JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

COMMITTEE EVIDENCE

CONTENTS

Wednesday, February 27, 2002

¹

1530

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

Mr. Donald Piragoff

¹

1535

¹

1540

The Chair

¹

1545

Ms. Shirley Paton (Chief, Division of Nosocomial and Occupational Infections, Bureau of Infectious Diseases, Department of Health)

¹

1550

The Chair

Dr. Chris Archibald (Chief, Division of HIV/AIDS Epidemiology and Surveillance, Department of Health)

¹

1555

The Chair

Mr. Strahl

º

1600

Mr. Donald Piragoff

Mr. Strahl

Mr. Donald Piragoff

Mr. Strahl

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1605

Ms. Shirley Paton

Mr. Strahl

Ms. Shirley Paton

Mr. Strahl

Ms. Shirley Paton

Mr. Strahl

The Chair

Ms. Shirley Paton

Mr. Strahl

The Chair

Mr. Cadman

Ms. Shirley Paton

Mr. Cadman

º

1610

Ms. Shirley Paton

Mr. Cadman

Ms. Shirley Paton

Mr. Cadman

The Chair

Mr. Sorenson

The Chair

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

Ms. Shirley Paton

Mr. Michel Bellehumeur

The Chair

Dr. Chris Archibald

º

1620

The Chair

Ms. Shirley Paton

Mr. Bellehumeur

The Chair

Mr. Macklin

Ms. Shirley Paton

Mr. Macklin

Ms. Shirley Paton

Mr. Macklin

Ms. Shirley Paton

Mr. Macklin

Ms. Shirley Paton

Mr. Macklin

Dr. Chris Archibald

Mr. Macklin

Ms. Shirley Paton

Mr. Macklin

Mr. Donald Piragoff

Mr. Macklin

Mr. Donald Piragoff

Mr. Macklin

The Chair

Mr. McKay

Mr. Donald Piragoff

Mr. McKay

Mr. Donald Piragoff

Mr. McKay

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 066

l

1st SESSION

l

37th PARLIAMENT

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COMMITTEE EVIDENCE

Wednesday, February 27, 2002

[Recorded by Electronic Apparatus]

¹  (1530)  

[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I'd like to call to order the 66th meeting of the Standing Committee on Justice and Human Rights.

    Today we're continuing our review of 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.

    Today, as our final witnesses on this bill, we have, representing the Department of Health, Shirley Paton and Dr. Chris Archibald; and from the Department of Justice, Lisette Lafontaine and Donald Piragoff.

    Since none of you are strangers to this process--some of you perhaps are residents in the room--you're familiar with the rules. We'd like to entertain a ten-minute presentation, and then we'll go to the committee for questions.

    I guess the Department of Justice will go first.

    Mr. Donald Piragoff (General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chair. Thank you for inviting the Department of Justice to appear on Bill C-217.

    As the committee is well aware, we cannot provide the committee with a legal opinion on Bill C-217. Being a legal adviser to the government, I cannot also be a legal adviser to Parliament. Nevertheless, we can bring to the attention of the committee some legal points that the committee might find useful to consider in preparing its report.

[Translation]

    I intend to limit my remarks to the legal issues the bill raises. However, I do not intend to comment on the policies behind the bill.

    Yet, one cannot disagree with the intent of the bill which, according to me, is to provide health professionals and emergency workers with a tool that will allow them to better assess the risks they take when they get in contact with someone's body liquids.

    So, I will only try to see if the means provided to reach that objective are legally valid.

[English]

    There are two fundamental legal issues raised by this bill. First is whether it is within the jurisdiction of the federal Parliament of Canada to pass this legislation. Second is whether the bill is consistent with the Canadian Charter of Rights and Freedoms.

    For Parliament to have jurisdiction, the bill must fall within one of the areas of jurisdiction allocated to Parliament under the Constitution of Canada, or within the ambit of the peace, order, and good government power. To decide whether a proposed law falls within one head of power or another, the courts look at the pith and substance of the legislation. In other words, what is Bill C-217 ultimately doing--is it creating a criminal law prohibition, or is it creating a civil right for an individual and an obligation on another individual?

    Legislation governing civil rights among individuals would fall within property and civil rights, which is within the power of the provincial legislatures, but not the federal Parliament.

    I would like to outline the conditions for the application of the criminal law power.

    The Supreme Court of Canada two years ago, in reference to the Firearms Act case, provided further guidance on what constituted a criminal prohibition. In this case, the Supreme Court said there were three prerequisites for classifying legislation as criminal law: first, a valid criminal law purpose; second, a prohibition backing or supporting that purpose; and third, a penalty enforcing the prohibition.

    The courts have traditionally found that public peace, order, security, health, and morality are valid criminal law purposes. Is the purpose of Bill C-217 to protect public health? In the RJR Macdonald case in 1995, the Supreme Court of Canada found that public health was a valid criminal law purpose that justified a prohibition to advertise tobacco products.

    However, even if the bill has a valid criminal law purpose, it must contain a prohibition backing that criminal law purpose. The Supreme Court specified, in the firearms reference, that in order to qualify as criminal law under the constitution, the prohibition must not be confined to ensuring compliance with a legislative scheme.

    In Bill C-217 there is a penalty for refusing to comply with a warrant, but it seems to be imposed for the purposes of enforcing a contempt, not as a result of the commission of an offence.

    There is an offence in the bill to use the sample for a purpose other than the purpose for which it was obtained, but this offence is ancillary to the main purpose, which is to acquire a blood sample. Therefore, is there a prohibition in Bill C-217 other than one that merely supports the legislative scheme designed by the bill?

    A prohibition that is meant to only support a scheme established by legislation is a regulatory prohibition, not a criminal law prohibition. The Firearms Act was upheld because the court came to the conclusion that despite any regulatory features of that act, the pith and substance of the legislation were to prohibit the use of firearms, in order to protect public safety.

    Bill C-217 likewise would have to include a clear prohibition tied to an offence, in order to conclude that it was criminal law legislation.

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    There is no prohibition tied to an offence as the main purpose of Bill C-217; rather, the offences contained in Bill C-217 are ancillary or regulatory in nature: to help support privacy concerns related to the subsequent events to the acquisition of the blood sample.

    Whether the legislation is in the Criminal Code or in a separate statute is not a determining element in classifying legislation as criminal law under the Constitution. For that reason, there is necessarily no constitutional reason for including in the Criminal Code the provisions applying to law enforcement personnel.

    Criminal legislation does not need to be in the Criminal Code in order to be constitutional as criminal law, and legislation that is not criminal in nature does not become so just because it is included in the Criminal Code.

    Last December, the Ontario legislature passed legislation of a purpose similar to that in Bill C-217. Obviously the Ontario legislators are of the view that the legislation is not criminal law and therefore is within the jurisdiction of provincial legislatures.

    The second question the committee may want to examine is whether this bill would meet the requirements of the Canadian Charter of Rights and Freedoms. There are two provisions of the charter that apply especially to the provisions of Bill C-217: first, the right to security of the person, guaranteed by section 7 of the charter; and second, the right to be secure from unreasonable search, which is guaranteed by section 8 of the charter.

    The bill requires that a person who is not suspected of committing any criminal offence nor found guilty of any criminal offence provide a blood sample to be tested for HIV or hepatitis B or hepatitis C.

    The Supreme Court of Canada, in a number of cases, has said that the taking of blood samples is a very intrusive procedure that can only be justified by circumstances of pressing necessity. Would Bill C-217 be found to constitute an infringement on these guaranteed rights? Would this procedure be found an unreasonable search? I understand the privacy commissioner testified last week on that office's views concerning potential privacy infringements of the bill.

    Charter rights are not absolute, and a law infringing on them may be upheld if it is found to be a reasonable limit, demonstrably justifiable in a free and democratic society. In order to determine this, we have to ask whether the objective of the legislation is pressing and substantial. Is the objective to provide information needed to save a person's life, or is it to provide a tool to assess better a health risk?

    If the objective were found to be pressing and substantial, the next question would be whether the limitation placed on individual rights by the legislation is proportional to the benefit society derives from the law. Is there a rational connection between the purpose to be derived and the means provided in the legislation? Are there less infringing means that would produce the same results? The answer to these questions would depend on the accuracy of the test, the information that can be provided or obtained from those tests, and also the timeliness of the results in the context of the overall medical and preventive framework that might exist.

    My colleagues from Health Canada will address these factual issues and provide some factual underpinnings for the questions I've raised. I should add that these same questions in relation to the Charter of Rights must also be asked whether the legislation is federal or provincial. These are some of the legal issues the committee might want to consider.

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    I would conclude by saying that we understand and sympathize with the motivation rationale behind the bill and we believe it is a commendable one. However, the bill does raise a number of legal issues that deserve serious examination. I understand that the Canadian Bar Association and others have raised concerns about the substance and mechanics of the bill. I, however, have limited our remarks to the fundamental constitutional questions only.

    Mr. Chairman, if you have any questions I would be pleased to answer them on behalf of Madam Lafontaine and myself. Thank you.

    The Chair: Thank you very much.

    Now to the Department of Health.

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    Ms. Shirley Paton (Chief, Division of Nosocomial and Occupational Infections, Bureau of Infectious Diseases, Department of Health): This is a two-part presentation. Chris and I come from the Centre for Infectious Disease Prevention and Control at Health Canada. I'm the chief of nosocomial and occupational infections. Nosocomial means “health-care-acquired infections”. I'm going to speak for a few minutes on programs to prevent blood-borne pathogen infections in the workplace. I'll then be followed by Dr. Archibald, who will address issues concerning the usefulness of testing the source person and how it fits together. Dr. Archibald is the chief of the division of HIV/AIDS epidemiology and surveillance at the centre.

    Health Canada's role with respect to preventing the transmission of blood-borne infections in the workplace is twofold. First, we gather and assess relevant scientific information that pertains to the prevention of blood-borne pathogens. The second role is the development and dissemination of national guidelines for the prevention of blood-borne pathogen exposures and infections in the workplace.

    Since 1994 I've had the privilege of working with Health Canada, which has held a number of consensus conferences with emergency responders and other health care workers, university academics, and provincial health officials to help identify and develop programs that enable workers to have access to quality exposure prevention programs and to ensure that emergency responders are part of the information loop that all health care workers have access to.

    Since 1995 prevention programs have been established and revised in front-line organizations across Canada. Some of these are provincial in scope, while others are based in municipalities and communities. I believe that you were presented with copies of one of the guidelines that speaks to the issues of preventing blood-borne pathogens.

    Because of the nature of their work, emergency responders are exposed to individuals who have life-threatening infections. Preventing these exposures is obviously crucial. While very few contacts pose a threat, an exposure to blood from a person infected with hepatitis B or hepatitis C or HIV may lead to a life-threatening infection, but the only way to prevent this life-threatening infection is to prevent the emergency responders from having a significant exposure in the first place. After-the-fact testing, such as that proposed in Bill C-217, or testing for any other purpose will not prevent infections from occurring.

    To understand the risk emergency responders face on a daily basis, we need to answer a couple of questions. What is the chance of a member of the Canadian population having HIV or hepatitis B or hepatitis C? In the general population, fewer than two people in a hundred have hepatitis B or hepatitis C, and fewer than two people in a thousand have HIV. This is still a concern; however, what is of greater concern is that in some populations emergency responders work with, such as intravenous drug users, the rate of HIV ranges between 3% and 21% and the rate of hepatitis C as high as 70%, with 70 out of 100 people having hepatitis C. Given this, emergency responders must consider everyone they contact to be potentially infected.

    Significant exposures can occur in many ways: through needle stick injuries, cuts from sharp instruments, scratches, bites, or splashes. Fortunately, most exposures do not result in infection. The risk of infection following exposure will vary, depending on the pathogen involved, with hepatitis C, for example, being much more infectious than HIV; the type of exposure, with a deep puncture wound posing a much greater risk than a splash of blood; the amount of blood involved, with the more blood, the more risk; and the amount of virus in the source patient's blood, with the more virus--i.e., the sicker the source patient is--the greater the risk.

    Recent data from 12 hospitals participating in the Canadian needle stick surveillance network show that on average, 120 health care workers are exposed to blood or body fluids every month. We don't have any national surveillance networks that track emergency responders' exposures. We need this.

    While we don't have any national numbers, we do know, for example, that between 1998 and 2001 the Workers' Compensation Board in B.C. had a total of 55 significant exposures for firefighters, police, and ambulance workers. As far as I am aware, as of last week none of these persons had developed a blood-borne pathogen infection.

    Most exposures can be prevented. Basic prevention strategies are effective, whether we're talking about a workplace in a sterile operating room or the chaotic environment of a disaster site.

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    Health Canada guidelines describe four key principles to prevent occupational exposures to blood-borne pathogen infections. The first is prevention through engineering controls. We need the energy and work required to develop and use effective, easy-to-use safety devices that are effective in reducing occupational exposures. For example, we need work on the development of gloves and masks that are strong enough so they don't break and rip in emergency situations.

    Next is prevention through administrative controls. Administrative policies are crucial in reducing emergency responders' exposure to infection. Emergency response organizations must implement infection control measures that will prevent exposures. They must also enact ways and measures to track exposures.

    Then there is prevention through effective work practices. Changes in work practices can decrease both the exposure to and infection with blood-borne pathogens. Teams of managers and workers have spent a lot of time over the last six to seven years scrutinizing every possible aspect of a work situation to try to find ways to work differently to protect workers. We believe the processes have been effective. Again, since we don't have any means of tracking them, we don't have any real numbers to tell you about.

    Finally, obviously, is prevention through personal protective equipment. The availability of and strong encouragement to use personal protective equipment is crucial. I know you have heard from other emergency responders that sometimes working with this equipment is awkward or the timing doesn't work. This is a common comment. You can ask surgeons, who've had to relearn very specialized techniques because of the need to wear different kinds of gloves and masks. However, workers have to wear this equipment to be safe. If they don't, or if it's not available to them, they are risking their lives unnecessarily. No amount of testing after the fact will make up for not wearing protection.

    However, at times the exposure prevention protocols do fail. Protective equipment isn't available, gloves tear, or masks break. In such cases, risk management protocols for secondary prevention are required. These have also been developed and circulated among emergency responders by Health Canada.

    When the exposure prevention fails and someone does have a significant exposure to blood, what can we do? First of all, in these situations the worker's hepatitis B immunization status is crucial. If the worker is immune to hepatitis B, then even if they have a significant exposure to someone infected with hepatitis B, it doesn't matter. At present, however, there are no effective immunizations against hepatitis C or HIV.

    The other element of secondary prevention that comes into play after a significant exposure is the issue of post-exposure medications to prevent infection. There are no such medications for hepatitis C. There are post-exposure medications for hepatitis B, with immunoglobulin and the first dose of vaccine, and for HIV, with a combination of anti-viral drugs. However, these medications are most effective if started as soon as possible after the exposure, preferably within a few hours. Therefore, the decision to start the post-exposure medications would almost certainly have to be made before any information could be obtained on the infection status of the source person. The bill under discussion here today will do little, if anything, to change this.

    Now Chris Archibald will continue the discussion and speak to the whole issue of the usefulness of testing.

    The Chair: Mr. Archibald.

    Dr. Chris Archibald (Chief, Division of HIV/AIDS Epidemiology and Surveillance, Department of Health): Thank you.

    I would like to continue by further examining the important question of how useful it is to know the infection status of the source person, when an exposure has occurred.

    While it is clearly in the interest of the exposed person to determine whether the source person is infected with HIV, hepatitis B, or hepatitis C, the important point to emphasize is that this determination is only one part of the risk assessment process. As noted above, the risk assessment process and the subsequent risk management decisions also depend on other information, such as the characteristics of the exposure and the presence of risk factors in the source for the blood-borne pathogens.

    To illustrate this point, let us consider how this information would be used in a case of HIV. In theory, rapid HIV testing could provide information on the HIV status of the source virtually immediately after exposure. However, the only urgent decision to be made at this time is whether to start the person on post-exposure prophylaxis medications, or PEP medications, for HIV. In practical terms, that decision would need to be made and acted upon even before the rapid test result was available, since the data suggests the best time to start these medications is within a few hours of the exposure. Furthermore, there are problems with false-positive results using rapid tests, so positive rapid tests would have to wait several days for confirmation, using the usual testing procedure. Therefore, rapid testing of the source would offer little benefit, since the decision to start these PEP or post-exposure prophylaxis medications would have to be made immediately, on the basis of other information.

    If the exposed person were started on these medications, obtaining information on the standard HIV test result from the source within a few days would affect risk management in two ways. First, if the test were negative, this information would provide a great deal of relief to the exposed person. There would still be a chance of HIV transmission, since the source could be in the window period--that is, the period between infection and the HIV antibody test turning positive--but at least the probability would be much reduced, compared to if the test were positive.

    The second effect on risk management would be that if the test result were negative, consideration could be given to stopping the PEP medications. This decision would depend on other factors, such as the presence of HIV risk factors in the source, since a source person could be in the window period for HIV infection.

    The short-term side effects of PEP medications are common and occur in up to 75% of patients; however, they are not generally serious. The most common ones are nausea, fatigue, headaches, vomiting and diarrhea. On the other hand, if the test result is positive, the exposed person may be more motivated to complete the recommended 28-day course of medications, despite any side effects.

    It should be noted that although the effectiveness of these PEP medications for HIV is not proven, there is some evidence to suggest they are effective, and giving them has become the standard of practice for moderate to high-risk exposures to HIV.

    As we evaluated Bill C-217, we asked the following questions. What are the health benefits of the bill, and is the bill detrimental to health in any way?

    The health benefits of the bill would be very limited. Bill C-217 would not reduce the incidence of exposure to blood-borne pathogens, nor would the bill substantially decrease the risk of occupation-acquired blood-borne infections. Specifically, Bill C-217 would have no effect on preventative treatment for hepatitis B or C, since risk management for these two pathogens does not depend on the infection status of the source.

    For HIV, Bill C-217 would have an effect on the post-exposure management of a significant exposure, but only for the relatively few cases that fit the following three criteria.

    First, the source would have to be known. In over 20% of significant exposures, both in and out of the hospital, the source is never identified. This figure is likely even greater in situations involving first responders, where there are often many bleeding victims.

    Second, the source would have to refuse voluntary testing, and a blood sample could only be obtained via mandatory testing. This would be very rare, since experience has shown that if the source person initially refuses to be tested, virtually all agree later to be tested if approached in a respectful manner and informed of their rights, the reason why the test is important, and how their privacy will be protected.

    In one hospital in British Columbia with over 1,700 significant exposures in the hospital and in emergency rooms, all but two people agreed to be tested. In a similar situation in Ontario, none of 2,600 refused to be tested. Also, the implementation of mandatory testing could have the unintended effect of reducing voluntary cooperation to provide blood samples.

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    Third--the final point--the source would have to have no risk factors for HIV, since if risk factors were present the PEP medications might well be recommended, regardless of the HIV test result, because of concerns involving the window period. In fact, if a source refuses voluntary testing, can the source be relied upon to provide accurate information about their HIV risk factors? Would one then have to assume that risk factors are present in such cases, just to be on the safe side?

    In summary, Bill C-217 is potentially detrimental to health programs, in that prevention activities reduce both the incidence of significant exposure and the transmission. In an environment of limited resources the bill may negatively impact provincial programs by shifting resources and attention away from prevention and toward mandatory testing.

    Health Canada certainly recognizes the importance of the work done by frontline workers and the intent of this bill. We would like to help provide the tools by which frontline workers might better protect themselves from blood-borne pathogen infections. However, Bill C-217 does not accomplish these objectives.

    The Chair: Thank you very much.

    I understand the Alliance and the Bloc have deferred to Mr. Strahl, as he has to leave early. Mr. Strahl.

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

    Thank you to you all for coming today and for giving that testimony. Some of it I may not like to hear or even agree with, but thank you for it. It's all useful information for us.

    I have a couple of questions, first of all for those in the justice department. The International Association of Firefighters raised a concern yesterday that this used to be one of those cases where everybody agrees with the spirit. You said as much yourself: you agree with the spirit of the thing; it's a difficult thing; and so on. But the question arises: is it really a criminal law issue? They take it to the provinces, and the provinces say it's not really a provincial thing, so take it to the feds, and back and forth it goes. Has there been any attempt that you know of to take it to any kind of federal-provincial meeting? Have there been discussions about this to try to settle the jurisdictional issue itself?

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    Mr. Donald Piragoff: Clearly the legislature of Ontario thinks it's in their ball park, because they've acted. I think they think it's clearly within provincial jurisdiction. As far as I'm aware, there has not been any discussion of this issue in the criminal justice area--that is, between the Department of Justice and provincial attorneys general. I don't know if health ministers or health officials have discussed it.

    Mr. Chuck Strahl: Bill 105 hasn't yet been challenged. Who knows if it's going to pass the charter challenges that are likely going to come its way. But one of the weaknesses of it, shown when you talk about the summary of the criminal law that was clarified under the Firearms Act, is that there needs to be a prohibition and a penalty. One of the weaknesses of Bill 105 in Ontario is that you can ask for a blood sample--you can even demand it--and if someone doesn't give it, you can't do anything about it. There's no penalty. You can jump up and down, but basically you can't get anybody to do it.

    I think they're going to find a weakness in it. Although they're addressing it as a health issue, if in the rare cases that it's of value somebody says “I don't want to do it”, then you're reduced to what we've seen on the stand, which is people offering hamburgers in order to get a blood sample from some desperate person.

    There aren't any sanctions under the provincial law. Yet we've heard some concerns, under this proposal I have, that I don't have a criminal prohibition in the bill, therefore it's not really criminal law. You end up in the same argument again, which is that everybody recognizes the problem but nobody.... As I've said since I introduced this bill in 1999, everybody gives me all the sympathetic noises about it, but I'm not getting any real help as to how to drive it to conclusion. Everybody says “It's not my job, man”, and then it's pretty hard to get it settled. I don't know if we're any closer on that.

    I don't know if you have a comment.

    Mr. Donald Piragoff: I have just one brief comment: that with respect to the provincial jurisdiction, a province can impose penalties as part of a regulatory scheme to enforce compliance with the scheme. So if Ontario, under its valid jurisdiction to legislate in the area of health, wanted to impose penalties to enforce a regulatory scheme they could do it. If the Ontario legislation does not do it, I don't know, for policy reasons, why it didn't.

    Mr. Chuck Strahl: Maybe they'll bring it forward. It's not in the bill, but maybe it will be under regulations. It's unclear or not specified.

    On the health care side, did I hear the number of 120 exposures a month? Is it in the hospital setting?

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    Ms. Shirley Paton: Yes, it's in the hospital setting, but includes the emergency room setting.

    Mr. Chuck Strahl: Right.

    We only heard from two police agencies, the one here in Ottawa and one in Edmonton. They gave a number of 40 or 50 exposures a year for their police forces. The paramedics would argue they have another number of dozens or hundreds in the country. Everyone seems to think they have their portion of it. When it is added up, there is a significant number of exposures. In a lot of them, of course, it doesn't matter how many double or triple gloves you put on. Everyone seems keen to follow through with the universal preventive protocols, but there are times when it doesn't matter. Right?

    You can have a violent person, someone having a seizure, someone in an unusual car accident, or who knows what. One of the things that's useful to know is the sicker the source persons are, the more contagious they are. In other words, if someone has a certain antibody count, or however you gauge it, then the testing would be beneficial for knowing whether to continue treatment or not. Even if they all start treatment on the day of the serious breach of some sort, part of what determines whether to continue it or not is the sample from a source person.

    Ms. Shirley Paton: If the person is actually sick enough and where we're starting to say the risk is even higher, the person will know he's sick. The information about what they have, if they're known to share it, is already available. I don't think it's the kind of person this bill will be addressing directly.

    I certainly agree with you that the number of exposures, both in and out of hospital, is huge. I don't think we really have a good idea of what the numbers are. We probably would know if someone went on to get HIV. There's enough tracking happening there. In terms of hepatitis B and hepatitis C, where there is more of an issue, we don't know what's happening. We certainly need a tracking program for emergency responders.

    Mr. Chuck Strahl: One of the things we have been lectured on about the bill has been the weakness in our statistical evidence. It's not for lack of trying, trust me. I've been at this for three years trying to get statistical evidence.

    Ms. Shirley Paton: I can agree. I've been trying for eight years to get statistical evidence.

    Mr. Chuck Strahl: Yes. It's odd. Civil libertarians would say if it's a problem, you would have evidence or stats. Yet we don't have stats. Why? Is there no way to get stats?

    As you say, you've been trying. I can find isolated instances, but it is awfully hard to get people to be forthcoming with national statistics that may or may not be significant. Let's give everyone the benefit of the doubt. It's hard to drive home your case when everyone wants statistics and you can't get them. Then they say if there are no statistics, you don't have a case. It's another circular argument.

    The Chair: Mr. Strahl, this is your last question.

    Ms. Shirley Paton: We certainly work in that area. We have been trying for a number of years to put together a needle-stick surveillance program tracking within the hospital itself. This is the first year we have data. It's from twelve hospitals. It's not very big. We're just getting it off the ground.

    To start generating the statistics you need, emergency responders need, and we all need, in terms of responding to the issues, I think we're just getting to the place where some of the programs could be put into place with the right support and that kind of thing. As far as I'm aware, and in the work I've been doing in trying to find the numbers, as you have, they really don't exist.

    Mr. Chuck Strahl: Thank you.

    The Chair: Thank you very much.

    Mr. Cadman, you have seven minutes.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): I don't need seven minutes, it's a very quick question.

    This is something I've brought up before. We're hearing all the evidence from the point of view of preventative protocols in the workplace. Part of this bill is designed for the good Samaritan, the person who happens along on something, usually long before the paramedics or the emergency people get there. How do we deal with them?

    Not everyone has a pair of latex gloves or breathing tubes in the glove box. They want to do something. Yet as more and more these issues come forward, people are going to be afraid to do anything. This is especially true in a situation where, in some jurisdictions, you could be held criminally liable if you don't help. Then if you do go to help, there's nothing to help or protect you.

    Ms. Shirley Paton: I think there are two things related to the bill before us. One, it's not going to help a good Samaritan. If a good Samaritan comes along, and the person they're helping is someone with hepatitis C, the chance of exposure, in some parts of the country, is huge. Bill C-217 isn't going to affect it one way or another.

     In the studies or small samples we've looked at for good Samaritans, we found the chance of someone refusing to be tested, if people are approached in a respectful manner, is virtually nil. When we approach somebody who has been helped by a good Samaritan, the limited experience we have, while it's not great and the numbers are not as solid as we would like, certainly suggests that the information we seek and that this bill is seeking can be gotten through a voluntary manner and not through law.

    Mr. Chuck Cadman: I'll just make one argument. I come from the suburbs of Vancouver. I'm sure one of the areas you're talking about is the downtown east side. If I were driving down East Hastings Street through the downtown east side, I'm not so sure what I would do if I came across one of the residents of that area who falls into the category people are concerned about who has just been hit by a bus. Am I just going to drive on by?

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    Ms. Shirley Paton: But I'm not sure that Bill C-217 can help you in any manner. And I agree with you--

    Mr. Chuck Cadman: No, but what do we do? Do we educate the public?

    Ms. Shirley Paton: The incidence of infection is definitely an issue, and how we respond and what happens to us as good Samaritans is a big question.

    Mr. Chuck Cadman: Fine.

    The Chair: Mr. Sorenson, there are four or five minutes left, if you'd like to use them.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): No.

    The Chair: Mr. Bellehumeur.

[Translation]

    Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): As I was hearing the witness, I realized that we were not to conclude, but... The problem is not necessarily the number of good Samaritans among the employees or anyone else, since the percentage of people willing to give blood is almost 100 %, according to the data that you provided today on workers. The problem is especially with police officers, and firefighters up to a point, but especially with police officers.

    Let us assume you are consulted--I refer here to medical specialists-- because a police officer, in the course of his or her duties, searched an individual and even with the best of precautions, got stuck with a needle that was in the individual's pocket, in the pocket of a reknowned drug user, etc. Even if that individual who owns the needle consents to a blood sample that will be tested, would you advise the police officer to take the medication?

[English]

    Ms. Shirley Paton: Absolutely, and that's--

[Translation]

    Mr. Michel Bellehumeur: That's what I inferred from your intervention.

    I understand that first, it's important to take rapidly some medication for certain types of infection. You have to act fast. Even if the results may be negative, the person should take the medication because he or she might have been infected. Did I understand correctly?

[English]

    The Chair: Dr. Archibald.

    Dr. Chris Archibald: Essentially, yes. I think in that case the thing to realize is that there isn't a definite answer one way or the other. As is often the case in medicine, it's all a matter of probabilities, and one has to look at it on a case-by-case basis. If you look at all the protocols, whether it's our own guidelines or the various provincial and hospital ones across the country, they will usually end up saying that this situation must be dealt with on a case-by-case basis, consulting with an expert and talking to the patient.

    However, the factor to consider--and this would be in one of those rare cases or one of those cases where the prevention hasn't worked, there has been an exposure and it looks like it's a high-risk exposure because the person was actually stuck with the needle and the person seems to have high-risk factors associated with them--is that you need to have the three pieces of information to help you assess what to do. One is the type of exposure. If it was a definite needle stick, then there's a clear exposure. Then you need to know something about the risk factor of the person, how likely is it that they can be infected, and if the person is using drugs, then that itself is information.

    As I mentioned, getting the test result back from the person is helpful, but it isn't definitive. It's just one piece of information that we have to put into the mix. And in the case where the test is negative in the person but they have high risk factors and they therefore could be in the window period, that's a very difficult situation. So I don't think there's a definite answer one way or the other. A lot will depend on the patient, the person himself or herself who's exposed, and the physician in terms of what he's seen in his practice. There is the possibility, and the person needs to be made aware, that a negative test in that situation doesn't guarantee that the person doesn't have HIV and therefore may want to consider taking the medications anyway.

º  (1620)  

    The Chair: Ms. Paton.

    Ms. Shirley Paton: I want to add one other piece to what Chris has said.

    In that case, the other question that has to be asked is has that person, the IV drug user, been sharing the needle with anyone? The blood in that needle may not only be the blood of the one person in front of you that you have to test, but may also be the blood from the six other people he shared needles with. That certainly is a concern. So you've described a very high-risk case.

[Translation]

    Mr. Michel Bellehumeur: Thank you.

[English]

    The Chair: Thank you, Mr. Bellehumeur.

    Mr. Macklin, seven minutes.

    Mr. Paul Harold Macklin (Northumberland, Lib.): When we're looking at this legislation before us, obviously, the question that seems to be under consideration from one perspective is the types of diseases we have defined within this particular bill. Could you go back and clarify for me the various hepatitis B, hepatitis C...? It sounded to me, if I'm right, that this bill simply won't do anything for hepatitis B. Is that fair? And hepatitis C.... Or have I got that backwards?

    Ms. Shirley Paton: Okay. For hepatitis B we have immunization that works very, very well. If our emergency responders are immunized, then we don't need--

    Mr. Paul Harold Macklin: But if I'm not immunized, what then?

    Ms. Shirley Paton: If you're not immunized, the moment you arrived we would start you on immunization. And there is another kind of medication that will work.

    Mr. Paul Harold Macklin: I see.

    Ms. Shirley Paton: So we don't need to know the source. If you have a substantial injury, we will treat you. And it's an effective treatment.

    Mr. Paul Harold Macklin: And are there particular adverse side effects in that process?

    Ms. Shirley Paton: Only the side effects that would be people's normal concerns with immunization.

    Mr. Paul Harold Macklin: What about with hepatitis C?

    Ms. Shirley Paton: For hepatitis C, we have nothing we can do. We can't prevent it. We can't prevent it beforehand--there are no immunizations--and we can't prevent it after with medications.

    Mr. Paul Harold Macklin: And I take it the answer is the same for HIV.

    Dr. Chris Archibald: For HIV there's no vaccine, so one cannot be immunized for it--

    Mr. Paul Harold Macklin: Right.

    Dr. Chris Archibald: --but there are some medications you can give after the fact, and there is some evidence that they may decrease the likelihood of being infected if you in fact had a significant exposure to HIV. That's where the issue of PEP, or post-exposure prophylactic medications, comes in and a decision whether to start them or not in someone who's been exposed.

    Mr. Paul Harold Macklin: If we're looking at this bill in a constructive way--and it sounds like there might have to be amendments if we go forward with this bill--do you see a need to expand the area that would be covered by this bill in terms of the individual types of diseases that are anticipated being in the person?

    Ms. Shirley Paton: Blood-borne pathogens.... I think this bill has hit the key blood-borne pathogens. There may be more arising on the scene as we understand more, but at this point in time these are certainly the ones we're most concerned with.

    There are a number of other infections that emergency responders are exposed to, whether we're talking about antibiotic-resistant organisms, whether we're talking about tuberculosis. Again, those kinds of things take a tremendous amount of time and energy to get any kinds of results on, and many of them we wouldn't have the results before the trial period. If we had any reason to believe that the source person was carrying something, people would be treated.

    So I think the bill, in that way, addresses the issue, because Bill C-217, as far as I understand it, addresses the issue not of whether or not you will start somebody on medication, but whether or not they can get off the medication a little bit earlier, because the preventative medication is uncomfortable.

    Mr. Paul Harold Macklin: Very good.

    Is there any way in which hospital records could be dealt with in this case--and I'll take you over to the legal side--because when this person goes into the hospital one assumes that blood is drawn? If this person, let's say, is unconscious, can't make a decision--that is, the person who is injured--is there any way in which legally those hospital records that would advise of the diseases of that individual could be divulged for this purpose at the present time? In other words, could those records be utilized to provide the information that would be needed, without going through a forced blood test? In fact, if the blood test occurred in the normal course of being admitted to an emergency room, is there anything there that would assist today?

    Mr. Donald Piragoff: That would be governed by provincial health legislation--in particular, legislation governing the privacy of medical records, and that's provincial law. So the province would have to address that question. The extent to which records obtained for one purpose, which is to treat a medical illness or an injury, whether any substances obtained could be analysed for other purposes would be governed by provincial law.

    Mr. Paul Harold Macklin: And you're not aware of anything that exists presently.

    Mr. Donald Piragoff: I'm not aware of it, but that's not to say there isn't anything there.

    Mr. Paul Harold Macklin: Thank you.

    The Chair: Thank you very much.

    Final question, I believe, to Mr. McKay.

    Mr. John McKay (Scarborough East, Lib.): We seem to be in this strange paradox where Bill 105 is a bill without a remedy and Bill C-217 is a remedy without a bill. It's kind of an unsatisfactory position to be in.

    Given that the jurisdiction seems to lie, if there are jurisdictional issues here, more in the provincial realm, have you given any thought to what remedy a provincial legislature could impose on someone refusing to provide a sample?

    Mr. Donald Piragoff: If a province is validly enacting legislation within a constitutional head, such as health, it can impose penalties to enforce a legislative scheme. That's why the province, for example, has penalties under the Highway Traffic Act. They have the right to create a legislative scheme to regulate motor vehicle traffic on the highway and they're able to impose penalties to enforce that regulatory scheme. Likewise, in the health field they could impose penalties in the health field to enforce compliance with the regulatory scheme. Why Ontario's not doing that in Bill 105, I don't know. It may be a policy question.

    Mr. John McKay: It's a huge gap in the bill, though. If the jurisdiction lies within the province and properly lies within the health regime, it's a pretty significant gap in any kind of a bill.

    Mr. Donald Piragoff: I cannot comment on Ontario legislation, but there are many pieces of legislation that don't have penalties because compliance is not a major issue. A lot of pieces of legislation create rights of entitlement, or create rights as opposed to creating any type of penalty. Again, that's a question for Ontario and their lawyers and their policy-makers to decide. I can't comment on what's behind Bill 105.

    Mr. John McKay: Thank you.

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

    I want to thank our witnesses this afternoon from the departments of health and justice. I'm certain we will come together some time again in the future.

    I'm going to go in camera now.

    [Editor's Note: Proceedings continue in camera]