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37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Thursday, February 21, 2002

0905

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

Mr. George Radwanski (Privacy Commissioner of Canada)

0910

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. George Radwanski

0915

Mr. Chuck Cadman

Mr. George Radwanski

Mr. Chuck Cadman

Mr. George Radwanski

Mr. Chuck Cadman

Mr. George Radwanski

0920

Mr. Ivan Grose (Oshawa, Lib.)

Mr. George Radwanski

Mr. Ivan Grose

Mr. George Radwanski

0930

The Chair

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

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

0935

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. MacKay

Mr. George Radwanski

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

The Chair

Mr. George Radwanski

0940

Mr. Kevin Sorenson

Mr. George Radwanski

Mr. Kevin Sorenson

Mr. George Radwanski

Mr. Kevin Sorenson

The Chair

Mr. George Radwanski

Mr. Kevin Sorenson

Mr. George Radwanski

The Chair

0945

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

Mr. George Radwanski

Mr. John Maloney

Mr. George Radwanski

Mr. John Maloney

Mr. George Radwanski

Mr. John Maloney

The Chair

Mr. Peter MacKay

0950

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. MacKay

The Chair

Mr. John McKay (Scarborough East, Lib.)

0955

Mr. George Radwanski

The Chair

Mr. Chuck Cadman

1000

Mr. George Radwanski

The Chair

Mr. John Maloney

Mr. George Radwanski

Mr. John Maloney

Mr. Maloney

Mr. George Radwanski

1005

The Chair

Mr. Peter MacKay

Mr. George Radwanski

The Chair

1010

Mr. Peter MacKay

The Chair

Mr. George Radwanski

The Chair

Mr. Kevin Sorenson

Mr. Sorenson

Mr. George Radwanski

1015

The Chair

Mr. Kevin Sorenson

Mr. George Radwanski

Mr. Sorenson

Mr. George Radwanski

The Chair

Mr. John McKay

1020

Mr. George Radwanski

The Chair

Mr. Peter MacKay

1025

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

The Chair

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

The Chair

Mr. John Maloney

Mr. George Radwanski

1030

The Chair

Mr. Chuck Cadman

Mr. George Radwanski

The Chair

1035

Mr. Chuck Cadman

The Chair

Mr. John McKay

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

1045

Mr. George Radwanski

1050

The Chair

Mr. Chuck Cadman

Mr. George Radwanski

1055

The Chair

Mr. Michel Bellehumeur

Mr. George Radwanski

Mr. Michel Bellehumeur

Mr. George Radwanski

The Chair

Mr. Strahl

1100

1105

The Chair

Mr. George Radwanski

Mr. Strahl

Mr. George Radwanski

The Chair

Mr. John McKay

1110

Mr. McKay

Mr. George Radwanski

1115

Mr. John McKay

Mr. George Radwanski

The Chair

Mr. Kevin Sorenson

Mr. George Radwanski

1120

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. George Radwanski

The Chair

Mr. Strahl

Mr. George Radwanski

Mr. Strahl

1125

Mr. George Radwanski

Mr. Strahl

Mr. George Radwanski

The Chair

Mr. Chuck Cadman

1130

Mr. George Radwanski

The Chair

Mr. Chuck Cadman

Mr. George Radwanski

Mr. Chuck Cadman

Mr. George Radwanski

1135

Mr. Chuck Cadman

Mr. George Radwanski

Mr. Chuck Cadman

Mr. George Radwanski

The Chair

Mr. Peter MacKay

Mr. George Radwanski

1140

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. MacKay

Mr. George Radwanski

Mr. MacKay

Mr. George Radwanski

The Chair

Mr. Kevin Sorenson

Mr. George Radwanski

1145

The Chair

Mr. Strahl

Mr. George Radwanski

Mr. Strahl

Mr. George Radwanski

1150

Mr. Strahl

Mr. George Radwanski

The Chair

Mr. Peter MacKay

1155

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. Peter MacKay

Mr. George Radwanski

Mr. MacKay

Mr. George Radwanski

The Chair

Mr. George Radwanski

The Chair

Mr. Matthew Perry (Community Legal Worker, Acting Co-Director, HIV & AIDS Legal Clinic (Ontario))

1215

1220

The Chair

Mr. Bruce Miller (Administrator, Police Association of Ontario)

1225

Constable Natalie Hiltz (Police Association of Ontario)

1230

The Chair

Professor Patrick Healy (Faculty of Law and Institute of Comparative Law, McGill University)

1235

1240

The Chair

Mr. Chuck Cadman

Mr. Matthew Perry

1245

The Chair

Mr. Bruce Miller

The Chair

Prof. Patrick Healy

Mr. Chuck Cadman

Prof. Patrick Healy

Mr. Chuck Cadman

Prof. Patrick Healy

The Chair

Mr. Michel Bellehumeur

1250

The Chair

Mr. Bruce Miller

The Chair

Mr. Michel Bellehumeur

1255

The Chair

Mr. Bruce Miller

The Chair

Mr. Matthew Perry

The Chair

Mr. Strahl

1300

Prof. Patrick Healy

Mr. Chuck Strahl

Prof. Patrick Healy

Mr. Strahl

Prof. Patrick Healy

Mr. Strahl

Prof. Patrick Healy

Mr. Strahl

The Chair

Prof. Patrick Healy

1305

The Chair

Mr. Macklin

The Chair

Mr. Bruce Miller

The Chair

Mr. Matthew Perry

1310

Mr. Macklin

Mr. Bruce Miller

Mr. Macklin

Cst Natalie Hiltz

Mr. Macklin

Cst Natalie Hiltz

The Chair

Mr. Chuck Cadman

Prof. Patrick Healy

1315

The Chair

Mr. Bruce Miller

The Chair

Mr. Matthew Perry

The Chair

Mr. Macklin

Prof. Patrick Healy

1320

Mr. Macklin

Prof. Patrick Healy

Mr. Macklin

Mr. Michel Bellehumeur

The Vice-Chair (Mr. Chuck Cadman)

Mr. Bruce Miller

The Chair

Mr. John Maloney

1325

Prof. Patrick Healy

Mr. John Maloney

Prof. Patrick Healy

Mr. Maloney

Prof. Patrick Healy

Mr. Strahl

1330

Prof. Patrick Healy

Mr. Strahl

Prof. Patrick Healy

Mr. Strahl

Prof. Patrick Healy

Mr. Chuck Strahl

Prof. Patrick Healy

Mr. Chuck Strahl

Prof. Patrick Healy

The Chair

Mr. Chuck Cadman

Mr. Bruce Miller

Mr. Chuck Cadman

Mr. Bruce Miller

Mr. Chuck Cadman

The Chair

1335

Mr. Chuck Cadman

Mr. Strahl

The Chair

Mr. Strahl

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 064

1st SESSION

37th PARLIAMENT

EVIDENCE

Thursday, February 21, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

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

I apologize for the attendance, but generally we meet at 9:30. I'm thinking everyone has seen it in their appointment books as a justice committee meeting this morning, but no one looked to see what time it would be. I should say if we were to actually tally up the attendance of the justice committee members, you would have all of us.

I'd like to call to order the 64th meeting of the Standing Committee on Justice and Human Rights. This morning, pursuant to Standing Order 108(1)(c), we're doing a study of the annual report of the Privacy Commissioner.

To help us with that we have George Radwanski, the Privacy Commissioner of Canada. Mr. Radwanski.

Mr. George Radwanski (Privacy Commissioner of Canada): Good morning. I'm very glad to have this opportunity to appear before you this morning to talk about my first annual report and to answer any questions you may have about it.

I particularly want to use my appearance here today to ask you to help me stop one of the most unacceptable invasions of personal privacy in Canada, the use of a video surveillance camera by the RCMP in Kelowna, B.C., to monitor the activities of law-abiding Canadian citizens.

As you'll know from my report, the surveillance camera was set up by the RCMP acting as a municipal police force to continuously monitor and record everyone on one of Kelowna's public streets. This was a clear violation of the Privacy Act that prohibits the unauthorized collection of personal information that the act defines as “information about an identifiable individual that is recorded in any form”. Yet when he was confronted with the undeniable fact, RCMP Commissioner Zaccardelli took advantage of a loophole to minimally comply with the law.

The loophole is this. When the Privacy Act was drafted some 20 years ago, “recorded in any form” was meant to be as all-encompassing as possible. No one was thinking in those days of real-time video surveillance, of course. By ordering 24-hour-a-day monitoring through the camera to continue without continuous recording, Commissioner Zaccardelli has satisfied the letter of the law. He has not satisfied its spirit or its intent.

Turning off the VCR doesn't solve the fundamental problem this camera creates. It's not the taping of the images that destroys personal privacy. It's the round the clock monitoring of anyone who happens to walk on this particular public street.

As Justice La Forest of the Supreme Court said in a 1990 decision:

To permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society…. We must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to eradicate privacy.

I have repeatedly asked the RCMP commissioner to comply with my finding on this matter. I've asked him to meet the spirit and intent of Parliament's privacy legislation by turning off the camera in Kelowna. To put it bluntly, he refuses.

The RCMP has a proud tradition of excellence that has earned it the trust and respect of Canadians. Very frankly, I consider it a national disgrace that Canada's national police force has taken refuge in a legal technicality to continue violating one of the fundamental human rights, the right to privacy, enjoyed by all Canadians.

It is also unacceptable that the RCMP feels free to ignore the strongest possible recommendation of an officer of Parliament. This whole ombudsman approach to protecting the fundamental human right of privacy is based on the premise that our federal government institutions will want to respect the moral authority of the independent officer who is your agent, the agent of Parliament. If an important national institution like the RCMP is free to simply shrug off a recommendation, the whole approach is damaged and with it the fabric of our rights.

Until now, this has been well understood, I'm glad to say. Most recently, when I expressed concern about mail opening by Canada Customs agents, even though it was technically legal, the then Minister of National Revenue caused the problem to be addressed. When my predecessor drew attention to his concerns about HRDC's longitudinal labour force file that, again, was technically legal, this database was promptly dismantled at the order of the minister. There are many such examples throughout the history of my office.

¿ (0910)

What I'm talking about today isn't just one little camera. Next month there are supposed to be another five RCMP cameras activated in Kelowna. And even more important, this is starting to turn into a national fad.

If the RCMP can defy the privacy concerns of the federal Privacy Commissioner, the risk is that every police force and municipality in the country will see it as a green light to ignore the privacy issues and to install cameras at will. If that happens, privacy in Canada, the fundamental human right of privacy, will be dealt a crippling, possibly irreparable, blow.

The RCMP claims that the camera is helping to reduce crime in Kelowna, yet it cannot produce any evidence of this, despite my repeated requests. The fact is that there is no compelling evidence anywhere that street video surveillance, video surveillance of open public streets, anywhere, actually reduces crime.

London, England, has more street video surveillance cameras than any other city. And last year it had more of the cameras than any previous year. Last year, street crime in London went up 40 percent.

As an ombudsman, my chief tools are persuasion and publicity. I will continue to use both of them to defend the privacy and freedoms that define us as a nation. But I need your help, particularly in shutting down the Kelowna camera, which has become a crucial test case. I am formally asking here today for your help as members of Parliament and as this committee. I ask those of you on the government side of the House to raise this issue with your caucus colleagues, including the Solicitor General, who is responsible for the RCMP, and I ask those of you in opposition to do whatever is appropriate in Parliament to encourage Commissioner Zaccardelli to respect the spirit, not just the letter, of Canada's privacy laws.

That being said, I'm happy to answer any questions you may have. I'm at your disposal.

Thank you very much for your kind attention.

The Chair: Thank you very much, Commissioner.

I turn to Mr. Cadman for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair, and thank you, Mr. Commissioner, for appearing this morning.

I'll just reserve questions on the Kelowna camera because I'd certainly like to talk to the RCMP and to the Kelowna RCMP myself before I start to really delve into it. Maybe it's something the committee might want to look at.

I'll just ask one question.

Can you give us any indication of other jurisdictions, within Canada, that are using cameras at the present? You've mentioned that some others are planning to. Can you give us an idea of who is?

Mr. George Radwanski: It has begun, quite frankly, starting to spread like a privacy invasive plague, so I'm not sure I'm totally up to date. I know they are looking at installing 23 cameras in downtown Vancouver. I spoke there to try to raise the issues. They're contemplating cameras in Hamilton. There is an issue in Calgary. I believe they're talking about it in London, Ontario. There have been cameras in operation in Sudbury for some time.

I'm not sure that's an exhaustive list. The difficulty is that it's really becoming one of these things whereby suddenly the conventional wisdom is “let's put up cameras”. A lot of the rationale seems to be that it makes people feel safer. The difficulty is that it doesn't actually make them safer, because, as I said, there's no evidence that it actually reduces crime.

There are jurisdictions in the United States that have put up video surveillance cameras, have found that they accomplished nothing at all, and they've been actually proceeding to take them down.

It's become a very urgent problem, though, because once these things are put up, it becomes increasingly difficult to persuade people to then dismantle the investment and technology and so forth, and it affects the whole pattern of policing. But the additional concern--and we're seeing it already in the United States--is that function creep guarantees that if you put up enough video surveillance cameras, next they get linked to biometrics, to face recognition technology, which takes it a step further, and then not only are you under constant observation, but you lose your right to normal anonymity and you end up with things eventually been matched, let's say, to driver's licence photos or passport photos.

You won't be able to even walk down a street, if this is allowed to occur, without the police being able, at the push of a button, to know who you are and where you live. We're not required to identify ourselves or even to carry ID as we go about the streets. Yet another right would go down the drain. So it's a very serious and a rapidly mounting issue.

¿ (0915)

I've said lately that I regard this as the most pressing, urgent, and important privacy issue our society faces right now, and I've certainly made it my absolute priority in the last few months, since the beginning of the year. In the months ahead this is going to be the big issue that I feel compelled to try to take on.

Mr. Chuck Cadman: Is there any circumstance in which you could see it would be reasonable to use that type of surveillance?

Mr. George Radwanski: Oh, of course. I'm not saying that video camera surveillance in itself is a bad thing. My concern is using it on public streets, public places where you go about your day-to-day business. For instance--and I've said this clearly--there are certain particularly security sensitive locations where obviously it makes all the sense in the world, whether it's outside Parliament, in the area outside a court house, outside a legislature, or outside a sensitive government building.

Video surveillance in places like stores or banks is an entirely different issue, for several reasons. First of all, you do have the option--at least in theory, but even in practice--of not going into a given private place if you don't want to be filmed or observed. You can, for instance, increasingly do your banking by telephone if you want, or by computer, or what have you. That's the first difference. On the streets, if you put enough cameras on our public streets, short of levitating above them, you have no way of going about your life and getting from place to place without being subjected to video surveillance.

There's a big difference between video surveillance on a closed-loop camera, let's say in a convenience store, where unless the store is held up, nobody cares, and systematic observation of individuals by agents of the state--by the police--which might, of course, engage their interest for any variety of reasons. That's a huge distinction.

But it's not that I say we can never have any video surveillance. There is simply no reason we should have video surveillance on public streets.

A business leader in Kelowna was quoted as saying that no one should object to video surveillance cameras because they're no different from having a police officer on every street corner, and nobody could possibly object to that. My answer is, look, there are places in the world where there is a police officer on every street corner, and they're called police states. People don't feel free in that kind of society.

Mr. Chuck Cadman: Can I make the assumption that your concern is more with surveillance where people are individually identifiable as opposed to things like, as in Vancouver, having traffic cameras that monitor the bridges constantly?

Mr. George Radwanski: No, you're entirely correct on that assumption, subject to the traffic camera not being used to zero in on the people behind the wheel and capture their image, or--

Mr. Chuck Cadman: What about a “red-light camera”? We have many intersections where we have cameras mounted to identify cars running red lights.

Mr. George Radwanski: That does engage some privacy issues, though not of the same order of magnitude as cameras in the streets. Frankly, I'm not as concerned about that if it's to capture the licence plate of a car going through a red light. That doesn't even identify the driver, necessarily, which is one of the issues, of course, but that's a different kind of issue. Unless it was used for purposes other than identifying a car going through a red light to issue a ticket, I don't have any great fundamental, philosophical difficulty with that. It's not the same as simply observing you as you go about your business on a street.

There's an analogy I use when people say, “Yeah, but it's a public place. How much privacy can you expect?” Imagine walking along the street, say here in Ottawa, and a police officer decides to walk directly behind you all day. He just follows you wherever you go, never bothers you, never says a word, just follows you everywhere you go, observing. I think most of us would say our privacy was being violated. Most of us would say we were being harassed. I fail to see how it is different if that same observation takes place if you're followed around by a camera on a pole that zooms around and observes you until you go into the range of the next camera that picks you up, and the police officer watching you is unseen, at a distance. I think that's exactly of the same order, and that is really quite different from any other kind of cameras you are describing.

The Chair: Thank you very much. I think we'll have a chance to get back to you.

Mr. Grose, just for showing up so early.

¿ (0920)

Mr. Ivan Grose (Oshawa, Lib.): In regard to the red light camera, you trigger that yourself. If you don't go through the red light, the camera doesn't come on. So I don't see where that's the same thing at all.

Whether or not surveillance cameras are useful or not, I am more than appalled that the RCMP uses them even though you've advised them not to. I simply don't understand this. Are these people getting out of control? I say that advisedly, but it worries me more than the actual surveillance camera. The fact that they're doing it...they know you don't like it and I don't like it, but they continue to do it. I have a problem with that.

I know there was a spat in my city about surveillance cameras in convenience stores, but you don't have to go into that store. But you do have to walk down the street. As I say, I am appalled that the RCMP does it. As far as I am concerned, it is something that we as a committee should look at.

Mr. George Radwanski: I appreciate your comment, and I need your help; I need the help of Parliament on this. The fact of the matter is that the way the system is set up, as Privacy Commissioner I don't have order-making powers. My predecessors and I have always felt it's better that way because you don't get an overly legalistic system and what works is moral influence.

One knows that the Privacy Commissioner is there for no reason other than to be Parliament's agent in overseeing and, in some instances, advising, recommending what must be done to respect the fundamental human rights that Parliament has chosen to protect.

That system is quite literally in danger of starting to crumble if an important institution of the government, particularly an institution like the RCMP, can simply say “That's nice”, as Commissioner Zaccardelli has: “Thank you for your insights on this important matter; now we will do what we want.”

It's a great concern if any institution of government does that. It's a particularly huge concern, which is why I say the situation's a disgrace, when it's an institution that has to be so extraordinarily sensitive to rights as the national police force. I have spoken with Commissioner Zaccardelli, I've met with him, I've written to him, and it is basically being treated as “That's your opinion; good for you”.

Other than raising the issue publicly in various forums, as I have done, my only remaining recourse is to ask Parliament to say they do answer to Parliament, they are subject to civilian authority, and let's have it exercised.

Mr. Ivan Grose: That aside, what is your degree of success, generally? Do people or organizations or governments tend to listen to you and correct what you see as an intrusion?

Mr. George Radwanski: With great pleasure I can tell you that to date the degree of success is very high indeed.

I can give you a few recent examples. Perhaps what has been most gratifying recently is what happened with Bill C-36, the anti-terrorism bill. There were provisions in that bill, which I think initially were a drafting error, that literally would have gutted privacy rights by making it possible to issue a certificate that would have suspended the operation of the act. With the help of Parliament, I was able to persuade the minister to bring in every amendment I asked for in order to fix the situation entirely. When I then thanked the minister for having respected privacy rights, some people misconstrued that as my having caved in. In fact, what happened is that the government complied. That's one example.

The other one I touched on earlier in passing is letter-opening. There is a practice whereby some overseas mail is opened by agents of Canada Customs on behalf of Citizenship and Immigration. They are looking for contraband, fraudulent certificates, immigration documents, and so on. Mail under a certain weight is treated as letter mail, and the act specifically exempts it from being opened without a warrant. Over that weight--30 grams, I think it is--it's treated as a parcel and can be opened. Nowadays, if you want anything to arrive, you're likely to send it by a courier service. The big outer envelope puts you over the weight limit. So you suddenly had mail being opened at will.

I brought this to the attention of the Minister of Citizenship and Immigration, who is in effect the client. She said, this is in the law, so be it. I then went to the then Minister of National Revenue, Mr. Cauchon. I explained the problem to him and it was fixed. Now they have a new policy whereby the outer wrapping, that kind of courier envelope, is disregarded for purposes of determining whether or not the contents fall within the weight limit for letter mail.

I could cite you a whole litany of instances like that.

Normally--and thank heavens or the job wouldn't be worth doing--when the Privacy Commissioner issues a finding, whether on the investigation of a complaint or because an issue has come to my attention, the government institution responds. To date the circumstance has been that if it doesn't respond, then the commissioner takes up the issue publicly and the resulting outcry causes the institution to respond.

The RCMP seems to consider itself to be impervious to outcries or opinion, and this is troubling. It's particularly troubling for another reason, which will be of interest to this committee. In the post-September 11 environment, there's no question that the police, particularly the RCMP as a national police force with certain security responsibilities, may have to take courses of action that are less respectful of privacy than was previously the case. Bill C-36 is part of the process that recognizes that. That's reasonable. In a democratic society there are instances where privacy has to be tempered against the needs of security. But particularly in that kind of circumstance, it's crucial that Canadians be able to have the highest degree of confidence that, wherever possible and to the maximum extent humanly possible, the RCMP will behave in a manner that is as respectful as it can be of fundamental rights, including privacy.

That means when you deal with an issue such as a camera in Kelowna put up at the behest of a local mayor and the federal officer of Parliament says, stop it, that's a classic opportunity for the RCMP to say, of course we care about rights and of course we're willing to take recommendations. To do the opposite sends out the wrong signal.

¿ (0930)

The Chair: Thank you very much.

Peter MacKay, for seven minutes.

Mr. Peter MacKay (Pictou--Antigonish--Guysborough, PC/DR): Good morning. It's nice to see you again, Mr. Radwanski. I apologize for my late arrival.

You're of course familiar with the Dagg v. Canada, our Minister of Finance, decision. Your office and your predecessor were very much involved in this decision.

There have been other instances quite recently where the entire issue of privacy has been brought to bear. I'm speaking about the decision of the President of the Treasury Board to essentially withhold or block information pertaining to credit card receipts of ministers and senior bureaucrats within departments.

I realize this crosses over that sometimes invisible line between the Information Commissioner and the Privacy Commissioner as to whose rights might be infringed, but I wonder if you care to comment on that decision, because it seems to me, and I think to many Canadians, that potentially embarrassing information is not the criteria that should be applied when it comes to protecting the so-called privacy of ministers or senior bureaucrats. That information was previously available under the Access to Information Act. It was information that I think goes to the very root of parliamentary democracy--that is, having checks on the responsible spending of public money for whatever fashion.

It seems that those credit card records are very germane to responsible spending, in particular spending that sometimes goes beyond what it was intended for. There are, sadly, examples we can point to where ministers made improper or indiscreet decisions on how to use those credit cards.

So I wonder if you'd care to comment, or if in fact this decision, which was cited as being consistent with a Supreme Court case but was actually consistent with a dissenting opinion of a Supreme Court judge as opposed to the actual majority decision....

Mr. George Radwanski: You made reference to the invisible line between the Privacy Commissioner and the Information Commissioner. It's not an invisible line; it's a very visible line. Indeed, it's a statutory line. My mandate, my responsibility, is to protect privacy, which means to weigh in when I see a danger of a violation of privacy, which is to say when personal information might be or has been inappropriately collected, used, or disclosed.

It's not my role to recommend that personal information be disclosed to third parties. That, when appropriate, to be an advocate for disclosure, is the role of my colleague, the Information Commissioner. So, quite honestly, this is not an issue, as it currently stands, that is appropriate for me to involve myself or my office in by expressing opinions or interpretations. That's really where we stand on it.

I fully understand the point you're making, and it's certainly a point that you could appropriately make to the Information Commissioner. I would normally weigh in only if I saw a circumstance in which I thought personal information was in danger of being inappropriately released, not withheld.

Mr. Peter MacKay: Understood.

So you're not prepared to make a public statement on the appropriateness of that policy decision, I guess, and it is very much an internal decision as opposed to one of legislation.

Mr. George Radwanski: That's correct, simply because it's not my role, and I hope you and your leader won't again ask what influences were brought to bear to cause me to decline to comment, because the only influence in this instance, as in the past, is my responsibility as Privacy Commissioner to carry out my duties as specified in the Privacy Act. But I wouldn't want to be misunderstood.

Mr. Peter MacKay: I guess you never know what questions might be asked. I certainly don't tell Mr. Clark what to ask or not to ask.

Similarly, I guess you wouldn't want to go on record making any comments about the ongoing case the Information Commissioner has with the Prime Minister's Office over disclosure of scheduling matters. It would be a similar category.

¿ (0935)

Mr. George Radwanski: No. There was a difference. There was a reason I involved myself in it. As I've explained publicly, it involved going to court and, in the process, taking a position that would have an impact on my office as well, because it was an issue about our similar investigative powers.

The difficulty was that I was concerned this issue was being brought to bear in a case where other elements of the case might end up reducing our investigative powers, including the fact that information would appropriately be regarded as exempt personal information and you could get a finding by the court for that reason. I felt it was an appropriate and necessary thing for me to weigh in at that point to try to urge the issue not be tested in that particular instance, because my office could be affected by the process as well. It was completely different from this situation, where my office is simply not engaged at all. There's no consistency there at all.

Mr. Peter MacKay: When a case, such as the one involving the Prime Minister's agenda books and schedules, goes to the court, do you still feel comfortable that your office should engage or adjoin an action when it might influence or in some way impact upon your office's jurisdiction or powers, if you will?

Mr. George Radwanski: I think the general principle is, when I feel it is an appropriate part of the exercise of my responsibilities to weigh in on an issue, I am absolutely not shy about doing so, as you know. When I feel it is not appropriate because it doesn't engage an issue on which I have reason to comment at that time, or in some instances where it might be counterproductive, or it was not yet at a stage where intervention is optimal, then I will not intervene. I guess it's the nature of being an ombudsman. Your role is to make these kinds of judgments.

Mr. Peter MacKay: Case-by-case decisions go to the very independence of your office.

Mr. George Radwanski: Exactly.

The Chair: Thank you very much, Mr. MacKay, and Mr. Radwanski.

Mr. Sorenson, you have three minutes.

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): I want to also say I appreciate your coming here today. I appreciate the fact that we do have someone, who is a watchdog, watching out for the rights of privacy and the right to be left alone.

In listening to the conversation about the cameras on the street, I'm not sure on the right to privacy and where it would infringe on my right as I'm walking down a public street. In some places, obviously, it makes a great deal of sense. We have the right to be left alone to enjoy privacy in our homes on our property, places where we can go to be left alone. I don't know about when we're walking down the streets.

One of the comments made from the other side was the question about the RCMP. Are they out of control? I always give the RCMP the benefit of the doubt. I don't think they've really let me down too much.

I think what we have seen out of control perhaps is a government that has neglected the security of our country, to a degree. We've seen 2,200 fewer RCMP officers in Canada, through attrition and other things, than in the early nineties and late eighties. What we see out of control is organized crime, to a certain degree.

Around these tables we have discussed the war on organized crime, the threat of organized crime, the threat of drugs, and everything else dealing with organized crime. As we sat around the table in this committee, I've really understood it.

I don't believe the RCMP are out of control. I think crime is out of control. In fact, we've listened to individuals who have said the problem with organized crime is they have an unlimited amount of dollars, an unlimited amount of finances, and we have a very limited amount.

I really don't believe the RCMP are sitting there thinking of ways they can invade privacy and, without reason, can set up indiscriminate cameras. You know there has to be a reason for it. This is one comment in passing.

I haven't studied the example in Kelowna. Is there a problem with drugs? Is it a problem with the number of tourists coming, that they recognize there's a greater threat of crime and less resources to do it, and so it's a simple way to maintain the peace or to fight crime?

The Chair: Thank you, Mr. Sorenson. That's three minutes.

Mr. Radwanski.

Mr. George Radwanski: Let me start with the first question you asked, which is a very legitimate one, about whether we have a right of privacy in a public place, on a street. That's a very important question. My answer is yes, we do. There are gradations of privacy, obviously. You expect the most privacy in your own home, of course, but you do not surrender the fundamental human right of privacy when you walk out your door.

Let me illustrate, if I can. If you're on a public street and you're talking on a cellphone, or you're standing on the street talking with a friend, having a conversation, you reasonably expect that people walking by might hear a fragment of the conversation and might certainly note that you're on the phone. But if somebody stopped right beside you and was obviously listening to every word of your conversation, I think you would feel that your privacy was being invaded. You'd probably say, excuse me, do you mind? Or at least you'd be offended by it.

Similarly, if you sit on a bench in a public park reading a letter, you might expect that people will note that you're sitting on a park bench reading what appears to be a letter. But if somebody sat down right beside you and started reading over your shoulder systematically, or if somebody was deliberately zooming in on your letter with a video camera and reading it....

¿ (0940)

Mr. Kevin Sorenson: Is that what was happening?

Mr. George Radwanski: No. That's not my point. I'm addressing your question about whether we have a right to privacy on a public street.

Mr. Kevin Sorenson: That's being pretty extreme.

Mr. George Radwanski: No, a principle is a principle. You have a right to privacy, number one. That means you have a right not to be, in my view, systematically observed.

And yes, those cameras can zoom in. They can zoom in and show the label on a package you're carrying. That capacity was demonstrated to my investigator.

Mr. Kevin Sorenson: But they can in every convenience store and in every bank.

The Chair: Mr. Sorenson, in order for us to--

Mr. George Radwanski: That's point number one; I submit that you do have a right to a reasonable core of privacy, even in a public place. You may disagree with me; you're entitled. That is my view, and I think that is the view of those anywhere who've studied the issue of privacy rights, which, as you know, is a fundamental human right recognized as such by the United Nations.

As for the police, I'm troubled by your statements that if the police are doing it, they must have a good reason.

Mr. Kevin Sorenson: [Inaudible—Editor]

Mr. George Radwanski: Well, yes, but we've investigated, and we've asked them to give us the evidence that it is an effective instrument.

For example, at the time I was investigating, the camera had been up for eight months, and I asked the RCMP--I asked the commissioner personally--first of all, for the number of arrests that had been brought about through the use of that camera.

Secondly, I asked, for the whole city of Kelowna, for statistics on the number of crimes reported or the crime rate in the eight months the camera was in operation, compared to the same eight months of the previous year.

It was supposed to be kind of a test project, a pilot project. Do you know what? They don't have, or they say they don't have, those statistics.

I gave them the benefit of the doubt, and I said, explain to me what good this is doing. Then I talked to leading experts; my office talked to leading experts from around the world on video surveillance. Does it reduce crime? Does it make us safer? The answer was no.

The reason it doesn't is that the most the cameras can do, in the best-case scenario, is displace crime from where the camera is to where the camera isn't.

I've used the example that if you have drug addicts in a community, putting up a camera isn't going to make them quit cold turkey and go to Starbucks to drink a latte instead. It will make them do their transaction somewhere else.

There was a spokesperson...and if you want to give them the benefit of the doubt, here's something to doubt and give them the benefit of. A spokesperson for the RCMP was quoted in the Vancouver Sun last summer as stating that, yes, of course video cameras only “mostly displace crime” rather than reduce it, but if they put up enough cameras in downtown Kelowna--he actually said this--it will displace crime to residential neighbourhoods, and homeowners are more likely to call police if they see a crime being committed.

Well, that raises serious questions with me about the approach to policing involved.

I will say, finally, that certainly nothing I'm saying is meant to be anti-police, and I certainly wouldn't argue that the police shouldn't be given more resources or more personnel. In fact, one of the difficulties with video surveillance cameras, if I may surmise--I will stop, Mr. Chairman--is that in England what happened was they started to regard it as a cheap fix. So you put up cameras instead of having officers out on the beat, out on the street, and of course the camera can't jump down off the pole and stop a crime in progress or rescue you if you're being stabbed or mugged, or whatever. These things happen in a flash.

The Chair: I want to remind everybody that the rules are still in effect. I think everyone's going to have lots of opportunity to speak, but I don't want to establish bad habits for times when we are probably more busy.

I want to go to Mr. Maloney for three minutes, and that includes the intervention and the response.

Mr. MacKay is always the victim of this because he is sitting close to witnesses, so he has a tendency to talk to them--and it's the proximity of the witnesses, I'm sure, not Mr. MacKay's lack of respect for the chair that causes dialogue to take place. So I'm going to be interrupting anybody, except the witness, who's speaking after their time is over, because clearly we know what the times are. And I would ask Mr. Radwanski also to be as precise as he can in giving it, so we can move along.

Mr. Maloney, for three minutes.

¿ (0945)

Mr. John Maloney (Erie--Lincoln, Lib.): You mentioned the fact that police in Kelowna don't have the statistics to back up the facts as to whether it does or doesn't reduce crime. If they do produce evidence that it did reduce crime, would that change your position?

Mr. George Radwanski: It would be interesting to see for a start. They have taken the position that it reduces crime. I would want to see and analyze the basis on which they make that statement. If it does, it would be something we should certainly take a great interest in because it would certainly make Kelowna different from other communities where this experience has taken place in the past.

Mr. John Maloney: I want to go to another topic. The last justice minister announced a review of the Privacy Act. Have you been involved in the consultations for that review?

Mr. George Radwanski: The review is not on a fast track, unlike the review of the Information Act, for several reasons. First of all, since obviously the commissioner has to have considerable input into a review, I indicated to the last minister that I was too new on the job to have a personal sense at the time of what the strengths and weaknesses of the act are and what the areas for improvement might appropriately be. I preferred a longer span of experience before we focused on that.

Second, as you know, the new private sector law, the Personal Information Protection and Electronic Documents Act, came into effect on January 1 of last year. It's being phased in, and we're just beginning to develop a body of experience with that legislation. And of course it intersects with the Privacy Act, certainly in terms of the responsibilities of the Privacy Commissioner and the demands on time, resources, and everything.

So, again, I suggested it would be timelier to wait a bit and give us some experience with that new legislation and see, for instance, how some of the ways in which it differs are either better or worse than the Privacy Act and then have the review after that.

Mr. John Maloney: In order of time, do you know how long it will be?

Mr. George Radwanski: No, I don't consider it urgent from my perspective, because, frankly, I haven't perceived a whole lot of problems with the act as it stands. Obviously, if the government wishes to review any changes, that's up to the government, but from my end it's not what I regard as urgent in terms of any problems that I see a need to fix.

Mr. John Maloney: Thank you.

The Chair: Thank you, Mr. Maloney.

I'll go to Peter MacKay for three minutes.

Mr. Peter MacKay: Thank you, Mr. Chair, and I'll respect that time limit.

This is a fascinating subject matter, as you're more than aware, and you've delved into it in great detail in your report. I don't want to accuse you of rhetoric, but the choice of words you use is extremely strong. I'm quoting from page 17 of your report where you speak of:

The level and quality of privacy in our country risks being struck a crippling, irreparable blow if we allow ourselves to become subjected to constant, unrelenting surveillance and observation through the lens of proliferating video cameras controlled by the police or any other agents of the state.

And yet in Bill C-36, which you have come around to and praised earlier in your testimony today, do we not in fact quite substantially expand the ability of police, albeit through warrants and albeit through greater judicial oversight, to very much do the same thing? We're expanding the ability of the police through not only surveillance but through arrests without warrants, through the ability of them to conduct investigative hearings.

Again, I would ask you to perhaps expand on that.

I have an interesting question that came to mind with respect to the use of cameras that were not operating, essentially having cameras in a public place that in effect were like placebos. How would you feel about that? Dummy cameras for dummies who might think they might be watched when they're not in fact being watched. Would that potentially invade a person's privacy right?

¿ (0950)

Mr. George Radwanski: Who the dummy would be in that scenario is something we could discuss further.

Mr. Peter MacKay: Maybe I am, for asking.

Mr. George Radwanski: I wasn't referring to you, but it might be the law enforcement authorities, if they thought that would be a good thing to do. But I'll come back to that.

Let me deal with your first question first. I thank you for not accusing me of rhetoric; I appreciate that. I also hope you won't accuse me of praising legislation that I've neither praised nor condemned. The only thing I praised was the action of the minister in fixing specific provisions that would have destroyed privacy rights, and which I hope were inadvertently included in the first place.

As for the rest of the act, I repeat that my mandate is privacy. There are many provisions in that legislation that are of interest to me as a citizen. They're certainly of interest to civil libertarians. I say “of interest” because that's a neutral term.

But I do not have the luxury, as someone whose specific mandate is privacy, to comment on issues beyond the extent to which they touch on privacy. I have said that privacy is not an absolute right, but any intrusion or limitation on privacy in the name of an important goal like security has to meet four key tests.

First, it has to be demonstrably necessary to address a specific problem. Second, it has to be demonstrably likely to be effective in addressing that problem. Third, the intrusion must be proportional to the social benefit to be derived. And fourth, there must be no less privacy invasive alternative.

Mr. Peter MacKay: Basically, the test application.

Mr. George Radwanski: Yes.

The elements in Bill C-36 that do touch on privacy, such as some changes with regard to electronic eavesdropping, I found to meet that test reasonably; therefore I have not objected to them.

I don't think there is any parallel to be drawn to the circumstance of having video surveillance cameras in public streets, which I have addressed in that context, in fact. I'll be happy to send you a copy of the speech I gave in Vancouver, where I applied that exact same test to video surveillance cameras in public streets and they failed on every single count. So I think the position is quite consistent.

As for what you call rhetoric, I'm sorry, sometimes I do use strong language because there are strong issues to be communicated. On this particular point, it's certainly not even rhetoric; it's an absolute fact that will be the impact if we go down this path. Frankly, if you want to call it rhetoric, then I guess it would not be dissimilar from rhetoric that has been used by the Supreme Court. So I guess we're all rhetoricians in this world.

Mr. Peter MacKay: You'll recall I specifically said it wasn't rhetoric.

The Chair: We're going to Mr. John McKay for three minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair.

I appreciate your analogy that a camera is similar to a passive police officer following you around the street. It's an interesting analogy. Having travelled in the Soviet Union and been followed, as a tourist, I have sort of a new appreciation for your analogy. I thought it was quite good.

That leads to the issue of whether you have any sense that there are any legislative gaps in your mandate. I appreciate the issue of moral suasion and the successes you've had with Bill C-36--I like to think this was possibly one of your forums, and this committee may have had something to do with the success of your representations--and also in other areas, with respect to letter openings and things of that nature.

But it does seem somewhat pathetic--I'm not using the correct word here or going to rhetorical flourishes--that the Privacy Commissioner has to call upon Parliament to persuade the RCMP that this kind of activity is a significant infringement on privacy.

So my first question is whether there are any legislative gaps you'd like to address.

The second has to do with the sex offender registries, which my friends opposite are quite keen on. It raises quite a number of privacy issues, and I'd be really interested in your comments. It appears that with the cooperation of the provinces, CPIC's fields will be amended and information will be released into the community. It will be personal, sensitive information about an offender who's actually finished their sentence or is under statutory remission.

Do you have any views on how that information should be communicated to a community and to whom it should be communicated? Could you give us some, if you will, sky-blue thinking on that kind of issue?

¿ (0955)

Mr. George Radwanski: Thank you. On the first question about my powers, there is a model. High commissioners have order-making powers. It doesn't work badly. I'm not sure, on the whole, that it would work better. The difficulty is that, first of all, you need a great many more detailed guidelines and explicit rules. That makes the process much more rigid. It tends to produce much more black-letter law, and it also of course engages lawyers all over the place. Everything ends up being a much more formal process, which can be more time-consuming, first of all, and secondly, can end up being litigated much more in the courts, which could take forever.

So far it has worked. To be honest with you, I don't regard it.... I mean, it's pathetic--I said disgraceful; pathetic is maybe too kind--that the RCMP is not willing to readily respect the recommendation of a federal officer of Parliament. But I don't think it's pathetic that I am asking Parliament for help. I think it's rather elegant.

Parliament represents the people of Canada. An officer of Parliament is an agent of Parliament. You folks, as members of Parliament, have a very considerable role to play on a matter like this, either by raising it in caucus and requesting the help of the Solicitor General, if it's the governing party, or by applying a very considerable amount of heat in the House of Commons. Let's see what happens.

Frankly, before I would turn my mind to whether my powers need to be changed.... This is a bit of an experiment. I don't think my predecessors have done this. I'm saying, “Hey, I'm an officer of Parliament and you guys are Parliament. We have a problem. Let's work together. Let's see if we can make people respect the spirit and intent of the law that Parliament passed.” I'll watch with interest to see what happens. I rather believe that together we can achieve the result that this whole approach is meant to achieve.

On your second question on sex offenders, to be truthful with you, I haven't studied this issue in detail because we haven't been specifically seized of it. I certainly am concerned that we not move into some variant of public shunning and scarlet letters and so on, where people are lastingly branded in a community for any number of reasons, not the least of which is that driving sex offenders underground does not necessarily achieve the best results. Of course, privacy rights do apply in general to all Canadians.

That being said, to any specific provision we'll have to apply those four tests that I mentioned in response to a previous question. Certainly one has to temper one's approaches to privacy on one hand with concern on the other hand for protecting the safety of others, particularly children. So there's a balancing act to be made, and I would really have to look at a specific proposal in detail. I'd be happy to come back to you with thoughts on it, but I don't want to go too far down that path today.

The Chair: Thank you, Mr. McKay.

Mr. Cadman, you have three minutes.

Mr. Chuck Cadman: Mr. Radwanski, I'd like to just get your views on privacy issues in the workplace, workplace surveillance, things like e-mail monitoring, Internet usage monitoring, and sometimes necessary video monitoring in the workplace. I just want your views in general on those issues, where they're appropriate and where they may not be.

À (1000)

Mr. George Radwanski: Sure, and I have discussed that. I've given some speeches on that, in fact.

The core issue is this: contrary to what some employers think, we do not lose the fundamental human right of privacy the moment we cross the door of a workplace any more than we lose any of our other fundamental human rights against discrimination or whatever. But what applies--certainly to the extent that the new private sector law applies to employers; in some sectors it does, in some it doesn't--what comes into play is a reasonable person test whereby, even with consent--because you can, in effect, coerce consent from employees by saying if you want to work here you will give up the following privacy--is information being collected, user-disclosed, for purposes that a reasonable person would consider appropriate in the circumstances.

What that means is.... For instance, my view is an employer has no more automatic right to be reading your e-mail or fishing around in your computer than the employer has to be rifling through your desk drawers in the normal course of events.

Where reasonableness enters in is that the level of security and surveillance that is appropriate in the workplace differs with the nature of the workplace and its sensitivity. For instance, if you were working at the Mint where you are actually producing money, or in a diamond polishing plant, there is going to be a more reasonable basis for making you empty your pockets on the way out of the door, and for video surveillance, than if you're working on the floor of an insurance office.

So there has to be a situational test that's applied to the degree of security and surveillance that's appropriate. But in general, people don't function well when they feel they're under constant observation. I've made the point in my speeches, for example, that there are very few employees who would do their best work if their boss were standing directly in front of them watching every second as they were trying to work.

Again, being under the needless constant gaze of a video surveillance camera, if it's being done to make sure people are working, for example, is not only not the way to respect rights, but is not the way to have a happy, productive workforce.

That's a nutshell response.

The Chair: Thank you very much.

Mr. Maloney.

Mr. John Maloney: I'd make an analogy today about a person walking down the street with a phone in his hand as opposed to a person walking down the street with a phone in his hand with someone standing beside him listening to what he's saying. I understand we have electronic devices, in fact, that can pick up phone conversations from cellphones. Perhaps there are meetings that go on when someone either inadvertently or deliberately leaves a phone on, so that what is being discussed could be picked up.

Are you concerned about that, and should we be doing anything about that?

Mr. George Radwanski: I certainly think people should be careful in those regards. There's a lot of stuff done, whether it's legal or not, that's certainly wrong with regard to people snooping on each other.

In this instance, what I'm talking about is, of course, the police. Certainly, if the police want to try to eavesdrop on your specific conversation or tap your phone, they should get a warrant. If they want to search your premises, they should get a warrant. They have to get a warrant.

Is it kind of a gap in our legal framework that there's no similar requirement if they want to observe you systematically through cameras as you go about the streets? I think that's a very legitimate question to ask.

Mr. John Maloney: I am actually not talking about cameras.

I'm talking about someone out there monitoring my cellphone or your cellphone or anyone's cellphone, perhaps for industrial espionage, confidential meetings that go on. They may want to know what's being said. Should we be concerned about that? You draw the parallel that if the police wanted to do that, they'd have to get a warrant.

Mr. George Radwanski: Certainly it's a concern if anybody is invading anyone's privacy inappropriately. If it's two individuals doing it to each other, it's not something that falls either under the Privacy Act, which governs federal government institutions, or the private sector law, which governs commercial enterprises in the private sector. Certainly it doesn't engage the role of the federal Privacy Commissioner.

Am I against eavesdropping or snooping on people? Absolutely. Is it something I can do much about, personally? No, it's not, but it's certainly a concern. If it were a corporation, that falls under the act. It's federally regulated. If it were a federal worker undertaking.... Let's say a bank was collecting information on individuals that way, for example, by intercepting conversations. I'm certainly not suggesting that any bank is doing any such thing, but that would be an inappropriate collection that could fall under my jurisdiction and I would certainly have occasion to look into it.

For the rest, I'm not aware that there's an epidemic of people snooping on each other as individuals that way, with intercepting calls. Of course, it's harder to do with digital telephones than with the old analog ones, but it's not impossible by any means.

As a digression, it did come to our attention that some genius put up a website whereby he was using a scanner to intercept cellphone calls--they obviously would have been analog--and putting them straight up on his website in real time. I don't know if we can take credit or not, but we contacted the Internet service provider and the fellow's site was shut down even as we spoke.

You do get all kinds of bizarre things going on that certainly concern me. Sometimes, even in areas where I might not have jurisdiction, if I spot an egregious abuse, I'll certainly try to do what I can, if only through my public education capacity, to try to blow a whistle or attract some attention or shut it down.

À (1005)

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

Mr. MacKay from Pictou--Antigonish--Guysborough.

Mr. Peter MacKay: Thank you, Mr. Chair.

I wouldn't suggest by any means that it's of epidemic proportions, but I'm wondering if you have any views on the recent proliferation or emergence of security companies, private security companies, private investigators. In my opinion, there does appear to be an increased number of security firms popping up, partly due to post-September 11 sentiments. I think generally it just seems to be a growth industry, whether it be for spouses suspecting adulterous spouses or companies hiring private firms to try to catch employees who are dipping into the till.

Is this something the federal government should be looking at in terms of federal legislation, in terms of addressing it? I realize there's a jurisdictional issue here too with provinces, in terms of licensing for private investigators. Is this something you've turned your mind to in your current capacity?

Mr. George Radwanski: Not in any detail yet. There obviously are going to be some issues when we come to 2004 in particular, when the new private sector law will apply to the whole private sector, except for provinces that have passed substantially similar laws. There are going to be some issues engaged with regard to private investigators, and I'm starting to turn my mind to those. We're looking at and researching them, though I don't have a clear answer to give.

On the broader question you're asking, I don't suppose I am as concerned about a proliferation of security firms as such. There's nothing wrong with people being in a security capacity. What we have to keep an eye on is what they actually do. If the security firm is guarding entrances to a building or something, or making sure no one's leaving suspicious parcels, so be it. If they're invading people's privacy, then the real issue is the invasion of privacy, not the existence of the firm. Then the question becomes whether they are violating the federal Privacy Act, if they're dealing with federal premises or doing it on behalf of a government entity. Might they be violating the private sector law? I think it's important to focus on the behaviour rather than the proliferation or whether there's more of them or fewer of them.

Certainly one of the things I am conscious of is that since September 11 there's obviously an increased emphasis on security, which is reasonable in some senses. It shouldn't be a kind of panic reaction where we simply decide, as an employer or as a business or what have you, to violate everybody's privacy all over the place--let's panic, and all the old rules don't apply. That doesn't make a whole lot of sense, and more often than not, no good comes of that.

You raise an interesting question, certainly one I will keep an eye on.

The Chair: I was going to wait until the end of the witnesses' testimony and so on, but I think I should bring to the attention of the committee that a previous committee to this one--only half of this committee being our human rights half--did undertake quite a comprehensive study of the question of privacy, particularly in the context of contemporary technology. That would have spoken to questions of surveillance, intrusive medical procedures, and so on.

Some of the issues that have been raised were raised in that exercise. I was the vice-chair of the human rights committee at the time--Ms. Finestone was the chair--and I would recommend everybody read the report. It was in the spring of 1996, I believe. The report was called Privacy: Where do we Draw the Line? Thank God for corporate memory.

Many of these subjects were touched on, and I think it's important at this time, in response to the first annual report of the commissioner, that we as a committee look at that again.

Mr. MacKay.

À (1010)

Mr. Peter MacKay: Mr. Chair, would it be possible to request copies of that report? Is it available through the parliamentary library? Is there a way we can access it?

The Chair: Every member of the committee will receive a copy of the report. I commend it to your thorough examination.

Mr. George Radwanski: I would encourage this committee to revisit, in an ongoing way, all those issues, because although the nineties may seem only a few years ago, a great deal has changed. As I say in this report, events with regard to privacy are accelerating so fast, with technological change and everything else, that I think it would be very useful to have a very active parliamentary oversight over these developments.

The Chair: I'll take my intervention as your three minutes and go to Mr. Sorenson.

I was actually teasing, because there is no one on the list.

Mr. Sorenson.

Mr. Kevin Sorenson: Thanks, Mr. Chairman. It's good to see you are being neutral and fair in this.

I have four quick questions.

First, as an MP, I've had a couple of calls recently about Statistics Canada phoning right at suppertime asking for very personal information, and my constituents were questioning whether it was Statistics Canada.

It's not the individual at the door any more; it's not the letter. It's a phone call. They are wondering, first of all, if that's something we should be concerned about regarding privacy.

Second, in the discussion about the RCMP and the Kelowna issue, you referred to correspondence with the RCMP. Would you table the exchange of correspondence between the RCMP and you, and your findings in regard to the Kelowna issue?

The third is more or less a statement...well, I'll go the other way.

I understand the privacy commissioner has been an office we've held since the seventies and eighties. Was there an intervention--and I'm sure there was--as we went through the whole Bill C-68?

I'm a responsible firearm owner, and the fact is now somebody knows how many firearms I have in my possession. There is a list of who, up and down this street or up and down this country road, has firearms. Was there ever a consideration there about invasion of privacy?

I could probably get this answer by speaking to either Mr. McKay or Mr. MacKay. I'm not a lawyer.

The police investigating a crime, maybe a bank robbery that took place ten years ago, and running a wire on somebody and having an interview--is that something of concern? I'm sure there would have to be a warrant for that.

Those are the most important ones. I can talk to a lawyer about the others.

Mr. George Radwanski: Mr. Chairman, I'll try to answer each of them very quickly. As the chairman says, we do have time. One of the advantages of having fewer numbers is that there's more time to answer your questions in-depth.

On Statistics Canada, in terms of the invasive privacy aspects, as you know, other than the census, nobody is required to answer Statistics Canada questions. I have encouraged them to make that much clearer when they do various surveys, whether written or verbal, so that people will not think that because it's Statistics Canada, they are obliged to answer.

The issue of phoning and how to identify them isn't one that has come to my attention. You raise an interesting point as to how to confirm that it is Statistics Canada, although I suppose that part of the answer is if people aren't sure, they shouldn't answer. I do have a good dialogue with the Chief Statistician, Mr. Fellegi, and I will raise that with him forthwith.

Your second question, or maybe the third, was about tabling correspondence. In the case of Kelowna, how this arose, as you may know, is that the privacy commissioner of British Columbia formally complained to me about that camera as a violation of privacy. The reason he did that is because even though the RCMP was acting as a municipal force, it still came under federal jurisdiction. My letter of finding in that regard was made public, and I'll be happy to provide it to you. That, of course, went to the Commissioner of the RCMP, as well as to the complainant.

My subsequent dealings with the commissioner have been primarily verbal. I met with him and asked him to comply. He wrote me back and basically said, thanks for sharing your interesting insights with me but we're going to do exactly what we want. In that letter he indicated he was satisfied that this was a very useful law enforcement and crime prevention tool in Kelowna. This prompted me to telephone him and ask him to give me the statistics on which he was basing that, in time for my annual report. Then I received a phone call from one of his subordinates telling me that there were no such statistics. So the efforts have been largely verbal, which is what I often do.

I'll be most happy to make the letter of finding available to the committee.

The other question had to do with police wires and so on, a completely different type of issue. First of all, of course there's jurisprudence covering what's appropriate and what isn't. Secondly, there's a distinction between the activities of the police in the course of a specific investigation--and that certainly falls under the program authority--and observing or gathering information about law-abiding citizens who were under no prior suspicion as they go about their day-to-day lives, which is what the video surveillance issue entails.

The other is a much more limited issue. I said, even in my finding, that there may be circumstances where it's entirely appropriate to employ a surveillance camera to survey certain suspects in a certain limited way as part of a specific investigation. But that's completely different from the circumstance I'm addressing, in which I regard the RCMP's refusal to comply as a disgrace.

À (1015)

The Chair: Thank you.

Mr. Kevin Sorenson: There's one other question he didn't answer.

Mr. George Radwanski: Did I miss one?

Mr. Kevin Sorenson: Yes. It had to do with firearms. I give up my privacy when I let anybody know how many firearms I have in my home.

Mr. George Radwanski: The answer to your question, as I recall it, is that my office--this was before my time--was very involved throughout that whole process. We made quite a broad range of recommendations, some of which were heeded, many of which were not. Then we did a review of the operation of the firearms program, which was made public last year. I believe it was in the late summer or fall. We made a number of further recommendations. To this moment, to my considerable disappointment, I have not received a formal response from the Department of Justice on my recommendations.

Mr. Kevin Sorenson: Is the report public?

Mr. George Radwanski: Yes.

The Chair: Thank you very much.

We'll now go to John McKay for three minutes.

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

Newspaper reports say that biometric eye-scan machines will be installed in airports fairly shortly. I don't really know the privacy issues that arise out of the installation of those machines, so I'd be interested in knowing what are the privacy issues and if you have been consulted on whether or not there are privacy issues that arise out of the installation of these kinds of machines.

The second question relates to the use and abuse of social insurance numbers. I'd be interested in hearing your comments on whether the government has made any progress in this matter.

À (1020)

Mr. George Radwanski: On the first question, yes, my office has been kept aware of what's been done with retina scanning. We've made a number of comments as it's gone forward. To the best of my understanding, as it's being contemplated at present it doesn't engage a big privacy issue, because it's voluntary. The idea is that if you want a type of fast-track process, you can apply, have yourself cleared by security, and then submit to retina scanning to identify you before you go through.

It does still leave important questions, obviously, about ensuring that the information isn't used for any other purposes and so forth. That kind of thing has to be watched. A bigger concern, however, is the tendency for things to start off being voluntary and then more and more being made, if not compulsory, then at least very difficult to avoid.

I don't mean this in a pejorative sense, but the classic example is instant teller machines. Bank machines were originally just an extra convenience, something else that customers could do. But then, of course, if you cut back the number of tellers, etc., you can make it in effect prohibitive to do anything but use instant teller machines for most transactions.

Do we risk the chance that once retina scanning on a voluntary and limited basis like this gets a foothold, the next thing you'll be told is that it's part of your normal passport and everybody has to go through it, or at least those who don't are going to be tremendously impeded? That would worry me a lot, because it can be intrusive. It can be subject to any number of abuses.

So I'm not too concerned with what they're doing in the short term, but I'm very concerned with how it rolls out and what safeguards are built in to make sure....

The second question, with respect to the uses and abuses of the SIN number, is an issue of ongoing interest and concern to my office. Scarcely a month goes by that we don't find someone trying to do something silly with SIN numbers. It's just an ongoing situation.

The government, in fairness, has tried. I forget exactly when it was, but a while ago the Treasury Board issued updated guidelines reminding people that they can only be used for certain purposes, emphasizing that they can't be used for other purposes and so on. However, it never fails that somebody gets the bright idea that a SIN number would be a useful identifier and ends up disclosing it to people who have no business knowing. It's an ongoing concern.

It's also an ongoing concern to make sure we don't get any creep regarding that, because it becomes very easy to say this program or that one could function better if we could use SIN numbers. It's something I'm very concerned about, because single identifiers, of course, entail all kinds of risks.

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

Peter MacKay, three minutes.

Mr. Peter MacKay: Mr. Radwanski, I would advise you not to take it personally when you're left with the sense that any government official is telling you “Thanks very much for your interest, but we're going to do whatever the heck we want”. We feel like that quite often in opposition. It's a pretty regular sentiment around here.

I was very taken with your remark that you were essentially putting the ball in our court, and with your commentary that Parliament should be more engaged in exactly this type of debate and this type of exercise. This is more of comment than a question, I guess, but I believe there are other instances where the same can be said of all sorts of public debate that could engage Parliament in a much more meaningful way. So I'm encouraged to hear that.

I just want to pick up on a point John McKay made about social insurance numbers and the original intent. When a program such as the social insurance number is introduced and the public is essentially led to believe that they will be used for a very limited purpose, we have seen, as in the case of social insurance numbers, an expanse in use of those numbers, as you've alluded.

I would say that a similar bill of goods was sold to the public on the Firearms Act, particularly in light of recent discussions about now turning this program over to the private sector. That would somewhat impede your supervision and the ability of other government agencies to ensure that this information was going to be used for a specific purpose--and was going to be protected, more importantly. As Mr. Sorenson said, that information in the wrong hands is very serious. If someone is intending to target a theft of property--for instance, guns that might be very valuable, or wanted by organized crime--I suspect it would be very useful to know who did and did not have guns, or where they were kept.

Has that issue been brought to your attention? Is it something you're concerned about, that very public knowledge, the firearms registry--this mammoth, ongoing exercise in registry of information, which is being done at considerable expense and with very little return--may be turned over to the private sector?

À (1025)

Mr. George Radwanski: I have in fact expressed very serious concerns about that. They're also in the firearms review report I alluded to earlier.

The government has taken the position that it would remain responsible, whatever administrative measures were made with regard to the actual processes, and would not in any way try to put it outside the purview of the Privacy Act. Certainly, I would find it unacceptable to in any way dilute the responsibility of the government for this program.

I am concerned that it is not as easy to maintain security if one does not have direct, hands-on, government involvement. I have expressed the concern. Certainly, you may be assured the vigilance of my office would be undiminished. We certainly--I certainly--wouldn't accept any reduction in our capacity to oversee and make sure things are functioning as well as possible.

Mr. Peter MacKay: Are you confident this can happen if it is turned over? You've expressed reservations.

Mr. George Radwanski: It depends on what is turned over and how, again, under what security safeguards, what supervision, and what on-site supervision by government. It's not an abstract issue. It's a very concrete, practical issue.

Certainly, as I said, my grave concerns are about how it will be done. The implications, if anything goes wrong, are very much on the table. I'm hoping to meet with the new justice minister shortly to discuss my whole report in that area and my range of concerns.

I will, for a second, pick up on your initial opening remark. I meant very seriously my request that members of Parliament involve themselves in this. Of course, this applies to other issues, but this is one where I am specifically your agent. I have now reported to you. Yes, I'm asking you to pick up the ball. I very much hope on this one you will.

The Chair: Thank you very much.

I'm going to ask Mr. Bellehumeur if he has a question.

[Translation]

Mr. Michel Bellehumeur (Berthier--Montcalm, BQ): No, I have no questions.

[English]

The Chair: The final question is to Mr. Maloney.

Mr. John Maloney: Recently the Chief Electoral Officer, Mr. Kingsley, indicated that should Canadians be allowed to vote electronically via the Internet, voter turnout would increase significantly. I find such a comment rather troubling. Do you have any concerns from a privacy perspective?

Mr. George Radwanski: He has not discussed it with me or my office up to this point. Mr. Kingsley tosses out a variety of ideas. I'm not sure they're always meant to be policy rather than, in some instances, musing out loud to encourage debate.

I certainly would have concerns about electronic voting. I haven't addressed it in full detail because we haven't seen a serious proposal. It engages all kinds of questions, not only about normal security in terms of going through umpteen servers, and what have you, but even this question I've been reflecting on that troubles me.

When you vote, you go in the polling booth, and nobody knows how you're voting. If you vote on a computer from your home, depending on the home, there may be any number of other people involved.

For instance, in a household where there is a very domineering individual, how do you prevent the individual from insisting people vote in a certain way and standing over their shoulders insisting they do so, whether it be children, 18 years and over, or a spouse? If you move away from the enforced solitude of the ballot box of the voting booth, I think that itself changes the privacy component in a worrisome way.

Obviously, I haven't seen a proposal. I don't know how that kind of issue, and the many other issues of sheer security, would be addressed.

À (1030)

I'm not struck that it's something for which we have a burning need in our society, given the privacy implications. My own sense is that there is something about the formality of voting, of actually having to displace yourself, go to a location and make a choice, that should be a little different from ordering the latest gadget on the Internet. But that's my personal view.

The Chair: Thank you very much.

I gave Mr. Grose the first question on this side for being early and I'm going to give Mr. Cadman the last question on this side for being late.

Mr. Cadman.

Mr. Chuck Cadman: Thank you, Mr. Chair.

Mr. Radwanski, I'd just like to go back to my previous question on workplace surveillance. Your point on constant video surveillance is well taken.

I'm thinking more along the lines of surveillance of things like e-mail usage and Internet usage, not necessarily that the employer would want to be monitoring the specific content of an e-mail but to be monitoring to make sure the e-mail is being used for company purposes as opposed to personal, and the same with Internet usage.

Mr. George Radwanski: It has to be looked at on a case-by-case basis. To be honest with you, I'm not going to be evasive, but I will try to be, shall we say, judicious in what I say because I do have oversight functions. I might get a complaint tomorrow about this very issue, about an employee of some entity that falls under the act, either act, and I would have to investigate, examine the facts of that situation, and listen to the arguments that are being made on both sides. So I wouldn't want to sort of make general pronouncements that could get in the way of my responsibility to investigate on a case-by-case basis.

It's very difficult to say. Does an employer have a right to make sure that business equipment and facilities are used for appropriate purposes? Sure. What that means in practice in terms of how far you go in monitoring and how real the need is and to what extent it is necessary would really be very situational, very much dependent on the enterprise and the entity.

I know, for instance, in Bill C-42 some of the provisions in the defence portions of it touch on the right of the department, I guess it is, to monitor the equipment--computers and whatnot--to ensure there are no inappropriate uses. I have been concerned that the word “harmful” be put in, because they just refer to “unauthorized”. I was concerned that there be some reference to screening out damaging activities rather than giving people carte blanche to be looking over everybody's shoulder under very indeterminate criteria.

The same could apply in the workplace. It has to make sense. It has to be for purposes that a reasonable person would consider appropriate in the circumstances, and that becomes a case-by-case determination.

The Chair: Thank you very much, and thank you very much, Mr. Radwanski. As members know, we are going to benefit from your insight further on Bill C-217, so I'm going to suspend for five minutes.

Mr. Cadman is--

À (1035)

Mr. Chuck Cadman: Just a question. Would it be in order to ask that our staff maybe do some preliminary work on gathering some information on surveillance, like police video camera surveillance, where it's being used, any statistics that can be shown that--

The Chair: Mr. Radwanski had suggested earlier in his testimony that he had been unable to secure from the law enforcement authorities the evidence or statistics around the use of visual surveillance.

I will take it upon myself to make a similar inquiry of the law enforcement agency referred to and see what happens.

Before we ask staff to begin a process of investigation around this subject, I think the committee will have to decide what it is we might wish to do with Mr. Radwanski's challenge. We may want to take a more thorough and comprehensive look at this, and I would invite the members to contemplate that.

I thank Mr Radwanski once again for his always forceful intervention, as is the responsibility of officers of Parliament.

Mr. John McKay: Mr. Chairman, I--

The Chair: Our witness has obviously generated much interest, such that I can't close this thing down.

Mr. McKay.

Mr. John McKay: The witness has rightfully asked for the assistance of Parliament. I wonder whether he has in his possession any material that would be of assistance to us in terms of the dialogue between himself and the RCMP.

Mr. George Radwanski: Well, I have my letter of finding that basically summarizes all representations that were made--what we were told and what we've said.

The Chair: Can the committee receive copies of what the commissioner thinks appropriate to inform us further, as we contemplate your challenge?

Mr. George Radwanski: I'd be delighted to do that.

The Chair: Are members satisfied?

Mr. George Radwanski: We'll provide whatever we can to your clerk this afternoon.

The Chair: Thank you.

On that note, I suspend for five minutes.

À (1037)

À (1044)

The Chair: I call back to order meeting 64 of the Standing Committee on Justice and Human Rights.

Once again the committee is pleased to welcome the Privacy Commissioner of Canada, Mr. George Radwanski, in this case to speak to 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.

À (1045)

I would bring to everyone's attention the fact that we have further witnesses, a second panel, on Bill C-217 scheduled for 12 o'clock. So we're running about 15 minutes behind. Please keep that in mind as we go forward, as I don't like to invite people to be here for 12 o'clock and have them sit around. People make arrangements with flights, and so on.

So with that, Commissioner, please proceed.

Mr. George Radwanski: Thank you, Mr. Chairman.

Let me begin by saying that I recognize the good intentions behind this bill, but compulsory blood testing and compulsory disclosure of the results of blood testing are massive violations of privacy and the personal autonomy that flows from privacy. It's also a profound affront to the principle, shared by all of you, I'm sure, that your personal medical information is the most intimate and private information about you.

Our right to privacy is based above all on the notion of consent. All privacy legislation, policies, and codes of practice hinge on this. If I want to know something about you, if I want to use or disclose information about you, I have to ask you first. Privacy means our right to control access to ourselves and to information about ourselves.

This proposed bill would violate privacy in the most profound way possible because it would take away that right to control access, not only to the most sensitive private information about ourselves but even to our physical selves as well, to our own bodies.

I would never suggest, and I have never suggested, that privacy is an absolute right, but I believe that any proposed measure to limit or infringe privacy must meet four tests: it must be demonstrably necessary to meet a specific need; it must be likely to be effective in meeting that need; it must be proportional to the magnitude and importance of the problem; and there must be no less privacy-invasive alternative.

I stand to be corrected, but at this point I am not aware that this bill can successfully meet any of those tests.

First, let me address necessity. I haven't seen any statistical evidence as to the magnitude of the problem that this bill is intended to address. To the best of my knowledge, there has been only anecdotal evidence, and even that evidence doesn't indicate a problem so massive that it would justify such a draconian violation of privacy.

For instance, there have been only two probable cases of occupational transmission of HIV in Canada and one confirmed case. The one confirmed case was a health care worker, but the two probable cases were research lab workers, who aren't even covered by this bill.

Secondly, effectiveness. I'm not persuaded that the actual benefits of this bill, as I understand them, would be quick enough or conclusive enough to meet the intended purpose. It would obviously take time to get a warrant, to get the blood sample, to carry out the testing and obtain the results, probably more time than is available before prophylactic treatment should start, and the results really wouldn't be conclusive in any event.

A negative test result doesn't necessarily mean the source person is uninfected. He or she could be in the window of incubation before the virus can be detected. If an object such as a needle or a knife is involved, the individual being tested isn't necessarily the only source of contagion that might be on that instrument, on that object. Who knows who else might have been in contact with the needle or the knife previously, for example?

Third, proportionality. We're talking here about a massive, unprecedented invasion of privacy. The Criminal Code only allows bodily samples to be taken without consent in two situations: testing for alcohol when there are reasonable grounds to suspect impaired driving, and taking DNA samples related to prosecution for some very serious offences. In both instances, there must be reasonable grounds to suspect criminal or severe wrongdoing.

Compulsory blood testing of ordinary law-abiding citizens is a privacy violation so enormous that I find it out of all proportion to a problem whose size has not even been demonstrated and to its very questionable effectiveness, as I explained, as a solution in any event.

À (1050)

Finally, are there less privacy-invasive alternatives? I believe the answer is yes.

There is, first of all, continued reliance on voluntary consent. I understand the studies indicate that most source persons agree to be tested and to have the relevant information shared with the exposed worker when they're approached in a sensitive manner and the seriousness of the problem is explained, and particularly when privacy, security, and confidentiality are respected.

Second, there is the option, of course, of improved prevention and management of occupational exposure to blood-borne pathogens including better policies, practices, and training as well as more widespread vaccination against hepatitis B.

To sum up, this bill is a proposal to take away a fundamental right. Unless someone can present a much stronger argument than I have seen to date--an argument that fully meets all four of the tests that I've suggested to you--I recommend that you reject any proposal for compulsory blood testing.

Thank you very much.

The Chair: Thank you very much.

I apologize for not bringing to the attention of the committee our newest member, Mr. Macklin, Parliamentary Secretary to the Minister of Justice.

Welcome. I think you'll find the committee works reasonably well.

On that note, I'll go to Mr. Cadman for seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair, and thank you again, Mr. Radwanski.

Mr. George Radwanski: It's nice to be back.

Mr. Chuck Cadman: You indicate you feel that the problem isn't massive. I think if we look at it in another context, some of the evidence we've heard indicates to me there is a problem, because of the number of people, not necessarily infected, but who do have their fluids splashed on paramedics, police, emergency response workers, who do have either needle pricks, bodily fluids splashed on them, as I said. And it is a large number. From that approach I think it is a bigger problem.

Certainly you've indicated that the number of people who have actually been infected may be small. I think what this bill tries to do is it tries to go to the peace of mind of the person who has been possibly infected--in other words, to try to get treatment right away. We've heard evidence that there is a fast testing done within 30 minutes where a result can come back and a person can be informed within 30 minutes whether the sample came back positive.

The other point you made is that we could rely on just asking people for consent and people might consent to it. Well, that might work in a hospital. Unfortunately, it doesn't seem to work too well for the police or the paramedic on scene, because in those cases the person of interest is not necessarily cooperative. I wonder if you could look at it from that perspective and give me some comments.

Mr. George Radwanski: I take your point, but I still come back to the fact that even with regard to people who feel they might have been exposed, as you describe, to blood splatter or whatnot, my first point is this. In our review, we haven't come across statistics--maybe there are some and maybe your committee has--on the number of people to whom that particular circumstance occurs, let's say, each year, to an extent that they have reason to fear or would actually otherwise still opt for prophylactic treatment, or on how many do opt for prophylactic treatment in the absence of blood tests. This is quite objective evidence that I think should be available to assess the magnitude of the issue.

Secondly, I presume we're not talking about every possible blood splash in the sense that obviously emergency workers, whether they're police, paramedics, ambulance attendants, or sometimes firefighters, in the course of their work may be exposed to human blood. Presumably that is addressed both through procedures and through protective equipment. I know certainly ambulance attendants and so on put on gloves now, for example. It takes more than having some blood splashed on your clothing to end up being so contaminated that one is at major risk of one of the infections we're talking about.

I would also add that we are dealing here with a fundamental human right of privacy, and of course health privacy is about as fundamental within that right as you can get. I've said in many of my speeches on different subjects that the greatest threat to privacy, generally speaking, I've discovered, doesn't come from people who want to do something bad. That would be easy enough to deal with. The greatest threats to privacy come from people who argue, with the best of intentions, that privacy needs to be sacrificed on the altar of some greater good, whether it be security, whether it be more efficient delivery of government services, whether it be better customer service in an instance like this--protection of emergency workers. And it's a laudable goal. But I am not persuaded that the real problem, not the perceived problem, is of such a magnitude that this extraordinary limitation on privacy rights is necessary or justified. I'm tremendously concerned about the precedent it would set.

To pick up on your last point about quick testing, I can only speak for myself, but I think it's true of most people. If I were in a circumstance where I had cause to fear that maybe I had been contaminated, I don't know, for the reasons I touched on, that I would trust a test in any event, that I wouldn't decide I'd better take the necessary precautions in any event.

So at this point I'm unpersuaded. I'm open to seeing evidence that would obviously change my view, but I haven't seen it to this date.

À (1055)

The Chair: Thank you very much.

Mr. Bellehumeur.

[Translation]

M. Michel Bellehumeur: Thank you, Mr. Chair.

Mr. Commissioner, this will be short because I completely share your point of view, both as far as necessity is concerned as well as effectiveness, the rest of the inconveniences and the criteria which we should follow. I think that what is missing the most - and that was your final answer - is to examine the data even more and to have statistics and information which could make us change our minds.

I am also in sympathy with that. I listened to the testimonies which were very good, well structured. I'm a human being just like everyone else. I think what these people have lived through is deplorable and sad, but we must not implement legislative measures for specific cases because that will create a precedent. Today, it's for this, tomorrow it will be for something else, etc.

With the bills that the federal government has passed in the last few days, weeks or months regarding security matters and all sorts of other things, we see that, more and more, we are heading towards a certain loss of confidentiality and private life, for some very public reasons. At some point, we are going to have to stop, otherwise we will be in a police state. I think that is an additional step which is very dangerous and I thank you for the courage you have shown by coming here and telling us very honestly, on the basis of your education and your mandate, that we should reject such a bill, not because we are not sympathetic, not because we don't believe there is some sort of problem, but because it is not by legislating that we are going to solve this problem. We will only create other serious problems.

Thank you.

Mr. George Radwanski: This time, I don't have much to add because we are in agreement.

M. Michel Bellehumeur: We'll leave that to the others.

M. George Radwanski: Thank you.

[English]

The Chair: Mr. Strahl, for seven minutes.

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

Thank you, Mr. Radwanski, for at least lauding the goals. I'll take that small comfort at the start of your testimony, at least.

I would invite you or your staff to review some of the testimony--maybe you have--from the last time to now. I know you're concerned about privacy; that's your job. But I think you can argue that this is necessary. I have over 80 national organizations in Canada that have expressed support for this. They say it is a concern for their members. These people aren't being cavalier about it; there's a sincere concern. Whether it's mental anguish or what, I don't know, but they feel it is very necessary. I agree with them.

I'm not sure what the balance is. I absolutely want to protect the privacy of the people who would be tested. I want this information used for nothing else. I want it to be available to the smallest number of people, and I want it to be unavailable for any other purpose other than the medical treatment of people who may be infected with bodily fluids from someone else. Certainly anything we can do to strengthen that should be done, I agree. We don't want this information to be used improperly or abused in any way, and there should be whatever safeguards are necessary.

Maybe there's nothing I can do to convince you about this other than...when the paramedics came the other day, for example, they said everyone of them was compelled to be vaccinated with hepatitis B vaccine, often against their wishes, because it had been decided, even though there's no statistical evidence that these health care workers are infecting a lot of people...they're told they have to do it on pain of losing their jobs.

In their case, putting a hepatitis B vaccine into their body is quite an intrusive thing as far as they're concerned, yet in turn, if they want information to help protect the people they come in contact with, that's just...some people write it off as, sorry, you don't get as much protection as the people you're treating.

I don't know what the balance is. The case that started this for me was a young guy in my riding, 17 years old, who was told by the AIDS centre in Vancouver that he should start prophylactic treatment because of the significant amount of blood and so on that he had on him. It was a very serious amount, and prolonged.

So this 17-year-old guy went through a six-month treatment program that, he was told, could affect his ability to have children, could affect everything from his long-term health to his reproductive abilities. And, as we've heard in testimony from experts before, if they could get a negative test, they would immediately stop post-exposure prophylactic treatment. That's what the experts say. They say, sure, there's this window and, sure, there's all that other stuff, but the truth is the treatment is so invasive, with unknown long-term effects, that if they had a negative result they'd stop immediately. That's how serious it is.

So for that kid in my riding who was told that, the information is critically important.

Finally, I would say, is it effective? Well, I don't know if it is effective, but we've had two police officers testify so far about cases with homeless people who said they'd give the blood sample in exchange for a hamburger. These are just two that we happen to have here, where they said, “I'll give you a blood sample in exchange for a Big Mac”. It's a life-changing experience for those people who get the sample if it tests negative. It changes their life.

Another thing that's going on is people are plea bargaining unofficially. Police officers admit they plea bargain that they'll drop the charges if the person gives a blood sample.

Á (1100)

I say it is necessary because it's happening. It may be anecdotal, but that's all we have, because you can't get stats. We were told that again early this week. You just can't get statistics on this other than anecdotal. We did get some of those both from the Ottawa Police and the Edmonton Police.

It does seem to be that it is proportional. It's going to be used very rarely. We need to find ways to strengthen the privacy parts of it. But according to the national organizations it is very necessary. The testimony says it is effective because it does change whether or not people receive treatment. It does seem to me proportional because it's going to be used rarely. But it is something that seems to me better than plea bargaining Big Macs and dropping charges. And there is no other less privacy-invasive way.

Certainly most people will do it voluntarily. But there comes a time occasionally, as we've seen with the hepatitis C vaccine, when government steps in and says it's in the best interest of society. In this case--in both cases--a lot of it is mental health and stress and also physical after-effects. It is necessary on occasion to use that privacy-intrusive way. I don't see any other way around it, because, as 80 organizations have said to me, the status quo is not working effectively for their members.

Á (1105)

The Chair: Thank you, Mr. Strahl.

Mr. George Radwanski: As I said in my opening remarks, I very much respect the intent with which you've introduced this legislation. I'll say, as a citizen, it is always good to see a member of Parliament introduce legislation aimed at responding to what he perceives as an urgent human need to actually try to help people. I welcome that. It honestly saddens me not to be able to say go for it, with the blessing of the Privacy Commissioner.

The difficulties with what you say are several. First of all, you said you would want this done obviously in a way that respects privacy as much as possible. It may be that you and I have a different perception of the concept of privacy. To me, to say to someone who has broken no law--the bill doesn't propose any law-breaking be a criterion--who is generally minding his or her own business, but perhaps has suffered some form of physical misfortune, “You will have a sample of your blood drawn whether you want to or not, or you go to jail”, is a massive invasion of privacy. That is number one.

Secondly, that information will be shared with a member of the community and with a peace officer. This is a huge invasion of privacy. How do you keep that information from being shared further? Let's say you're dealing with a small community. The individual is HIV positive. Does he want his employer to know it? Does he want the whole world to know it? There's no way to guarantee privacy. So you've coerced a surrender of privacy. That's a tremendously serious matter. Are there circumstances where we do coerce surrender of privacy? Yes--when the four tests I mentioned apply.

Now you said there are no statistics because there cannot be statistics. I'm not persuaded of that. I'm persuaded there aren't any. I'm not persuaded that it will be impossible to have any. If you're dealing with the organizations you speak of--firefighters, paramedics, police--surely it would not have been, if this were a significant phenomenon, beyond their capacity to say x number of our members had to undergo this very serious prophylactic treatment in the past year. That would be a very easy statistic to have.

If it's not kept, I would suspect it's because the incidence of that actually occurring is not huge. As to instances where people worry some, I'm sure there are many.

It's a hard world, and I don't mean this in an insensitive way. People take on hazard assumptions for the right reason and there are some risks that are unavoidable. And I don't mean to say that it is only a few people who have their lives, in one way or another, messed up and that's okay. I'm not saying that at all. But in terms of putting a law on the books that affects the rights of everybody in society, you have to have more rigorous criteria than that. We could say, with regard to police officers, for instance, that the world would be a safer place if they could search anybody at any time with or without cause. Maybe some lives would be saved, society would be safer, if the authorities could walk into our homes anytime or could open our correspondence at any time. I could make you lots of arguments about the good it would do.

Mr. Chuck Strahl: Like the firearms registration.

Mr. George Radwanski: I can make you lots of arguments about the good that all kinds of intrusions could do, but in our society we say, hey, we can't simply say that it will help someone, so let's do it. And I would argue that putting a law on the books of this nature--laudable as its intent is--would just so dramatically change our whole concept of what is our right to privacy over our bodies and over our medical information that it can't be justified--absent a great deal more evidence of the necessity than individual incidents, however tragic they may be.

The Chair: Thank you very much.

Now we'll go to Mr. McKay.

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

I just want to go over your four tests. The first test is whether it is demonstrably necessary. Your argument is that there is no statistical evidence and only anecdotal evidence. I don't know whether statistical evidence is available or can be made available, but it does seem to be a bit of a mug's game and a bit of a moving target to try to develop objective statistical evidence that actually means something.

We heard a little bit of testimony about what statistics the Edmonton police department keeps. Frankly, I don't know that it means anything at all.

On the other hand, we have anecdotal evidence that does demonstrate that these kinds of people are repeatedly exposed to situations that generate a level of apprehension that is justifiable. I'm not persuaded that your argument is strongest in that area.

Your second argument is on whether it is effective. I think that goes to whether you find out quickly enough. I agree with you it's not going to be timely if you obtain a blood sample involuntarily, but it would go toward knowing whether you had to continue the treatment. The medical recommendation may be to start the prophylactic cocktail, or whatever it is, but if you then have a sample and know it's not positive, you can discontinue the treatment. Otherwise, you're left in the realm of the unknown.

Á (1110)

As to whether it's proportionate, I tend to agree with you, it is a gross overreach. It is a bit of a sledgehammer to kill a fly. On the other hand, the drunk driving legislation--which has its own sets of safeguards--has worked reasonably effectively in this country, so that we do have a standard.

Finally, on the issue of voluntary consent--that a lot of people just give it, and on whether they have to be bribed to give it--is rather an irrelevant argument. The issue is, we have somebody who refuses, and that's what this legislation is directed at. I'd be interested in your comments on my responses to yours.

Mr. George Radwanski: Of course, and thank you for your comments. Let me emphasize again, in all honesty, this is the part of my job that in a sense I like least. One doesn't like to have to pour cold water on something that is meant to help people. I don't like it as an individual, and it can also make privacy advocacy seem insensitive. I'm very aware of that. But my job is to be the voice of privacies, and it's an important right.

You say statistics can be a mug's game. Well, certainly it can in some instances, but I think we have to keep in mind that if you put a law like this on the books, it affects the rights of every single Canadian, because we have no way of knowing which of us might be in circumstances where someone will demand that we be tested.

So it affects every single Canadian. I think it is necessary to ask, beyond anecdotal indications or individual misfortune: how big is this problem that it could justify affecting the rights of every single Canadian?

You used the example of blood testing in the case of drinking and driving. It's a perfect illustration of what I'm saying. There certainly was no shortage of statistics about the number of deaths and accidents attributed to drinking and driving. It's a demonstrably huge problem.

That is an exceptional intervention in response to a demonstrably huge problem. But an exceptional intervention in response to an unquantified, anecdotal problem strikes me as contrary to all the good principles of respecting fundamental human rights.

You indicate that there are many instances where people have reason to feel anxious, and so on. I'm sure they do. But we can't drastically reduce human rights to make people feel better. I don't mean to make that sound glib, but there has to be something more to it than simply the fact that emergency workers in general feel anxious about the effectiveness.

I still maintain that even a negative test, if the circumstances otherwise are such that there's real cause for concern.... Would one just discontinue if one has real cause to believe or fear the person is in a category that might well make him a carrier? If you get a negative test, do you say, “Okay, I'll cut off the prophylactic treatment”? Maybe. I could also imagine many people would say, “Gee, I'm not taking that chance. What if the lab results are wrong?” You do get errors in lab results or get mixed-up lab results; it's been known to occur. It could be in an incubation period.

I'm simply not persuaded from--

Á (1115)

Mr. John McKay: It's a little bit more of an informed medical decision if you have a result of a test.

Mr. George Radwanski: You're right, a little bit. I come back to this whole proportionality and effectiveness of all these tests. Maybe you scored a little on most of them. I'm not saying it gets a zero score if it were on a scale of one to ten, but from the perspective from which I have to look at it, it doesn't begin to meet the tests for something this massive.

I guess, to add something I didn't mention before, when one thinks about it--and this is not my main concern--what else does it lead to? This is all very well; someone--an emergency worker--gets bled on or otherwise exposed to something. The individual in question, let's say, is ambulatory or declines further treatment, or what have you. Is it next leading to the argument that this individual has to be somehow detained and captured so you can go out and get a warrant, even if the person has broken no law? What if the person isn't easy to find, or leaves town? Then the argument becomes that they have to be quarantined, just in case, before you're through. This kind of thing really does become a very slippery slope.

The Chair: Mr. Sorenson, three minutes.

Mr. Kevin Sorenson: I have to speak quickly because the chair keeps cutting me off.

My wife is an RN, and one time we came across an accident in which the individual died. There was blood. We had to pull him out of a vehicle. She had talked to me before, and she had said she didn't want to deal with anyone on a roadside. But when it happened, we were there, and we did react.

You have mentioned that you shouldn't have the right to draw blood just to help someone. In fact, you said it twice. You said you hate to throw cold water on something when it's there to help someone. You also said that these people in these positions take risks, that they take risks to be a firefighter, they take risks to be a police officer. But in reality, it's not just to help someone, it's to save someone. It's perhaps to save someone's life, it's perhaps to save someone's marriage, perhaps to save someone's peace of mind, and perhaps to save someone's family.

I'm not sure if it was Mr. McKay or you who said this is like using a sledgehammer to kill a fly. I really couldn't disagree with you any more. The whole question comes down to this: Why should someone have the ability to draw blood to save that individual's life, but not to save someone else's life? If I'm unconscious in a vehicle, they might have to draw blood to give me a blood transfusion. Blood will be drawn.

In some cases, in instances where someone is unconscious, shouldn't we have the ability? We already have the ability to draw blood, but what we don't have the ability to do is to take this one extra step to see what the blood is infected with. We have the ability to do blood work on this individual, but we don't have the ability to have consent to see if they can have that extra blood test done on someone. It baffles me to think that....

This bill looks like a common-sense bill; it looks like a bill that is there to help save individuals' lives. The number of people shouldn't matter, because many people give consent. But when they don't give consent.... We aren't talking about whether we should unilaterally have the ability to walk out there and draw blood from every individual. That's not what's questioned. When we don't have consent, should we be allowed to take it?

Mr. George Radwanski: Let me pick up that last point first. Consent is a pretty meaningless concept if, in the absence of consent, the same outcome will be coerced. What you're saying is that we won't force you if you agree, but if you don't agree, we'll force you. That's not my understanding of the concept of consent.

You raise an interesting, and I would say ingenious, argument about drawing blood to help you. If you're unconscious, why can't they draw your blood to help somebody else? Well, again, the simple answer is consent. There is an implied consent to treat you if you're unconscious, to do what is necessary to save your well-being, your life. There's obviously no implied consent to do other things, however desirable they might be. By that logic, you could say that if you're unconscious, they can draw a pint of your blood to give a transfusion to somebody else who might need it. It's doing good for somebody else. Why? Because you haven't consented.

To me, quite frankly, it's a reach. Let's say you're having knee surgery and you're unconscious. They're able to take out your appendix too, just to save you some inconvenience. But unless you consented, they're not going to do that, because you have a right to determine what happens to your body. Now I'm getting further into human rights issues, not just privacy issues, but the fact is that to say unconsciousness negates the right for consent, other than what the law already establishes as implied consent to have one's own life saved, would be one heck of a stretch. Look where it can lead us if we're not careful.

Á (1120)

The Chair: Mr. Macklin.

Mr. Paul Harold Macklin (Northumberland, Lib.): I'd like to pick up on that question. What I hear being said, I think in a very sensitive way, is about the person-to-person balance, as opposed to the broader community. If you look at the two people before you and weigh the interests of those people at that particular moment, is that the test being put forward? I'd like to get your comments.

Mr. George Radwanski: It sounds like it. If you start going there, you can make an argument for violating just about anyone's privacy at any time. There's always some circumstance that can be cited where someone else could benefit more than you will be harmed. You could probably apply it to just about any fundamental right. The trouble is, it is how we lose rights.

It's why I made the point about the greatest threat being good intentions. If you put it in sufficiently dramatic personal terms, it's easy to make the argument. Then there's some other issue and it's easy to make that argument. Before we know it, we have no privacy. This is what these things lead to.

We end up saying there's already a law on the books that says such and such. How much less reasonable is it to have the other law on the books that says this other thing? Before you're through, we've agreed privacy is a luxury we really can't afford. Society thinks too many people may be harmed or inconvenienced by the exercise of my right.

It's why we have a privacy commissioner. It's why I very much appreciate this opportunity. It's why the argument always has to be on the table whenever someone says it's just a small change and in fact won't hurt a bit.

The Chair: Mr. Strahl, you have three minutes.

Mr. Chuck Strahl: I have a couple of things. I think having your knee operated on and losing your kidneys while you're sleeping is a pretty extreme example.

Mr. George Radwanski: I wasn't suggesting your bill was like that. I was illustrating the concept of consent, or if you're unconscious, why don't we do it just because we can.

Mr. Chuck Strahl: I agree some of this perhaps needs to be strengthened. The difference is that the bill says it should be damn difficult to get a blood sample here.

This is like someone getting a few splashes of blood on him and saying he wants the guy tested. This isn't going to happen. The medical doctor or medical expert would say it's not a serious exposure. It's going to have to go to a judge. The judge is going to say he's balancing rights. I agree there are conflicting rights. The judge then has to say, on the balance of it, he's not going to issue the order because it isn't serious enough.

In other words, you're not going to get someone's kidneys, to use your example, while you're sleeping because someone decides what the heck. What you're up against here is that it should be very difficult because you have conflicting rights. There's no absolute right to privacy, as you've already described. You have conflicting rights. It should be very difficult to get the blood sample, but it shouldn't be impossible.

I have articles here. A police officer says a guy bit him during an arrest, says he has AIDS, and hopes he likes it. Basically, it was an assault, a transfer of bodily fluids. Because he wouldn't consent to have his blood tested, the guy went on the whole prophylaxis thing. It ruined his life. He lost his marriage and was laid up for six months off work. Talk about mental anguish. In his case, maybe he voluntarily lost his privacy, because everyone in Calgary knew this had happened to him.

There are conflicting rights. Couldn't you be satisfied that there's a way to protect it so it's difficult, as it should be, and private?

Doctors have records all the time that they don't share, and they're not allowed to share, with the world. I mean, there's an implication that a doctor, or whomever, will keep the records private. This could be used for the treatment of the person only after a judge and medical expert are persuaded it's serious enough that this needs to happen, and only on the rare occasion when someone doesn't give it voluntarily. It's only going to happen rarely, at the critical moments when people's lives hang in the balance.

I've heard from so many people who have given me letters, and there is testimony we've heard. They've lost their marriages. They haven't been able to be sexually active for six months while they wait for test results. They don't know how to handle their children, if some special precautions have to be taken. All of it is because they don't get a blood sample.

People can argue that the blood sample is not 100% sure. In every single case I've heard, the experts, including Health Canada, say when they get a test and it comes back negative, they stop the prophylaxis treatment and go on as if life is good. It has a huge impact on these people.

It's a balancing of rights, I would argue. If you could put enough safeguards in place, I am willing to put in a pile, if it would do it. It seems to me, on the rare occasions when it is serious, the police in Calgary should be able to know it isn't the end of life as they know it, while they wait because we couldn't get a blood sample.

Á (1125)

Mr. George Radwanski: I hear you. I have several points I would make.

First of all, you say it should be extremely difficult and that's why a warrant. Fine, but it should be extremely difficult, by the same logic, to get a search warrant. How many instances do you know of where the police are absolutely unable to get a search warrant? I would say that's the exception rather than the rule, because, by and large--way back when I used to be a police reporter, when I was a journalist, I had some knowledge of how these things worked--it's not that hard to get a search warrant.

How hard would it be to get one of these things? How difficult is it to find a sympathetic judge? You can wish it to be difficult; it doesn't mean it will be. How difficult is it to have a physician on call who will say that this is definitely a serious risk?

Mr. Chuck Strahl: But we accept, though, that search warrants occur even though.... I would argue this would be more difficult because you're going to have to also get a medical doctor to say that was serious, and a judge, maybe sympathetic or not. But we still allow search warrants, because we say it's a huge invasion of privacy to allow somebody to bust into your home. But we say that overall, even though it may not result in a conviction, if in that case there's enough evidence to put forward, they still approve it.

Mr. George Radwanski: Of course, but there's a distinction between search warrants, as I said before, where you're dealing with reasonable cause to believe there is an offence, and with the rights of law-abiding people. But the illustration I was making was that it's not difficult to obtain them. So on the subject of difficulty, you may wish it would be difficult, but it might not be as difficult as we might hope, is my concern in that regard.

I'm trying to remember what other point you were making. I had it on the tip of my tongue to respond to it and I forget suddenly what we were--

The Chair: Mr. Radwanski, given the time, perhaps you can think about that while we go to Mr. Cadman, and if it occurs to you, we'll probably get back to Mr. Strahl again.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I just want to look at this--

Á (1130)

Mr. George Radwanski: I just remember the point I wanted to make, if you'll forgive me.

I hope this is actually a point you might find to your liking. I saw you wondering “Oh, God, what's he going to say next?”

You raised the example of someone being bitten by a suspect. I'd have to think about it and see it, but if you were dealing with legislation that touched only in instances of a deliberate assault, an actual assault, where there is an element, clearly, of wrongdoing, of transgression on the part of the individual, you would be in a more limited circumstance and in a different realm. I'm not saying that would necessarily address all the privacy concerns. I'd want to know what the problem is. But maybe you surrender an element of your right to privacy when you bite someone. I'm not sure you surrender the same thing by collapsing, bleeding, on a sidewalk.

Therefore, if you had legislation that was more narrowly drawn, that really only dealt with the even more rare egregious cases of someone deliberately breaking the skin of another and doing something of that nature, you're in a different realm. You're already in a more narrow realm. So I'm not saying I could automatically smile and say, “Hey, great idea”, but you would certainly be engaging far fewer privacy concerns.

I don't know if that comes close to meeting what you're trying to address but certainly I think we do surrender rights when we deliberately inflict harm on other people and we certainly have a lower expectation of certain rights than if we're simply minding our own business and being law-abiding.

The Chair: Thank you.

Mr. Cadman, three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I have a question that just came to mind, from a different perspective. I'm thinking more in terms of the good Samaritan, as opposed to the emergency worker, at this point. If I come across you at the side of the road as a result of an accident and you're bleeding profusely and unconscious and I make a conscious decision that because I don't have anything like this to fall back on, just in case I could be infected by your bodily fluids, and I flat out say, “No, I'm not going there; I'm just going to sit here and watch you expire”.... Is there anything that compels me, as a citizen, to lend aid?

Mr. George Radwanski: Not to my knowledge.

Mr. Chuck Cadman: I would be afraid that in the absence of this you're going to have more and more of that because of things like HIV and hepatitis C, where individual citizens are going to flat out say, no, I'm not going anywhere near this.

I'm wondering, and perhaps the lawyers could help me on this, is there anything that compels a person to lend aid and not just stand there and watch a person expire because they're afraid to get their hands dirty?

Mr. George Radwanski: There are jurisdictions that have good Samaritan legislation, but I don't know that we have any of that in Canada. But setting that aside, quite honestly, and again I'm not an expert in this whole field--

Á (1135)

Mr. Chuck Cadman: No, I understand that.

Mr. George Radwanski: --but to my knowledge, it's not that easy to become infected or contaminated with one of these conditions. You would have to ingest or take into your body somehow some blood-borne contagion, which is to say, unless you have an open cut or somehow someone stabs you with something or it has reason to enter your bloodstream, your chances of actually contracting anything aren't huge, to put it mildly. They're statistically very small indeed.

So to say that this fear is going to prevent people from rendering normal assistance in most circumstances, again, someone would have to give me some indication that this is happening. I would be concerned if, for instance, fears were unreasonably spread and people were saying, oh boy, there's so much contagion out there; this bill didn't pass, and, boy, you'd better not go near anybody you see bleeding. But that would be a function of inadequate information rather than of an intolerable risk.

Mr. Chuck Cadman: But by way of example, I had an experience similar to Mr. Sorenson's. This goes back many years, to when I came across a car accident in which there were six bodies inside a car and I was helping to drag them out, and I certainly did cut myself and was exposed myself. This goes back 20 years. So some of the issues that we may be dealing with now maybe weren't so prevalent or we weren't knowledgeable about them, but I'm not so sure I wouldn't have second thoughts about doing that the way I did 20 years ago.

Mr. George Radwanski: No, I understand, and it is a balance, and from a public policy point of view you have to say, is the risk in society so great that great numbers of people will be left to expire in circumstances where they encounter an accident? Is that risk so great that we should put a law on the books that dramatically touches, reduces, everybody's fundamental human right to privacy?

Again, that demonstration would have to be made. I'm not aware that we are in such a circumstance. So I have to take the position that I am taking. There are many things we could do that would violate rights just in case, but my role is to say the bar has to be pretty high before we say that's okay.

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

Peter MacKay.

Mr. Peter MacKay: Thank you very much, Mr. Chair.

Mr. Radwanski, it occurs to me that this effort by my colleague with Bill C-217 is very consistent with what happens frequently when circumstances arise, the most telling, most obvious example being 9/11, but this is about modernizing the law. Nobody anticipated years ago that we would have been doing the work that we're doing with DNA, or the sampling of breath and blood for impaired driving.

You refer to it as public policy decisions. It became so important to combat impaired drivers on the highways that we said this is a justifiable intrusion. It seems to me that we are rapidly approaching that point. This whole idea...you rightly point to it as a proportionality and our response to a need that is to be addressed.

I do greatly fear, from a public policy perspective, that we are discouraging good Samaritans. We are not only discouraging good Samaritans, but we're also sending a signal to health care, emergency care, and police officers to hesitate, to think twice, because their actions could jeopardize and could have long-term ramifications for their own health, because, on balance, they're not going to be protected if they make that decision.

That goes to the freedom of choice, if you decide to put yourself in harm's way. I would submit that police and health care workers don't really have that choice; it's expected.

So, on balance, and when we look at it proportionally in what we allow the law to encourage now and enforcement...I hate to keep bringing this example up, but it is an obvious one in the context of privacy: firearms, allowing police to go into a person's home now because they suspect that a World War II artifact might be improperly stored--or isn't registered, which is the more blatant example.

It seems to me that allowing with safeguards, with the provisions that attach under a warrant, for an individual to avoid the obvious psychological but, more importantly, potentially life-threatening ramifications of having voluntarily assisted in aiding humanity by trying to save somebody or arrest them in the line of duty, or whatever the case may be, that privacy of that individual, or the expectation of privacy, whether it be your example of whether it was wilful...you think it diminishes somewhat the expectation of privacy if it was a stick, if a person intentionally stuck somebody with a vial of their blood or blood that was contaminated, or the case where the individual bit somebody, intentionally assaulted them. I agree that it may be in a somewhat different category, but it seems to me that the privacy element has to be given lesser priority in this instance. To modernize the law, I think we have to move in this direction.

Mr. George Radwanski: Look, you certainly make a very intellectually tenable case. The difficulty is this, and I hear it in so many different contexts. We hear a lot about modernizing various laws, and “modern” in too many of these conversations seems to equate with less rights, less privacy, whether you're talking about this issue, whether you're talking about the many things that technology makes possible, and so on. You get people like whoever that American IT person was who said, face it, privacy is dead; our technology makes it a historical artifact.

It's very easy to slide into a concept where modernizing equates with, oh well, those are old-fashioned rights that are no longer convenient, or what have you. So I worry about that aspect.

Á (1140)

Mr. Peter MacKay: I'm going to interrupt you there.

I'm going to ask you this, though. Would you have contemplated, even nine months ago, that you would have been as willing to endorse the government's invasion of privacy--I would submit--that is now permissible under Bill C-36? Not to reopen that whole debate, but--

Mr. George Radwanski: No, go ahead.

Mr. Peter MacKay: --that is an issue that touches on privacy.

Mr. George Radwanski: But the changes I endorsed, if you want to call it that, that touched on privacy were very few in number, because most of that bill wasn't about privacy. It touched on a lot of civil liberties, and not many of them were privacy specific. That's why I wasn't even supportive of a sunset law, because I said these were changes that frankly struck me as common sense. I probably wouldn't have objected to those particular changes before September 11, just to be clear, because they didn't strike me as unreasonable intrusions.

For instance, saying that if the Communications Security Establishment intercepts a communication from a terrorist living in Italy it no longer has to disconnect if he happens to call an accomplice in Canada does not strike me as unreasonable, and it would not have struck me as unreasonable before September 11.

I think we have to be very careful about using that model. But that's a little off the topic, of course.

I was going to say, you used the example of firearms, which was a very interesting analogy for a different reason. I would suspect that overall, police officers in Canada face far greater risk from firearms than they do from HIV, let's say. Why not argue, for example, then, how much we'd improve lives, save the lives of police officers, if we simply said that under no circumstances will anybody in Canada, other than a police officer, be allowed to be in possession of a firearm? If you get caught with a firearm, you go to jail for the rest of your life.

You could simplify a lot of issues for the law enforcement authorities. You could probably make the issue. And the issue I'm raising is that one can always argue that there are things that would make people in dangerous occupations safer, but one has to be careful not to choose only those that don't gore one's own ox.

Mr. Peter MacKay: But that's a property issue you're getting into. That's possession of property versus a person's bodily integrity.

Mr. George Radwanski: With all respect, I think your blood is even more your property.

Mr. Peter MacKay: Oh, no question, but you have no choice with that. You choose to own certain property.

Mr. George Radwanski: I think you're reinforcing my argument, but I'm not sure.

The Chair: On that point, we'll go to Mr. Sorenson for three minutes.

Mr. Kevin Sorenson: I don't think Mr. MacKay was reinforcing your argument.

I have more a comment than a question. I'm not sure I would agree with the last statement you made, that firearms were probably a much greater risk to the RCMP or to our police officers than the risk of HIV. If you take a look at the number of police who are active in our country, who come across accidents, who stand at the roadsides and pass the news to a loved one that their wife, husband, or mate has passed away, I think there's a higher risk of police officers...because I've seen them. I've seen the police officers there with the ambulances, helping people out of the vehicles.

As far as modernization goes, that is exactly what we're referring to. It's not necessarily the firearm that's the big threat to them any more; it's a little cut on their hand or arm, and pulling someone out with blood all over them. That becomes a threat to peace of mind.

I think this bill is a common-sense bill that we need to support.

I'm not going to go into the firearms debate again on this, but I just think we're living in a different time. This is something that these people, who we expect to uphold the peace, who we expect to maintain emergency measures and deal with people's lives, have asked for--they recognize the need. I really don't see that the number of times where privacy will be invaded is paramount in this.

Mr. George Radwanski: I think the issue is that the great invasion in this instance comes at the point when a law of this nature is put on the books. It's the passing of such a law that is a limitation of rights, without regard to how often it's invoked, or whether it's invoked rarely in the first year but very often in five years. The real invasion of privacy is the point at which we say the state can do this.

I do want to be careful on some of the other points you made. I could respond, but as much as I enjoy a good debate, I think I have to be careful not to try to turn this into a battle of wits or a debate. My role is really to bring you the privacy perspective. You will hear many others.

Á (1145)

My responsibility is to tell you, to the best of my ability, what the privacy considerations are and what my best judgment on an issue at the moment is. I don't know that I want to get too deeply involved in debating it, because I'm not sure that's an appropriate exercise of my role, although I'm happy to do it.

The Chair: Mr. Strahl.

Mr. Chuck Strahl: It's an alternative position, because we have competing rights here. Privacy is one of them, and it's one that you specialize in and one that you're the advocate for. I understand in that sense your position.

Ontario's Patten bill, Bill 105, deals with the mandatory taking of blood to protect health care workers or workers basically from a health perspective. I don't know that they actually have or are considering as many privacy concerns as we are here in this bill. Did you comment on that bill?

Mr. George Radwanski: I was not asked to, and of course Ontario law does not fall within my jurisdiction, although when there's an instance, as was the case with our general health legislation where there was an issue of whether it would be substantially similar to the federal private sector law, I was invited to comment and I did. But generally speaking, I don't comment on provincial legislation unless I have a compelling reason to.

I will say that I would suggest the same criteria I raised today are applicable in that instance as well--the four tests I mentioned, namely, necessity, effectiveness, proportionality, and availability of alternatives. Since I have not studied the bill nor the arguments in favour or against, I couldn't tell you what my view of it would be.

Mr. Chuck Strahl: In Ontario, all parties supported the bill, but of course all parties aren't necessarily privacy experts, and so who knows what they'll do.

You've made the argument on a theoretical basis that it's a slippery slope. I don't think anything can persuade you that information taken.... Or maybe you can distinguish for us. There's the privacy of the person--the ability to say that's my blood, nobody else gets it. Then there's the privacy of the information once it's taken, whether it be taken in a doctor's office or a needle exchange centre. It's the idea of security of information so that it doesn't get out in the community and so on. Let's say we did move it. We just said thanks, Mr. Radwanski, but we don't care, we're going to do this anyway. Are there things available on the security of information to persuade you that the information, once used for the treatment of a police officer, for example, can be made secure? Or is it that once the information is taken it's going to get on the Internet somewhere and everybody's going to know it? Is there anything that can secure the information--sanctions against sharing it, sanctions against the doctor, or striking the names from the vial? Is there anything that can be done to protect the privacy, once the sample is taken?

Mr. George Radwanski: The first comment I would make is that it is important not to use privacy, security, and confidentiality interchangeably. They are very different concepts. Your privacy is your right to control access to your person and to information about yourself. That, by definition, in the circumstance you're describing, gets cast aside, gets violated.

Once privacy is violated, it's very hard to put it back together, because what's known cannot become unknown. In short, you can have good security precautions on the information, although no security precautions, as you know, are perfect, but all the sanctions in the world can't stop the recipient or the person who calls for the test from letting certain people know, obviously, what the test result was.

The legislation, also for reasons that are unclear to me, refers to the peace officer, for example, also finding out the actual result, which makes no sense to me at all.

Á (1150)

Mr. Chuck Strahl: We amended it out of there.

Mr. George Radwanski: But I'm saying you can't put the genie back in the bottle. So I am concerned about those kinds of thoughts.

I would like to make one point, though, because you gave me an opportunity to say it. But I was thinking this anyway. I hope the committee, with all due respect to you, will decide not to proceed with this legislation.

But if you did decide, in principle, that you were going ahead regardless of the privacy concerns I have raised, I would certainly, without in any way changing my view in opposing it, welcome an opportunity to come back to talk about how to make the best of a bad thing--if we were going to do this clause by clause, what things could be amended to make it less damaging--although that would in no circumstance be an approval of this bill, because I cannot, in the current circumstances, approve of it.

The Chair: Thank you very much.

Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Chair.

Just to follow up on this issue of public policy, it seems to me the current administration has been moving into this area of going through the exercise--be it intellectual or otherwise--of weighing the competing interests here. To use Mr. Strahl's phrase about this being a slippery slope, obviously there are times when individuals like yourself, or government officials or the courts step in and try to peg the policy or the slippery slope and say “This is where it stops.”

The courts have been very instrumental, and sometimes very interventionist, in those shifts. The use of DNA, for example, is one that comes to mind. In the legal context we have seen instances where serious cases--murder cases, rape cases--were thrown out because the police exercised improper discretion in how they used DNA, but more importantly, in how they obtained it.

This exercise, I would suggest to you, is very in the open as to what it is trying to achieve and whose rights are intended to be protected here. The use of warrants or oversight protections seems to me to be the area where we as a committee--bringing this back to the tangible exercise of drafting legislation that would be acceptable--can, if this is going to work, put in place privacy protections.

Allowing the person who is the donor, for lack of a better word, of a potentially dangerous illness or blood disorder to be afforded the protections Mr. Strahl is talking about--the guarantees that it won't be used other than for the purposes of ascertaining whether they've passed on their illness--do you see no merit in pursuing that? Do you feel this bill is of such an intrusive nature into an individual's right to security of their own blood, of their own illness, in other words, to pass on--I used this phrase with an individual who was with us earlier in the week who is afflicted with AIDS--their own tragedy, their own bad luck, whether they've done so willingly or not?

If they know they have an illness and they're not willing to confirm it or allow themselves to be tested so the other individual knows how to react, knows enough to take treatment or behave in a certain way to protect their loved one--that to me surely shifts the balance. I find it startling, when we talk about the government's willingness to keep a DNA data bank, or the recent decision to finally embrace a sex offender registry, or the firearms registry--all of these things go down that path--and yet for the very altruistic purpose of protecting those who protect us, who are good Samaritans, you seem reluctant even to contemplate it.

I'm not trying to get into an intellectual, esoteric debate with you, and I'm not challenging you in terms of your cerebral capacity, because you could far outdo me in that regard. I'm really struggling with your seeming reluctance to even contemplate this type of legislation on a public policy basis.

Á (1155)

Mr. George Radwanski: Well, I will say, sir, that despite the modesty, you are a superb debater, and certainly a very interesting interlocutor on these matters. I hate to say it, but you've again illustrated my point. You cited three pieces of legislation that have a considerable limiting impact on privacy rights and went on to say, “How can the government do these three things and not this fourth really good thing that would limit privacy rights some more?” That is exactly the point I'm making and the point I was making earlier.

Apart from the intrusiveness of this provision, that is exactly the slippery slope I am talking about. We pass this bill because it's for a very good reason: think of these people who will benefit. Now we have four bills. So when the next bill comes along that also does some good, while limiting privacy, if we had a similar conversation you would be able to say, “The government even allows people to surrender a sample of their blood and have it tested. How can you argue? I am startled that you do not agree with this fifth bill.”

This is the way one ends up with no privacy rights, with all respect.

Mr. Peter MacKay: I'm saying there's a greater good that flows from this particular intrusion into privacy than those others. We can disagree on that, but my point is not to illustrate your argument; my point is to say if what the government has done has been permissible, and you, by virtue of being here, I suggest, are supportive of those bills because I haven't heard you--

Mr. George Radwanski: No, I don't.

Mr. Peter MacKay: I haven't heard you speak out.

Mr. George Radwanski: That would be an incorrect assumption.

Mr. Peter MacKay: I haven't heard you raise considerable concern about the firearms registry or the DNA data bank.

Mr. George Radwanski: Have you read my firearms report?

Mr. Peter MacKay: I have not.

Mr. George Radwanski: Why don't we talk again when you have.

Mr. Peter MacKay: I would be glad to do that. I'll take the time.

Mr. George Radwanski: Go for it. I must say I'm startled, given your interest in this issue, that you have not read the Privacy Commissioner's report on it.

Mr. Peter MacKay: Very busy.

Mr. George Radwanski: Likewise. It took me an awful lot of work to write it.

Mr. Peter MacKay: My point is that given the goodness that will flow, the humanitarian benefits of allowing this intrusion, albeit with protections, there's no tangible detriment that outweighs the benefit. That is my point.

Mr. George Radwanski: Boy, we could spend half an hour on that alone, sir. Let's all agree on the desirability of goodness.

The Chair: We're not going to spend half an hour, and I hope Mr. MacKay recognizes he has been given great latitude here.

A final comment goes to the commissioner.

Mr. George Radwanski: I really would sum up the same points I've made already. It's not my wish to in any way denigrate or downplay the kind of human suffering that this bill is trying to address or alleviate, but it is crucial that in a society like ours, that is dedicated to certain values and fundamental human rights, we not unduly--and in this case I believe it would be unduly--limit a fundamental human right, such as privacy, in pursuit of what is definitely a good, but not a good proportional to the massiveness of the invasion and the precedent it would set.

The Chair: Thank you very much.

I'm going to suspend for five minutes. We have witnesses ready for the next panel. It will take us to 1:30 p.m.

Thank you, Mr. Commissioner.

Â (1200)

Â (1211)

The Chair: I call back to order meeting number 64 of the Standing Committee on Justice and Human Rights. We are considering Bill C-217, an act to provide for the taking of samples of blood for the benefit of persons administering and enforcing the law and good Samaritans and to amend the Criminal Code.

From now until roughly 11:30 a.m. we will hear from witnesses representing, first, the HIV & AIDs Legal Clinic (Ontario), Matthew Perry; from the Police Association of Ontario, Bruce Miller and Natalie Hiltz; and from McGill University, Professor Patrick Healy.

So whoever's finished eating may go first, and I'd ask presenters to limit their presentations to ten minutes or less so that we'll have more opportunity for dialogue with members of the committee. I'm going to go to Mr. Perry first.

Mr. Matthew Perry (Community Legal Worker, Acting Co-Director, HIV & AIDS Legal Clinic (Ontario)): Thank you, and thank you for the opportunity to be here to address the committee.

The HIV & AIDS Legal Clinic (Ontario) is a community-based registered charity, a legal clinic, operating in Ontario and providing direct legal services to low-income people with HIV and AIDS across the province.

We have been involved, as many of you will know, in the issues surrounding Bill 105, being the Ontario legislation, and have serious concerns around Bill C-16 as well.

Our position on Bill C-217, in a nutshell, is that the legislation as it stands is not an appropriate response and is not appropriate to its intent, because there are better, more balanced approaches in other sectors, and examples in other sectors; because the Criminal Code is not an appropriate instrument for dealing with what we would purport is essentially a health and privacy issue; because compulsory testing violates the Charter of Rights and Freedoms rights to privacy and security of the person; because it undermines the legal and ethical principles that underline informed consent; and because of the lack of privacy and confidentiality restrictions that exist in the current draft.

There are a couple of points I want to make about Bill C-217. Some of them have been made earlier and I want to reinforce them.

One is that we're talking about a situation under Bill C-217 where there was a significant exposure to a virus, where the source person is actually available for testing, and where they have refused to consent to that testing. The fact is that most people consent, and we have a number of statistics to show this. They will have been presented to you in other presentations as well.

What I would like to point out is, in an example in a study in Denver, Colorado--this was in relation to the police force in Denver, Colorado--94 percent of those who were asked to test consented to that test. The Canadian Needlestick Surveillance Network reports that 83 percent of individuals who are the source have consented to being tested.

You would have heard two days ago from British Columbia that in the instance of, I believe it's St. Paul's Hospital in Vancouver, in 1,700 cases of exposure, only two individuals refused to consent to be tested.

The other point I want to put out is actual risks of transmission. When we're looking at a percutaneous transmission--that is, a needle stick under the skin--there's a 0.3 percent chance of infection. When we're looking at muco-cutaneous, where there's contact of bodily substances that are infected with mucous membranes, we're looking at 0.1 percent chance of infection, and less than 0.1 percent when we're looking at non-intact skin.

It's our position that in fact there are better mechanisms to deal with situations of occupational exposure to blood-borne pathogens such as hepatitis B, hepatitis C, and HIV. Examples of this are, in the Ontario example, mandatory guidelines and protocol for the notification of emergency services workers. This protocol would have an individual who has experience in occupational exposure notify a designated officer. The designated officer in this instance would then be in contact with the medical officer of health, and recommendations about action would be provided. That sequence of events puts someone in contact with individuals who have medical understanding and knowledge about the risks of transmission.

Another point I'd like to raise is with respect to leading associations who have opposed compulsory testing. These include the Canadian Nurses Association; the Canadian Association of Nurses in AIDS Care; the Canadian Medical Association; labour organizations such as CUPE, and OPSEU in the example of Ontario; the Canadian AIDS Society; the Canadian Public Health Association; and, in a more recent example, the Chief Medical Officer of Health in Ontario.

Â (1215)

It is our position that under Bill C-217, the way it's structured, an exposed worker and a justice are not the best persons to determine a risk of exposure and to evaluate that risk when deciding whether or not to grant a warrant that would allow for the taking of a blood sample and the testing of that blood sample. It is better placed in the hands of someone who has a more developed medical knowledge and understanding of the risks of exposure, of the actual risk of infection that results from that exposure.

My primary concern and my primary reason for being here is to underline the privacy and confidentiality concerns that we have with this bill. As has been pointed out in committee today, there is a lack of safeguards about the flow of information with respect to the results of a blood sample. Through our experience, we have learned that health information is among the most sensitive information there is. In my work, information about a person's HIV status is extraordinarily sensitive information. The reason it's so sensitive is because of the consequences that flow when information about someone's HIV status is released.

I could give you a huge list of examples--I'll give you a couple--of individuals who have been forced to leave communities because people have learned their HIV status. They've faced physical harm because people have learned their HIV status, people have lost their jobs because of their HIV status, and the human rights protections afforded to them are late and don't stem the flow of harm that comes as a result of the release of that information.

I've spoken to individuals who have been asked to leave the chair in their dentist's office when they've disclosed their status to their dentist because they thought it was the right thing to do, and threatened with a lawsuit because they hadn't revealed that information. They're not under obligation of law to reveal that information.

We know that immigrants who test HIV positive are routinely denied the opportunity of becoming permanent residents, and we know that individuals experience limitations in their travel when their HIV-positive status is known.

There are significant consequences to the release of information about HIV status, and I want to make that point very clearly because of the concerns that we have and that the Privacy Commissioner has indicated to you about protections for privacy under this legislation.

Forced testing, I think, is not an appropriate first response to an occupational exposure. I don't think it makes sense for an individual who has been exposed, who is caught up in the emotion of that exposure--which is huge, no question about it--to be the one to make the application to a justice to have that information released.

I want to make a couple of quick points about Bill 105 in Ontario and emphasize that when this legislation was in committee, only one person was invited to appear before it and that was the Chief Medical Officer of Health, who did not support the legislation. As a result of debate in committee, some changes were made to that legislation, and I want to point out a couple of important distinctions between Bill 105 and this legislation.

One is that Bill 105 appears in the context of health legislation and this is a health and privacy issue. That's a better place for it, if it has to be anywhere, than under the Criminal Code.

Secondly, a determination about whether to issue an order is made by someone with medical training and medical understanding and likely a better understanding of the risks of transmission in a given exposure.

Thirdly, an applicant for an order must provide a physician's report with the application. That means they have had to see a physician and have had some level of interaction with a physician to assess the exposure, to assess the risk involved in the exposure, to discuss the implications of the exposure, to have a discussion about post-exposure prophylaxis and recommendations around post-exposure prophylaxis.

Finally, under Bill 105 there are procedural safeguards. Someone who is the subject of an order can appeal that order within 15 days of the order being given to them. That person could also appeal for a stay of the order.

I want to sum up, and I'll talk more during questions, by saying that we do not support Bill C-217. We feel it is an overly heavy-handed response to what is a very real situation, but it is not the appropriate response, and there are better forums and ways in which to address occupational exposure.

Thanks.

Â (1220)

The Chair: Thank you very much.

Mr. Miller and Ms. Hiltz for ten minutes.

Mr. Bruce Miller (Administrator, Police Association of Ontario): I'd like to thank you for the opportunity to be here today. My name is Bruce Miller, and I'm the administrator of the Police Association of Ontario, which represents 13,000 front-line municipal police personnel in the province. Prior to becoming administrator, I was a police officer with the London Police Service for 22 years. With me today is Natalie Hiltz of the Peel Regional Police service.

We support the speedy passage of Bill C-217, and we support the position put forward by the Canadian Police Association. Much of the material that would have appeared in our brief has appeared in theirs, so we won't duplicate it today.

We were not able to translate all of the material that appears in our brief due to the short notice for the hearing, and I apologize for that.

Natalie and I are not medical experts. We are not constitutional lawyers. We do not have piles of statistics. We do, however, hope to be able to give you the perspective of front-line police personnel in this province from our own personal experiences.

We're here today to speak for mandatory blood testing for individuals who may have infected emergency workers, victims of crimes, and good Samaritans. I realize that some of those aspects, certainly the victims of crimes, aren't covered by this bill.

This would apply to the police officer who is bitten and then told by the offender that he or she has AIDS. That officer should be able to make an informed decision on treatment. The sexual assault victim has the same common-sense right. A good Samaritan who performs mouth-to-mouth resuscitation on an individual has the right to know whether he or she has put his or her own health at risk.

We now have such legislation in Ontario. Bill 105, the Health Protection and Promotion Amendment Act was passed on December 13, only hours before the legislature broke. MPP Garfield Dunlop introduced his private member's bill following consultative hearings across the province. Numerous groups had the opportunity to attend, but some chose not to. The bill was introduced by a Progressive Conservative member and moved by the Liberal justice critic. It passed by a vote of 80 to 2. It will be proclaimed later this year, once educational programs are in place.

Public and government support for the legislation was overwhelming. Why? Because it makes common sense. We must do what we can to protect those who protect us. At some point we need to put the needs of the victims ahead of the rights of offenders.

We have countless examples of deliberate attacks on police personnel by people having, or claiming to have, HIV and other diseases. Rubber gloves and universal precautions only reduce the risk. We have had members spat upon, deliberately bitten, and exposed to free-flowing blood and other bodily fluids by an attacker or an individual. I know because it has happened to me numerous times.

Lax federal laws and inadequate legislation and sentencing provisions only serve to increase the incidents. We need to protect victims and those who protect us. We respect the right to privacy, but at some point that right must be balanced with the need to protect society.

Mandatory blood testing would allow individuals to make properly informed decisions about post-exposure treatment. The so-called drug cocktail that is administered to post-exposure victims brings its own well-documented medical risks. These include severe headaches, perpetual nausea, total exhaustion, hives, and hair loss. They can last for several months, depending on the individual, the combination of drugs taken, and the duration over which they are administered. Today's best possible treatment can be described as overkill for the offending virus. Although we are pleased to have it available, we don't want to take it unless we have to.

We need legislation to be entitled to as much information as possible in order to be able to make an informed decision with our physicians as to what form of treatment, if any, is required.

Â (1225)

A number of years ago I performed CPR on an individual who unfortunately did not survive. The coroner was concerned that individual might have died of spinal meningitis and ordered an immediate autopsy. I was called at home late at night to come down to the local emergency ward and begin treatment, which I did. If the individual had survived, I might not have been privy to the same information.

Before closing, I'd like to introduce Natalie Hiltz of the Peel Regional Police service. In 1997, Natalie was bitten during the course of an arrest. I would like you to hear her story.

Constable Natalie Hiltz (Police Association of Ontario): Thank you, Bruce.

I'm a police constable with the Peel Regional Police service. I want to tell you about an incident that happened to me. I was a 26-year-old at the time and in my rookie year. The day was Saturday, June 14, 1997. It was 8 a.m., at the start of what I thought would be a routine day shift.

I was sent on a domestic disturbance call with another officer. We arrived and separated the two individuals, as per our service protocol. I was dealing with a female who pushed me and then ran. A foot chase ensued, and the offender bit me on my left hand while I was arresting her. The bite broke my skin and it bled.

It turned out that she had bitten someone else before I had arrived. I was told that she was a well-known prostitute. She was a heavy intravenous drug user and also a crack addict. She was a street person and was strongly believed to be HIV positive at the time. During the incident, she looked visibly sick and her gums were bleeding. I knew immediately that I was in trouble.

I went to Credit Valley Hospital immediately after the incident, where I was told by a doctor that my risk of contraction was high. He advised me to take the drug cocktail and told me it was 80 percent effective. The person who bit me at the scene refused to be tested at the time.

I believed that my life was in danger, as a result of an exposure that the doctor at the hospital characterized as high-risk. The hospital needed me to pay for medication before they would begin treatment. I was required to get my fiancé to bring down a credit card so I could pay for the drugs that would save my life. They would not be given unless there was payment.

The side effects of the drugs were severe. I had chronic fatigue and nausea. The emotional effects were also dramatic. The doctor warned me that the drugs could theoretically cause cancer, or birth defects in any children I might conceive. I also worried about the effects the whole situation was having on my loved ones and those around me.

I was able to get through the ordeal, thanks to the support from my fiancé, my family, my friends, my co-workers, and my police association and police service, Peel Police.

My story does have a happy ending. I've been given a clean bill of health. My fiancé at the time is now my husband and we're expecting our first child.

I'm here today because I went through a very difficult and trying circumstance, and I want to do whatever I can to lessen the burden for those who will surely have to go through what I went through. I can't give figures on the risk or number of exposures. I can only tell you of my own personal experience.

It turned out that the person who bit me was in fact HIV positive. After a period of time, she did agree to give her blood up for analysis, and it was confirmed. I would have had to take the medication in any event.

I can't tell you what I would have felt had it been determined that the person was not HIV infected and I had taken the medication needlessly and exposed myself to potential risk of getting cancer, or having birth defects in children I might conceive.

I can tell you I would have based my decision on consultations with my physician. I can tell you I would have been able to make an informed decision, with all the possible information. I can tell you it would have taken away a lot of the uncertainty. I can tell you the emotional toll is high, and it is human nature to think the worst.

We need to be able to make informed decisions, based on all the possible information, to protect ourselves and to protect our loved ones.

We would be pleased to answer any questions you may have. Before closing, I would like to thank you for the opportunity to be here today. I would also like to thank Mr. Strahl for all his efforts.

The proposed Blood Samples Act needs to be enacted. We would, however, suggest that victims of crime, such as sexual assault victims, should have the same protection as good Samaritans and emergency services workers.

Canadians are told to dial 911 for help. We accept the fact that we may be put in harm's way when we answer their call. Today, Bruce and I are here on behalf of our co-workers and our friends to ask you for your help and support. Please answer our call.

Thank you.

Â (1230)

The Chair: Thank you very much for your to-the-second ten-minute presentation.

Dr. Healy.

Professor Patrick Healy (Faculty of Law and Institute of Comparative Law, McGill University): Thank you very much, Mr. Chairman.

I would like to thank the committee and its members for inviting me to speak this afternoon on Bill C-217.

I'd like to say at the outset that I can only recognize the terrible anguish that must be faced by people who run the risk of infection or exposure to infection during the course of the work they perform on behalf of the public.

My remarks this afternoon are going to be limited strictly to the legal validity of the bill. My conclusion is that, first of all, this is not valid as criminal law within the power that Parliament has over criminal law.

My conclusions concerning the legal status of this bill are as follows: first, it is not within Parliament's jurisdiction over criminal law to create legislation as this piece of legislation is drafted; second, it is my view that it is not otherwise within Parliament's authority to create this type of legislation; third, if it were provincial legislation, it would be subject to significant constitutional challenge; fourth, there are a number of severe constitutional difficulties concerning the charter that would be raised against this legislation; and finally, there are technical points about the legislation that are open to criticism.

I think you've probably heard some of these conclusions before, but I will just say very quickly that with respect to the division of powers, this is not legislation that derives any validity from Parliament's authority over criminal law. There is nothing in this legislation that is related to the investigation of an offence or the prosecution of an offence, nor is there a criminal law purpose that can be identified in this legislation that is consistent with Canadian jurisprudence on the question.

I'd be happy to answer questions from the committee on this issue as we go on.

With respect to the charter, clearly there would be difficulties regarding unreasonable search and seizure, since this legislation contemplates the forced removal of blood from a person. There would also be problems, as we've heard from a previous witness, concerning the security of the person and the protection guaranteed by section 7 of the charter.

With respect to some technical points, I would like to draw a number of these to the attention of the committee.

The procedure that is contemplated in this legislation would be an application for a warrant issued by a judge. The first point to make about that is that there is no requirement the application be made on oath, nor are there requirements with respect to the technical validity of the warrant that is issued by a justice.

With respect to the definition of “designated functions”, I understand entirely that the bill is aimed at the protection of people who, in the course of their professional work, are either administering the law or enforcing the law, but of course it's much broader than that. It would cover a much wider range of people. And one of the difficulties with the definition of “designated functions” is that it is both under-inclusive and vague, given the purpose of the legislation before you.

More generally, the application for a warrant that is contemplated in this legislation is peculiar because it essentially contemplates a criminal process for a civil remedy, that is to say the applicant is seeking to have the compulsory disclosure of diagnostic information in a procedure that resembles the issuance of a search warrant in some small particulars, but in fact it serves no criminal purpose at all, as I've said before.

Another difficulty, which is apparent in clause 3 of the bill, is that there is no requirement for reasonable grounds to identify the person who is sought for testing. Furthermore, as regards clause 3--and this is quite significant, in my view--the clause is unclear as to the circumstances in which an application could be made.

If you look closely at the way in which clause 3 is drafted, it contemplates two quite different instances with respect to designated function. It says:

(a) the applicant has come into contact with a bodily substance of the other person while engaged in the performance of a designated function in relation to the other person, or

--and this “or” defines something completely different--

the applicant was assisting or trying to assist the person believing that the life of the other person was in danger,

That is not restricted to designated functions. And if it's intended to be restricted in that way, it should be made clear. This is on the assumption that the legislation is otherwise valid, but my view is that it's not.

With respect to clause 4, there is no mechanism in this legislation compelling the appearance of the person named for testing. There is no provision in the bill with respect to the way in which that person would be informed.

Â (1235)

With respect to clause 6, there is no provision here either for notice to the person who is sought for testing and no provision for notification.

I'll leave clause 7 for the moment, if you don't mind. I'd like to jump to clause 9, which creates, or purports to create, liability to a term of imprisonment of up to six months for failure or refusal to attend for testing. I do not know what this is. This appears to resemble something in the nature of a power over contempt, a contempt of failure to obey the order in the warrant, but there is no offence created here. It is not possible to expose someone to penal liability in the absence of an offence. Clearly this clause would have to be redrafted in order to take into account that objection.

There is no provision in this legislation with respect to the procedure for calling someone to account for failure to attend or refusal to attend. That is to say, there is no procedure for notice.

There is nothing in the bill that discusses in any way whether it would be desirable to maintain custody of samples that were taken from a person who is tested.

Clause 17, I might say with the greatest of respect, makes no sense. It refers to the use of certificates and then it says--and I understand what its intention is--that a certificate could not be used in a criminal proceeding except under clause 9. Well, that tells you that the legislation contemplates criminal liability for refusal or failure to attend, but at the same time it says a certificate could be used in such a procedure. A certificate that says what? The legislation only contemplates certificates that state the content of the analysis. There's no certificate of a failure or refusal to attend. So on its face, I'm afraid clause 17 makes no sense in that respect.

I'll leave it at that point, Mr. Chairman, and take any questions the members of the committee might wish to address.

Â (1240)

The Chair: Thank you very much.

I'll go to Mr. Cadman for seven minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair. I'd like to thank the panel for coming.

We've certainly heard a lot of legalese in the last couple of minutes. I certainly appreciate it, and those of us who are not lawyers can appreciate it even more.

I go back to a comment I made with the previous panel, dealing more with the reality on the street. We're hearing a lot about those who suffer occupational exposures through the performance of their jobs. I want to look at it more from the perspective of the good Samaritan, the person who is not expected to do these kinds of things. I would suggest that, especially in the case of car accidents and things like that, usually the first person on the scene is not necessarily a paramedic or a police officer. It's usually some civilian.

Again, as I mentioned to the last panel, I had that experience myself about 30 years ago, when there was a very serious accident outside of a restaurant that I was attending and two or three people were killed. There were 10 people in the vehicle. There was a lot of blood, and the first ones on the scene were myself and my father-in-law. We were dragging bodies out of a car for 15 minutes before the paramedics got there, and we were covered with blood. Now, 30 years ago, obviously we weren't aware of some of the infectious, transmittable diseases that we have to deal with now.

In the absence of this kind of legislation, I'd be glad to hear how we would do it. If it isn't appropriate in the Criminal Code, where is it appropriate? I now put it bluntly: Why the hell would I even want to go help? Why would I come out of that restaurant and be faced with that kind of a situation? Knowing what I know now, would I want to go over and actually help drag people out of there? That's one question I want to ask.

Secondly, where is the liability for me standing there and saying, “No, I'm not going” and going back into the restaurant and finishing my meal and letting people die? Where's the liability on me there? I'll leave you to answer that.

Mr. Matthew Perry: Thanks. I'll respond to the first, but not the second, because it's not my area of expertise.

With respect to the first question, I'll bring it back to current time. In the example you provided, if there was exposure in the instance when you were pulling people out of the car, you may have some concern about the exposure. Under Bill C-217, you might have the right, as a good Samaritan, to make an application for a warrant to be issued so one of the people to whom you may have been exposed might have to produce a sample of blood that could be tested. The results would be given to you in order to make a decision about your level of risk.

It's not going to be, from a health perspective, very helpful to you in that chain of events. If there in fact is a significant risk of exposure, as we've heard, the decisions you need to make, first of all, have to be weighed against what exposure occurred. Was it a significant risk of exposure? Was there a serious chance that you may have become infected?

Secondly, the status of the person whom you helped is only one of the pieces of information that comes into play. It is a piece of information that comes into play, but it's one of. Any decisions that would have to be made, with respect to protecting yourself from actually becoming infected, would have to be made sooner rather than later. The ideal time period is within a couple of hours. In that case, your best bet is to speak to a physician to get an evaluation of what the level of risk is, and what your risk of infection is, to make a decision about what kind of prophylaxis you might want to engage in, if it's indicated.

Learning the status of the person who may have been the source is going to be a later-on piece of information, after this chain of events happened, if Bill C-217 existed. It will become a piece of information that you may use to evaluate ongoing care. In the example we've heard today, where someone comes through and in fact they are positive, you know the prophylaxis you are already engaged in should be continued because of the risk of infection.

Where the result comes back negative, you're going to get another piece of information. It's not a definitive piece of information either. It's another piece of information that says, at this time and in this place, when this person provided a blood sample, he/she tested HIV negative, hep C negative, or hep B negative. You're going to get another piece of information that you will then factor into your decisions. You could decide, as the result of an HIV negative, to not take the prophylaxis through to its full course. You may very well stop prophylaxis and not become infected. You may also be infected because it is not a definitive result.

Bill C-217 isn't necessarily going to fix the essential problem. Education about what your levels of risk are, actual information, and a thorough medical evaluation of what your risk is, are more important pieces of information for you in the immediate term. Voluntary testing that doesn't breach the confidentiality, privacy rights, and security rights of the individual is the first place you should be going to get the information from the person. As I've mentioned, and as you will have heard from many other people before and in documentation, the rate of consent of individuals in these circumstances, when they understand what's at stake, is very high.

Â (1245)

The Chair: Thank you, Mr. Perry.

Mr. Miller.

Mr. Bruce Miller: My only comment is where, during the interim, waiting for an answer, the person has just died. Why would you help? I don't know why you would.

It has been a changing environment medically. There are more risks out there now. We sent a message to society that we have to help. We have all sorts of training programs in place for CPR and mouth-to-mouth. To the average citizen, honestly, if we're not going to stand up and protect the person, why would you help?

I'm not an expert on figures. I heard figures about 96 percent compliance with voluntary testing, and 83 percent. In the back of my mind it's going to be, what about the extra 7 percent? What about the extra 4 percent?

While we supported and pushed for the good Samaritans to be included in the legislation in Ontario, it's also important for emergency workers. Emergency workers can't help but ask the same question when they show up at a scene. We don't want to see a situation like that.

The final thing we urge, again, is that we look at including victims. I can tell you from the Ontario perspective, we had a large number of legal opinions on this. To a certain extent, if you put six lawyers in a room, with all due respect to any lawyers here, you tend to get six different opinions. It's what we ran into. We're just asking government to do what we think is the right thing and to enact this legislation.

The Chair: Dr. Healy.

Prof. Patrick Healy: Just to answer your question, Quebec is the only place I'm aware of where you would have a question of liability. It arises under article 2 of the Quebec charter of rights and freedoms, which actually imposes an obligation to assist on people.

Mr. Chuck Cadman: So what you're saying is, if I don't help, I'm liable--

Prof. Patrick Healy: Yes, but I'm unaware--

Mr. Chuck Cadman: I'm culpable for that, but I'm not going to get the protection--

Prof. Patrick Healy: But I'm unaware of any instance where that has been enforced under circumstances like this.

Mr. Chuck Cadman: No, I understand.

The Chair: Mr. Bellehumeur, for seven minutes.

[Translation]

M. Michel Bellehumeur: I am going to start with the Professor.

I had many questions but you have pretty well answered most of the ones dealing with the jurisdiction of the Canadian Parliament. It's nice to have noble principles and we may be in agreement on a given objective, but we have to know if it comes under our jurisdiction. I think you have responded very clearly that this does not come under the jurisdiction of the federal Parliament, of which I am a part as a federal legislator. You even went further than that; even if I were in the right Parliament, it would not pass the test of the Charter of Rights and Freedoms. I agree with you completely.

But you woke me up even more by scrutinizing the bill and analyzing it. As you clearly indicated, it contains clerical errors, errors in form, clauses that don't need to be there, etc. Even at that, we can have good objectives and be well intentioned, but we cannot just pass anything based on those principles. On that, you have clarified things for me very effectively. In fact, I do not have very many questions to ask you.

I will now move to the Police Association of Ontario. We heard from other police officers and you repeated exactly the same thing; you can't give us statistics or details to justify a certain necessity to intervene or to find solutions. I know that which you highlighted does exist; I'm not saying that you invented all those cases. I read the newspapers and I've listened to the witnesses but you have no statistics, while Mr. Perry, on the other hand, gave us statistics. Whether it is in Colorado, in Canada or in a hospital, there are statistics to show that the refusals for which we really want to intervene are not that numerous. There will always be too many. As soon as there is one who refuses, that's too many.

As legislators, we must not intervene on every specific case, otherwise all we'll be doing is passing legislative measures, nobody will understand what's going on and we will be heading more and more towards a police state, which I don't want, not at all. Yet, with the legislative measures we have adopted lately, there is a line we must not cross and which is very close to intruding into individual and private freedoms.

My first question is addressed to the police officers. You have heard the statistics or the numbers presented by your neighbour. Do you challenge them? And if you do challenge them, do you have, from your end, numbers to submit to us, information to give us so that we can see the significance of the problem and try, if Bill C-217 is not the solution, to see what other solutions we could suggest.

Â (1250)

[English]

The Chair: I think the question has been put to Mr. Miller or Ms. Hiltz.

Mr. Bruce Miller: First of all, there aren't hard and fast statistics for exposure in Ontario.

In the last five years in Peel, since Natalie's been an officer there, we know of at least four officers who have had to take the drug cocktail. We see countless examples; there are examples in the material included here. Do I dispute that there may be 80 or 90 percent compliance for people to voluntarily be tested? I'd agree with that 100 percent.

But the problem, from a police perspective, is that the people we deal with on a daily basis aren't cooperative. In the general public, I don't think there's a law-abiding person in this country who wouldn't agree to take the test if somebody saved their life. But we don't deal with that same class of people, unfortunately, and that's a problem.

In terms of this being a national issue, the only thing I can say is that I hope the government will act to get involved with legislation that can protect the health and needs of Canadian society.

With all due respect to government members, you're abandoning your constituents if you don't enact this legislation. If there are problems with bills.... I'm not familiar with the federal process, I deal provincially all the time, but our committee process in Ontario is to fix bills and make them better. That was my understanding as to why we were here today.

The Chair: Mr. Bellehumeur.

[Translation]

M. Michel Bellehumeur: This will be my last question.

Tuesday, we received a police officer from Alberta with his spouse and he gave us numbers relating to the sector where he worked in 1999 and 2000, I think. He didn't have the complete figures for 2001. But since the event and since the increased awareness towards the police force, the numbers relating to the involvement of individuals, such as the case we are talking about, have plummeted. I think there were over 100 individuals in 1999 and there were only eight afterward, all because there were new directives and new techniques in the field. Among other things, two pairs of gloves were put on. There was an awareness and people paid more attention.

Isn't the solution to have a higher degree of awareness, better work tools, a new approach to those individuals rather than intervening and legislating in a domain where, as we know, the judicial procedures will not necessarily be effective, even if we conclude that it is legal, that it respects the Charter, etc.? We don't necessarily need a legislative tool to give you additional tools or to allow you to do your work more safely.

Â (1255)

[English]

The Chair: Mr. Miller.

Mr. Bruce Miller: I can tell you, sir, that happened in Ontario. We developed protocols, which were referred to before, but they didn't work. We have universal precautions, such as rubber gloves, but we don't always have the opportunity to put them on. We have examples of officers driving or walking down the street and being attacked by individuals. We can't prepare ourselves for them.

We've tried to put protocols in place at work. We've tried to put emergency equipment in place to protect emergency workers. We have government legislation for that, but it's not working. Bill 105 was passed in Ontario because the system we had didn't work, and the protection didn't work.

The Chair: Mr. Perry.

Mr. Matthew Perry: I guess my response to that is if occupational exposure protocols didn't work, it makes it sound like they were a one-shot deal that didn't work. My concern is that maybe we need to try harder to address the situation in ways that actually protect the integrity of people's privacy, get voluntary consent in a respectful way from individuals, and don't contravene the charter rights of individuals, before we jump into a piece of legislation that does that.

Maybe we also need to look at why this piece of legislation isn't talking about nurses; isn't coming out of or being driven by the health care sector. I don't think there can be any dispute that the risks of exposure there to blood-borne pathogens are vastly greater and more common.

Those instances are addressed by occupational exposure protocols, protocols within hospitals, and protocols from those professional associations. Specifically, the Canadian Nurses Association says it does not warrant the compulsory testing of the person. The Chief Medical Officer of Health in Ontario also talked about the necessity for some degree of testing, or baseline testing, for the exposed person, which isn't contemplated here either.

There are other avenues for dealing with these situations that don't present the harm represented by Bill C-217.

The Chair: Thank you, Mr. Perry.

Mr. Strahl for seven minutes.

Mr. Chuck Strahl: Thank you all for coming.

It's been very useful testimony; all of this has been. Thank you for it. And congratulations to you, Ms. Hiltz, for your expectancy. That's a good-news story to start.

Const Natalie Hiltz: Thank you.

Mr. Chuck Strahl: There were a couple of things I had questions about. One was to Mr. Healy. Did you happen to read the testimony from the last time by Mr. Chipeur? We had a constitutional expert in, one of the six lawyers who were going to give us different opinions.

· (1300)

Prof. Patrick Healy: I'm the seventh.

Mr. Chuck Strahl: Okay, you may be the seventh.

He thought this would be constitutional. He's a constitutional expert of some sort--everybody's rated on a scale, I suppose. His argument went like this. There are court cases where the courts have determined that if somebody knows they have HIV and doesn't take precautions to tell a sexual partner, they're criminally liable for that. They have to, if they know.

He mentioned another one, that whether it's by intention or negligence or whatever, if a person is HIV positive they can be the subject of a criminal prosecution. There is that side of it.

He also mentioned a civil case involving Paul Bernardo, where the Ontario court's general division ordered Mr. Bernardo to provide a blood sample for the sake of the individual who was potentially infected in order to satisfy their concerns for their mental health. So there was a civil case where a judge of the Ontario court's general division said, “We're going to order a blood sample be taken in order to satisfy mental concerns here, for that reason.”

Why would it be okay for a court or a judge to order it in a civil case in order to relieve mental anguish, but not okay in a criminal case? This is about treatment and, in part, mental anguish.

Prof. Patrick Healy: I'm not familiar with the civil case involving Bernardo. The criminal ones, I am quite aware of. But this proposed legislation isn't limited in that way. This is legislation that would provide a mechanism to compel the disclosure of information in the absence of any criminal investigation, in the absence of any criminal offence.

You're quite right, there might be a criminal offence. We've heard from the police that they are regularly exposed to unprovoked assaults. Of course they're unprovoked, and of course they're assaults. But this legislation isn't limited to that. It covers not just police officers, and not just intentional conduct or even negligent conduct; it covers accidents. It's very difficult to find a way of describing how it could be characterized as criminal law when it is that broad.

Believe me, Mr. Strahl, I want to make one thing clear. I tried to make it clear at the outset. The situation this is addresses--the mental anguish involved with the exposure to risk, and the realization of risks in many instances--is devastating.

Constable Hiltz has given us a very concrete example of it. Unfortunately, the law does require us to observe a number of requirements. One is constitutional validity--not just under the charter, but under the division of powers. And this is not criminal law; it is essentially a civil remedy for a private person.

I understand exactly the objective, but you've got an insuperable constitutional obstacle.

Mr. Chuck Strahl: That's not what Mr. Chipeur said, but--

Prof. Patrick Healy: I wasn't here, but I'm the seventh lawyer. I'm just giving you the seventh opinion.

Mr. Chuck Strahl: It's too bad we didn't have you both here at the same time. It would have been an interesting debate.

Prof. Patrick Healy: But he was talking about something else, from what you said.

Mr. Chuck Strahl: I can read you his conclusion:

“These cases all lead me to conclude that if Parliament were to pass this bill, it would not be struck down by the Supreme Court, or any other court, as a violation of the Charter of Rights and Freedoms”.

He pointed out that it's a very difficult jurisdictional issue. But he argued in his presentation that if there were enough societal interest--and he quoted the Dyment case, which you're very familiar with, I'm sure--and were we to have a very clear invasion of privacy, such as compulsory blood testing, it would only be sanctioned under the charter if the societal claims outweighed the privacy interests--and things are always being weighed one against the other--and where clear rules exist setting out the conditions under which that right to privacy could be violated.

I think you have done a good job. I'll look through your testimony later on, but I've jotted down some areas where you think the bill is negligent and which are not adequately explained.

I think that if it were passed, it would have to be challenged, as a lot of laws are, to see whether in the weight of it all it's a balancing of rights. It is a balancing of rights, I understand that. I've said to three justice ministers since I've been involved with this bill, help me do what it takes to protect the privacy and the notification and the need to make sure it's done properly. So I'm very willing to amend that. Your advice has been the most specific to date, and I appreciate that.

It's not universally agreed, but I think we can make a very strong case that this is something that on balance is in society's best interest and does outweigh those other risks.

The Chair: Dr. Healy.

Prof. Patrick Healy: Firstly, let's think about a couple of the examples you mentioned: the DNA warrant, which was recently enacted by Parliament, and breathalyser tests and blood samples in relation to impaired driving. What's characteristic about both of those examples is that the samples are taken with regard to the investigation of a suspected criminal offence. You don't have that here. That takes it right out of the criminal law realm to start with.

Secondly, my concern about the constitutional validity of this is not just about the charter. It's not just about section 8 and the protection of privacy or section 7 and security of the person. It's about whether Parliament has the authority to get into this field at all. I recognize the seriousness of what Constable Hiltz has told us, but I regret to say that in my opinion it is not within the competence of Parliament, and as drafted it's not within the competence of a province, the reason being that in a province you would have to have some demonstration of perceived danger. Here you don't have that.

What your legislation proposes is that you can give someone the right to acquire diagnostic information. That is, the threshold for a criminal matter would be the suspicion of an offence, or on a civil matter, if you have someone with active TB flying around in an airplane, then you have something to address. But what you're doing here is authorizing a search for information to see whether that person needs to be concerned, which is a very different matter altogether.

· (1305)

The Chair: Thank you very much.

Next is Mr. Macklin for seven minutes.

Mr. Paul Harold Macklin: Thank you.

I think we're all trying to find, as was put in your testimony, Mr. Miller, what we do to protect those who protect us. That's the challenge that has been given to us through this legislation and it's why we're here at this committee trying to figure out what it is. I seem to hear a variety of ways of approaching this, one obviously from some sort of legislative base, another one based on protocols that are established.

At the end of the day, is it fair to say that if we legislate regardless of whether we have power, are we really going to in some way provide meaningful assistance to that individual? Isn't one still going to want to be absolutely sure and to protect one's self through this process?

Could I get your comments on that, please?

The Chair: Mr. Miller.

Mr. Bruce Miller: Thank you.

In the first instance, we have had officers who have been exposed, who have undergone treatment, but when they got the test results back from the person who may have infected them, in consultation with their physician, they have stopped treatment. That's based on their physician's advice. I think we all recognize the fact that the treatment itself is pretty horrendous and may have some lasting side effects. Natalie has been warned that the treatment may be carcinogenic. It may cause birth defects. We're not medical experts. That's just what Natalie was told. There is an opportunity to end the treatment. There is an opportunity to reduce some of the emotional toll on a person, if it comes back with negative results.

Lastly, I can only reiterate that we've tried the protocols. We've tried the education. They're not working. We'd support further educational programs, but we also need this bill to be enacted for those people who, no matter how much education there is, won't cooperate.

The Chair: Mr. Perry.

Mr. Matthew Perry: My concern is that we construct legislation that's based on emotion, that's based on an attempt to alleviate the emotional stress, and I want to reiterate as well and make it clear that I understand the severity of the situation. I haven't been in those shoes, so I don't know what that's like. But I can appreciate what that is like, certainly based on my frontline experience of the work I do.

I am concerned about the cost of it. The end result of getting a test result is that you may have some greater level of comfort about the decisions you are making, or the treatment you are undergoing. But the person who has undergone the test, who has been forced to undergo testing to which they did not consent, and who has been forced to provide information without their consent, in a way has very little control.

If you stepped out of the building after the committee hearing today and were run over by a bus, and somebody came to your aid and you were unconscious and unable to give consent, and it turned out that you're HIV positive or hepatitis C positive, the flow of that information has happened. As we heard this morning, the genie is out of the bottle and the control around that information is gone.

That's a significant concern, because you're not going to get life insurance. You may have difficulty getting a job. The balance of the harms that would arise to the person versus the benefit to the individual--and there is some benefit, there's no argument that there is some benefit--these are the questions. Is there enough benefit to force compulsory testing? Is there enough benefit to figure out ways to get voluntary testing to happen? Is there enough benefit to take the position that the existing protocols are not good enough and shouldn't be used, that our first response should be this?

· (1310)

Mr. Paul Harold Macklin: Where that gets me again is this. In Ms. Hiltz's testimony she has a very provocative statement: “I can't tell you what I would have done if the person had been tested and had been given a clean bill of health”. So there's always that question that appears at the end of the day. Whether or not you get this information out to me, it doesn't necessarily have the ultimate resolution. In other words, we're not achieving any form of perfection, obviously some higher degree of information.

Mr. Bruce Miller: Let's be clear too that the person we're talking about here in a vast majority of cases is not the person who is run over by the bus--the law-abiding citizen--who is only going to be very grateful and will provide testing. It's the criminal who goes out and bites an officer and tries to intimidate that officer or jail guard. The people who throw cups of urine, throw blood, bite, spit, and when they do it say now you have AIDS, those are the people we're dealing with on a daily basis. That's why we need the legislation. Educational programs will just not work with those individuals. It's just not going to happen.

Mr. Paul Harold Macklin: Could I go back to one of the questions that I believe you gave an answer to? At least in your initial statement, you said there were four officers you were aware of within your force who had to take the cocktail. How many of those officers took the cocktail because they could not get the consent?

Cst Natalie Hiltz: That's my police service, and I know that in all cases they were unable to get consent. I don't know the detailed specifics on each case, but I know they did receive exposures that the doctors at the hospitals believed were of such a nature and high risk enough that they do undergo a cocktail. I'm not too sure if the offender eventually complied to give blood or not, but I know they were required to take the medication nonetheless.

Mr. Paul Harold Macklin: Right.

The Chair: Final question.

Mr. Paul Harold Macklin: Is that, to your knowledge, the best statistic that you have available to you that could reflect the need for that sort of prophylaxis?

Cst Natalie Hiltz: In terms of a statistic, no, it's not. These are people that I just know personally--

Mr. Paul Harold Macklin: I see.

Cst Natalie Hiltz: --that I know of by name. But there's a great number of officers who have received exposures that I don't know of.

The Chair: Mr. Cadman, three minutes.

Mr. Chuck Cadman: Thank you, Mr. Chair.

I have just a quick question. First of all, I hear that we shouldn't pass the legislation at all because it's bad legislation, because of the privacy issues. Other people say we should.

Professor Healy, you're saying that it has no validity for Parliament to be dealing with it...or the Criminal Code or the provinces. If, hypothetically, we were to agree that we have to have something in place, where do we do it? Where are we able to come up with something where we can compel somebody to provide a sample? If it's not through the Criminal Code, if it's not through the provinces, where do we do it? How?

Prof. Patrick Healy: In general terms, if it's regarded as a health measure, then it would have to be undertaken in each of the provinces. But as it's framed, unfortunately, there are difficulties under the charter with this legislation. There might even be difficulties under provincial legislation, but it would depend entirely on how it was drafted.

I was listening to Mr. Miller, and he said twice now that often police officers--and everybody knows this--are assaulted by people with blood or other bodily substances. It's conceivable that, for those sorts of circumstances, a very limited application might be made available, because then, according to what Mr. Miller is saying, you're talking about officers in the line of duty whose safety is at risk, and presumably in circumstances of the kind that he describes there would be an arrest, because whether it's under section 494 or section 495 of the Criminal Code, it's clear that an offence has been committed upon that officer. But that's not the point of this legislation. This legislation is aimed at providing the benefit of diagnostic information for a wide range of people who are involved in all sorts of functions, not just the enforcement of the criminal law by police officers. So that is a serious difficulty.

It's possible, I suppose, that there could be a limited application of this kind as an adjunct to ordinary criminal law enforcement, but it would only be to the benefit of a small number of people, not the people who are intended to be covered by this bill.

· (1315)

The Chair: Mr. Miller.

Mr. Bruce Miller: I can just add that certainly in Ontario when we put it through, we met with the Privacy Commissioner; we had meetings with the Privacy Commissioner's and Attorney General's staff. There was a great amount of legal work that came through, and we were able to find that, certainly in those opinions, it could be done.

There were comments made about the chief medical officer of health being opposed, but then he became involved and sat down and we worked out the legislation at the end of the day. So certainly from Ontario's perspective and from the involvement that I had, it is workable legislation, and we'd like to see it expanded across the country.

We see a number of issues in Mr. Strahl's bill, certainly with the warrant, that are preferable to what we have in Ontario, because we do have time delays in Ontario that I believe are greater than they would be with Mr. Strahl's bill. It's certainly an improvement in that area, and our members would like to take advantage of it.

The Chair: Mr. Perry.

Mr. Matthew Perry: In respect of the situation in Ontario, I just want to express my concerns that in fact a significant number of people weren't consulted in that process. That legislation was rammed through pretty quickly. I can speak from the perspective of an organization that specifically requested on numerous occasions to be present and make comments and was not told. The chief medical officer of health was only told days before about his appearance before the committee. So there are concerns there.

I also mentioned that Bill 105 is a significantly different piece of legislation in a number of ways. Again, it's health legislation, which is different. Before we even had Bill 105, the medical officer of health could already make orders, and those orders could compel somebody.... Those orders are very broad-based. You can create an order in Ontario that says “Thou shalt not have sex”. I don't know how you enforce that order without following someone around 24 hours a day, but there are broad-ranging.... I don't know about the constitutional validity of those orders, but the point is that in Ontario, we didn't have the opportunity to present that, and it's a different thing. It's not a warrant; it's actually an application that's made to a medical officer of health based on a consultation and a report that occurs in consultation with a physician.

My greatest concern is that we're talking about a very fixed timeline, particularly when we're talking about HIV. I think in a lot of ways we are talking about HIV here. We're talking about a very finite period of time that neither of these pieces of legislation actually has the capacity to address.

Decisions are made and consequences flow from those decisions--i.e., taking post-exposure prophylactics and the harms associated with them. I'll note that people with HIV take these drugs every single day for the rest of their lives. Those decisions happen very quickly, and the legislation proposed here isn't going to change that. It's going to allow some more information at a later time, and it's going to harm the individual in the meantime.

The Chair: Mr. Macklin, three minutes.

Mr. Paul Harold Macklin: Doctor, I'd just like to get your thoughts on the relationship between the bill that's before us and the Ontario bill. Is there duplicity being attempted here, or in fact are we achieving the same ends? Constitutionally, do you believe it should be achieved within the provincial legislative framework?

Prof. Patrick Healy: I'm not sure. That's a huge question.

I think part of the design behind the bill must be, as Mr. Miller says, to give it national application if it were otherwise valid, but in my view it's not, because it cannot be brought within Parliament's jurisdiction. I do think that even in the provincial sphere, there are severe difficulties. I gather that Bill 105 is now in force, but of course, whether it will survive is a different story altogether. Some of the objections that can be raised to Bill C-217 can be raised against Bill 105 as well, particularly under the charter, even assuming that it's valid provincial health legislation.

I don't know what I can add to that other than to repeat some of the things I've already said. The objective is beyond question a valid one, but in my view, as I said to Mr. Strahl, there are insuperable legal difficulties. It's one of those terrible paradoxes everyone can recognize. All you have to do is listen to Constable Hiltz and others. They recognize the situation that is involved, but I regret to say that this does not appear to be either a lawful response, in the sense that it's within Parliament's authority, or even a measured one.

· (1320)

Mr. Paul Harold Macklin: But if you were going to pursue this further, you would pursue it in the provincial sphere based on your information at this moment?

Prof. Patrick Healy: It would have to be, because what this kind of legislation is doing is offering to a private person the benefit of a certain type of information that is gathered from somebody else. The only sphere in which that kind of thing could be done would be the provincial sphere. It can't be done in a federal sphere.

Mr. Paul Harold Macklin: Thank you.

[Translation]

M. Michel Bellehumeur: I just wanted to come back to the difference between Ontario's Bill 105 and Bill C-217. It is perhaps more a request to the researchers rather than a question. We haven't just started talking about the Ontario bill. I tried to get it but I have not yet received it. What I did get, are explanatory notes and especially the speech that accompanied it when the Minister table it.

In fact, there is a notable difference. We shouldn't even consider Bill C-217 and the Ontario bill from the same perspective. They are two completely separate worlds. I think we need to have in our hands this Bill 105, which is not yet in effect, I believe. Has the Act been promulgated? It has been promulgated. Understood.

We should have that Act so we can make comparisons. The objective is perhaps the same: protect individuals but, even there, I am not sure the objectives are 100 percent identical. I think that this bill is more in the nature of public protection than anything else, but we should at least make the comparison because too many witnesses have spoken to us about Bill 105, and I think we are confusing some things. It would be excessively significant considering that we deal with the criminal component. We must not forget that is the criminal component that we are dealing with. It is not the health component or the civic component. We will leave it to others to do what they want to in their jurisdictions. We have enough with ours, which is limited to the crime. I don't think we are barking up the right tree with this bill.

So, it was more of a commentary than a request to the researchers.

[English]

The Vice-Chair (Mr. Chuck Cadman): Mr. Miller.

Mr. Bruce Miller: I have just one quick comment, and it's back to the Ontario situation again: just a comment on the hearings. There were hearings held across the province, and I guess certain groups chose not to take part, although they were open. At the end of the day, was it passed quickly? Yes, it did go through quickly. But we heard the same concerns in Ontario. Is it constitutional? Is it the realm of the federal government or the provincial government? We heard these different arguments back and forth, and at the end of the day in our discussions at the committee hearings and with members of the provincial parliament, our message was that this legislation is needed; it's the right thing to do.

We had overwhelming public support, and I would like to think our provincial elected officials acted because they thought it was in the best interests of their constituents. It was needed in the province, and we'd argue it's needed in the country. They went ahead and enacted the law. There may be constitutional challenges, yes; we're going to have to wait to see how that situation plays out.

We're here to urge you today to enact this legislation. It may need some fine-tuning, but we urge you to get it through.

The Chair: Mr. Maloney.

Mr. John Maloney: I'd like to pose this question to Dr. Healy--

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Prof. Patrick Healy: I'm not a doctor; I'm a professor.

Mr. John Maloney: Mr. Healy, sorry--

Prof. Patrick Healy: I've been accused of being a seventh lawyer, so I don't want to be a doctor now.

Mr. John Maloney: We've heard conflicting testimony, both legally and otherwise. This is an emotional issue and an issue I think a lot of people place a high degree of importance on. In your opinion, would it be a good idea to refer this legislation to a body like the Uniform Law Conference for their consideration at a very in-depth level?

Prof. Patrick Healy: The Uniform Law Conference is a national body that examines issues in both private and public law. Yes, it's quite conceivable that the Uniform Law Conference could look at that. Also, under the federal-provincial consultations that take place on legal issues, that too, under the auspices of the national convention of attorneys general, might be a place for it to be raised.

The Chair: Mr. Strahl.

Mr. Chuck Strahl: Thank you for that. That is a very slow process, but a slow process sometimes is necessary to make sure things are done right. I don't deny that.

I feel badly that I don't have copies of Mr. Chipeur's testimony, not that he'll have the final word. But his argument, to go again on this, had particularly to do with part II of the bill. The bill is in two parts, as you know. He argued back as far as 1988, in arguments published in international journals on medicine and the law, that the taking of blood samples is too much of a witch hunt. He argued that often there are not enough safeguards in place, privacy issues aren't looked at, and it's a grievous intrusion that's not justified, given what benefit you got out of it. It was that kind of an argument.

Then in 1992, when called as an expert on this, he argued that although there had been some changes made on the DNA side and gathering of evidence and more scientific stuff, until you can show that there's a real direct link, a societal benefit argument, until you can argue that, until advances in science and medicine make it a strong argument, you're still not going to get the courts to agree that it's in society's best interest. He argued that you can't demonstrate enough benefit because the medical knowledge is shaky, the treatment was shaky--1992 we're talking here--and he was sure that what was going to happen is that you still couldn't do it.

When he came and testified last year, a year and a half ago now, he said at the time he felt that we were at that stage. That was the first thing he said. He felt that there had been enough advances in terms of the benefits you got from this information over the 14 years he was involved in this--most often arguing against it--that he was now convinced that there was enough valuabe information that it outweighed the interest of people like this to get the information and society's interest had finally reached the medical stage where we had passed a line. We had gone over it.

Secondly, in trying to determine whether this is federal or provincial jurisdiction, he referenced the firearms legislation, because it was coming up--actually the next week--at the time he was giving testimony. He said that there would be further clarification as to federal-provincial jurisdiction on what was, according to the provinces' argument at the time, of strictly provincial jurisdiction. The Federal Court said no, it isn't actually; the feds are allowed to legislate in a criminal way on something that's basically a property right. They have the right, it's overriding. It was clarification of the constitutional division of powers.

I'd like to give you what his argument at the time was and have you to comment on it. He argued that there were enough changes in society's interests because of medical advance; and in terms of the jurisdictional issue, he said if it's settled in the federal jurisdiction's favour that will buttress your case, according to him, on part II of my bill. He said that in his opinion it would be a huge argument in favour of saying it is constitutional. So those two arguments, he said, in his opinion would make it worth at least putting forward.

He said it will be challenged, and he urged people to remember everything will be challenged. He said don't be afraid of being challenged, because everything is challenged. Everything is challenged. Lawyers do make a living at this.

Anyway, could you just comment on those two aspects of Mr. Chipeur's testimony?

The Chair: Mr. Healy.

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Prof. Patrick Healy: Thank you.

I understand the comments you're relating to me, but I still have a great deal of difficulty seeing how it's possible to characterize the substance of Bill C-217 as being criminal in nature, because there is nothing in the bill, even in part II, that would tie the application for the warrant to the investigation of an offence.

Mr. Chuck Strahl: Aren't there many federal laws, even Criminal Code sanctions, that deal with failure to do something?

Prof. Patrick Healy: Yes, all of those are offences.

Mr. Chuck Strahl: For example, if you've failed to file your income tax, failed to obey a court order, or failed to give a blood sample or a breathalyzer. In this case, it's failed to give a blood sample.

Prof. Patrick Healy: But you haven't done that. You haven't created the offence of failing to give a blood sample, and you haven't defined a criminal purpose for which the sample would be sought in the first place. What is the criminal conduct? Possibly being HIV positive? Is that it? Is that what you're trying to criminalize?

Mr. Chuck Strahl: Possibly infecting someone else.

Prof. Patrick Healy: Possibly infecting someone? You mean having the capacity, which is not proven, just having the potential, the 50-50 chance, yes, no, that this person might be infected. That's going to be criminal conduct, to possibly be infectious?

Mr. Chuck Strahl: The Ontario court ordered Bernardo to give a blood sample just to look after someone's mental state, let alone their physical well-being. It seems to me the court does intervene at times and says that it is serious, that it is something that's worthy of intervention with a court order, to get something to...in that case, it was to relieve mental anxiety.

I would argue this is more than that. It's mental anxiety, plus not a life-threatening but certainly life-altering and very intrusive medical procedure that you're asked to go through, often at the risk of your marriage, your job, and certainly your personal mental health.

Prof. Patrick Healy: Well, first of all, I don't know the Bernardo case you're referring to. Secondly, you said it was a civil matter. By definition, it's not a criminal matter. So I come back to the original point, which is that I cannot see any criminal content to this legislation--zero.

The Chair: Mr. Cadman, and then I'd like an opportunity myself, if I could, to hold you here for a couple of minutes.

Mr. Chuck Cadman: Mr. Miller, what is the consequence in Ontario of refusing to provide the sample?

Mr. Bruce Miller: It would go to a superior court justice, who would have to make an order. The court would have to order and impose the sanctions. There are no penalties. My reading of the legislation--as a police officer, not as a lawyer--is that the superior court judge could order that person to be tested whether he or she liked it or not.

Mr. Chuck Cadman: And then if they fail to, it's more like a contempt? Is that what...?

Mr. Bruce Miller: I don't think failure is an option, from the way I read the legislation.

Mr. Chuck Cadman: Okay, that's all. I said I'd be quick.

The Chair: In the spirit of beefing down our résumés, I'm not a lawyer either.

I've a question, though, because it has been an interesting day, around the discussion having to do with the fact that we are contemplating legislation that covers equally my walking out on the street and being hit by a car and being saved by Chuck Cadman, and--

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Mr. Chuck Cadman: In your dreams.

Mr. Chuck Strahl: I'd do it, Andy.

The Chair: Thank you.

Well, he's trying to get a bill passed.

I'm being treated the same as someone who has bitten Constable Hiltz, and I think that's part of the dilemma. We're looking at a range here that makes it difficult, in one instance, to consider or contemplate the possibility of limiting my right to privacy, because I've done nothing except be hit by a car, as against the circumstance where someone has actually attacked a police officer, and so on.

I think Professor Healy has mentioned this, Monsieur Bellehumeur has mentioned this, and I think the Privacy Commissioner has mentioned this--not necessarily suggesting that anybody is speaking in favour, but certainly people would be more tolerant of the debate, if you like, if in fact it was a chargeable criminal intent that went along with this. I think it was the commissioner this morning who said that to some extent, in a criminal act, or arguably a criminal act, you surrender some level of rights. Certainly you do if you're presumed to be possibly impaired, and so on.

Consequently, to Mr. Strahl and others who have an interest in the bill...one of the other things that triggered my thinking was when Mr. Miller said “understand the people we're dealing with”. I know in the mind of Mr. Miller and Constable Hiltz, the universe is a small one. The universe they're thinking about are the people they deal with every day. But that isn't the guy walking across the street getting hit by a car that is causing other people to resist trying to deal with your problem.

So I think we should consider that. There's a possible opportunity here--and I only say this having observed the debate all day. I'm expressing no opinion, but this is simply to say that there seemed to be some commonality in thinking through this piece that might be of help to advancing the agenda.

With that, I want to thank all the panellists. It has been a very informative day, and there has been a high level of debate. I think we're working the way this place should.

Mr. Strahl.

Mr. Chuck Strahl: I have enjoyed this debate as well today and learned quite a bit, I think. I'd just again, as I did yesterday or the other day, urge people to look at the testimony from the last time.

What happens when we get into these hearings is that we think about police officers today, because that's who we have. Two days ago we were all thinking about paramedics, because that's who we had.

In the same way, I urge people to look at the two sides of the constitutional argument, both of which are very compelling, but to realize that there are two sides. We had a constitutional expert who gave a different opinion, a kind of different rationale, and I'd just urge people to read through that before we come to the conclusion that you're maybe leaving us to.

The Chair: Thank you very much. And for the record, I'm not leading anybody to any place. I've been here all day listening to the discussions, and there were themes that emerged that I thought were interesting--that's all--and I wanted to bring them to everyone's attention. But no, I'm taking the committee nowhere; the committee is taking me.

Thank you very much.

The meeting is adjourned.