dr. Speers, do you have any comments?

Dr. Richard Speers: I have just some short ones.

I oddly enough went into dentistry because I didn't think there were any politics involved. And I'm into it up to my eyeballs.

I think what you have is that the people at Industry Canada and Canadian Standards managed to bring this close together some awfully competing interests, mine as well as the insurance companies' and the banks'. We're almost like a nuclear fusion reaction, but going that last little bit is going to take some effort. I think ministry personnel and the CSA should be congratulated for getting us this far. I don't think this could have been done through interprovincial negotiations, but I think the fact that it came in through the CSA and the back door has allowed it to happen.

Maybe I'm politically naive, but I think we've had some good work by some awfully dedicated people in government and the private sector. I think we're close.

The Chair: Thank you, Dr. Speers.

I just want to clarify the process for this bill for the committee and the members who are before us today, some of whom have not appeared before the industry committee before, in case there is any confusion or feeling that some people are not getting their fair share of time.

We met for the first time in December. The bill was first tabled in the House in October. There were news media reports many times through October, November, and December. We specifically met with information...so this committee and the public would have both sides of the story out there. We met with the federal privacy commissioner and with provincial privacy commissioners, including the Ontario office, before we broke at Christmas. Parliament didn't sit through the month of January. We entertained letters, briefs, and witnesses' requests. We scheduled our hearings for three weeks in February, based on what we had before us in January. We broke again for a week at the end of February. We scheduled our hearings again based on briefs and information that we had.

You may or may not be aware of this, but I know the clerk has asked witnesses to send their briefs in advance. We have received briefs in advance from many organizations. Unfortunately, we didn't receive any briefs until yesterday, and the rest came today. So unfortunately, with respect to the insurance industry, we received their brief over a month in advance of their hearing.

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We received briefs before we even scheduled meetings with some organizations, and we've received many commentaries and letters. We have two witnesses at the table today who only requested less than ten days ago to meet with us, so we have put them into the health sector to ensure that we had adequate information and participation.

The purpose of this meeting is to hear your concerns. And it's not to just hear them and fluff them off; it's to hear your concerns and to address your concerns. That's our intention. It's unfortunate that the provincial ministries, when they meet with the federal ministries.... We have many rounds throughout the year with the federal Minister of Industry, and I'm sure this issue has come up at that table. I'll be happy to clarify that, but I'm sure it's come up, and I'm sure the provincial ministry from Ontario was at the table with the federal minister and was aware of this taking place in this discussion. Everyone was aware of the OECD conference that was held in October in Ottawa.

Now we'll move on to the next questioner, Mr. Shepherd.

Mr. Alex Shepherd (Durham, Lib.): Thank you very much.

First I have a comment and then I'll get into the actual question.

It seems to me that one of the things we're trying to deal with is this definition of “commercial activity”. Ultimately, if I use the example of doctors, they are in business; they're business people and they do this for some pecuniary gain. So I don't know, this whole thing may well escape us somewhere along the line and it may well be impossible to segregate the two things.

The question I want to ask, Mr. Sharpe, is your whole approach seemed to be that there's a choice between privacy and an efficient health care system, and I don't know if I buy that argument. Why can't you have both? Why can't we have a good Privacy Act and a good health care system? You give an example here of the elderly man who is prescribed in a town without various.... You can stick a needle in him, so why can't you ask him for his consent?

Mr. Gilbert Sharpe: The whole point of our presentation is that we need rules that will specifically deal with privacy protections in the context of health care information, which Bill C-54 doesn't do. In our material we have several pages explaining the enhanced protection of privacy that is in the proposed Ontario bill that is not in Bill C-54. The difficulty is that when you're dealing with people of questionable mental capacity the question of a proper informed consent is not at all clear. And if one were to establish clear rules in Bill C-54 dealing with those circumstances, setting up a scheme for substitute decision-making, dealing with the transference of information in a secure manner among health care professionals like pharmacists and physicians, who exchange information all of the time, that would also enable persons to avoid drug interactions and being harmed. Then that would be sufficient, but it hasn't happened in Bill C-54.

The bottom-line problem really seems to be that in many cases the bill is not sensitive to issues relating to continuity of care and the need to share information among health care professionals who are part of the treatment team for individuals. We're not talking about disclosure to insurance companies or disclosure to employers. This is persons who are part of the team who need information for “consistent purpose”, to use the language of some of our privacy laws, in order to be able to help care for an individual and avoid injuries through inadvertent interactions like drugs. That's where this is coming from.

Mr. Alex Shepherd: I hear what you're saying about people who are incapacitated, but you go on to use a larger definition of between health care providers and so forth. If I have an OHIP card, why can't you ask me if I consent to that kind of information flow? Why can't you do that?

Mr. Gilbert Sharpe: In the majority of cases we would be asking for informed consent. That's the premise of the bill and it's the premise of Bill C-54. It's the circumstances under which exceptions are needed for purposes like ongoing care and accountability in the system where.... As an example, in our paper we have five primary care pilots running in Ontario with rostered populations on a voluntary basis. There is currently no law that would permit information to be shared among providers in that integrated network of pharmacies, labs, doctors and hospitals and so on, so that right now in these pilots we need individual consents. I'm told by those involved in trying to administer the programs that it's become a nightmare of concern as to who gets consent from whom, who for children, who for adults who are incapacitated, and what guardianship laws apply.

• 1040

That does not argue against the need for an informed consent where it's possible to get one, but it's simply established that again we're talking about sharing of information in the treatment team itself. So it would be analogous to being in a hospital for care and questioning whether various physicians in the hospital have to get consents in order to talk to one another. That's quite different, in our view, from sharing information with the outside world where privacy protections are paramount. It's this concern that's bogged down the efficient operation of our pilots.

And under Bill C-54 the situation would be exacerbated. We're attempting through our own legislation to bring in as quickly as possible the ability to, with the full knowledge and understanding of the individuals who are part of that primary care network, permit information to be shared on an as-needed basis in order to look after their care without establishing significant impediments and bureaucratic and logistic nightmare circumstances that would impede care. Those are the concerns.

Mr. Alex Shepherd: Going back to my original comment, is there a way we can define where commercial activity stops and health care starts? Do we think we can develop a definition, and therefore an amendment to the act, that would provide this? Do you have a suggestion on how to do that?

Ms. Halyna Perun: It's certainly something we would like to try to work with in respect to these amendments to craft a provision that would allow the carving out the health care sector and the health system organizations from this legislation so that provincial legislation could develop to address the needs of the province.

I wanted to highlight that with respect to this issue of consent, what the personal health information protection act does is, with respect to health care and planning and management, it allows for authorized uses but it has to be in the context of the fact that the recipients of the information can only use the information for the purpose. If you're going to be disclosing the information, say, for commercial purposes, the way the act is crafted now would require informed consent, and there are rules around what is an informed consent, which is something that is not articulated in Bill C-54. So that's missing from the bill.

Around research, there is an ability to disclose for research purposes under the draft act, but what our act would do further is provide limits on the researchers. In the hands of the researchers there have to be strong confidentiality rules to make sure this information doesn't flow in an identifiable fashion.

We're looking at these situations. We're asking what limits can we put on the flow of health information that would be appropriate to the health system and yet allow the authorized legitimate uses to occur. So if we take that approach and work from that in carving out what needs to be carved into and out of Bill C-54 to address the health care issues, perhaps that is in fact possible. But you'd have to look at the way the Ontario health information legislation proposes to deal with the issue and also how Manitoba has dealt with the issue and Alberta and Saskatchewan are proceeding.

The Chair: Thank you, Ms. Perun.

Dr. Hutchinson.

Dr. Susan Hutchinson: I understand your question to be is there a way to divide information in the commercial realm and is it the position of the CMA that you cannot do that.

You're right, physicians practise in a business, but the privacy of patient information is the penultimate principle under which we practice. It is imperative to be able to ensure that principle. The therapeutic relationship between patient and physician would be negatively impacted if you couldn't do that. I think this is very important. Bill C-54 is important. There is no way to carve out health information from this bill. As a consequence, the bill must be amended to incorporate provisions in the bill that ensure that patient privacy is not sacrificed at the cost of expediency or access to information.

• 1045

The Chair: Okay.

Ms. Lucock.

Ms. Carole Lucock: I have a couple of quick points. I think it's incredibly important for the committee to attempt to understand whether in fact you can honestly split the commercial realm from the health care realm, and I think it's a fairly difficult thing to do.

The second thing to consider is if you could do that, if it's clear that you can make a health care sector and a commercial sector, are you providing people with an exemption to your own bill that's undesirable? So if somebody now claims that what we're trading in is health information, that it's not in the commercial realm and therefore your bill doesn't apply, is that the kind of result this committee would like to foster?

The Chair: Thank you very much.

Mr. Shepherd.

Mr. Michael McBane: May I comment?

The Chair: Mr. McBane, I really have to move on. Sorry.

Ms. Wasylycia-Leis.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Let me carry on with his discussion anyway. I think this is probably the nub of the matter.

I think the most interesting question being raised this morning is where is Health Canada and where is a government-wide comprehensive approach on such a critical issue as the huge changes we're seeing around health information and technology? So let me ask Mike McBane...and I know you were going to just leap in on the last point about this very issue. You indicate that in the absence of anything else, this is the best we have to go on, so let's support it because it does guarantee some rights of privacy around personal information, and health information is about as personal as you get. So you say let's go with it as a first step.

I would assume then that you would oppose vehemently the Ontario government's position of an exemption. I'd like your comments on that. And I would also like to know what you think of the CMA's recommended amendment, as I understand it, to ensure that privacy is paramount over commercial interests.

Mr. Michael McBane: Yes, I did want to add a point on the commercial question.

It's quite ironic that the Ontario Ministry of Health this morning is arguing for a carve-out for commercial health care at the very time they are commercializing home care and community care. If they were concerned about the integrity of the health system, they would be supporting privacy. They are the bidders and the spokespersons for commercial interests, and it's quite ironic but quite hopeful to see the industry department protecting the consumer. It's hard to get a sense of who's coming from where. This is unbelievably ironic that the system is being put up for bid. We don't know the implications of the commercialization, but we do know we need protection—in a sense even more so—when you're putting it up for private bid.

How dare you say we're going to carve this out? You never argued that you were going to carve it out of the free trade agreements. That's outrageous, and it's obvious what you're doing.

The Chair: Mr. McBane, could you stick with the questions of Ms. Wasylycia-Leis?

Mr. Michael McBane: In terms of protection and commercialization, we do support the strengthening, and of course we do need specific legislation from Health Canada. We have some reservations on the CMA code in terms of protecting patients from doctors, but that's another matter.

Ms. Judy Wasylycia-Leis: Mike, you've raised some concerns around some developments that are happening provincially, not the least of which is what happened in Manitoba. And I can tell you that there is massive concern in my province around the fact that the provincial government handed over responsibility for the collection and disbursement of health information to the Royal Bank, which in turn sold a 51% stake of that company to a Texas-based electronic data company. It might be getting into provincial jurisdiction, but I wouldn't mind some comments on that.

You also—I didn't know this—mentioned the fact that the head of SmartHealth is now on the federal Minister of Health's advisory council on health infostructure. What does that say about where this government, or at least the Minister of Health, is intending to take the whole question of health information?

Mr. Michael McBane: Very briefly, there's a disturbing trend in Health Canada. In several areas of the department they've identified industry as their client, and we're worried that they've identified the banks and the insurance companies and the drug companies as their client. We also have word that they're working on direct-to-consumer advertising for drugs, which is a horrendous impact on health policy. If you're serving your industry as your client, there are some major concerns about why Health Canada is not protecting the integrity of health information and the integrity of health research before it enters into any partnerships.

• 1050

In terms of provincial legislation and the sense that there are very big weaknesses in provincial privacy legislation, thank God we have a federal government, that's all I can say. Sometimes we need a federal government to come in when there are gaps. You have to have accord referral if there's something that's not getting fixed provincially. Also, what do you do with transborder issues? They're federal. Of course the Constitution also has powers in commerce and trade, so obviously there's a major federal stake here. When there are gaps provincially, I'm glad to see that this bill will bring up the provincial standards.

The Chair: Thank you.

Last question, Ms. Wasylycia-Leis.

Ms. Judy Wasylycia-Leis: Thank you.

All the panellists have touched on this issue of a need for a more broadly based policy from this government. The national forum on health recommended very clearly a publicly accountable, nation-wide, health information system. I know time won't permit an answer from each one, but if a couple could at least answer what that means—

The Chair: You'll have to direct it to one or another. It's your last question, so I can't allow you to ask all six of them.

Ms. Judy Wasylycia-Leis: Okay, let me me address it to CIHI then. What does that mean, and where do we go in terms of promoting this notion?

Dr. John Millar: It goes back to my previous comments around the road map, which is in fact designed to enhance the accountability structures across the country. They include enhancing the information flow regarding hospital utilization, pharmaceutical utilization, ultimately all aspects of the health care system, in addition to being able to report on whether the whole thing is making people healthier or not. That's the intent of this accountability structure. As I've already said, the current wording of the draft legislation will be an impediment to implementing that, and we think it needs amendment.

Ms. Judy Wasylycia-Leis: Thank you.

The Chair: Madam Jennings, please.

[Translation]

Mrs. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): Mr. McBane, I much appreciated what you said regarding federal and provincial jurisdiction in the areas of trade and health.

Mr. Sharpe, I would like you to imagine that I am a first year law student. My first course is on constitutional law. You are my professor and you are trying to explain to me in which areas there would be federal-provincial jurisdictional overlap.

[English]

Mr. Gilbert Sharpe: It's been a while since I taught at the law school here in Ottawa, and constitutional law was not my specialty. However, I'll do my best.

In terms of my understanding of the split in jurisdictional powers—and I should say this to my colleague who seems quite incensed that our presentation is supporting protections in the privacy of health information area that are much higher than what is in Bill C-54 goes—we are simply arguing that this is a matter for provincial regulation. It is critical that there be consultations with all of the groups that we've talked to, including all the consumer organizations. However—

Ms. Marlene Jennings: Mr. Sharpe, could you be precise?

Mr. Gilbert Sharpe: Yes.

On the issue of constitutional split, health care, health care delivery, and the by-products of health care delivery clearly are a matter for provincial regulation. Some of the major by-products are the method in which the money spent on health care delivery is managed; whether or not there is fraud so that money is being wasted; how records are kept and managed; how information flows in order to provide evidence of the health care services that have been provided; and matters of that sort.

[Translation]

Ms. Marlene Jennings: Inside the same province?

[English]

Mr. Gilbert Sharpe: Yes, within the territory of one province, that's correct. The legislation we're crafting is designed in Ontario in order to regulate the privacy and disclosure of health information and to deal with abuse, accountability, and efficiencies, and good care and good treatment.

[Translation]

Ms. Marlene Jennings: Inside the province of Ontario. As a constitutional law professor, explain to me who has jurisdiction once this information crosses a provincial border or the Canadian border.

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[English]

Mr. Gilbert Sharpe: Because it is derived from provincial health information, again there is arguably a need. We do that in our proposed legislation in order to ensure that we cannot disclose information to another jurisdiction unless that jurisdiction has similar protections to what we have.

There is a role for the federal government as well. I believe strongly that this is where we are looking at the cooperation between the federal and provincial levels of government, through Health and Welfare.

Madam Chair, I apologize if I gave the impression that there was no consultation on Bill C-54 with the provinces, because there was. One of our departments met with your department, but that was Consumer and Commercial Relations because they were trade and commerce discussions. In the Ministry of Health, we did not believe it was a health-related bill until very recently. That was the problem, and that was the concern that we had. So, yes, there has been very good cooperation with industry and the provincial departments, but not Health and Welfare and our Ministry of Health. That was the concern.

The Chair: If you don't mind, Mr. Sharpe, it's called Health Canada. It has been since 1993.

Mr. Gilbert Sharpe: Yes, Health Canada—

The Chair: It's not called Health and Welfare any more. That's just to bring you up to date.

Mr. Gilbert Sharpe: Okay, sorry.

In any event, the problem is that Bill C-54 applies within the province—

[Translation]

Ms. Marlene Jennings: Mr. Sharpe, may I interrupt?

You are saying that health is a matter of provincial jurisdiction within the limits of one and the same province, but that as soon as the information is used in the context of a commercial activity or is transferred beyond a provincial border, it should come under federal jurisdiction. Have I understood correctly?

[English]

Mr. Gilbert Sharpe: No, I believe—

[Translation]

Ms. Marlene Jennings: Perfect, perfect. You said no. That is fine.

[English]

Mr. Gilbert Sharpe: Okay, not necessarily, is the answer.

An hon. member: Oh, oh!

Mr. Gilbert Sharpe: I'm a lawyer.

[Translation]

Ms. Marlene Jennings: Therefore, the answer is maybe yes, maybe no. Is that your answer?

[English]

Mr. Gilbert Sharpe: Yes.

[Translation]

Ms. Marlene Jennings: I imagine that it would depend on the circumstances.

[English]

Mr. Gilbert Sharpe: I believe it depends on the circumstances, yes.

[Translation]

Ms. Marlene Jennings: I have another question for you, but the time at my disposal is limited, as the chair has several times explained.

If I am not mistaken, only one of the witnesses before us today is asking that health be exempted from this bill. None of the other witnesses is asking for this. I'm sorry, but I'm being told that there are two. The others aren't asking for an exemption, but they would like to see some provisions of the bill refined.

Mr. Sharpe, I am coming back to you now, but Ms. Willems might wish to answer as well. Subsection 27(2)(d) deals with the exemption of an organization, a class of organizations, an activity or a class of activities when there is provincial legislation that is substantially similar. Either you haven't read this clause or you find that it isn't reassuring enough. I would like you to explain to me why this provision doesn't satisfy your needs.

Mr. Sharpe, you talk about harmonization. I believe that with this clause this bill allows for harmonization.

[English]

Mr. Gilbert Sharpe: That's an excellent point, and I'm grateful you've raised it.

The difficulty is with the language “substantially similar”. We have been advised by federal bureaucrats informally, and in some documents that are available, that because of the number of exemptions that we have to consent, it is unlikely we would be given the exemption. The problem is that as we develop laws in the province through this consultation process that began in 1996, if we develop the laws to apply within the province, within our jurisdiction, on the hope that in three years we might be given an exemption.... If we are not given that exemption, then we have a confusion for commercial health and non-commerical health. That doesn't make sense, because health is health. Health records and health information should be dealt with in one vehicle and in one piece of regulation.

• 1100

This would create more confusion and concern. That's the concern and these are the worries we have, because we've already been told that our exemptions—which have been carefully worked out with our information and privacy commissioner and with many providers and consumers—would not meet the test of “substantially similar”.

Ms. Marlene Jennings: On the commercial side.

The Chair: I think you wanted Ms. Willems to answer as well.

Did you have a comment? No?

Okay, go ahead, Ms. Jennings.

Ms. Marlene Jennings: On the commercial side.

Mr. Gilbert Sharpe: It's commercial activity, but we don't want to differentiate between commercial and non-commercial health care information—

An hon. member: Oh, and why's that?

Mr. Gilbert Sharpe: —to providers. As patients, it's all relevant and important.

[Translation]

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: We have read the exemptions.

Given that health is of prime importance to Canadians and that the same goes for the protection of personal information, we believe that these exemptions musn't come through the back door and that a bill such as this isn't the ideal instrument.

We believe that the protection of information must be provided by a distinct act that has nothing to do with trade information, health or anything else.

This is why, even if there are exemptions, it is our belief that this isn't the right way to go about things.

[English]

The Chair: Okay, thank you very much, Madam Jennings.

We are already starting to go over our allotted time. If our witnesses are willing, we'd like to go through a second round, which will take us probably about a half an hour. If the witnesses are able to stay, we will continue. Is that okay?

Ms. Meredith.

Ms. Val Meredith: Thank you, Madam Chair. I'm pleased to get a second opportunity.

I want to clarify something in my own mind. I understand that the Province of Quebec has legislation that protects privacy in the health care industry, does it not? Ontario has a pending bill. Are the other provinces also already looking at this issue, and do the other provinces have legislation like what Ontario is coming up with and Quebec already has in place?

Ms. Halyna Perun: Actually, Manitoba has legislation. The Personal Health Information Act is already in effect. Alberta and Saskatchewan are at the end stages. Alberta introduced a draft for consultation, and Saskatchewan has developed two sets of drafts for consultation and is working toward introduction.

Ms. Val Meredith: So the Government of British Columbia and the Atlantic Canadian provinces would probably be the only provinces that do not already have something on-line that would take the place of this particular legislation?

Ms. Halyna Perun: We don't really know exactly whether or not they're proceeding as quickly as the other provinces, but all of the provinces are involved in the harmonization of health information legislation that is currently underway between the Health Canada and the provinces and territories.

The Chair: Dr. Millar, did you wish to respond?

Dr. John Millar: British Columbia definitely has in place privacy legislation that we operate under in our operations.

Ms. Halyna Perun: British Columbia has public sector information legislation that actually captures hospitals and other health providers. It doesn't have specific health information legislation, but its government legislation is a bit broader than Ontario's.

Ms. Val Meredith: So it would be fair to say that the provinces are at least working with Health Canada in providing what this act is trying to do, and that there is a partnership or cooperation between the provinces and the federal government in trying to address this issue that you people here today are trying to address. Then I ask you if you feel that's a better way to deal with this. Is it better to allow Health Canada to continue that process, or is it the feeling that this act can at least apply to some aspects of the issue in the short term, that Health Canada, with cooperation from the provinces, can come up with provincial legislation that would look after after this issue?

• 1105

The Chair: Who are you addressing that question to, Ms. Meredith?

Ms. Val Meredith: Again, I think they should all have an opportunity, particularly the Canadian organizations. I'd also like to hear from the Ontario government, from Mr. Millar, and from Ms. Willems.

The Chair: I'll ask them all to be brief, beginning with Mr. Sharpe.

Mr. Gilbert Sharpe: Very briefly, yes, I know. Sorry, Madam Chair, that has been a problem of mine.

I believe it is possible in continuing to work with Health Canada. We had discussions with Health Canada a couple of years ago about putting this on the agenda for the uniform law conference. It's an organization of provinces, territories, and federal government law reform commissions that seek to come up with uniform provincial laws. We've done it in the organ transplant area and mental health. There are also other examples, and I think health information legislation and privacy is one such example. We have to work with Health Canada and have not an either/or situation, one that's either federal or provincial, but complementary health information privacy legislation.

I think there are some legitimate roles for the federal health department to look at, such as matters of research across the country, federal grants for research, and issues of that sort. There may well be some complementary areas in which we'll say we'll cover these matters within provinces while dovetailing our privacy protections and our enabling management legislation with federal health and welfare legislation. I'd love to be part of that initiative.

Ms. Val Meredith: But is that not already happening?

The Chair: No, Ms. Meredith, you can't ask a question of each one and then interrupt.

Ms. Lucock.

Ms. Carole Lucock: I certainly think it's important that health information is given the same protection across the country, along with very strong privacy protection of patients. That's certainly what we believe, and we believe that our patients believe the same thing.

Certainly there are pieces of legislation that have been passed at the provincial level, but we don't feel they adequately protect patient privacy, so we do have issues with them. Additionally, they're not all the same. There's a patchwork of various initiatives across the country. To believe that everybody's going to come up with exactly the same legislation, provincially and federally.... It may happen and it would be very desirable, but we're not sure whether it will happen or not.

The Chair: Dr. Millar.

Dr. John Millar: I think the question was whether or not there is another way of doing this rather than proceeding with this bill, and I think the answer is that there is not. I think this is the right way to go. We should proceed with getting this done because of the patchwork that's out there, and because the patchwork doesn't cover interprovincial movements of data and so forth. So my answer is that this should go ahead.

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: It should go ahead with very well defined commercial information in mind. As we've seen earlier, we can't really separate health and commercial at this point, and I think that's what needs to be addressed critically by this committee.

From our brief and from our recommendations, what we are saying is that there needs to be collaborative effort between Industry Canada, Justice and Health, to come up with the appropriate tool to protect privacy in Canada.

The Chair: Mr. McBane.

Mr. Michael McBane: We would strongly support that the bill go ahead with strengthenings and improvements. Obviously, we would also encourage Health Canada to bring in legislation to distinguish research in the public interest from commercial activities, but that's not really your job.

The Chair: Thank you.

Dr. Speers, do you have any comments?

Dr. Richard Speers: I feel like the last of the tobacco lobbyists here.

I think we're supportive of a federal initiative, simply to prevent a data haven from being established. We have enough documentation, and we would like to see it enshrine patient ownership and control of the information. To quote one of the privacy commission reports, don't let health records become a spectator sport.

The Chair: Thank you.

Members, this is really only going to work if we ask brief questions and get brief responses. Keeping that in mind, we'll go to Mr. Keyes.

Mr. Stan Keyes: Thank you very much, Madam Chair. I'm just glad to have the second opportunity, because I want to finish up with Dr. Speers.

Some hon. members: Oh, oh!

Mr. Stan Keyes: Correct me if I'm wrong, Dr. Speers, but you gave me the impression that what you really have a spat with here is not necessarily Bill C-54, but the insurance company and its forms.

Dr. Richard Speers: We've used the insurance companies as an example.

Mr. Stan Keyes: So there are others?

Dr. Richard Speers: This is the one with which we have the most expertise. I could use Revenue Canada as another, perhaps, but they're outside of the CSA mandate.

Mr. Stan Keyes: I have to agree with Dr. Speers, Madam Chair, in that in the way in which we currently do business, what we do is create a vacuum in which Dr. Speers and dentists across the country have problems with insurance companies. Now, with this bill, I would expect that Dr. Speers is going to jump up on his chair and cheer, because now he'll be able to take his complaint, or vice versa, to a third party, called the privacy commissioner. He has a problem with this situation, therefore now he has a third party to deal with it. Is that correct?

• 1110

Dr. Richard Speers: As long as the next privacy commissioner doesn't come from the insurance or banking or financial industry....

The Chair: Dr. Speers, you might want to know that the privacy commissioner is next on our witness list, and he's here. I thought I would let you know that.

Mr. Stan Keyes: He's neither a banker nor an insurance man.

Dr. Richard Speers: Right now we have a very strong and independent privacy commission, but that could change with the political will.

Mr. Stan Keyes: Okay, your exception is noted. But aside from that, you think this is your opportunity, really. This is an opportunity for you. This is the third party you could arrange through.

Dr. Richard Speers: It could very well be.

Mr. Stan Keyes: All right. Good.

We're going to go back to Mr. Sharpe again. Do you know what, Mr. Sharpe? I have some problems with what you're talking about here today. I'm not a lawyer. A lot of people congratulate me on that. The chair is a lawyer.

You have commented in your brief that the federal government is proceeding with Bill C-54, which would impede health care delivery, planning, and management of the health care and research. That's a very strong statement. Yet paragraph 27(2)(d) does say that if satisfied that legislation of a province that is similar to part 1 applies to an organization, a class of organizations, an activity, a class of activities, and so on, they will be exempt. Therefore, the provincial legislation will take dominance.

Then you say there's a problem with that—and correct me if I'm wrong—because there are a number of exemptions in the provincial legislation that are not to be found in the federal legislation, Bill C-54.

You said that health is health, but don't some of us have to question that for doctors there's a little bit of commerce involved in this situation as well and that's what we're talking about when we speak of exemptions in provincial legislation? Wouldn't Bill C-54 be much stronger, which is contrary to what you believe, because you believe the provincial legislation is stronger? Wouldn't the federal legislation be a lot stronger because it does not provide certain exemptions for the CMA and doctors, and in fact doctors have many opportunities of commerce that may be exempted that will not be exempted under this legislation?

Mr. Gilbert Sharpe: I suppose it becomes a matter of what you consider stronger. The concept of having fewer exemptions means that there are fewer opportunities to share information. Some will applaud that and say sure, let's just get consensus; that's the concept of Bill C-54. However, what we've been told by providers in Ontario, doctors and others, is that this will create a negative effect on the ability to care for people. So what we've tried to do is craft provincially legislation that would permit the continuity of services and the sharing of services through smart systems and whatever mechanisms are developed with accountability.

Mr. Stan Keyes: Let's flesh that out a bit.

The Chair: Mr. Keyes, is this your last question?

Mr. Stan Keyes: Yes.

Let's just flesh that out a bit, and then I'll be quiet and Mr. Sharpe can answer.

For example, do members of the CMA, doctors, relieve themselves of patient information to other organizations or receive services in kind for information that is released?

Mr. Gilbert Sharpe: I really can't answer that.

Mr. Stan Keyes: Oh, I think you can. Okay, then let's go to a doctor's—

Mr. Gilbert Sharpe: Let me finish, if that's all right.

I certainly am aware of the role of provincial colleges of physicians and surgeons and that it's professional misconduct for physicians to disclose that kind of information and to engage in that kind of activity.

Mr. Stan Keyes: We don't have to go that far, though. A doctor's office operates and has information-sharing with drug companies. Drug companies do their surveys and do their work, and they need the information, which flows from the doctor's office, doesn't it?

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Mr. Gilbert Sharpe: If it's identifiable patient information without consent, that doctor could lose his or her licence to practise medicine. That's a very serious offence, and the peer process—

Mr. Stan Keyes: You're saying to me that if a drug company is dealing with the work that they do in surveys and examinations, and so on, and they put a computer in the doctor's office to accumulate the data they need on the particulars—and there are services in kind, where samples are given to the doctor's office—that drug company doesn't have access to the patient's information?

Mr. Gilbert Sharpe: If the answer is that they do have access to patient information without consent, then that's a matter for the regulatory peer colleges, and that would be dealt with very severely. That's not appropriate behaviour. Patient information is private and should not be disclosed.

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

[Translation]

Mr. Dubé, do you have any further questions?

Mr. Antoine Dubé: Yes.

I will leave aside the constitutional issue. Two aspects of the bill seem to be worrying some witnesses.

First of all, there is the fact that the standards are in the schedule. I imagine that you have read these standards. I haven't counted them, but I believe there are approximately ten. Since they are written in the conditional form, they say that one "may" do this or that, and some witnesses have stated that what we have here are recommendations rather than requirements.

Even the representatives of the Canadian Bar Association told us yesterday that provisions that are mandatory should appear not in the schedule but in the body of the bill itself.

The representatives from the Canadian Bar Association as well as other witnesses also drew to our attention another aspect that is quite uncustomary, namely that the schedule, which sets out the standards, could be amended by the Governor in Council. One must know that "governor in council" means that this will be decided upon by the Council of Ministers and will therefore not necessarily be submitted to the House.

We were also told that this would depend on what the commissioner wants. But what would happen if we have a new industry minister who is very much in favour of industry and trade and who decides to move things in a different direction?

I noted that Mr. McBane is very concerned about the protection of personal information. I fully understand because I share these values. But we must wonder if we should worry about these two issues.

We don't know what will happen after the next election. Even if we were to agree that the present minister is very capable in this area, a new minister might, on his own, decide to change this, either one way of the other. Do these aspects of the bill not worry you?

[English]

The Chair: Ms. Lucock, did you have a comment?

Ms. Carole Lucock: My comment is basically to say that to some extent we agree with you. We've stated that we think this is a good first step. We don't think the standards that are currently in Bill C-54, to the extent that they will apply to health information, are strong enough. That's basically the foundation of what we're trying to tell this committee.

The Chair: Mr. McBane.

Mr. Michael McBane: I think those are good points. I'm not sure why it's at the annex, and if it makes it weaker and more susceptible to political change, then obviously it should be moved to be strengthened.

Obviously we also very concerned that the penalties are not severe and the abuses can be enormous. If a senator can go to jail for fraud, a multinational executive systematically mining medical information should be put in prison, theoretically. So we want stronger penalties, and most importantly, we want the privacy commissioner to have the resources.

[Translation]

The funds and the staff must be provided, but the mandate for the carrying out of this work must also be defined. That is therefore another very important aspect. There are rights, but you must be able to enforce them.

[English]

The Chair: Dr. Speers.

Dr. Richard Speers: I think Mr. Dubé makes a wonderful case for minority government, but notwithstanding that, the past Minister of Health in Ontario attempted to run the omnibus bill through. Both the outcry from the public and a very eloquent information and privacy commissioner certainly dealt with how bills can be run through the House.

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So I certainly appreciate where you're coming from, but the wonderful thing in this country is we can dissent and we can reach out to people such as yourself, so hopefully the system will protect us from that.

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

Madam Barnes.

Mrs. Sue Barnes (London West, Lib.): Thank you, Madam Chair.

I apologize to the witnesses. I had a conflict earlier, but I have prepared for your coming for a while, so I'm pleased you're here.

Just as a point of information, I would also like to add to the discussion today that the white paper consultation on this bill was out in the public domain in January 1998, and as the Ontario representative has said, the uniform law conference did have this on their agenda last summer, and I know the Ontario government was in attendance.

Over a hundred bodies did reply in response to the consultation, and being consulted doesn't mean we pick up the telephone and phone you individually. There is a system in place, and I know industry officials travelled the country with open meetings last summer on this bill. So with that in mind, my concern has to do with commercial exploitation of health data information. For instance, at CIHI I understand you have about 14 databases respecting health. Is that a correct statement?

Dr. John Millar: We have a large number, but the precise number I can't say.

Mrs. Sue Barnes: And do you sell some of those for commercial enterprise, to commercial...?

Dr. John Millar: No.

Mrs. Sue Barnes: Never?

Dr. John Millar: No.

Mrs. Sue Barnes: Does any of the information you have...? Well, you've already stated it today, so I'll just restate that it does cross borders—

Dr. John Millar: Absolutely.

Mrs. Sue Barnes: —at least inside this country, and potentially elsewhere.

Dr. John Millar: Inside the country.

Mrs. Sue Barnes: But the people who obtain that information could then use it in some other manner you have no control over to transmit it across further borders?

Dr. John Millar: Not with identifiers, no.

Mrs. Sue Barnes: But it does happen without identifiers?

Dr. John Millar: With aggregate data, of course. There's no identified data.

Mrs. Sue Barnes: Thank you.

Let's say I'm a patient who has cancer or a heart condition and I suspect the reason I've lost out on promotions in my career is because I suspect that some information in my data has found its way into some record within my own company. And maybe after I've lost a couple of promotions I figure that there's nothing for me at this company, so I'm going to look for a job elsewhere. Then I find I can't get a job elsewhere, because maybe somebody inadvertently has said something about my medical condition, which they know about because it's in my personnel files.

Right now in Canada—let's take this to Mr. McBane—who do I turn to for help?

Mr. Michael McBane: I think it's a good question, and most Canadians don't realize how vulnerable they are to abuse by health industries. I may be wrong, but I suspect CIHI does sell information to insurance companies. In fact you don't get anything out of CIHI until you pay. It's a payer access.

Dr. John Millar: That's incorrect, Madam.

Mr. Michael McBane: And the people with money are the industries.

Mrs. Sue Barnes: I'm not interested in allegations right now. I'm just the poor guy on the street who's very talented, I'm forty years old, I have a family to support, and all of a sudden I find I'm dead-ended in my career because what I thought might have been personal information on some personnel file is now affecting my ability to earn a living.

The Chair: Ms. Willems.

Ms. Noëlle-Dominique Willems: What you need to know, for example, on the case you're raising is that there is very strict legislation and rules that govern that kind of information going from, for example, a pharmacist—and I will take that example since that's the one I'm most familiar with—to an insurance company. Your employer does not have access to that data. So if you suspect that either your pharmacist or your physician has been the one who has been blabbing, then there are recourses through the colleges.

Mrs. Sue Barnes: Thank you.

I understand today a lot of people are telling me there is proposed legislation and there is existing legislation. I'll take the example of Manitoba raised by my colleague. The Manitoba bill doesn't cover the private sector, pharmaceuticals, sports clinics, or insurance.

In fact I'll make one statement. I understand that in Ontario we're bragging today about the privacy protection in mental health. I can tell you, in my prior life I had opportunity, because of a special role I had, to examine medical files of mental health patients, and in those medical files I found examples of hearsay. In fact, I found newspaper clippings in people's medical files.

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So I am very concerned, despite very well-intended legislation, that there can be a substantial potential for abuse in this system. That is why the baseline has to be made across this country. I will say I invite every province and territory in this country to start with strict privacy legislation.

But in the meantime, I can tell you that the process through a uniform law conference takes years and years, and there's nobody at this table who would dispute that. I can tell you that while other provinces and jurisdictions get their act together and start moving forward, the federal government, I think, has good reason to act. I would ask if any one of you could, in good conscience, say to this committee that we should take away the tool of the federal government in a legitimate trade and commerce power today. I think of tons of examples. For instance, we're going to see....

I think I've made my point. Thank you.

The Chair: Dr. Hutchinson, do you wish to reply?

Dr. Susan Hutchinson: Yes, thank you.

I think the CMA acknowledges and recognizes your concerns with regard to health information. We believe that Bill C-54 is appropriate and will include health information, and as a consequence has the opportunity to be amended to ensure protection of that health information on both a federal and international basis. This legislation is timely. It's appropriate. It has the opportunity to protect patient information, and that is essential to us as Canadians.

The Chair: Thank you.

Dr. Speers, could you be very brief?

Dr. Richard Speers: I'll be very brief.

I think the scenario you described is exactly what we've been saying for years as an organization. In the scenario you show, you've lost both control and ownership of your own data, and this is exactly what we're trying to address. It frightens me when people agree with me, but I think we're on the same song sheet.

Mrs. Sue Barnes: Even politicians do—

The Chair: I'm sorry, I have to limit what happens next. I apologize to those members who are still waiting to ask questions, but I'm going to allow each member only one question. I have Mr. Jones, Mr. Shepherd, and Ms. Wasylycia-Leis. You have one question, please.

Mr. Jim Jones: This is a question I've asked before. Many witnesses have asserted that the privacy commissioner's power of investigation and audit under subclauses 12(1) and 18(1) are excessive. They referred in particular to the commissioner's search and seizure powers under these clauses. Do you share the belief of many that the commissioner should be required to obtain a court order prior to exercising his search and seizure powers?

The Chair: Ms. Lucock.

Ms. Carole Lucock: The focus of our presentation has not been that specific, so I couldn't possibly answer that right now.

Dr. Richard Speers: We would not be supportive of any measure that violates the Canadian Charter of Rights and Freedoms.

The Chair: Okay, thank you, Mr. Jones.

Mr. Shepherd.

Mr. Alex Shepherd: I'd just address the CMA on a point of clarification. I couldn't quite understand what you were saying in the sense that you seem to support the concept of a carve-out. You do not support the.... Okay, so you want to be covered by this legislation, correct?

You stated your concern about the privacy of medical records in doctor's offices and so forth, and you stated that your standards are much higher than those provided in this act. So that doesn't concern you, right?

Ms. Carole Lucock: It concerns us that if not amended, the bill, as it's currently drafted, would not give adequate protection to health information. That's what we think. So like you, we've used the Canadian Standards Association as our model. You may want to speak to the federal privacy commissioner, and I understand you're going to speak with him. He's called our code a Hippocratic oath for the information age. So we've not worked in isolation from other stakeholders, and we've worked very closely with the privacy commissioner.

We think what we've developed is very much protecting patient privacy and the confidentiality of their information. We don't believe this bill goes far enough at the current time, but it could be amended to appropriately safeguard patient privacy.

The Vice-Chairman (Mr. Eugène Bellemare (Carleton—Gloucester, Lib.)): Merci.

Madam Wasylycia-Leis.

Ms. Judy Wasylycia-Leis: Thank you very much.

I'd just like to follow up with a question from what Sue Barnes has mentioned around CIHI, and this is an important issue because CIHI's name keeps coming up with respect to Health Canada's scheme around the health information highway.

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We've heard different opinions here this morning. Mike from the coalition has said there's a problem in terms of true public accountability and no connection to any commercial interest. You seem to be saying the opposite, John. I would like to hear from both of you about what the actual situation is with respect to this as an appropriate vehicle for health information systems.

The Chair: Dr. Millar.

Dr. John Millar: What are you asking exactly?

Ms. Judy Wasylycia-Leis: What we've talked about before is the need for a health system to be administered by a publicly accountable body. Sue Barnes' question gets at whether or not CIHI is that appropriate body. Since your name keeps coming up with respect to Health Canada, we need to get clarification on that. I need you to address what Mike McBane has hinted at.

Dr. John Millar: I thank you for asking that question and for the opportunity to clarify. The institution has been set up by the government as an independent body. It reports to the federal-provincial-territorial conference of deputy ministers of health and has been identified by them as the conduit through which the road map will be administered.

It will be administered as a collaborative effort between the institutes, Statistics Canada, and Health Canada. All three major agencies are identified in that. It will operate probably under a memorandum of understanding to clarify the differential roles of those three organizations. The accountability structure is such that the data on health care utilization expenditures, manpower, and other data sources come into the organization, are standardized, and are made available in reports that are the mechanism of that accountability process.

There is absolutely no commercial enterprise in the sense that our data are made available for money or for any other purpose to commercial enterprises like insurance companies, drug companies, or anybody else. The data are shared from time to time with Statistics Canada, with Health Canada, and with bona fide research organizations within this country. Sometimes that is done at cost, because there are processing costs to do that, but it's not done for profit. It's done at cost and not for anybody's commercial profiting.

The Chair: Thank you very much, Dr. Millar.

Ms. Jennings, one question, please.

[Translation]

Ms. Marlene Jennings: My question, that you may answer by yes or by no, is the following: do you believe that an amendment to the bill to ensure the primacy of this act in matters of personal information protection would be an improvement, if there were only two exceptions provided for: in the case where the protection granted by another act would be greater and where the protection standards would be better, or in the case where the other piece of legislation contains a notwithstanding clause?

I was born and educated in Quebec. Mr. Sharpe, I would like to know when the government of Ontario became secessionist. That is all.

[English]

The Chair: Dr. Speers.

Dr. Richard Speers: I'm sorry. I was lost on the successional government part of it.

The Chair: Mr. Sharpe, the first part of the question.

Dr. Richard Speers: A simple amendment is going to be enough to address the health issues. I don't think I can answer you better than that.

The Chair: Okay. Thank you.

Mr. McBane, do you have any comments on her first question?

Mr. Michael McBane: No.

The Chair: Ms. Willems.

[Translation]

Ms. Noëlle-Dominique Willems: I would like to come back to my original answer, which was that we musn't try to use this bill for a purpose it wasn't intended for. Therefore, it would be better to work on something that the health and justice communities would adhere to so as to have a valid instrument for all Canadians.

[English]

The Chair: Dr. Millar.

Dr. John Millar: We think this bill could work with an amendment. So the answer is yes, but not with the wording you used, because if it was amended to have to comply with the same rigour, it would impede the flow of information in the current environment. Our operation would need some consideration.

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The Chair: Dr. Hutchinson.

Dr. Susan Hutchinson: No. We feel that with those conditions we would not be able to ensure the high exacting standards for privacy that Canadians deserve.

Ms. Carole Lucock: Just to add, I think Dr. Speers really said it, that it's more complex than a yes or no answer.

The Chair: Okay. Mr. Sharpe.

Mr. Gilbert Sharpe: We would like to see health legislation, not trade legislation, deal with health care—federal, provincial governments working together. Ontario supports cooperative federalism with the provinces. That's what we want. We don't think a trade bill with exceptions or without is going to do it.

The Chair: Thank you. I want to thank our witnesses for being here. This committee is recessing for five minutes. We have a working lunch. Five minutes, and we're going to change witnesses at the table.

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The Chair: I'm going to call the meeting back to order.

I want to first apologize to the privacy commissioner for the delay in our first round of witnesses this morning and thank him for his understanding and patience. We welcome him here this morning. We do appreciate your meeting with us again. We appreciate your commentary and your replies to our letters and our questions throughout and your input throughout.

So, Mr. Phillips, we're very pleased to have you here and we look forward to what you have to say.

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Mr. Bruce Phillips (Privacy Commissioner of Canada): Thank you very much, Madam Chair. No apology is necessary. What prisoner ever objected to having his time on the rack reduced? But I'm glad you did give us a little extra time this morning, because I suspect that this discussion may take a little time.

I don't have a long prepared statement this morning. My views on the generality of this issue are well known, and they are on the record before this committee. However, I would like to say that in going over the evidence of all the witnesses, I'm very pleased to note that—since we staked out our colours early about the bill, that we support it—I have not heard any witness come before this committee to say that this bill is a bad idea in its concept and in its principle. There have been lots of suggestions for amendments, and some of them we accept and some we don't.

I'd just like to go over a few of the specific things we would like to see the committee have a little longer look at. I've touched on some of them in a letter I addressed to you, Ms. Whelan, which has now been distributed to your colleagues. The first one is in clause 2, and that's the definition of “commercial activity”.

I think that after listening to some of these other witnesses—and I wish now I'd heard more of this morning's session—it supports our concerns about commercial activity and the absence of a bit more precision in what is meant by commercial activity. I know the department has tried to improve that, but essentially what they've done is say the same thing in different words.

The issue of commercial activity does touch such things as health information. In our own councils we have been attempting to decide how much of the whole spectrum of health information is captured by this bill, and there's some doubt in our minds.

I think the definition of “commercial activity” should be expanded to make sure that professional associations and non-profit organizations are covered as well, if there is any consideration involved in the work they're doing. For example, when a charity buys a list of potential donors, is that a commercial activity, yes or no? When a lawyer draws up a will for a fee, is that a commercial transaction? We ourselves are not entirely certain, and we would like to see those things straightened out. I think that would help a lot when it comes to questions about health information, for example.

I am grateful to the bill's drafters for changing the definition of “personal information”. It has been decidedly improved. Previously, it only referred to personal information that was recorded in some form. That qualification has now been deleted. Personal information is now anything that relates to an identifiable individual, and it would allow this legislation to cover such things as surveillance cameras, cameras in washrooms, that kind of thing. That's a decided improvement.

In clause 3 there has been a reasonable person element inserted into the bill. We've had a lot of discussion about that. What is a reasonable person? One definition offered to me by one of my staff was the Clapham Junction test. Does that mean anything to anybody here? In Britain, apparently, there's some jurisprudence that a reasonable person is a person you would ordinarily find on the bus to Clapham Junction. I don't know what we'd call it, perhaps the Sparks Street test. But we're not sure that is as clear as it ought to be.

Paragraph 7(1)(d) is something that I think needs another look. An amendment to paragraph 7(1)(d) permits the collection of information that is publicly available and specified in the regulations. What is publicly available and what is not can be a matter of enormous contention and endless argument. I think that language needs to be refined.

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For example, let us take a public registry, a municipal tax roll. Is that publicly available in the sense that it is easily available to everybody? You can go down to the tax office to see what it says. But should somebody who is in the business of doing mail-outs be able to buy that whole database so that they can send you marketing information, or should they be able to look at the tax roll and marry that up with other information available to them that would give them a better profile of what kind of income you have because of the house and the neighbourhood you live in and so on and use that for marketing purposes? I think not. That is not the purpose.

So there has to be a consistent usage factor built into some of these public registries. I don't think the bill is clear enough on that point.

In paragraph 7(3)(f), disclosures for research, there is an amendment here that is an improvement, but I think the type of use and disclosure to the studies that are referred to in subclause 7(3) should be confined to those that can reasonably be achieved using non-nominative data. There's a good deal of scientific and academic research that doesn't need individuals' names to draw conclusions. So it should prevent any further disclosures of information in a form that would identify individuals.

What's missing here is some principle of finality. If I get some information to do a research project and I have obtained it on certain terms guaranteeing some respect for the privacy of the information, I should be precluded thereafter from some subsequent use to some other party.

Let's talk about fees in subclause 8(5). It has always been the position of this office, and I think it is the position adopted by privacy commissioners everywhere, that people should not have to pay to have their right to privacy respected, and they do not under the federal Privacy Act. For any complaint, any request, any contact we have with any client or complainant, there is no charge associated with it. I do recognize, though, that business is different and there may be some costs incurred in meeting their obligations under the act. They may have to devote an employee's time to searching the files to develop the information.

But where in here is there some reasonable limit to the establishment of fees? It does say in the schedule that access would be at minimum or no cost to the individual, but the word “minimum” is not defined. I don't know if that's repairable, because it would require probably a change to the schedule as well at this stage of the game. I'm just advising you that I see this as a flaw. If successive commissioners see excessive fees being used as a barrier to people's access to their information, this committee should be advised at once, and it may be a question you want to ask when you come to examine future commissioners on how well this bill is working.

Clause 14 has to do with court hearings. I want to say at the outset with regard to courts that to us that is decidedly a last resort. The essence of this bill is its ombuds approach when it comes to enforcement and oversight. I have asked for this. The Department of Industry, after a good deal of thought, has agreed with our position that the ombuds approach offers the simplest and most effective way of handling complaints. It has been our own experience in dealing with a fairly tough bureaucracy that we can settle most of these things without ever having to go to court. I think I mentioned in my previous testimony that we've had to go to court less than a dozen times since the office was established.

But we have to have the right, and we have to have the right to go not only on behalf of a complainant but also on behalf of any issue the commissioner himself or herself sees might require the adjudication of a court, some systemic problem that is posed by an information management process.

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The amendment the department has brought in here does seem to answer the problem, but it is cumbersome. As originally drafted, it seemed to suggest the commissioner could not go to court without a complainant. It's now been refined to the point where the commissioner has to initiate his own complaint and then, on behalf of his own complaint, he can go to court. In other words he has to investigate, report to himself and the organization, and then seek the permission of the court to adjudicate. I think that's a little cumbersome.

I would like to spend just a second or two on clause 24, the educational mandate clause. I am very happy to see this committee and almost all witnesses have recognized the enormous importance of this clause. I've heard a number of witnesses say that in the long run the best defence of privacy is an informed public that knows what it's doing, when it's dealing in its personal information with the business, bureaucratic, and government worlds. That's a position I think is so self-evident it doesn't need any elaboration by me.

But the present state of general public knowledge is lamentable. It really needs a lot of time and attention devoted it. Let us not kid ourselves that this is going to cost some money. Public education takes dollars. Real dollars do real things. Please include in your report a recommendation that the departments involved ensure that the commissioner will be given adequate resources for this purpose.

Finally, and I mention this only en passant now because I think the problem is on its way to solution, I was very concerned with clause 25 in the original bill, which granted the Minister of Industry, subject to cabinet approval, the power to delegate the privacy commissioner's duties to a provincial commissioner or a similar provincial official. I objected to that. I felt it seriously undermined the independence of the office and could expose the commissioner, in his or her function, to unwanted pressures perhaps through the political arm or the commercial arm. That has been taken on board by the drafters and I think they're going to fix that.

That concludes the clauses of the bill to which we wanted to make specific reference. I'm happy now to entertain questions. Thank you.

The Chair: Thank you.

Ms. Meredith, do you have any questions to begin?

Ms. Val Meredith: Yes. You have obviously had some input, and I assume the government has responded to the input you had originally. Do you feel the amendments that have taken place will be enough to satisfy your interests as the privacy commissioner, or do you feel there still needs to be some massaging, if you will, of some of the areas where you have indicated you still have a concern?

Mr. Bruce Phillips: If you are asking me what our principal remaining concern with this bill is, it would be the reach of the bill, in general terms. I think that can be partly addressed by improving the bill's definition of commercial activity. We are not sure how this bill stands in relation to non-profit organizations, and we're not sure how it stands in relation to professional associations. Some of those concerns were raised this morning by earlier witnesses, particularly in the field of their special interest, health information.

I want to make one tangential observation about that. Let us not forget, whether we're talking about health information or any other kind of information, that we're talking about personal information here. I was very glad to see organizations such as the CMA object to any notion of a general carve-out of health information from this bill. Personal information that takes place in the commercial world is our concern here. We would like to make sure the commercial world includes things such as non-profit organizations that indulge in some commercial activities involving personal information, and professional associations.

I think, subject to anything either my colleagues wants to say on the subject, that would pretty well satisfy us with respect to the reach of the bill. It's decidedly a question that has to be answered.

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If it's not answered by this committee, it will have to be answered later by a commissioner attempting to adjudicate complaints in the face of this ambiguity, which might make life difficult and lead to prolonged litigation. Let's try to avoid that if we can.

Ms. Val Meredith: You said in the past you haven't needed to go to the courts; you've been able to pretty much find some solution without going to litigation. Do you think this legislation will have enough teeth in it to offer the opportunity to sanction the inappropriate exchange of information without going into the courts?

Mr. Bruce Phillips: The pen is mightier than the sword in a matter of this kind. This was the subject of an earlier discussion about the powers of the commissioner. There were a number of witnesses and there was some discussion in the drafting of this bill, I'm told, that said the commissioner did not have adequate powers and should have the right to issue orders and function in the manner of a judge. I function in the manner of an ombudsperson. I can't order anybody to do anything. Nevertheless, in the course of eight or nine years at this, we have taken on board and solved thousands of cases. There are occasions when you have to get tough—absolutely. We have had lots of settlements at the courthouse door, if you like, from bureaucrats who didn't believe we were serious. But they have run up the white flag when we have dragged them as far as the courthouse door.

Most of the time the proper approach to privacy questions is a process of education, discussion, and examination of the information management system that's in question, to see where it's at fault and try to solve the problem, both for the individual and for the systemic issue that underlies it.

I think you can best achieve those ends through a non-confrontational approach, which is what an ombudsperson is expected to do. Yes, we have to stand in the shoes of the complainant, and where there is a doubt it should be resolved in favour of the privacy issue. But we are reasonable people. We've all been on the Clapham Junction bus, I guess, and we try to see where the appropriate balance lies.

I do not like the prospect of dealing with corporations that have deep pockets and plenty of lawyers to contest all these issues, when simple negotiation can probably produce a better, faster, more effective, and more long-lasting process. It would be, as I said on an earlier occasion, a simple matter for a corporation to say “We don't like your decision; we're going to appeal it and tie it up in the courts for years”, which might wind up with a fine of $5,000, which would barely cover the postage for 30 minutes for one of these mega-corporations.

But the commissioner, if satisfied upon very careful examination and review that they are unable to get the corporation to deal, can make a public statement: “Corporation X is not respecting the privacy rights of its customers and clients”. A public statement like that has far more weight than the long, tortured, legal processes that would be involved in tribunals, judges, orders—all of that stuff.

There are order-making models in Canada—most of the provincial commissioners operate that way—and a number of them are subject to numerous appeals. I think we want to avoid that. We want a situation here where we can talk to business and say “Tell us about your business. How does it work? How do you need the information? How can we help you do your business in a way that will respect this act?” That's our approach. It's always been the approach of this office since the day I walked in. I inherited it. I have a staff that is absolutely committed to that notion. It's much better.

Sorry to take so long, but I cannot overemphasize the importance of this difference.

Ms. Val Meredith: I have one final question. I know we're talking about the commercial aspect here, but do you feel there is any protection of an individual's personal information from the biggest corporation—government? Just quickly coming off my mind is Revenue Canada, as a big corporation that often uses, for commercial purposes, private information. Are they protected or covered under this act at all?

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Mr. Bruce Phillips: The federal government is covered by the existing Privacy Act, and I would say there are substantial protections and guarantees embodied in the existing act.

I would also say there are exemptive provisions in the act that allow departments to do things with information, which I think ought to be given a very hard look. That is particularly the case with respect to information-sharing agreements between and across departments and with other government entities, and so on.

You've opened another very large subject here, and I will try to deal with it only very briefly. The existing Privacy Act also needs to be updated and modernized, no doubt about it. It has not had any substantial amendment since it became law 15 years ago.

There was a review by the Commons justice committee in 1987, which made a very comprehensive study of the act at that time and made many sensible suggestions. Regrettably, almost none of them was acted upon by the government of the day. I would like to see that fixed.

So the answer to your question is yes, there is substantial protection in the act, but not enough.

The Chair: Thank you. Thank you very much, Ms. Meredith.

Ms. Jennings.

Ms. Marlene Jennings: Yesterday we had the Canadian Bar Association appear before us, and they, in response to a question, raised a concern, then retracted and said they would think about it first.

There was a question posed to them asking if the investigative powers—that is, the powers of search and seizure without warrant—given to the commissioner under paragraphs 12(1)(d) and 12(1)(f) weren't too widespread, and if there shouldn't be a limit where the commissioner should have to go and get a warrant. The bar association representatives initially said yes, and then retracted and said they would have to think about it before providing a definitive position from the bar. I would like to hear your comments on that.

The second issue, which the Canadian Bar Association itself raised, was the issue of the commissioner having the power to investigate a complaint concerning non-compliance with a recommendation within the schedule—that is a “should”, not a “shall”. The CBA was of the opinion that the privacy commissioner should not have the power to investigate “shoulds” because they're not mandatory, that it should only have the power to investigate “shalls”. I'd like to hear your comments on that as well.

Mr. Bruce Phillips: With respect to the first question, Ms. Jennings, I'm glad the CBA has decided to go and think some more about the search and seizure issue, because if they were to object to these powers, which in my opinion are minimal...they are the same as are contained in the federal Privacy Act today. They are also essentially the same powers that are already given to a number of other federal regulatory agencies. There are some agencies that do require a warrant and some that do not.

I am just looking at a list here; we anticipated this question might arise. For example, the Canada Labour Relations Board has the same powers, and the CRTC. The Commissioner of Official Languages has exactly the same powers that are conferred in this bill. So if they don't want to give them to us, they had better take them away from all these other people.

The fact is, as a practical matter, in 15 years of operation there has never been a charter challenge against the powers conferred upon the privacy commissioner in the existing federal Privacy Act. Frankly, if I had to get a warrant every time I wanted one of my staff to go down and look at a piece of paper in relationship to the investigation of a complaint, it would introduce time-consuming legal obstacles that, in my opinion, really have nothing to do with the enforcement of a person's right and everything to do with the denial of it. So that's my answer to that.

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With respect to the “should” and the “shall” issue, that's interesting. The bill already makes a distinction, if you want to put it that way, because the commissioner can only go to court on the “shall” issues, but the bill imposes no restraint on the commissioner making an observation about any aspect of a privacy matter that arises in connection with the schedule, and I feel it should stay that way, because it establishes different levels of a problem, if you like.

When I first looked at the CSA code several years ago, I didn't really like it, but I see now where it has a certain amount of elegance, because it does attempt to differentiate. It would allow me to say to a company that even the code says—and it's your code—Mr. Corporation, you should do this, and I'd leave it at that. But if the thing kept cropping up as a problem time after time after time and there is a clear direction in the schedule that a corporation should do this, then the commissioner might, at that stage of the game, want to say something on the subject in a broader area. So I think that is a useful distinction.

Ms. Marlene Jennings: Thank you very much for your answers on both questions. I truly appreciate your answer concerning the investigative powers. I wasn't aware that so many administrative or quasi-judicial bodies at the federal level had those powers, but I was aware that in Quebec a significant number of administrative organizations and quasi-judicial bodies did in fact have those powers.

My other question concerns the primacy of this legislation. As things now stand with the legislation in the form it's in, even if the amendments you're requesting come through, if the legislation is adopted we could see subsequent federal legislation that might concern an element of privacy in the federal domain and the standards could in fact be lower than what we have here.

So I would like you—and if you're not able to answer it at this time, think about it and forward your answer to the committee—to look at a short constitutional amendment that would provide for protection of personal information as a constitutional right. Do you think it would be an improvement of the protection of personal information within federal jurisdictions if there was a specific primacy clause in this legislation that would state that for any subsequent legislation this legislation applies, unless the protection provided in the new legislation is better or there's a notwithstanding clause? That was an issue raised by some of the consumer groups right at the beginning.

Mr. Bruce Phillips: I'm going to give you a partial answer because I'd like to look at the whole of your question in cold type before I'm locked into this. But I think I'd like to say yes, I would like to see something in the bill that ensures that it can't be overridden by a whole lot of other statutes passed by Parliament. That's a problem with the existing Privacy Act—it's subject to any other act of Parliament and there are repeated overrides. More often these days bureaucrats are resorting to this device to get around the Privacy Act. I don't like it and I don't think you should like it, quite frankly. We do our best to catch those things as they're going by, but sometimes you miss them. So the idea is well worth exploring.

In answer to the other issue with respect to the Constitution, absolutely. It's an unfortunate fact that the existing charter does not include a specific reference to privacy somewhere in section 7 or 8. I don't want to bore the committee, who has heard some of this before, but the original drafts of the charter included it. It got lost in the horse trading with the provinces and the various interested groups and the parties. If it were there, it would provide an underpinning to this whole concept, and every bill that came before Parliament would have to be subjected to a constitutional test on the privacy question as well.

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As it is, if when you all get around to amending the existing Privacy Act you put in there a requirement that every piece of legislation must be accompanied by a privacy impact statement from the justice department, which has also been shown and examined by the Office of the Privacy Commissioner, it would go some distance to help make up for that.

The Chair: Thank you very much, Madam Jennings.

[Translation]

Mr. Dubé, please.

Mr. Antoine Dubé: Good afternoon, Sir. You are probably aware of Bill 68 that we have in Quebec and that works in the following way: if someone is unhappy with a decision rendered by the commissioner, he or she may call upon an administrative tribunal. If I understood you correctly, you aren't really in favour, and with reason, of people appealing to regular courts. What would you think of a provision that would authorize having recourse to an administrative tribunal rather than to a court, contrary to what is set out in the bill?

[English]

Mr. Bruce Phillips: Well, I'm not going to say the Quebec system is better or worse than the one that exists here. I will simply say that anybody who doesn't like one of my findings, at least with respect to access cases, although not all the provisions of the Privacy Act, has recourse to the federal court. I think the federal court is about as good a tribunal as any you're likely to get. I don't personally see a whole lot of virtue in inserting into this process yet another layer or another level of complaint adjudication. The simplicity of the existing system is one of its chief virtues.

I write a finding. I tell the complainants, sorry, I don't agree with you, you can't have access to this because the exemption is perfectly in order and if you don't like it, you can go to the federal court. I don't know of any solution that is simpler, more effective, or more direct than that one.

If we had a tribunal stuck in the middle between myself and the federal court, we'd have to appoint another whole level of bureaucracy with a tableau of five or six tribunal members, plus the supporting cast, plus their investigative staff. I can think of areas in the federal system where that approach exists now, and I would defend mine against theirs any day of the week. They have enormous backlogs. It takes years to get any kind of a decision out of the whole process. This way it's clean and it's quick, or at least as quick as the court can make it, which is not always very quick.

[Translation]

Mr. Antoine Dubé: Now, on something completely different, Bill C-54 will obviously increase your workload, yours and your employees'. However, upon examination, we see that your budget for the year 1999-2000 doesn't provide for any real increase. Do you believe that if Bill C-54 is passed you will require, for this year and the following years, a sizeable increase in your budget? Have you thought about that? If so, what would the additional costs amount to?

[English]

Mr. Bruce Phillips: We've certainly reflected a lot on that, Monsieur Dubé. Yes, there will be additional resources. Everybody recognizes that if the workload goes up significantly in terms of the complaint handling process, that will require extra resources. The education mandate, the necessity to carry this issue to the public at large, will certainly use up additional resources. We have had discussions with the Department of Industry. We are having discussions with the Treasury Board. I have reasonable confidence that adequate resources will be made available.

If they are not, I have the right as an officer of Parliament to come to this committee through the Speaker and say, the government's letting you down, members of Parliament, because they have not given your officer enough money to get the job done. I'm not overly concerned about that at the moment. It would be helpful to me if the committee were to stress the necessity in its report to the House of ensuring that the commissioner has adequate resources. It's a little reinforcement that could only help us.

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[Translation]

The Chair: This will be your last question, Mr. Dubé, please.

Mr. Antoine Dubé: In your conflict with the Department of Human Resources regarding the matching of data with customs data, you stated at one point—I don't have the exact quote—that the bureaucrats had so to speak sent you packing, that you felt that they really didn't listen to you. You talked a little bit about that earlier. Do you fear that with the new mandates that you will be given under Bill C-54, the same type of thing might happen again, given the number of "mays" that are to be found in the standards set out in the schedule?

[English]

Mr. Bruce Phillips: Well, Monsieur Dubé, all I can say about that is, yes, I felt that the people in those two departments with whom we were dealing on that issue were not sufficiently attentive to the points we raised, and in the end they forced us to go to court and they lost. So that's the end result of that.

We never had to go to those lengths. I think a more accommodating approach would have solved that problem and we would have both saved a lot of time and trouble. That's what I meant, and I don't think I have any more to say on that subject.

The Chair: Thank you.

Thank you, Mr. Dubé.

Mr. Shepherd, please.

Mr. Alex Shepherd: Thank you.

Going back to your rights, search and seizure, I'm not impressed by the fact that there's a lot of government agencies that have this power, because I find that, in itself, an invasion of people's privacy. Since presumably you would only require a warrant in the case where somebody refuses to give you whatever information it is, is it that much of an impediment for you in cases like that, to get a warrant?

Mr. Bruce Phillips: I'm not an expert on getting warrants, Mr. Shepherd. I've never had to get one. So I really can't give you an informed answer to that question.

I think the kind of information we're dealing with really would fall under the category of information that would deserve that sort of heavy-handed treatment, but—

Mr. Alex Shepherd: Well, the heavy-handed treatment is, to me, the right of search and seizure. You have the right of search and seizure without any recourse to an oversight. Now you're telling me you never need it. People naturally comply.

What happens if you come up to my business and you want my records? I say, no, get a warrant; I think it's unjustified. You say, I don't need a warrant; I'll just come in here and get it anyway. Don't you think that's an invasion of my privacy? Shouldn't you be the privacy commissioner for everybody's rights, not just complainants' rights?

Mr. Bruce Phillips: I'm concerned with the protection of personal information. If I come into your office and you have custody of a lot of personal records, the fact that you are an officer of that corporation is not personal information as defined by this act. So, strictly speaking, no, I would not be invading your privacy.

Mr. Alex Shepherd: Okay, following that example through to its conclusion, you voluntarily asked me to give you information and I refused. Then you have to get a warrant. You're telling me the incidence of that happening isn't that great, anyway. Why do you—

Mr. Bruce Phillips: Mr. Shepherd, my understanding of this bill is that if you refused and were obstructing me, I would have other remedies, and you would certainly have an opportunity to make your case there.

Mr. Alex Shepherd: But you don't think it's consistent with being the privacy commissioner that you should be required to have a warrant?

Mr. Bruce Phillips: I don't think it's necessary.

Mr. Alex Shepherd: Okay. I'll get onto another subject.

We had a long discussion today on this whole issue about commercial activity, and I wonder if the answer isn't the reverse of this. People keep saying we should define “commercial activity”. Why do we have to use the words “commercial activity”?

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Mr. Bruce Phillips: It's because what we're dealing with here would be personal information captured in the course of commercial activity.

Mr. Alex Shepherd: But that's what the whole medical profession went on about it. They seem to want it to apply to them—

Mr. Bruce Phillips: Yes.

Mr. Alex Shepherd: —and not just commercial activity.

Mr. Bruce Phillips: As I understand some of the witnesses, they were concerned that the personal information involved in their particular sphere of interest is not captured by this bill, and they want it captured by this bill.

Mr. Alex Shepherd: Right. How would we address that concern?

Mr. Bruce Phillips: I think we address it by amending the definition of “commercial activity” to ensure—

Mr. Alex Shepherd: So it would be actually broader than it is now.

Mr. Bruce Phillips: That's right.

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

Mr. Jones.

Mr. Jim Jones: Thank you, Madam Chair.

Bruce, I'm still concerned about the discussion that has taken place on the search and seizure provisions that are in this act, and also the fact that so many other departments have this capability.

I would like to refer you to a case. It was Hunter v. Southam Inc. The Supreme Court of Canada found that the search and seizure section of the Combines Investigation Act was unconstitutional. One of the main reasons given by the Supreme Court was that a person who was charged with investigative and prosecutorial functions is not capable of acting judicially and providing authorization to undertake search and seizure.

Bruce, is that not a problem with clauses 12 and 18? Are you not asking to be judge, prosecutor, and police?

Mr. Bruce Phillips: Mr. Jones, I think you've partly answered the question yourself.

I don't prosecute anybody. I have no power of enforcement. I have no power of order. I am going in there and asking to see some information, which the law says they have to give up to me, so that I can see the information relevant to the complaint.

I look at the information. I make a finding on the complaint. I advise the complainant and the company involved and say that is my opinion of this matter. They can dispute that if they want. If they feel I've exceeded my powers, they have recourse to the courts. To add to that a requirement that I must, in every case....

Let me put it this way. If I had to do that under the existing system, I would have to get 2,000 warrants a year. We run a complaint bureau, not a police department. If I had to go to a judge and get 2,000 warrants a year, I think it would unnecessarily complicate what is intended to be a simple, non-confrontational dispute settlement mechanism.

I'm conscious of what you're saying, Mr. Shepherd, but if there is some company or person who feels that somehow or other this power contravenes their rights under sections 7 and 8 of the charter, they are perfectly at liberty to contest that in the court. Naturally I would be bound by such a court decision. But nobody has done it up to this point, after 15 years. No department of the government, which has plenty of lawyers, a lot more than you and I will ever be able to manage, has ever suggested that this authority contravenes the charter of rights. I think you are adding an unnecessary element to this issue.

Why would corporations, particularly, for example, the kinds that in the first instance are likely to be most involved in this bill, who have been contributors, either on their own or through their professional associations, to the construction of the CSA code, which they have all proclaimed as being a very good approach, now turn around and say they think it goes too far? I have difficulty with that.

One of the advantages of the approach taken by the Department of Industry in the construction of this piece of legislation is that the original basic element of this comes not out of the mind of the bureaucracy, but out of the mind of the Canadian business community. So in essence, all we're doing here is taking their code and saying, right, you have all built this code. It's a pretty good code. Now you have to live with it. That's all. We do not go into people's offices in jackboots, with leather belts and brown shirts, believe me. We go in and say we have a complaint from Joe Smith who says you got his information wrong; it's not accurate. Can we see it?

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Do I need 2,000 warrants a year for that?

The Chair: Mr. Jones is asking the questions right now, not Mr. Shepherd.

Mr. Bruce Phillips: Yes. I do apologize.

The Chair: Mr. Jones.

Mr. Jim Jones: There are going to be situations...you're making it sound so trivial. Probably a lot of the situations are trivial, just as you have indicated, but there are going to be other situations where you suspect the person is abusing people's privacy. When you go there, if they turn you down, wouldn't it be more appropriate, if you suspected something, if you had a proper search warrant and you could search the premises right there and then? Aren't you taking on additional responsibilities with this bill to what you initially have right now?

Mr. Bruce Phillips: No, sir. Mr. Jones, this bill confers no new additional authority on the Office of the Privacy Commissioner beyond the authority that he now exercises with respect to public sector records.

Mr. Jim Jones: So would it be fair to say that when this bill is enacted, your budget will remain the same, that you don't need any more people to do any more, because you've taken on no more responsibilities than you have today—

Mr. Bruce Phillips: Well, in any complaint—

Mr. Jim Jones: —and you don't anticipate any bigger workload?

Mr. Bruce Phillips: Yes, Mr. Jones, of course I do. It is a complaint-driven organization. The work volume is determined by the complaints that come over the transom—through the mailbox and over your e-mail. So I would assume that since the reach of the Office of the Privacy Commissioner in this bill now goes beyond federal government records to include those of the commercial sector, there will be quite a few more complaints. That will require more investigators, so that means more money, absolutely. The bill also has an education mandate that specifically enjoins the commissioner to conduct public education activities. That's going to take some money and will involve a few more staff.

In answer to the earlier question from Mr. Dubé, I was asked if we have an estimate of the kind of additional resources we need. I can only tell you that we can't do much better at this moment than an educated guess, but I would guess that probably in time you might see something in the order of a 40% to 50% increase in our budgetary expenditures, largely as a consequence of the additional number of complaints.

What you're doing here is extending the same rights that everybody now enjoys in this country with respect to the records that the Government of Canada has about them to the records that the private business world holds about them. The essence of this bill is to establish legal privacy rights across the whole of the Canadian community. You and I have long felt the absence of those rights. The business world can take your name and your information and everything they can get their hands on about you, Mr. Jones, and use it in any way they want. Whether it's helpful or harmful to you is irrelevant, because you don't have any say in the matter. That's what this bill is attempting to fix. It's attempting to fix it in the simplest, least confrontational method, but to give everybody in this country an opportunity, if they're unhappy with the way business is handling their information, to complain.

The first place they have to complain is to the business itself. The bill makes it very clear that the first level of complaint adjudication is with the business, which is where it ought to be. It's only when the thing cannot be resolved at that level that people are invited to come to the Office of the Privacy Commissioner.

Mr. Jim Jones: The question I have is whether the only thing that triggers you to do something is the complaint.

Mr. Bruce Phillips: No, sir. I can look at systems myself and if I feel there is something that needs to be looked into, I can then initiate my own complaint.

Mr. Jim Jones: You can go out and initiate your own search and seizure?

Mr. Bruce Phillips: Well, I wouldn't call it a search and seizure. You may use that language, but—

Mr. Jim Jones: But I'm saying if it's very serious—

Mr. Bruce Phillips: Yes, I'm being serious, Mr. Jones.

• 1235

Mr. Jim Jones: —and you want to make sure it's not blown when you want the proper legal documents, etc., to get the stuff, that you spend all your time trying to....

Mr. Bruce Phillips: Let me give you an example—and this is serious stuff, okay; these things have already happened.

Somebody dealing with an insurance officer walks out of the building, decides to take the back alley to get to his or her parked car, and sees a big waste bin full of insurance records—this is hypothetical—and looks at it and says, gee, there's all kinds of information in here about a whole lot of people, me included. There's a systemic problem. The first person that person would be likely to call would be the company, to say hey, you're throwing all that information around out there.

You might also call the Office of the Privacy Commissioner. We would go to them and say, let's see the kind of stuff she found in the trash can. Now, this looks like personal information to us, and it looks like its covered under the bill. You've got a problem here. Let's see if we can sort it out so that you don't have to do this again. That's the kind of work we're involved in every day of the week, dealing with that kind of informational-management problem. That's an exceptionally simple one, but that's the kind of thing we're doing.

Are you telling me that before I can go to that company I should have to go and get a warrant so I can look at that piece of information? That's my problem with this. We're trying to solve problems here. We're not policemen. We're not charging in there to try to strong-arm anybody. I'm entirely satisfied that 999.9 times out of 1,000 the business concern would say, sure, here's what it's all about, Mr. Phillips. Here's our record and here's what....

It happens all the time, and I have difficulty visualizing a set of circumstances in which a business would dig in its heels and say, you cannot look at the personal information of this employee, when their own code, to which they have subscribed, stipulates that an employee should have access to his or her own records. They would have to...I just don't see the circumstances under which your concerns about search and seizure would really arise here. There may be occasions, but....

I don't know how I can do any better than that.

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

Mr. Bellemare, please.

Mr. Eugène Bellemare: Mr. Phillips, I appreciate very much your objective of giving Canadians the right to privacy for their personal information.

My assistant is giving you a copy of a document that was provided to us by the last group. This concerns an insurance company, and we all at one time or another get life insurance on ourselves, especially when we were much younger, both you and I, Mr. Phillips.

You will probably remember—despite our qualifications to be very good readers—that reading a document from an insurance company is a rather lengthy process, you need good glasses or good eyesight, and you need a legalese dictionary, because even if it were written in your native tongue, English, or my native tongue, French, when you were through reading it, you'd wonder what they said.

Then of course if you're taking life insurance, you want to sign up before you die, because you never know when you're going to die. So you sign up. And here, in this document, it shows one company where there's a contradiction. At the very bottom it seems to guarantee that all the information that has been acquired on the form you filled out will be kept confidential, and that you can rest, not in peace, but easily, for as long as you feel like it.

However, when you look at the fine print, going back for your second reading, this time maybe someone who is accustomed to the dealings of such a company, maybe even a grade 11 life insurance salesman, then points out to you, yes, but here's what you've signed: I authorize any person or organization that has any personal information about me.... I authorize Sun Life, for example, to provide that information to them and to get the information back and forth. They can get information from anyone who knows you and in turn give information they may want to know about you.

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Do you think this is proper and this is really respecting confidentiality? We'll stick to the context of e-commerce—you know, that we're dealing now over the computers, Internet, and we're accepting some insurance right there. Your comments, please. And in your comments, how do we protect Canadian individuals from this kind of flim-flam?

Mr. Bruce Phillips: Well, I've just had an opportunity for the very briefest and most cursory look at this particular waiver of privacy rights, which is what I call these forms. There are many such throughout the commercial world. Anybody who has ever signed a credit card application, for example, if you read the fine print on the back, you're essentially giving the credit card company a complete blanket waiver to do anything they like with the information that's generated in the course of that credit card application, or anything else you do with it subsequently.

This one happens to involve an insurance company. Basically, you are telling them that they can get information about you anyplace they like. As I read the thing, that gives them very extensive disclosure rights as well. This is the perfect example of why the privacy commissioner in Ottawa and elsewhere in this country and society generally should pay more attention to the issue. The ordinary lay person looking at this says “Wow, I guess I have to sign that”, without ever asking any tough questions about it.

We need a body politic in this country that knows more about the way business operates in an informational environment. People would not be quite so ready to sign complete, perpetual waivers of their privacy rights if they knew what they were doing and if they understood enough about business practice and about these waivers to persuade companies that it's in the best interests of their customer relations to be more respectful.

There is a whole issue bound up here in this kind of practice that has much to do not just with what the Privacy Act says but with the attitude of the public at large and the attitude of business itself and how they can better get along. The bill strives to deal with this kind of problem by giving the privacy commissioner an obligation to better inform the public about these things. There are none of us who haven't at some time in our lives signed waivers like this. It's a question of ensuring that the corporation with whom you're doing business gets sufficient information to make a judgment about its client to be able to transact the business involved.

An insurance company, which this one involves, is entitled, in my opinion, to obtain enough information to make a sensible, informed, prudent judgment about the insurability of the applicant. It is entitled to enough information to satisfy itself that the applicant is not engaged in a fraudulent exercise, matters of that kind. But those things can be defined. They can be defined in a way on the form that shows the informational usage that does not simply constitute a statement by the client that you can get anything you want about me and you can do anything you want with it, which is one of the problems we encounter today. You're not going to do that in a bill, sir. You can't. There are just too many forms, too many companies. It requires a lot of education.

Mr. Eugène Bellemare: Give me a chance on this one. I appreciate when you say you can't do it in this bill, but couldn't there be a clause in that bill where you could not extract individuals' rights away by a signature, just because you're a good writer and you can write things in such a fashion that people wouldn't understand on the spot and sign?

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Mr. Bruce Phillips: You've raised a question of law here. I don't think you can do that without the person having remedies through the courts. I don't think you can present them with something that essentially strips them of their rights. You would then be engaging in an activity the law itself would frown upon, and they do have rights. But let's not get to that part of the issue. Let's get a system, Monsieur Bellemare, in which companies don't indulge in practices that ask far more information than they really need.

Mr. Eugène Bellemare: How do we do that as legislators?

Mr. Bruce Phillips: Well, this bill goes part of the way. If somebody doesn't like this, at least they can complain and say “I tried to do business with my insurance company, and they're asking for too much information”. At least I could go and say “How much information are you asking? Can you show me one of your forms?” Then at least I could say “Do you really need all this information? Let's discuss this. How much information do you really need, and how much are you just being nosy? Let's try to refine your form a little bit.”

We've done that with government departments. We've looked at their forms and said “This goes too far. Can you dispense with this? Can you dispense with that?” The answer has sometimes been yes and sometimes no. That is part of the function of an office of a privacy commissioner.

Mr. Eugène Bellemare: Will you take a complaint from me?

Mr. Bruce Phillips: Well, I don't have the authority today.

The Chair: Not yet.

Ms. Wasylycia-Leis, do you have any questions?

Ms. Judy Wasylycia-Leis: Yes. I apologize if this is going over ground you've already covered, but I wanted to go back to what we discussed this morning around health information.

I think there was clear consensus around the room that personal information does mean health information. I just wanted to verify whether that's your understanding, and if so, how can we be sure...? There have been so many changes, so many technological advances in this whole area. Does this bill make a difference in terms of protection of privacy when it comes to health information?

Mr. Bruce Phillips: Let me come back to something I said at the outset. I really don't like talking about health information and driving information and any other kind of information except personal information. Some health information is personal and some is not personal. To the extent that the information is personal, I want to see it covered by the Privacy Act.

Do not yield to the temptation to start thinking about separate classes of information here—health information, tax information, and so on. We're talking about information that relates to identifiable human beings. That's personal. Whether it's health information or tax information or marital information or educational information does not matter. Is it personal? Does it relate to an identifiable human being? If it is, it should be covered by this bill.

It doesn't matter whether the information is generated and finds its way into the commercial world through a visit to an insurance company, a visit to a mortgage company, or a visit to your shoe store. I don't care. The Privacy Act, once you start down that road and start trying to set up separate administrations and separate levels of privacy rights for different classes of personal information, you become bogged down in an impossible morass from which we would never extricate ourselves.

All information that is personal is entitled to the same level of protection. The level of what you think you want to keep to yourself and what you don't may be totally different from that of Mr. Jones, for example. I can't decide that for you. Nobody else can. You alone are the person who should have the right to decide what the world knows about you. You should have the right to have control over the use of your information, whether it's health or any other kind of information. Remember, it's personal.

Now, you've asked me about this bill and personal information. As nearly as we can work it out, it does cover some personal information that seems to be generated in the health industry field, if you want to put it that way, but we're not certain it covers all of it. We think it should.

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I'm sorry if I'm being obtuse here somehow. In my opening remarks I addressed the issue of non-profit organizations, of professional associations, and so on. I posed this question: Is a medical examination, for example, a commercial transaction? Well, not really, you would say, but then you do have to pay for it. It's a service for a fee when you get right down to it, in which a good deal of personal information is generated.

In my view, there should be absolutely no ambiguity about this: that personal information should be protected by statute. It is, to some extent, now protected by the CMA's own code, which we have spoken about very favourably on other occasions, because the CMA code lays a great deal of stress upon the preservation of the doctor-patient relationship and that no information should go forth from the doctor-patient relationship that does not have the explicit informed consent of the patient. If you want to use that term “health information” when it comes to protecting privacy rights in the health information field, that's the core of it: what is being done to ensure that the doctor-patient relationship remains sacrosanct.

We're not sure about that, quite frankly, as I've said. The definition of commercial activity, in our view, does not have sufficient clarity and precision to satisfy that question. I think that needs to be fixed.

Ms. Judy Wasylycia-Leis: So you would recommend we look at fixing that in this legislation? The other suggestions we heard this morning were for Health Canada to start to grapple with some of these issues and get in place a framework before proceeding with this whole new information health highway. But do you think we can start here and look at further clarification to Bill C-54?

Mr. Bruce Phillips: Well, it seems to me that Bill C-54 is the place to do it.

Ms. Judy Wasylycia-Leis: Okay.

Mr. Bruce Phillips: This is the piece of legislation that determines the reach of established legal privacy rights into the commercial world, so this is the place to do this.

Looking at the bill, it seems to me the intent of the bill is clear. I just don't think there is sufficient precision in the definition, that's all. I think the bill intends to cover the class of personal information you're talking about, but I'm not sure it does.

Ms. Judy Wasylycia-Leis: It's complicated by the fact that in our health care system we don't even have a uniform approach across this country to ensure that every individual has access to their own patient records. We're starting far behind in terms of people having that information to be able to make choices and then for the law to apply.

Mr. Bruce Phillips: If the coverage of this statute is sufficiently clear, that problem is resolved, because the CSA code gives people an express right to their own records, subject to some very limited exceptions. So there is a problem here, and I hope the committee can fix it.

The Chair: Thank you.

Mr. Lastewka, finally.

Mr. Walt Lastewka: Thank you, Madam Chair.

Mr. Phillips, I apologize for not being here for your opening remarks, but I understand you did make some comments concerning communicating information and getting the public to understand what privacy is all about. As you've probably heard, I've asked every association that's come forward the same question concerning banding together and not getting us into a he said and she said type of situation on advertising. Could you give us just a quick overview of how you would go about getting that message across to Canadians, informing Canadians on the privacy bill?

Mr. Bruce Phillips: Well, only in the most general terms, because a more complete answer will depend on the kinds of resources that are made available to me for the purpose.

I see a public education program as being one that would involve the schools, the libraries, particularly the schools, the universities, the private sector especially. I would certainly expect the commissioner to be seeking, for example—this is just an idea that's bouncing around here right now—to establish an advisory council, a voluntary advisory council hopefully, of interested parties from the business community to discuss this issue to see how the private sector might help promote this issue. There are literally endless ways to inform people about this.

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It's my intention before we go much further to take on board some professional advice with respect to broad spectrum public education programs to see what advice I can be given on that subject once I have some clearer idea of what resources are going to be made available.

I think the committee ought to understand this about privacy, that hopelessly inadequate word to deal with this issue: this is going to be an ongoing preoccupation of this Parliament and many parliaments to come.

We're living in an environment that is changing with absolutely bewildering rapidity. It's going to continue throwing up new problems because new technology is going to keep coming and people are going to find new ways to use it.

In the long run the only way we're going to adequately deal with this is by having a generation grow up that really understands this, that is accustomed to the technology and can see its merits and its dangers equally, as well as we today can see the danger of recklessly driving an automobile.

But you people are real pioneers here because you are passing a piece of legislation, I hope, that puts the first building blocks in place by stating that everybody in this country has the right to exercise a reasonable degree of control over his or her personal information. Given this marvellous statement that is implicit, that is the driving spirit behind this legislation, we can go a long way with this.

Subsequent committees, parliaments, and privacy commissioners are going to be back here saying we need to improve it, we need to change it, we need to strengthen it. Only experience is going to tell us that.

This bill has lots of little wrinkles in it and we don't know yet how it's going to work out, but the intent of the authors is very clear and highly commendable.

I don't often sit in these fora complimenting the government on a whole lot of things, but I have to be unreserved here. They have tried very hard here in the face of all the problems that are associated with the complications of a business world that lives in two jurisdictions, federal and provincial, to find a formula that will ultimately establish basic legal privacy rights across the country. Thank goodness for that.

We could discuss all of these constitutional questions that various members have raised. They are good questions. There are no answers to some of those questions. Only experience is going to show the way.

I heard one this morning. May I, Madam Chair, although I know we are running out of time and I don't want to delay you?

The Chair: Yes.

Mr. Bruce Phillips: I'm coming to my perorative aspect here. This is my last shot here. I really do want you all to understand where we all sit here. We sit in an informational jungle. It's a zoo out there, and you and I don't have any rights. We don't have a right to know what people are doing with our information, and I can tell you that there is real-life harm in all of this. It's not just a question of being irritated by a lot of unsolicited junk mail. That's the tip of a huge iceberg.

Let me just give you an example of what carelessness can do. In the United States a little while ago a very smart company bought the drivers' licence registry from three states. That contains a lot of information. Guess who was helping finance it. The United States secret service, because they wanted by a back door to get an enormous body of personal information about millions of American citizens without telling them. A decent privacy act doesn't let that stuff happen.

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I could sit here by the hour telling you worse stories. We haven't got that much time, but I'm telling you, we've got to get this through.

The Chair: This is your last question, Mr. Lastewka.

Mr. Walt Lastewka: One of the things I've noticed during these hearings is that some companies and some associations are already hiding behind the fact of the cost of this, that it's going to be expensive to do business.

I've already heard in this morning's testimony, which very much surprised and disappointed me, that this bill to protect privacy of individuals is going to be inefficient and impede health care delivery in the province. Then I read in their testimony, which came as a very big shock to me:

Whether those individuals are engaged in a “commercial activity” when delivering health care is irrelevant to the achievement of continuity of care for the patient.

Mr. Bruce Phillips: My only response to that is the Canadian Institute for Health Information supports this legislation, and that is the body that has been assigned the task by the minister's advisory council of trying to develop a better system for sharing and moving health information around the Canadian health system.

The CMA supports it, the Canadian Institute supports it, and I've heard of no one coming before this committee and saying this bill should not proceed. You've heard me on the subject of the health information aspect. There are problems here, which we could get into at some length. There are some provinces that have already legislated for the management of so-called health information in ways that, quite frankly, this office could not possibly support because it does not contain the necessary consent provisions and protections in it.

At least the federal Minister of Industry, in this bill, when deciding three years hence—four years hence, as it turns out—whether to give up the federal constitutional power here to the provinces can look at that and say, your method of managing this information is not good enough. It does not come up to a reasonable standard in this country and privacy commissioners don't like it, so come on, at least get it up to the federal standard.

That, in my opinion, is a very important, powerful tool. But we don't know, sitting here today, what kinds of complications that's going to produce, or situations, but at least there's an effort in this bill to deal with those problems and we can but try.

We've got to get started somewhere. We cannot have a situation in this country where you have good privacy rights in this part of the country and none in the next, because then all you will get is businesses who don't care about peoples' rights—and I don't think there are very many, but there are some—moving to that province so they can continue to abuse your right of control over your own information.

This bill offers some prospect that we can stop that kind of thing and in fact greatly improve the standards of respect for privacy right across the board.

Mr. Walt Lastewka: We've hit a nerve with this bill with people who are selling lists and information without getting the individual consent. The other area that comes into play is they're not selling but they're trading and bartering information that is personal.

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

I need to have one thing clarified by the commissioner before you leave, Mr. Phillips. We've had amendments put forward by a number of organizations, or suggestions, that they have their own code and they would like to be governed by their own code within this legislation. As you would be the administrator, or enforcer, of this legislation, is that even something that's feasible to consider?

Mr. Bruce Phillips: I think it's a good thing, Madam Chair, that businesses have codes of their own, but I think it would be extraordinarily difficult for a commissioner to administer a whole set of codes that had different levels of privacy rights expression in them. I would not want to put a commissioner in that position.

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One of the glories of this approach is the level playing field approach. There are jurisdictions in some places in Europe where sectors of business have been invited to draw up codes and bring them forward to a national commissioner who looks at the code and, if it satisfies the national standard, will accept it or reject it. If it's accepted, thereafter that code becomes the law.

I've had some discussion with the people involved in that work in Europe. It's proving extraordinarily time consuming working up all these codes. They've been at it now for years, and they still don't have national standards that are worked through. I don't think it's a good approach.

Lots of people have said this isn't strong enough. It's at least uniform, there's a device in here to get it across the country, there is a good complaint mechanism that is not cumbersome on business—it has all the basic ingredients for a good privacy system.

The Chair: Thank you. I want to thank you very much for joining us today. We've appreciated your assistance throughout the hearing process. We do have some witnesses still to hear from this afternoon, so if you have any further comments, or if there's something new that develops this afternoon, we would appreciate that as well. We hope that as a committee we'll be able to resolve any of these outstanding issues and move this legislation back into the House sometime soon.

Mr. Bruce Phillips: I really appreciate this opportunity, and I apologize to the members of this committee because sometimes I do get a little heated about this subject, but I really believe deeply in it and I am so excited that this is at long last coming to pass.

The Chair: Thank you, Mr. Phillips. No apology necessary.

The meeting is now adjourned.