Bill C-12, the Quarantine Act
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House Standing Committee on Health
November 18, 2004
Statement by Raymond D'Aoust
Assistant Privacy Commissioner of Canada
(Check against delivery)
Thank you for inviting me to comment on Bill C-12, which repeals and replaces the existing Quarantine Act.
We understand that updating the Quarantine Act is the first of a series of improvements in support of public health that the Government of Canada wants to introduce. This is an important piece of legislation that is intended to prevent the introduction and spread of communicable diseases in Canada.
We are not here to argue against the public safety imperative. The SARS outbreak illustrated the challenges of disclosing relevant personal information in the face of a public health incident. Health Canada explained to us the fairly cumbersome and lengthy process to receive and disclose information on travellers during that period.
We also recognize the ever present threat from terrorist use of biological agents. The government of Canada needs to be in a position to respond quickly should such a situation ever arise.
For these reasons, our Office can certainly see the value of updating the Quarantine Act at this time.
On the whole, we are supportive of the legislation. What we can offer here today are some suggestions for improvements.
Before doing so, I want to explain the relevant aspects of our Office's expertise and mandate. We oversee the Privacy Act, which protects personal information held by more than 150 government departments, agencies and institutions, including Health Canada. So the aspects of this Bill of chief concern to our office are those that touch on the handling of personal information. I will say more about the Privacy Act near the end of my presentation.
In following through the escalating procedures that are outlined in Bill C-12 with respect to health assessments and medical examinations, it's clear that the legislation would permit the collection, use and disclosure of personal medical information, information that in many cases could be highly sensitive. These are areas where we can bring our expertise in the handling of personal information to bear and, I think, propose some comments that will be of interest to the Committee.
Let me now provide you with detailed comments on the legislation beginning with, as I mentioned a moment ago, some areas where we are supportive of the language set out in the Bill and then, some provisions that we think require some improvement.
We would like to begin by expressing support for the language in Clause 15.
Proposed subsection 15(1) states that every traveller must answer questions and provide any information or record in their possession that the officer "may reasonably require in the performance of a duty under this Act".
We support the idea that the duty to provide information to a screening or quarantine officer should be qualified by the notion of reasonableness. This is a valuable protection for the traveller that we would like to ensure remains a central part of this legislation.
In our experience, we have found that the reasonable person test set out in the purpose clause of our private sector privacy legislation, the Personal Information Protection and Electronic Documents Act, has been very effective as a tool for establishing an appropriate balance of interests.
Proposed subsection 54(1) allows an individual who reports a contravention of this Act to request that their identity not be disclosed. Subsection 54(2), however, makes this promise of anonymity subject to any other Act of Parliament.
"Any other Act of Parliament" includes the Privacy Act. It has been established in case law that the identity of an individual making allegations against another person can be accessible to that person under the Privacy Act, subject to certain exemptions.
Thus, while confidentiality should be the general rule under the Bill, there will be situations where an individual who makes a formal access request under the Privacy Act will be entitled to know the identity of the whistleblower. This is a reasonable balance, in our view, one that is consistent with what is proposed in Bill C-11, the Public Servants Disclosure Protection Act.
Under Bill C-12, a health assessment is an evaluation of the medical and travel history of a traveller, as well as a physical examination.
We believe that the reference in clause 2 to medical history should be narrowed to refer to the individual's "relevant" medical history.
It would be important to limit the scope of the collection of the traveller's medical history to what the assessor really needs to know to determine whether the traveller is a health risk. This is a reasonable limit on collection, even when the stakes are high.
For greater clarity and reasons of transparency, we would also recommend that Clause 2 should include a definition of a medical examination. The parameters of the definition need not be limited, but the definition should set out what may be included, such as the collection of bodily fluids for the purposes of testing.
"Reasonable grounds" in some provisions
In Clauses 56 and 57, there seems to be some asymmetry in the wording in that some sub-sections are premised on "the opinion of the Minister" and others are based on "reasonable grounds."
We noted a lower standard in proposed sub-section 56(1), where only the opinion of the Minister was required to make a disclosure to various governments or an international health organization, without a reasonableness requirement to temper that opinion.
In contrast, proposed sub-section 56(2) and clause 57 both require that the Minister should have reasonable grounds to disclose personal information to someone in the transportation business or for law enforcement purposes.
Our recommendation would be to have a standard of reasonableness for all of these provisions.
Protection for personal information
Our final comment relates to the protection of personal information that will be done by regulation. Clause 62 sets out fifteen areas in which the Governor in Council may make regulations. Sub-section (g) states that this includes regulations "respecting the protection of personal information."
We look forward to working with Health Canada officials on these regulations to ensure that they enhance the existing protections afforded to individuals under the Privacy Act.
For example, any collection of information resulting from a medical examination should be limited to the purposes of the legislation.
There may also be a need for some guidance on the disclosure and retention of personal information.
On the matter of disclosure, we would recommend that the regulations contain some guidance that the Minister would need to ensure that any personal information to be disclosed under this Act should be held in confidence and that it should only be used for the purposes of the Act.
It is a central feature of fair information practices to ensure that when personal information is disclosed, what is provided is as limited and specific as possible for the identified purposes. We are also aware of the need to remind recipients that they should hold the information they receive in confidence unless there is a statutory obligation to disclose it.
Maintaining control over the manner in which personal information is disclosed and managed by a third party recipient is an important feature of privacy protection.
On the matter of retention of personal information, given the sensitivity of the personal information that could be collected under Bill C-12, we would recommend that the information not be retained for longer than necessary.
In closing, we believe that this is important legislation and that, with some minor changes, it will have achieved an appropriate balance between protecting public health while at the same time respecting the privacy rights of individuals.
Thank you very much for your time today.
I would be pleased to respond to any questions you might have about our perspective on the legislation.
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