Appearance before the Senate Standing Committee on Social Affairs, Science and Technology on Bill C-11 – Human Pathogens and Toxins Act

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June 17, 2009
Ottawa, ON

Statement by Chantal Bernier
Assistant Privacy Commissioner of Canada

(Check against delivery)

Good afternoon. My name is Chantal Bernier and I am Assistant Privacy Commissioner of Canada responsible for the Privacy Act.

With me is Melanie Millar-Chapman, a Senior Policy and Research Analyst with our Office, who has done much of the background work on this file for our Office.

Thank you for seeking our Office’s comments on Bill C-11.

Today, I would like to

  • describe our approach to Bill C-11,
  • state our position on the amendments that have been made since its introduction,
  • clarify our position on the issues on which we have received explanation from the Public Health Agency of Canada and,
  • finally, comment on one outstanding issue for the Committee’s consideration.

So first, our approach to Bill C-11.

I must state at the outset that we accept and welcome the purpose of Bill C-11 in addressing a regulatory gap. We understand that several thousand laboratories in Canada which use domestically acquired human pathogens and toxins are governed only by a voluntary biosafety regime.

We determined from our discussions with officials from the Public Health Agency of Canada 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).

As you may know, we were consulted by the House Standing Committee on Health and provided two letters in March 2009, both of which have been posted on our web site.

Since the introduction of this Bill we have had detailed briefings from Public Health Agency officials. We have also been pleased to receive some very helpful correspondence from Dr. Butler-Jones to address the concerns we raised.

Dr. Butler-Jones has recently written us to indicate that his staff would like to discuss the development of a Privacy Impact Assessment and has also invited us to take part in the consultation on the Regulatory Framework.

Overall, we feel that there have either been amendments to the Bill to address our concerns or that we have benefitted from a constructive dialogue with Public Health Agency officials that has helped us to better understand the proposed rules.

Let me turn to the amendments to the Bill.

Comments on Amendments

I want to begin by acknowledging that we are pleased that two of the amendments to Bill C-11 address concerns we had identified in our March 11th letter. Specifically:

  • we were pleased that a reasonable grounds test was included in subclause 38(1) and
  • that subclause 39(2) has been amended to restrict further disclosure of personal information unless the disclosure is required by law.

The other amendment we believe may improve the privacy protections in this Bill is the new requirement that the regulations will be subject to Parliamentary scrutiny. Clause 66.1, and the fact that Dr. Butler-Jones invited our Office on May 29th to participate in consultations on the Regulatory Framework, leaves us optimistic about the regulation-making process under this proposed legislation.

I now want to turn to the issues where we have received explanations from Public Health Agency officials that provide us some comfort about the contemplated regime.

Ancillary personal information

The first of these issues concerns ancillary personal information, such as patient information or information about a laboratory worker’s family members, that we had mentioned in our earlier letter to the House Standing Committee on Health.

Dr. Butler-Jones has provided additional information to the point that our concerns around ancillary personal information can be addressed in the privacy risk assessment and discussions to come around regulations.

We had always understood the value of the security clearance process for these facilities. However, we had been concerned that there was still nothing in the Bill to restrict the collection of ancillary personal information.

For example, in our March 30th letter, we had raised concerns about possible collection of personal information about a laboratory worker’s family members, should they come into contact with a regulated pathogen or toxin. We said we were mindful of the potential for function creep and would therefore prefer to limit the collection of personal information.

Dr. Butler-Jones responded to our concerns about ancillary collection of personal information in his May 29th letter by stating that:

We believe that personal patient information would not usually be relevant to the administration of this Act or its regulations. In fact, in the fifteen (15) year history of the Human Pathogens Importation Regulations, on which much of the program under Bill C-11 will be based, we have not accessed personal patient information relating to a medical patient or a family member of a laboratory worker.

He further stated that:

While we may want to know how someone became ill if the circumstances related to biosafety in a laboratory, we do not need to know who that person may be for the purposes of the administration of a human pathogens and toxins program. Information about how the person became ill could help to adjust the Laboratory Biosafety Guidelines so that similar incidents do not happen in other laboratory settings, but, once again, the identity of the individual who became ill is not necessary in that respect.

Though it does not improve the language of the Bill, this clarification gives us some helpful perspective on current practices. We look forward to having an opportunity to discuss the safeguards that should be in place when we provide comments to PHAC officials regarding the regulations concerning the collection, use and disclosure.

Clause 41 – Entry by Inspectors

The second issue on which we have received satisfactory explanations from the Public Heath Agency is with respect to entry by inspectors.

We had earlier raised concerns about section 41 being short on details about the inspector’s powers to collect documents, materials and information. We had questioned whether it might extend to the examination and collection of personal information and personal health information of individuals and patients.

In his correspondence, Dr. Butler-Jones provided us with context for section 41 and we note that subclause 41(1), that discusses the entry by inspectors, includes the requirement for reasonableness.

We noted Professor Elaine Gibson’s remarks before the Committee that the requirement of reasonableness that was added to clause 38 should also be added concerning inspectors’ powers under subclause 41(2), so that inspectors on the ground might be clearer about their obligations. While we agree that this addition would further clarify the provision, we are satisfied with the fact that subclause 41(1) contains a reasonable grounds test applicable to subclause 41(2).

Clause 67 – Interim orders

We expressed concerns about the issue of interim orders in both of our earlier letters. We stated that we believed that the use of an interim order to alter the regulations in an emergency situation might diminish controls over personal information and we had suggested that a reasonable grounds test would be beneficial in this provision.

Dr. Butler-Jones and his officials have made clear to us the exigent circumstances that would require the Minister’s ability to take prompt action on a temporary, exceptional basis.

With this additional information on the context, we think that the approach set out in the Bill is a reasonable one.

Finally, I would like to put to the Committee one outstanding issue for further consideration.

Clause 39 – Disclosure by the Minister

We would draw your attention to subclause 39(2) which relieves the Minister of the obligation to have a confidentiality agreement in place BEFORE disclosure of personal information, where, as described in 39(1)(b):

the Minister has reasonable grounds to believe that the disclosure is necessary to address a serious and imminent danger to the health or safety of the public.

While we understand the reason to allow the Minister to act quickly in situations of serious and imminent danger, we believe that it would be beneficial to ensure that a written confidentiality agreement is put in place shortly after the disclosure under 39(1)(b) has occurred.

That is really the only change we are putting forward for your consideration today.

Closing remarks

In closing, we look forward to continuing our collaboration with the Public Heath Agency of Canada and there are a few items we intend to raise when we are consulted on the regulations.

For example, we had earlier recommended that, on the matter of retention of personal information, that retention periods be defined or subject to clear criteria. We had also suggested that officials maintain a clear account of all disclosures of personal information so that we could monitor any such disclosures and know the rationales for them.

We are pleased with the changes that have been made to Bill C-11 so far.

I would be happy to take your questions.

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