JUST Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 13, 2000

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[English]

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

Today we'll be looking at Bill C-244, 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.

This is our first series of witnesses, having heard from the sponsor of this bill, Mr. Strahl. Today we have, from the Department of Health, David Hoe and Dr. Ronald St. John; and from the Department of Justice, Yvan Roy, Patricia Dunberry, and Peter Sankoff.

Without further ado, I would call on, in the order in which they appear here, the Department of Health, Mr. Hoe and Dr. St. John.

I can tell by the witnesses' expressions that's not the expected order and other arrangements have been made. We're always willing to accommodate.

Mr. Roy.

Mr. Yvan Roy (Senior General Counsel, Criminal Law Policy Section, Department of Justice): Thank you, Mr. Chairman, I do appreciate that.

My name is Yvan Roy. I'm with the Department of Justice. We thought we could try to be useful by bringing to your attention this morning some information, some concerns, some facts about this particular piece of legislation that could help the parliamentarians in making a decision as to whether this bill should be supported.

Such an issue is always a bit of a problem for civil servants who are appearing before the committee, because it appears, at least at first blush, to be a good idea if you can help someone who is infected with such a dreadful disease as HIV or hepatitis C or hepatitis B. If you can help these people to take the right medicine in order to fight that disease, generally speaking, that would be the kind of idea that should be supported.

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We would like to bring to your attention some concerns that we think should be in front of you. What we would propose to do is to get the ball rolling by raising with the committee some issues having to do with the division of powers, the Charter of Rights and Freedoms, and some criminal policy issues that we think should be considered by this committee.

We would then ask Dr. St. John to provide the committee with some information on the testing that is under consideration in this piece of legislation, and ask Mr. Hoe, who is also from the Department of Health, to tell the committee what is being done with respect to people who are infected or are at risk of being infected with respect to those three illnesses.

We hope our presentations will not take more than half an hour collectively, and after that half hour we'd be more than willing to try to answer your questions. So if that is agreeable to the members of the committee, that is how we propose to go about our business this morning.

The Chair: They're not only agreeable; they appear quite excited.

Mr. Yvan Roy: Thank you.

This bill is relatively simple. What you have, at least by my analysis of it, is two series of variables that, put together, will allow the issuance of a warrant for the purpose of obtaining some bodily samples. In my view, the variables are the following.

There are three types of illnesses covered by this legislation, and a certain number of people who would be the beneficiaries of the legislation. The illnesses are HIV, hepatitis A, hepatitis B, and hepatitis C, and the people covered by this are firefighters, medical practitioners, people who are taking care of sick people, peace officers, security officers, and people who are involved in the arrest of some individuals.

According to this piece of legislation, if they have reasonable grounds to believe they may have been infected as part of their work, these people would be able to go before a justice of the peace and obtain a warrant for the purpose of having the victim they had been helping tested.

In the case of the firefighter, presumably that would be during a fire, where someone is in particularly difficult circumstances and the firefighter is helping that person. If they think that person may be infected with say HIV, it would be possible for the firefighter to get that person tested for AIDS.

It seems to me two issues need to be addressed with respect to this. The first one, even admitting that this is a good idea—and we can get into the issue of whether this is a good idea or not—the question that must be answered by this committee, it seems to me, is whether Parliament can pass this kind of legislation.

I have read with a great deal of interest the testimony of the sponsor of this bill before this committee, and I think it is the common understanding of people around the table that we would seek to justify this piece of legislation on the basis of the criminal law power that Parliament has under section 91(27) of the Constitution Act of 1867.

The problem we may be confronted with is that, at least by my way of reading the legislation, there is not much in this legislation that deals with criminal law.

Criminal law has been defined by our courts as being a very broad power. Indeed, we're going to have a decision again from the court this Thursday on the firearms reference, where the court will have an opportunity to define further what the power is about. But in the last two or three years there have been significant decisions of the court on the breadth of the criminal law power, and each and every time the court is saying that first the power starts with the prohibition of some behaviour that is associated with a penalty.

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I can refer the committee to the decision of the court in RJR-Macdonald v. Canada, which is a 1995 decision. This is the one that dealt with tobacco advertising, where the question was clearly before the court: Can Parliament, on the basis of section 91(27), allow the kind of legislation that was then passed? The members will remember the legislation had to do with the prohibition of some form of advertising. The court went into the case law that exists and it was clear that the analysis started from the proposition that you have a prohibited act, and that act is then associated with some penal consequences.

With the greatest of respect, Mr. Chairman, this legislation is not doing that. It is simply saying we can get a warrant without any kind of link or hook to criminal law as we usually understand it to be. We are not talking here about the gathering of evidence, and we are not talking here about the gathering of intelligence with respect to criminal activities. Rather, what we are talking about is giving some information for reasons of public health to some people, in particular.

Mr. Chairman, I think there is an argument to be made that this is not what we have considered traditionally as being criminal law. So this is the first hurdle this committee would have to consider, whether it can use the section 91(27) power in order to pass this kind of legislation.

I would also suggest to the members of the committee that they may want to have a look at another decision of the Supreme Court, this one in 1997. It is the case of the Attorney General of Canada versus Hydro-Québec, where the same kind of analysis was made by the court. To my knowledge, these are the last two decisions that have come down with respect to the use of criminal law power.

The second set of issues the committee would have to look into is whether this infringement on some basic constitutional rights can be justified under the Charter of Rights and Freedoms. I don't think there is very much doubt—and again I think the sponsor of the bill made that point in his presentation before the committee—that section 7 and section 8 of the Charter of Rights and Freedoms are engaged by this legislation. The question then becomes whether this kind of infringement can and should be justified under the Constitution.

I would suggest, Mr. Chairman, that in order to do this we would need to have a justification with respect to the use of that power. The justification may very well be that the tests that would be conducted are so potent, so reliable, that it would give significant information to the victim, the firefighter, the peace officer. It would give them the kind of information such that they can govern themselves. And it may very well be that if the tests are that reliable, we would have the kind of justification needed in order to satisfy the infringement of those rights.

You will hear from my colleagues from Health Canada that there are certainly difficulties with the tests we are talking about. Therefore, the question will become whether there is the justification to infringe on the rights of ordinary Canadians who have not committed any crime, who are not involved in any kind of criminal activity such that we would be getting some information from them that could be useful for some state purposes.

In those circumstances my submission would be that you would need to have a very strong justification in the form of a public health justification. The justification would have to be fairly strong that those tests are reliable and they can be helpful.

I would conclude my remarks by bringing to your attention some policy issues you may want to consider. I have suggested that there may be an issue with respect to the division of powers—the use of section 91(27). It may not be something that can be done by Parliament, but rather should be done by the provinces if it is to be useful. I have suggested that there are some charter issues that will need to be addressed.

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The policy issues here that should be considered, in my view at least, are whether it is sufficient in the circumstances for the judge or justice of the peace to be satisfied that there are reasonable grounds to believe that something is going to happen. In law, these words are terms of art. It is not the same thing as convincing someone that something ought to be done. Rather, you have some credibly-based probability that something is going to happen. That standard itself can be seen as being perhaps a bit low, with respect to this kind of infringement.

Another policy issue you would perhaps want to consider is whether it is reasonable from a public policy perspective to limit such a tool to only firefighters, medical personnel, and policemen. In other words, if those tests are that reliable, why wouldn't the victim be able to get the firefighter, policeman, or medical personnel tested? Why would only the firefighter be the beneficiary of this? Shouldn't that be a two-way street?

Once you talk in terms of a two-way street, why would we limit this to only these six categories of people? Why shouldn't that be made available to all of us, whenever we are in some circumstances where we may think we have been infected with one of those three diseases?

These are questions that I think are more in the nature of policy. It may very well be sufficient, in the view of this committee and Parliament, to talk of those six groups and nothing else. But I'm suggesting this is an issue that should be looked into. Why is it limited to these people? This is not a two-way street. At the end of the day, why would this not be extended to every Canadian?

The last policy issue I would bring to your attention is the issue of whether it would be sufficient for such a decision to be made by a justice of the peace. I know the sponsor of the bill has indicated he's open to some changes in order to make this even more palatable. Perhaps the sponsor in this committee would be interested in looking into getting a superior court judge to issue the warrant, or a provincial court judge—judges who have more experience with respect to these matters and perhaps more expertise. These are things that perhaps should be considered.

I would conclude with that, Mr. Chairman. I would like to bring to the attention of this committee the issue of division of powers; the issue of the charter, and therefore the human rights that are involved; and those few policy issues that need to be, in my view at least, looked into.

As I have indicated, especially with respect to the charter concerns one might have, we may very well be able to justify the intrusion that constitutes the taking of a bodily sample—that it can be justified if the tests we are talking about are reliable and potent.

We have with us this morning Dr. Ron St. John. He is an expert in the area and would like to bring to the attention of the committee the state of science with respect to those tests, in his view as an expert. Dr. St. John will give you his credentials, and will then go into a short presentation on the tests we're talking about.

After Dr. St. John is done, Mr. David Hoe will tell you a little more about what is being done with respect to those three illnesses, from a public health perspective.

Dr. St. John.

Dr. Ron St. John (Senior Consultant on HIV/AIDS, Laboratory Centre for Disease Control, Department of Health): Thank you very much.

Thank you, Mr. Chair. Would the chair like me to go into credentials at this point?

The Vice-Chair (Mr. Ivan Grose (Oshawa, Lib.)): No.

Dr. Ron St. John: Thank you. It's sometimes embarrassing.

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I've brought just a simple three-page handout, which I hope will help guide you a bit in my discussion. I hope the chair will allow me a few minutes to just review some very basic concepts, because there are some critical points to consider. One is the concept of exposure; another is the concept of prevention, or what we call prophylaxis; and the third is the concept of benefits to be derived from the intervention or prevention measures.

If you look at the first diagram, I'd like to just remind everyone we're all exposed. We're all exposed every day to a variety of infectious agents. When someone sneezes, when someone shakes our hand, in our daily contacts we are all exposed, but we don't all get sick. That's a critical point, because the right kinds of conditions have to be present. It's not just a matter of being exposed to an organism; you have to be exposed to the right amount of the organism in the right way that allows the organism entrance into your body.

Every organism that's infectious generates something called the incubation period, or the period of time from the exposure, the actual entrance into the body, and then the establishment of the infection. The incubation period varies a great deal from organism to organism. Once the incubation period is passed, the person then becomes infected, but not necessarily ill, because there are infections that last for long periods of time that do not generate immediate illness, but you still may remain infectious for other persons.

The biological testing we conduct to try to identify that an individual is infected can really only be done after a necessary period of time has passed—the incubation period. If you try to test for the presence of the infection during the incubation period, the testing is often inconclusive, based on the kind of test used.

Changing from a negative condition or a negative test to a positive condition or a positive test requires a complex interaction between the infecting organism and the host. This interaction requires time. In the case of HIV, for example, we cannot detect the disease, once it's established, for six to twelve weeks after the infection has begun.

The biological tests become more accurate with the passage of time, because time is necessary for the human body to react with the infecting organism and produce an antibody or some result that can be detected by a laboratory test.

The prevention of infection after one has been exposed—or as we call it, post-exposure prophylaxis, or PEP—can be effective in stopping some infections, but only when we have the appropriate vaccines or treatments that are shown to be effective in post-exposure prophylaxis. Sometimes we can move faster than the organism. A good example is rabies. If you're bitten by a rabid dog and you receive prompt vaccination over a period of time, we can get ahead of the rabies virus and stop what is a nearly 100% fatal disease.

In the next chart I've tried to define the scenario that I think is being addressed in this bill. On the left side in the top corner are what I've called the responders, or the people who are going to respond to an injured person. I've divided them into two categories: the professional people—the ambulance and paramedic people, firefighters, and occasionally, trained police; and the layperson or the non-professional person—the ordinary citizen who may render good-Samaritan aid to an injured victim.

On the right side is the injured person, who I've elected to label as the general public. The injured person, as a member of the general public, may be at high risk for having the disease or at extremely low risk for having the disease, depending on their life circumstances. We do not know a priori, ahead of time, exactly what that person's risk status is. So I've elected to consider that person a member of the general public.

Some questions result. What is the risk of becoming infected with HIV, hepatitis B virus, or HBV, or hepatitis C virus, HCV, from the infected injured person? Well, that depends. It depends on the amount of disease that is out there in the general public, and that's highly variable. It's variable by geography, by behaviours of people, and by their past history of exposure to disease.

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The second point is what is the exposure mechanism of transmission? All three of these diseases are what we call blood-borne pathogens. They are resident in your blood. They are transmitted only when a person comes into contact with a body fluid, and only when that body fluid can be applied in such a way that it can enter the body. They are not transmitted by casual contact. The skin, when it's intact, is a very good barrier against infection—when blood is spilled on the skin, it is not infectious. When blood is spilled in the eye or in the mouth, where it has contact with a mucous membrane, then a blood-borne pathogen can potentially be transmitted.

It's important to remember that these are all blood-borne infections; therefore, the exposure must be of a particular type to have effective transmission.

Then there's the question of detecting the infection in the injured person. There are many testing issues, as you've mentioned before, which I will address in just a minute.

Finally, what are the benefits for the responder from knowing the disease status of the injured person?

If you look at the table on the next page, I've tried to summarize for the three diseases two basic elements. The first two rows refer to the exposure problem, the third row refers to the testing, and the fourth to the benefits.

First to the exposure. How much infection is in the general population? In other words, what are your chances of actually being exposed in attending to an injured victim?

For HBV it's about 0.5%—that's 5 per 1,000 people who have hepatitis B virus. That's an estimate, because we haven't tested everybody in Canada to know what their HBV level is. For HCV it's a little higher, about 0.8%, and for HIV it is 0.1% to 0.15%. We have a much better fix on the prevalence of HIV in the Canadian population because of the HIV testing program conducted by the provinces.

On the exposure mechanism of transmission, for a professional, the exposure to HBV—in fact, for all three diseases—is very low. Why? Because the professional is a trained person, and the first thing he's trained in is something called universal precautions, to be wary or careful in dealing with body fluids. The professional responder will have gloves, and depending on the nature of the injury, eye protection, and they will be immunized against hepatitis B—if they have followed all of Health Canada's recommendations.

For a layperson, I have also considered that the exposure to a true mechanism of infection is very low. As I've said before, it must be exposure to a body fluid that has access to protected parts of the body. It's not likely that laypersons will actually expose themselves to a severely injured person and be infected by their blood. In addition, the amount of disease in the injured person—the prevalence of disease, the level of disease—is very low. So the risk is not zero, but it's very low.

In terms of testing, for HBV we have fairly rapid tests, and they are accurate and good tests. But again, any biological testing takes some period of time. HBV tests are usually performed within 48 hours. For HCV, there are rapid tests available, but you have to do a second or supplemental test to verify the results of the first test—again, a bit of a time-consuming process.

The same is true for HIV. There is a rapid test now available that takes 15 minutes to perform, but that test is not a conclusive test for identifying the status of infection. It's only a screening test. It only allows you to decide whether or not to do the second or confirmatory test—a much more complicated test that is very time-consuming to perform.

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What the newly introduced rapid tests have done is reduce the total time for a public health laboratory to achieve a definitive result from 10 to 14 days down to about 7 to 8 days.

Now, the benefits of knowing for the professional responder for hepatitis B are quite low, because supposedly all emergency responders should be vaccinated against hepatitis B.

I'll go across on the professional level. For hepatitis C, there are no benefits, because there are no interventions, no treatments or vaccines available for hepatitis C. For HIV, there are some possible benefits of knowing the status of the injured person; however, the prophylaxis for HIV requires the decision within a couple of hours. If you do not use the drugs that are available in a couple of hours, it's too late. It would take hours, even with rapid testing, before the status of the injured person could be defined. So you have to decide based on the exposure itself whether or not to use the drug, not on the testing of the injured victim.

The benefits for the layperson are somewhat similar. If the layperson has had a significant exposure—by that I mean a true exposure as determined by an assessment of the situation—then there would be some benefit to knowing for HBV, because we would vaccinate the layperson. For hepatitis C there are none. And some of the benefits for the layperson for HIV are similar to those for the responder, but again, timeliness of testing does not figure in the decision of whether or not to use the available post-exposure prophylactic treatments. What's critical there is the type of exposure.

Perhaps I'll stop at this point and ask Mr. Hoe to cover how we deal with these situations in real life, because we have taken these things under consideration.

The Vice-Chair (Mr. Ivan Grose): Mr. Hoe.

Mr. David Hoe (Policy Adviser, HIV/AIDS Policy Coordination and Programs Division, Department of Health): Good morning. My name is David Hoe. I'm a senior policy adviser with Health Canada on HIV.

Concern has been expressed in all countries to seek ways to prevent HIV transmission or other disease transmission to enable people who believe they may have been infected with HIV to receive the best possible care, and when necessary to receive the best possible treatment.

The idea that one may have been exposed to HIV generally creates fear. It's fear of death, fear of illness, fear of impact on relationships, and fear of a lost future. These are significant fears, and these are the issues that clearly need to be managed.

Canada, in line with United Nations recommendations, has through federal, provincial, and territorial analysis instituted programs that assist people when there is a concern about infections from any of these diseases. As Dr. St. John explained to you, it's a provincial and territorial responsibility to respond to ascertain whether infection has taken place.

So far, in discussions with provinces and territories, we have believed that mandatory testing neither achieves public health goals nor establishes a national environment of safety and reassurance for people considering testing. The surest way, for example, to ascertain somebody's HIV status is to undergo testing for one's self if you think you've been infected, and to make that decision for one's self, the decision to be tested. All provinces and territories have testing programs in place that will provide the best possible information as well as counselling guidelines to assist somebody to make that decision.

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Often widely referenced are the guidelines issued by the Canadian Medical Association, which state that testing should be undertaken only with specific consent of the person being tested. In 1994 there was a situation where mandatory testing had been considered, and had been considered by an interdepartmental committee on human rights and HIV. That was in the case of sexual assault, which you probably could understand might be the least intrusive and the greatest risk of transmission of disease. It was concluded then that mandatory testing would not provide victims of sexual assault with the information and the support that was needed. It was recommended then that voluntary testing and counselling be provided for those who believed they might have been exposed to HIV or other diseases.

Most people, when given the opportunity to make the decision about testing in parallel with counselling, will decide to be tested both as an act of self-care and as an act of compassion to other people.

There are three questions that I think are raised. First, what is the most effective way to provide peace of mind and accurate information on which to understand infection? Secondly, how do you handle infection or how do you handle non-infection, if that is the case? First and foremost, generally we agree that counselling is the issue that needs to be made. There are serious decisions that have to be made by a person who believes they may have been at risk. Second is to provide the most reliable way that gives the most accurate test results for one's self. And the most reliable, accurate test results are through confirmatory testing, as Dr. St. John has informed you, and that comes from a provincial or a territorial health laboratory.

The next question is does rapid screening and testing help? Rapid screening and testing assists someone, after they've given consent to the test and it's understood that the information has a high probability of being false, to make a decision in front of them, which engages the person, most importantly, in deciding whether they want to go forward with confirmatory testing or whether they want to undertake the different kinds of treatment and prevention Dr. St. John has talked about.

The next question is does one person having a test tell you anything about the next person? And the answer to that is no. For HIV, the best way to ascertain if you've been infected is to undertake the test yourself, and that needs parallel counselling, because the decisions are multiple in terms of managing that. And in those cases where people believe they have become infected, managing the fear and the discomfort and the anxiety has been as important as knowing the actual result of possible infection.

After subsequent counselling and receiving information, the decision then needs to be made, where possible, what kind of treatment to take. In the case of HIV, the medications are extremely toxic; they're unpleasant, with multiple side effects and uncertain efficacy. Therefore, there is a counselling decision-making tree that is currently recommended: first, that a person needs counselling regarding transmission; second, that a person needs to understand the risk of transmission—a short synopsis of what Dr. St. John said; third, people need to understand the risks that may be associated with taking any medication or treatment; and fourth is that person's readiness to undergo that treatment.

I'm going to conclude there. I'm sure we're all open for your questions. Thank you.

The Vice-Chair (Mr. Ivan Grose): If no one else wishes to speak, Mr. Strahl, if you wish to lead off....

Mr. Chuck Strahl (Fraser Valley, Canadian Alliance): Thank you, Mr. Chairman.

I'd like to thank all the witnesses for coming here today. I think it's today and tomorrow we're starting in on this, and I don't know where it's going to go from there, but I do thank you for that.

In terms of the arguments that have been put forward this morning, I've gone through them and I've heard them before, so we're going to have to see if there are ways, as I said to the minister, to address some of the concerns. Some of them I'm going to argue with you about, but some of them perhaps require amendments. For example, whether it is proper that a justice of the peace or a Supreme Court judge be the person to issue such a warrant is a matter of debate, and so on.

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I have a couple of questions, first of all, on the constitutionality of this. There are actually two clauses to the bill. One deals with people who are enforcing federal statutes, and they're basically federal employees enforcing federal statutes. Is there a difference between the constitutionality, in your opinion, of this kind of a bill covering those people as opposed to, as you said, the perhaps provincial jurisdiction for health care workers in general?

Mr. Yvan Roy: I'm not sure that there is that much that turns on who actually is going to be the beneficiary of this. It seems to me that what the committee will have to look into is what is truly what we call “the pith and substance of the legislation”—what it is that Parliament is trying to achieve. And by my way of reading the legislation, it looks to me like there is not much in the legislation that has a link or a hook with criminal law. The only thing that sounds like criminal law is actually the fact that there is a warrant to be issued, but quite frankly it could be some sort of a judicial order. It does not need to be called a warrant.

If it is for the purpose of protecting the health of someone, one may be tempted to conclude that this would fall much more readily in the area of provincial legislation—like when, for instance, you have mental health legislation available for the purpose of committing some people who may be dangerous, who are not able to take good care of themselves. It is not a federal criminal law issue that needs to be considered, but rather a health issue, and in those circumstances a lot of people would tell you that this is a provincial responsibility.

So whether it is a firefighter you're talking about, a peace officer, or some medical personnel, I don't think it is conclusive as to whether this is federal or provincial. Rather, it is what you're trying to achieve with this. And as I have tried to indicate, the case law that we have from the Supreme Court on the criminal law power suggests very strongly that what you need to have in order for something to be criminal is to have some behaviour that is prohibited to which is associated some penal sanction. That is not in the legislation that is presently before us.

Mr. Chuck Strahl: In the other examples I used—and I don't know if I used them before this committee—certainly I tried to argue that there are other cases where a justice will impose a sanction or impose an obligation on an individual even though they haven't been charged or haven't committed any crime or anything. A judge will just step in and say “I'm going to prohibit certain behaviours or force certain obligations on you, even though you haven't done anything criminally wrong yet. I'm going to impose an obligation.”

Is there any relevance to this? Is there a difference between the current laws...? And I'm thinking of section 810, for example, the sureties to keep the peace, which is in anticipation of perhaps something going wrong or something illegal happening. What's the difference between that and what's proposed in this bill, which is, I realize, specifically targeted not to be criminal activity? Someone mentioned that you could go down the road of what about victims of sexual assault and so on. I deliberately left all of that out of there, because while it's a good debate, it's not the debate I want to have on this bill. Is there a difference between what I've described where a justice steps in and obligates someone to do something before they actually do commit a crime or do something wrong...?

Mr. Yvan Roy: You're referring to the peace bonds that are found in section 810, and then we have one in 810(1) and 8.10.2. I think we have three or four right now in the Criminal Code. The justification for having these is that they are to be issued in order to avoid having a breach of the king's peace. It's to avoid having someone committing an offence and therefore that makes this a criminal piece of legislation.

I'm not sure, Mr. Strahl, that you have that kind of a hook in this peace of legislation. There is nothing in terms of the king's peace—or the queen's peace at this point in our history—to suggest that this has to do with an offence that would be committed, that has been committed, or is likely to be committed. You don't have that relation with that kind of criminal behaviour, which you have when you look at sections 810, 810(1), and so on and so forth.

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Mr. Chuck Strahl: I want to ask some questions of the medical people in a minute.

I agree with what the medical professionals said about this being a rare occasion and a rare incident. I think a justice, let alone a superior court judge, is going to be very reluctant to issue such a thing, because it's understandably quite an intrusion on that person to ask for that. But if you can make the argument that there is some medical, financial, and emotional benefit to a person, is there a balance of rights between two individuals so that you can make the argument that it's time to move ahead on that?

I can give you dozens, perhaps hundreds, of cases where front-line professionals have referred to the absolutely life-changing effect it had when they were exposed to bodily fluids in a significant enough way that they considered themselves possibly contaminated and that it was such a traumatic experience that we should move in and provide them with a balance of rights, including their right to have some knowledge of whether or not they were contaminated with an infected bodily fluid. Is there some way we could argue that this is a balance of rights—that yes, it's intrusive, yes, it's significant, and yes, it should be rare, but it should still be possible?

Mr. Yvan Roy: Don't get me wrong. If I were the one who had been involved in an incident like this, I would be very much interested in getting as much information as I could as to whether or not I had been infected. That's no different from anyone here. From that perspective, whatever we can do should be done. The issue from the legal perspective, however, is how reliable those tests are in order to make the balance you're talking about.

Perhaps I should ask my friend Mr. Sankoff, who is a charter expert, to tell you a little bit more about the balancing that in our view would have to take place in order for this kind of remedy to be available. Peter.

Mr. Peter Sankoff (Counsel, Human Law Section, Department of Justice): Thank you.

I think you're quite right, Mr. Strahl, that this involves a balance. Every situation where you're dealing with the Charter of Rights is going to involve a balance between, as the court has said, the nature of the intrusion at stake and the pressing state interest that's countervailing.

There are a couple of things about law in this area that are very clear. The first is that the court has repeated on more than one occasion, most recently in a case called R. v. Stillman, that the invasive nature of bodily searches is second to none. They've said that the taking of a blood sample is an interference of a very intrusive nature, much more serious than that of the office or even one's home. It's clear that in order to justify the taking of a blood sample, we have to have compelling evidence that it's necessary. So it's not just a matter of having an interest in perhaps providing some information. The court said once again, in a case called R. v. Dyment, that there have to be compelling circumstances of pressing necessity.

Perhaps I can bring your attention to the Criminal Code, just to give you an example of what we have now for the taking of blood samples. I'm aware of two situations where we take blood samples. The first is where we take a blood sample where there's a risk of drunk driving. The only time we take a blood sample is where it's not possible to take a breath sample. So once again it has to be a compelling circumstance where there is a strong risk of intoxicated driving; in other words, that a crime has been committed and that there's no other way to get the evidence.

The one that I think is more similar to what we're proposing here, although I recognize that the interests of capturing crime versus health are two different things, is the possibility to obtain a blood sample for a DNA analysis. What I think is very interesting to look at is that one of the criteria to take a DNA sample is that the forensic DNA analysis will provide evidence about whether or not the bodily substance is related to the crime at hand. In other words, before it can be taken, there has to be compelling evidence that you're going to get the evidence you need. One of the criteria that I see inherent in order to achieve a proper balance is that the DNA analysis itself will actually provide evidence of value.

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I'm not a medical expert in this area, but from what I've heard from Dr. St. John, I think it's difficult to assume in this circumstance that you're going to get the evidence you need. At least in two of the situations he mentioned, there seems to be very little value countervailing the interest that we're intruding. In one situation, from what I understood of his testimony, there's no treatment, and in the second circumstance there's no need to have an immediate analysis because most people are either inoculated or can be inoculated. In the third circumstance, and again I defer to Dr. St. John, it seems to me that there has to be compelling evidence that you're going to get equal value for the nature of the intrusion. That's something the committee has to consider in this circumstance.

Mr. Chuck Strahl: There's a list of medical questions I'd like to get into. Perhaps one of the doctors could explain this to me. One of the things I found interesting was a quote from the Canadian Medical Association. Back in 1998 their general council adopted a resolution that said:

...the CMA recommends that all patients undergoing any procedure where a heath care worker could be accidentally exposed to that patient's bodily fluids be required to sign a waiver that would allow appropriate testing of that patient's serological status for HIV and Hepatitis if such exposure should occur, while ensuring patient confidentiality.

I have all kinds of admission statements, including one from the Department of Medicine of the University of Alberta, for example. Anybody who's admitted to the hospital has to sign a statement that says:

I agree to blood testing for blood-borne viruses, Hepatitis B, Hepatitis C and HIV, in the event that a health care worker is exposed to my blood or bodily fluid, provided that the results...be kept confidential....

Why is it that the doctors are so keen to have that information if it's of no particular value? Why would the health care workers and the CMA want to have that in their documentation?

Dr. Ron St. John: The hospital setting is an exposure type of setting that can lead to high risk. During surgical procedures there's the chance of sticking oneself with a needle or cutting oneself with a scalpel, and you're in direct exposure to the bodily fluids. At the same time, the amount of HIV in hospital settings is going to be different from the amount of HIV in the general population who might be injured in an accident, in part because sick people go to hospitals, and people with HIV are often ill. So the risk equation changes in the medical setting. There's high-exposure risk and a higher amount of disease in the population that is inside the hospital.

I think the critical factor in deciding whether to use a post-exposure prophylaxis for something like HIV has to rest more on the critical analysis of the exposure, rather than on the testing, because you only have a couple of hours in which to decide yes or no. Once you decide that you're going to use the drugs we have available, you have to use them for about 12 weeks, because you don't know that patient has just been infected and is incubating the disease. As I said before, there's an incubation period when our testing is not reliable and we can't even detect that the person's infected. So you have to wait out the window period at a minimum. Once you decide to use these drugs, you are committed to roughly a 12-week course, regardless of what the testing says, and you must make that decision within hours.

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

Mr. Hoe.

• 1030

Mr. David Hoe: Thank you.

I was struck by your question, Mr. Strahl, in terms of providing medical, financial, and emotional benefit.

Moving on to these policies of the Canadian Medical Association and the University of Alberta, I'm not familiar with those two policies, but I would think in those two policies existing there would also be a parallel policy that would say how those policies needed to be carried out. So before somebody signed such a waiver or signed off to enable their blood to be tested, a process would be in place to allow that person to be informed around what they were signing. At that point, the person would be able to make an informed decision, and that is a key piece in that process. But we can research that and let you know.

Mr. Chuck Strahl: On Health Canada itself, because you're involved with Health Canada, in their document Canada Communicable Disease Report of October 1995, it says:

Failure to obtain blood from the patient for HIV antibody testing may mean that a health care worker is subjected needlessly to a prolonged period of anxiety until it can be concluded from repeated serologic testing that the worker has not been infected.

Isn't Health Canada saying blood from the patient for HIV antibody testing is important to the health care worker? Otherwise, it goes on to say, they're subjected needlessly to prolonged periods of anxiety.

Dr. Ron St. John: I didn't address the question of anxiety. I've tried to focus predominantly on the medical aspects of infection. There is no question that there's an emotional overtone to all of this, regardless of the diseases. There are ways of managing that, as David has pointed out, through our counselling processes.

The test result doesn't really help you with your anxiety problem. If the test result is negative, then you don't know whether the person is in the window period or not. If the test is positive, you don't know, on the screening test at least, whether it's falsely positive or not. Even if it's positive, you don't know whether you've been infected or not until you yourself are tested over a period of three months. So the testing issue, in my opinion, doesn't really allay as much anxiety as people think it might.

The Chair: Thank you very much.

[Translation]

Mr. Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Mr. Chairman, I trust that your kind cooperation and your sense of social justice, which has brought you to write a doctoral thesis on Karl Marx, will ensure that I will have just as much time as the previous questioner.

I have five questions for the witnesses. First of all, I have a concern with clause five and more specifically with the wording of paragraphs 5(a) and 5(b). I would like to ask Mr. Roy, who's one of my idols in the field of criminal law, as he is well aware, whether I'm mistaken when I say that this wording would not lend itself to an easy interpretation by the judiciary and even that it would be somewhat ambiguous and discretionary if the bill was to be passed as introduced. It seems to me that there is some discretion and some ambiguity that could remain for people who are entitled to issue warrants or to authorize the issuing of warrants. I will ask my five questions consecutively and we will have the opportunity to discuss them further.

Secondly, I would like to ask Mr. Sankoff to give us a brief update on the state of the law regarding the legal duty of a person to divulge his or her serological status. I remember well the whole controversy that erupted in September 1998, when the Supreme Court explored, in the Cuerrier decision, the possibility of considering as an assault the refusal to divulge one's serological status in some specific circumstances. Mostly, I obviously remember the reaction of some of the organizations that work with HIV positive people or people living with AIDS. They rightly represented that, in our society, being infected with the virus cannot be considered as criminal behaviour.

• 1035

So I would like the witnesses to clarify the state of the law in this regard. Perhaps it would be interesting to have a little document summarizing the situation, Mr. Chairman. Could we ask the Department of Justice—they love writing summaries in this department—to produce for us a brief document outlining the seven or eight most significant decisions?

My third question deals with the lack of consistency. Mr. Hoe could recap the situation for us, but there is no consistency from one province to the other as to the duty of health professionals to declare that a person is HIV positive or living with AIDS. It is not in all circumstances a reportable disease and I know there are variations between provinces. So I would like us to have an update on this. Let's start with these questions and I will have other questions later on.

Mr. Yvan Roy: I have the feeling that the first question was for me. You were asking me whether the wording of clause five could be problematic. I'm not at all sure that it would be the case. That clause is written according to the conventional practice for search warrants, namely that there is the requirement that there be reasonable grounds to believe that a given situation exists. In this regard, it is not particularly problematic.

I said in my introductory remarks that this standard is not as high as a standard requiring that the judge be satisfied that some conditions are met. The only requirement is that there be reasonable grounds to believe that a given situation does exist. But strictly speaking, in my opinion, it is not problematic.

You also asked, Mr. Ménard, whether it is desirable that there be some form of discretion. A similar question was put to the Supreme Court in 1992 or 1993, in the Baron case. Under the Income Tax Act, the judge, upon being satisfied of some facts, was required to issue a warrant. The Supreme Court of Canada said that there had to be some judicial discretion and that the judge could not be ordered to issue a warrant, because there has to be a balance of interest, which can only be done if there is some residual discretion. So, in the case of this clause five, it is desirable, in my opinion, that there be at the end of the line some judicial discretion.

[English]

The second question goes to Mr. Sankoff.

Mr. Peter Sankoff: I believe you're referring to the case of R. v. Cuerrier with respect to divulging. It's quite a different issue in the Cuerrier decision with respect to a person who commits an assault, a sexual assault for example, and there's a potential transfer of HIV. I believe what happened in that case was the court found it's a circumstance they can consider in deciding whether it's a valid consent. But in terms of forcing someone to divulge, as I stated earlier, attempting to force a test upon someone to determine whether they are HIV-positive is extremely controversial. As I said, taking any blood sample for any purpose is extremely controversial, and there has to be a valid objective behind the taking of the test.

Certainly forced testing upon every Canadian would give some more information. Is it justified in our society, given what I stated earlier about the extremely intrusive nature of taking blood samples? I think the courts would have great difficulty with such a measure.

And I'd add, based on what Dr. St. John said earlier, once again you have to consider what the court has required for intrusions of this nature in taking blood samples. I don't know whether taking a blood sample alleviates anxiety or not. I'm not sure, based on what Dr. St. John said, whether that's the case. Nonetheless, even if alleviating anxiety is a valid and noble purpose, is it balanced against the intrusive nature of forcing someone to give up a blood sample and violating their bodily integrity in the way the courts have seen is so significant? That is something I think the courts would really look at very closely.

[Translation]

Mr. Réal Ménard: I would like to come back to your answer. In fact, when I referred to that decision, which has been carefully examined by the Canadian HIV/AIDS Legal Network, which is funded by Health Canada, I fully understood that it was made in a context that was significantly different from the issue at hand.

• 1040

However, the question remains: if we had to answer that question in a rather definite manner, could we say that we can draw an inference from the existing case law regarding the duty of a person to divulge his or her serological status? I know that the statement has to be qualified, but in the present state of the law, it is still being considered as something that comes under privacy law and as something that could constitute an extreme invasion of privacy.

Do you have at the Department of Justice a document bringing together the court decisions that could be considered similar to the concerns expressed by our colleague from the Canadian Alliance and that we could look into in the form of a summary of relevant decisions? Am I wrong to conclude that if we, as parliamentarians, were to pass a bill such as this one, we would be going much further down the path of the obligation of divulging one's own serological status than the Canadian Courts in the whole have ventured up to now, that such a move could constitute a precedent and that we, as parliamentarians, should give careful consideration to such a development?

[English]

Mr. Yvan Roy: I think you're absolutely right. I've been focusing mainly on the security and bodily integrity issue, but there's also an extremely high privacy issue as well, and the courts have noted that. You're quite right. In some of the cases I've referred to, the case of Stillman, for example, they noted that state interference with a person's bodily integrity is a breach of a person's privacy as well, and trying to take this information from somebody.... You're quite right, I think: jurisprudence extends. It does protect our privacy.

Attempting to force that is something that I would say at this date is quite unprecedented, although it has been done. As I said, the DNA samples that are taken.... Once again, if the justification is extremely high, if you are taking DNA information from somebody to attempt to link them to a crime, I wouldn't go so far as to say that it cannot be done—although that has not been tested before the Supreme Court, I perhaps should mention.

But I think the court, on other circumstances, at least on taking blood samples to determine whether a person is intoxicated, has said that's okay, even though it reveals certain information. So it can be done, but I agree with you that it's a very extreme invasion of a person's privacy and the justification has to be high.

[Translation]

Mr. Réal Ménard: Mr. Chairman, I will ask one last question. You gave a lot of slack to the previous witness, and I really count on you to have the Justice Department forward to us—

[English]

The Chair: I may cut you off quickly, so go ahead.

[Translation]

Mr. Réal Ménard: Yes. So I hope the Department of Justice will forward us the relevant documents.

Could you answer my question regarding the variations that exist between provinces with respect to the mandatory reporting of HIV positive and AIDS cases?

[English]

Mr. David Hoe: This is a controversial issue subsequent to the Cuerrier decision of the Supreme Court. The Supreme Court decision in the case of Cuerrier changed the landscape in terms of what is known as disclosure of HIV status. What that Supreme Court decision did was to say to people living with HIV that, particularly in the case of transmission of HIV during sexual activities, there is an onus upon the person, if you're HIV-positive, to disclose your HIV status.

Failure to do that would—and I'll bow to my legal friends here—constitute fraud and therefore you could be charged with aggravated assault.

The provinces and territories currently now have to consider how they're going to manage this. Currently it is thought that the best way to manage this is to examine how best to assist people with HIV to learn to live with HIV, because it's a lifelong infection, and to provide the necessary counselling and support that will enable a person to be able to engage in protecting their health and protecting the health of others.

So all provinces and territories will be looking at this and looking at their programs in terms of counselling and how to assist people living with HIV to do this. Because it's a lifelong infection, it's necessary for people to be able to manage this for all of their life.

The Chair: Thank you very much.

Ms. Bennett.

Ms. Carolyn Bennett (St. Paul's, Lib.): Thank you.

Thank you very much for the presentation. It was very helpful.

• 1045

Last year I was at the UN AIDS-IPU meeting where they were trying to find best practices in HIV legislation. I think there was a pretty clear consensus from all of the countries participating that if we took a human rights perspective to HIV, and particularly to persons with HIV, as opposed to a traditional public health perspective, we win. It is a much better way of going about this.

I guess I have a little bit of trouble with this bill in some of the things that you've articulated, whether it's in regard to a victim of a sexual assault or a medical professional.

Certainly at Women's College Hospital as a family doctor, I would find occasionally that a baby had been given to the wrong mother and would have breast-fed for half an hour before the mother realized it wasn't her baby. We would go through this whole HIV scare, which was dealt with, I think, in a hugely compassionate and voluntary manner in terms of everybody, no matter.... The Gucci slippers didn't matter; people wanted the test done.

What I have some concerns about is this: what is the value in anything at all in this bill when it's not going to change anything we do?

I think you have been very clear that the testing of the other person doesn't mean anything to me as the responder unless I am tested and I.... Bear with me through what I've heard. If I am a policeman or a fireman and chasing somebody who's running away and they bite me, I have two hours to decide whether or not I want the post-exposure prophylaxis.

It's going to take me four or five hours to get the test back. In fact, if this person was just exposed to HIV the night before, it may take six to twelve weeks before they test positive anyway. So (a) I won't have the result, and (b) the result may be a false negative anyway. So I have to make my decision on whether I want the prophylaxis based on a whole bunch of other things, including whether I want to feel sick for twelve weeks. The only information that's relevant to me is not available.

So in terms of universal precautions, I am not going to change what happens, regardless. So I guess I don't see any upside in this bill, other than some sort of treatment of anxiety, and for me the treatment of anxiety has been reassurance. I don't see that the testing of the person that bit me makes one bit of difference in any of the decisions that I'm going to make. It might mean that if I knew it was positive I might want to get tested again in a year just to make myself feel even better that I was really negative or something, but I can't see....

Can you just tell me if my take on this is correct? Also, if we did it for this group of people, why wouldn't we be doing it for victims of sexual assault, for medical personnel, for everybody else, so that it would be some sort of compulsory thing?

Dr. Ron St. John: I agree with your analysis.

Mr. David Hoe: The only thing that I think this bill may do is raise the discussion. In terms of the scenarios you've described, that person that may have been bitten may now be informed and all of these issues discussed with them. After listening to all of these issues, they may decide that they want to go through a period of taking medications that are difficult, just in case. That is the one discussion that I think is there.

Ms. Carolyn Bennett: But do we not do that already with rabies? Because it's so horrible, we eventually want to find the dog and find out.

But shouldn't we have this conversation at this level with any human bite regardless of this piece of this legislation? I mean, in terms of public knowledge and informed choice, this conversation should be going on regardless, with any person who is in that situation, regardless of whether they are in a uniform or not.

Mr. David Hoe: I think so. If you're going to assist somebody to make the best decision about their health, then that would be the best possible route.

• 1050

Ms. Carolyn Bennett: Should you be doing more about that in a different way, as the AIDS people at Health Canada?

Mr. David Hoe: In terms of rabies, I don't know. I'll leave that to Dr. St. John.

In terms of HIV, we still have to get better at counselling people. We still have to get better at being able to understand what it is that a person experiences and be able to respond to their anxieties. As each new situation comes up, we need to readjust how we manage that. That has always been, and at this particular time is seen as, the very best way to respond.

Mr. Peter Sankoff: May I just add one point? There are a couple of other practical issues that come to the fore.

You raise a good point about timelines. I would point out that getting a warrant of this type would not be a quick and easy procedure. It's clear that all the parties, according to clause 4, have to come before the justice. There's no doubt in my mind that this is the sort of procedure that would engage the principles of natural justice and that a person would be entitled to legal counsel. In fact, it's very likely that they'd be constitutionally entitled to counsel, which raises a number of legal aid questions.

It's a non-ex parte warrant procedure for the purpose of investigation, a very different procedure from a Criminal Code investigation, where there's a strong need for ex parte because you're worried that the person will abscond, etc. That's not the case here. All parties will have to come before a justice and they'll be entitled to legal counsel. This will not be a quick and easy procedure, as far as I can see, in the manner in which this is drafted. I question how that fits into the timelines discussed in order to get useful information.

The Chair: Thank you very much.

Mr. Strahl, for three minutes.

Mr. Chuck Strahl: Yes, I see that. I've now been lectured on the new procedure.

I do want to dispute for a minute, or try to clarify, whether there is value. As Mr. Sankoff has said, what we're going to have to show in this is that there is actually value or benefit. Unless you can show that, this bill's going to be in serious trouble.

I'm not a medical expert, but from the evidence I have and from the anecdotal stories I've had from Ms. Anderson, for example, who's in the audience today, talking about how people do take the test results of the blood test that's available to them, it does seem to significantly affect whether or not they continue with the treatment.

I just want to rattle through a few quotes here. One is from a Dr. Moran, who wrote an article in the Annals of Emergency Medicine on the management of blood and bodily fluids. He says:

Serologic testing of the source patient is the most reliable means of assessing the risk of transmitting blood-borne infections. If known, the source patient should be tested for hepatitis B..., antibody to hepatitis C..., and antibody to HIV. ...a negative result is a reliable indicator of the absence of HIV antibody.

I mentioned a quote from Health Canada where they say that where significant exposure occurs, the best thing to do is to test that person to see if they have that. The Canadian Blood Services says that although there is that incubation period, as we all understand, if the blood tests negative for HIV, their statistics are that the chances of getting that are less than one in 913,000 once it's tested. There is a possibility, but it is almost literally a one-in-a-million chance once it tests negative.

Another doctor in another criminal case, Dr. Lalonde, who is a practitioner specializing in infectious diseases and an associate professor of medicine at McGill, wrote.... I won't give you the whole quote, but basically his conclusion is that even when the detection test is negative, it is extremely reliable. For the purpose of discussion, it can be said to be 100% reliable, because although there's that window where it could be incubating, there's literally a one-in-a-million chance that this is actually happening.

It does seem to me, and I could use Ms. Anderson's case as a case in point, that where someone must start the treatment right away.... Everyone says that. You get stuck with a needle or you get bitten or whatever it might be, and if you're prudent, you start the treatment. But the treatment is very serious. It lays some people right out for weeks on end. So when or if they have the benefit of a blood test....

• 1055

In Ms. Anderson's case involving a police officer, a person gave a blood test in exchange for a McDonald's hamburger, of all things, because it was a street person who just wanted a meal. So they made a switch and away they went. The test results came back negative and the treatment was stopped on the recommendation of the doctor. He said that if it comes back negative, yes, there may be an incubation period, but the chances of that happening.... First of all, the chances of you even being infected anyway are so low because it's such a hard thing to transmit. But he recommended that once you know those test results, you stop the treatments. Don't do all 12 weeks. Stop after three or four days. He said it's in your best interests because this cocktail you're taking is itself very invasive to your body.

Once you know the results, isn't it true, given all that I've said here and the law of probability, that it's a huge advantage to know? That's why the doctors want to know in the hospital. I could read through the lists. This is a list of all the hospitals that have supported this bill because they say that if they could know, it's a huge advantage. It's not iron-clad, but it's a huge advantage just to know, and we can adjust our treatment accordingly. Isn't it a great advantage to have that information?

The Chair: Thank you, Mr. Strahl.

Dr. Ron St. John: In my opinion, the best information you can have is the nature of the exposure. In our document, which you refer to and which I have, that paragraph begins with “When significant exposure to blood occurs...”. As I explained earlier, a significant exposure means there has actually been contact with infected blood and a way to get that infected blood inside your body through a cut, a piercing injury, a splash onto a mucus membrane. That's how you can become infected. In the absence of those conditions, you do not have a significant exposure, in which case you can make a judgment as to what you are going to recommend to the patient in terms of a prophylaxis.

If there is a significant exposure and you can clarify that, you also try to obtain some information about the source of that exposure. Was this perhaps a member of a so-called high-risk group or a person who engages in high-risk behaviours? Sometimes you can tell that, sometimes you can't. Those kinds of additional pieces of information help you make a clinical decision about what to recommend to the affected person.

Once you gather as much information as possible, then you have to look at the prophylactic measure. Is this prophylaxis toxic? What are the downsides? In this case, it's very toxic. Is this proven as an effective prophylactic measure? No, it's not. Unlike the rabies vaccine, unlike the hepatitis vaccine and hepatitis immune globulin, it is not proven as an effective prophylactic measure. It's a very difficult study to conduct, as you can imagine.

You then have to take into account these factors and try to come up with the best recommendation you can. What does a test help you do when you have a couple of hours and you won't get the test results for a couple of days? What does it help you do? Does it really help you stop the treatment when there has been a significant exposure? I'm not sure. I would have to think about that long and hard with the patient before I would recommend stopping it.

Once you think you have enough reason to go down this road, before you go down this road with an unproven therapy that's highly toxic, you'd better have a pretty good reason for why you're doing it. It would take an equally good reason to stop it once you head down that road. I'm not sure that the test results are going to help you do that.

The Chair: Thank you very much.

Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have two very practical questions.

Am I right to understand that under the provisions of Bill C-244, if I am a criminal or I'm suspected of having committed a crime, my privacy will be better protected than if I merely am a victim of an accident somewhere? I'm talking about the intrusion of taking some bodily substance from me to do a test.

• 1100

When someone commits the offence of impaired driving, there is a process that guarantees some protection of privacy. Am I right to understand that if there was some sort of automatic test that could be done according to the process provided for in the bill, it would be easier, in such a case, to obtain a sample from the victim than it would be to obtain a sample from someone who's suspected of having committed a crime?

Mr. Yvan Roy: I'm not at all certain that you could say that the process provided for in Bill C-244 offers less protection than for another intrusive procedure of the same kind. Let's take the example of DNA. You need a warrant issued by a provincial court judge on the basis of reasonable grounds, if my memory serves me right, and the test can only be used for identification purposes, which is also provided for in this bill; that is to say that analysis can only be used to determine whether the person involved is suffering from a disease.

I'm not sure that I would go as far as saying that the privacy of an accused person is better protected than that of a victim, Mr. Saada.

Mr. Jacques Saada: Even though reasonable grounds are much more difficult to establish in such a case than in the case of a criminal offence?

Mr. Yvan Roy: In the case of a criminal offence, you must establish the link between the evidence obtained in such a manner and the offence that is purported to have been committed. In this bill, there is no such provision. In this sense, I share your point of view. If that is your point, I agree with you.

Mr. Jacques Saada: My other question is strictly statistical. I believe it was Dr. St. John who alluded to the fact that the percentage of the general population that suffers from hepatitis B is 0.5%. For hepatitis C, it is 0.8% and for HIV, it is 0.15%. All right?

The chances that a person falling into one of these categories finds himself or herself in a situation where, for example, he or she is being helped by a good Samaritan are such that the sample is infinitely smaller that the total number of people that are infected in the general public. The chances that, in the above- mentioned circumstances, there be the possibility of transmitting a disease are such that the sample is yet even smaller. Agree? So, if you pursue that line of reasoning all the way through, how many people could we help with a bill of this kind? Concretely speaking?

[English]

Dr. Ron St. John: In the absence of data, all I can say is a very small number, in my opinion. You are correct in saying you look at the probabilities. These are probabilities. The amount of disease is an average probability—that eight per thousand people have hepatitis C, and your probabilities of running across one of those persons who is an injured victim, and then the probability that you had, during that assistance, a significant exposure, and then the probability that during that significant exposure the organism was actually transferred into your body and an infection was established. All those probabilities are multiplicative. When you get down to the actual probability of acquiring HBV or HCV through this means, it is very, very small.

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

Mr. Ménard.

[Translation]

An hon. member: Mr. Roy wanted to say something.

The Chair: Yes.

[English]

Mr. Roy. I'm sure Monsieur Ménard will allow his idol to speak.

Mr. Yvan Roy: Thank you, Mr. Chairman.

I thought Dr. St. John said that with respect to hepatitis C, there is nothing, no vaccine that can be used, so that would also suggest there is really not much that can be obtained by testing someone for the purpose of finding out whether they have hepatitis C, because there is nothing we can do to prevent that from happening. Presumably that means that only with respect to hepatitis B and HIV, there is something that could be done in order to stop the progression of the illness.

• 1105

[Translation]

The Chair: Mr. Ménard.

Mr. Réal Ménard: I have two brief questions. I'm trying to imagine a situation where a bill such as the one that is proposed could be useful. The fact that a small number of people are involved does not in my view constitute a reason not to put a legislation to a vote. I'm trying to imagine a typical case.

Let's take the example of a police officer of a large city of Canada who is on duty in a neighbourhood that is rife with prostitution and who is trying to make an arrest. Suppose the arrested person bites the police officer during the altercation and that there are reasons to believe that the person is infected and has transmitted the infection to the police officer. Such a situation arising during a police operation is plausible. It is an example that we could take under consideration as legislators. Do you agree on that?

My second question is of a legal nature. Under the Canadian Charter of Rights and Freedoms, what kind of legal challenge can we expect and under what section?

Let's start with the blood and end up with the common sense.

[English]

Dr. Ron St. John: I can address the part about the policeman in a high-risk area who has been bitten. The way I would analyse that is to say that in being bitten there was a significant exposure. The skin was broken and a body fluid, saliva, was injected into the bite.

The second part of the analysis would deal with the person doing the biting and understanding that maybe this is a person who by definition, by their behaviours—they inject drugs, they are a commercial sex worker, etc.—they are at high risk of being infected. So you change the equation. You've made the prevalence of disease much higher than in the general population and you had a significant injury.

At that point, I think there's enough evidence to recommend that the person would start prophylaxis with these particular medications. Again, I don't need the testing to tell me that.

Mr. David Hoe: I'll be very quick.

I take your question, Mr. Ménard—the urgency of somebody who may have been infected. I think there is some responsibility here on provinces and territories. In the case of emergency personnel, there are policies for emergency personnel to get counselling and to get access to prophylaxis should it be needed. I'm not sure an instrument of law is in fact the quickest way to assist that person.

[Translation]

Mr. Yvan Roy: Mr. Ménard, regarding sections of the Canadian Charter of Rights and Freedoms that could be relied upon to challenge a bill such as this, the two sections that come to mind are sections 7 and 8. According to section 7, everyone has the right to security of the person and the right not to be deprived of that security except in accordance with the principles of fundamental justice. Section 8 deals with the right to be secure against unreasonable search or seizure, which has been established by the Supreme Court as an essential part of the right to privacy.

As Mr. Sankoff indicated, the Supreme Court and Canadian courts in general have recognized a very high expectation of privacy when dealing with the integrity of the human body. Obviously, expectations can vary according to the specific situation, but the home has always benefited from such protection and it seems that jurisprudence is evolving toward giving the human body even greater protection. So if you infringe upon that expectation of privacy, that security against unreasonable search or seizure, you must have a justification that is up to the same standard, which explains why it is difficult to proceed to such a search and seizure when the benefits are somewhat uncertain or do not counterbalance the intrusion.

[English]

The Chair: Thank you, Mr. Ménard.

Mr. Strahl.

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Mr. Chuck Strahl: I have just a couple of things.

I have letters of support for this bill from both the Union of Solicitor General Employees and the Canadian Police Association, and both of them make the argument that, I suppose like a doctor in an emergency room setting, they are exposed to a far, far higher risk of exposure—I don't know about infection, but certainly of exposure—than your average citizen. This relates to what was mentioned earlier when you asked why we should select certain people out and not just include the whole general population.

It does seem to me that what we're going to be dealing with in the end of this is this idea of probability. It's a case of we can't say we've got 33 million people and let's get everybody to go down for a test today. There are just no numbers in there, no average that would say that's reasonable. But it does seem to me that where the Canadian Police Association and the Union of Solicitor General Employees are coming from is they say part of their job is working for the federal government often to enforce federal statutes that put them in a situation where they are exposed in a high-risk situation, including puncture wounds, perhaps biting, bodily fluids, in a serious way with a high-risk population routinely. What these people are asking for is some protection or some help to know when to get treatment, and to what extent.

I don't think anybody disputes the idea that often there will be treatment anyway, and it's often a matter of personal choice with these folks whether they're going to continue with it for 12 weeks or whatever they might do. Obviously prevention and education are a key part of it as well.

But in some limited cases they just say “I'm a policeman on the Vancouver east side, and the infection rate in the population I deal with is sky-high compared to the general population—that's my beef. So when I go pat that guy down and I get a needle puncture wound, even though I've tried and taken all the precautions, done all I can, I realize I'm dealing with an intravenous drug user in a part of B.C. that has the highest infection rate of anywhere in Canada. I just want to know, and it will help me make decisions on my health, because what I'm trying to do is enforce the law, protect society and enforce federal statutes, make life safe and provide a service to all Canadians.”

It does seem to me they are a group that needs to be selected out. I've only identified some groups. I guess the list could be bigger or smaller. But there's a genuine attempt to offer some degree of security to those people that are in that high-risk group.

If they have the type of intrusion we're talking about, isn't it true that those police offcers face at least as high a probability of contracting a disease from that type of an activity as somebody who works in a hospital generally? Wouldn't the police officer working in the downtown east side understandably be pretty concerned about it?

Mr. David Hoe: Absolutely. The prevalence of HIV infection for sure in downtown east side Vancouver is higher. We know that because of the degree of injection drug use there.

Can the police officer or the emergency personnel be better informed in terms of whether they are likely to have been infected, and is there a way to do that? That is the intent of your question, as I hear it. With the evidence we have at this particular time, I think the best way to do that is to sit down with that person and acknowledge the prevalence, the amount of HIV or other diseases that may be there. Say the likelihood is more than if you were walking on a country lane and ask that person if they are willing, given all of the variables, to undergo a series of treatment that may be necessary for any of those diseases.

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I think the most accurate decision following that would be whether you were also willing to be tested, so you could have confirmation one way or the other. If the weight of information on testing somebody else were sufficient to be able to assist that emergency personnel in making a decision, then there would be a different discussion. But in order to get the best possible help to that person at that time, it requires them to be informed of the assessment of the amount of disease that may there, and what treatment options or interventions are most available to help that person in that situation.

The Chair: Thank you very much.

Ms. Bennett.

Ms. Carolyn Bennett: Just following Mr. Strahl's point—maybe the legal side will have to answer this—if in that situation we did that for the policeman, what would be the rights of the orderly who restrained this person, or the medical personnel, who actually wouldn't end up with those rights if this rather narrow piece of legislation were passed...or the concerned citizen, who also chased a suspect and ended up in the same situation?

Mr. Yvan Roy: I certainly take Mr. Strahl's point that what he's trying to do with the legislation is bring some proportionality. These people are in the situation where it may happen more to them, therefore they should be “protected”. I'm not sure if there is another charter angle to this—for instance, the issue of discrimination under section 15. I do not think this is engaged here. Perhaps Peter would disagree with me, but I think we're in agreement on this.

Mr. Peter Sankoff: From my perspective, not extending the bill is strictly a policy question—which ones you want to go and which you don't. I express no opinion one way or the other about who's included or not. I certainly see your point that some people will be able to benefit and some won't. That's a question you have to consider from a policy perspective, but I don't see that, per se, as engaging any charter issues.

The Chair: Thank you very much.

Are there any other questions?

Mr. Chuck Strahl: It keeps coming back to the fact that a significant number of hospitals, paramedic associations, firefighters' associations, police associations, solicitor general associations are all saying they want this bill because they feel it gives them a significant amount of information they will find useful.

A significant number of medical experts also say you can never know 100% because of that incubation period. But on the law of probability, if a test comes back from a blood sample, given the fact you're a very low risk anyway, and the type of intrusion has to be of a certain magnitude to give you the likelihood of infection, and the negative test as well, the doctor may recommend a different course of treatment, based on all those factors.

It's all a matter of degree. It's a matter of, “I got blood splashed on my hand, but what's the difference? My skin protects me”, as opposed to somebody who says “I had badly chapped hands with open wounds, and I had serious prolonged exposure for an hour, while I was holding somebody's carotid artery”. It's a different degree of exposure.

It's not the be-all and end-all; it's just a very useful piece of information to have to help a doctor and a patient, collectively, come together with the type of treatment they're going to go through. I say that because of the case of the kid in my riding who spawned this bill. He's 17 years old and went through the full 12-week course. He still doesn't know whether the person whose blood he was exposed to had HIV or not. But there was no comfort—and not just comfort; it affected his treatment, because he just said “Well, I have to do what I have to do because I have no other information. I just have to take a guess.” But if you knew that information—and there's only a one-in-a-million chance that information is wrong—it would be a hugely beneficial piece of information to have.

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That's why doctors say “I'd like to know that, and then I might still go ahead with the treatment”. But boy, what a difference for those who say “All my factors put in place—the type of wound, type of injection or contamination, the length of the exposure, my doctor's advice, and the negative test—will collectively make a difference in what kind of treatment I go through and everything else, such as intimacy in my relationships with my spouse and my family”.

I know we were just talking about anxiety here, but I'd say it's like mental health, not just anxiety. These people go through the trauma every HIV patient must go through as well. There are the initial “what if I have it” questions. “Should I be intimate with my spouse?” All those questions come through, and a lot of them can be allayed by a blood test—not entirely, but it helps. I don't know if that's our question.

That's anecdotally what I've heard from hundreds of people who've got hold of me and said “If I'd only known, it would have affected the treatment I put myself through”. Whether they're right or not—it would have.

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

Does anyone wish to respond? If not, I would thank the witnesses very much for their being here today.

I would ask the members of the committee to hang on just for one second, as they leave the table. I want to bring members of the committee up to date in terms of what work is before us for the balance of this week. We'll be dealing with this bill again tomorrow afternoon, as you know. Then the subcommittee on organized crime will be once again meeting on Thursday afternoon.

For everyone's summer reading and so on, we have right now before us on this committee Bill C-3, which was referred to us in November 1999. We have Bill C-244, which is before us now. We have Bill C-223, which we heard the first witness on; that's the Witness Protection Program Act, in terms of Jay Hill's private member's bill. We have in the House at first reading Bill C-17, which is the cruelty to animals legislation. We have Bill C-36, which is criminal harassment and home invasion.

We have two reviews we could undertake, simply because we're not very busy. There's the statutory review of mental disorder provisions in the Criminal Code—we all remember that being brought back to our attention from time to time—and the conditional sentences provisions of the Criminal Code, in addition to what I'm sure is going to be a very busy effort with regard to organized crime.

I only put this out to let everyone know what we'll be doing when we get back here.

An hon. member: Just to wreck our summer.

The Chair: Yes. In any case, we'll see everybody tomorrow afternoon.

The meeting is adjourned.