Proceedings of the Standing Senate Committee on
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
Senator Michael Kirby (Chairman) in the Chair.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Of course, the health ministry relies on information received from certain
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
The Chairman: Thank you, witnesses.
Honourable senators, we now have the minister with us. Mr. Minister, welcome and
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
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.
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
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.
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
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.
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
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.
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
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.
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
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
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.
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
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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,
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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.