Comments on Bill C-11, Human Pathogens and Toxins Act

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In a response to a request for comment, the Assistant Commissioner wrote this follow-up letter to Ms. Joy Smith, M.P., the Chair of the Standing Committee on Health.


March 30, 2009

Ms. Joy Smith, M.P. 
Chair
Standing Committee on Health
Sixth Floor, 131 Queen Street
House of Commons
Ottawa ON K1A 0A6

Re: Follow-up letter concerning Bill C-11, Human Pathogens and Toxins Act

Dear Ms. Smith:

Thank you for seeking Commissioner Stoddart’s further comments on Bill C-11, now that several amendments have been proposed.  In the interest of time, I am replying in Commissioner Stoddart’s absence.

Since Commissioner Stoddart’s letter to you on March 11th, Dr. Butler-Jones sent us a letter regarding some of our stated concerns.  He and Commissioner Stoddart had a follow-up discussion on March 20, 2009.  In addition, my staff and I were pleased to meet with Dr. Tam and her colleagues on March 25th and we look forward to continued discussions with Dr. Butler-Jones’ officials in the months ahead.

To begin, I was very pleased to learn that of the proposed amendments to Bill C-11, two will address concerns set out in our March 11th letter to the Committee.  We are pleased to find out that the language in subclause 38(1) will be changed to include a reasonable grounds test.  We are also pleased to learn that subclause 39(2) will be amended to strengthen the confidentiality provision to restrict further disclosure unless the disclosure is required by law.

Regarding the confusion as to prior consultation, there seems to have been a preliminary exchange of emails between Public Health Agency of Canada (PHAC) officials and some of my officials in May 2008.  Overall, however, we did not have many details and did not receive materials, other than what was then Bill C-54, at that time. 

We determined from our discussions with Dr. Tam and her colleagues on March 25th that Bill C-11 will cover laboratories in both the private and public sectors, so there will likely be oversight from our Office under the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA).  We also learned that the main objective would be to collect information about people who work in laboratories to ensure that they meet security requirements and that the security screening will be consistent with the processes that are already in place.  We also learned that this Bill will not create a new biobank.

We recognize that the intent of the legislation is to deal with the personal information of laboratory workers; however, we still have concerns that there is nothing in the Bill to restrict the collection of ancillary personal information, such as patient information.  Another ancillary collection could be personal information about a laboratory worker’s family members, should they come into contact with a regulated pathogen or toxin.  As well, we are aware of the potential for function creep and would therefore prefer to limit the collection of personal information.  We look forward to these issues being addressed in the privacy risk assessment work to come. 

We believe that clause 67, which allows the Minister to use an interim order to alter the regulations in an emergency situation, may diminish controls over personal information.  While Dr. Butler-Jones and his officials refer to similar powers existing in other legislation as a rationale, our role as Parliament’s privacy guardian is to alert Members to privacy risks. As in subclause 38(1), a reasonable grounds test would be helpful in this situation.

In closing, based on what we heard from PHAC officials, we believe that the Agency currently has sufficient information to engage in a high-level privacy risk assessment in anticipation of the more formal privacy impact assessment process. We appreciated receiving the additional information and we look forward to consulting with PHAC officials on the privacy risk assessment and on the regulations.

Sincerely,

(Original signed by)

Chantal Bernier,
Assistant Privacy Commissioner

c.c. Dr. Butler-Jones, Chief Public Health Officer, Public Health Agency of Canada

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