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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

COMMITTEE EVIDENCE

CONTENTS

Tuesday, February 19, 2002

0935

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

Mr. Richard Elliott (Director, Policy and Research, Canadian HIV-AIDS Legal Network)

0940

0945

The Chair

Dale Kinnear (Director, Labour Services, Canadian Police Association)

0950

0955

1000

The Chair

Ms. Elizabeth White (President, Canadian Criminal Justice Association)

1005

1010

The Chair

Mr. Fitzpatrick

Mr. Dale Kinnear

1015

Mr. Fitzpatrick

Mr. Dale Kinnear

Constable Isobel Anderson (Police Officer, Ottawa-Carleton Police Service; Canadian Police Association)

The Chair

Mr. Richard Elliott

Mr. Fitzpatrick

Mr. Richard Elliott

1020

The Chair

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

Mr. Dale Kinnear

M. Bellehumeur

Mr. Dale Kinnear

Mr. Michel Bellehumeur

Mr. Dale Kinnear

1025

The Chair

Mr. Richard Elliott

The Chair

Mr. Michel Bellehumeur

Mr. Dale Kinnear

The Chair

Mr. Strahl

Const Isobel Anderson

1030

Mr. Strahl

Const Isobel Anderson

Mr. Strahl

Const Isobel Anderson

Mr. Strahl

1035

The Chair

Mr. John Maloney (Erie--Lincoln, Lib.)

Mr. Richard Elliott

Mr. John Maloney

Mr. Dale Kinnear

1040

Ms. Elizabeth White

The Chair

Mr. John Maloney

Mr. Dale Kinnear

The Chair

Mr. Richard Elliott

The Chair

Mr. Fitzpatrick

1045

The Chair

Mr. Richard Elliott

Ms. Elizabeth White

The Chair

Mr. Michel Bellehumeur

The Chair

Mr. John McKay (Scarborough East, Lib.)

The Chair

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

1050

The Chair

Mr. MacKay

Ms. Elizabeth White

Mr. Peter MacKay

The Chair

Mr. Richard Elliott

Mr. MacKay

The Chair

Mr. John McKay

1055

Mr. Richard Elliott

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Ms. Elizabeth White

Mr. Chuck Cadman

Ms. Elizabeth White

Mr. Chuck Cadman

Ms. Elizabeth White

The Chair

Mr. Dale Kinnear

1100

The Chair

1110

Mr. Andrew Hoglund (Individual Presentation)

Mrs. Val Hoglund (Individual Presentation)

1115

Mr. Andrew Hoglund

The Chair

Paul Morneau (President, Paramedic Association of Canada)

1120

1125

The Chair

Mr. Glen Hillson (Chair, British Columbia Persons with AIDS Society)

1130

1135

The Chair

Mr. Fitzpatrick

1140

Mr. Paul Morneau

The Chair

Mr. Glen Hillson

The Chair

Mr. Andrew Hoglund

1145

The Chair

Mr. Paul Morneau

The Chair

Mr. Michel Bellehumeur

1150

The Chair

Mr. Andrew Hoglund

The Chair

Mr. Andrew Hoglund

The Chair

Mr. Paul Morneau

The Chair

Mr. Strahl

1155

The Chair

Mr. Glen Hillson

Mr. Strahl

Mr. Paul Morneau

1200

Mr. Strahl

Mr. Paul Morneau

Mr. Strahl

The Chair

Mr. Paul Morneau

The Chair

Mr. Glen Hillson

1205

Mr. Ivan Grose (Oshawa, Lib.)

The Chair

Mr. Glen Hillson

Mr. Ivan Grose

The Chair

Mr. Glen Hillson

The Chair

Mr. Andrew Hoglund

1210

The Chair

Mr. Chuck Cadman

The Chair

Mr. John McKay

The Chair

Mr. Glen Hillson

1215

Mr. John McKay

The Chair

Mr. Glen Hillson

The Chair

M. Bellehumeur

The Chair

Mr. Peter MacKay

1220

The Chair

Mr. MacKay

The Chair

Mr. Glen Hillson

The Chair

Mr. John Maloney

The Chair

Mr. Glen Hillson

The Chair

Mr. Andrew Hoglund

Mr. John Maloney

Mr. Andrew Hoglund

1225

The Chair

Mr. Glen Hillson

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

The Chair

Mr. Andrew Hoglund

1230

The Chair

Mr. Paul Morneau

The Chair

Mr. Glen Hillson

The Chair

Mr. Strahl

1235

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 062

1st SESSION

37th PARLIAMENT

COMMITTEE EVIDENCE

Tuesday, February 19, 2002

[Recorded by Electronic Apparatus]

¿ (0935)

[English]

The Chair (Mr. Andy Scott (Fredericton, Lib.)): Good morning. Bonjour, tout le monde. I call to order the 62nd meeting of the Standing Committee on Justice and Human Rights. Today we'll be hearing witnesses on Bill C-217, An Act to provide for the taking of samples of blood for the benefit of persons administering and enforcing the law and good Samaritans and to amend the Criminal Code.

From 09:30 to 11 o'clock this morning we have as witnesses a panel of three groups consisting of the Canadian HIV-AIDS Legal Network, represented by Richard Elliott; the Canadian Police Association, represented by Dale Kinnear and Isobel Anderson; and the Canadian Criminal Justice Association, represented by Elizabeth White, their president.

I think everybody here has appeared before this committee before. In fact, some of you have appeared before this committee on this subject. So you would know that I'd like you to keep your opening remarks inside of ten minutes so that we will have a good chance in an hour and a half to ask questions and explore the subject before us.

I don't know if you've had a discussion as to who is going first. If not, we'll simply do it in the order they appear on my sheet. I call on the Canadian HIV-AIDS Legal Network, Mr. Elliott, for ten minutes.

Mr. Richard Elliott (Director, Policy and Research, Canadian HIV-AIDS Legal Network): Thank you, Mr. Chairperson. I'm a lawyer and I've been doing HIV-AIDS work for about ten years. My goal today is to give you some highlights of the points we have made in our brief that has been submitted to the committee. It will be circulated to you shortly, following translation. In the interim, I direct committee members' attention to a blue backgrounder that has been distributed in English and French, together with accompanying materials that set out a number of details on HIV occupational exposures and occupational exposures for hepatitis B and C.

The first point I'd like to make to committee members today, many of whom have heard some of this evidence before, is that when we're talking about legislation authorizing compulsory testing for these viruses, we need to keep the risks of exposure in mind. To take the example of HIV in particular, the available evidence indicates to us that, on average, a single percutaneous exposure to HIV from HIV-infected blood--that is, an exposure to tissue under the skin, the most significant kind of exposure--carries a chance of HIV transmission to the exposed person of about 0.3% or one in three hundred. That means that 99.7% of such cases result in no transmission of HIV.

The risks are even lower if there is a less significant kind of exposure or if the person who is the source of the HIV-contaminated blood is taking anti-retroviral medications that lower the level of virus in their blood significantly. So we need to keep in mind that we're talking about a very small risk. The fact that that risk is so low is reflected in the fact that there has been only one documented definite case of occupational transmission of HIV in Canada to date. There have been two other probable cases; those have happened in laboratory or research settings. The one definite case happened when a health care worker was stuck with a needle carrying the blood of someone who was in the late stages of HIV disease, in which case there would have been much higher levels of HIV in their blood. They also did not seek any anti-retroviral therapy following the exposure, as it happened at the time when HIV had yet to be properly identified and no such medicines were available.

We're in a very different place today, and the fact that post-exposure treatment can significantly reduce the possibility of HIV infection following an exposure needs to be taken into account as well.

I think we also need to keep in mind what the potential benefits of legislation such as Bill C-217 might be, and, in my submission, those benefits are relatively limited. The first thing to do is to keep in mind the number of situations in which Bill C-217 may even be necessary. All of the available evidence indicates to us that in cases of occupational exposure, the vast majority of people who are the sources of the potentially contaminated blood or other body fluid consent to being tested.

One study in Canada, for example, has found that in surveillance of needle-stick injuries among health care workers, 83% of source persons agreed to be tested. A study among U.S. police officers found that in those situations of occupational exposure, 94% of source people consented to be tested. The committee heard previously regarding evidence on Bill C-244--the previous incarnation of this legislation--from an Alberta physician who's a specialist in infectious diseases, that in his experience in the case of occupational exposures in hospitals, roughly 99% of patients were consenting to being tested following an occupational exposure.

So we're talking about a very, very small number of cases in which there might need to be any recourse to compulsory testing and we're talking about situations where the risk of actual transmission is already quite negligible. If you combine those two factors, you realize that the number of circumstances in which legislation such as this could offer any significant benefit is really quite small.

¿ (0940)

There have been a number of purported benefits to imposing compulsory testing. The first of those is to inform treatment decisions by the person who has been exposed to the risk of infection. I think we need to keep in mind that, certainly in the case of HIV, if one who has been exposed is to initiate post-exposure treatment in an effort to avoid becoming infected with HIV, all the available evidence indicates that course of drugs should be started within a matter of hours following the exposure. It's very difficult to see how there are going to be many cases, if any, in which the procedure set out in Bill C-217 for obtaining a warrant, taking the blood sample, and doing the actual testing is going to be doable in that short period of time. So the notion of compulsory testing offering any significant benefit to exposed workers who need to make decisions about starting post-exposure treatment is, I think, somewhat misguided.

There may well be some potential benefit for making decisions about discontinuing that course of treatment. Generally treatment following exposure to HIV lasts for about four weeks and can carry some significant side effects. Some of those side effects can be mitigated using anti-nausea or anti-diarrheal drugs, but it is certainly the case that sometimes those side effects cannot adequately be mitigated, and this needs to be taken into account.

My point here is simply that the potential benefit from making treatment decisions is really quite limited. Certainly in the cases of hepatitis C and hepatitis B there is very little treatment rationale for authorizing compulsory testing. In the case of hepatitis B there are preventive vaccines available that are highly effective, and certainly all of those workers whose jobs expose them to the risk of infection should be offered such vaccination as a matter of course, as a matter of occupational health and safety. In that event the likelihood of being infected with hepatitis B following an exposure is remote. In any event, if there is such an exposure and the person has not been vaccinated, there is no significant harm to being vaccinated with hepatitis B vaccine or receiving hepatitis B immune globulin.

In the case of hepatitis C, unfortunately, there is no preventive vaccine, nor is there any effective post-exposure treatment. Given the absence of those medical options, it really remains to be seen how imposing compulsory testing could yield any information that's useful for making treatment decisions about post-exposure prophylaxis, because those options simply are not there.

It has also been proposed for alleviating the anxiety of people who have been exposed to such viruses, occupationally or otherwise, and certainly we would accept that there is some potential benefit in allowing compulsory testing.

That said, however, we need to again realize the benefit is a qualified one. Certainly if the source person tests HIV-negative or negative for hepatitis B or C, that result could provide some degree of reassurance to the exposed worker or other person that the chances of having been infected are statistically much lower. Nonetheless, there remains the possibility, given the window period between the time a person is infected and the time they sero convert--that is, register as positive on a test--that they will test negative during that period even though they are in fact infected with a virus. It cannot be ruled out at this point.

And certainly in those cases where a person has recently engaged in activity putting them at risk of infection with one of those viruses, the reliability of that negative test result is somewhat compromised. An obvious example might be the police officer who is stuck with a needle upon arresting someone who is known or suspected to be an injection drug user. There is a significant chance that person has in fact recently engaged in risky injection practices. Relying on a negative test result in those circumstances would be perhaps unwise.

Finally, there are a number of concerns about the potential harms that flow from authorizing compulsory testing. The first, of course, is that it disregards the ethical and legal doctrine of informed consent to medical procedures, something our Supreme Court has repeatedly reaffirmed as an important value in Canada.

There are numerous charter infringements that flow from legislation that authorizes a forced testing, specifically a violation of security of the person under section 7 of the charter and imprisonment for those who refuse to comply with the court order for testing. The infringement of the liberty interest is evident.

¿ (0945)

Finally, the issue of privacy--physical privacy, psychological privacy, informational privacy--is extremely important, particularly for people such as those living with HIV and AIDS in Canada, who continue to experience significant stigma and discrimination. There are inadequate provisions in Bill C-217 to guarantee the confidentiality of a person's test result. There's no provision that would allow the person who's been subjected to compulsory testing to refuse to receive that test result, even if it were communicated to the exposed worker, thereby taking away from them the choice of whether or not to be tested.

All of our law indicates that taking bodily samples without consent is certainly the exception in our law rather than the rule. Our Criminal Code only provides for two carefully circumscribed circumstances. One is the case of blood testing or breath testing for alcohol when there are reasonable grounds to believe an offence has been committed. The other is to conduct DNA testing, again for purposes relating to a prosecution for certain designated serious offences. In those cases, where there has already been some prima facie case made out of criminal wrongdoing, the courts have upheld the possibility of testing without consent. Bill C-217 would allow testing without consent without that nexus.

I'll leave my remarks there and simply highlight to you that people with HIV have a number of concerns about the potential ramifications of their HIV status being disclosed, including discrimination in a variety of fora, stigmatization, and ostracism from community, family, and friends.

Thank you.

The Chair: Thank you very much.

Now I turn to the Canadian Police Association, Mr. Kinnear and Ms. Anderson.

Mr. Dale Kinnear (Director, Labour Services, Canadian Police Association): Thank you, Mr. Chairman.

The Chair: You have ten minutes.

Mr. Dale Kinnear: Committee members, my name is Dale Kinnear. I appear today on behalf of the 30,000 members of the Canadian Police Association. I would like to thank the committee for the opportunity to appear on Bill C-217.

We appear today to appeal to you for help by asking you to support Bill C-217 or legislation of similar intent. We believe there is support among members of Parliament and public support for the intent and scope of such legislation.

In the case of a significant exposure to blood or other bodily fluids, an exposed individual, in the absence of the best available medical evidence, has no choice but to submit to a post-exposure prophylaxis described by the medical profession as “over-treatment”. The incidence of HIV, hepatitis B, and hepatitis C in Canada continues to rise, and more and more of our members are confronted with possible exposure and unwillingly submit to treatment that may be unnecessary.

There is no single data source that can tell us just how many of these high-risk exposures have taken place in the world of emergency response personnel. We cannot provide reliable statistics on how many people refuse to be tested when asked. We are safe in saying, based on our own experience with our clients, that persons arrested by the police are not normally renowned for cooperation with the police or for complying with anything they are not compelled to do.

The committee will hear firsthand the evidence of police officers and emergency responders who have taken the so-called “PEP” treatment. Their direct evidence will provide you with a better understanding of just what it means to seek treatment blindly, in the absence of reliable medical information.

Through recently developed rapid testing procedures, modern medicine has the means to ascertain if the source person is a carrier of a potentially harmful virus or pathogen. Universal precautions, education, training, post-exposure protocols, and voluntary testing of the source person is not providing adequate protection for emergency response personnel. Exposure cannot be prevented.

Our members need the protection this type of legislation would provide in order to be safe in the course of trying to make society safe for everyone else. We know the general public supports protection for police officers, firefighters, and emergency medical personnel who routinely put themselves in harm's way. The Criminal Code of Canada, and other federal and provincial statutes, afford protection and support to police officers and other agents.

The intent of legislation like Bill C-217 is to guarantee a specific protection against a specific risk these workers must deal with in the course of shouldering their legislated task, public safety.

Beyond public expectation and support for this type of enabling legislation, we believe there is an obligation on the part of government, legal and moral, to shoulder and satisfy the duty of care and standard of care fulfillment legally mandated of an employer under both statute and common law.

Civil law rulings have also established significant legal precedent regarding the employer's duty of care. The courts, occupational health and safety legislation, and labour board rulings have addressed this obligation time and time again, an obligation most police employers do not have the ability to satisfy completely when high-risk exposures to blood-borne pathogens occur.

I would remind you all that government has been deemed the employer of civil and public servants, and federal and provincial health and safety legislation is binding on that relationship. The risk and standard-of-care determinations fall to the federal government to satisfy as employers of the RCMP and hundreds of other peace officers employed in prisons and regulatory agencies.

Federal and provincial occupational health and safety statutes also acknowledge inherent danger in police officer and other emergency responder occupations, and right of refusal is modified because of this inherent danger. Labour board and other health and safety tribunal adjudicators have imposed such conditions and obligations on the basis that decreased employee rights to refuse unsafe work must be accompanied by enhanced protection measures from the employer to make up for the limitation on employee rights to refuse unsafe work.

We believe this unfulfilled obligation justifies the remedy sought through legislation like Bill C-217, as it has other legislated solutions to high-risk work environment situations.

¿ (0950)

The limitations on the right of police officers to refuse unsafe work we can accept. The failure of legislators to mitigate the impact in situations like exposure to life-threatening pathogens we cannot.

Let us be perfectly clear on one issue: Bill C-217 needs amendment. A spectrum of issues must be addressed.

It requires a non-disclosure provision that includes a penalty for non-proscribed disclosure, by any person or means, of any source person information obtained.

The legislation should include appropriate publication bans, including court-ordered bans to the media.

The determination of grounds to order testing must be clearly defined so that it can only be based on an assessment by a qualified medical practitioner, licensed by federal or provincial regulation, or requisite professional body, to prescribe treatment and prescription drugs. The order must be granted by a magistrate or a judge on the recommendation of a qualified medical practitioner. The courts, to protect against applications for disclosure by media outlets, should seal all such applications, orders, and ancillary documentation and information. A medical practitioner must be able to refuse personally administering the test.

The potential for infection must be clearly defined as real, as it is in blood-to-blood contact or similar circumstances. By way of example, exposure to intact skin would not meet the test.

Since we last appeared on Bill C-244, legislation of similar intent and scope was enacted in a provincial jurisdiction. The Ontario legislature enacted legislation on December 14, 2001, that provides for testing of a source person. This is comprehensive legislation offering through testing of the source person a level of protection and a response to the duty of care not enjoyed by other workers similarly at risk across this country. The protection is also extended to victims of crime and good Samaritans. We believe the same protection should be afforded in federal legislation. We believe this legislation can serve as a model for federal legislation that would offer similar protection to all designated workers and individuals in Canada. You'll find a copy of Bill 105 in your brief.

We believe the type of enabling legislation we seek is best provided for in the Criminal Code of Canada or appropriate federal statute. It would ensure charter and privacy law issues are addressed to the satisfaction of those opposed to enacting such legislation on charter and privacy law arguments, and it would accommodate the necessary safeguards against non-disclosure--and appropriate sanctions--should violation of such provisions occur.

Several states in the U.S. have public health statutes and other state legislation that provide for testing of the source person when emergency responders, medical personnel, and in some jurisdictions victims of crime, are exposed.

A federal statute, the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act, also provides for notification to emergency services personnel in limited circumstances when it is determined a recipient of treatment at the facility is the carrier of a communicable life-threatening disease. It does not afford protection to all individuals at risk in all circumstances. Such legislation, although helpful and better than no legislation at all, does not address the immediacy of this situation. These statutory provisions were not crafted with state-of-the-art rapid test methodologies and protocols in mind.

Medical science has evolved and continues to evolve to a state where these statutes do not satisfy the criteria of providing the best possible medical information in the most timely fashion possible. Rapid test results of the source person will provide real-time information to medical practitioners, preventing them from having to prescribe the bombardment method of treatment for the exposed worker, or allowing them to discontinue post-exposure prophylaxis as soon as possible.

In order to help you understand what action has taken place on this issue in the United States, we've included a section in our brief to outline U.S. legislation, and also several reports from American medical and victims-of-crime organizations. The enclosed material presents a chronology of how the legislation in place today evolved in that jurisdiction.

¿ (0955)

We apologize that the information is not available in both of Canada's official languages. We did not have sufficient time to accommodate translation of all the supporting documentation. We realize as well that much of the information originates with U.S. agencies, and we apologize to Health Canada and the Canadian taxpayer. We wanted to use the most comprehensive material available on this subject. We found the report of the Center for Disease Control in Atlanta to be the best available material that covers all the issues at play in this debate.

Some of you may be aware that in the last few months, paramedics and ambulance personnel staged a protest in several parts of the country over policy that dictated that the worker was required to be immunized against influenza and other viral infections. You are no doubt aware that emergency planning and public health personnel are warning of pandemic influenza in the near future. As a precautionary measure, in response to the 2001-02 winter influenza season, employers of emergency response and other medical personnel compelled their employees to submit to immunization. Refusal led to reprimand and job suspensions that would have culminated in dismissal with cause from their employment.

Our legal advisers tell us that the immunization would be considered a bona fide occupational requirement for those workers, and a labour law challenge would have been futile, as the demand would have been considered a management right to impose. We find it rather ironic that a worker in this circumstance can be compelled to submit to a vaccine injection in order to protect people they may come in contact with in the course of offering medical assistance, yet a worker exposed to a medical risk with far more potential to be life-threatening or to leave an exposed worker with a far more serious medical and personal health prognosis than influenza cannot compel the source person to submit to a far less intrusive medical procedure.

You will also find, in this brief, considerable information from one of the leading opponents to this type of legislation, the Canadian HIV-AIDS Legal Network. We did not try to run or hide from their advocacy position. We participated in their research and their enclosed backgrounder report, “Testing of Persons Believed to Be the Source of an Occupational Exposure....” We accept their concerns about disclosure of information and hope they can access our equally relevant concerns for the safety of emergency response personnel, victims of crime, and good Samaritans.

From our reading of their report, their protest comes down to these two sentences:

The person required to be tested suffers harms to bodily and psychological integrity, an infringement of personal privacy, and a loss of confidentiality. If the results of the tests are positive, the person may experience further harms, which in the case of HIV infection include feeling stigmatized, anticipating being stigmatized, fear of the course of the illness, fear of infecting others, fear of leaving loved ones, and suicidal thoughts.

We respectfully submit that the same anguish and similar effects occur for the victims of an exposure. This reality, in a societal and government obligation to those who must put themselves in harm's way, those who offer medical assistance, or victims of crime, counteracts the reasoning of opponents to testing.

We acknowledge that the taking of bodily samples raises significant constitutional issues. We acknowledge that Bill C-217 raises important concerns relating to privacy and to rights such as life, liberty, security of the person, and security against unreasonable search and seizure, as guaranteed under clause 7. We believe properly crafted legislation can meet the delicate balance required to satisfy the risk and potential harm for our members who want resolution, while protecting the fundamental rights of the individual tested. We believe the courts would determine such a legislative provision, a justifiable limit on fundamental rights and freedoms.

We thank you for the ability and the opportunity to address this very serious issue on behalf of our members and others who would benefit from this legislation. On behalf of police officers across Canada, we ask that you please provide the legislative protection we need to make us safe as we carry out our duties in providing public safety and security to others.

Thank you.

À (1000)

The Chair: Thank you very much.

Elizabeth White from the CCJA.

Ms. Elizabeth White (President, Canadian Criminal Justice Association): Good morning. I'm Elizabeth White. It's a pleasure to be with you this morning, speaking on behalf of the Canadian Criminal Justice Association.

We welcome the opportunity to speak on this subject matter because it is one that evokes great sympathy for the protection of innocents. Working in the fields designated in the legislation or taking on the role of a good Samaritan are both very praiseworthy, yet the very essence of both is the assumption of risk. Having assumed that risk by choice, how do we as a society most adequately respond to the potential harms resulting from the acts of that designated worker or good Samaritan? We commend the proponent of the legislation for addressing this very serious concern, but we cannot support the method chosen, for four reasons.

First, we believe criminalization is inappropriate and ineffective. Second, we do not think the charter will support the approach. Third, and possibly most importantly, the results of the process itself will not address the heart of this matter, which is to know and deal with exposure to the designated diseases. Finally, the costs, both fiscal and human, will not justify the outcomes, in our opinion.

Turning first to criminalization, the criminal justice response in this bill is a very heavy-handed one. There's no indication in the bill that the situations that would give rise to claim for the warrants would be a result of criminal activity or alleged criminal activity. Yet the refusal to comply is to be sanctioned with a criminal justice response, and not an insignificant one--it's up to six months in prison. Our question is: to what end?

Is it that the threat of prison will force compliance? Punishment won't address the alleged harm of lack of knowledge. It will, however, stigmatize those who refuse. It's not a crime to have hepatitis or HIV-AIDS, and we already have remedies available for the deliberate transmission of disease.

Here there is no suggestion that the fluids contact is the result of a deliberate act of an individual, nor is there any requirement for an intentional mindset. Essentially, we are talking about accidental exposure. The issue is, how far should the state go in responding to accidents?

So there are two points on the criminalization issue. First, the subjects of the warrants have committed no crime; two, to criminalize them for the refusal won't stop anyone from getting a designated disease, nor will it assist in treatment.

Turning to the charter implications, the courts have upheld the taking of and analysis of blood samples in drinking and driving situations, and the provisions in this bill are very comparably structured to those. But the courts have placed a clear limitation, in that the consent of the individual must be obtained or the condition of the person must preclude their giving consent, whether by intoxication or other impairment resulting from the accident.

The current bill sidesteps this issue by permitting the issuing of a warrant and thereby doing away with any consent. Is that justifiable? We don't think so. It is a very significant extension of the state intervention.

Charter cases indicate that equivalent seizures of bodily samples are justified, if for a valid criminal law purpose. This bill tries to fit itself within that exception through the prohibitions listed in clauses 14 to 17.

In our view, the prohibitions listed are not sufficient to save the legislation. There is a clear history of cases linking bodily integrity and section 7 of the charter. To quote the then Chief Justice Dickson in the Morgenthaler case:

...state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person.

The proposed legislation falls squarely in the realm of those two conditions of state interference and serious state-imposed psychological stress, and by invoking criminal sanctions and placing the provisions in the Criminal Code, it comes within the criminal law context.

Given the devastating consequences of these designated diseases, the question has to be asked: is this legislation a reasonable limitation on the right to security of the person? In our view, there is no clear evidence it is, for two reasons. While the number of incidents of infection are not known with certainty, on the basis of the number actually known, they are believed to be few.

À (1005)

Of course, one of the reasons the number is unknown is that some people choose not to disclose their infection because of the stigma attached to the designated diseases by our society and the ostracism that can befall those infected. Nonetheless, there's no suggestion that the type of incident covered by this bill is either widespread or a common occurrence. So the limitation on the rights of the individual is not required because of an extensive social problem requiring an intrusive remedy.

Technically, the provisions could be invoked in every case of fluid exchange. The reasonable test that is set out--and it doesn't say reasonable and probable, which is the usual test in this kind of situation--invokes the question as to how that kind of reasonableness will be applied. In other words, just what will be found to be reasonable grounds for the belief that there may have been infection by a designated virus? We see no guidance in the legislation for determining the grounds, no requirement for a medical opinion, no framework. That's very dangerous, in our estimation.

Our fear is that certain groups will be targeted, whether by the situation in which they are found--prison, homeless shelters--or by profession--sex trade--further marginalizing and potentially criminalizing people not for what they have done but for who they are. One might ask, what next? Will we propose to make it illegal to be homeless in Toronto and send people to jail for the fact that they have no shelter? We do believe that a charter challenge would be successful.

The third point we make is that the results of the process itself will not address the heart of the matter. As the bill notes, the applicant may not show the designated disease for a very long time after contact. The same is true of the individual tested. A person may easily be a carrier at the time of the incident and yet the sample not disclose the infection. It has already been noted that the treatment for HIV must begin immediately. The process here will take too long.

Human and fiscal costs don't justify these outcomes. Unfortunately, the bill won't be cost effective in those ways. Using the criminal law to address a medical issue will be time consuming, time that is not readily available to those infected and exposed to the diseases. There will be a loss of privacy with no discernable benefit. The expenses of invoking criminal law sanctions would, in our view, be better allocated to continuing the search for remedies and effective treatments for all who have contracted these diseases.

We don't enhance our criminal justice or indeed our social justice system by creating laws that reject due process. Under clause 9 of this bill, there's no ground available to challenge the finding of reasonable grounds under clause 3. It's not adequate in terms of legislation.

The bottom line: the rationale for the sample-taking, the whole reason for this bill, is the lengthy incubation period of the designated diseases. Given that focal point, perhaps a search and seizure procedure would be in order if the situation required such a drastic intervention. But this bill doesn't go that far. Here, one can choose to sit for six months in jail and still not address the heart of this concern. The distress, stress, and worry to the person who had contact with the fluids will, in that situation, be enormous. Criminal law process is time consuming and, for very good reasons, it's replete with protections. In this case, that process is not going to assist the individual concerned about their future health.

A final note. The combining of good Samaritans and designated professionals in the same group strikes an incongruous note to us. Professionals are expected to be aware of the risks faced in interventions and to be trained in suitable precautions. They deserve no less. We should expect no less.

The good Samaritan, on the other hand, has simply and gallantly extended the hand of aid to one presumed in need, under no obligation to act. Our society benefits hugely from these acts of kindness, but they are not readily amenable to regulation. Just as there's no requirement to act as a good Samaritan, the helped person should not have to be subjected to the loss of dignity and privacy that the sample process entails.

I think we would all agree that, in most cases of contact, there would be no question of need for such a warrant as the sample would be readily given.

À (1010)

But there may be compelling reasons for an individual to refuse the sample: in the absence of a criminal action connection; in the extreme intrusion of this procedure and its potentially unequal application; in the potential for loss of privacy and the attendant harm that would result; and, importantly, in the lack of efficacy the provisions will give to right the potential harm.

In our view, the legislation should not go forward.

Thank you.

The Chair: Thank you very much.

Now I will turn to Mr. Fitzpatrick for seven minutes.

Mr. Brian Fitzpatrick (Prince Albert, Canadian Alliance): One of the arguments that seems to be presented here is some sort of charter thing about the security of the person. I'm at a loss here, because it would seem to me that the security of the person should also apply to people at risk and afford them some protection. It seems to me that this point has really been lost here.

There seems to be a huge concern about the blood sample being taken being a major intrusive procedure that would really violate the security of the person. I'm certainly not a medical expert, but I've had enough blood samples taken from my own body so that I would not lose a whole lot of sleep over that concern. I just want to make that comment.

Something that did occur to me out of this discussion has to do with hepatitis C. If I understand it correctly, there's no really effective treatment on that matter. It did cross my mind that for the person who was at risk, with the devastating effects hepatitis C would have on their ability to earn an income and maintain the quality of life they're used to, in a civil matter it might be of some significance to determine whether or not they received hepatitis C from that person. I assume this legislation does not afford that person that kind of evidence for a civil tort action. Is that correct?

Mr. Dale Kinnear: I would have to leave that one for the lawyers to sort out.

In terms of some of that medical evidence you're referring to, I think it's covered quite well in the Centers for Disease Control and Prevention report out of Atlanta. It gets down to some of those issues and the actual facts about hepatitis B and C. I would leave that for a better explanation as well.

We understand that the committee is going to call on some medical experts, in particular a gentleman from the University of Calgary hospital who is an expert on rapid testing. I would leave that for that expertise.

À (1015)

Mr. Brian Fitzpatrick: I'll just leave it that way, too. If this legislation does not assist the person in that case to prove that they received hepatitis C from that situation, you could be denying that person and his family the very evidence they would require to obtain proper compensation from the individual. It's just a point, and it could be a big point if you're the person in those shoes.

Mr. Dale Kinnear: There are several legal issues here. We're looking for protection and relief for our members who have been exposed. As far as a civil suit is concerned, we're not concerning ourselves with those types of details. We're looking for legislative protection so that we can compel that testing and make informed medical decisions after an exposure.

Constable Isobel Anderson (Police Officer, Ottawa-Carleton Police Service; Canadian Police Association): When a police officer is exposed to an infectious disease, part of our protocol is to do baseline blood work on that person. The results will indicate whether or not the officer has the disease. The reason we do that is so that down the line we can say that at that particular point in time they did not have HIV, hepatitis C, or hepatitis B. That would be proof that at that point in time I wasn't infected with anything.

The Chair: Mr. Elliott.

Mr. Richard Elliott: In response to your question, I should point out that the bill does say that the certificate of the test results for the source person is not admissible in a civil proceeding. That is, however, somewhat of an illusory benefit, because once the source person knows their test result, if they were to be involved in a civil suit, it's quite possible that they could be compelled to disclose that information during the discovery process, for example. So the mere fact that the certificate itself, that piece of paper, isn't available as evidence is neither here nor there in a sense. It's still possible for that information to be made available elsewhere.

Mr. Brian Fitzpatrick: I have one further question.

I want to get back to security of the person, because the focus here seems to be on the person the fluid or blood sample comes from, on their privacy rights, their security rights, and so on. Something that would be obvious to me is that if you're the person at risk, just knowing if you've been exposed or not makes quite a difference to your life psychologically, in terms of stress, and all of those points. A person could go through quite a long, protracted period of time worrying about something. In terms of occupational health and so on, there has been no end of cases showing that this psychological thing can really have a big effect on people. It would therefore seem to me that if there's a simple test that will clear the air on the matter and help to satisfy this person that they're not at risk, it would go a long way toward relieving them from that sort of concern.

So I'm thinking of the security of the person, whether it's the police officer, the ambulance operator, or whoever the person at risk is, in terms of them getting on with their lives. It doesn't seem to me that any people other than Mr. Kinnear are really looking at it from that standpoint.

Mr. Richard Elliott: Well, we certainly wouldn't deny that there's a potential alleviation of anxiety for the exposed person who learns the source person has tested negative for one of these viruses. That's subject to the important caveat that I mentioned before in my remarks about the potential window period, which may be particularly relevant if we're talking about someone who has engaged in high-risk activities and has a higher potential of their negative test result actually being false.

The other qualification to add about the potential anxiety-alleviating or -intensifying effect of that test result is that, in the event the source person tests positive, for example, I can't see how that would actually help to alleviate the anxiety of the person who has been exposed. If anything, it will certainly increase that anxiety. If you learn the source person has tested positive for HIV or hepatitis C and you feel there has been a significant exposure, I don't see how knowing that information could do anything but make you more concerned, and quite rightly so. So it goes both ways, and I think we need to be aware of that.

As for the issue about security of the person, I would agree with you that the actual act of taking the sample in and of itself may not be the most important aspect of all of this, although I think it's important as a matter of principle. We should be concerned about legislation authorizing the state to subject people to medical procedures without their consent. Perhaps more importantly, the potential consequences that then flow from that information, along with the lack of effective confidentiality that can be guaranteed for that information, are where the ramifications are most significant for people who test positive.

À (1020)

The Chair: Mr. Bellehumeur, you have seven minutes.

[Translation]

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): I am putting this question to the police officers. About how many actions do you think that police officers perform during a day, such as handing out tickets, performing searches or arrests for instance? How many professional acts do police officers perform each day? Does a police in a cruiser perform 10, 15, 25 of them? Have you already determined that number?

[English]

Mr. Dale Kinnear: There are thousands of interactions between the police and the public every day across Canada, whether they be traffic accidents, arrests, or domestic violence situations. There are 57,000 police officers across Canada, so in terms of those interactions with people, there are thousands.

If you're looking specifically at how many of these exposures there are, incidents in which the individual is at risk—

[Translation]

Mr. Michel Bellehumeur: According to you, how many police officers have been involved in the kind of situation where a suspect pricks an officer's arm with a syringe or where the officer comes into contact with bodily fluids? How many situations like this have you counted among these thousands of daily interventions?

[English]

Mr. Dale Kinnear: I wish I could tell you that Health Canada or one of the provincial health agencies, whether it be in Quebec or in Prince Edward Island, tracked that type of information. I wish I could tell you that I could go to Workers' Compensation in Quebec or in British Columbia and get that exact information. Unfortunately, we can't. The employer cannot disclose it. The Workers' Compensation organization cannot disclose it.

We know from anecdotal information and reports just to the Canadian Police Association that in the last four or five years, hundreds of our members have had that type of exposure. We know in terms of needle sticks at medical facilities that there are a great number of them that occur every day. So we know these types of exposures are happening. This is as real, in some aspects, I suppose, as any other occurrence in the criminal law or common law.

We know it's going on. You will hear evidence. We have a police officer here for this particular portion of the panel who was exposed. You will hear more evidence that it's going on every day for emergency responders, police officers, and firefighters. And I guess the question I would ask is, how many exposures does it take to trigger this type of legislation?

I would turn the question back on you and say give us the number. Tell us what it is. How many of those kinds of exposures do we have to have?

[Translation]

Mr. Michel Bellehumeur: I am the one who puts the questions. Every four years, we have an opportunity to get elected so that we can put questions to witnesses.

I gather that a hundred or so of your members may have been involved in situations like those that this bill is aimed at, and this might concern them. According to you, in how many cases did the person involved voluntarily submit to sampling? Would it be half? Would it be 100%? According to your information, did none of these persons accept to have a sample taken?

[English]

Mr. Dale Kinnear: Again, Monsieur Bellehumeur, I wish I had a data source I could go to and tell you just exactly how many people have turned us down. I know the consent level is very high--probably higher for medical practitioners than it is for police officers.

We know from our experience and from what we hear going on out there that in the medical facilities and institutions this information is being shared now. It's not being shared legally. It's not being shared lawfully. But it's being circulated in those facilities, and I think that's why you will find the people from the medical associations and the medical establishments aren't here today, because they are looking after themselves.

We have nothing to look after ourselves with in this circumstance. We know there are a lot of refusals. People aren't necessarily as cooperative with the police as they are with other professionals. I wish that was not true. I wish in every circumstance it would be a matter of asking.

We heard evidence here today that in the States, the compliance, the consent, is quite high. I would remind the committee that in half those states there is compellable legislation. I would submit that an individual who knows he can be compelled to submit is probably going to comply.

I wish I could give you those exact details. I can't, because they're not available. And some of it is protected by privacy law.

À (1025)

The Chair: Mr. Elliott wanted to comment.

Mr. Richard Elliott: I'd just add that indeed it is the case that health care workers face by far the highest risk and the highest incidence of occupational exposures to blood-borne illnesses. Yet leading national medical organizations in Canada do not support compulsory testing. The Canadian Nurses Association says it's not warranted. The Canadian Medical Association, after getting two legal opinions and an epidemiological study, said it was not justified. The Canadian Association of Nurses in AIDS Care does not support mandatory testing. And unions that represent people working in health care settings, such as CUPE and the Ontario Public Service Employees Union, don't support compulsory testing. And those are where the risks of occupational exposure and infection are highest.

The Chair: Monsieur Bellehumeur, you have one minute, if you need it.

[Translation]

Mr. Michel Bellehumeur: What would happen if no qualified medical doctor or technician accepted to carry out the court's mandate? I checked with some associations, and none of them wants to get involved in this, for all kinds of reasons.

For instance, if we obtain a warrant under this act, and police officers bring in the suspect or the person involved and no technician or doctor wants to comply with the warrant, what would happen then?

[English]

Mr. Dale Kinnear: In my view, the physician should be able to refuse.

The Chair: Mr. Strahl, for seven minutes.

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

I do thank the Canadian HIV-AIDS Legal Network for putting this document together. It was a very good brief and it is very extensive. I particularly take into account the privacy concerns about the test results of this sort of information and what it might mean. They are the same concerns as were brought forward by the Canadian Police Association. I do think the bill would need to be amended. When I put the bill together, I tried to address that by talking about what should happen to the blood sample, but as has been correctly pointed out, we're going to have to strengthen the provisions as to what is done with the test results, which is, of course, not the same as the blood sample itself, but actually what measures we need to take place to protect people's privacy once the results are known.

I do think, though, we run the risk, in this kind of technical discussion, of avoiding the very human element of what effect not knowing whether someone has an infectious disease has on the person who is potentially infected. We have not heard from Ms. Anderson today specifically, but I was particularly struck by Ms. White's conclusion that there is potential stigmatization for someone who refuses to give a blood sample. But my goodness, there is a huge stigma that goes with people who potentially are infected. As has already been pointed out, it does cut both ways.

I wonder, Ms. Anderson, if you could tell us what happened when you felt you were at risk and possibly infected with a disease, and what effect that had on you, both professionally and as an individual.

Const Isobel Anderson: First, yesterday I was walking to the courthouse, and one of the lawyers approached me and asked me whether I was okay. I said, yes, I am fine, thank you. He asked me whether everything is clear. I said, I don't understand. What he was asking was if I was HIV- or hepatitis-C-positive. I have often been approached by people in this city, because of all the media coverage. I do have a stigma attached to me because of what I went through four years ago.

When I went home that day to talk to my family, to tell my children and my husband that I potentially was exposing them to a life-threatening disease, not knowing whether or not I had contracted HIV or hepatitis C, I could never begin to communicate to you exactly the emotional trauma I went through. I have a broken marriage because of that. Those are casualties of war, but I will tell you that the day I received the results from that individual and I found out that he was HIV negative, I knew there was a chance that it could still be a false negative, but to me, it was a great burden that was lifted from my shoulders. A couple of days later I was told that he was hepatitis C positive. I knew there was a chance I'd contracted hepatitis C, but what that meant to me at that point was that I had to take the necessary steps not to infect my family. I also had to take the necessary steps not to infect my co-workers. Every time I went to a call after that and I potentially exposed a person I was arresting or my fellow worker to diseases, it was up to me to tell them that: I have been exposed to HIV and hepatitis C, and there is a possibility that I might be exposing you to it. I have to do that, because I have taken an oath to save lives. For me not to tell the person I am arresting or giving aid to or the officer I am working with is against the oath I took.

À (1030)

Mr. Chuck Strahl: We have all been trying to find statistical evidence as to how often police officers and others are potentially exposed to this, but it all seems to be anecdotal. It is hard to get the summary, because the people who treat, the people at Workers' Compensation, and others, just don't keep the stats separately.

Ms. Anderson, what in your experience is the frequency of serious exposure? You are exposed in these interactions daily, but what would be considered a serious thing, such as a needle injury? Some police officers have told me that in a car accident, where you are trying to get someone out of a vehicle with broken windows and so on, chances are you are going to get cut, and you could get blood mixed in. How often do what you would consider serious invasions of police officers occur? Do you know of other instances besides your own?

Const Isobel Anderson: Yes. Unfortunately, I've become kind of an unofficial expert on this. I get called at two or three in the morning sometimes because an officer is at the hospital with an exposure, and also the fact that the Ottawa police itself, our members, have at least 40 significant exposures every year.

To answer what Mr. Elliott said earlier on, that the health professionals, the doctors and the nurses, are not coming forth for this and they don't believe this is the correct thing to do, they face a controlled risk; we don't. We don't have the option of saying, look, hold on a second, I'm just going to suit up here so I can deal with you. Oftentimes we get to the hospital and the other person is out of control. We have to control the risk. We have to make sure that we eliminate the risk to everybody else around us. So, unfortunately....

Mr. Chuck Strahl: In those 40 cases that might come forward, how often do people voluntarily give a blood sample? I know in your case, of course, it was well documented in the paper where a homeless person gave a blood sample in return for a hamburger, which is a sad...

Actually, it's not the only case we've heard of like that. The cheeseburger offer will often buy you a blood sample in return, which, when people's lives are on the line, is somewhat sort of black humour if that would happen.

But of those 40 cases, how many would voluntarily give a blood sample, do you think?

Const Isobel Anderson: I wouldn't be able to tell you offhand. I know a lot of the people do consent when you reach them from a humane point of view. But a significant amount do refuse anyway.

Mr. Chuck Strahl: All right.

It does seem to me that, in the statistics you gave, Mr. Elliott, most source people agree to be tested--of course, especially in a hospital setting, people are in there to be treated; they're in there for health reasons as opposed to, say, criminal justice reasons. One of the appeals of the legislation is not that it would be a heavy hammer used or would plug up our courts with a problem with people who have refused to give a blood sample, but that it would be very rarely used. Of these 40 cases, perhaps, if the statistics are true, maybe 80% of them will voluntarily do so. If you had legislation in place, probably another half of them, or whatever is left, would again say, well, if I have to, I have to, and they would follow through. You're going to be looking at very few people.

For the police officers or for others, it may be very few, but it's life-threatening and not just psychological. The anecdotal stories are just like Ms. Anderson's. The effects on these people are broken marriages, lack of intimacy with their spouse, fear for what they could do, an inability to continue on in their job. In all of it, you talk about “stigmatized”, but it seems to me, for those very few cases, this kind of legislation would give that reassurance and help. I don't think it's going to be a lot, but boy, the few it's going to help are going to be significant.

Even in the brief you put together, the organization, talking about the test results, said this is a significant benefit, talking about the relief of anxiety and a forgoing of post-exposure prophylaxis. It says:

This is a significant benefit in the case of exposure to HIV because, although post-exposure prophylaxis is available and is effective in preventing transmission, it is also accompanied by debilitatingside effects and other risks.

In other words, there is a significant benefit to knowing this information, because it does affect how people follow through on the prophylaxis treatment.

À (1035)

The Chair: Thank you, Mr. Strahl. We've gone over by a couple of minutes.

We're going to go to Mr. Maloney.

Mr. John Maloney (Erie--Lincoln, Lib.): The area that we haven't addressed yet is the division of powers under our Constitution, between the federal government and the provincial governments. Can anyone on the panel give me some advice or some counsel on the situation of whether this law follows, then, the federal government's criminal law powers, or is it more of a health jurisdiction under the jurisdiction of the provinces?

Mr. Richard Elliott: I can speak to that. Certainly in our view it does not fall within the criminal law power of the federal government. Certainly the part that applies to good Samaritans, for example, really just hangs out there. It has no even ostensible connection to the criminal law, and for the part that actually proposes to amend the Criminal Code I think it would obviously be begging the question for a bill to be found to be in exercise of the criminal law power simply because it proposes to amend the Criminal Code. That's really putting the cart before the horse.

Certainly the way it's been discussed today and elsewhere, including in the Commons by Mr. Kinnear, we heard the language of occupational health and safety, and that's really what this is about when we're talking about responding to occupational exposures. We're talking about dealing with occupational hazards, whereas, as Ms. White pointed out, there isn't necessarily any connection to any criminal wrongdoing; there's no requirement for any prima facie case of criminal wrongdoing on the part of the person who's going to be subjected to compulsory testing and imprisoned for failing to comply.

So it strikes me as quite a stretch to say that it falls within the criminal law power, and there was some discussion before the committee previously when it was hearing about Bill C-244, the predecessor to this, which is identical, that the Supreme Court's then anticipated decision in the firearms reference might have something to say about the parameters of the federal government's criminal law power.

In that case, the court did uphold the federal government's right to legislate in the area of gun control, but in my submission it doesn't actually lend any further support to the notion that this kind of legislation is a valid exercise of that criminal law power because there isn't the appropriate nexus to criminal law, and in that case what the court was talking about was regulating inherently dangerous objects for public safety. That's a rather different thing from dealing with specific individual cases, and, as we've heard, there are relatively few cases where a worker has encountered some occupational hazard in their job.

Mr. John Maloney: Mr. Kinnear.

Mr. Dale Kinnear: If I could respond to that as well, I think there's no doubt that in terms of division of power, maybe as a health question this belongs squarely with the provinces, but one of the concerns we have with that is then we're deflecting this towards the provinces and we're going to have the potential for ten different pieces of legislation addressing this issue.

I think if it's addressed in the Criminal Code, that greatly assists being able to deal with issues like disclosure of information and that type of thing. And I think--and I'll leave this for Mr. MacKay and the other readers of the law--there are many situations out there in the Criminal Code where the federal government has taken carriage of a certain issue, and I'll use impaired driving as that example. The licensing of vehicles and pretty much everything that goes on with vehicles is provincial responsibility, but they've deemed the impaired driving statute to be something that falls under the federal law, under the Criminal Code, and I think the same can be said for certain parts of this.

To appear to be somewhat selfish here, in most of the circumstances involving a police officer there is going to be the nexus with the criminal law, whether it's a person refusing or resisting arrest or someone who has assaulted a police officer. So I think that nexus is going to exist. Certainly with victims of crime that nexus exists with the criminal law, and we would just say that's squarely where it belongs in order to address these very sensitive charter issues and privacy law concerns.

Make no mistake about it, the Canadian Police Association is not looking for legislation to go out and target certain individuals in the community or have blood samples taken in every circumstance, in every situation. That's not what we're after here, and we think because of all those series of concerns pointed out by the other people on the panel that it squarely belongs in federal jurisdiction.

À (1040)

Ms. Elizabeth White: I have a final note on that, and it is that whether or not the legislation is intended to target certain groups of people, our experience through and through with Criminal Code provisions is that they do target, that we do tend to deal with the marginalized, and that the average Joe citizen is not the one who is caught up in code provisions generally.

I would reiterate what Mr. Elliott says, that this is a matter for provincial intervention and it is not problematic to have ten or twelve different pieces of legislation. They can be very similar in their scope. They can be mirrored on one another, just as other areas of provincial legislation tend to mirror one another across the country, unless there are very sound reasons for them not to.

The greater danger to us is to continue to expand the scope and breadth of the criminal law in areas where it doesn't belong.

The Chair: Thank you very much.

Mr. John Maloney: Would someone comment on the constitutionality of that? Is that squarely within the provincial jurisdiction?

Mr. Dale Kinnear: Well, it only received royal assent shortly before Christmas. To my knowledge, there's not a circumstance where the provisions of the law have been exercised. I would say there's a better than average chance that the first time it finds its way into any kind of a courtroom somewhere, it will be subject to a charter challenge and will find its way across the street over here for that type of determination.

We're confident that it will meet the test in section 1 of the charter. There have been some lower court decisions on DNA testing, as a matter of fact, that have been a lot broader than what the specific intent of the law was. I believe it was in British Columbia.

The Chair: Mr. Elliott.

Mr. Richard Elliott: I think Bill 105 in Ontario probably does belong much more squarely within provincial jurisdiction than Bill C-217 belongs within federal jurisdiction.

That said, I would add the comment that certainly the chief medical officer of health for Ontario told the Ontario legislature that in his view, Bill 105 was bad public policy, that it was an inappropriate response from a public health perspective. He pointed to more viable alternatives for dealing with occupational exposures that adequately achieved the objective that all of us here actually believe is important, and that is providing adequate support to people who have been occupationally exposed.

So I would add the caveat that yes, the constitutionality on division of powers grounds may be there, but that doesn't mean that some of the other concerns disappear.

The Chair: Thank you very much.

Mr. Fitzpatrick, for three minutes.

Mr. Brian Fitzpatrick: Mr. MacKay probably is the best expert on constitutionality here, but I would venture to guess that property and civil rights are a provincial area. When criminal provisions come in on theft, you're intruding into those areas.

There are tons of examples in the Criminal Code where we've legislated in areas where you can make an argument that there's a jurisdictional thing at the provincial level, but the courts have consistently upheld the federal power to turn it into a criminal law. The argument on firearms registration certainly came up through that point of view as well. So I don't think that's a really strong reason for opposing this bill.

There's the other thing too that said we're making the refusal to do it into criminal behaviour. The Criminal Code is full of that stuff, like refusal to give a breathalyzer test, search and seizure, etc. If you follow a certain process, the person has to comply with these requests, giving evidence in a court of law. Maybe you watch a lot of American television, but basically, other than self-incrimination or solicitor-client privilege, you're required to testify in court. If you don't, you're going to be in trouble. So that to me is a really bogus argument.

One argument here that I find totally incredible is the idea that police officers will deliberately expose themselves to fluids and so on so they can start targeting and marginalizing people. I find that an incredible argument. I just can't visualize police officers deliberately putting themselves at risk in order to do something like that.

What that has to do with this homeless situation is a whole other topic. I don't think it has any relevance at all to what we're dealing with today, and I'm not exactly sure why that was even introduced.

Those are just three comments I would make. If anybody wants to respond to them, they can.

À (1045)

The Chair: I get the impression that some do.

Mr. Elliott.

Mr. Richard Elliott: With the greatest of respect, Mr. Fitzpatrick, I don't think anyone has actually suggested that police officers will deliberately go out and expose themselves to the risk of infection to target marginalized people. I don't think that was anybody's suggestion.

With respect to whether or not there's this nexus with the criminal law, as we've been discussing, there are going to be very few circumstances in which there would be any potential benefit to be gained by compulsory testing, but the way the bill is drafted, it certainly is much broader. As I think Ms. White was pointing out earlier, it applies to all sorts of situations that don't have any appreciable nexus to any sort of criminal law provision.

The way Bill C-217 is drafted now, the person who is the victim of a roadside accident and receives assistance could find themselves subject to compulsory testing and to the attendant risks of loss of confidentiality, etc. There's no suggestion of any criminal wrongdoing in a case like that, and yet Bill C-217 goes that far. Any patient accessing health care services could, depending on how things transpire, find themselves in the circumstance of being subjected to compulsory testing. There's no criminal law nexus in those circumstances. So the point is simply that I don't think a lot of what Bill C-217 actually applies to now can be covered by that in any way.

Ms. Elizabeth White: I just want to echo that comment. There's no suggestion that any of the designated employees would deliberately expose themselves to bodily fluids.

However, I do think the point needs to be taken up that while there are provisions in the code that compel people to give evidence and to give physical evidence, this is a further extension of that, and an unnecessary one, in our view, and an overly intrusive one. It's not to suggest that those provisions don't exist in the code; they do. This is an unnecessary extension.

The Chair: Mr. Bellehumeur, three minutes.

[Translation]

Mr. Michel Bellehumeur: I am also concerned with the constitutional aspects, and with the federal or provincial accountability defined by this act. Questions were already put about this matter and I am quite satisfied, Mr. Chairman.

[English]

The Chair: Do we go to our constitutional expert?

Mr. John McKay (Scarborough East, Lib.): I think it's probably safe to assume that neither of us is a constitutional expert.

The Chair: Mr. MacKay.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Thank you very much, all of you, for your compelling testimony. It occurs to me that this is really an issue of modernizing the law, taking into account that circumstances have evolved where, for example, communicable diseases seem to be sadly more prevalent. For other reasons in the past, the law has evolved too--the taking of DNA, the example of firearms legislation, blood and breath samples and their use in the criminal system. Even the disclosure of evidence by crown attorneys has evolved in fairly recent years. It seems that we are faced with the following problems. How do we improve this system, and how do we put in place sufficient safeguards to ensure that privacy rights are going to be protected as well?

What limited constitutional expertise I might have suggests to me that when the Oakes test would be invoked, and when we start looking at the proportionality and the protection of individuals in a profession, or even good Samaritans, when called upon to act to save a human life, the loss of confidentiality versus the individual... Ms. Anderson has put before us a very human circumstance where there is the loss of enjoyment of life, the loss of employment--all of the consequences that can flow from not knowing whether they have in fact been infected or not. There is also the simple message it sends to private citizens, as well as those in any occupation, that if they take the chance, if they choose to take the risk, as Ms. White put it, they may in fact be handed a death sentence.

I suspect that if this law was passed it would certainly make its way to the Supreme Court of Canada. I would be very surprised when that happens if Madame Justice McLaughlin and the Supreme Court justices, faced with the consequences of a person in this circumstance, as Ms. Anderson was, of a person's privacy and confidentiality, not to belittle that right... that section 7 argument in an Oakes test scenario would be justified.

It seems to me that this is more about common sense and simply crafting legislation that will meet the standards, improving this test.

The Canadian Police Association have provided a couple--

À (1050)

The Chair: You'd better bring it to a close.

Mr. Peter MacKay: Okay, I'm bringing it to a close, Mr. Chair.

Nondisclosure provisions could be tightened. Certainly legislation could be tightened up to include the banning and the publishing of the person's identify. As to judges, I'm sure we can improve the test, and the standard could be applied for a warrant. I'd be particularly interested to hear from Mr. Elliott and Ms. White as to whether they see, in any circumstances, how we can craft a law that will provide the protections they're concerned about.

Ms. Elizabeth White: It's a very short answer: not likely. No matter how you recast this legislation, the death sentence that can come with exposure to these diseases is not going to change. That is the totally horrible and regrettable fact.

Mr. Peter MacKay: And it's not worth trying.

The Chair: We'll have to limit the dialogue or we'll never finish. Mr. Elliott also wants to speak to this.

Mr. Richard Elliott: I would simply point out that in doing this balancing, the very serious harm that flows from the loss of confidentiality for people with HIV, for example, hasn't received adequate recognition or consideration up to this point. Those three words can slide by. But we need to unpack them and think about what this actually means for people.

People who are subjected to HIV testing will likely never be able to access health or life insurance. They may never be able to get permanent residence status in Canada. Victims of domestic assault could find themselves tested for HIV as a result of this, with public health authorities then under some obligation to try to notify the potentially abusive spouses of the fact that they are now HIV positive. There are any number of situations in which Bill C-217 could apply, with some very significant consequences for people with HIV, if confidentiality is breached. I don't think we can minimize this--which is not to minimize the experience of Ms. Anderson and others.

Mr. Peter MacKay: What about the harm to the recipients?

The Chair: The chair recognizes John McKay.

Mr. John McKay: I wanted to go back to Mr. Maloney's last question. Between Mr. Strahl's Bill C-244 and the present incarnation of Bill C-217, and Bill 105 that the Ontario legislature has passed... and I take your constitutional arguments here.

Having said that, did any of you appear before the Ontario legislature's standing committee? Did you offer any constitutional opinion on the issue? Have you formed an opinion with respect to what seems to be the legislative scheme here, where a person applies to a physician who goes through a series of tests and then decides whether or not to make an order? It strikes me as a scheme that does not build in some of the constitutional safeguards both of you were concerned about.

So I would be interested in (a) whether you did appear and (b) what opinion you did offer on its constitutionality, ignoring its efficacy and whether it's a good idea or a bad idea for society. That's our decision. I would be interested in your responses.

À (1055)

Mr. Richard Elliott: The Canadian HIV-AIDS Legal Network did request an appearance before the Ontario committee. Unfortunately, the Government of Ontario chose not to hear any witnesses, other than their chief medical officer of health, in a very short timeframe before enacting the legislation. As I mentioned, their chief medical officer advised them that this was bad public health policy and an inappropriate recasting of the role of medical officers of health. This was the extent of the input the government received through committee hearings. We did raise some of these constitutional concerns with the government at the time, but we did not have a chance to present to them directly.

The Chair: We now go to Mr. Cadman for three minutes.

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

I want to get back to this issue of targeting because it seems to be an argument against the bill. I'm having trouble getting my head around how certain segments of society or certain individuals are going to be targeted by this. I'd like some examples of how you envision somebody could be targeted, how individuals could be singled out, by this legislation.

Ms. Elizabeth White: The way the legislation is crafted, the request for the warrant to get the bodily sample could be made in any situation, correct? We suggest that this will result in targeting because there are numerous circumstances when the designated employees will come into a contact situation and will not see any need to request a blood sample. There's a screening process that goes on in one's mind when one is in such a situation. There is an assessment done of the person on the street and an expectation by many that this person is more apt to be carrying an infectious disease. We think the targeting will come in at that level.

Mr. Chuck Cadman: Is this necessarily a bad thing? Are you not talking more in terms of profiling as opposed to targeting?

Ms. Elizabeth White: If you prefer the word “profiling”, feel free to use it. It doesn't change what will happen. It will be the same people who are chosen to have this law applied to them, and in many cases the results for them will be criminalization.

Mr. Chuck Cadman: So you're suggesting that for a victim of a car accident, no matter who it is, the emergency worker who comes on the scene and gets splattered with blood or bodily fluids is going to make the determination “This is a Porsche as opposed to a Volkswagen, so I won't bother going after this individual”. Is that what you're suggesting?

Ms. Elizabeth White: I don't know whether a Porsche would be the exclusionary criterion, but I am saying that we do a lot of targeting and profiling in our criminal system.

The Chair: Mr. Kinnear.

Mr. Dale Kinnear: I take exception to the comments regarding profiling. I don't think “profiling” is the right term to use here.

The people who are going to be tested are the people who have been involved in an exposure. This is not walking down the street rubbing elbows with these people. This is a police officer or emergency medical responder who has come to the assistance of someone--let's say it's a prostitute who perhaps has been the victim of an assault--and who, in the course of trying to offer medical aid, to provide some type of assistance, or to arrest an intravenous drug user on a bad high, is poked with a needle or stabbed with a knife.

So these are going to be the types of circumstances. It's hardly profiling, hardly targeting. I don't think we want to grey what's going on here by looking at it as profiling. It's going to be as a result of that interaction, what's gone on with the police officer or the emergency responder, whether it be in a circumstance where you're trying to help them or trying to impose the rule of law upon them. That's what's going to drive these situations. I can't imagine how, as it was put by one of the other members of the committee, one would target, or even why you would target, somebody in this circumstance.

Ms. White talked earlier in terms of what will be going through these police officers' minds when they deal with these people. Well, I would suggest to you it's going on anyway, because there are universal precautions when it comes to the risks we're told to be aware of when we're dealing with people who have a high incidence in their social group or whatever the case may be. I mean, when you get involved--and this has been reinforced by the people who sit on either side of me--we are told about these universal precautions, this education, and everything else.

It's going on now when we deal with intravenous drug users in the worst parts of Vancouver. I'm sure a lot of these people don't like it when we come towards them snapping on rubber gloves, but this is the type of thing that's going on already because of the circumstances we're dealing with out on the street, where the exposures exist.

Á (1100)

The Chair: I want to thank very much the members of the committee and our panellists from the Canadian HIV-AIDS Legal Network, the Canadian Police Association, and the Canadian Criminal Justice Association for helping us in our deliberations.

I'm going to suspend for a few minutes to allow the current witnesses to find their way somewhere else and to give the next panel the chance to come forward.

Á (1109)

The Chair: I want to call the 62nd meeting of the Standing Committee on Justice and Human Rights back to order. This second panel is scheduled to meet from 11 a.m. until 12:30 p.m. We're starting probably five minutes late, so we'll consider that at 12:30 p.m.

We have as witnesses Andrew and Val Hoglund, appearing as individuals.

From the Paramedic Association of Canada we have Paul Morneau. And from the British Columbia Persons With AIDS Society, Glen Hillson, their chair.

I think you were here for some of the earlier presentations. Please keep your presentations as much as you can inside ten minutes. I'll give you a signal when you have a minute left. I'm not really tough about this, but we want to get everybody in, get questions, and have a good dialogue, as I'm sure you saw the last time.

On that note, we'll start with our individual presenters, Val and Andrew Hoglund.

Á (1110)

Mr. Andrew Hoglund (Individual Presentation): Thank you, Mr. Chair. Good morning.

Val and I are obviously married. We're both members of the Edmonton Police Service, and we are here today to support this bill. We came from Edmonton to show our support and to share with you a personal experience that we went through as a couple. Val will tell you about the incident.

Mrs. Val Hoglund (Individual Presentation): In October 2000 I responded to a call at our Coliseum LRT Station to assist transit security. They had two males under arrest. They were in handcuffs, they were intoxicated, and they were uncooperative and fighting with them. At the time I took over the arrest, I performed a cursory search of one of the males, looking for weapons and any identification to identify this person. At the time I searched the right front pocket of his jeans, I had on latex gloves, and as I carefully spread open the top pocket, there was a used, bent, uncapped needle poking up at the top, and it penetrated my thumb. As my thumb began to bleed, I began to panic, because I knew what was going to be happening to me in the next little while.

I had to call down other officers to take over the arrest for me, as my partner drove me to the hospital. I had never had such quick, expedient service from medical staff. I had a doctor sitting in front of me on the edge of her chair, practically staring right into my eyes, telling me what was going to be happening. She explained that I would be faced with some very difficult decisions about my health for the rest of my life. At that moment the doctor told me that I might have to take what's called an AZT cocktail to prevent contamination of my body from any blood-borne diseases this individual I had under arrest might have had. I was scared--terrified, actually--and I phoned my husband at home to tell him. He said it was extremely important that we get this individual to consent to a blood test, so that I would know if he had HIV, especially, or any other infectious diseases.

So I got in touch with the member who did have him under arrest and explained to him that it was very important that he consent to a blood test and come down to the hospital as well. The hospital we were at could perform a rapid HIV test in 30 minutes and tell me if this individual had HIV or not. So I was desperately hoping that he was in good hands with this other officer and that I would get consent to this blood test. In the meantime, the rest of my life flashed before my eyes. Of course, being recently married, I wanted to have children very desperately, and I was also told that there may be some side effects for possibly having children. It turned out that this subject refused to have a blood test, until he was driven by a McDonald's, which seemed to trivialize what I was going through at the time, and he decided that he would take a blood test if he could have a Big Mac.

It turned out that I did not have to take the AZT and I did not have to go through any side effects such as they had described to me. I was informed right away that he was not HIV-positive. The next day I was told that he was hepatitis C positive. I had learned more about this individual, that he was an intravenous drug user and the rest of that stuff. I guess I was kind of shocked that this had happened to me, being a 12-year veteran of the police service and keenly listening on my training days. I thought I had done everything properly in this search. Still, I was exposed. I didn't expect to go through what I did go through.

I can't imagine what the rest of my life would be like if I had to take the chemical that is so underestimated as to what its effects are. I feel as if I had no protection. Being a very strong woman my whole life, I felt at that point the gun on my side, the pepper spray, and handcuffs weren't doing any good for me at all, and I can't believe that police officers don't have protection when they are subjected to what I dealt with.

Á (1115)

So really, the bulletproof vest I was wearing wasn't as bulletproof as I thought.

Mr. Andrew Hoglund: I'll just talk to you about my side now. It's a little different, I guess, both of us being police officers. It's usually the male who is the police officer and the female who gets the phone call in the middle of the night. In our case it was reversed. We were on opposite shifts, and I was at home sleeping. Val phoned me and told me what had happened.

As Val mentioned, we had been recently married and had been trying to conceive a child for three months. I wasn't very aware of the AZT or all the effects that could happen. Once Val told me the possible side effects of the AZT, some of the questions were whether Val could contract HIV from this person, whether we could continue trying to conceive a child or would ever be able to have a child. Although it was within a matter of three hours, it felt like about seven days. I knew the officer personally who took over the arrest, so I was phoning him, I was talking to Val. Finding out what infectious diseases this guy had was my main focus. I told him we would do anything possible, drop any charges that were pending, do whatever it took. Eventually, it was a Big Mac at McDonald's, and the tests showed he wasn't HIV-positive, as Val said.

Allowing Val not to take the AZT was probably the biggest thing for us. I've been a strong supporter ever since then, and I've been a go-to person within the Edmonton Police Service for information and involvement in this. Although over a year and a half has passed since our direct involvement in this, that's how strongly I support this. It would have been a complete waste for Val to have taken the AZT and subject her body to what she would have had to do just to err on the safe side, which I'm sure every single person would do. Of course, you're going to have to err on the side of safety and take this AZT. Why put your body through it and go into something where all the side effects aren't known?

I've heard the question of human rights come up a number of times, and I stand very firmly on this. This one gentleman was willing to sacrifice this human right for a Big Mac. Although I understand it is a human right, I look at Val's rights as another human being and how it directly involves me and the potential for our family. Now try to tell your parents. For us, it was telling our parents and all our family that this was what was going on. There's being looked at in the police station when you show up for work, as well as the stress that has been put on our marriage.

So if no blood sample had been taken, we would have had to do the AZT. We've talked about it for hours at length, and I'd hate to see where we'd be now. As it's turned out, we have a one-month-old baby boy, so it's turned out well for us. I just don't want to see it happen to anybody else, where they don't have as good results as we had. That's why we support it so strongly.

The Chair: Thank you very much for coming and sharing your story.

I turn now to Mr. Morneau.

Mr. Paul Morneau (President, Paramedic Association of Canada): Thank you, Mr. Chair and committee members.

My name is Paul Morneau. I'm the president of the Paramedic Association of Canada, which is a professional association that represents over 12,000 paramedics across our country. I have been a paramedic in both urban and rural settings for 12 years. Prior to my professional status, I volunteered over a seven-year period as an emergency medical responder for several groups.

Thank you for the opportunity to appear today to speak about the Blood Samples Act. I'm here to try to impress upon you the difficult situations faced by front-line paramedics every day. While in the course of providing lifesaving care to the sick and injured, Canadian paramedics often put their own health and safety at risk. The very nature of a paramedic's job is such that we're forced to respond to both violent and/or bloody scenes on a regular basis.

While we fight to save somebody's life, we often end up covered in that person's blood or other bodily fluids. When we crawl into the overturned car to administer lifesaving medications, we end up cutting ourselves on the shattered glass or the torn metal. When the paramedic is assaulted by a violent patient, or when we realize that those abrasions on our arms have come into direct contact with our patient's blood, we suddenly become the victims, not just the rescuers any more.

A paramedic then has to endure mental anguish wondering if we may have contracted a deadly or debilitating disease. When the patient refuses to give a sample of their blood to be tested for HIV, hep C, and hep B, the paramedic is then forced to take an often debilitating drug cocktail, hoping that any potential viral infection is eradicated. I'm told that the effectiveness of this treatment is limited at best.

At the end of your 12-hour shift, you suddenly realize you're taking your job home with you. You wonder whether you're bringing home a disease to your spouse and children; whether you can make love to your wife; if you will die.

I know some people wonder why paramedics do what we do. Why would paramedics take the risks we take? Paramedics welcome the opportunity to make a difference in people's lives. It's our job to save the lives of your friends and your family.

While working on a cardiac arrest patient just last week, my colleagues and I managed to get a pulse back. The lady's son looked at me with sincere gratitude in his eyes and said, “Thank you so much”. He was thanking me for saving his mother's life. That's why we do what we do; that's why we take the risks we take.

Paramedics do what we do in an effort to help others. We take the risks in order to help society. We have a duty to respond to calls for help. We have no choice to decide which calls we will go to and which ones we will not. For these reasons, society should return the favour and ensure that we have timely access to information that will allow us to make the appropriate choices about our own health and safety, and the health and safety of our family and friends. The Blood Samples Act allows for this.

Over the past few years I've forwarded thousands of petitions and testimonials from paramedics to the Hon. Anne McLellan. Here are a couple of examples of what a few Canadian paramedics have gone through.

On August 9, 2001, Wendy L. McKnight, a paramedic from New Brunswick stated:

I am in support of Bill C-217. 'Having the right to know' is essential. As a paramedic we give of ourselves unselfishly both mentally and emotionally to strangers time and time again. Contracting hep B, C, or a human autoimmune deficiency virus unknowingly at work and then exposing our loved ones is unacceptable. When a patient is diagnosed, the hospital staff is aware of this--as it is written in their charts. Why should we be excluded from this imperative piece of information? We have the right to know. Our lives and the lives of the ones we love depend upon it.

On January 10, 2002, an Alberta paramedic wrote:

This note is written with the intent of support for the Paramedic Association of Canada and the lobby for Bill C-217. It is with some trepidation that I relate this testimonial. During a recent shift my partner and myself responded to a call at a rural hospital for a patient with suspected mixed drug overdose. During the transfer of the patient to the ambulance cot, the patient became combative, verbally and physically--a serious threat to no less than five health care professionals. I was personally fortunate to avoid his targeted punches and serious injury, but the patient did manage to remove his intravenous line with the use of my face. I sustained numerous minor facial lacerations in the process.

I am quite certain bodily fluids were exchanged. I was very disheartened to learn that only with the patient's consent could he be tested for hep C, B and HIV. Good luck. He was not rational and now under the influence of even more medication. Then the reality set in. Could I give my five-year-old and my nine-year-old a kiss on the lips before going off to school? Could I safely resume relations with my beloved wife without precautions? Something that has never been required in 14 years of marriage. Will I now be taking prophylactic medications for the next four weeks? Anybody could at least empathize that these are rather life-altering concerns for any front-line health care provider.

Á (1120)

On October 3, 2001, Craig McCleary, an Ontario paramedic, writes:

I support the Blood Samples Act. My wife and I are both paramedics in Ontario. Last year my wife received a needle stick injury during an overdose call with a patient that was a known drug user. By the time the Hospital had obtained permission to test this person's blood it was 4 days later. In the meantime she had to be placed on the prophylactic treatment. I don't know if you're familiar with this, and if you aren't I suggest you do familiarize yourself in regards to the severe and sometimes very dangerous effects this treatment has on the individual. The stress added to our lives by not knowing was incredible. Could you imagine having a loved one, the mother of your 2 & 4 year-old children, on death row on a whim? Think about how you would feel. I implore you to take the necessary steps to see that this bill is passed. We as the guardians of your safety and health deserve this. Thank you.

And one last example, December 31, 2001, Barnet Wexler, a Quebec paramedic writes:

During one of my shifts I was attacked by a homeless person that I was helping. After taking the patient to the hospital I asked the doctor if he could test her for Hepatitis and HIV. I was told that she would have to give permission for the tests, and then that the information would be confidential, again she would have to give permission to allow the doctors to tell me. At this time she was not lucid (high on drugs) she could not give permission. I was forced to take a whole cocktail of medication to possibly prevent me from getting HIV or AIDS. These medications have very strong side effects, and can damage certain internal organs. If the law forced her to be tested, I would have known that she was not a carrier of disease and therefore I was not at an increased risk to my health. I was depressed for several months because I did not know, if by helping someone else, I might die. I broke up with my girlfriend--we were talking about getting married. I lost a lot that day. Should I now think twice about putting myself at risk like that? Thank you for your time.

Bill C-217, the Blood Samples Act, recognizes that paramedics are working for the good of society and it aims to provide us with some protection in return. Paramedics across Canada applaud Mr. Strahl for working diligently to push this bill through the parliamentary process.

As health care professionals, we are already bound by confidentiality guidelines. Bill C-217 further protects patients in that the results of the blood test remain for the sole purpose of protecting the rescuers. In addition, a judge must first determine the validity of the requested blood test and then approve it. All of these safeguards will ensure that confidentiality is maintained and that a test is justifiable. We encourage any further measures that would help to further ensure confidentiality.

It's also important to know that this bill will help to prevent the further spread of disease. If we know it is a positive test, we're obviously going to take the appropriate precautions.

Finally, Canadian paramedics ask for your support of this legislation. I would be happy to answer any questions you have.

Á (1125)

The Chair: Thank you very much.

Mr. Hillson, for ten minutes.

Mr. Glen Hillson (Chair, British Columbia Persons with AIDS Society): I would like to thank the committee for providing me with this opportunity and the invitation to speak today. My name is Glen Hillson. I have been HIV positive for the past 21 years, and I have had full blown AIDS for the past nine years. I also have chronic advanced hepatitis C.

The British Columbia Persons with AIDS Society is a registered charitable organization run by and for persons who are living with HIV disease and AIDS. In the words of our mission statement, BCPWA “exists to enable persons living with AIDS and HIV disease to empower themselves through mutual support and collective action.”

BCPWA is Canada's largest organization of HIV-positive people, including more than 3,600 HIV-positive, full-voting members. The society's services are also available to and regularly accessed by many of the province's 10,000 to 12,000 HIV positive people. Unique among major HIV-AIDS agencies in Canada, the BCPWA board of directors is composed entirely of HIV-positive members, and all of its programs are operated by committees led by HIV-positive persons.

BCPWA urges the Standing Committee on Justice and Human Rights to report to the House of Commons that the Blood Samples Act should not proceed to third reading. The Blood Samples Act will not protect workers from occupational exposure to the hepatitis B virus, the hepatitis C virus, or the human immunodeficiency virus. Rather, that act will promote an environment of false safety among workers and may thus increase infections among them.

At BCPWA, we are living with the disease and we're working on the front lines, providing prevention, care, and support to the community. With this experience, we know this act is not a positive step forward in the struggle against HIV-AIDS. Effective strategies to combat transmission of hepatitis B, HCV, and HIV at the workplace must focus on universal prevention protocols in the workplace and on continuing education and other supports for workers. Hauling people before judges to force them to give blood distracts us all from the real issues at hand. While BCPWA has many concerns with the Blood Samples Act, we argue that the act is based more on emotion and ideology rather than on science. As such, it is fatally flawed.

First, the need for this law is questionable. People overwhelmingly consent to blood tests when asked. They don't need to be forced. Multiple studies show that when workers have been exposed to blood or body fluids, patients voluntarily provide blood samples. In Vancouver's St. Paul's Hospital, where the B.C. Centre for Excellence in HIV/AIDS resides, there were an estimated 1,700 accidental occupational exposures, with only two patients refusing testing at the hospital over a ten-year period. Implementing a heavy-handed law forcing people to give blood could circumvent the established approaches used to obtain voluntary consent, and it could victimize individuals by treating them like criminals.

Secondly, transmission through occupational exposure is very low. There is only one confirmed case of HIV transmission to a worker in Canada, and two other potential cases. One reason for this is that none of the three viruses contained in Bill C-217 are easily transmitted. A far better return on investment of prevention dollars would be the broader implementation of universal medical protocols, coupled with an enhanced commitment to prevention education among workers and throughout the community.

Thirdly, the procedure to collect a blood sample as defined by the act will not assist a worker's decision to commence HIV prophylaxis. HIV prophylaxis must be administered for its greatest effect within two hours of contact. Elapsed time between initial contact, a hearing with a justice, and the subsequent forced blood test, will far surpass the effective window of opportunity that the worker has to begin treatment.

Fourthly, even if a blood test could occur within a short timeframe, any negative blood test, forced or voluntary, is uncertain. Because of the nature of HIV, HCV, and HBV, at the beginning of the infection, a window period exists in which the virus or its antibodies may not be detectable. A worker must not rely on a negative test. If the individual with whom a worker has had contact is in a high-risk group for carrying any of these viruses, it is best for the worker to begin prophylactic treatment regardless of test results. Also, if the test is positive, the worker should begin treatment. Overall, the test is useless in assisting a worker's decision to commence treatment. Furthermore, forcing a blood sample from an individual might give some peace of mind to the worker if the test is negative, but it may also create a false sense of security.

Á (1130)

The only manner by which to confirm no infection is through periodic testing over a period of one year.

The act targets people with HIV. Forcing blood tests to detect HBV and HCV infection is unnecessary. All workers at risk of exposure should be immunized for the hepatitis B virus. Once vaccinated, the likelihood of HBV infection after exposure is extremely low. For those workers not immunized, in order for the prophylaxis to be most effective, it must be administered within 24 hours. Once again we question how timely a warrant could be executed to provide uncertain results.

For HCV there is no prophylactic treatment protocol. A forced blood test would provide no assistance in the decision to commence treatment. Until a worker's blood test confirms no infection, the worker must act appropriately to avoid transmitting the virus to others.

We fear that this act promotes the vilification of persons living with HIV. If society can immunize workers against HBV and there is no treatment for HCV, on whom will the forced blood tests be imposed? It will be those individuals in high-risk groups for HIV: injection drug users, sex trade workers, and gay men.

Universal protocols and continuing education are the best way to combat exposure in the workplace. Trying to protect workers with a law that promises to determine if they are at risk of infection after exposure is backwards. Keeping workers safe and preventing exposure is the real issue. Workplaces must take all necessary steps to ensure that there are appropriate and effective universal prevention protocols in use and that workers receive continuing education on how to keep safe.

The personal autonomy of individuals will be violated. We have grave concerns about the violation to an individual's right to personal autonomy and privacy. We support the arguments presented to this committee by the Canadian HIV-AIDS Legal Network.

On that topic, as there was some discussion with the previous panel, speaking from the perspective of somebody who is infected and working on the front lines of HIV-AIDS, there are many ways in which people are stigmatized. Last summer, for example, during the transit strike, a man disclosed on television that he had HIV and had trouble making his medical appointments. The next day he was evicted from his rooming house in Surrey.

We have something called the PharmaNet database, where all prescription drugs in the province of British Columbia are listed. Anti-retroviral drugs for the treatment of HIV are not listed in that database, and security of the database has been the subject of a great deal of discussion. Incursions into the security of that database have received national media coverage both in 1998 and last year.

Particularly for people who live in small communities or rural areas, privacy is a very strong concern, because if one person finds out, it's very likely that their entire social network will know about their HIV status.

There are different stigmas for different cultural and ethnic communities. I'm thinking in particular of our aboriginal and Asian communities.

But the factors that make people vulnerable to HIV infection, such as homophobia and poverty, are also the sources of those stigmas. People fear that they will be immediately labelled as being gay or an injection drug user if they are known to be infected.

In conclusion, the proposed law is contrary to the goals it seeks to achieve, and it increases the heavy burden of stigmatization already endured by some of society's most vulnerable members.

Accidental exposures to HCV, HBV, and HIV account for a very small portion of new infections. Source persons who may have unintentionally been vectors of accidental transmission are rarely reluctant to provide voluntary blood samples. The criminalization of infection would likely serve to undermine the high level of cooperation that presently exists by fostering a culture of distrust and fear. Proactive measures to support workers and other members of society in preserving their health status would promote a healthier population and yield superior health outcomes.

Thank you.

Á (1135)

The Chair: Thank you very much.

I'll now go to Mr. Fitzpatrick for seven minutes.

Mr. Brian Fitzpatrick: I don't think the right to know exists in the charter, but it seems to be emerging in this discussion. Anyone who has ever had any family member go to a doctor with a serious ailment wants to know where they stand. Even if it's a terminal sentence, they still have a right to know that. Nobody seems to be focused on this point.

Then I hear an argument that says what's the big deal over hepatitis C because there really is no effective treatment for it. This seems to be a very weak argument. If I have hepatitis C, I want to know whether I have it or not; I don't want to be told that there's nothing that can be done for it anyway. This argument seems to be lacking in compassion.

A point that came up here that is really bothering me too is the bargaining thing that gets going. A lot of us remember the Bernardo and Homolka cases and so on and all the bargaining that goes on in this system. Are we adding another element here? We're talking about Big Macs, but I would be concerned about defence counsels getting involved with people and starting to bargain away charges in order to obtain a blood sample. This would be a very bad public policy decision and a dangerous area to get into.

And rights, I hear all these arguments about rights, but there isn't anything in this world called an absolute, black-and-white right. None of us have those. Rights are always a balancing act. If I abuse my right in some area, I'm hurting someone else's rights. That's the way this world operates, and we have to look at this.

Then the public interest is always another competing argument. This rights thing sometimes just leads us down the wrong path as far as I'm concerned, rather than looking at what the right public policy should be. That's my own point of view on it.

But I do have some questions here. Prevention in the workplace as the way to deal with it is an argument that came out here that really bothers me. I have a lot of problems trying to figure out what preventive measures we're going to take with paramedics and police officers to eliminate this risk. I don't really think police officers and paramedics have a whole lot of choice in the situations they're confronted with. It's not like working in a factory or somewhere else where steps can be taken.

Maybe I could call upon the witnesses to explain what further preventive measures could be taken so people are not exposed to these risks. You're the people at work. I know the fellow from B.C. mentioned it, Mr. Hillson. But you're the front line people, the ones who deal with it. What suggestions do you have on what further measures can be taken to prevent this sort of thing?

Á (1140)

Mr. Paul Morneau: It's a good question, and of course... oh, I'm sorry.

The Chair: Mr. Hillson is first, then Mr. Hoglund, then Mr. Morneau. You have to get in line.

Mr. Hillson.

Mr. Glen Hillson: Thank you, Mr. Chair.

I wrote down three questions from your comments and I'll try to respond to all of them.

In regard to the right to know, the knowledge that one may have been exposed to a catastrophic, life-threatening virus is certainly a traumatic event in one's life. I don't think any of us are unsympathetic to those circumstances. The question at hand, I would submit, is whether or not the provisions of Bill C-217 will do anything meaningful to mitigate those circumstances for an individual. I submit that they do not, in fact, because the information yielded by tests under dubious circumstances during window periods, zero-conversion periods, is not going to provide the kinds of assurances to people that should dictate their behaviour either in terms of limiting the risk to others or in terms of starting treatment.

As far as hepatitis C is concerned, we had a witness from the previous panel testify that once she found out the source person was positive for hepatitis C, she was then confronted with the necessity to take precautions to prevent transmission of the virus to her family. Under those circumstances, I would submit that she should have already made that decision; if there was sufficient cause to force a blood test for hepatitis C on the source person, then there's sufficient cause to take precautions to make sure you don't transmit this virus to your family.

In terms of prevention in the workplace, there are published universal prevention protocols for people working in health care and in other emergency services. These are listed in the backgrounder for the legal network, and I would refer you to those. They have only been adopted in two provinces in Canada; we feel they should be adopted universally across the land.

The Chair: Thank you.

Mr. Hoglund.

Mr. Andrew Hoglund: I think I can answer a couple of your questions as well. You mentioned that it doesn't matter if there's medication available or not. The importance of knowing the following day that Val was subjected to hepatitis C was that at least we knew we had to have protected sexual intercourse for six months. It stops it from continuing further. So it's just a no-brainer. It's common sense. Knowledge is everything. The fear of crime compared to actual crime rates are two totally different things. It's the same with this.

In regard to your question of how things are changing for police and medical staff, the way policing has changed in the city of Edmonton over the last year or two years has been phenomenal. We now carry glasses on our person. We wear latex gloves. Where we used to just wear gloves to protect our skin, we now wear latex gloves. We're told to even double them up and wear two pair. We now have masks that we put on. And I can say that I slow down. When we are dealing with somebody and I see blood or someone spitting, I step back, whereas normally I would have stepped forward. I go back to my police vehicle and I have to prepare.

We now have a full-time nurse with our police department alone who helps us with these. If we have an exposure, we contact her, whether it's four in the morning or not, and she goes through the process with us and helps with all the responses and everything. So it's one more staff just for our police department alone.

We've changed our policies in regard to how we operate in the police vehicle. Up until two years ago, we spent the majority of time in our police vehicle, so we were available. For example, we would do our reports in there. We would do everything in our police vehicle. Now we no longer eat in our police vehicles. We have a cleaning procedure that we have to do before we start the shift in order to maintain clean steering wheels, clean interior of the car, and to prevent anything happening to anybody else who sits in our police vehicle. So it's changed drastically, and I don't know what it's going to be even a year from now.

Á (1145)

The Chair: Mr. Morneau.

Mr. Paul Morneau: Universal precautions are just that; you take them with everyone, and you don't target any group. If I pick you up or if I pick up a homeless person, I take universal precautions. I put my rubber gloves on, I wear my glasses, and I have a mask available to me too.

Universal precautions are great, and we encourage them among paramedics and anyone else who may be at risk. Universal precautions work very well in controlled circumstances, as in hospitals. When the circumstances are uncontrolled--this is the situations that we go to, the car accidents with broken glass, metal shards, fire burning--those universal precautions don't always work so well or aren't as appropriate.

I don't know how many times I've been to accident scenes and I was exercising universal precautions, and inevitably at some point during the rescue, I realized I had blood on me and I also realized that the gloves had broken. This happens all the time. We're not in a controlled environment. That's the key issue in our field.

On the other question about whether there are really any rights, I think there has to be a balance of responsible limits. It was brought up that we should be vaccinated against hepatitis B. We are, and we're legislated as such. That's a reasonable limit. Society has said that's a reasonable limit for me to do that for you, to help protect you and help everyone else as well as myself. Is it not a reasonable limit to ask someone who I risk my life for to give a blood sample?

In regard to paramedics, obviously you realize that most of our patients end up going to a hospital. Blood samples are routine. Virtually everyone we bring into the emergency department ends up getting routine blood work. In order to get these tests done, this is how simple it is: there's a req sheet and you check mark, check mark, check mark. That's how simple it is. The blood has already been drawn in many cases. I think that's an important fact that you should consider.

The Chair: Thank you very much.

Monsieur Bellehumeur, seven minutes.

[Translation]

Mr. Michel Bellehumeur: Thank you very much.

Let me first make some comments to Val and Andrew Hoglund. I congratulate you for having come here to explain what happened to you. It is not an easy thing to do. You did this correctly and as objectively as possible given the kind of situation we are dealing with.

I understand what happened to you and what also happened to other persons, but my role consists in trying to ensure that we adopt the bill that we need, one that will be efficient, a bill that respects provincial and federal levels of jurisdiction, as well as the Constitution. There are various parameters. Even though at first sight, I am against this bill, I understand you and I feel great compassion for you because of what you went through. However, I have other criteria and rules to look into, which incline me to be against the bill. Thus, I cannot support this kind of bill for all kinds of reasons, including statistics.

Now let met put a question to Mr. Paul Morneau. The officers told us earlier that there were no true statistics. Mr. Hillson quoted statistics from a British Columbia hospital: there were 17 cases of professionals getting infected and two or four refusals. There must be an account of this somewhere. You are the president of the Paramedic Association of Canada. I would imagine that if some of your members were infected in the way we have been discussing this morning, there must be an account of it somewhere. Do you have any statistics? How many of your members were contaminated by an infected person while on the job? In how many cases did the person at the source of the infection refuse to provide a sample? And in the cases where the infected persons refused, how many of your members actually caught the hepatitis B, hepatitis C or the AIDS virus?

Á (1150)

[English]

The Chair: Mr. Hoglund, please.

Mr. Andrew Hoglund: I did get the statistics from our nurse, from the Edmonton Police Service. In the year 2000 we had 30 significant exposures. I have it broken down, and I don't know if I can give them to everybody--they're only in English--but I have copies for everybody in regard to how they broke down as well.

Eleven members exposed skin to blood; twelve members were spit at; four members had needle stick pokes; one member was bitten; one had his hand cut on the bad guy's teeth; and one was accidentally poked by a bloody knife. Of those 30 significant exposures, five members were on HIV medications in 2000.

I do not have the statistics on consents for the year 2000. I don't know if a lot of that would be available, because a lot of it occurs in a closed room between the police officer and... In Val's situation, it was just one police officer and the suspect; it was just an agreement that way. So it would be very tough to find out how many people consent right from the start.

In 2001 we had eight significant exposures. This is what I'm talking about: internally--I think this is what I would attribute the stats to, why they're going down--we've become a lot better in the way we do work. We had no members on HIV medication in 2001. In 2002 we've already had one member who had a hand injury. He was bitten by a suspect, and he is on HIV medication right now. That person did consent. It happened just a week ago. I wasn't involved with it; I'm just aware of it. He did consent, and he was HIV positive. The police officer then went on the HIV medication.

I have several personal stories, because this is what I do. I'm out there and see these things first-hand. I could move everybody to Edmonton and we could spend two days doing this.

The Chair: I don't think that would be allowed.

Mr. Andrew Hoglund: There are two cases I was personally involved with. I'm a bit of a “go to” person now in Edmonton. One is an armed robbery that happened at a gas station. I was working, and I ended up going to this call afterwards. What happened is that a person went into the gas station to commit an armed robbery with a syringe full of blood. She said, “Give me the money”. The clerk did not, and the blood was sprayed in the clerk's face.

The person was later arrested. She was asked to provide a blood sample; she refused. I contacted the clerk at the gas station and suggested, “This person may be an intravenous drug user, and you probably should consider the AZT cocktail, just to err on the side of caution.” She refused. She said she knew the side effects; she did not want to go on the AZT cocktail.

I went back to the person under arrest and spoke to her at great length. I ended up buying her, out of my own pocket, a case of cigarettes, because that's what she wanted. I offered her food; she did not want food. I offered her a case of cigarettes, and she said yes.

We went to the hospital, and she made the conditions. She told me no nurse was going to take the blood sample. She was going to take it herself, which breaches a lot of hospital policy. We went there and I told the nurse she has to. So we gave her the needle to take her own blood.

It ended up she was HIV-positive, and the clerk then agreed to take the AZT. The bonding that we've made... This girl still contacts me to thank me because she feels her life was saved by getting this sample of blood.

The Chair: I just want to make sure Mr. Morneau gets his chance, because I think he wanted to respond too.

Mr. Paul Morneau: We have the same challenges the Canadian Police Association has in getting information from all the various provinces and WSIB, and we face the confidentiality issues as well. So I don't have exact numbers of how many paramedics have been exposed.

I can tell you I've received hundreds of testimonials, and I can tell you I've experienced friends and colleagues going through this type of situation. I wish those numbers were easy to come by; unfortunately they're not. That's all I have to say.

The Chair: Thank you.

Mr. Strahl, go ahead, sir.

Mr. Chuck Strahl: Thank you to everyone for testifying here today. Off the top I want to thank Mr. Hillson for coming and explaining his point of view.

One of the things this bill has done for me is highlight the plight of people who are suffering from HIV and AIDS, the treatment they have to go through, the difficulty in getting treatment, and the long-lasting effects the treatment has on their health. Obviously it's very necessary to do it, but it has increased my sympathy considerably, I'll tell you, for those who have gone through the ordeal of being infected with HIV or AIDS. That has been a by-product of the research on this.

One of the things I'd like to point out is that it's not about whether or not people should start the prophylactic treatment, or whether they could get a judge's order in time to determine whether to start. Isobel Anderson's example is a case in point. She did start the treatment right away because it's most effective to start right away. What is important, though, is the length of time you're on the treatment. You might start the treatment that night. If within 24 hours you get a report back on a blood sample, it may determine, and testimony on the previous bill from experts said it would likely determine, whether you continue on the treatment. It does seem to me that's an important difference. It's not about infection rates, it's about knowledge for treatment.

So perhaps, Mr. Hillson, you could tell us, when someone goes through the full prophylactic treatment, how long do they normally stay on it? What's the long-term prognosis on that?

Á (1155)

The Chair: Mr. Hillson.

Mr. Glen Hillson: There's normally an assessment of risk done when there is a potential exposure. Depending on that assessment, the period of prophylactic treatment for HIV is up to four weeks. If the assessment of risk is at a lower level, it may be as short as one week. In some cases no prophylaxis is offered at all, where the exposure may not have been percutaneous. However, the difficulty remains. I would agree that this is the one area where there is some potential benefit in helping people who decide to discontinue treatment, but even that is somewhat fuzzy, because there is a window during the period in which a person is seroconverting, developing antibodies to an infection subsequent to having been infected. It's the antibodies that are tested for in these tests we're talking about. With HIV, the window period can be as long as six months. People may yield false negative test results for a period of up to six months. So if all other parameters indicate that there is a significant element of risk in the exposure, the safest course would be to continue the prophylaxis for four weeks.

Mr. Chuck Strahl: I realize that's all true statistically, but in almost every case people stop the treatment when they have a negative, because the chances of getting infected are so small. We've already discussed that. A needle injury is not a death sentence. It's a concern--you might get infected--but the rate of actual infection is low. If you combine that with a negative test on the blood, most people--not everyone--will say, this is about knowledge for treatment for myself. It's the harm from an AZT cocktail versus the potential. They just don't proceed.

I wanted to move on to Mr. Morneau's comments. We've heard that people would likely be targeted based on whether they're homeless, high-risk people, and so on. Do you change your approach on preventive or universal protection protocols? When you look at a car accident, do you just say, I don't think this person's likely to have anything, or the opposite? Are universal protocols truly universal?

Mr. Paul Morneau: Absolutely. They're called universal precautions because we take them all the time. In order to limit the risk, you take them with everyone, whether you go into a nice residential home, or go to the side of the street, or are at a car accident. You're always wearing your gloves and taking other precautions, depending on what the patient presents you with. That's why it's universal, we use it everywhere.

Â (1200)

Mr. Chuck Strahl: Say you were at a car accident--and you talked about the jagged metal scenario and how it doesn't matter how many pairs of gloves you've got on, you're going in there--and the thing is on fire or who knows what and as you're yanking somebody out to save their lives you cut yourself and there's blood everywhere. You don't know whose blood is mixed with what. Do you think paramedics would say, as was earlier said, this guy's driving a Porsche, he probably doesn't have any diseases. For this guy who is driving a ten-year-old car, I think I should get a blood sample. Would it possibly make any difference to your concern coming away from that accident scene?

Mr. Paul Morneau: No, as I said, regardless of who it is, if I have a high-risk exposure I want to be tested. I'm not going to trust what anyone says. I'm not going to take that risk to myself and to my family, regardless of who it is. I feel bad that some people may feel they are being targeted, because it is not the case. Just as you mentioned, regardless of who the person is, if I sustain a high-risk injury and it's from a person in a Porsche or from a person on the side of the street, I want to make sure the tests are done and that I'm tested, and that I take the appropriate precautions, absolutely.

Mr. Chuck Strahl: Lastly, both police officers and, particularly, paramedics have told me that they often have to deal with people who are in--it's a high-stress situation obviously--a drug-induced seizure or some such thing. You're trying to start an IV on them possibly to save their lives, have possibly revived them already, and in the course of this violent interchange with these people in the back of your wagon, the needles are going into him and out of him and into you and out of you, because you're trying to help this guy who's in convulsions and you're trying to get an IV drip started, for example.

Do some paramedics just give up? I've been told by some that this happens so often, they're exposed to this so much, particularly in some regions of the country, perhaps Vancouver east side is an example, that they just say, I got stuck with a needle again last night and I give up, because if I hit the panic button every time, I'd be dysfunctional.

The Chair: Thank you, Mr. Strahl.

Mr. Morneau and Mr. Hillson.

Mr. Paul Morneau: We're here to save lives and we will keep trying to save your life en route to hospital, at the scene; we'll do everything we can to assist you. Yes, you described a perfect example, the seizuring patient who's shaking uncontrollably and you have to get that IV in so you can administer some Valium to help resolve his problem. There's a trauma patient you're speeding to the hospital, and you're in the back of a moving ambulance. Once again there is the comparison of universal precautions within a controlled environment and an uncontrolled environment.

There are bumps in the road. Starting an IV is such a precise thing, you're aiming to hit a very small vein to feed a catheter through that vein, and when you're driving 100 kilometres an hour down the bumpy road, that's extremely challenging and you're in such close proximity to your own hands as you're going into the person's arm or whatever.

So, yes, that's an absolute concern, and of course paramedics are here to save lives and we will continue to try regardless of what environment we're in. That's why we get in the job. We'll take those risks. We just wish we could have some reassurance from bills like Bill C-217 to help protect us afterwards.

The Chair: Mr. Hillson, and then we'll go to Mr. Grose.

Mr. Glen Hillson: A number of comments have been made regarding the toxic effects of treatment and even insofar as taking treatment for a relatively short period of time of four weeks. I would submit, first of all, that probably few people in this country are more familiar with the toxic effects of taking treatment for a long time than I am. But I think it's also important to remember that it's not accurate to characterize the treatments as being as bad or worse than the disease. In fact, there is no evidence of any long-term adverse impacts of taking post-exposure prophylaxis. The side effects that we're referring to generally stop when the prophylaxis is stopped. We now have a number of classes of drugs for combating HIV on the market. Generally the most difficult of those, such as protease inhibitors, are not used for PEP.

I'd like to make a brief comment on the issue of stigma and the intention not to stigmatize through this bill and by those who are supporting it. One-third of HIV-positive people in the province of British Columbia are living in poverty. They are on welfare. Actually one-third are living on welfare and many more are living in poverty. Many are multiply diagnosed with addictions and other illnesses.

We've heard stories today about people being willing to barter a test for a hamburger or a carton of cigarettes. I don't think those comments are really relevant to the decision before the committee and serve only to reinforce the notion of stigmatization.

Â (1205)

Mr. Ivan Grose (Oshawa, Lib.): Mr. and Mrs. Hoglund, first of all I would like to thank you and congratulate you. You're doing what a lot of people don't do. I know all of us here have people saying to us, “We have no input to government; you guys just do what you want and you never listen to anything”. Well, you've obviously put out the effort for us to listen, and we do pay attention. You walk the walk. It has changed this whole thing for me, because I've been listening to people talking about theory. You're not talking theory.

Mr. Morneau, I've often wondered why you fellows do the job you do. You gave a very good explanation of why you do. Thank you.

Mr. Hillson, in a civilized society it's my idea that you give up some rights--usually small ones--for the benefit of your fellow man. I think that's what we're talking about here. If I were involved in an accident and Mr. Morneau came along, fortunately, and I was still alive, and there was blood all over the place, I would expect to be tested. I wouldn't have a problem with it. Maybe I'm not listening to you, but I don't understand just what your objection is.

The Chair: Mr. Hillson.

Mr. Glen Hillson: In fact, in my submission I made the point, as did Mr. Elliott, that it is very rare for people who are considered potential sources of infection, as the bill describes them, to refuse a test. If you're espousing that as a Canadian value or a cultural value, I don't think you're going to get any argument.

The question that I would submit, and what I tried to argue in my presentation, is that Bill C-217 is not going to provide information to people who are possibly at risk that should drive their decisions in regard to treatment or in regard to taking precautions about further transmission.

Mr. Ivan Grose: You used the word “possibly”, and that's what I'm going to hang my hat on. I don't think Mr. and Mrs. Hoglund or Mr. Morneau should have to take a chance on “possibly”. I may look all right--no, I don't have a Porsche, but I'm not on the curb either. But I fail to see, if there's such a small proportion of people who would or could refuse to take the blood test, why you object so strongly. I can possibly understand if you think we're going to target some people or groups, but I don't see that the possibility exists there.

The Chair: Mr. Hillson.

Mr. Glen Hillson: My concern would be that this legislation actually promotes a culture and an atmosphere of distrust by criminalizing HIV infections. It would undermine the current situation where there's very rarely any difficulty getting consent for a test and drive us into an era where people felt they were more concerned about protecting their civil liberties under this legislation.

I would submit also that somebody who does drive a Porsche is in a much better position actually to go out and hire a lawyer and prolong the process beyond the window of opportunity where invoking a warrant would be of any use. So that in effect stigmatises the poor as well.

The Chair: Mr. Hoglund wants to respond as well.

Mr. Andrew Hoglund: A number of things have been said. From a personal standpoint you complete your statistics and everything else. But after having been told that you might be subjected to HIV, you sit back and say you're not going to do anything about it--I would like to meet the person who is going to do that, because it's very hard.

Being put in that situation changes your outlook on life drastically. You talk about confidentiality and this targeting and making these people who have HIV feel worse. To me, there's no argument about confidentiality. We have a number of items that are related to confidentiality at all times--medical staff as well as police officers--and I don't see it being abused, whether it was this person being picked up with a prostitute in his vehicle, compared to this person providing a blood sample that came back HIV-positive. For us, it's just a matter of trying to make the decision that's best suited for society, that's going to help out people as much as possible.

As for the talk about the bill and what it's going to allow us to do, it allows people to make a decision based on information. Val and I made a decision not to go on the AZT, although we could have still gone on it. With the results from the blood tests, we decided not to. Why? Because we wanted to have children. Until this AZT has been tested inside and backwards and every other way, I don't know what these side effects are. It's just about making an informed decision. You have to get the consent from somebody as it stands now. Especially in our trade, they don't want to consent; they don't want to agree; they don't want to help us. So we have to go about it other ways.

Â (1210)

The Chair: Thank you, Mr. Hoglund.

Mr. Cadman, three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair. I think what I have is more of a comment than a question, and it goes back to the issue of targeting and stigmatization.

I think Mr. Hillson raises some valid points that have to be considered. However, I would just point out that in my constituency I have a large needle exchange, and the people there tell me that by far the large majority of the people who use that exchange are not the ones you would consider to be the drug users hanging around the street. The large majority of the users of that exchange are our next-door neighbours, the people who have full-time jobs but also serious drug addiction problems.

So I think it would be foolish for anybody, a paramedic or a police officer, to assume that just because a person doesn't look like the stereotypical street addict there's not a problem there.

That's just a comment. Perhaps someone would like to add their own to that.

The Chair: I don't see anybody jumping, so I'm going to go to Mr. McKay.

Mr. John McKay: Thank you, Mr. Chairman.

It seems to me we're talking in two separate universes here, and it's somewhat difficult trying to bring those universes together.

Mr. Hillson, I want to go through your arguments one by one, if I may. The first argument you made was that you felt that a better way to proceed was through education and protocols, and yet, even given the advances in education and the changes in the protocols the police are using, this kind of incident is going to occur. It won't really matter how much more educated people are or how many more protocols they have, because you're still going to have incidents.

The second argument you made was, well, the numbers are really very low. But numbers have been presented here by various people, and I have no idea what they actually mean. It seems to be a bit of a mug's game. With the greatest of respect to Mr. Hoglund here, he recited a list of numbers, and I don't really know what they mean in relative terms, in part because of confidentiality.

The third argument had to do with the fact that the results of the blood test may be misleading. I guess I find that a bit of a strange argument in that presumably you would prefer to be in a position where you know the results of the blood test. But if you have no ability to obtain a blood test, then you are in a position of complete ignorance as opposed to possibly even partial ignorance, or partial ignorance that may well be misleading.

Again, I don't understand that argument as a basis for supporting this bill. I have some other difficulties with the bill--and I exchanged those with the other individual--but those arguments seem to me to be somewhat specious, if you will, with respect to whether one supports this bill or doesn't.

The Chair: That's intended for Mr. Hillson?

Mr. John McKay: Yes.

Mr. Glen Hillson: Your first question dealt with the issue of protocols. As I mentioned, universal protocols have been endorsed by medical groups and academic bodies, but they have not been uniformly or even widely implemented across the country.

The overriding task here is to prevent the transmission of HIV, and I would submit that those protocols would not be endorsed or be in place if it was not felt that they were useful. So if you're suggesting that you don't subscribe to the notion that workers should follow those protocols, or be supported in other preventative means, I'm failing to understand what--

Mr. John McKay: I hope I didn't... [Inaudible—Editor]

Mr. Glen Hillson: I'm kind of at a loss to understand the basis of your question. The protocols are felt to be useful. A number of engineering changes could be made--and this speaks more to health care workers than emergency workers--in terms of such things as stickless needles, pierce-resistant gloves, and so on. Apparently at the next Olympics they intend to have speed-skating suits that won't be able to be cut by a skate blade.

So a lot of things on the engineering front I think could be helpful if some priority was given to them.

Â (1215)

Mr. John McKay: But we're dealing with a fairly narrow issue here--a person who is implacably refusing to provide a blood sample. All the engineering and all the protocols and all the education and all the advances won't deal with the situation where she needs to know whether this person was infected and they're not going to tell.

The Chair: That's the last question.

Mr. Hillson.

Mr. Glen Hillson: I don't think the overriding issue is somebody's need to know. I think the overriding issue is the need to limit the transmission of this virus. As I've stated a number of times, the information provided by a test is not going to help to guide the kinds of decisions a person may need to make in that situation.

I was going to respond to your question on personal autonomy, but I've forgotten what I was going to say, so I'll stop there.

The Chair: Mr. Bellehumeur, for three minutes.

[Translation]

Mr. Michel Bellehumeur: I have no questions.

[English]

The Chair: Mr. MacKay, for three minutes.

Mr. Peter MacKay: I just want to pick up on the last point Mr. Hillson made.

The chances of this happening may be quite low, and we increasingly hope that this is the case, through universal protocol. But there's an old legal maxim that John and John would recall about taking your victims as you find them.

I have incredible sympathy for the position you've taken, particularly with respect to the stigmatization and all that. Given the fact you've been through this, please don't take this the wrong way. The real implications for someone who, as John McKay has pointed out, outright refuses to give the sample, for whatever reason—it may be out of malice or it may be out of psychosis—is that a person who is carrying one of these illnesses is sharing their hard luck. They're sharing their terrible circumstances and they're re-victimizing a person, quite clearly. The implications for that are very great, as is the emotional stress that has been set out, not to mention the physical stress.

I think you made an important point with respect to technology. Technology is very much advancing this. I think the most remarkable thing that I've heard here today was from Val Hoglund, who tells us that within thirty minutes they can do these determination tests now.

I want to refer to the Canadian Police Association report that includes the June 29, 2001, Morbidity and Mortality WeeklyReport, which itself is a report from the U.S. Department of Health and Human Services. At page 19 of that report, it says: “Testing to determine the HBV, HCV, and HIV infection status of an exposure source should be performed as soon as possible.” It goes on to say: “However, limited data indicate that antiviral therapy might be beneficial when started early in the course of HCV infection.” That's at tab C in the Canadian Police Association report, on pages 19 and 23.

All of that indicates to me that if we can do whatever is possible to ensure that the testing occurs when it is coupled with the advances in technology, then as Mr. Grose said, it seems to be a common sense choice about protecting individuals. And we're talking about individuals, quite frankly, who are the bravest of the brave. They're rushing in regardless of the circumstance, but less and less so, so I think we do so at our peril if we don't provide greater protections, because it seems to encourage an anti-benevolent sentiment. We're discouraging people from being good citizens. We're discouraging police officers and paramedics from putting themselves in those circumstances.

I heard Andrew Hoglund mention that he now hesitates sometimes, that he steps back from a situation. As this subject matter becomes more and more well known, that will have a psychological effect, so it seems to me that the greater good has to enter into our decision here in terms of whether or not we legislate mandatory testing.

Â (1220)

The Chair: Thank you, Mr. MacKay. Is that directed to Mr. Hillson?

Mr. Peter MacKay: Yes.

The Chair: Mr. Hillson.

Mr. Glen Hillson: Thank you for your question, because it reminded me of what I was going conclude with for the other Mr. McKay.

As for the people who outright refuse to have a test, we're going to likely see an increase in the number of people who fall into that category if this bill is passed, and that's because of the criminalization aspect. I think it will move us away from a more cooperative culture in terms of dealing with these situations.

With respect to treatment for hepatitis C infection and the citation that you referred to, I do a lot of writing on treatments and these diseases for the community press. I'm only aware of one study—published last year by a German group—that showed that people treated for hepatitis C in the early, first few months of infection, had a very high chance of cure. Presently, treatment protocols for hepatitis C only offer treatment to people who have relatively advanced disease, and some of the reasons for that are that the treatments are very toxic and that the disease is nowhere nearly as pathogenic as HIV. Many people infected with hepatitis C will never get sick, but I think people are generally aware of that.

No data have been put together, either in a controlled setting or any other setting, on treating people in the first few hours or the first couple of days of infection with hepatitis C, so I would submit that this statement is purely speculative.

The Chair: Mr. Maloney, for three minutes.

Mr. John Maloney: Mr. Hillson commented that there are no long-term toxic effects of the treatment. In response to the Hoglunds' overwhelming concern about the ability to conceive, can either of you help me with that?

The Chair: Mr. Hillson.

Mr. Glen Hillson: The other witnesses testified about fears of possible pregnancy issues in regard to taking AZT. With any new medications that is a potential concern; however, there is no evidence or data to indicate that taking AZT for one week or four weeks will result in any future problems for an unborn child.

The Chair: Mr. Hoglund.

Mr. Andrew Hoglund: At the time, were were told the effects were unknown. A possible side effect might be a negative impact on either a female's ability to get pregnant or a male's impotence or potential to be able to give active sperm. I don't know all the medical terms, but they basically said a possible side effect might be that she would not be able to get pregnant.

Mr. John Maloney: The timing envelope, from the time of the incident to the time of treatment, we've heard, is approximately two hours. There is the practical aspect of the time it takes to get a warrant. Often it is the middle of the night and there may not be a resident JP ready and available. There is the time to take the test and get the results of that test, and the time to start the medication. Can you give me some insight from on the street on whether that two-hour envelope is doable or whether it's just pie in the sky from a practical aspect?

Mr. Andrew Hoglund: Years ago it would have taken a while to get a warrant, and only between certain hours. We now have tele-warrants we do over the phone. If there's no JP available, we just pick up the phone and phone one in. I've done at least eight tele-warrants, and they can be done within 20 minutes. We have a form already done up, and when we're on the phone with the JP, they have the same form and we just go through it. The questions are asked and the answers are given, and he either approves it or not. So they're very quick.

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The Chair: Mr. Hillson.

Mr. Glen Hillson: I have just a couple of quick points. I think they were made earlier, but I'd like to re-emphasize them.

For somebody who has the means to have legal counsel available, in the absence of any guidance to a JP on the basis on which to decide whether or not there's been a reasonable chance of exposure and so on, there is a great deal of opportunity to drag out the timeframe by arguing what is not clearly set out in the legislation.

The absence of any discussion of the issue of pre- or post-test counselling has been discussed previously, but it's highly problematic that we would have people being tested for these viruses in the absence of provisions for that kind of counselling.

The Chair: Thank you very much.

Mr. Sorenson is next for three minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): Thank you, and thank you to each one who came. Obviously, Mr. Hillson, I appreciate your being here. As Mr. Strahl has mentioned, you've brought forward some of the concerns of those with HIV or those you represent.

But really, isn't what you're doing here a little counterproductive to the very society you represent? If I were to go home and write an article, as some members of Parliament do on occasion, and explain the situation, I can only imagine the outcry from people who would say, “Listen, we're discussing the rights of those who may be infected with hepatitis or whatever diseases”. We talk about the rights, but isn't there a responsibility that goes with that right? If there is a chance of that horrific disease being passed on to those who are trying to help, wouldn't there be a responsibility that the public would beg for? Wouldn't that responsibility seem fairly obvious?

I think the response I would get in correspondence would be that it's a terrible thing when a certain group or society tries to dismiss any responsibility of passing that on. What kind of responsibility are we referring to? Are we so much concerned about the “no consent”, or are we concerned about the individual who cannot consent?

I missed some of the testimony earlier because I was in another meeting, not in this panel but the previous one. Is there a case where Mr. Morneau or those in the Paramedic Association would take someone to the hospital, where they would get a blood sample and do a blood test--perhaps the person is unconscious or unable to give written consent--but they just couldn't take that extra step to find out if they're HIV positive? Is that what we're talking about here, the extra consent? There's no consent needed to take blood or to do blood work, but there would be for the HIV test. So my concern is about counterproductivity to your cause, responsibilities.

The other concern that comes out from this testimony is the plea bargaining. It's already been brought out here in questions. Is there a concern that police officers are saying, “What is it going to take? Is it going to be a hamburger? Is it going to be a carton of cigarettes? What is it going to take for me to know if my partner or my wife or whoever is infected?” Well, it's just bargaining power. To me it's a no-brainer. Common sense would certainly dictate the responsibility.

So that's my response to those. I have one other quick question.

The Chair: I think we're now well over the three minutes, and we do want some answers. We'll let you save the quick one for the next panel.

Everyone is in on this one. I see that. Mr. Hoglund first.

Mr. Andrew Hoglund: In regard to the plea bargaining, I was going to touch on that as well. We are; I am. I won't implicate the Edmonton Police Service, but I am. I've been to court. That's a whole other issue, but that's a joke. We're not saving or making lives in court.

Another example is that a girl in a clothing store was poked with a syringe full of blood. I was not working; I was unaware of this. She went on the AZT and was very sick. When I came back to work, I read the highlights and found that there had been a needle-stick injury. It was nobody I knew, but this is a very serious thing in my eyes. So I went and spoke to her at her house. She went on the AZT because of the scare. The medical field said there were these possible side effects. She went on the AZT because the guy would not consent.

I tracked down the individual. I talked to the crown prosecutor beforehand. I said I wanted to set this woman at ease and do everything we could possibly do. We ended up dropping the charges before it went to court so that he would provide a blood sample. We found that he wasn't HIV positive, and she did stop taking the AZT.

This is not right, but I'm willing to do it just for somebody's safety. In court, as far as I'm concerned, we're not dealing with as much of a human element as we are with somebody actually taking a drug. I've been through it, and I think until you go through it, you don't realize how important it is psychologically compared to whatever the guy is going to get in court. As far as I'm concerned, I don't care about that. I want to save the person's psychological well-being, and if that takes dropping a charge, I'll do it. It's not right, but until this bill is put into place, we have to take these measures.

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The Chair: Mr. Morneau.

Mr. Paul Morneau: We're really focusing on false negatives. Sometimes a test will come back positive, and when it does come back positive, clearly we're going to help to limit the spread of this terrible and unfortunate disease. As you mentioned, we'll take those extra precautions to do that, and that benefits everyone, including the people in Mr. Hillson's group.

In regard to the physician checking off some extra checkbox, right now that physician might have to justify why it's relevant to check for these diseases when it's a trauma patient or something. However, this bill would lend some support to that.

Do we have patients who normally would be very reasonable and would allow us to take a blood sample because they recognize what we've done for them, and they'd do something for us? Absolutely. Unfortunately, sometimes those people--you describe yourself in that accident--are unconscious. Sometimes we, in fact, put them out. We give them medications for their own benefit to knock them out, and then they can't give consent to take those extra tests. Yes, the doctor can order the routine tests that are necessary for that treatment, but that doctor may have to answer to why they ordered tests for hepatitis B or C, or HIV. So this would be helpful in that regard.

The Chair: Mr. Hillson, and then to Mr. Strahl, for the last word.

Mr. Hillson.

Mr. Glen Hillson: You mentioned that you were not here for all the testimony, and I'm not sure at what point you came in, so it's possible you didn't hear my opening comments.

In any event, in terms of the goals and objectives of the agency I'm affiliated with, they are to prevent the spread of HIV and to provide care and support for those who are infected.

As to your question about whether or not what I'm advocating here is counter to those goals, I've already stated and explained the reasons for the statement that no, I don't believe that to be the case. I think the proposed legislation will have the opposite effect to the goals it purports to achieve.

In terms of personal responsibility, the right of the public to expect people to take personal responsibility, and whether we're advocating that people should be allowed to abdicate that responsibility, we're certainly not. There is an emotional seductiveness in all of this for some citizens, I suppose, but I think that seductiveness is based on poor information about these diseases. The role of those of us providing evidence here today, and of this committee and this process, is to make informed public policy. And I would submit that an informed public policy is one that will achieve real goals of limiting the spread of HIV rather than promoting it. I think Bill C-217 will actually increase the number of new infections through occupational exposure.

The Chair: Mr. Strahl, a final intervention.

Mr. Chuck Strahl: I encourage everyone on the committee to go back over the testimony we had in June 2000. I know it's been distributed. For example, in his testimony, Dr. Stephen Shafran, from the division of infectious diseases at the University of Alberta, said that in the voluntary testing that happens in the hospital patients, if they test negative, they do not offer post-exposure prophylaxis.

In other words, I encourage you to go through this testimony. We had a different set of experts last time, but there's some very good testimony, both on the constitutionality of the bill and on the effects of the treatment. Some of the testimony was very powerful and very telling, including support for the bill for those reasons police officers and others have already made note of. I just want to say, in conclusion, that I encourage people to do that, because there's some really good testimony there.

The other thing is that I do think everyone should remember that no one wants to criminalize HIV. I have expressed sympathy for the people who have HIV, and it's a heartfelt sympathy--the expense, the fact that it drives many into poverty, and all the social implications of that. I don't want anything to do with criminalizing HIV. That's why I tried to write into the bill that the blood sample and the results couldn't be used for anything other than to determine treatment for people who may have been exposed in a serious way.

I think if we have to strengthen that part of the bill in order to satisfy the concerns of those who are concerned about privacy or stigmatizing people, then let's do that. But I would argue, just for the concluding statement, that if we strengthen that part, there are enough stories like the ones we heard here today. And I have hundreds of anecdotal stories of people who say they don't want to do anything to hurt the person who gave them the sample. All they want is knowledge of how to treat themselves.

I can give you an example of the guy who started this whole thing for me, the 18-year-old who was covered in blood. It was recommended by the HIV treatment centre in Vancouver that he go on the cocktail, because the guy wouldn't give a sample. He spent many weeks on this thing, and was told the same thing--this may affect your fertility. This was an 18-year-old kid, and it just destroyed him.

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The Chair: Thank you, Mr. Strahl.

I want to thank all the witnesses for lending their perspectives to this important work that the committee is seized with. To each of you, thank you very much.

Again, to the committee, I think we have a reasonably well functioning group of people around this table deliberating over these important subjects.

From time to time, I take the occasion to commend our staff, who support our work here. I know our staff have been called on for extra duty in this particular case.

There was reference earlier in the exercise to the, I think, one-month-old that the Hoglunds have exposed to Ottawa. I hope your child survives that exposure. Thank you very much for feeling so strongly about being here, and thank you to the staff for assisting in accommodating that.

To all of you, again, thank you very much.

The meeting is adjourned.