Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 5 - Evidence
OTTAWA, Thursday, December 2, 1999
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred the subject matter of Bill C-6, to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions and by amending the Canada Evidence Act, the Statutory Instruments Act and the Statute Revision Act, met this day at 11:05 a.m. to give consideration to the subject matter of the bill.
Senator Michael Kirby (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our first witnesses today are from the Ontario Ministry of Health. I trust they will clarify the complete confusion of evidence that we have heard from various parts in the health care sector. We were commenting yesterday in the committee that various and sundry parts of the health care industry are all over the lot on this issue.
Please proceed with your opening statement.
Ms Mary Catherine Lindberg, Assistant Deputy Minister, Health Services Division, Ontario Ministry of Health and Long-Term Care: Thank you for the opportunity to speak to you on behalf of the Ontario Ministry of Health and Long-Term Care regarding Bill C-6. Ontario's position has always been that very strong protection for personal health information must be in place. After three years of consultation, the ministry has identified the needs of the operation of the health system within the province and the needs of legislation that will provide a strong framework for the protection of privacy, confidentiality and security of personal health information as well as facilitate the use of this information to improve the health and health care of Ontarians.
You have heard from a number of organizations involved in the health system about the ways that Bill C-6 will negatively affect the operation of the health system. You have heard that the bill was not designed to apply to the health system but nonetheless has an impact on it. You have heard that neither this bill nor the CSA code upon which it is based was prepared with the interests of health sector stakeholders in mind. Nor did Industry Canada consult with these stakeholders about the impact on the health care system.
When we were alerted to this problem, we took the initiative to advise Health Canada on the implications of this bill for the health system. Ontario has a history of leadership in health information issues. In 1978 Ontario incorporated comprehensive confidentiality provisions into the Mental Health Act with a consent-based privilege for court purposes. In 1986 we incorporated into the Mental Health Act the right of psychiatric patients to access their own records. In 1980 there was the comprehensive Krever Commission Report on Confidentiality of Health Information in Ontario.
In 1996 the minister consulted on the draft personal health information protection legislation with organizations in all areas of the health care system. Included were patients, health care providers, public and private sector institutions, regulated health profession colleges, researchers and privacy experts. Based on the submissions of the broad spectrum of health care stakeholders involved in that consultation, the ministry recognized that it is a delicate and difficult exercise to balance the privacy of personal health care information with the limited but necessary information flow in the system. We believe that with the assistance of approximately 200 stakeholder groups, we have achieved that goal.
Our draft legislation contains numerous safeguards to protect the privacy, security and confidentiality of an individual's personal health information while allowing the restricted use of that information for legitimate purposes. A critical part of our proposed legislation is a scheme that would allow substitute consent for identified individuals who may consent to disclosure of personal health information on behalf of incapable or deceased individuals. Provisions for such a scheme are noticeably absent in Bill C-6.
Will Ontario's draft personal health information protection legislation be considered substantially similar to Bill C-6? The designation of "substantially similar" is at the discretion of the government of the day, with no criteria set out in the bill to assist Ontario in making that assessment.
The ministry cannot accept that Industry Canada will determine the health information needs of the citizens of Ontario. Bill C-6 is not in agreement with the European directives regarding sensitive data, which includes health data. Bill C-6 offers less protection in several areas and is much too inflexible in dealing with personal information in the health care context. One of the stated purposes of Industry Canada's Bill C-6 was to create adequate protections for the purposes of the EU directives. If inconsistent rules apply to various parts of the health system, efforts to integrate health care delivery will be undermined. Patients do not distinguish between commercial and non-commercial activities of their health care provider. They want to know that their personal information is offered the same degree of protection whether it originates in a public hospital or in a private nursing home.
Such assurances cannot be provided because of the uncertainty and confusion regarding the application of Bill C-6 to the health system. A number of federal officials have suggested that the courts should decide which organization and activities are subject to the bill's provisions. The ministry finds this suggestion unacceptable, particularly since we, along with many other health care sector organizations, have made similar requests to Industry Canada for many months. Therefore, it would assist the ministry if we could obtain the legal opinions commissioned by the federal government and Health Canada concerning the issues of Bill C-6.
The purpose of our submission is to assist you in further understanding our concerns. Our specific concerns are shared by many organizations in the health system, some of which have appeared before you. Other organizations in the health system have different concerns but, like all the groups, the ministry's message is the same: Bill C-6 is seriously flawed when applied to the health care system.
The Ontario Ministry of Health and Long-Term Care continues to urge that the health system be exempted from the application of Bill C-6. We propose that subclause 4.2 of the bill be amended to exempt from the application of the bill any organization that collects, uses or discloses personal health information for the purposes of health research or management of the health system, provided the information is reasonably necessary for the stated purpose. This proposal is set out at the end of our written submission.
Senator Murray: What legal opinions did you wish to obtain from Health Canada?
Ms Anita Fineberg, Counsel, Legal Services Branch, Ontario Ministry of Health and Long-Term Care: It is our understanding that Industry Canada and Health Canada have commissioned legal opinions with respect to Bill C-6 and its application to the health care system. Because of our continued confusion regarding the application of the bill to some health sector activities, we believe that copies of those opinions would assist us.
Senator Murray: If there are opinions from the Department of Justice, you will not get them. Are they opinions from outside legal firms?
Ms Fineberg: That is our understanding, at least with respect to one recent opinion.
Senator Murray: Do you mean with respect to the Department of Industry and the Department of Health?
Ms Fineberg: That is our understanding.
Senator Murray: We can ask for that. I am not in a position to discuss your provincial personal health information legislation. We have had no evidence on it and I have no experience of it.
What you have said today indicates a preoccupation with health care delivery and the planning and management of the health system, rather than with the privacy issues. I acknowledge that your concerns about health care delivery are certainly legitimate, valid and understandable. We have heard about them from other players in the system, including the Canadian Healthcare Association.
You refer to the personal health law as being consent-based. I read testimony from a House of Commons committee that indicated that the Ontario law was not really a privacy law but rather an access to information law. Will you comment on that statement?
Ms Lindberg: Of primary importance to us is the protection of personal health information. However, we must balance the sharing of personal health information, with the provision of good care. The information does not require an identity but we must ensure that consent is not mandatory so that we are able to compare services, for example, between Ottawa hospitals and Toronto hospitals in order to ensure that you are getting the best care in Ontario, and that discrepancies in health care provided across the province are minimized. As we read the current bill, without the consent of everyone who came into a hospital or a laboratory we would not be able to do that kind of research. That would seriously affect the ability to deliver good health care in Ontario.
Senator Murray: The Canadian Council on Health Services Accreditation made much the same point in their brief, as you have probably seen. Do you know the Quebec law on privacy, by any chance?
Ms Fineberg: We have some familiarity with it. We are certainly not experts on the Quebec law.
Senator Murray: Does it differ in approach from yours, as far as you know?
Ms Fineberg: There are provisions that do differ in some respects from ours.
I should like to return to the comment that our draft personal health information protection legislation is more of a disclosure than a privacy law. Currently there are systems in effect across the country -- in all the provinces, I believe, except Prince Edward Island. At the federal level, for public, that is, government, institutions, we have what are generally known as the personal information and protection of privacy laws. Those laws apply to personal information, including personal health information, that is currently held by public, that is, government, institutions. With respect to the collection, use and disclosure of that information, which are the three key activities in the information scheme, you will note that consent to each of those activities is but one method by which information can flow within the government systems.
Much of that legislation has been in effect for a number of years, and the schemes are similar to our draft personal health information protection law. That is, consent is one means by which personal information may be collected, used or disclosed. However, all of that legislation recognizes that there are other policy-based rationales for disclosure of information in certain limited circumstances, with concomitant protections for that information when it does move through the system. Our draft legislation is not unique by any means in setting up that sort of scheme.
Senator Murray: That is extremely interesting. I am glad to have that information. The question, of course, is whether your draft legislation, and the legislation in other provinces, is or will be effective from a privacy point of view.
As you know, organizations like the Canadian Medical Association and the Canadian Dental Association approach this from a different point of view. They agree with you on the impracticability of trying to separate out commercial from non-commercial in the health care sector. However, they want this bill considerably strengthened by appending the CMA code and giving it, suitably modified, the force of law across the whole health care sector. They say that the exemptions provided in this bill are simply inappropriate to the health care sector.
Ms Juta Auksi, Senior Consultant, Strategic Health Policy Branch, Ontario Ministry of Health and Long-Term Care: The CMA code was developed by one professional category. There has not been consultation among the wide range of health care sector organizations and providers. We would have concerns that the kinds of approaches the CMA code takes do not reflect the entire spectrum of health care delivery, planning and management.
Furthermore, we understand that to date there really has not been an adoption of that code in a manner that would make it in force even as a standard among physicians. I suppose a provincial regulatory body like the College of Physicians and Surgeons of Ontario could do that, but that has not occurred.
Senator Murray: That is a matter of concern, as well. Does Ontario have a view about the constitutionality of this bill?
Ms Fineberg: We do have a view but that would best be expressed by the Office of the Attorney General, rather than by the Ministry of Health and Long-Term Care.
Senator Murray: What is it, in a nutshell? Is the bill ultra vires, or is it a proper exercise of the federal commerce power? Believe me, you and I cannot dialogue in much profundity on this issue. However, is it, in the view of Ontario, constitutional or not?
Ms Fineberg: I believe there is some debate on that point.
Senator Murray: There always is.
Ms Fineberg: Yes, there is.
Senator Murray: I believe that your attorney general along with many others called for the withdrawal of the bill. Is that the case?
Ms Fineberg: Yes. You are referring to the letter by the ministers of Justice.
Senator Murray: It was Bill C-54 at that time.
Ms Fineberg: I should like to return to the subject of the Quebec legislation, because I did not answer your question. As I said, we are not 100 per cent familiar with it section by section, but it is our understanding that statements have been made to the effect that the Quebec legislation is substantially similar to Bill C-6 and will probably get that designation. Given that the Bill 68 is set out in a different scheme than Bill C-6, it would be helpful to know on what basis that parent decision has been made.
Senator Murray: That is a very good point. I will remind myself to ask the minister about that when he gets here. On what basis has the department, or perhaps the minister himself, signalled that the Quebec law would qualify under that section of the bill that provides that a provincial law that is close is "substantially similar" to the federal one? I should like to have some analysis of that.
The Chairman: I believe that officials indicated quite some time ago that the Quebec law met the "substantially similar" provisions.
Senator Murray: I should like to know on what basis that was decided, and I believe our friends from Ontario would like to know.
Ms Fineberg: It would assist all the other provinces.
Senator Murray: It has been indicated that your draft will not be "substantially similar", is that not correct?
Ms Fineberg: I do not know that we have received any official notice.
Ms Auksi: There has been no such formal statement, but certainly in informal discussions there has been no assurance that our legislation would be deemed "substantially similar". Of course, our legislation is not in a final form.
The Health Canada lawyer expressed concerns. He noted that due to the number of disclosures without consent, quite apart from the content of the disclosures without consent, our act might not meet the criteria.
I should add that we have on occasion asked certain questions regarding this. We have asked, for example, whether Manitoba's health legislation information would be considered "substantially similar". That legislation has actually been in force for several years. We have not received an answer on that.
The Chairman: Are you having these discussions with Industry Canada or with Health Canada? Are you having them with policy-makers or with lawyers? There could be a radically different answer depending on that.
Ms Auksi: Both policy-makers and lawyers have been involved. We have had discussions with both departments.
Ms Fineberg: But with respect to the specific issue of similarity between Bill C-6 and any of the provincial health laws in effect or proposed, it is my understanding that those discussions have not been overtly conducted with Health Canada.
The Chairman: They have not been conducted with Health Canada?
Ms Fineberg: They have not been conducted with Health Canada.
The Chairman: Have they been conducted through the Attorney General of Canada's department?
Ms Fineberg: No, not at all. They have been conducted with Industry Canada.
The Chairman: That answer surprises me. Have you been given any guidance as to what constitutes "substantially similar", or what you would need to do to your draft bill to make it substantially similar?
Ms Fineberg: Not that I am aware.
The Chairman: Presumably you would be aware, since you are the lawyer for the department.
Ms Fineberg: That is correct. I have not been on this project forever, but no one has contacted me or brought me into that sort of discussion. Of course, in the absence of any criteria set out in the legislation itself we are, in a sense, operating in a bit of a vacuum.
The Chairman: It requires an Order in Council, I presume, to formally state that a bill is substantially similar.
Ms Fineberg: That is correct.
The Chairman: Therefore, in a sense, it is a federal cabinet decision. I will come back to that point later.
Senator Finestone: Thank you for your complete brief. You answered a number of questions that I was trying to get from the Department of Health. I had asked if they looked at the European Union model and why. It strikes me that the difference between the European Union model, which was evidently the driving force of the OECD, and its reality is indicated very well under point three of your brief. You say that there are different ways to ensure protection.
Bill C-6 offers less protection than the EU Directive in several respects:
1. It does not provide a separate regime of protection for "sensitive data"...
2. It does not expressly provide for rules regarding the recipients of personal information...
3. It applies only to the collection, use and disclosure of personal information by organizations engaged in commercial activity, not to all custodians of personal information, as does the EU Directive.
I have been interested in the fact that the European Union has had this generic approach to the protection of data. In particular, I have been talking about the medical checks legislation found in the Netherlands. That is a second step that directly protects the health of citizens as a very sensitive area.
In the work that you have done or are presently doing in developing your new personal health information protection legislation, have you looked at other models? You know that Bill C-6 is modelled on the OECD. Have you checked that against your bill? Have you done any cross-referencing that would facilitate the end goal? The end goal I am referring to of course is that admirable goal of the Minister of Industry and the Ministry of Health, and that is a social union concept under which the personal information of Canadians would be protected and at the same time there would be better control of electronic commerce. Given that, this bill is a vital piece of legislation, but the more we listen around this table, the more it seems there are serious gaps.
I wish to know where you are. You left a gap in the generic bill, your public sector health legislation, with respect to freedom of information and privacy, right? Now you are dealing with that gap through your draft personal health information protection legislation. Is that correct?
Ms Fineberg: There is a slight wrinkle, in the sense that the current legislation deals with all kinds of personal information, including health, in the public sector. What our proposed legislation will do is put into place consistent rules for the management of personal health information, whether it is in the public, that is, government, sector or in the private sector.
Senator Finestone: Is it not possible that this bill, C-6, is a first step of a federal government moving into an important area of commercial activity? As we discussed with the Deputy Minister of Health, and with others who have appeared before us, there is a one-year lag time before this bill would come into effect and we would hope that the health issue would be addressed in a more pertinent fashion. Given your step-by-step process in Ontario, the province with the largest number of citizens in this country, would you not think that this is also an acceptable process, a first step and a second step later?
Ms Lindberg: We believe that because of the sensitivity of health information, it would be preferable to have an exemption from this bill and to deal with health information in a different manner. A year goes by very quickly, and we have no assurance of how this bill will be implemented. If we do not have that, we could, 12 months from today, have it proclaimed and not have Health Canada or the interprovincial and intraprovincial concerns addressed, resulting in a health care system in total disarray, which would be dangerous to the people of this province.
If we are to have a delay, we need longer than 12 months, and we need to address the intraprovincial and interprovincial issues about how we are going to move some of this information. We also need to cover off both the public sector information and the private sector information, because pharmacies in all of Canada would be considered commercial activities.
Senator Finestone: They are commercial activities. Why would you even presume that they are not?
Ms Lindberg: That is what I mean, but the issue is the sharing of information on a pharmacy file -- what drugs are prescribed, has a patient taken too many drugs. That information has to be available to a person in the ER. Is 12 months long enough to address our concern about that? We need to make sure that we can do the kinds of transfers of information that are actually important to the health of the people.
Senator Finestone: I wish to understand. Are you looking at this from an epidemiological perspective, which is important in the input and output results within the health system, given that health care is a costly system and important in the everyday lives of your citizens? Is that the point?
Ms Fineberg: That is part of it. When we are talking about an exemption and a step-by-step process, I should also like first to ensure that we are all talking about the same thing with respect to what we are looking for. That is our first question, because there appears to be some confusion about the Ontario ministry's position on the question of an exclusion.
Senator Finestone: I read that.
Ms Fineberg: I just wanted to have that clarified. For us, the question really is who is to sit down at the table to address the issues and identify the issues that are important for the health care, as you noted, of the people of Ontario.
Senator Finestone: Ms Fineberg, I wish to ask you a question. According to the deputy minister, who was here recently, there is an FPT table.
The Chairman: What is FPT?
Senator Finestone: A federal, provincial and territorial consultation table. Let us look at the interests of privacy in the public and private sectors for individuals in Canada. There is a subcommittee of the federal, provincial and territorial ministerial table looking at health. There are FPT accords in many of the sectors that deal with our daily lives.
Ms Fineberg, if you are the legal counsel for the Ontario Ministry of Health and Long-Term Care, and you do not know about this, who is representing Ontario and Ontario citizens?
Ms Fineberg: I am certainly aware of that.
Senator Finestone: You just said you did not know, so let us get it straight.
Ms Fineberg: I am sorry if there was some confusion on that particular point. Ms Auksi has been most involved in the discussions with respect to that FPT accord. Perhaps she can provide you with more details.
Senator Finestone: Ms Auksi, then, can you tell me where things stand, at that table? How far advanced is it? Is there any sense of accord in the general interest of Canadians, so that all Canadians can have some form of equality of treatment and respect for their personal information?
Ms Auksi: I do not think that I am an appropriate spokesperson for the committee as a whole.
Senator Finestone: I am not interested in the committee as a whole, I am interested in Ontario's views, sitting at that table.
Ms Auksi: The important point is that if the rules of Bill C-6 somehow circumscribe what that committee can come up with in a way that does not work for the health systems across the country, then that is a problem.
Senator Finestone: I understood the deputy minister to indicate that they were working on that. Of course, he is new; he just came on less than a year ago.
Senator LeBreton: He is hardly new; he was deputy minister of Finance.
Senator Finestone: He is not new off the street. Anyway, as I understand it, the goal of this sub-subcommittee of the FPT table is to address this issue, and the question that Senator Murray asked you is vital to that. Consider clauses 26 and 30 and whether the new bill that you are proposing will fit into the exemption category that they are purportedly giving to Quebec. All that should be at your table. Are you telling me that you are not discussing those issues in general? Are you having a good health chat or what are you doing at that table? What are you addressing?
Ms Auksi: It is actually a very tough discussion because people are aware of the legislation that exists in the various provinces and are trying to consider what the impact of Bill C-6 will be on this process.
There is a considerable degree of agreement about what the basic principles should be. I do not think that one would find across the country many people who would say that the CSA principles would not be a good starting point, although opinions differ as to how those principles should be applied, how the details should be worked out to ensure that they work for the health system. Everyone is concerned greatly about the privacy issue, but they are also concerned that people's health care not suffer.
Senator Finestone: According to the faxes, e-mails and letters that I have been receiving, it was not until November 16, 1998, that there was some beginning of acknowledgement that this bill, which was then in its initial stages, would affect the health industry. Even then, very little attention was paid to the matter in the standing committee of the House of Commons. On November 16, 1998, and then again on March 18, 1999, a request was made to address the issue of Health Canada. Those requests did not receive a response from Industry Canada until October 14, 1999, or really, I would say, July 20, 1999. Has anyone discussed the fact that there has been a lack of dialogue between Industry Canada and Health Canada? Did that come up at your FPT table?
Ms Fineberg: We have been wondering about that, in all fairness. Industry Canada had information sessions about Bill C-6.
Senator Finestone: When did those take place?
Ms Fineberg: Last fall, 1998.
Senator Finestone: Therefore you have been aware since 1998, not 1999, as some people have said. Is that true?
Ms Fineberg: Fall of 1999 was last month.
Senator Finestone: That is right. I want to know when you first met with officials from Industry Canada about your health concerns and when you started to ask Health Canada what was going on.
Ms Auksi: I am not sure of the exact date, but certainly there was a general meeting of provincial representatives on Bill C-54. That was not about health, but because we were working on our own proposed personal health information legislation, we wondered what kind of impact this could have.
Senator Murray: When did you appear before the House of Commons committee?
Ms Auksi: March 18, 1999. The initial response from Industry Canada was that it was not intended to apply to the health system.
Senator Finestone: Say that again, please?
Ms Auksi: The initial response from Industry Canada was that the bill was not intended to apply to the health system. It was only by probing and looking into the wording of the bill that we saw that it would apply, and even then, as you know from our submission and others, the definitions are so unclear that it is still not clear where the bill will apply.
Senator Finestone: I gather that it was on April 14, 1999, when members of Industry Canada staff indicated that it would not apply to health. Then on April 16, given the great concern, you persisted in requesting to appear before the Senate Banking Committee in order to bring it to their attention.
On June 7, while speaking to a health care conference in Quebec City, the minister indicated that there was serious concern about the application of the bill to health care and the potential hurdles it would impose on the health information highway. The minister suggested that while he did not have any knowledge of this, if they did have concerns they should get in touch with his staff.
Senator LeBreton: What are you reading from?
Senator Finestone: I am reading from a document from the Canadian Pharmacists Association. It arrived on your desks last night.
Senator LeBreton: It did not arrive on my desk last night. You should not presume it arrived on our desks.
Senator Finestone: Can we have this document appended to the minutes?
The Chairman: We have copies.
Senator Finestone: I should like this document appended to the minutes.
The Chairman: We normally do not do that. The document is available, as are all documents that have come to the committee.
Ms Auksi: May I make one comment?
Senator Finestone: I am the new senator on the block, so I will follow the rules.
I am asking because I wish to pursue this with the Minister of Industry, who will be our next witness. It is important that the committee be aware of any roadblocks that took place regarding the consultations both with your ministry and at the federal-provincial-territorial table. If we want to see what you have asked for, which is essentially a scoop-out, or the suspension or delays that others have asked for, we must have some knowledge, because the essence of this bill is vital to Canada. We must know. Is there anything you would like to add?
Ms Auksi: In the spring of 1998, before Bill C-54 was introduced, Industry Canada officials met with officials of various provinces, including Ontario, and described the content of the proposed federal bill. We became concerned about the impact on the health system and asked questions in that regard. We were told that this bill would apply only to the federally regulated sector and I relayed that to people who were concerned about the impacts of the bill. Of course, when the bill was introduced it was much broader. It extended to the provincial sector as well and would affect health in a way that we had had no idea it would.
Senator Carstairs: I should like to return to first principles. Health care in this country is administered by the provinces. Ontario began with a very modest privacy act in 1978. Hospitals are still not covered in the Province of Ontario. It is to be hoped that they will be under the new legislation. I was very influenced by what the Privacy Commissioner said yesterday, as opposed to what government officials said yesterday and on previous days. The Privacy Commissioner said that this is only a baseline. He said that the privacy people hope that the provinces will set a much higher line for the protection of information of patients in the provinces. What is your fundamental objection to the baseline?
Ms Fineberg: Assuming that the baseline is, by definition, the lower limit for privacy protection, we and a number of other groups have identified important activities within the health care sector that, based on our interpretation of the bill, will not be able to satisfy even that baseline.
Two examples have been reported in the national press in the past couple of days. One is research. Two days ago, the journal of the Canadian Medical Association published an article about an important piece of research that concluded that almost 50 per cent of Canadian seniors are not getting life saving drugs after they have a heart attack. We went to the Web site of the Canadian Medical Association and pulled up the scientific report of the study.
Those sorts of studies are not done with patient consent. In effect, there are two databases: the Canadian Institute for Health Information, which was referred to earlier as an important national researcher in the health field, collects data on hospital stays; and --
Senator Carstairs: Ms Fineberg, we are at first principles here. What is wrong with getting a patient's consent?
Ms Fineberg: Although I cannot speak for the research community as a whole, the difficulty when designing these scientific studies is that there will be a number of people who may not be interested or willing. That is fine from the privacy perspective. I agree that if you take the position that individuals should have 100 per cent control over their health information, you will end up with gaps in the data that, either from the medical research side or from the monitoring or health operations side, cannot be filled.
Senator Carstairs: I do not believe that it would be extremely difficult to ask a patient who is undergoing treatment to sign a consent form that would allow data on them -- strictly data -- to be used for research purposes.
Ms Fineberg: Many research studies do not start off anonymized, because there must be a way to match the information on the same people in two databases. Researchers might start with one, convert it to an identifier and use the same method to create an identifier for the same person in the other database. It will eventually be anonymized, and certainly reported as such, but the initial collection of the data is not always on an anonymized basis.
Researchers might very well indicate that there is some inherent bias from a scientific perspective with respect to the characteristics of people who consent to participate as opposed to those who do not, which may impact on the results.
Senator Carstairs: We went through a time in this country when AIDS victims wanted to be anonymous. They refused to participate because they were terrified about the impact on their personal lives of this information being given out. Surely, Canadians have the right to that limited amount of respect within our society.
Ms Lindberg: You are right. We want to ensure that we protect everyone's personal health information. However, with AIDS victims we did have to share the information between the laboratory and the physician. As the laboratory is a commercial entity, it would also have to have written consent. The physician would send patients for tests and the lab would have to have permission. Simple transactions that we are used to in the health care system will be jeopardized if we have to have signed consent on every activity.
Currently in Ontario, when you hand over your health card that is implicit, although not necessarily explicit, consent. Physicians are already worried about paper work and it would be greatly increased if you had to provide consent at every step. The issue is that we are working between public and private.
Senator Carstairs: In essence, those are provincial activities. They are guaranteed, we hope, by provincial regulation; or we hope that, in the future, they will be guaranteed by provincial regulation. You have a four-year time frame here: one year because the act will not be in force or in effect for one year; and three years for things that only take place within the province and that will be affected by this legislation, if they are ever affected by it. They will not be affected, if the province passes regulations and legislation. I am sorry, but I do not understand the problem.
Ms Auksi: Our concern is that if the provisions of Bill C-6 are unworkable for the health system, then how confident can we be that legislation we develop that is workable would be found substantially similar and therefore allowed to apply instead of Bill C-6, both in terms of protecting the information and allowing its use for legitimate purposes?
In addition, there would still be the problem between provinces. As we have pointed out in our submission, even if Manitoba and Ontario each had legislation that was considered substantially similar, at the crossing of the border Bill C-6 would apply. If the provision of health care crossed boundaries between Ottawa and Hull, for example, or between Kenora and Winnipeg, then the rules set out in Bill C-6 would apply instead of the provincial rules.
Senator Carstairs: For 21 years, the Province of Ontario has been saying that they will do this. The Province of Ontario has not done it. How do you respond to that? For 21 years, since the very first Privacy Act was enacted, they have not been willing to try to protect the individual rights of your own citizenry. I am afraid I do not have much faith that without this push and shove coming by way of Bill C-6 it will ever happen. To be fair, I am not talking just about Ontario but about the other provinces of the country as well.
Ms Fineberg: After three years of consultation with 200 stakeholders from all aspects of the health care system, we think we are there; at least we are getting close. I certainly understand your cynicism, given the length of time that has passed. We can only speak for the government of the day and where we are now and not for previous governments' decisions or indecisions.
We have done all this work. We have brought all these people on board. We have heard from everyone. We think we have reached a really good balance with which people can live. If, at the end of the day, we get our legislation through the house, and it is not substantially similar, then where are we?
The Chairman: Earlier, I said semi-jokingly that I hoped you could clarify the confusion that has arisen as a result of what we have heard from so many people in the health groups. May I say that you have simply compounded the confusion, which is not your fault. It just means that it is a complex issue.
There are two groups who have not testified before us whose views I happen to know. They are very much conflicting views. One is the Medical Research Council, which has absolutely no difficulty with the information provisions of the bill. The other is the Minister of Health's Advisory Council on Health Infostructure, which is chaired by Roberta Bondar. They have great difficulty with it. Thus, there are two presumably highly knowledgeable groups of distinguished people in their own fields who are on opposite sides of the issue. That is one problem.
I would not have said that Senator Carstairs was being cynical. I might have said that she was being skeptical. As a former public servant myself, having been a deputy minister both federally and provincially, I might have said that she was being very realistic in the sense that, historically, public servants are inclined to devise pieces of legislation that make their jobs easier. It is called human nature.
One of the concerns is whether all of the issues that are being raised not only by you but by public servants elsewhere, including some federal public servants, are real or imaginary. People wonder if the primary underlying motivator for them to is to simplify your life. There is absolutely no question that everyone who is affected by this bill has had their life made more complicated. To that, I think a majority around the table would say "tough" or "It is about time" or some equally sympathetic kind of reaction. Do you want to respond to both those points of view? I think they underlie many of the views -- not just yours -- that we have received in the last four days.
Ms Fineberg: With respect to the research issue, I am not familiar with the specifics of those provisions. As you can see from our brief, our reading of the bill is that it would hamper the efforts of researchers in many circumstances, and we are not familiar with all of them. We provide an example of the Canadian Institute for Health Information which has a prominent concern regarding the issue of report cards on hospitals. From our interpretation of the bill, we understand that there would be a difficulty, from a research point of view, if it were to go ahead with that particular project. That is our view on research.
Of course, the health ministry relies on information received from certain research projects.
The Chairman: The dilemma I have is that the Medical Research Council of Canada says that it is no problem. I am not disputing your point of view. I am sure there are some researchers who share your point of view. Some of them are on the minister's Advisory Council on Health Infostructure. In the long time that I have been in government, both federally and provincially, I have never seen a bill provoke such fragmented views from what is effectively the same sector.
Ms Fineberg: Perhaps this is like having expert witnesses in court cases.
Ms Lindberg: Part of the problem is that we in the ministry are unclear as to what "substantially similar" means.
The Chairman: That is a legitimate argument. At the moment, you are trying to meet a target that is undefined. In a sense, that is not fair.
Ms Fineberg: The only way to reconcile the divergent views on the bill is to say that given the uncertainty and confusion, one group is interpreting it one way and thus concludes that their activities will not be impaired. The other group, which adopts a different interpretation, says that based on its reading of this legislation, they have a problem.
The Chairman: That helps.
Ms Fineberg: With respect to your second question and the concerns that were raised, based on the varied identities of the health care groups who have appeared before you, I would suggest that the witnesses have at least covered the entire spectrum. The concerns raised are not "busy work" for public servants only but are the valid concerns of individuals and companies from the "real world" of health care delivery who understand it on the ground. They are raising these concerns in a real-world context. This is not just a theoretical spinning of wheels to see how many legal interpretations are possible.
The Chairman: Thank you, witnesses.
Honourable senators, we now have the minister with us. Mr. Minister, welcome and please proceed.
Hon. John Manley, Minister of Industry: Honourable senators, Bill C-6 deals with two important components of the government's electronic commerce strategy.
Back in 1998, a study by Ekos found that 94 per cent of Canadians believe it is increasingly important to have safeguards for personal information on the Internet. Canadians, moreover, are becoming much more knowledgeable about privacy issues. A more recent Ekos survey found there was a marked shift from a general unease to specific concerns about the privacy of their personal information.
Part 1 of the bill incorporates and makes law, as you know, ten fair information principles established in the CSA standard for the protection of personal information. This CSA standard is a Canadian first -- we are the first country in the world to develop a standard to manage personal information in a consensus process with stakeholders from business, consumers, governments and organizations of other sorts all the table.
[Translation]
We started public consultations on the need for privacy legislation in 1994. We announced our intent to legislate in 1996 and we sought public comment on proposals for the legislation in 1998. These consultations overwhelmingly supported the use of the CSA standard as a basis for private sector privacy legislation.
Part I also establishes the Privacy Commissioner as the oversight mechanism and empowers the Commissioner to receive complaints, conduct investigations and attempt to resolve such complaints.
Parts 2 to 5 of Bill C-6 will put electronic transactions governed by federal laws on the same footing as paper ones. It will assure business and citizens that an electronic document and an electronic signature have legal standing and will be recognized, enforced and accepted by government and the courts.
[English]
We know that government itself must take up technology as a model user and facilitate dealings with citizens and business. Canadians want convenience and ease in electronic dealings with government, coupled with privacy protection. They want to be able to trust the new ways of doing business. Our goal is to be responsive to their needs and efficient in our dealings. The potential benefits of being a world leader in the knowledge-based economy and electronic commerce are huge, but Canada will become a leader in electronic commerce only if consumers and business are comfortable with the new technologies and with the impact that these technologies will have on their lives; therefore, trust is crucial.
That is why the government developed a strategy for electronic commerce, which the Prime Minister himself announced in October of 1998. This strategy was designed to establish Canada as a global leader in the development and use of electronic commerce. It was built around what we call the seven "firsts" in the areas of consumer protection, tax neutrality, cryptography policy, standards, secure electronic commerce or public key infrastructure, digital signatures and privacy.
[Translation]
I am proud to report that, with the passage of this bill, we will have achieved the final two. We have a single policy goal -- to build trust in electronic commerce. And we have one bill to achieve this goal.
The protection of personal information has been recognized as a fundamental pillar of the global information society. For example, the European Union issued a directive in 1998 that required member states to block the flow of personal information to countries without adequate data protection.
The EU is looking for the same elements that we included in Bill C-6: a basic set of fair information practices to govern the collection, processing and disclosure of information, and independent oversight by a data protection authority. The principles recognize the fundamental right of free speech in an exemption for journalistic, artistic and literary expression, and the fundamental importance of protecting such sensitive data as medical information.
Right now, personal information is a commodity that can be bought, sold and traded. We have in Canada what the federal Privacy Commissioner has described as a "patchwork" of laws, regulations and codes.
[English]
Personal information crosses all boundaries, provincial, territorial, and national. Most industries are not subject to any rules concerning the collection, use and disclosure of personal information. Only the Province of Quebec has broad legislation for the private sector operating within that province.
Bill C-6 shows leadership. It uses the trade and commerce powers of the federal government to create a framework for coast-to-coast protection of personal information that aims at a harmonized approach for all provincial private-sector privacy legislation. After coming into effect, this bill will apply until provinces act to protect personal information within their own borders. It will continue to apply where there is no privacy protection and it will apply to transborder flows of information.
The basis of the trade and commerce power is commercial activity. We need the provinces to act as well, because they have jurisdiction over some of the most sensitive information that Canadians want protected, including most health, education and employee records. Only when the provinces act will we have the sort of complete coverage that Canadians expect and that will give us a competitive advantage in the knowledge-based economy.
[Translation]
Canadian business has called for legislation that would create one market, define a single set of rules and establish a level playing field where the same rules apply to all. The direct marketing industry, information technology companies, the telecommunications companies and the banks realize the we need a clear federal legislative privacy framework. And they realize that flexible, but effective, legislation will help customers accept electronic ways of doing business and will be less expensive for them than self-regulation alone. The hidden cost of self-regulation is the high price of earning confidence and winning trust.
We are living in a knowledge-based economy and personal information is being gathered increasingly to provide better service and more specific and targeted marketing. In the medical field, we have the opportunity to build on our unique Canadian medicare system and produce the best patient care with transportability of records and innovative research. But, if we are to realize these benefits, we must build privacy into the ground floor of each of these information structures.
Bill C-6 is designed to protect personal information of all individuals who, in their everyday activities, do not separate their personal information into health or other categories.
[English]
For this reason, the bill's broad scope covers all personal information collected, used or disclosed in the course of commercial activity. All commercial activity in the health care sector is covered. What is not commercial is outside the scope of the bill.
Bill C-6 establishes transparency and consent. Canadians can depend on these principles in determining how their information is used. I have been following the discussions within the health care community about this bill with a great deal of interest. I want to assure the members of this committee that it is clearly not the intention of the government to have this bill act as any kind of impediment to the modernization of the health care system.
We built Bill C-6 on the CSA model code which can be tailored to meet the needs of all sectors. The CSA standard provides a generic set of principles for protecting personal information applicable to all kinds of information, including health information. The Insurance Bureau of Canada, the Canadian Marketing Association and the Canadian Medical Association have developed their own tailored codes. These tailored codes should be viewed as additional, complimentary guidelines that are built on the floor created by Bill C-6.
Some in the health care sector have suggested that they need more time, perhaps two years. In effect, this bill gives them four years. The bill will not apply to the vast majority of transactions in the commercial health care sector for four years unless those organizations are trading in personal information for consideration across provincial or national boundaries. We added an amendment in clause 30 which makes this crystal clear. I believe there is ample time to act.
During those initial four years, the provinces obviously can pass their own legislation; in fact, we hope they do. Once a province brings in substantially similar legislation, Bill C-6 will not apply to organizations covered by the provincial law. Substantially similar legislation is legislation that provides a basic set of fair information practices that are consistent with the CSA standard, oversight by an independent body, and redress for those who are aggrieved.
Bill C-6 will not impede the flow of information necessary for the protection of the health of Canadians, for the improvement of the administration of health care and for the conduct of research. Information and communication technologies offer numerous opportunities to improve the level of health care. The rapid application of these technologies for this purpose relies on the assurance that people will want to have of the protection of their personal health and medical information.
[Translation]
Organizations, in the course of commercial activities, collect, use and disclose health information to conduct research, track drug use and perform valuable health-related services. These are legitimate activities and the bill contains exceptions for study, research and accountability.
Information can be used and disclosed without consent for research purposes by notifying the Privacy Commissioner. When anonymous information is used for research, it will fall outside the scope of the bill. We also made an amendment to allow public sector bodies to collect personal information from the private sector for accountability purposes.
[English]
Honourable senators, right now we have very limited data protection in the health field -- almost none in the private sector. This year the Health Advisory Council published a report on the future health infoway. The council warned that without privacy protection, without the consent of the individual, the potential of information technology for tremendous gains in the efficiency of the health care system, as well as vastly improved results from research, would not be realized.
Some members of the health sector have stated that the bill will require them to obtain express consent from their clients, a process that they fear will be onerous and costly. In our view, this is simply not true. Bill C-6 does not impose onerous duties on service providers. It merely requires consent where commercial use is to be made of personal information. I do not think that that is too much to ask. In many circumstances, common sense will imply consent.
Following the CSA standard, express consent is not required where an individual would reasonably expect the collection, use or disclosure of their personal information to be part of a transaction. For example, when patients request a pharmacy service, they are implicitly consenting to the collection, use or disclosure of their personal information as necessary to render that service. It is only for secondary uses and disclosures not reasonably expected by patients in the context of the transaction that express consent is required. Consent does not have to be given at each step and each time for the same purpose. There are a variety of ways to obtain it but the standard insists on the knowledge and consent of the individual.
I think the bill is a strong foundation. Gaylen Duncan of ITAC and John Gustavson of the Canadian Marketing Association both spoke before this committee of the lengthy negotiations and the delicate balance that was achieved during the crafting of the Canadian standard. The bill creates a legal basis for the standard, and it represents, therefore, an important beginning. For most organizations, coverage will only begin in four years, and we will review and make corrections to the legislation if necessary every five years.
However, we must remember that Bill C-6 covers all types of personal information. The bill needs to meet the needs of all stakeholders, including bankers, historians, journalists, writers, insurance companies, direct marketers, Internet service providers, telecommunications companies, accountants, credit bureaus, consumers advocates, civil liberties associations. You must admit that that is a tall order.
The overarching goal of Bill C-6 is to establish in law a right to privacy without placing an undue burden on business, intruding on the right of freedom of expression or destroying our historical memory by interfering with the preservation of documents. I think time is of the essence. As Bruce Phillips said about the bill: "It is no magic bullet... But we must begin by doing something and doing it quickly. If we fiddle in the face of lobbying and jurisdictional disputes, Canadians' privacy and the business opportunities on-line will burn." I agree with Mr. Phillips.
Senator Murray: Mr. Manley, let me take a minute as it is the first opportunity I have had to say that one appreciates the leadership that you have been giving in the general area of high-tech policy, moving along with the information highway and so forth. I am a subscriber to Strategis's weekly service. I log on all the time. If there were time I would bootleg in a question about the progress you are making in connecting all the schools in the country. Speaking as one who lives during the summer in an area of the country that some people consider remote, I appreciate the efforts that are being made to link all the remote areas of the country. It is obvious even to an outsider and from a distance that your commitment to these matters goes well beyond mere ministerial duty. You are committed and engaged. For all that, I think you do deserve respect and appreciation, and you have it, at least from me.
Returning to the topic of this bill, you will probably leave here saying those senators certainly have a strange way of expressing their appreciation. Will you offer a principled justification of the provision in this bill, paragraph 7(3)(h), providing that 20 years after death it would be legal to disclose personal information that is collected for commercial reasons about a person? I am sure you have been briefed on the discussions here over the past few days and you are ready for this question
Mr. Manley: First, let me say that I think we have completed all of the schools. The last one was a one-room school on Pictou Island with three children. We have a lovely video, which I would be happy to send over to you, of the three kids arriving in school and answering some questions on what this means. A nine-year-old, I believe, is saying, "This means we can go wherever we want to go." As far as we know, we are the first country in the world to have all of our schools connected. We need a little bandwidth to help some of them because sometimes it is pretty basic, but that is coming.
I am told that the provision to which you have made reference is a standard archival rule. Any disclosure would still have to comply with the rest of the code. For example, the disclosure of the personal information must be made for the purposes for which it was collected. According to the bankers, the longest they generally retain information is somewhere in the order of seven to 10 years. In that context, 20 years after death does not seem too much of an imposition. I am told that that is the basis for the rule.
Senator Murray: I will not debate it now but I say, with respect, that that is not a principled justification. I do not think that there is a justification for the disclosure of personal information collected for a commercial purpose at any time. I agree with the Privacy Commissioner, who was here yesterday and who next to you is perhaps the most robust and enthusiastic defender of this bill who has appeared before us. He cannot state a principled justification for the rule. I will leave it at that. I may take it up later when we have the bill properly understood before us.
Minister, did your department and/or the Department of Health obtain, as was stated here a few minutes ago by people from the Ontario Ministry of Health and Long-Term Care, an outside legal opinion as to the impact of this bill on the health care sector?
Mr. Manley: Did we seek an opinion?
Senator Murray: Did your department and/or the Department of Health get an outside legal opinion? It was suggested that that had happened, and indeed the people in the Ontario ministry said they would like to get a copy of it.
Mr. Manley: No. I know that there are outside opinions, but we relied on the legal advice we received from the Department of Justice.
Senator Murray: We know about the other legal opinions. We have all those. I should have asked Mr. Dodge yesterday but I had not heard about it until this morning.
My third and final question for the moment concerns the Quebec legislation, which either you or your officials signalled, I believe in the Commons committee, would be regarded as substantially similar to this bill. Is that correct?
Mr. Manley: Yes. In fact, in response to questions in the House of Commons I have said that we believe the Quebec legislation meets that test.
Senator Murray: I should like to ask you about that. Dr. Roger Korman, the head of IMS, was a witness the other day. He told us that while his company lives very happily with the Quebec law they could not live with the proposed federal law, Bill C-6. That aside, let me tell you what he said about the Quebec law.
Bill 68 in Quebec is held up as a paragon of privacy legislation in protecting personal privacy. However, it does so at the point that information is used as opposed to collected. Bill 68 permits the collection of personal information without consent. Bill C-6 will not. The Quebec legislation allows comprehensive databases to be compiled. Bill C-6 will not. The Quebec legislation has an ongoing mechanism.
At that point, I asked what kind of databases? He answered:
With respect to the prescribing practices of physicians in particular as well as the general health information of Canadians where the information has been anonymized.
Bill 68 has an ongoing mechanism to make exemptions with respect to disclosure, but Bill C-6 does not. Under the Quebec legislation, we can collect comprehensive databases and then disclose them under the guidance of the Commission d'access a l'information whereas, under Bill C-6, all such collection will require patient informed consent. That will be a significant stumbling block.
He has made a fairly detailed contrast between the Quebec law and your proposed law. Assuming that his analysis is correct, how can you declare that the Quebec law is substantially similar to Bill C-6?
Mr. Manley: We are not endeavouring to trample over provincial jurisdiction with this bill, contrary to what some of my colleagues in the Bloc Québécois have said. We are trying to be respectful of provincial jurisdiction. We are really looking for similar principles. In other words, both our bill and the Quebec bill are based on the same root idea, which is the OECD standard. We are looking for independent oversight and we are looking for redress for individuals. We are not trying to prescribe in detail what provinces need to do. Quebec deserves credit for having launched this before anyone else. To my knowledge, the system they have works reasonably well, and that is fine. Since we are trying to establish a pattern for all of Canada, including common law provinces, we are trying to work from a standard that has been arrived at by consensus. You know all of that.
With respect to IMS, I am not sure I understand precisely what their problem is. As I understand it, they have said that they do not collect personally identifiable information.
Senator Murray: Not about patients, but they do about doctors.
Mr. Manley: As far as I am concerned, that is an issue for the provinces. This is clearly a contentious element of information. I presume the doctors do not want that information to be collected about their prescribing practices and feel you should be able to rely on their professional capabilities.
Senator Murray: Whether they do or not, minister, the IMS view is that your bill will prevent that from happening, but they are able to do it in Quebec. It is clear from what they said that there is a series of things they can do in Quebec which they believe they will not be able to do under Bill C-6. If that is the case, how can you certify the Quebec law as being substantially similar?
Mr. Manley: There are two questions here. What should the rule be? There will be differences of opinion on whether that information should be collectable and related to doctors or not. Clearly the profession will have a view on that. Unless they are sending it across provincial boundaries, it will not even apply for four years. There is plenty of time for provinces and their professions to agree on how they think that should operate. If IMS gets the doctors' consent, there is no problem. Finally, yes, it does catch it.
Should the Quebec law catch it? I do not know. I do not really need to have that opinion.
Senator Murray: I am not asking for it.
Mr. Manley: I am not willing to reach into the Quebec jurisdiction and say that the federal government has decided that we will let your government and your doctors do this. We are setting the general standard, and the provinces can legislate around it.
Senator Murray: The point is that your laws are dissimilar in important respects. I wonder whether it was just a piece of federal-provincial diplomacy on the part of the federal government to have certified the Quebec law as substantially similar when the evidence we have had here is that it is not.
The Ontario people were here. I read somewhere, perhaps in the Commons deliberations, that either the draft Ontario bill or the draft bill in one of the other provinces, perhaps Alberta, does not pass muster. You would not consider that draft bill to be "substantially similar".
Mr. Manley: We would need to look at that.
Senator Murray: You say neither you nor your officials gave any signal with respect to those other provincial draft laws.
Mr. Manley: At this point, we have not.
Senator Carstairs: Mr. Minister, in your presentation you said that, following the CSA standard, express consent is not required where an individual would reasonably expect a collection, use or disclosure, et cetera, to take place.
After a patient sees a doctor, the doctor issues little pieces of paper that say he wants the patient to have this test and that test and these are the prescriptions that he wants the patient to pick up. Would it be your position that by picking up those pieces of paper for the tests to be done and prescriptions to be obtained the patient has given implied consent?
Mr. Manley: At that point, he has not given any consent to the doctor to disclose information. If he gets the test done or the prescription filled, he takes those papers to the lab or the pharmacist. By taking those papers to a pharmacist, for example, I think you could say that the patient implies consent for the pharmacist to seek clarification from the doctor about what the prescription said or whether the dosage was correct. The loop is completed when the patient acts.
Senator Carstairs: However, before the pharmacist, the doctor or the lab technician could divulge or disclose that information to a third party, there would need to be an additional consent that would indicate that there was informed consent.
Mr. Manley: Again, it depends on what the disclosure is. In the case some pharmacists have described to me where a regular customer has a card to authorize payment for their prescriptions, you could infer the consent of the customer to fulfilling the payment requirements, and that would require disclosure to an insurer of what was acquired. Other than that, if the pharmacist were to disclose the information to someone else, certainly consent would be required.
Senator Oliver: Mr. Minister, I have three questions. They are quite brief, and perhaps I could ask them all at one time.
Mr. Manley: Then I will answer the ones I can answer.
Senator Oliver: First, a number of witnesses have stated that they are very concerned that certain provisions of this bill, such as search and seizure, are intrusive and may offend the Charter of Rights and Freedoms. You have already told Senator Murray that you have had opinions from the Department of Justice. Would you clarify that for the record?
Second, the Canadian Medical Association has come before us and said that they are aware that the CSA code was the model that you used as the basis for the ethical statements, but they would like to see their highly improved medical code of ethics attached or amended or affixed as a part of this bill. What would you think of that?
Third, you said in your speech, clearly and unequivocally, that all commercial activity in the health care sector is covered and that what is not commercial is outside the scope of the bill. That is clear. However, can you help us to draw the line between commercial and non-commercial activities in the health care field and can you indicate what test people who are interpreting this bill should use? As part of that, are you now working on regulations that will help define that? If so, are you prepared to bring those regulations before this committee before they become law in order to help in the explanation?
Mr. Manley: First, with respect to intrusiveness, as is the case with every piece of legislation, the Department of Justice reviews all legislation for Charter compliance before it is tabled, and we do rely on that advice which we have already received. I am always cautious because my law degree predates the Charter so I am never sure I know anything about the Charter.
The principle is this: There are similar powers to those contained in Bill C-6 in other pieces of legislation, both federal and provincial. There are similar powers for the Privacy Commissioner in Quebec. There have been no Charter challenges that we are aware of with respect to that. Unlike the Quebec legislation, where the commissioner has binding powers, our bill does not give the federal commissioner such binding powers, which makes it even less likely that there would be Charter challenges on the federal bill.
In the 1994 Potash case in the Supreme Court of Canada, it was held that search and seizure powers for inspections and regulatory purposes were not a violation of section 8 because there is no power of forced entry and entry is at a reasonable time. The commissioner cannot compel compliance but can impose penalties. I assume those are some of the arguments that the Department of Justice would have relied upon in clearing the bill. Our view overall is that it does comply with the Charter.
With respect to your second question, obviously the CMA code suggests a high standard.
Senator Oliver: A higher standard.
Mr. Manley: Yes, a higher standard than is in the CSA code which we have adopted. We think that is fine. The only point that I would make, which I made at the end of my remarks, is that we are trying to build a privacy piece here that covers a range of activities. In fact, for the general trade and commerce power to apply, we cannot single out one field, according to the General Motors decision back in 1989. That also post-dates my law degree but I happened to read that one.
By trying to use the most consensual, the most general standard, we have not in any way interfered with compliance by members of the medical profession with the highest standard. We expect that they will comply with their code. In so doing, of course, they will comply with Bill C-6 as well. However, they do not have the legislated framework for complaint and enforcement that exists with the CSA code.
The problem with adding the CMA code to the bill is that the bill would then become unduly complex. Canadians do not think in terms of having certain personal information over here and other personal information over there. We did not wish to create a situation where if you were dealing with a bank then you went one place; if you were dealing with medical information you went another place; and if you had some other kind of information you went some place else. That would result in confusion and people not knowing where to go. We are trying to keep it straightforward and simple: if you have a complaint you go to the Privacy Commissioner and he can deal with that complaint. There is one code, one application. We think it gives an adequate level of protection, but it is not as high as the CMA code.
Senator Oliver: In your view, would there be anything wrong with this committee looking at a way to have the higher standard included? As you know, that is what some witnesses have recommended in response to questions from the chair and others.
Mr. Manley: There are a number of issues with respect to the CMA code. In particular, it deals with the patient-doctor relationship, which is fine. However, it does not deal with the rest of the private health care sector. It seems to apply to health care information in both the private and public sectors and to the federally regulated sector. That does not recognize that with respect to personal information the federal public sector is subject to the federal Privacy Act. Therefore, the amendment could cause some confusion about the scope and application of Bill C-6. The purpose clause of the CMA code is cast narrowly; for example, it only protects information about Canadians. Bill C-6 protects information about all individuals who come within its purview.
Those are a few examples of some of the problems that are created by the concept of adding the CMA code. We are at a starting point with privacy protection legislation at the federal level certainly and, with the exception of the Quebec law, this is the first bill in Canada. We are trying to make a credible, important start on something that will grow and, if anything, grow in complexity and importance to Canadians. I urge you to allow us to gain some experience with this before we try to do much more, so that we will know that this works and that we can work out some, if any, of the difficulties.
This is not just a Canadian issue -- this will be a global issue. When it dawns on people what the Internet economy is all about, concerns about privacy will go from wherever they are now right up to the top of the public policy agenda. Bill C-6, privacy and privacy protection have not exactly been front-page news. That could be a result of the understated manner in which the minister presents these things; I do not know. However, I believe it is one of the most fundamental issues that Canadians will face in the next decade. I urge you to try to get this right and gain some experience with this, and then we will see whether it needs more refinement or more layers. In the meantime, I think simplicity is a big asset of the legislation that we are proposing.
Regarding your third question, Senator Oliver, clause 2 of the bill defines commercial activity as:
...any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.
We have tried to focus on commercial activity as distinct from the exchanges of information that will necessarily occur outside the commercial sector but within the health care system.
Senator Oliver: The health care system contains both commercial and non-commercial aspects. What can you do to help us try to draw line between them?
Mr. Manley: We know that the relationships between medical professionals within the care-giving circle, within the hospital, are generally outside of commercial activity, but when you move to the insurance company that is paying some of the claims you have moved into a commercial relationship. There is an example of a line that could be drawn.
Where information is transferred for reward, clearly that is a commercial transfer. That is one of the issues underlying this: Exactly who is selling what information to whom and for what purpose? If there is a sale of information, Bill C-6 will catch it. That much is clear.
Senator Oliver: What about regulations?
Mr. Manley: I do not think regulations are being contemplated. There is not even a clause in the bill that deals with a regulation-making authority.
Senator Murray: It would be unusual if they overlooked that.
Mr. Manley: I know. That is usually the most important clause in the bill, right?
The Chairman: I know it is there because I found it yesterday.
Mr. Manley: What clause is it?
Senator Carstairs: It is clause 26.
Mr. Manley: It is a fairly narrow one compared to some that you may have seen in the past. This is a narrow regulation-making authority. We do not think it would be used for the purposes you are describing, but your question was whether, if we were to attempt regulations, I would have any objection to bringing those before the committee, and the answer is no, I would have no problem with that.
Senator Callbeck: Mr. Minister, I wish to ask a question I asked Mr. Phillips yesterday with regard to what I feel is an inconsistency in the legislation. According to subclause 5(2), when used in Schedule 1 the word "should" indicates a recommendation but does not impose an obligation. Yet subclause 11(1) states that an individual may file with the commissioner a written complaint against an organization for not following a recommendation set out in Schedule 1. Also, subclause 18(1) states that the commissioner may audit the personal information management practices of an organization if he has reasonable grounds to believe that the organization is not following a recommendation set out in Schedule 1. In other words, while subclause 5(2) clearly indicates that these are recommendations and not obligations, those other clauses would hold organizations accountable for not following through with them.
Mr. Manley: We are recognizing that we are expecting different levels of performance, and people should have the right to make a complaint based on a recommendation and have that complaint investigated and have the commissioner make a recommendation. In other words, there is a level of redress so that practices can be examined.
If your question is whether we should have in the code only things that are mandatory and therefore subject to direct enforcement action, I would say that that is not what the code is intended to do. One of the reasons the code took so long to negotiate across the sectors was that it had to comprehend many different practices in different industries and different sectors. Some things will be there because they may be seen as best practices but not necessarily mandatory practices. Does that help?
Senator Callbeck: If there is a complaint and the commissioner follows through and finds out that they are not carrying out this recommendation, is there any penalty?
Mr. Manley: No, there is no penalty. A good example is paragraph 4.5.3 under Schedule 1, which states that personal information that is no longer required to fulfil the identified purposes should be destroyed, erased or made anonymous. That is a best practice, but if you really wanted us to audit every organization to ensure that was done, that could be very burdensome. Once you have investigated that and established whether or not an entity is complying with recommendations, then that report becomes one of the items that a company can use, for example, in establishing its reputation for trust with its customers.
Senator Callbeck: I will accept that, but I still have problems with it.
I wish to go on to an item that was raised by Senator Oliver with respect to commercial activity. Several witnesses have told us that the definition is not precise enough; it is too vague. When your officials were here on November 25, I asked about the application of Bill C-6 to student records. Apparently, student records in universities would not be protected under Bill C-6, but those in a private institution would be protected. Students are paying for their education in both situations. It seems to me there is a double standard.
Mr. Manley: I would say that both cases fall under provincial jurisdiction. I presume that my student records are still available at Carleton University under my student number. As far as this bill is concerned, only the province would initially have the jurisdiction to deal with records that are entirely local in nature, unless those records were being transferred outside the province for consideration.
Senator Callbeck: If a province does not have legislation that covers student records, does this federal bill cover either the universities or the private schools?
Mr. Manley: First, I am not sure that all provinces do not have some kind of rules that are in effect with respect to student records. Second, four years later, when the bill is fully in effect, it will apply to all of those situations, including information disclosure within the province.
Senator Callbeck: If the province does not come forth with legislation, will Bill C-6 apply to private schools and not to universities?
Mr. Manley: Yes. After year one -- and clause 30 deals with the transition -- if the information will be disclosed outside the province for consideration, it is caught.
Senator Callbeck: That is right.
Mr. Manley: After four years, however, commercial use likewise within the province is caught, if the province itself has not got a substantially similar bill.
The provincial ability to legislate remains. It is the same as the health information, from that point of view. The question is what the institution is doing with the information. If it is making commercial use of it -- say, if it is selling its alumni list, for example -- it is caught.
Senator Callbeck: Is it caught for both the universities and the private schools?
Mr. Manley: Yes. Why would it not be?
Senator Carstairs: Mr. Manley, the implication the other day was that because universities were public institutions, they would never be caught, and because a private school, for example, was a commercial enterprise, it would be caught.
Ms Heather Black, Counsel, Commercial Law Division, Industry Canada: Perhaps it is my fault that the committee is somewhat confused on this issue. I answered Senator Callbeck's question on that particular point when we appeared last week. The answer is that for the university to hold lists of students for educational purposes is not a commercial activity. Your university has all kinds of information about you when you are there as a student. After you have graduated, they track you and follow you and try to get money out of you. If they were selling that "trying to get money out of you" list, that would be a commercial activity and would be caught. However, with respect to all those student records, as long as the university keeps them and does not sell them or use them for a commercial purpose, they are not covered.
When you move into the private sector, the activity of private schools could be considered commercial activity. It will always depend on the circumstances. Most of the time, a technical college that teaches students about computers and things like that would be engaging in a commercial kind of activity. Those student records are collected in the course of a commercial activity and would be subject to the bill. Is that any clearer?
Senator Callbeck: Yes.
Senator LeBreton: Minister, I generally support Bill C-6. It has been described many times as an e-commerce bill. It was drafted by Industry Canada and the Department of Justice Canada. I agree that privacy issues will shoot to the top of the public mind very quickly, if they have not already.
However, witnesses from the health care field have said that health was brought into the debate much later on. Indeed, the representative of the Canadian Pharmacists Association reported that as late as April of this year your officials made the assertion that it would not apply to health. Can you clarify that for us? Have you and your officials tried to reconcile these concerns? If not, have you put in place an action group to do so now?
Mr. Manley: I have been quite surprised at some of the things that these people have said. This did not spring out of nowhere. As minister, I started working on this in 1994, and the government had started work as early as 1990 or 1991 in general. This as been going on for a long time with many proposals and discussions, starting with the Information Highway Advisory Council which did extensive work on it. Although invited to do so, the health care people did not participate in the development of the CSA code.
Senator LeBreton: Some of them dispute that.
Mr. Manley: I can assure you that it never occurred to me to put forward a bill that would exclude health information. Of all the pieces of information that Canadians will be most fundamentally concerned about, this must be at the top of the list. If privacy concerns are moving to the top of people's lists, health information will be sky high.
Senator Oliver: Along with financial information.
Mr. Manley: Yes, and perhaps with our undergraduate university results.
Senator LeBreton: Officials have said on the record that health was not a part of this, so you can understand why people in the health care field feel they were not included in the drafting of the bill. If those witnesses were told point blank by your officials, as late as April of this year, that health would not be covered by this bill, you can understand their concern. What are you doing now to address those concerns? Is someone trying to resolve the issues that have arisen between your departmental officials and Health Canada officials with regard to this bill?
Mr. Manley: First, I am mystified by what they are saying. The bill was tabled as early as October 1998, after much discussion. I do not know how anything my officials may have said could have been interpreted to mean that health care would not be covered at all. It has been there from the first day that the draft bill appeared, and we reintroduced the same bill after prorogation. Of course, some people may have developed concerns late, and that is always a problem in a lengthy process.
We have been trying to sit down with each of the groups to determine which of the concerns are real and which are overstated. For example, the pharmacists told me at one point that they thought they needed written consent from a customer to call the doctor because they could not read his handwriting. To tell you the truth, I think that is foolish. If someone said that most of health care is not covered, that is probably true because most of it is not commercial, but a total carve-out was never contemplated.
As I said earlier, if someone is actually selling information across provincial boundaries, they have to deal with it within a year. For some, that may be a little tight, but organizations have said that they are not doing that. In that case, there should not be a problem because then they have four years to iron out any difficulties.
We are quite prepared to sit down with stakeholders and work out what their practices are. I am sure that Mr. Phillips will want to do that as well to ensure that his company's practices conform with the principles set out in the code. That can be an ongoing process. It does not require legislative intervention, changes to this code or changes to the bill to ensure that the Privacy Commissioner is satisfied. They merely need to know at what stages consent is required, what is adequate to obtain that consent, and where it can be implied. With the exception of the interprovincial issues for consideration, there is a lot of time to work all of that out.
The Chairman: I have a supplementary question based on Senator LeBreton's question, which in many ways goes to the root issue that has bothered the committee since we started our hearings. Both in your statement and in your responses to questions you have spoken repeatedly about the terrific consensus that has been achieved. Senator Oliver and I have never before attended a hearing where the bankers and the insurance people agreed, so your ability to develop consensus is truly awesome. The reality is that no sector of the economy has complained about the bill except for the health sector. Everyone else has said "delicate balance", "good consensus" and other positive things. However, it is clear from all of the testimony that the health care community as a whole is not part of the consensus, and that indeed there is no consensus within the health community itself on what the right solution is.
This is an important bill and it is desirable to get it into place quickly applying to everyone in the consensus. Since it is abundantly clear that there is no consensus in the health care sector, would not a reasonable compromise be to have the entire bill go into effect immediately with a two-year delay for the health care sector and with the bill applying to that sector after that only if a better solution has not been found? Two years would not be a significant delay since the bill is not in effect for the first year in any event.
In all my years dealing with business-type issues I have never seen a situation in which one sector is in a different position from everyone else, and that sector is itself divided. I believe that the health care sector is divided in part because the public-private sector interface is far more complex in health care than in any other segment of the Canadian economy.
None of us want to delay any of the rest of the bill. Is there some reasonable compromise that solves the problem of both sides?
Mr. Manley: That suggestion has been made before. I keep asking for an example of something where this applies and is a problem, not in four years but in one year. I do not have an example because almost entirely the effect of this is delayed four years already. Why delay it an additional year? Under clause 30, it is only the transfer of information outside the province for consideration that is caught in the health sector after year one. Am I right?
The Chairman: I agree with you that a number of the concerns may simply be driven by uncertainty, fear of the unknown, change, and all of that. Frankly, you and your officials have done an awesome job at reaching a consensus. I really mean that. I never have seen a general consensus across all economic sectors.
It strikes me as strange that, if there is one sector out there that is clearly not part of the consensus and is clearly unhappy, we would not take more time vis-à-vis that sector only to try to solve it rather than impose it on them, even though I agree that some of their concerns may very well be fictitious and, as you put it commenting on the pharmacists, foolish.
Mr. Manley: Other than what I have already said, I cannot think of an example. In fact, I have not seen an example.
Quite apart from that, there will also be a definitional problem once you start to say, "We will take one sector and we will delay application of the bill for that sector for an additional year." That is a more substantive change than some people may have contemplated, because then you do have to define the sector.
Senator Finestone: I have discussed with you privately the need for some kind of amendment because I am totally confused. However, I think the bill is necessary. I have had an ongoing and abiding concern about privacy since the mid-1990s.
I will give you two examples. First, a plastic surgeon removes a basal carcinoma from a patient's cheek, a procedure covered by the Ontario Health Insurance Plan. At the same time, the surgeon removes a mole, a cosmetic procedure not covered by OHIP. The doctor sends the specimens for analysis to a community-based laboratory that is a private corporation, but the lab work is paid for by OHIP. Services that are provided above the maximum funding levels are not reimbursed.
Does Bill C-6 apply to the uninsured service provided by the physician? Does Bill C-6 apply to the disclosure to the community-based laboratory when it provides the service reimbursed by OHIP or only when that service exceeds the cap? That example is found on page 4 of the brief from the Ontario Ministry of Health and Long-Term Care, whose concerns have been important in the deliberations, particularly today.
I know, Minister Manley, that in the other place you have talked very often about the importance of inputs and outcomes. Although those are military or business terms, they are being applied to the health field. I will turn to my next example.
The Chairman: I am happy to have one illustrious example.
Senator Finestone: That is fine. The issue raised by other groups that were with us is that research and laboratory clinical work is different from individual patients. That indicates that doctors and patients have difficulty understanding the impact of the law and that administrators in hospitals are having difficulty understanding where this law will apply and where it will not apply.
The other example I had wanted to give you relates to the question of the private laboratories, clinics for dialysis and so on, and pharmacists and their responsibilities. That is found at the bottom of that same page.
I only bring these examples to your attention. I do not expect an answer. You should also know that we are receiving a lot of e-mails, phone calls, faxes, and letters. I would draw your attention to an article that was published in The Moncton Times-Transcript. With the story is a picture of a doctor looking over a patient's file on a computer at the Moncton hospital. This was on the front page of today's newspaper. The article asks the reader to "imagine your personal health information becoming public and being made available to your employer and being assessed by financial institutions when you apply for life insurance or a loan." The article quotes Dr. Winston Dykeman, who said that the bill defines a clear set of privacy code requirements that would be useful for "selling dog food or other commercial activities... Of all the information being collected, there is probably nothing more sensitive and confidential than our own health data."
I could go on. All of us in this room know that within group data there can be differences, aberrations or unique circumstances. People who have Alzheimer's or people with a family history of heart disease or cancer are identified in major groups under ethnic or other structures.
A person may not carry any of that genetic information nor suffer from any of those diseases at this particular moment, but they appear in that group list, and that information could influence the outcome of a job application or an insurance assessment. It might even influence the decision of a potential spouse.
I am telling you that there are serious implications. I do not know. The people out there are anxious to read your answer to all of that so that the educational aspects, which are the undertaking of the Privacy Commissioner and your ministry, can clear up these questions. Is it only for dog food or is it for us? That is the question that is out there.
Mr. Manley: I have not seen the Moncton paper, but I personally find that so ridiculous as to be difficult to respond to. If it were that important, why would we delay?
Senator Finestone: Excuse me, Mr. Minister, if I have had an abortion I do not want anyone to know about it. If I did want them to know, I would tell them. It will be on my file and I do not want it on my file because I am going to apply for a job.
Mr. Manley: Why would you not want protection for the information?
Senator Finestone: Perhaps I do not want my employer to know that there is cancer in my family.
Mr. Manley: Somehow I have it completely backwards. It seems to me that we were trying to bring in a bill that would impede organizations from disclosing information. No law exists at the present time. You have no protection. Excuse me, you happen to live in Quebec, so you do. However, the rest of us have no protection.
I ask for these examples. Again, I think four years is plenty of time. Undoubtedly, lawyers can think up questions forever. We can all think up questions. That does not mean there are no answers. We have four years for all these questions to be resolved. I do not see in this example on page 4 any transfer of personal information across provincial boundaries for consideration.
The bill will not apply for four years. Can they not find out in four years what happens to someone's carcinoma sample? My gosh! We are talking about information that is important to people. We want to create a framework in which we can protect that.
Senator Finestone: I could have picked different examples; I did not know you were going to ask for any. I will go to my last question, which is in regards to the OECD standards and the European Union. I know how important and vital it is that Canada can be into international trade and have the kind of protection that almost prevented the United States from getting a good contract from Germany.
Your deputy minister pointed out that you use the OECD example and that it would drive the bus. In the meantime, there is concern because it does not. It is less protective in some directions. First, it does not provide a separate regime of protection for sensitive data, which includes health data, as much as the EU does. Of course, that model was developed with a different lens, a different mentality. A business lens was used there but you are applying it to health. Second, unlike the EU, it does not expressly provide for rules regarding the recipient of personal information. Third, it applies only to the collection, use and disclosure of personal information by organizations engaged in commercial activity, not to all custodians of personal information, as the EU directive does.
To cover all that, the EU countries, at least Germany and the Netherlands, that I know of, have developed the second step that you have been referring to. After setting a baseline, the second step is a particular adaptation for the health care sector. Our chairman has asked you about this. In light of the divisive approach and the sensitivity to this issue, could you see your way clear to at least addressing the issue in a specific way through the federal-provincial-territorial task force and through a direct relationship between the Department of Industry and the Department of Health? Can we come to some accommodation to address this very sensitive issue?
Mr. Manley: Most of the jurisdiction with respect to this information lies within the provinces if they choose to act. We have waited a long time to see them act on this.
Senator Finestone: I do not disagree.
Mr. Manley: Other than Quebec, no province has done so. If this bill incites them to act, that is fine.
Senator Finestone: What if it does not?
Mr. Manley: We know about some of the issues that they must tackle, including the issues between physicians on the disclosure of prescribing practices. The provinces can address those matters if they choose.
As I have already said, I do not understand why we would try to carve out the sector for a one-year delay when most of the issues that arise within the sector are not affected by the bill for four years. The transfer of information across provincial boundaries for consideration is the one area in which a one-year time frame applies. I have heard of no example where that kind of transfer will be problematic and would, therefore, justify putting everything on hold until we found adequate language to provide a one-year carve-out.
Senator Finestone: I do not want a carve-out.
Mr. Manley: Assuming they have a problem -- which I question -- I do not see how we solve it by offering some kind of additional one-year delay. If they have a problem, it will arise primarily in four years. I do not see what we would gain by a one-year delay, but it could cause some problems because some fancy drafting would be needed to describe what it is that we would be delaying for one year.
[Translation]
Senator Gill: Bill C-6 is a necessary enactment to ensure some oversight over electronic commerce. It is better to have legislation with some shortcomings than no legislation at all.
My question concerns aboriginal peoples. No doubt you are aware of their situation, Medically speaking, physicians who treat aboriginals are either working on a fee basis, that is they were chosen by the individual to provide care, or they are retained by Health Canada. I do not believe the physicians in the latter category work on a fee basis. I think they are paid a salary. Information is collected and forwarded to Health Canada. In the past, a considerable amount of information has been disclosed for a variety of reasons, including information on health and other matters.
Will the Privacy Act apply to medical information forwarded to a hospital, but not to the federal government? Does the Privacy Act take precedence when information such as this is imparted to someone else?
University researchers collect information from the government, conduct research and publish their findings. To which legislation are they subject?
Mr. Manley: First of all, if the information is going to Health Canada, then it falls under the provisions of the Privacy Act. Secondly, if information is sold for commercial purposes, then Bill C-6, if passed, would apply. In Roberval, Quebec's privacy legislation was found to apply.
Senator Gill: Quebec's privacy legislation?
Mr. Manley: Yes, in Roberval. Bill C-6 contains exceptions for research, provided the Privacy Commissioner is notified.
Senator Gill: Provincial jurisdiction still applies, even if the physicians work for Health Canada?
Mr. Manley: Yes.
Senator Gill: Even if they were hired by Health Canada?
Mr. Manley: In cases where information is transmitted to Health Canada, the provisions of the Privacy Act apply. When the physician is employed in the region, even if he or she is on the government payroll, the provisions of Quebec's privacy legislation apply.
[English]
Senator Keon: Mr. Chairman, you have already made my statement and asked my question. Senator Finestone has addressed the examples that I wanted to use and so I can be very brief.
Mr. Minister, we shall come back on that point. If you ask anyone in the health profession about the bill, most will say that this bill is absolutely necessary, that it is timely, and that we have needed it for a long time. We are glad to see it but there are some gaps in it.
In explaining the situation this morning, you have said that they do not really have a problem because they have four years to work on it. There seems to be a gap in communication between Industry and the health sector. As you know very well, that was a wide gap until a few years ago. You have done a great deal in conjunction with the Minister of Health to narrow that gap. Some great things have happened that are wonderful for our country in relation to the commercialization of science and so forth.
However, the gap is still there. Listening to you and listening to comments from the health sector, I hear a misunderstanding. You say they do not really have a problem and, if they do, they have four years to solve it. There must be some way, if you think about it in conjunction with our chairman's comments, to narrow that gap further in order to get all possible benefit from this legislation.
Mr. Manley: I hope there is and that it does not require delaying the bill.
Senator Murray: My question is along the same lines as Senator Keon's comment. For a while here we have been talking past each other. We have had a parade of witnesses the last few days who are very supportive of the bill, including advocacy groups and, most recently, Mr. Dodge and Mr. Phillips.
They told us that the criticisms of this bill from the health care sector have been terribly vague and imprecise, that their preference is for witnesses to provide some examples. There has been a bit of that today in your own testimony.
I will not take you through it, but the yellow stickers I am showing you relate to examples provided by Sharon Sholzberg-Gray of the Canadian Health Care Association, which represents the hospitals. Ms Sholzberg-Gray stated that it would impede our ability to collect information needed to assure quality in the health care system right away. She is referring to the collection of information from the private health care sector, and she elaborates on that in some detail.
There is one organization, however, that I wish to draw to your attention, and that is the Canadian Council on Health Services Accreditation. They are the people who accredit the hospitals and other health care institutions. They have discussed the potential effects of this bill on their services. They send people out to review clinical records, to review medical quality committee minutes and records, and to examine patient complaints, as part of the continued accreditation process, to ensure the institution in question is worthy of continued accreditation. They make the case strongly that this bill will prevent them from doing that.
You have suggested one year for interprovincial and international applications of the bill and essentially four years for the intraprovincial aspect. Mr. Dodge suggested that he and the department would work in conjunction with the health care sector to possibly introduce amendments after the bill receives Royal Assent but before the date of proclamation. That is not the way to do business. I think we must consider how to proceed in order to produce a good bill, one that addresses the objections that we have heard from this sector.
Mr. Manley: In the examples you cite, it is difficult for me to understand why, if a patient generates a complaint that requires investigation, that does not clearly imply consent to look at the records, if indeed it is not express consent.
Senator Murray: The hospital accreditation committee would look into the complaints process in the hospital. The accreditation providers suggest that this bill would prevent them from doing that.
Mr. Manley: The accreditation agency looks at the hospital records in order to determine how it deals with complaints. How will this generate an objection to the Privacy Commissioner based on Bill C-6?
Senator Murray: I do not know how that might happen.
Mr. Manley: I do not either. That is my problem in dealing with this litany of difficulty. It is not commercial, nor is it in any way a disclosure of information for consideration.
Senator Murray: It is commercial, Mr. Minister, because one assumes the accreditation council gets paid for the services they provide.
Mr. Manley: Is that organization a private-sector or public-sector body?
Senator Murray: They are both. They are the national, independent accrediting body for health care organizations across Canada in both the public and private sectors. They hire consultants. In the process of trying to accredit or maintain the accreditation of a hospital, it is necessary for them to review the clinical records, the patient records, the minutes of the medical staff meetings, and numerous other items and areas. They say that under Bill C-6 they will be prevented from doing their work.
The questions they raise, as professionals in an organization that has an important role to play in Canada's health care sector, must be addressed and resolved.
Mr. Manley: I do not know how many people have come to see me on this, but when I ask them to describe the situation in detail, it is difficult to find a mountainous problem.
Senator Murray: I cannot claim, nor can you claim, that we know more about their business than they know. We must take them seriously.
Mr. Manley: No, of course not, nor do I claim to. This bill was tabled in October 1998. Many of these so-called objections are arising late in the process. Many of these objections lie within the province. There is a four-year period if, in fact, the province does not legislate in advance.
The overall principle of our efforts sets a standard for the protection of personal information. This will go forward as an important principle. It is one for which I am prepared to fight because we are trying to make Canada the most connected nation in the world. It is enormously advantageous that Canada seize the information and communication technology and use it advantageously. We must provide a basis for trust and confidence in the protection of information. We know that issue will surge ahead.
If anything, we should be criticized for creating a framework in which there is a four-year delay, not that we are pushing it too fast.
If you review the examples, some of them will cause difficulty for people whose practices do not respect people's privacy. They will face some administrative difficulties because they will have to ask patients for their consent. I am not certain that is a bad thing.
Four years gives us time to proceed case by case, to work through these examples, to draw in the expertise of the Privacy Commissioner, to determine whether in fact there are some things that are insurmountable. Four years is a long time. It gives us ample time to resolve these issues.
If we were to say, "Let us think about this until February," we would not solve these issues in that period of time. The process that would follow passage of the bill would provide time for us to flesh out whether those difficulties are real, whether they can be fixed by practices within the various professions, or whether in fact we must return and review the code to ensure it meets the necessary requirements for the system to work. I do not think we will get answers to those questions without having the bill.
The committee adjourned.