Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 10 - Evidence - November 18, 2009
OTTAWA, Wednesday, November 18, 2009
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-6, An Act respecting the safety of consumer products, met this day at 4:01 p.m. to give consideration to the bill.
[English]
Keli Hogan, Clerk of the Committee: Honourable senators, as clerk of this committee, I must inform you of the unavoidable absence of the chair. Pursuant to the Rules of the Senate, I will now preside over the election of an acting chair for this meeting. I am now prepared to receive a motion to that effect.
Senator Callbeck: I move that Senator Pépin be nominated at acting chair.
Ms. Hogan: It was moved by the Honourable Senator Callbeck that the Honourable Senator Pépin be elected as acting chair for this meeting. Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. Hogan: The motion is carried. I invite Senator Pépin to take the chair.
Senator Lucie Pépin (Acting Chair) in the chair.
[Translation]
The Acting Chair: I would like to welcome you to this meeting of the Standing Senate Committee on Social Affairs, Science and Technology. I am Senator Pépin and I will be chairing the meeting this afternoon for our colleague Senator Eggleton who could not be here. We continue our study of Bill C-6, An Act respecting the safety of consumer products.
Today we welcome Ms. Chantal Bernier, Assistant Privacy Commissioner. Accompanying Ms. Bernier is Ms. Melanie Millar Chapman, Senior Policy and Research Analyst. Welcome to the Senate. You have the floor, Ms. Bernier.
Chantal Bernier, Assistant Privacy Commissioner, Office of the Privacy Commissioner of Canada: Thank you for inviting me to speak to you today. I want to thank you for your interest in privacy protection. We are making some clear progress on this front and we are happy to see that you hold to the principle whereby privacy is truly the cornerstone of democracy and a fundamental value of all Canadians.
I want to begin by saying that we commend the objective pursued with Bill C-6. The legislation's goal to protect the public by mitigating the health and safety risk of certain products is critically important. We support the privacy protection provisions included in the bill.
[English]
As you know, I set out our position on the privacy implications of Bill C-6 in my letter to the committee of October 26. We understand that the issue raising concern for some of you is the definition of "government'' in this bill, specifically with regard to clause 15 on the issue of disclosure of personal information by the minister. We believe that concerns about clause 15 are addressed by the undertakings that Health Canada has made.
While I agree that the definition of "government'' can be broad, the policy and procedural safeguards that Health Canada has articulated appear to be adequate. In my letter to Health Canada, I quoted what I believe to be the most relevant parts of the department's answer to us on this issue of disclosure of personal information. However, I would like now to provide you some details in this regard.
Health Canada explained to us that Bill C-6 will lead to only minimal collection of personal information and that it would be a rare occurrence when that information would be disclosed. Moreover, the disclosure will occur only when absolutely necessary for the protection of human health and safety. The department further explained that while the bill does not include a regulation making authority for the minister to obtain written assurances on the confidentiality of the information provided under clause 15, the operating principle will be never to disclose personal information unless, as I said, it is critical to the protection of human health and safety. As well, the department stated that it will continue to have confidentiality agreements in place before disclosing personal information. It also said it will require that personal information disclosed under clause 15 be used only to identify or address serious danger to human safety and health.
[Translation]
Moreover, we asked Health Canada officials how they intended to maintain clear records of all personal information that could be disclosed, so that our office could monitor that information and determine whether disclosure was justified. The department informed us that personal information would be disclosed by officials with the Product Safety Program on the advice and with the consent of Health Canada's Access to Information and Privacy Coordinator. The latter exercises the powers and duties of the Minister of Health pursuant to the Privacy Act.
[English]
We were satisfied with this response. We also put on the record that we want all outstanding issues to be explained further through a privacy impact assessment process following the adoption of Bill C-6. "Outstanding issues'' mean any issue that could arise in the context of the implementation of Bill C-6. "Privacy impact assessment,'' PIA, means a tool that departments use when they implement a new program or a revised program to ensure that the progam goes under the privacy microscope. We review PIAs and may provide commentary. PIAs are proving to be a useful tool to assess the privacy implications of new government initiatives.
In conclusion, the Office of the Privacy Commissioner of Canada has no concern with Bill C-6; has appreciated Health Canada's cooperation in addressing possible privacy concerns; and intends to continue to work with Health Canada in the implementation of Bill C-6.
I hope these remarks help explain our involvement with this bill to this date. I will be pleased to take your questions.
Senator Callbeck: Thank you for appearing today and for your presentation. We are all concerned about making products safe for consumers.
I have a copy of a letter, Ms. Bernier, that you have signed. I think we all have copies. It was sent to the director general of the policy and planning directorate in Health Canada.
I want to ask you about a couple of things. The information you provided to us addresses all the questions about the regime contemplated under Bill C-6. You address in this letter the issues that can be discussed through the privacy impact assessment. Are these issues the only ones you have concerns about?
Ms. Bernier: They are the issues we want to see addressed in a privacy impact assessment, PIA. At the time I sent this letter, we had looked at the bill and were satisfied that the handling of personal information was properly protected. Therefore, to be totally comprehensive, thorough and dutiful, we put to Health Canada what issues could come up and what we may then want to see addressed in a PIA as we move further in the implementation of the bill. As you can see, those issues are issues of implementation. They are practical and technical, so they will arise usually in the implementation of a program.
Senator Callbeck: You are satisfied with the bill then. The only issues you are concerned about are the ones you address in this letter?
Ms. Bernier: I will nuance that response by saying we are not concerned. We put the issues to Health Canada for them to have on their radar screen, so to speak, that they are issues, for example, should Health Canada choose to speak to the issue of radio-frequency identification, RFID, chips. We do not know if that situation will arise, but in our thoroughness, we put to Health Canada that, should RFID chips be used, we want that issue to be addressed in a PIA.
Senator Callbeck: You mentioned the PIA, and you say that departments use this tool when legislation is introduced or revised. Is a PIA generally undertaken before the legislation is passed or after?
Ms. Bernier: A PIA can be undertaken for the introduction or revision of any program. It is not necessarily tied to legislation. We could have a program that is not based in any new piece of legislation but is simply a new program. If it has implications for privacy, the department will prepare a privacy impact assessment, which they submit to us, and we look at whether, indeed, the program contains all the necessary safeguards for privacy. In fact, a PIA is usually conducted at an implementation stage.
Senator Callbeck: It is usually undertaken after the legislation is passed?
Ms. Bernier: Indeed; we usually look at the legislation through a different lens, ensuring all the principles are respectful of privacy laws in Canada, and the PIA is more of an operational tool.
Senator Callbeck: Referring to that same section, you say that provisions under the relevant private sector privacy legislation would normally apply. You want personal information to be depersonalized. What normally applies now? Can you give me an example of what you want to see?
Ms. Bernier: What are you referring to?
Senator Callbeck: I am referring to page 2 of your letter, the second paragraph.
Ms. Bernier: You are asking what the provisions of consumer protection are now; whether the information is disclosed, depersonalized or not at the moment? Is that your question?
Senator Callbeck: Yes, give us an example. That is what you are saying. In other words, what is it now and what do you want to see?
Ms. Bernier: We want to see what is described in that paragraph, but I will turn to our senior analyst, Ms. Millar- Chapman, to describe to us what we can say about the legislation and how the system functions now.
Melanie Millar-Chapman, Senior Policy and Research Analyst, Office of the Privacy Commissioner of Canada: The private sector privacy legislation applies to personal information held by the retailer. Ultimately, with good privacy practices, rather than having personal information disclosed, we would like the identified — if possible — information disclosed. That was the purpose of those paragraphs.
Senator Callbeck: That issue would be addressed in the PIA?
Ms. Millar-Chapman: Yes.
Senator Segal: Thank you very much for coming to help us through this subject. On the issue of depersonalization, and ensuring that practice is pursued before documents are released, are you comfortable that can happen without a specific statutory amendment in the act or a specific regulation that implies and explicitly underlines, in fact, the requirement for that depersonalization?
Ms. Bernier: Our discussions with Health Canada, yes, satisfy us in that regard. We understood from them that they do not need personal information in the sense that, for the purpose of this bill, it would be extremely rare where they would need to attach an identity to an occurrence. For the purposes of the bill, we understand that Health Canada will need to know about incidents; they may need to know about trends so they can ensure consumer safety. However, they do not necessarily need to know the name of a person who, say, has been harmed by a product. In other words, we understand that the risk to privacy is low because the need for disclosure of personal information is low.
Senator Segal: I assume when you say you trust Health Canada you do that based not only on your discussions with them but on your experience with Health Canada as a protector of privacy in the past; is that fair?
Ms. Bernier: We address each case on its own merit and apply what we refer to as the four-part test. We look at each situation, each question put to us either through a bill or through a privacy impact assessment in addressing the necessity of the personal information that may be collected, used or disclosed; whether the used disclosure collection is proportionate to that need; whether it is effective in relation to that need; and whether there is an alternative to be used. We apply that test to each question put to us.
In this case, we see that, first, the personal information is collected only on a totally exceptional basis. Second, if it is so collected and disclosed, it is because of absolute necessity — I think we all agree that human health is an imperative — that it is linked strictly to the specific need, therefore proportionate, and that it is effective to ensure public safety. Therefore, we are satisfied that the balance is right in relation to the possibility of gathering and disclosing personal information and the need to ensure public safety, human safety.
Senator Segal: So that I am clear, the expression of trust is contextual to the specific bill, the specific mission, your interaction with Health Canada officials around your legitimate privacy concerns and how they have been addressed? It is not particularly either a negative or positive reflection on any prior relationship with Health Canada that you have had in your legitimate role as assistant privacy commissioner. It is about the specifics of this debate as we now engage it. Is that right?
Ms. Bernier: That is the approach we adopt. Still, I must say that we have always enjoyed good relationships with Health Canada.
Senator Segal: What would you have us say to the small businesses we have heard from and some of the proprietary companies that have said they are desperately in support of tougher regulations and they very much want to ensure safety for all their products and they are glad to cooperate in every way, shape or form but the notion that their commercial information might be disclosed willy-nilly by inspectors or the threat of disclosure might be used in some other kind of negotiation strikes them as what some legal people would call oppressive activity by government?
I am sure that is not the intent of the legislation or the distinguished public servants who worked on it, but sometimes oppressive circumstances emerge from a specific context where the negotiations are not going as well as the public servant or business person might want. How do we protect the innocent and their privacy rights, in your judgment, in this kind of context?
Ms. Bernier: We have looked at the protection of personal information, not commercial information. That is the strict angle that we have.
Senator Segal: The commercial information issue, whatever it may be, is not something you have addressed formally.
Ms. Bernier: Indeed, that issue is not within our mandate.
Senator Segal: Thank you very much.
Senator Martin: Thank you very much for your opening statement. I thought it was reassuring for all of us around the table to hear you speak about the trust and confidence that you have in Health Canada, the department and its officials. You said you now have no concerns as they have been addressed in your conversations and consultations.
As an educator, I want to ask you about the privacy impact assessment, the importance of authentic assessment and whether it will catch unforeseen issues or problems that may remain even after the bill is passed.
What does the assessment process intend to do and what should it do in its implementation?
Ms. Bernier: First, I want to thank you for giving me the opportunity to speak about the privacy impact assessments because they are a little known tool that proves to be extremely useful.
We hear about our audits, and we hear about our investigations. Our privacy impact assessments receive less publicity, and yet they have tremendous value in truly intervening right at the beginning of a process to ensure that privacy safeguards are in place.
Let me now explain a little bit of the process. Treasury Board Secretariat policy states that when a department envisages a program or an initiative that has significant implications for privacy, they have to conduct a privacy impact assessment. That privacy impact assessment corresponds to a template whereby the department substantiates how it will protect privacy in relation to the various aspects under which it can become at risk.
The department submits this assessment to us, and we review the assessment to ensure that, indeed, the department has considered every possible issue and that it has developed safeguards for every possible issue. We engage in a dialogue with the concerned department, we send back our comments to the department and the department may review their privacy impact assessment or redo it until we are satisfied that the department has produced an authentic, quality, fulsome impact assessment.
We do not, through a privacy impact assessment, approve or disapprove of an initiative. We comment on the assessment of the privacy implications. A department can proceed, in fact, in spite of negative comments from us, but the experience of the Office of the Privacy Commissioner is that departments take our recommendations into account and implement measures that have impact on privacy in accordance with our recommendations for safeguards.
Senator Martin: You have answered the other questions I had intended to ask, namely, whether a template exists and whether it is a consultative process. There is not a pass or fail in this assessment tool, but your recommendations are then considered.
Ms. Bernier: Yes, and I am happy to say that recommendations are usually implemented.
Senator Martin: Thank you; it was clearly explained.
Senator Banks: I am thrilled to know that, at the moment, we are able to rely upon the assurances of government officials — not yourselves — that it is okay, trust us. The reason I am particularly thrilled about that is because in the two previous governments, under which I have had the pleasure of serving, it has not always been the case. We have sometimes found in the past that when we relied upon those assurances of "trust us, it will be okay, even though it says this in the act, we will not go there, except in certain circumstances,'' we have not always been able to rely on those assurances. I am sure you are familiar with some of the instances to which I refer.
I will talk about clause 15 of this act, but first, clause 16 relates to the disclosure of confidential business information, which you said is not within your bailiwick. However, clause 16 says when that information is disclosed, which it may be without the permission of the owner of that information, it will be disclosed only provided there is a written agreement that the information will remain confidential in the person, persons or governments to whom it is disclosed and used only for those specific purposes relating to protection of human health and the like.
However, there is no such condition in clause 15, which relates to personal information, about which you are directly concerned and which is within your bailiwick. Do you not think it would be a good idea to ensure that when personal information is disclosed without the consent of the person whose information it is, for all good purposes that we know, that there should also be an undertaking that it will be used for the specific purpose of protecting health and that it will be subject to an agreement in writing of confidentiality, as is the case, for example, with commercial information?
That provision would give me some comfort, which I do not presently have, with respect to the disclosure of personal information.
I may have misunderstood your implication, but I think you said something that led me to believe that you thought the personal information that would be disclosed would relate to a person who might have been an unfortunate recipient of an unfortunate event, someone who has been harmed in this way. It also talks about the disclosure of personal information of persons who may have caused the harm, however inadvertently they may have caused it. The concern is on both those sides. Would it not be good to have that kind of provision in clause 15?
Ms. Bernier: We have indeed raised that question in our study of the bill. I have touched upon it in my opening statement with respect to the power of the minister. There is no provision there to have the power of the minister to obtain written assurances.
However, the response we have received from Health Canada is that it will continue to apply existing best practices of disclosure. As I said earlier, the reason we are satisfied with that response — and this point goes back to our four- part test where we assess proportionality — is that we approached this bill with the knowledge that there is a low risk of disclosure of personal information, and that occurrence would be rare and strictly limited to critical need. We are satisfied about that risk.
As you will recall from my opening statement, we are engaged in an ongoing dialogue with Health Canada, so should the PIA raise issues in that regard, we will want to see what measures will be implemented to ensure protection of privacy in that regard.
Senator Banks: You are concerned with a privacy impact assessment that will find out after the fact what might have happened. We have to be concerned with trying to find out before the fact what might happen and take into account unintended consequences down the line.
To be flip, murder is also a rare occurrence, but there is a law against it. However rare the occurrence might be in which personal information might be disclosed, my argument is that it ought to be protected by the same kind of confidentiality undertaking that is in place in the case of disclosing business information. I think the rigour should be no less for personal information than it is for business information.
Would such a provision give you additional comfort? You have received an assurance.
Ms. Bernier: Exactly; we are confident that the way the issue is framed, presented and treated in the bill provides the safeguards in relation to the risk that exists. Clearly, we do not consider the work is finished for the reasons you have stated. Personal information is of critical importance. The violation of privacy, as we know, can have dire consequences. That is why we intend to continue this work with Health Canada.
However, at this point, we feel the bill contains the safeguards required for this context regarding the possibility of disclosure and for the reasons for disclosure.
Senator Banks: Thank you. I do not.
Your assurance on page 3 of your letter to Health Canada says that you are "comforted to learn that this practice will continue under the proposed legislation to the extent possible.'' I would rather close the gate firmly rather than chase things that get out.
In the case of conducting a privacy impact assessment after the law has been passed and is functioning, when you find out — if you were to find out — that we ought to have closed the gate, what will you do?
Ms. Bernier: The implementation of the bill leaves ample room to ensure that policies, directives and procedures are put in place to protect personal information that could be used, collected and disclosed.
Senator Banks: Would it not be better to protect personal information in the legislation than in policy?
Ms. Bernier: Depending on the level of risk, we would ask for a tighter piece of legislation based on its impact on privacy.
For example, we will appear soon at, and have already written to the chair of, the House of Commons Standing Committee on Public Safety and National Security regarding Bill C-46 and Bill C-47 where we are taking a much harder position. Why: It is because those bills rest upon access to personal information. It is central in those bills. The risk is high, so we ask for proportionate protections.
We felt in Bill C-6 that the risk is low with a low need for personal information, and the safeguards provided in the bill are adequate.
Senator Banks: I do not understand that approach. If 600 people will be hurt through legislation, it is important that the protection is there, but if 47 people will be hurt, do not bother. I am not putting words in your mouth, but I do not get it.
Ms. Bernier: Perhaps, I misspoke. We understand from reading this bill that it will have rather low implications for privacy because it will require rarely, if ever, personal information. In other words, to protect consumer safety, et cetera, there will be a low need for personal information. Health Canada may need information on the incident or product, but the identity of the person harmed may never be required. It may never be relevant.
Senator Mitchell: I am interested in pursuing that matter further. When would it be necessary to release personal information? You say it is rare, but can you give me a case when it could happen?
Ms. Bernier: Health Canada officials would be much better placed to explain that situation because they are the experts in the safety and health issues involved. Our understanding is that, indeed, it usually would not be relevant. Is it little boy X who has been hurt by the toy truck?
Senator Mitchell: That is not contagious.
Ms. Bernier: Precisely.
Frankly, we are not the experts on the policy behind the bill. We are the experts on privacy safeguards. We understand that the instances where personal information would need to be disclosed or even gathered would be rare, if ever.
Senator Mitchell: On the other side, I will go against the flow. What are the provisions that protect privacy of a company where the government can release information, but it needs to have the agreement of the company? What if the company does not give their agreement and there is a reason to release the information?
Ms. Bernier: The Privacy Act applies only to the personal information of individuals. It does not apply to commercial entities.
Senator Mitchell: You must have reviewed that provision when you were reviewing this act. It is a provision in this act.
Ms. Bernier: However, we do not look at implications for commercial information. We look only at implications for individuals.
Senator Mitchell: Does anyone look at implications for commercial information?
Ms. Bernier: It is not us. Health Canada has held their consultations with the departments that have an interest. I suppose Health Canada officials can tell you. It is not within our mandate.
Senator Callbeck: The questions that Senator Banks asked have answered my questions.
Senator Segal: We have heard at this committee prior to your testimony today that, to be fair to Health Canada, there is a detailed regulatory consultative process after the bill is passed before regulations are drafted. In response to questions about how they will manage in the interim after the law is passed but before regulations have been put in place, they answered that there are a series of policy directives and guidelines to govern their activity in the process. Several groups that have appeared before the committee have had some back and forth with Health Canada, but by virtue of confidentiality are unable to disclose the content of those policy directives.
In examining how the bill will operate from your perspective as a Privacy Commissioner, did you have a chance to look at the policies and directives that will govern the way the bill operates before the regulations are in place? Are you comfortable that your concerns about privacy are also directed by those internal policy directives and working papers to which this committee does not have access?
Ms. Bernier: No; that is what we are waiting for though. We indicated in our letter to them that we expect a privacy impact assessment to address exactly the issues you raise.
Senator Segal: Regarding privacy impact assessments, which is an area where you have expertise to help us, my experience in a prior life in different administrations is that these documents are complex and not easily filled out. You have to know your way around the forest to sort through them.
Are you comfortable that they can in their nature be constructive in helping you come to your assessment and that the people you ask to participate in the process have sufficient expertise? For example, has the ABC Toy Company or the Toy Manufacturers of Canada had a chance to look at a privacy impact assessment so they can give you their concerns about it, or is that outside the purview of what your office normally does?
Ms. Bernier: It is outside the purview of our office because we review the privacy impact assessment that has been prepared by the department. You are right to say the documents are complex but that is why we have experts. We have people who review privacy impact assessments as their full-time job.
I agree with you. When I read the first privacy impact assessment reviews, I was daunted by their complexity, but at the same time, I have been encouraged by the level of sophistication of our office in addressing every single aspect in various areas. Health is one, security is another and revenue tax regulation is another, and, each time, we are able to delve into the substance behind the PIA and raise all the issues. If, indeed, the PIA is inadequate — sometimes it happens — we send it back until it is brought up to the level where it should be.
Senator Segal: One often reflects on the great consultant dynamic: someone asks a consultant, "What time is it,'' and the response is, "What time would you like it to be?'' Is there a risk that in the back and forth interaction with Health Canada officials, or any department's officials, that they will, over time, since they know where the PIA wants them to be, end up there in terms of saying what you need to hear to be satisfied, but that may or may not have any compelling effect upon departmental practice, operating procedures or the way rights are respected. I assume, for example, that in the superb work of your office on FINTRAC, there were at some point respectable PIAs in place ab initio when that program started in the protection of our security, and you have now found through good solid investigative work on your part that some of those PIAs might not have been observed as much in the practice as they were in theory.
How do you reassure us, as people trying to deal with this legislation, that we do not impose upon small business people, thrift stores, people running sales in small church basements or honest manufacturers an undue implication for their privacy, even though you have worked as hard you have to find as much protection as possible?
Ms. Bernier: You are right. The audit verifies the application of a program, so the value of the PIA is that it intervenes at the conception point of an initiative. The value of an audit is that it intervenes after a few years of implementation and can detect the departure between what was intended and what indeed occurs.
The audit of FINTRAC is an excellent example of unintended consequences of what was initially a good scheme.
Senator Segal: Have you performed other audits with respect to privacy issues in Health Canada over time that are not related to this legislation, and has that audit conveyed to you any impression about the intensity and the level of rigour with which they respect privacy? Has that audit impacted your judgment in this context?
Ms. Bernier: No; as I said earlier, we have looked at this bill through our criteria, namely, the obligations of the Privacy Act, and ensured its compliance with that act.
Senator Raine: I find this discussion fascinating. I have a question about the additional issues you talked about, particularly the RFID. You asked whether Health Canada considered promoting the use of RFID, and I wondered if you can expand on that point a little bit. Do you think Health Canada should promote the use of RFID, or does it have any impacts on personal information?
Ms. Bernier: We do not think that is something they should do. That is a policy issue way beyond our expertise.
We know that RFID chips can have privacy implications. I am new to the whole world of RFID, but let me give the example of pills that can contain an RFID chip to ensure that the patient takes them according to a certain schedule. That is how far technology has come. When we realize the potential of transfer of personal information that is contained in this otherwise helpful technology, any time we speak of RFID chips, we speak of a technology that can contain significant personal information and, therefore, should be managed with the appropriate level of safeguards. That is the only reason we mention it here. It is out of thoroughness and wanting to scope out all the possible issues. I have no idea whether, indeed, it is envisaged in any way. We simply want to mention it to ensure we are completely thorough.
Senator Callbeck: You mentioned, I thought, that this assessment was completed initially right after the legislation was proclaimed, but then you said it was two years later.
Ms. Bernier: Are you speaking of the privacy impact assessment?
Senator Callbeck: Yes.
Ms. Bernier: Or are you speaking about the audits, because they are different?
Senator Callbeck: Explain the difference, then.
Ms. Bernier: The privacy impact assessment is generated by the department itself, so in this case, Health Canada will prepare a privacy impact assessment of the manner in which they intend to apply, enforce and implement this legislation. They will provide us with that assessment. They will address all the possible privacy issues that can arise and tell us how they will protect privacy in relation to all these issues.
We will then review that privacy impact assessment and make comments, either that, yes, we agree that they have addressed everything, or, as is more often the case, we ask whether they have thought about this or that, and how they will reinforce this or that? That privacy impact assessment occurs at the beginning to make sure that a program or initiative is implemented with proper safeguard for privacy right at the start.
The audit is generated by us. We say that we consider that department X handles a lot of personal information, is therefore a high risk and needs to be held accountable for the way it protects privacy. We go into the department with a team of auditors and we assess how the department has implemented the program.
Senator Callbeck: The impact assessment, then, is done at the beginning. It is generated by the department, they consult with you, and if you have any problems with how they want to enforce or implement it, do you have any power?
Ms. Bernier: No, but clearly, we have moral suasion because the experience is that our recommendations are implemented.
Senator Callbeck: That is the assessment, so you have no power there.
What about the audit? You conduct the audit; you go in and find problems. Do you have any power?
Ms. Bernier: Again, we do not a legal power but we have a moral power. If you look at the result of the FINTRAC audit, they accepted all our recommendations. The audit was made public yesterday and their reply publicly was: Yes, we realize these were issues; we accept the recommendations and have started to implement them.
Senator Callbeck: Do you follow up on these recommendations?
Ms. Bernier: We do.
Senator Ogilvie: I believe you clearly answered the question that I will put to you, but I want to be sure.
In my reading of this bill, it is in fact as it says, "An Act respecting the safety of consumer products.'' The emphasis is on the safety of the consumer product. The detailed requirements for reporting on issues relates to the product's side effects; the nature of personal information comes forward largely in the sense of a product that impacts babies, children, adults and some general circumstance, but not the need for the identity of the individual — personal characteristics, et cetera, on a personal identification level.
I believe you said clearly that your role is to deal with that side of things and that, in this particular act, you see your role as dealing largely with the issue of the characteristics of the product, not the personal identity of individuals other than saying that children are affected, et cetera.
Did I read and hear you correctly?
Ms. Bernier: Perfectly.
Senator Banks: The inspectors who are appointed by the minister, do they investigate the children who are hurt by the toys, or do they investigate the persons who gave them the toys?
Ms. Bernier: First, we are not looking into the constitutional construct behind the powers. What we understand in relation to the powers — we have read the bill as you have — is that the inspectors have powers to exercise the inspection that is necessary for the consumer product. What we understand from the provisions in regard to that power is that no personal information will be collected in that regard.
Senator Banks: I understood the senator's question to be, do you understand that the "personal information'' being talked about in the bill is personal information that relates to a person who may have been harmed, whose health may have been harmed or whose public safety may have been harmed, as separate and distinct from, and excluding, the persons who may have brought about that harm? Is that correct?
Ms. Bernier: We need to define the words "personal information.'' What the Privacy Act protects is information that is linked to an identity and individual. What we understand is that through this bill, information will hardly ever be collected that will be linked to an individual because that information will not be necessary to fulfill the objective of this bill.
Senator Mitchell: I am trying to zero in on this issue as well. Yes, I understand that you might not have an example of when they would want to release personal information, but surely in the pursuit of this matter, you would have asked the health department for an example. If they say it will never, or almost never, happen, somehow the parameters of that statement would be defined by the odd example of when it might happen, and that example might give us and you some comfort.
Did you ask that question of them? What did they say?
Ms. Bernier: Absolutely, we asked that question. It is the obvious question. What they said is that what they need to know to ensure consumer safety here is about trends and products, and not about the patient or the victim personally; the name and age. Health Canada does not need identifiers. That will not help them at all.
They may need to know that this product has caused that many incidents from what type of harm, but I understand they do not need to link that information to any identity.
Senator Mitchell: Why do not we prohibit it? Prohibit the release of identity. Why not say they cannot collect that information unless they can give us a reason why they should be able to collect it?
I can imagine a case where, let us say there is a product that somebody, a child, might have eaten, that had an infection — not lead, but an infection — and now the child is contagious. Maybe someone has to know that and we have to know the name of that poor child so that whoever they have been in contact with can be warned. It seems to me that the health department can be more specific about the information it needs. If the department says they do not ever need that power, then we will not give it to the department.
Ms. Bernier: The answer we received from them is that the occurrence would be rare and if it did occur, it would be dictated by an imperative need to protect safety.
Senator Mitchell: What would that need be, and did they give you an example?
Ms. Bernier: I would turn to them on that question because they are the experts. That issue is a policy issue and they are the experts on the policy behind the bill.
Senator Mitchell: It is not inconceivable that they are leaving that door open just in case, which would be a privacy concern to me, and I expect to the Privacy Commission as well.
Ms. Bernier: You are right. It would be a privacy concern if it was not tightly linked to necessity and proportionality.
Senator Mitchell: However, they did not tell you the necessity.
Ms. Bernier: They said they did not envisage the need. Even though we are not experts we can see how identity of a victim may not be necessary at all to implement the bill. However they said that if ever that information was required, it would be strictly because of an imperative need, which meets our test. Our test is that personal information sometimes may be disclosed if, indeed, it is necessary, proportionate and effective, and there is no alternative.
Senator Banks: I have a supplementary question again.
I am confused. Senator Ogilvie asked a question to which the answer might disabuse me of my concern. Senator Ogilvie asked the question and you answered it in such a way as to infer that the personal information that would be collected — and perhaps rarely disseminated in this case — would relate to the victim of something that happened with respect to personal safety or health.
Does that mean that you think that the act does not deal with the potential collection and disclosure of personal information on anyone other than the victim, for example, an individual or a person in a law corporation who may have been responsible — inadvertently or otherwise — for causing that harm? Are you saying that in your view, this bill does not contemplate the collection and dissemination of personal information for anybody other than victims whose personal safety and health have been harmed?
Ms. Bernier: I am saying that this bill does not contemplate the collection or use of disclosure of any personal information, within the meaning of the Privacy Act; namely, information that relates to an identifiable individual.
We understand that information collected under this act would usually not be about individual persons, whoever they are.
Senator Banks: I am sorry to pursue this matter, but I will read into the record for those insomniacs who might be watching this meeting, clause 15 of the bill:
The Minister may disclose personal information —
I presume by those words, the bill means personal information in the meaning of personal information.
— to a person or a government that carries out functions relating to the protection of human health or safety without the consent of the individual to whom the personal information relates if the disclosure is necessary to identify or address a serious danger to human health or safety.
I am not a lawyer, but I can read English. What this clause says is if they disclose personal information they must have collected it.
This bill contemplates the collection and disclosure of personal information. I think that information might include personal information relating to persons other than those who may have been harmed by the intention of the act.
No one questions whether this provision is a good idea. This provision is a good idea. We have to be able to collect this information. It is imperative in the national interest that we be able to collect this information. The question is, what are the circumstances in which we can collect this information and what are the constraints that may be placed upon its collection?
Given the clause I read, do you agree that the bill before us contemplates the collection and possible dissemination of information of persons other than persons whose health and safety may have been harmed? Do you agree with that point?
Ms. Bernier: My answer is yes, because clause 15 does not make that distinction. I understand that this occurrence would be rare, and it would be justified by strict necessity, hence our satisfaction with the provision.
The Acting Chair: We have finished asking our questions.
[Translation]
I want to thank our witnesses for taking part in our discussions on Bill C-6. The information that they have provided will be very useful to us.
Honourable colleagues, we now move on to the second part of today's meeting. I would like to welcome Dr. Victor Goldbloom.
[English]
Dr. Goldbloom is a former professor of pediatric sociology and economics of medicine at McGill University. Dr. Goldbloom has worn many different hats in his life, including that of member of the National Assembly of Quebec, Quebec Minister of the Environment and Quebec Minister of Municipal Affairs, from 1991 until 1999. He was also Canada's Commissioner of Official Languages.
[Translation]
The Acting Chair: Dr. Goldbloom is appearing today in his capacity of Chair of the Advisory Council of the Canadian Institute of Child Health.
Welcome, Dr. Goldbloom. You have the floor.
[English]
Dr. Victor Goldbloom, Chair of the Advisory Council, Canadian Institute of Child Health: Ladies and gentlemen, I am here as a pediatrician and as a long-time member of the Advisory Council of the Canadian Institute of Child Health, and recently designated chairperson of that advisory council. The Canadian Institute of Child Health wanted the opportunity of expressing one concern, and that is the concern for the protection of the health and safety of Canadian children. My presentation will be brief. Allow me at the outset to establish my linguistic credentials.
[Translation]
It would not be appropriate for me to give the same speech twice, but I am prepared to discuss this matter in either of the two official languages.
The Canadian Institute of Child Health was founded in 1977. Its mission is to monitor and analyze the health, safety and well-being of Canadian children. Given that mission, we encourage you to move quickly to adopt this bill without weakening its provisions in any way.
[English]
There may be people who regard this piece of legislation as something radical and unprecedented, as something that weakens the democratic nature of our society and limits liberty within our society. We submit to you that, in the principle of the legislation, there is really nothing that is new. We have had mandatory reporting in various areas for a long time: mandatory reporting of diseases that constitute risks for the public health; mandatory quarantine of premises because of the presence of disease; mandatory immunization against illnesses; mandatory inspections of food; and mandatory verifications of medications before they are allowed onto the market.
To protect the public health, there has to be an effective authority that can intervene. At a point at which we did not know that we would have the opportunity of making an oral presentation, the Canadian Institute of Child Health took the initiative and the liberty of writing to the senators who are members of this committee. The letter stated that when the public health is at issue, the burden of proof is on the person or company who affirms that a product or process is safe.
An additional preoccupation of ours is that a product introduced in Canada today will have a longer impact on the life of today's newborn than on the life of today's adult. There is additional significance to that impact because the impact of that substance on the child's organism will take place during the period of growth in which tissues react differently to elements inflicted on them. The effect on the child's development might not be apparent immediately but might become apparent with the passage of time.
Madame Chair, there is a shortcoming in Canadian legislation with regard to the verification of substances introduced into the market. We do not evaluate adequately the impact of such substances during the prenatal period. There is a particular possibility of something happening to the development of a child in utero, and we do an insufficient job of evaluating the potential impacts.
The number of products introduced each year is considerable. You undoubtedly have such statistics, which I do not have. The provisions proposed by this bill are reasonable and necessary. Undoubtedly, because the nature of these hearings is to examine the practical application of proposed legislation, it might be that people who work in the field would say a particular requirement is stringent and difficult to comply with but that an amendment to that requirement would make the application easier and more effective. That debate seems to be perfectly reasonable. However, the debate about the fundamental nature of the law is one in which we, as the Canadian Institute of Child Health, have no doubt and no hesitation. We urge that this bill go forward.
Senator Banks: I will defer to regular members of the committee because I am a guest.
The Acting Chair: Please, Senator Banks, go ahead.
Senator Banks: Dr. Goldbloom, it is an honour to meet you, sir. We are delighted that you are here. You are well known to Canadians for your valuable work. Everything that you say is true. No one would argue with being assiduous and vigilant when it comes to the health of Canadians, in particular Canadian children.
All kinds of laws contain elements that Canadians do not understand the need for, such as strict liability offences in which the onus is not the usual one that most people think exists in Canadian law. Such things are fine and necessary, as are some of the elements in this bill, for example, the seizure of information and goods improperly tested.
I will ask you about one aspect of this bill. I will use your example of potential in utero problems caused by improperly tested medication that is prescribed by doctors and sold to patients. Let us say that unforeseen unhappy results in utero can be connected to either a procedure, a prescription or a therapy applied by a doctor or a group of doctors. Under this bill, the penalties will run into millions of dollars and many years in jail. The bill proposes to do away with nearly 800 years of common law and the concept of colour of right. A person charged with a violation under this bill does not have a defence by reason of due diligence to prevent the violation or having reasonably and honestly believed in the existence of facts which, if they were true, would exonerate that person. Do you think that legislation is appropriate?
Dr. Goldbloom: The way you put it, senator, I would respond, no.
Senator Banks: The way I put it, pardon me, is in the bill. This bill will be law if we pass it. There are three things we can do in this committee: We can recommend passage of the bill, we can recommend amendments to the bill or we can defeat the bill. I read to you verbatim from the bill.
Dr. Goldbloom: The problem that you put forward has been a major one in the United States of America for many years with lawsuits common and high awards of damages. That phenomenon has been much less so in Canada.
I was a practicing physician and always had the feeling that conscientious responsible action should be its own defence and that unhappy outcomes may lead to the withdrawal of a product from the market, or to a change in recommended policy with regard to medical practice. I have been troubled by the American phenomenon that goes beyond what is reasonable in the assessment of how a physician practices and looks after people.
I will add a significant point with regard to antenatal impacts of medications. We will recall the thalidomide tragedy. We will recall that there was a Canadian public servant who had enough suspicion that this drug was not safe that she intervened, so that it would not be used in Canada the way it was used in other countries. That kind of experience causes us to want to intensify and improve our verification of what might be the antenatal effects before something goes on the market.
Senator Banks: I agree, 100 per cent. To return to my original question, do you agree with the Senate passing the bill into law while knowing that a practicing physician will not have as a defence the aspect of having acted reasonably in the circumstances, which should be a defence in and of itself? That defence is removed in this bill.
Dr. Goldbloom: My honest opinion is that this defence should be a valid defence and should not be taken away from practicing physicians.
Senator Segal: Let me share with Senator Banks a great sense of appreciation for your presence here today. I can admit around this table that I grew up in the province of Quebec. Dr. Goldbloom was not only a minister of the Crown, but the member of the provincial legislature for my area of the city. Having knocked on doors viciously against him for the Union Nationale candidate, I can tell you that it had no impact whatsoever. We never saved our deposit once.
Senator Munson: Then, Senator Segal, I covered him as a newsman.
Senator Segal: His service on so many fronts is a great testimony to the kind of Canadian he is. We are honoured to have him here today.
I will follow up on Senator Banks' question. This bill is not about hazardous products; they are covered elsewhere. It is not about pharmaceuticals; they are covered by another piece of legislation. It is not about the quality of medical practice; that is regulated by the colleges largely under provincial jurisdiction.
The notion of doing away with the kind of defence you indicate is appropriate seems to suggest that we can raise the levels of product safety as they relates to children and others by increasing the powers of bureaucrats in the department. I ask you to reflect upon your time, not in your present role, but as a former minister of the environment and other various departments in Quebec. Is it your view that there is a direct balancing relationship — a constructive equilibrium — between increasing public safety on one hand and increasing the power of bureaucrats on the other?
As I read your brief and other comments made, public safety with respect to products is about education, best practice, parental supervision, and physicians and others informing the regulatory bodies when they have a concern. It is also about competent companies that are honourable and honest in their practice. It may be, on occasion, about increasing bureaucratic powers. It strikes me that the simple notion that increasing powers, ipso facto, would increase consumer safety may be taking a leap that history and available data sets would not justify. What is your perspective on that issue?
Dr. Goldbloom: It is not easy to find the right balance. We cannot accept either extreme — excessive authority on one hand or excessive freedom to act without adequate supervision on the other.
Where in the middle do we place the balance? If the need is felt for this legislation at this time, there is a feeling on the part of the government — particularly by the Minister of Health — that there is not sufficiently firm control. Comparison between what is proposed here and existing legislation indicates that situation to be the case.
When we create power, we create the possibility of abuse of that power. In a reasonable assessment of the power balance, we should proceed on the basis of confidence that the person endowed with the authority will exercise it appropriately, that abuse of power will be an exception, and that there will be mechanisms of protection against the abuse of power. For example, a mechanism of review is in the bill.
I have noted in testimony before this committee — I have not been able to read all the testimony — that there have been expressions of opinion that a single person carrying out the review might not be the best formula. The review ought to be carried out by a small group of people. I can support that view. I think that approach provides additional protection.
I wish I could be more precise in defining where to strike the balance. I recognize your preoccupation with the possibility of excessive authority in the hands of — let me use the expression frankly — non-elected people.
An Hon. Senator: That is us.
Senator Segal: That is a whole other can of worms.
Dr. Goldbloom: In the bill, the minister is charged with a great deal of responsibility. I agree that I would not like to see untrammelled or unchallenged power on the part of administrative people who do not have to reply directly to public opinion.
Senator Segal: In the development of the bill, Health Canada said they consulted with a broad reach of groups. Was the group you represent consulted? Were you given an opportunity to express your views on the technical and other aspects of the statute?
Dr. Goldbloom: Our view was not solicited. We brought it forward spontaneously.
Senator Martin: Dr. Goldbloom, I personally value your opinion and assessment today as a pediatrician and a former legislator, as well as your wealth of experience. The institute you represent has been around since 1977. You have the whole context and authority to speak on this bill and offer your opinion.
In your expert opinion, do you believe that Bill C-6 is necessary at this time?
Dr. Goldbloom: The simple answer is yes. It is our perception that it is necessary. We are persuaded of that by the comparison that is offered between what exists presently and what is proposed by the bill.
Senator Martin: We heard from other witnesses that, in this global climate, other jurisdictions are strengthening their safety regimes. Canada runs the risk of becoming, and perhaps already is, a dumping ground. We have heard that phrase and it alarms me as a consumer, a parent and a Canadian. Do you share the concern that not acting and not passing this bill puts us at greater risk of opening our country to such potential risks?
Dr. Goldbloom: Senator, you are correct. If we act differently from other developed countries, we expose ourselves to either, on one hand, abuse of our laxity in allowing products onto our market and, on the other hand, economic disadvantages if we are more severe than everyone else; investors may look elsewhere.
Again, balance is necessary. Canada is a country that should offer international leadership in prevailing on the international community to adopt collectively best practices and to avoid inappropriate competition because some countries are more stringent than others.
Senator Martin: From the perspective of the institute, because it has been in existence since 1977, what are the gaps that you have identified and how does this bill fill some, if not all, of those gaps?
Dr. Goldbloom: We receive information about the frequency of accidents and the frequency of illnesses. If I may say a word about what the Canadian Institute of Child Health does, we have published three times now, in 1989, 1994 and 2000, a profile of the health of Canadian children. We hope to bring out a fourth edition in the near future. This profile is an assessment of how well we are doing.
I have come from a meeting of the institute. One preoccupation that we have is to look also at provincial legislation in different fields. Our sister organization, the Canadian Paediatric Society, has published a document that assesses how children's health and safety is protected by legislation in the different provinces, knowing that health is primarily a provincial responsibility. These organizations give us opportunities to speak out and to say we can do better.
I have brought with me two things. One is a compendium of the current projects that the institute is undertaking. The other is a kit to encourage handwashing. It is entitled in English, "William, Won't You Wash your Hands?'' and in French, "Vincent, veux-tu te laver les mains?'' These materials may be of interest to you.
We have a sense of mission to survey what is happening to Canadian children over time and how we are improving as time passes in protecting the health and safety of Canadian children.
If I may add one other thing, recently I received through McGill University a document that is an evaluation of the health care systems in six different countries — Canada, the United States, the United Kingdom, Australia, France and Germany.
Canada comes across reasonably well. We are probably not at the top of the list on most items and we are certainly not at the bottom of the list. As I said to my colleagues this afternoon, it reminds me of my grandfather; when I would ask him, "Grandfather, how are you?'' He always had the same response: "Always room for improvement.'' I think that is where we are at.
Senator Ogilvie: Dr. Goldbloom, I followed your comments with great interest and complete agreement, until you introduced one aspect that caught me by surprise in the context of this bill, and that was the issue of prenatal problems. That aspect has led to a number of questions relating to responsibility of physicians and so on, which you responded to entirely appropriately with regard to their responsibility.
Can you help me understand how your comment was intended within the concept of this bill? I will give you those areas that are specifically excluded within this bill and, by the way I interpreted your comment, are areas that your comment included but are excluded by this bill.
These areas are exclusions from this bill as listed in Schedule 1 of the bill: "Drugs within the meaning of section 2 of the Food and Drugs Act''; "Devices within the meaning of section 2 of the Food and Drugs Act;'' "Cosmetics'' and "Food within the meaning of section 2 of the Food and Drugs Act''; and "Pest control products within the meaning to subsection 2(1) of the Pest Control Products Act.''
With these particular exclusions, can you help me understand the products you were referring to with regard to implications in the prenatal child development?
Dr. Goldbloom: My understanding is that those exclusions are covered by other legislation, as Senator Segal pointed out, so this bill does not open a door to bad things happening.
My reference to the assessment of prenatal impact was a general comment. I wanted to put on the record our concern that we evaluate new products, including drugs and other things, for different impacts in the course of life. It is our impression that we do not pay specific attention to the prenatal period. I wanted to make that general point rather than make a specific criticism of this bill.
Senator Ogilvie: Dr. Goldbloom, I understand your concern and I share the general concern that you have expressed. I am concerned, however, with regard to your esteemed testimony before us as a witness here, and the implication of such statements with regard to this bill itself. That is a why I asked you the specific question.
If I heard you correctly, you explained your statement as being a general concern within society, as opposed to items that you have identified that are newly excluded by this bill.
Dr. Goldbloom: That is correct, senator.
Senator Ogilvie: Thank you very much.
The Acting Chair: Dr. Goldbloom, thank you very much.
[Translation]
It has been a pleasure having you here. We will certainly take your presentation under advisement.
[English]
Thank you very much, colleagues. We will meet tomorrow morning.
(The committee adjourned.)